Suspension (Directive 06/23)

1. Purpose

1. To provide information on the process for suspension processes under the Public Sector Act 2022 (Act).

2. Authorising provisions

2. Sections 102 and 222 of the Act.

3. Application

3. This directive applies to:
   1. public sector employees as provided for in section 12 of the Act
   2. public sector entities as provided for 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. CCE Directive 16/20: Suspension is repealed and superseded by this directive.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 4 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 (HR Act) decision makers have an obligation to:
   1. act and make decisions in a way that is compatible with human rights
   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. Suspension is an administrative action, taken for administrative necessity. It is not disciplinary action and is not to be used as a form of punishment.
11. Suspension should not be automatic or the default position. It should be used as a last resort after the chief executive considers all reasonable alternatives available to the employee prior to making a decision to suspend an employee.

5. Interpretation of directions

5. The Act sets out the suspension framework for the public sector under chapter 3, part 8, division 4.
6. These directions:
   1. establish procedural matters relating to suspension
   2. provide circumstances in which a chief executive may, under section 101(4)(b), decide a public sector employee is not entitled to normal remuneration
   3. provide for how procedural fairness may be met, noting that requirements in this directive do not reduce the obligations on an entity at common law
   4. establish the circumstances and the way in which a public sector employee may be reimbursed, after a decision is made about whether or not the employee is liable for discipline, for any remuneration the employee does not receive during their suspension
   5. provide periodic reviews by public sector entities
   6. establish circumstances in which a suspended employee may ask the Public Sector Commission (Commission) for a review of a procedural aspect
   7. should be read in conjunction with the relevant authorising provision/s of the Act.
7. The requirements set out in these directions are binding and must be followed.
8. 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 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 suspension processes, the matters a chief executive may consider include, but are 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 support person has an adequate level of cultural capability when conducting a suspension process that involves Aboriginal people and Torres Strait Islander people
   3. ensuring support and communication is appropriate during a suspension 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. Procedural matters relating to suspension

7. A chief executive of a public sector entity may suspend an employee as provided for under section 101 of the Act.
8. In accordance with the requirements under section 101(2) of the Act, a suspension notice must state an end date, or express the period of the suspension in terms of a specified number of weeks or months. It is not sufficient to state that suspension will end by reference to events, such as ‘until this disciplinary process is finalised’, or to state that the suspension will continue 'until otherwise determined’. A suspension notice advising of suspension without remuneration must also include information on the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act), and the directive relating to appeals.
9. When considering all reasonable alternatives as provided for at section 101(3) of the Act:
   1. the individual circumstances and facts of the matter must be assessed on their own merits to determine whether there are reasonable alternatives available to the employee, and whether it would be reasonable to direct the employee to undertake those alternative arrangements, or whether it is appropriate to suspend the employee
   2. alternative duties do not have to form part of an established role and can be outside the employee’s usual place of work
   3. employers must document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options.
10. Entities must have ongoing and clear communication with the employee, both throughout the suspension process and immediately before returning to work. This will assist in clarifying the employer’s expectations for the employee and help in the situation where an employee needs to be reintegrated into the workplace. An appropriate contact person may be assigned to perform this function.
11. The employee should also be offered support on an ongoing basis whilst on suspension. For example, referral to an employee assistance program, participation in a mentoring process with a third party, or other invitations to access support.

8. Suspension without remuneration

8. A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
9. Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
   1. there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
   2. it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.

9. Procedural fairness

9. Unlike a decision to suspend an employee with remuneration, a decision to suspend an employee without remuneration is subject to procedural fairness.
10. As part of the suspension without remuneration process:
    1. the employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This must occur through a ‘show cause’ process where the employee is notified in writing the reasons that it is proposed that the employee be suspended without remuneration
    2. the show cause notice may be given at the time of the initial suspension on normal remuneration, or at any subsequent stage during the suspension
    3. the chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice.  The time to respond must have regard to the volume of material and complexity of the matter. The chief executive must consider any request, and may grant, an extension of time to respond to a show cause notice if there are reasonable grounds for extension
    4. if the employee does not respond to the show cause notice or does not respond within the nominated timeframe in clause 9.2(c) and has not been granted an extension of time to respond, the chief executive may make a decision on suspension without normal remuneration based on the information available to them
    5. where a decision is made to suspend an employee without normal remuneration, the employee is to be provided with written notice, including the particulars required by section 101(2) of the Act, and reasons for the decision. The employee must be informed of the time limits for starting an appeal provided for in the IR Act and the directive relating to appeals.

10. Reimbursement when employee has been suspended without normal remuneration

10. An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.
11. The amount to be reimbursed is the employee’s normal remuneration at the date of suspension without pay for the period the employee was without remuneration during the suspension, taking into account any increase due to certified agreements or rulings made in state wage cases.
12. An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.
13. Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 10.2 above, unless:
    1. the employee was engaged in the employment at the time of the suspension, and
    2. the employee, in engaging in the employment, was not contravening:
       1. the Act, or
       2. a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.
14. If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

11. Periodic reviews

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 expected to resolve the matter giving rise to a suspension in a timely way.
13. A suspension commences when a chief executive writes to the subject employee to inform them that they are suspended (usually a notice of suspension with remuneration and a show cause notice for suspension without remuneration, where applicable).
14. A suspension may be extended by the chief executive, following review by an independent decision maker at 6 months and by a chief executive at twelve months and every 6 months thereafter.
15. The review must consider whether the suspension should be cancelled or continued having regard to the considerations for suspension in section 101 of the Act and this directive.
16. A suspension should remain in place while the review is completed.
17. The findings of the review must be communicated to the employee and, where the suspension is continued, the chief executive must provide notice of the suspension to the employee as required by section 101 of the Act and this directive.

12. Suspended employee may ask Public Sector Commission for review of suspension procedure

12. This section applies to matters involving a public sector employee’s work performance or personal conduct, other than corrupt conduct matters.
13. A suspended employee may ask the Commission to conduct a review of a procedural aspect of the entity’s handling of a work performance matter, provided:
    1. the suspended employee reasonably believes the chief executive has not complied with this directive, and
    2. the suspended employee has utilised internal review procedures under the directive on individual employee grievances, and
    3. having utilised the procedures at clause 12.2(b) the suspended 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 suspended employee may appeal under chapter 3, part 10 of the Act.
14. The suspended employee must request the review in writing unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.
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 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 contemplated in section 124 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 suspended 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 public sector employee may appeal a decision to suspend the employee without normal remuneration (suspension without pay decision) as provided for in chapter 3, part 10 of the Act.
14. The time limits for starting an appeal are provided for in the IR Act and the directive relating to appeals.

14. Transitional arrangements

14. Sections 315 and 316 of the Act set out the transitional arrangements for public sector employees who, immediately before commencement, were subject to a suspension imposed under the repealed Act and where the reason for suspension arises before commencement.
15. For work performance matters that commenced prior to the commencement date of this directive:
    1. where a suspension review was required to be conducted under the superseded Directive 16/20: Suspension, and was not completed by commencement of this directive, the review must be completed as if Directive 16/20: Suspension 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.

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

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.

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

Corrupt conduct has the meaning provided for under section 15 of the Crime and Corruption Act 2001.

Normal remuneration has the meaning provided for under schedule 2 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.

Repealed Act means the repealed Public Service Act 2008.

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