Safeguards absent from guidelines

By Brenda Seymour

Federation is seeking to have procedural fairness rights available to public servants included in the guidelines associated with the Education Legislation Amendment (Staff) Act.

The current draft education guidelines contain significant omissions when compared to the public servant guidelines.

A discretionary approach to managing issues of conduct and performance is omitted in the guidelines. The option to take remedial action, instead of disciplinary action, in cases of misconduct and conviction of a serious offence has not been included in the proposed legislative management of conduct and performance.

Included in the public service guidelines, but absent in the draft education guidelines, are the provisions for implementing remedial action, such as informal or formal counselling, training and development, monitoring the officer's conduct or performance, implementing a Performance Improvement Plan, issuing a warning, transferring at current pay rate, induction, mentoring, staff rotation and referral to relevant policies.

Determining what action is to be taken is also absent in the draft education guidelines. For example:

• that disciplinary or remedial action taken must be relevant and proportional to the misconduct, unsatisfactory performance or serious offence conviction
• that a department head must exercise discretion in selecting appropriate remedies and not adopt a policy that a particular conduct issue or incident will always attract the same penalty in exercising the discretion, the department head must have regard to relevant factors of the case.
• the department head, exercising his/her discretion, may decide to take remedial action, take disciplinary action, dismiss the matter or take no further action in relation to the matter
• the decision-maker is to select an outcome that will best satisfy the objectives of the disciplinary process, having regard to all of the relevant circumstances.

In terms of misconduct, significant sections on procedural fairness have been removed from the education guidelines including:

• The notification and advice to officers:
• that the interviews will be conducted in private
• that the investigators have the responsibility to be fair, courteous and impartial.
• That the investigator must:
• advise the officer that the interview will be recorded and the method that will be used. Sound recording may be suspended temporarily and replaced by note taking if particular circumstances warrant such and it has been requested by the officer
• advise the officer of the purpose of the interview
• advise the officer/observer that if they have chosen to have an observer present, that the role is that of witness or adviser and not of advocate, and that their presence is a safeguard against unfair practices
• advise the officer/observer that if they wish to have a private discussion they should request a halt to proceedings
• advise the officer that he/she will have an opportunity to fully respond to the questions asked and to provide comments with respect to relevant issues, which includes giving their version of the events in question
• advise the officer that it is in their best interest to answer questions and have their version of events recorded
• put each allegation/incident to the officer and invite him/her to respond
• interview the person in relation to his/her response or other matters in relation to the allegation
• avoid accusatory or intimidatory language or tone of voice
• avoid making comments about the answer given
• not indicate personal views or opinions or those of other people
• ask the officer if there is anything else they wish to say.
• Investigators should not indicate that any view has been formed.
• Investigators must advise the officer:

  *That following the completion of the investigation that an investigation report will be provided to the department head.

  *A decision will be made by the department head based on the facts and available information contained in the investigation report.

  *That the officer will be notified in writing of the outcome and where misconduct is established, the proposed action to be taken. The officer will receive a full copy of the investigation report if disciplinary action is being considered subject to any legislative or confidentiality requirements precluding disclosure. If the matter concerns a protected disclosure or confidentiality, the identity of the person who made the disclosure is only to be disclosed if it is essential, having regard to the principles of procedural fairness -- that is, essential for the person to be able to respond to the allegations.

  *That he/she will be given an opportunity to make submissions to the department head in relation to any proposed action before it is implemented -- the submission may also include comments on the investigation report and if applicable on the opinion of the department head that the officer has engaged in misconduct. Also if desired the officer may, prior to a decision on penalty, request an interview with the department head accompanied by a representative.

  *Provide the officer and other witness with a copy of his/her record of interview and invite him/her to read and sign all copies.

  *Any issues about the content of the record of interview/statement should be discussed and resolved between the parties. The record of interview/statement should be altered to reflect the agreed changes.

  *If record of interview/statement is not agreed to and if the issues cannot be resolved, the officer or witness should be asked to submit a statement outlining their reasons for not signing the record of interview/statement. The investigators should also record their reasons for not agreeing to requested changes. These reports must be included in the investigation report.

• That if a witness informs the investigator that he/she is being victimised or harassed by the officer who is the subject of a misconduct investigation, the investigator should:
• inform the witness that they are not required to speak to the officer and that the alleged victimisation/harassment should be reported to the department head
• not attempt to inquire into any such allegation because it is a separate allegation and requires independent consideration, and
• report the allegation in writing to the department head, or other senior officer delegated to such a role, so that the complaint can be dealt with.
• That if the department head is of the opinion an officer has engaged in misconduct and that disciplinary action may be appropriate, the officer must be notified in writing of that opinion and of disciplinary action being considered, including the severest penalty.
• That a Federation representative for example may speak on behalf of the officer at the interview but not attempt to cross examine the department head.
• That all stages, including the final decision stage, must be made in a timely and expeditious fashion.
• That in making a decision as to the appropriate disciplinary action, the department head must exercise his/her discretion and not adopt a policy that a particular conduct will always attract the same disciplinary penalty.
• The department head shall consider any submission made on behalf of the officer by the union.

For further information

June 2006 contents