A letter from the Public Sector Standards Commissioner to the Head of Service:
Ms Kathy Leigh
Head of Service
ACT Public Service
Dear Ms Leigh,
I am writing to provide you with an overview of the contribution made by my office in 2018-19 to support high standards of administration in the ACT Public Sector through the oversight of misconduct processes, other complaints received and Public Interest Disclosures.
The role of the Public Sector Standards Commissioner is an integral component of the ACT Public Sector Integrity Framework. In addition to my formal role in oversighting and conducting investigations into matters of public administration, my office seeks to capture key messages arising from our casework so that all in the ACT Public Sector can benefit and be more attuned to preventative steps that can be taken to reduce the incidences of such cases going forward.
Our approach to investigations
As you will be aware, the Public Sector Standards Commissioner (PSSC) is supported by a Senior Director and the Professional Standards Unit (PSU) allowing all requests for investigations and complaints to be centrally coordinated and conducted, with only a small number being outsourced. This ensures greater consistency in the approach adopted across the Service, providing confidence in the outcomes of the investigations being undertaken.
We continue to be guided by the basic principles of procedural fairness and transparency in the conduct of our investigations.
We are also seeking to improve our approach to investigations and our engagement with public sector entities as we are conscious of timeframes to complete investigations, and the associated resource and emotional costs.
Misconduct processes
Under Section H of the ACTPS Enterprise Agreements, allegations of misconduct are referred to me for independent investigation. In May 2019, I issued delegations under section H10 of the Enterprise Agreements to Directors-General or their delegates. The delegation allows Directors-General to consider the findings contained within misconduct investigation reports and make a determination as to whether misconduct has or has not occurred. The transition to these new arrangements is progressing smoothly.
During 2018-19, the PSU received 85 new misconduct referrals from across the ACT Public Sector. This is a 16% increase compared to 2017-18. In addition to the new referrals received, the PSU had 33 investigations in progress from the prior financial year.
The PSU completed 72 referrals during 2018-19, which consisted of 60 full investigations and 12 admission statements. In addition, 4 investigations were completed by external investigation services. Overall, this represents an increase over the previous year, which saw 52 matters completed with the established team. The average time taken by the PSU to completed misconduct investigations has also increased this year to approximately 124 work days, as compared to 111 work days in FY 2017-18. As indicated above, investigative processes have been reviewed to reduce these timeframes going forward. The early indications here are positive, with average time to complete investigations decreasing in 2019-20.
The processes completed during FY 2018-19 resulted in substantiated findings of misconduct in 90% of referrals, as compared to 85% for the previous year. These statistics do not include employees who were summarily dismissed under provisions of the relevant Enterprise Agreements for misconduct offences in lieu of investigation by the PSU or those that resigned prior to conclusion of an investigation.
The types of behaviour most commonly substantiated through investigation by the PSU across the ACT Public Sector during 2018-19 were:
- Inappropriate behaviour, including lack of courtesy and respect, use of threatening or offensive language.
- Failure to exercise reasonable care, skill or diligence.
- Failure to follow or comply with written or verbal direction.
These substantiated behaviours are consistent with previous years findings.
It is noteworthy, however, that there has been an increase in the use of suspensions with pay for employees while a misconduct process is in progress. In the light of this increase it is worth mentioning the importance of delegates considering the full range of alternatives that might be suitable in the particular circumstances such as temporary transfer of an employee or reallocation of duties, given the impact of suspension on both the employee and the work area.
Further, on occasions, referrals have been received after insufficient inquiries have been conducted during the preliminary assessment phase of the misconduct process. By understanding both sides of the story, matters may well be resolved locally without referral for a formal misconduct process.
I also mention that my office and Public Sector Workplace Relations are in the final phase of completing new guidelines for the misconduct process to assist Directorates in managing this process. The objective is to assist all entities to ensure the implementation of fair, independent and consistent misconduct processes across the ACT Public Sector.
Other complaints
My office receives a range of other complaints about ACT public administration which are general in nature and related to administrative processes, managerial actions, the behaviour of employees or contractors and recruitment practices.
Complaints received are treated seriously, assessed fairly and objectively and managed so as not to disadvantage the complainant. Further, complaints are used to identify systemic issues and to continuously improve the ACT Public Sector.
During 2018-19, my office received 11 such complaints, with all matters resolved as at 30 June 2019.
Public Interest Disclosures
Public Interest Disclosures (PIDs) are an important mechanism for employees or members of the public to raise concerns about serious misconduct, maladministration, misuse of public funds, or substantial danger to public health, safety or the environment, in a confidential manner with protections from reprisal or retribution. The Public Interest Disclosure Act 2012 mandates that disclosures be assessed, investigated and addressed under a defined process, with the discloser being treated respectfully and kept informed throughout.
During 2018-19, my office was informed of 7 disclosures received by ACT Public Sector entities which were assessed as PIDs under the Act. It was noted that many matters received by entities, which claim to be public interest disclosures, were determined after consideration by the responsible entity not to fall within the scope of disclosable conduct and addressed through means outside of the PID process.
Consistent with PID Act 2012 and the PID Guidelines, my office and the Head of Service should be advised on the receipt of a public interest disclosure, as well as the outcomes of assessments and any actions taken with regard to the allegations made.
Many of the issues raised under the PID processes underline the importance of public sector entities:
- Engaging with key stakeholder groups, where practicable, so there is a good understanding of the relevant considerations impacting on significant decisions which are likely to be of considerable public interest.
- Being transparent as to the basis for significant decisions which are likely to be of considerable public interest.
To assist public sector entities in addressing disclosures received under the PID Act, my office has recently revised and reissued the PSSC Public Interest Disclosure Guidelines. The main changes are intended to make the guidelines clearer, more concise and reflect the experience gained in managing disclosures since the previous version of the guidelines were issued. A new part was added to the guidelines to assist Members of the ACT Legislative Assembly respond to disclosures made to them.
To highlight some opportunities that might be considered for improving the PID processes going forward, my office has provided a submission to the ACT Government’s review of the PID Act, which is currently underway.
Messages for managers and other team members
Following on from the approach adopted last year, we have extracted from the cases we have investigated or otherwise considered some of the important messages for both managers and team members. It is unlikely these messages will be new to many, but experience shows there is generally benefit for all in being reminded of the importance of good practices when it comes to management and operating in a team environment.
For managers, the most important message is in demonstrating and reinforcing the public sector values of Respect, Integrity, Collaboration and Innovation in a manner that is meaningful for the office or workplace environment, and dealing with any issues at an early stage.
The public sector values provide the basis for a cohesive and integrated ACT public sector which emphasises respect and integrity in our dealings, but which also emphasises the need for adaption in a changing world. In this context, there is much to be said for the adoption of approaches which allow employees to be regularly informed of progress being made against organisational goals, and of new developments likely to affect the workplace, and for any matters highlighted to be worked through in an inclusive and effective manner.
As is generally understood, there can be many factors that influence the performance or behaviour of employees. As a consequence, when such issues arise, managers should consider the range of options available to address the performance or behaviour - from a clear conversation with the employee, to a performance management approach, to a misconduct process. Decisions will generally be influenced by the past track record of the employee, the extent to which their behaviour is outside acceptable norms and the willingness of the employee to change their ways and clearly abide by the public sector values going forward.
It is part of every manager’s responsibilities to:
- set a good example for others;
- engage with team members on the standards expected in the workplace;
- have key policies and procedures current, and for team members to be aware of these;
- address cases of poor conduct, behaviour or practice early;
- encourage team members to contribute to the best of their ability;
- assist in the professional development of all employees; and
- where practicable, adopt consultative, open and transparent processes, and engage in meaningful communication with stakeholders when addressing issues where there is a high level of public interest.
For team members, the most common message we see arising from our work environment is the importance of abiding by the public sector values, particularly respect and integrity. Related to this is the importance of being diligent and doing one’s job with the requisite skill and care. It should also be clearly understood that staff are expected to comply with the reasonable direction of managers issued in accordance with their responsibilities and engage with managers in a constructive and respectful way when addressing workplace issues.
It is important to recognise that the number of cases referred to above involves only a very small percentage of the number of employees in the ACT Public Sector. That said, if through preventative action we can reduce the number of cases, there will be savings in both resources and emotional costs that attach to such matters.
Keeping in contact
My office will continue to engage with entities on individual cases to streamline our collective approach, settling terms of reference for investigations and facilitating meetings where required.
We are also available to assist with the consideration of preventative measures and contribute as appropriate to training programs and other knowledge sharing opportunities, within our available resources.
Yours sincerely
Ian McPhee
Public Sector Standards Commissioner
8 August 2019