Discipline (Directive 05/23)

1. Purpose

1. To provide information on undertaking disciplinary processes in accordance with the Public Sector Act 2022 (Act).

2. Authorising provisions

2. Sections 100 and 222 of the Act.

3. Application

3. This directive applies to:
   1. all public sector employees (defined in section 12 of the Act) in relation to disciplinary processes under chapter 3 of the Act
   2. public sector entities as defined in section 8 of the Act
   3. chief executives of public sector entities as provided for in sections 16 and 17 of the Act, in their capacity as a chief executive of a public sector entity or of public sector employees.
4. Section 229 of the Act outlines the relationship between a directive and industrial instrument, including where an industrial instrument will prevail over a directive to the extent of any inconsistency.
5. Commission Chief Executive (CCE) Directive 14/20: Discipline is repealed and superseded by this directive.

4. Principles

4. Chief executives are responsible for making decisions under the provisions of chapter 3, part 8, Division 3 of the Act.
5. Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees.
6. Under the Human Rights Act 2019 decision makers have an obligation to:
   1. act and make decisions in a way that is compatible with human rights, and
   2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
7. Under chapter 1, part 3 of the Act, reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.
8. Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making of decisions under the Act and Commissioner directives.
9. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.
10. A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:
    1. the end of unacceptable conduct
    2. early resolution
    3. preserving working relationships
    4. avoiding an unnecessary and disproportionately protracted dispute.
11. Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.
12. A chief executive must not take disciplinary action against an employee for a matter relating to the employee’s performance until they have complied with the positive performance management directive in relation to the matter.
13. Discipline under chapter 3 of the Act must:
    1. be conducted in in a timely way, to the extent that is within the control of the chief executive, and without any unreasonable unexplained delay, and
    2. be fair, appropriate and proportionate to the seriousness of the work performance matter, and
    3. comply with the requirements of the Act, the provisions of this directive and the principles of procedural fairness.

5. Interpretation of directions

5. The Act sets the discipline framework for the public sector.
6. This directive does not replace, modify or revoke any legislative requirements that apply to the management of particular types of complaints (e.g. corrupt conduct under the Crime and Corruption Act 2001, public interest disclosures under the Public Interest Disclosure Act 2010, or complaints under the Human Rights Act 2019 (HR Act)).
7. Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive’s ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee’s employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law.
8. These directions:
   1. set out the management of disciplinary action, as required under section 100(1)(a) of the Act
   2. provide for periodic reviews of disciplinary action being considered or undertaken by chief executives of public sector entities as required under section 100(2)(a) of the Act
   3. establish guidance and procedural fairness requirements for disciplinary action as provided for in section 100(2)(b) of the Act, noting that requirements in this directive do not reduce the obligations on an entity at common law
   4. outline the circumstances in which a contravention of a relevant standard of conduct under section 91(1)(h) of the Act is likely to be considered sufficiently serious to warrant disciplinary action, as required by section 100(2)(c) of the Act
   5. should be read in conjunction with the relevant authorising provision/s of the Act.
9. The requirements set out in these directions are binding and must be followed.
10. A chief executive must consider any guidance material issued by the Commissioner which is identified as guidance material for the purpose of this directive and which is published on the Public Sector Commission’s website, or in another publicly available way.

6. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

6. Chief executives of reframing entities must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples, including but not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, when making decisions directly affecting them
   3. promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples
   4. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.
7. In the context of promoting cultural safety in disciplinary processes, the matters a chief executive may consider include, but is not limited to:
   1. recognising culturally significant connections for Aboriginal people and Torres Strait Islander people involved in the process
   2. ensuring that the decision maker and any contact officer has an adequate level of cultural capability when conducting a disciplinary process that involves Aboriginal people and Torres Strait Islander people as subject officers
   3. ensuring support and communication is appropriate during a disciplinary process
   4. considering any elements of conscious or unconscious bias that may impact the process, including mitigation strategies
   5. consideration of the cultural rights of Aboriginal peoples and Torres Strait Islander peoples under the HR Act.

7. Requirements to commence a discipline process

7. Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
8. Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
   1. the seriousness of the employee’s personal conduct and/or work performance, and
   2. whether the matter should be resolved through management action instead, and
   3. whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
   4. whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
   5. whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee’s conduct, and
   6. if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee’s potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
   7. whether further information is required to make a decision to commence a disciplinary process, and
   8. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
9. Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee’s performance until the chief executive has complied with the directive about positive performance management.

8. Discipline for conduct in a private capacity

8. In addition to considering the requirements listed at clause 7, a chief executive must consider whether they are reasonably satisfied alleged conduct could amount to misconduct which reflects seriously and adversely on the public sector entity in which the employee is employed in determining whether to commence a discipline process in relation to an employee’s conduct in a private capacity.
9. In making a determination under clause 8.1, a chief executive must give consideration to the way in which the person’s alleged conduct in a private capacity, if it became known to a reasonable person, reflects seriously and adversely on the entity taking into account all the circumstances including:
   1. the person’s role in the entity, and
   2. the entity’s functions and responsibilities, and
   3. the responsibility on government entities to act with integrity, accountability, in the public interest and in a way that maintains public trust.
10. A chief executive must also ensure that proper consideration is given to human rights under the HR Act.

9. Discipline process

9. Section 98 of the Act provides that in disciplining a public sector employee, or former public sector employee, a chief executive must comply with the Act and this directive.
10. The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.
11. Show cause process for disciplinary finding
    1. the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
    2. written details of each allegation in clause 9.3(a) must include:
       1. the allegation
       2. the particulars of the facts considered by the chief executive for the allegation
       3. the disciplinary ground under section 91 of the Act that applies to the allegation
    3. when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
    4. a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
    5. the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
    6. if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
12. Decision on grounds (disciplinary finding)
    1. the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
    2. the chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding
    3. for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
    4. the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
    5. if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation
    6. if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
13. Show cause process for proposed disciplinary action
    1. the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
    2. the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
    3. the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
    4. in proposing appropriate and proportionate disciplinary action, the chief executive should consider:
       1. the seriousness of the disciplinary finding
       2. the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
       3. whether extenuating or mitigating circumstances applied to the employee’s actions
       4. the employee’s overall work record including previous management interventions and/or disciplinary proceedings
       5. the employee’s explanation (if any)
       6. the degree of risk to the health and safety of employees, customers and members of the public
       7. the impact on the employee’s ability to perform the duties of their position
       8. the employee’s potential for modified behaviour in the work unit or elsewhere
       9. the impact a financial penalty may have on the employee
       10. the cumulative impact that a reduction in classification and/or pay-point may have on the employee
       11. the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding
    5. a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
    6. the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
    7. if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
14. Decision on disciplinary action:
    1. the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken
    2. the chief executive must inform the employee of the decision in writing, including:
       1. the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
       2. information that the employee may appeal the decision on disciplinary action (except for a termination decision)
       3. for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act
    3. the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
       1. the revised disciplinary action is objectively less onerous than the original action proposed, or
       2. the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
       3. the employee has suggested the disciplinary action as an appropriate alternative penalty
    4. disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public sector employee has expired, or any appeal lodged is finalised.
15. The chief executive may combine the procedural elements of a show cause process for disciplinary finding and a show cause process for proposed disciplinary action where:
    1. the particulars of the evidence being relied on to determine discipline liability are not likely to be disputed (for example, where the employee has been found guilty, or pleaded guilty, to a criminal offence in relation to the conduct the subject of the discipline process, regardless of whether a conviction is recorded in relation to that offence), and
    2. the chief executive reasonably believes the progression or finalisation of the matter is in the best interests of the employee
16. Action taken against a former public sector employee under section 95 and 96 of the Act must comply with the requirements of sections 98 of the Act.

10. Support persons and industrial representatives

10. A subject employee may be supported by a person of their choosing and/or represented by an industrial representative of a union to which the person is a member, provided the support person:
    1. is not otherwise involved in the disciplinary process (for example, as a subject employee or witness)
    2. does not provide direct evidence on behalf of, or otherwise talk for the subject employee.
11. If a support person is an officer of a union to which the employee is a member, the officer also has a role to support their member’s interests, including actively ensuring that procedural fairness has been afforded to their member.

11. Periodic review of discipline process

11. This section applies to matters involving a public sector employee’s work performance or personal conduct, other than corrupt conduct matters.
12. A chief executive is required to finalise an ongoing discipline process in a timely way.
13. A discipline process commences when a chief executive writes to the subject employee to inform them that discipline will commence (usually a show cause notice on disciplinary finding).
14. A discipline process must be reviewed by an independent decision maker at six months and by a chief executive at 12 months and every six months thereafter.
15. The review must consider whether the discipline process complies with the Act and this directive.
16. A discipline process must not continue until the review is completed.
17. The findings of the review must be communicated to the subject employee in writing.

12. Subject employee may ask the Public Sector Commission for a review of discipline process

12. This section applies to matters involving a public sector employee’s work performance or personal conduct, other than corrupt conduct matters.
13. A subject employee may ask the Public Sector Commission (Commission) to conduct a review of a procedural aspect of the public sector entity’s handling of a work performance matter, provided:
    1. the subject employee reasonably believes the chief executive has not complied with this directive, and
    2. the subject employee has used internal review procedures under the directive on individual employee grievances, and
    3. having used the procedures in clause 12.2(b) the subject employee is dissatisfied with a decision made following the internal review, and
    4. a decision has not been made for the work performance matter that the subject employee may appeal under chapter 3, part 10 of the Act.
14. The subject employee must request the review in writing.
15. The request under clause 12.3 must address the eligibility for review under clause 12.2 and include:
    1. a clear statement of how the employee believes the public sector entity has not complied with this directive, and
    2. the action the employee seeks from the review.
16. On receiving the request, the Commission may, but is not required to, conduct a review of a procedural aspect of the public sector entity’s handling of a work performance matter contemplated in section 123 of the Act, and may but is not required to give the chief executive a report on the review.
17. The Commissioner must provide a written decision to the subject employee, along with reasons for the decision, including when the Commissioner decides not to conduct a review under clause 12.5.

13. Appeals

13. A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.
14. A subject employee has a right of appeal in relation to a direction given to a chief executive about the handling of a work performance matter, to the extent the direction affects the subject employee, as provided for under section 131 of the Act.
15. The appeals directive should be referenced for information regarding appeal rights and associated timeframes.

14. Records and reporting

14. Each public sector entity must, upon request, give the Commissioner a report about:
    1. the number of work performance matters handled by each prescribed entity in the year, and
    2. the types of work performance matters handled by each prescribed entity in the year, and
    3. information about how work performance matters were handled by each prescribed entity in the year. For example:
       1. the period within which the handling of the matters was finalised; and
       2. the outcomes of the handling of the matters.
15. The Commission will publish information about this data in a publicly accessible way each financial year.

15. Transitional provisions

15. Sections 312-314 of the Act set out the transitional arrangements for disciplinary action and findings made before commencement.
16. For matters that commenced prior to the commencement date of this directive:
    1. Where a discipline review was required to be conducted under the superseded Directive 14/20: Discipline, and was not completed by commencement of this directive, the review must be completed as if Directive 14/20: Discipline remained in operation, or
    2. Where the review date occurs on or after the commencement date of this directive, the review must be completed in accordance with this directive.

Where there is no relevant definition in the Act, terms in this directive have their ordinary meaning and are to be interpreted consistently with established public sector employment practice.

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

• relevance of the evidence to the allegations
• seriousness of the allegations
• inherent likelihood or improbability of a particular thing or event occurring
• gravity of the consequences flowing from a particular finding.

CCE Directive means a directive issued by the Commission Chief Executive under the repealed Public Service Act 2008.

Chief executive in the context of exercising a decision-making power, includes a person to whom the chief executive has delegated the decision-making power under section 282 of the Act.

Commissioner has the meaning provided for under section 212 of the Act.

Disciplinary ground has the meaning provided for under section 91 of the Act.

Disciplinary action has the meaning provided for under section 92 of the Act.

Management action is independent of the disciplinary process and should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance. Following a disciplinary finding (refer to section 90), management action can accompany or substitute for disciplinary action. If appropriate, management action can replace an ongoing disciplinary process at any stage. While not limited, management action is predominantly focused on corrective action.

Misconduct has the meaning provided for under section 91(5) of the Act.

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements–the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).

Public sector entity has the meaning provided for under section 8 of the Act.

Reframing entity has the meaning provided for under section 20 of the Act.

Union for the purpose of this directive, means an employee organisation registered under chapter 12 of the IR Act or under the Fair Work (Registered Organisations) Act 2009 (Cth).

Work performance matter has the meaning provided for under section 122 of the Act.