Pandemic Plus webinar–discipline

The policy and legislative framework for investigations, suspension and discipline remains the same during the coronavirus pandemic. Agency obligations for fairness, respect and communication also remain the same and are key to ensuring that employees are supported during what is an inherently stressful time. While the pandemic will not alter the facts of a situation or the substantiated conduct of an employee, agencies should carefully consider the context of the pandemic in their decision making throughout these processes.

Consideration should be given to factors that may be different due to the coronavirus pandemic:

  • Current social distancing requirements may make face-to-face meetings impractical, so teleconferences and virtual participation, including for support persons and industrial representatives, may be an option.
  • Reasonable decision making (at various points in a process) may require consideration of pandemic-related factors.
  • The employee may experience additional anxiety and stress, and there may be delays seeking advice from their union.
  • Alternative duties may be challenging to implement and monitor in a remote environment.
  • How will decisions, including about suspension and discipline, be communicated to the employee?
  • Are there practical issues to consider with implementing disciplinary action?
  • Procedural matters such as fair and reasonable timeframes for the employee to respond.

Webinar

 

Pandemic Plus Discipline questions

1. If a disciplinary process is put on hold during the pandemic, what issues may arise with recommencing the process at a later time?

Each matter needs to be considered on a case-by-case basis. A reasonable approach will be key to considering the appropriate course of action and what impact a ‘pause’ in the process may have. Factors that agencies may need to consider include:

  • how far the process has already progressed
  • whether a significant delay in the process is likely to cause further stress for an employee
  • the purpose of the ‘pause’ and what factors will determine when it is appropriate to recommence
  • what strategies relating to the employee’s conduct or performance will be put in place during the ‘pause’.

2. Given the rising rate of unemployment, will more weight be given to a terminated employee’s prospects of gaining alternative employment in the Queensland Industrial Relations Commission’s consideration of an application for reinstatement?

At this time it is unknown whether or how the pandemic will factor in decisions of the Queensland Industrial Relations Commission. Disciplinary action should remain proportionate to the seriousness of the employee’s conduct, taking into account the trust and confidence that is inherent to the employment relationship. As always, reasonable decision making, and fair process are likely to put agencies in good stead for defending an application for reinstatement.

3. In what situations is it appropriate to combine a notice to show cause on disciplinary liability (NTSC1) and proposed penalty (NTSC2)?

A combined (truncated) process may be an option in cases where an employee’s conduct is evidentially clear cut. For example, in cases where an employee has admitted the conduct. Unless taken for the benefit of the employee in such cases, for example, to avoid employee anxiety related to a more drawn out process, it is recommended that agencies follow the standard process outlined in the discipline guideline.

4. Is there a maximum number of allegations that a subject officer could be expected to respond to?

While there is no specified maximum number of allegations that an agency can put to an employee, this is likely to be an issue that will come down to reasonableness on a case-by-case basis. Case managers and decision makers may consider whether:

  • any of the allegations can be combined
  • some of the allegations are much more serious than others
  • it is fair to expect an employee to comprehend the particulars and respond to a substantial number of separate allegations
  • the process is likely to be considered procedurally sound, fair and timely with a high number of allegations.

5. Is it appropriate to commence a formal performance improvement process during the pandemic? Should this be delayed until things return to normal?

Commencement of performance improvement processes during the pandemic will need to be considered on a case-by-case basis. Relevant considerations may include:

  • the extent of the performance concerns and attempts at corrective action
  • the manager’s capacity to implement and monitor a formal plan in a remote work environment
  • the employee’s current state of wellbeing.

Agencies should be mindful that performance improvement processes (and related disciplinary processes) should not occur because of the pandemic. For example in circumstances where an employee’s performance has temporarily reduced because of a change in working environment or other pressures associated with the pandemic.

6. Is it mandatory for agencies to use the template letters contained in the discipline guideline?

The template letters contained in the discipline guideline have been drafted to meet the specific requirements of the Public Service Act 2008. Agencies may modify the templates to meet the style and formatting preferences, however the fundamental elements and structure of the letters should reflect the discipline guideline templates.

7. What is the role of a contact officer during a discipline process?

The role of contact officer, outlined in the discipline guideline, is “to provide the employee who is subject to the allegations with information about the discipline process, such as the steps involved and the role of a support person, and to act as a point of liaison for any queries to the decision maker/investigator”. Ideally, this person is completely independent from the work unit and decision-making process.

8. If an employee claims an investigation or discipline process is causing them stress because of the current pandemic, should the agency discontinue the process even though the grounds for pursuing it are sound under the Public Service Act 2008?

This is a question for the decision maker. Decisions during and about these processes should not be made because of the pandemic. Rather, the pandemic and its impact on the employee should be part of the decision maker’s considerations throughout the process. Agencies should engage with the employee and, where relevant, their treating medical practitioner, about the employee’s particular circumstances.

9. How much weight should a decision maker give to pandemic-related mitigating factors nominated by the employee in response to a show cause for discipline liability?

This is a question for the decision maker. Decisions during and about these processes should not be made because of the pandemic. Rather, the pandemic and its impact on the employee should be part of the decision maker’s considerations throughout the process. Reasonableness will be key to these considerations, and will likely depend on the context of the conduct and the significance of the pandemic as a reasonable mitigating factor in the specific circumstances.

10. When considering alternative duties for suspension, is it an option to nominate the employee for the employee mobilisation service (EMS)?

While each matter would need to be considered on a case-by-case basis, agencies should carefully consider nominating an employee for the EMS in these circumstances. Consideration may need to be given to various factors, including but not limited to, the seriousness of the alleged or substantiated conduct of the employee, and maintaining the availability of the employee to participate in the agency’s process in a timely and convenient manner.