Handling dodgy workplace behaviour

When applying for team leader, manager, or more senior roles (e.g. EL 1 and 2 and above  in the APS) it would be prudent to consider if the selection panel might be interested in how you handle dodgy workplace behaviour.

As pointed out in the sixth edition of How to Write and Talk to Selection Criteria: ‘Poor behaviour in the workplace, from colleagues, managers, clients, suppliers and stakeholders, can be expressed in three ways:

  • ‘ Unsatisfactory performance: behaviours that indicate a person is not meeting work standards and expectations, such as lateness, not meeting deadlines, unauthorised absence.
  • Misconduct: behaviour that clearly violates mandatory standards, such as a public service Code of Conduct, or legislation.
  • Disruptive behaviour: behaviour that has a negative impact such as emotional outbursts and political behaviours (e.g. hidden agendas).

These three behaviours are not clear-cut distinctions nor mutually-exclusive. Unsatisfactory performance can include disruptive behaviour.’

The APSC’s revised edition of Handling Misconduct, provides a practical guide for those involved in managing suspected misconduct by APS employees. It has been revised to take account of amendments to the Public Service Act 1999 in 2013 and 2014.

The Guide includes:

  • ‘advice on the impact of the Public Interest Disclosure Act 2013 and the Public Governance, Performance and Accountability Act 2013
  • updated advice on the requirements of the Privacy Act 1988 for the collection, use, and disclosure of information
  • more comprehensive information on managing cases where a criminal act may also be a breach of the Code of Conduct
  • advice on managing suspected misconduct of former employees
  • advice about what each element of the Code of Conduct means
  • clearer advice on record-keeping, especially concerning the transfer of files between agencies, and
  • a suite of new checklists for decision-makers at key decision points in the process.’

The Guide comprises three parts plus appendices.

  • ‘Part I, Sections 1–3 outlines the legislative framework, the context and key concepts applying to reporting and dealing with suspected misconduct i.e. suspected breaches of the APS Code of Conduct (the Code).
  • Part II, Sections 4–7 contains good practice advice on reporting and managing suspected misconduct, from the time an allegation is received to the imposition of sanctions. Part II is the core of this guide and steps through the key stages of the process.
  • Part III, Sections 8-10 contains good practice advice on associated processes, such as record-keeping, review of decisions and quality assurance mechanisms.’

Misconduct is defined in the guide to mean ‘conduct by a person while an APS employee that is determined under s15(3) procedures to be in breach of the Code. Before such a determination is made, the conduct is referred to as ‘suspected’ or ‘alleged’ misconduct.’

Preliminary considerations include deciding whether the matter is performance management or Code of Conduct investigation, whether a criminal offence has been committed, and whether the person should be suspended or reassigned duties.

Where a Code of conduct investigation is required appropriate actions include selecting an authorised person to determine the breach, investigating in accordance with procedures, and proper consideration of evidence.

The decision step has two parts. Determination of the breach with advice to the employee, considering procedural fairness and right of review. The second step concerns selection of appropriate sanctions and implementation.

The Guide also covers the relationship between misconduct and performance management.  Helpfully, the Guide points out that employee behaviour considered inconsistent with the Code can vary ‘from serious matters, for example, large scale fraud, theft, misusing clients’ personal information, sexual harassment and leaking classified information to relatively minor matters, such as a single, uncharacteristic angry outburst,’ [5.1.1] and that other approaches to suspected misconduct of a minor nature include performance management, counselling, or alternative dispute resolution, such as mediation. [5.1.2]

The Guide points out [5.1.7] that ‘misconduct action is not a substitute for managing challenging behaviours that are more appropriately managed as unsatisfactory performance. Taking misconduct action for relatively minor matters can have the effect of undermining the integrity of the conduct framework.’

Section 5.1.8 provides useful questions to consider when it comes to making a decision about which approach to take. These questions can be kept in mind for interview questions such as: How would you decide whether to consider behaviour misconduct or underperformance?

‘How serious is the suspected behaviour? What is the potential impact on public confidence in the integrity of the agency and the APS?
As a general rule, the more serious the alleged behaviour or the greater the potential impact on public confidence in the integrity of the agency and the APS, the more appropriate it is to use misconduct processes.

How likely is it that the employee would respond constructively to action under an agency’s performance management framework?
Where an employee has shown, through their behaviour, that they are unlikely to respond constructively to action under the performance management framework, misconduct action may be the most effective way of dealing with the matter.

To what extent is the suspected behaviour within the control of the employee?
Unacceptable behaviour by an employee that is within their control, for example wilful refusal to follow lawful and reasonable directions, or a blatant disregard for expected behavioural standards could generally be dealt with as a potential breach of the Code. Behaviour that is either accidental or is a result of a lack of capability on the employee’s part is often better dealt with through other processes.’

Several behaviours under the Integrated Leadership System are directly, or potentially, relevant to questionable workplace behaviour. Of most relevance is the behaviour ‘deals with under-performance promptly’ [Cultivates productive working relationships]. Potentially relevant are components concerning demonstrating public service professionalism and probity, engages with risk and shows personal courage, and builds organisational capability and responsiveness. While issues concerning questionable behaviour may not be part of an application, they can be a focus of interview questions.

Examples of such questions are:

  • Tell us about an ethical issue you have faced and dealt with.
  • You are faced with a staff member’s questionable behaviour.
  • Outline how you determine what action to take.
  • Have you handled under-performance? Tell us about how you dealt with it.
  • If not, tell us how you would go about handling it.
  • What is the difference between misconduct and poor performance?
  • How would you go about deciding whether a staff member’s behaviour was misconduct or under-performance?

The Handling Misconduct guide provides you with valuable information to support informed responses to these questions.

Dr Ann Villiers, career coach, writer and author, is Australia’s only Mental Nutritionist specialising in mind and language practices that help people build flexible thinking, confident speaking and quality connections with people.