6. Behaviour contrary to the Code

Behaviour contrary to this Code or to the Ethical Framework for the government sector can create an unsafe workspace, bring individuals into disrepute, undermine productive relationships with colleagues and the public, and damage public trust in NESA or the broader government sector.

A contravention of this Code may be misconduct for the purposes of section 69 of the GSE Act.

If you are unsure of what is appropriate conduct in a particular situation, you can discuss the matter with your manager, Director or Executive Director. If you do not feel comfortable doing so, you may speak with another Director, Executive Director or People & Culture. 

If you see behaviour contrary to the Code

At any point during your work, or even outside of your work, you may observe, become aware of or suspect another employee is acting contrary to this Code, other NESA policies or the Ethical Framework.

If you see someone act in ways that are contrary to this Code, you should raise your concerns in the first instance with your manager. If you do not feel comfortable doing so, or your concerns relate to your manager, you should raise your concerns with your Director, Executive Director or People & Culture.

As a NESA employee, you:

• have a duty to report wrongdoing
• have a duty to support employees who have made disclosures, as well as protect and maintain their confidentiality
• must not make unfounded complaints with malicious, frivolous or vexatious intent
• must not take detrimental action against a reporter, irrespective of the merits of the report.

Managers must also:

• provide support and guidance to any person who confides in you about making a report or disclosure in alignment with law and policy
• identify and act on any public interest disclosure by recording and reporting it to a disclosure officer
• report allegations of criminal conduct and wrongdoing to People & Culture who will assess the report and ensure it has been properly reported to other agencies.

How to report serious wrongdoing

The Public Interest Disclosures Act 2022 (NSW) (PID Act) establishes a framework to encourage people who work in the public sector to report serious wrongdoing. Serious wrongdoing means one or more of the following:

• corrupt conduct
• serious maladministration
• a government information contravention (other than a trivial failure)
• a local government pecuniary interest contravention
• a privacy contravention (other than a trivial failure)
• a serious and substantial waste of public money.

If you become aware of serious wrongdoing, you can report your concerns in accordance with the NESA Public Interest Disclosure Policy. You can also contact the relevant integrity agency body (such as the Ombudsman, Independent Commission Against Corruption, Auditor-General, or Law Enforcement Conduct Commission).

If you believe conduct may be illegal or constitute a criminal offence, you should report the matter to the Chief People Officer who will, if appropriate, report the matter to NSW Police Force.

Under the PID Act, it is both a criminal offence and misconduct to take detrimental action against a person who makes, or is suspected of making, a public interest disclosure. The PID Act provides a range of additional protections against detrimental action.

When a public official (as defined in the PID Act) reports suspected or possible wrongdoing in the public sector, their report will be a public interest disclosure (PID) if it has certain features which are set out in the PID Act. PIDs must be managed in accordance with the PID Act.

Further information about public interest disclosures is available on the NSW Ombudsman’s website.

Actions when allegations of misconduct are made

If it is alleged that you have acted in a way that is contrary to this Code, you will have an opportunity to provide your version of events. How this will happen will be proportionate to the seriousness of the matter.

In those cases where the allegation is minor or of a low level, your manager or Director will usually discuss this with you and depending on the nature of the breach, may take direct management action including but not limited to issuing a direction. If the allegations are more serious, a formal process may be required.

For NESA employees, the GSE Act and Government Sector Employment (General) Rules 2014 (NSW) set out how allegations of misconduct are to be dealt with, which include:

• requirements that the relevant employee be advised of the detail of the allegation
• the action that may be taken against the relevant employee if there is a finding of misconduct
• the process to be undertaken to investigate and resolve the matter
• that the relevant employee be provided a reasonable opportunity to respond to the allegations and the proposed action to be taken.

If you are investigating an allegation of a behaviour contrary to this Code, you must ensure your decision-making is fair and reasonable being guided by the following principles:

• Procedural fairness for both the complainant and staff member subject to the allegations
• Investigations should be handled expeditiously. This will minimise the potential for breaches of confidentiality and lack of procedural fairness
• Confidentiality for all parties, where practicable and appropriate, until such time as the investigation process is completed
• Meticulous record keeping, including recording of reasons for all significant decisions.

The GSE Act sets out the actions that the NESA CEO may take where there is a finding of misconduct against an employee. These actions are as follows:

• Terminate the employment of the employee (after giving the employee an opportunity to resign)
• Impose a fine on the employee (which may be deducted from the remuneration payable to the employee)
• Reduce the remuneration payable to the employee
• Reduce the classification or grade of the employee
• Assign the employee to a different role
• Caution or reprimand the employee.