Take management or disciplinary action
Discipline during a pandemic
Whilst there are clear differences between management action and discipline action, management action can be undertaken in conjunction with, or instead of a disciplinary penalty. If appropriate, management action should be considered in the first instance. Under Chapter 6 of the Public Service Act 2008, discipline action can only be taken after a finding has been made that disciplinary grounds exist (s187).
Management action is a course of local action that is reasonably open to a manager to support and correct situations of employee conflict, poor performance or unacceptable behaviours at the earliest possible opportunity.
Management action should not be considered as disciplinary by its nature, but can be undertaken in conjunction with, or instead of, a disciplinary penalty in conduct or performance matters. In most circumstances, it is preferable that management action is considered as the first step in managing conduct or performance matters in the workplace.
Management action is defined in the Discipline guideline as:
“...independent of the disciplinary process and, if possible and appropriate, should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance.
Following a disciplinary finding under s187 of the Public Service Act 2008, management action can accompany or substitute for disciplinary action under s188. If appropriate, management action can replace an ongoing disciplinary process at any stage.
While not limited, management action is predominantly focused on corrective action.”
Chapter 6 of the Public Service Act 2008 (PS Act) states that discipline action can only be taken after a finding has been made that disciplinary grounds exist (s.187).
Discipline action can be any action the chief executive considers reasonable in the circumstances (s188). The PS Act gives some examples, but these are not exhaustive.
Management action and discipline action can overlap however, certain actions e.g. termination, reduction in classification or increment point are considered discipline action only.
You should respond to performance and conduct matters in a timely, proportionate and relevant manner because, in the vast majority of cases, the employment relationship is going to continue.
The Public Service Act 2008 requires managers to:
- Proactively manage the work performance and personal conduct of employees under their management, and
- Take prompt and appropriate action to address instances of unacceptable work performance or personal conduct.
Managers should consider whether management action is appropriate when they first become aware of a conduct or performance issue. For example, if an employee is not performing to an adequate standard, managers should provide timely and constructive feedback to allow the employee to self-correct, rather than wait until their next formal performance review to raise their concerns.
Management action can also take place at the close of a disciplinary process, where it has either been determined by the delegate that a disciplinary penalty will not be applied, though some corrective action needs to occur, or that a discipline penalty will be applied and other corrective actions also need to occur.
A disciplinary process is not a substitute for management action. Following receipt of a complaint and/or allegations, the delegate should conduct a preliminary assessment to determine the most appropriate response taking into consideration the following:
- the seriousness of the issue
- whether this the first time something has happened
- whether the issue can be appropriately resolved through management action.
There are often extended timeframes associated with investigations, discipline and/ or suspension processes. Agencies have a responsibility for managing timeframes as much as possible in the interests of efficiency, and duty of care for those involved in the process.
The involvement of a third party does not automatically stop a department's processes. You may need to liaise with a third party, particularly where a lack of immediate action would create a risk to the agency or people involved.
Questions to ask yourself:
- Am I legislatively required to wait for the third party's direction or decision?
- Will proceeding with any action adversely affect the third party's process (or vice versa)?
- What impact will delaying any action have on the issue or stakeholders—will waiting for a third party's response leave the agency or stakeholder exposed to risk? For example, when referring fraud to police, the fraud may continue while waiting for police response.
Questions to ask yourself:
- Do the terms of reference clearly articulate what is in and out of scope?
- Do the terms of reference provide a clear timeframe for completion of the investigation?
- Does the investigator have the capacity to complete the investigation in a timely manner?
- Does everyone involved in the investigation (including witnesses) understand the expectations of availability for participating in the process? The agency may need to consider recalling an employee from leave so the investigation isn't delayed.
Actions of the decision maker, HR and the responding employee
- Decision makers:
- Decision makers need to make timely decisions. Consider what strategies are needed to ensure they set aside enough time to do this (e.g. consider investigation report; consider responses to show causes, etc.).
- Human resources:
- Is the case manager able to provide timely advice and help drafting correspondence?
- Agree on a process with the decision maker for considering extension requests.
- Timeframes for response should be reasonable and proportionate to the allegations. For example, a period that is reasonable for an employee to respond to 1 allegation isn't likely to be reasonable for an employee responding to 5 allegations.
When notifying employees of a discipline process, provide all relevant information to enable them to respond. This means providing the employee with a full copy of a complaint document or investigation report (unless it is more appropriate to provide a redacted version).
The Office of the Information Commissioner provides guidance on applying right to information legislation to requests for access to investigation and complaints documents. The same principles apply when deciding what information to provide.
Absence due to illness
Investigations, discipline and/or suspension processes do not halt when an employee is absent on sick leave.
A reasonable approach is appropriate for short-term absence due to ill health; however, where absences are extended, the agency can and should seek medical advice that specifically addresses the capacity of the person to participate in a disciplinary process.
If an employee is taking sick leave because of stress, it may be important to emphasise that, while participating in a discipline (or associated) process can be stressful, the stress is not likely to reduce by delaying the matter. Communicate with the employee to identify an appropriate approach that has less impact on their health.