Employee misconduct: how to make ‘independent’ decisions

Double dipping Code of Conduct breaches from the same facts and fishing for extra allegations are signs a delegate isn’t living up to their responsibility to first protect the agency. Employment law director John Wilson explains.

It is trite to state that any delegate appointed as decision maker in APS misconduct proceedings needs to bring an independent and open mind to the matter. But what does this actually mean?

More often than not, agencies correctly appoint someone who does not have an obvious conflicting interest in the outcome of the misconduct investigation. Failure by the agency to do so, of course, can result in delegates’ decisions being set aside on the basis of reasonable apprehension of bias, or actual bias.

However, the mere appointment of someone not involved with the employee or the subject of the alleged misconduct, is not enough to satisfy the requirement of being an independent decision maker. In our practice, we see at least two other common errors in this regard.

The first set of errors arises in situations where agency procedures for handling suspected misconduct allow for the appointment of an investigator separate to the breach decision-making delegate. There is nothing wrong with the toil of an investigation into the messy facts of an employee misconduct allegation being tasked to an investigator, either internal or external to the agency. The precise role of that investigator will be set out in agency-specific procedures. However, upon receipt of the investigator’s report, an independent breach or sanction delegate cannot simply rubber stamp the investigator’s report, and blithely adopt any recommendations contained therein as their own.

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