Part 2.7Part 2.7 Management of conduct and performance
40 Part applies to officers (except chief executive officers)
(1988 Act, s 65A)
This Part applies to officers in the Public Service but (unless otherwise expressly provided by this Act) does not apply to chief executive officers in the Public Service.
The objects of this Part are as follows:(a) to maintain appropriate standards of conduct and work-related performance in the Public Service,(b) to protect and enhance the integrity and reputation of the Public Service,(c) to ensure that the public interest is protected.
(1) In this Part:disciplinary action, in relation to an officer, means any one or more of the following:
(a) dismissal from the Public Service,(b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time,(c) if the officer is on probation—annulment of the officer’s appointment,(d) except in the case of a senior executive officer—reduction of the officer’s salary or demotion to a lower position in the Public Service,(e) the imposition of a fine,(f) a caution or reprimand.misconduct—see section 43.
procedural guidelines means the guidelines in force from time to time under section 44.
remedial action, in relation to an officer, means any one or more of the following:
(a) counselling,(b) training and development,(c) monitoring the officer’s conduct or performance,(d) implementing a performance improvement plan,(e) the issuing of a warning to the officer that certain conduct is unacceptable or that the officer’s performance is not satisfactory,(f) transferring the officer to another position in the Public Service that does not involve a reduction of salary or demotion to a lower position,(g) any other action of a similar nature.(2) In this Part, a reference to an allegation that an officer may have engaged in misconduct includes a reference to the appropriate Department Head being made aware, or becoming aware, by any means that the officer may have engaged in misconduct.
(1988 Act, s 66)
(1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following:(a) a contravention of any provision of this Act or the regulations,(b) performance of duties in such a manner as to justify the taking of disciplinary action,(c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act,(d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer.(2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened:(a) while the officer concerned was not on duty, or(b) before the officer was appointed to his or her position.(3) In this section, internal disclosure means a disclosure made by an officer regarding the alleged misconduct of another officer belonging to the same Department as that to which the officer belongs.
Division 2 Dealing with misconduct
44 Issuing of procedural guidelines
(1) The Commissioner may, from time to time, issue guidelines for the purposes of:(a) dealing with allegations of misconduct as a disciplinary matter, and(b) the taking of disciplinary action with respect to officers under this Division.(2) The Commissioner may from time to time amend, revoke or replace the procedural guidelines.(3) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Commissioner thinks appropriate.(4) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the latter is to prevail.
45 Requirements relating to procedural guidelines
(1) The procedural guidelines must be consistent with the rules for procedural fairness.(2) Without limiting subsection (1), the procedural guidelines are to ensure that:(a) the officer to whom an allegation of misconduct relates is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and(b) the officer is given an opportunity to respond to the allegation.(3) A formal hearing involving the legal representation of parties and the calling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to an officer.(4) However, subsection (3) does not prevent the appropriate Department Head from:(a) conducting such investigations into an allegation of misconduct as the Department Head considers necessary, or(b) conducting interviews with the officer to whom the allegation relates or with any other person in connection with the matter concerned, or(c) taking signed statements from the officer or any such person.
46 Dealing with allegations of misconduct
(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may:(a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or(b) decide that it is appropriate to take remedial action with respect to the officer.(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.(4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process:(a) decide to take remedial action with respect to the officer concerned, or(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both.(5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.
Division 3 Dealing with unsatisfactory performance and other matters
47 Dealing with unsatisfactory performance
(1) If the appropriate Department Head is of the opinion that an officer is not performing the officer’s duties in a satisfactory manner, the Department Head may decide to take remedial action with respect to the officer.(2) If:(a) remedial action is taken with respect to an officer, and(b) the appropriate Department Head is, after the officer has been given a reasonable opportunity in which to improve his or her performance, of the opinion that the officer’s performance is still unsatisfactory,the Department Head may notify the officer in writing that the officer’s performance is still unsatisfactory and that the officer’s performance may lead to disciplinary action being taken with respect to the officer. The officer must be given an opportunity to respond to the Department Head’s opinion about the officer’s performance.(3) The Department Head may, after considering any response by the officer, decide to take disciplinary action with respect to the officer.(4) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.
48 Disciplinary action may be taken if officer is convicted of serious offence
(1988 Act, s 76)
(1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may:(a) decide to take disciplinary action with respect to the officer, or(b) decide to take remedial action with respect to the officer.(2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.(3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded.
Division 4 Miscellaneous provisions
49 Suspension of officers from duty pending decision in relation to misconduct or criminal charge
(1988 Act, s 77)
(1) If:(a) an allegation that an officer has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, or(b) an officer is charged with having committed an offence referred to in section 48,the appropriate Department Head may suspend the officer from duty until the allegation of misconduct or the criminal charge (or any action that the Department Head is considering taking under section 48) has been dealt with.(2) Any salary payable to a person as an officer while the person is suspended from duty under this section is (if the appropriate Department Head so directs) to be withheld.(3) If:(a) it is decided to take disciplinary action with respect to the person for the misconduct, or(b) the person is convicted of the offence concerned,the salary withheld under subsection (2) is forfeited to the State unless the appropriate Department Head otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.(4) If the appropriate Department Head has suspended an officer from duty under this section, that Department Head may at any time remove the suspension.
50 Implementation of decisions under this Part
A decision of the appropriate Department Head to take disciplinary action or remedial action under this Part with respect to an officer may be carried into effect at any time.
51 Effect of dismissal of senior executive officers
(1988 Act, s 77A)
If a senior executive officer is dismissed from the Public Service under this Part:(a) the term for which the officer was appointed is to be regarded as having come to an end, and(b) no compensation is payable in respect of the dismissal.
52 Provisions relating to certain forms of disciplinary action
(1988 Act, s 75 (7), (8))
(1) Any appointment required as the result of the taking of disciplinary action comprising demotion to a lower position in a Department is to be made by the appropriate Department Head.(2) If a fine is imposed under this Part on an officer, the person responsible for paying the officer’s salary is, on receiving notice of the imposition of the fine, to deduct the amount of the fine from the salary payable to the officer in such manner as the appropriate Department Head directs.
53 Officers retiring or resigning before disciplinary action is taken
(1988 Act, s 81)
(1) An allegation that an officer has engaged in misconduct may be dealt with under this Part, and disciplinary action may be taken with respect to the officer, even though the officer has retired or resigned.(2) The taking of disciplinary action (other than a fine) with respect to the former officer does not affect the former officer’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation.(3) A fine imposed under any such disciplinary action may be recovered from the former officer as a debt due to the Crown in any court of competent jurisdiction, or out of any money payable to or in respect of the former officer by the Crown, or both.(4) Nothing in this section affects any power under this Act to refuse to accept the resignation of an officer.