Part 5 of the Public Sector Management Act 1994
Frequently asked questions
1. Is this guide applicable to employees in my workplace?
The guide covers staff referred to under s.76 of the Public Sector Management Act 1994
(PSM Act). The information may be used as a guide only for staff employed outside of the PSM Act. Agencies with staff employed outside the PSM Act, should consult their relevant legislation, industrial award and agreement.
2. Can a matter be dealt with using a discipline process?
Section 80 of the PSM Act defines actions which constitute a breach of discipline. These are:
a. Disobeying or disregarding a lawful order
b. Contravening either any applicable provision of the PSM Act, or any public sector standard or code of ethics
c. Committing an act of misconduct
d. Being negligent or careless in the performance of duties
e. Committing an act of victimisation as defined under the Public Interest Disclosure Act 2003 (PID Act).
If the matter does not fall under these categories it does not constitute a breach of discipline.
3. How do I initiate a discipline process?
If an employing authority determines to treat a matter as disciplinary, Cl 1.1 of Commissioner’s Instruction No.3: Discipline – general requires that the employing authority make a written record of the decision.
Commissioner’s Instruction No. 3: Discipline - general and Commissioner’s Instruction No. 4: Discipline – former employees set out the minimum procedural requirements to be followed by employing authorities when dealing with suspected breaches of discipline under Part 5 of the PSM Act, with the overarching consideration being to provide procedural fairness. Subject to the PSM Act and the CIs, it is the responsibility of the employing authority to determine the methodology or procedures to investigate whether or not a breach of discipline has occurred.
4. What is procedural fairness?
Procedural fairness concerns rules of common law relating to how a decision maker should act when making decisions to ensure a fair and equitable process. Specifically this involves acting without bias, giving the employee a reasonable opportunity to respond to allegations against them and ensuring decisions are evidence based.
5. Am I required to notify external bodies that a suspected breach of discipline has occurred?
Under section 28 of the Corruption and Crime Commission Act 2003 employing authorities are required to notify the Corruption and Crime Commission (CCC) in writing of any reasonable suspicion that misconduct (as defined in that Act) has occurred and this notification must be made as soon as is reasonably practicable. WA police should also be informed if there is a suspicion of criminal activity.
6. Do I need to hire or engage an investigator?
There is no requirement to hire an investigator to conduct an investigation as part of a discipline process. Section 82A(1)(a) of the PSM Act states that in dealing with a disciplinary matter an employing authority ‘must proceed with as little formality and technicality as this Division, the Commissioner’s instructions and the circumstances of the matter permit’. A disciplinary process will usually involve some sort of investigative process in the gathering of facts and evidence, however the decision to use either an investigator from within the agency or from the HR Investigation Services CUA rests with the employing authority.
7. When do I need to inform an employee that a discipline process is being commenced?
Clause 1.4 of Commissioner’s Instruction No.3: Discipline – General states that:
No finding can be made that an employee has committed a breach of discipline unless in the course of the disciplinary process:
a. the employee is notified in writing:
i. of the conduct relating to the possible breach of discipline, in sufficient detail to enable the employee to know what is alleged against him or her, and
ii. that if a breach of discipline is found to have occurred, action may be taken which may range from counselling to dismissal.
b. the employee is provided a reasonable opportunity to respond to the information referred to in 1.4(a)(i), either in person or in writing, and that response is genuinely considered by the employing authority.
There is therefore no requirement to inform an employee ‘up front’ that a disciplinary process is being commenced. The principles of procedural fairness nonetheless require that an employee be provided with allegations as soon as is practicable.
8. How do I suspend an employee?
Suspending an employee may only occur after the employing authority has made the decision to treat the matter as disciplinary under s.81(1)(a) of the PSM Act. Suspension must be undertaken in accordance with the Act, Commissioner’s Instruction No.3: Discipline – general and be consistent with the principles of procedural fairness. In ordinary circumstances, an employee must be given the opportunity to respond to a proposal of suspension, and any response must be genuinely considered by the employing authority prior to suspending the employee. Clause 2.1 of the CI sets out provisions for suspending an employee without notice.
9. Do I need to give an employee notice prior to suspension?
An employee can either be suspended with notice or without notice as specified under Commissioner’s Instruction No.3: Discipline – general. Notice is required as per Cl 2.1, other than in the circumstances described in Cl2.2 – ‘where the employing authority holds a belief based on reasonable grounds that the employee’s presence on workplace premises poses a serious risk to:
a) employee/public safety; or
b) the integrity of evidence relevant to the disciplinary matter; or
c) the operations of the organisation; or
d) the investigation of the disciplinary matter.’
10. Does an employee continue to be paid when suspended?
Section 82 of the PSM Act provides for an employee to be suspended:
a. On full pay;
b. On partial pay; and
c. Without pay.
When considering whether to suspend on full pay, partial pay or without pay the rules of procedural fairness always apply. Under Cl 2.3, if an employee is suspended without a prior to respond, it can only be on pay. Refer to 5.1.5 of the Part 5 Guide for more information on determining which form of suspension to impose.
Consultation with the State Solicitor’s Office is recommended prior to suspending an employee without pay.
11. If an employing authority makes a finding that a breach of discipline has occurred, what is the most appropriate course of action?
Options available are either proposing a sanction (referred to as ‘discipline action’ in the PSM Act and Commissioner’s Instructions), improvement action, combination of a sanction and improvement action, or no action. Past actions and incidents of an employee should not be taken into consideration when determining if a breach of discipline has occurred, however can be taken into account when determining an appropriate sanction. Refer to 6.2.1 and 6.2.2 of the Part 5 Guide for more information on choosing the most appropriate action to take.
12. Does an employee have the right to appeal the outcome of a discipline process?
Section 78(1)(iv) of the PSM Act provides for appeal rights in relation to ‘a decision to take disciplinary action made in respect of the Government officer under section92A(3)(b), 88(b) or 92(1)’.
13. Can I continue with a discipline process if the matter has been referred to the Corruption and Crime Commission?
Agencies have a need to deal with behaviour issues in the workplace and are encouraged to continue progressing discipline processes where appropriate, following discussion with the CCC.
14. What should we do if an employee is charged with an offence by WA Police?
If an employee is charged by the police, it is recommended to await the outcome of criminal proceedings to ensure procedural fairness and natural justice before commencing a discipline process. If the charge that has been placed against the employee places significant risks to the worker, other employees or your agency then options such as internal redeployment, external secondments, working from home or suspension with pay pending the outcome may be considered.
15. How does a discipline process occur if the employee is on secondment?
In all circumstances the home agency has the power to undertake disciplinary proceedings against the employee. The home agency may consider delegating some or all of their disciplinary proceedings for a specific employee to the host employing authority.
16. Can a past employee who no longer works for the agency be disciplined?
Yes, Section 76 of the PSMA Act provides for a discipline process to be commenced or continued in relation to someone who is no longer employed by the employing authority. The circumstances for which a discipline process can be commenced or continued against a former employee are set out in Commissioner’s Instruction No.4: Discipline – former employees.
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