5.1 Response to integrity breaches

When internal controls are established and implemented well, and a culture built on integrity exists, integrity breaches should be the exception rather than the norm.

A disciplinary process is the most common response to integrity breaches. The disciplinary process is based on the employment relationship and obligations and duties an officer owes to that relationship.

Actions taken following a disciplinary process depend on the employment framework that applies (legal, industrial and policy requirements), and may include warnings, reprimands, fines or termination of employment. If serious misconduct and corruption occurs, there may be other action taken in addition to the disciplinary process including criminal charges.

Why is responding to integrity breaches important?

Well-executed disciplinary processes by skilled practitioners make it more likely integrity breaches are addressed appropriately. When actions taken are proportionate and meaningful, it signals that integrity is a priority.

Anti-corruption and other integrity bodies have noted some disciplinary practices that do not enhance integrity. These include allowing an officer to resign or take a redundancy when there is sufficient evidence (found through a proper investigation) to dismiss them; and allowing officers with a history of misconduct to be re employed.

Ideas for good and better practice for responding to integrity breaches

Good practice

• Develop and implement a discipline policy and procedures with sufficient guidance to comply with legal, industrial and any centrally-set requirements like Commissioner’s Instructions.
• Base the discipline process on key principles:
  • Fairness: Access to justice and equal treatment. As a legal principle, it has substantive (human rights and legal equality) and procedural (protection of those values and rights and timeliness of decisions) aspects. The Ombudsman Western Australia has guidance on procedural fairness.
  • Objectivity: Actions are taken according to the law. Disciplinary actions are administrative in nature, not taken by a court. Ensure officers looking into matters are impartial, free of bias or influence like conflicts of interest.
  • Timeliness: ‘Reasonable’ time between initiating and concluding a disciplinary process. Timeliness needs to be balanced with the complexity around the facts and circumstances. Excessive delays can undermine the process.
• Base disciplinary actions on key principles:
  • Authority: Legal and/or delegated power to take action.
  • Proportionality: Actions that are reasonable or justified given the facts and circumstances. Actions that are too light or severe (unjust) might be seen as unfair and not meet the ‘reasonable person’ test.
  • Consistency: Applying similar actions for the same type of conduct where circumstances are similar. This could include:
    • limiting delegations for decision-making to a small number of officers, and further limit delegations for more serious actions
    • providing guidance on factors to be considered when deciding on actions
    • having strong specialist corporate and/or legal resources available to consult with decision-makers.
  • Precedent: Refer to past discipline processes and actions taken to inform decision-making on future actions. Be cautious around confidentiality and proper assessment of the facts and circumstances.
• Provide information about rights and responsibilities of the parties in a disciplinary process. Take steps to make sure expectations are managed.
• Notify the Corruption and Crime Commission of serious misconduct and Public Sector Commission of minor misconduct as soon as a reasonable suspicion of misconduct is formed.
• Address early low level, culture-eroding behaviours that may not constitute discipline. These can be supported by broader prevention messages.
• Conduct checks and seek third party references when engaging external investigators to conduct disciplinary processes.
• Remind parties involved about accessing support such as employee assistance programs.

Better practice

• Have a senior and experienced officer oversee discipline processes so guiding principles are applied consistently, challenges are addressed and good practice is promoted. This is useful in large, complex and geographically dispersed authorities with multiple decision-makers.
• Dedicate adequate investigative resources and ensure investigators are appropriately skilled to improve consistency and reduce chances of procedural errors.
• Keep a central register of discipline processes and actions so precedents and trends are seen, and reporting to external bodies is timely.
• Report regularly to a central oversight committee, board or senior leadership team on disciplinary processes and actions taken.
• Take proportionate actions to curb further integrity breaches. While it may be necessary to tighten policy or procedural controls, this must be balanced with maintaining business as usual and avoiding any unintended consequences such as resentment from officers who were not involved in the breach.
• Identify how specific or systemic issues contributed to the integrity breach, for example individual mistakes and errors of judgement or organisational weaknesses (cultural or capacity issues). Consider what controls may need adjusting to address the risk and whether findings indicate a risk has not been identified or managed.