Understanding the public service disciplinary framework

Public service employers (PSEs) must follow strict performance management and discipline procedures or they risk breaching new Queensland public service laws.

The long-anticipated amendments to the Public Service Act 2008 (Qld) (PSA) were introduced on 25 September 2020, following recommendations arising out of the first independent review of public sector employment laws since the late 1980s.

The changes to the PSA are supported by six amended and five new Public Service Commission directives. This article provides a brief snapshot of two of the new directives, which are about positive performance management and discipline, and the practical implications that follow their making.

Positive performance management (PPM)

Under the new PPM directive, which derives its origin from the PSA, PSEs have a legislated obligation to promote performance management in the public service. Managers must also proactively manage the performance and conduct of their staff to promote best practice human resource management.

The management of public service employees must be directed towards the seven PPM principles:

• pro-actively managing the personal and professional development of public service employees with a view to continuously building expertise within the public service
• ensuring regular and constructive communication between public service managers and employees in relation to the matters stated in section 26 (work performance and personal conduct principles)
• recognising the strengths, requirements and circumstances of individual employees and valuing their contributions
• recognising performance that meets or exceeds expectations
• providing opportunities and support to employees for improving performance
• continuously improving performance through the provision of training and development
• identifying at the earliest possible stage performance that does not meet expectations.

The PPM principles are now a central aspect of managing underperforming employees. In addition, disciplining an employee for performance-related issues will now only be permissible once the PPM directive has been complied with.

Managing underperformance

Usually, when a PSE addresses an employee’s unacceptable work performance, it will do so by implementing a performance improvement plan (PIP). The requirements of a PIP are now specifically outlined in the PPM directive.

The PIP must include the:

• areas of work performance to be improved
• duration of the PIP
• specific strategies to address and achieve the expected work performance.

If the employee fails to meet the work performance expectations set out in the PIP, the PSE must comply with the PPM principles. At the end of that process, if appropriate, it may commence a disciplinary process under the discipline directive.

Discipline – performance

The amended laws require disciplinary processes to comply with the PSA, the discipline directive, the discipline guideline, the PPM principles and the principles of natural justice.

The discipline directive outlines the process for managing disciplinary action and the circumstances which are “sufficiently serious to warrant disciplinary action”. Conduct will be sufficiently serious to warrant disciplinary action where management action is unlikely to address or resolve the work performance matter if the relevant duration for the PIP is extended.

Where a work performance matter arises, a chief executive must determine whether it is appropriate to commence a disciplinary process. In making this determination, the chief executive must assess the seriousness of the employee’s work performance. This involves a consideration of:

• any repeated instances of inappropriate conduct
• the impact on colleagues, the workplace and the reputation of the public sector
• whether the conduct may have caused actual harm or risk to the health and safety of others
• the nature of the conduct.

Practical tips for employers

With the new directives, PSEs should be careful when dealing with underperforming employees. In particular, PSEs should be aware of the specific conditions that need to be met before undertaking a disciplinary process. If PSEs fall foul of this requirement, the disciplinary process could be susceptible to legal challenge and a finding that the process is invalid.

Authors: Rachel Drew, Damien Payard & Joseph Sherman

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rachel Drew

Joseph Sherman

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