Dismissing a local government employee? Don’t breach section 283

Local governments may consider that they have a robust disciplinary process that delivers procedural fairness through show-cause processes and investigations. While such actions may be sufficient under other employment law frameworks, local governments have unique additional obligations under the Local Government Regulation 2012 (Qld) (Regulation) when determining if disciplinary action is reasonable under the Local Government Act 2009 (Qld) (Act).

The Regulation contains mandatory provisions which a local government chief executive officer must follow to validly dismiss an employee under s 197 of the Act.[1] Unfortunately, local governments may not be able to solely rely upon the completion of a show-cause process and/or an investigation to demonstrate compliance with the Regulation. This article considers how local governments can achieve compliance with the Regulation and take valid disciplinary action against employees, and the risk to local governments of non-compliance with the Regulation.

Regulation requirements

The Regulation provides that Part 3, Division 1 applies when a chief executive officer is exercising their power under section 197(2) of the Act[2] when taking disciplinary action against a local government employee. Section 283 of the Regulation outlines the procedure for providing notice to employees of disciplinary action and providing employees with an opportunity to respond to such notice.[3] Invalid disciplinary decisions have occurred where local governments considered that investigations, and the show-cause process generally, met the requirements for notice under the Regulation.[4] Rather, if allegations have been substantiated by an investigation, local government should consider the investigation to be a separate process relating to fact-finding, rather than a disciplinary process for the purposes of the Regulation. Accordingly, it is pertinent for local governments to consider how to validly dismiss an employee under the Regulation once a finding of fact has been made under an investigation.

Compliance

Section 283 of the Regulation prescribes that before a chief executive office takes disciplinary action against an employee, the employee must be provided with written notice of:

• the disciplinary action to be taken;
• the grounds on which the action is to be taken; and
• the particulars of the conduct claimed to support the grounds of discipline.

Further, the employee must be afforded a reasonable opportunity to respond to the notice.

The notice must:

• be provided prior to disciplinary action being taken;
• clearly state what disciplinary action will be taken and not merely outline a possible consequence; and
• allow the employee an opportunity to respond.[5]

This process may seem strikingly similar to a show-cause process throughout an investigation, however, any notice provided throughout the duration of an investigation is separate to notice provided under the Regulation. Where an investigation may outline the allegations and possible disciplinary action(s) if substantiated, notice under the Regulation provides the proposed disciplinary action that is going to be taken without being contingent on allegations being substantiated. The seriousness of the relevant allegation has already been substantiated and considered throughout the separate process of an investigation and/or show cause process. Consequently, local governments need to consider that the notice process outlined in section 283 as mandatory for disciplinary actions under the Act, and that providing an employee the opportunity to respond is also mandatory despite any show-cause or investigation process that may have occurred previously.

Risk to Local Government

If the process prescribed under section 283 is not followed, then the disciplinary decision is likely to be found invalid and the local government risks being liable for an application for reinstatement.[6]  A declaration that an employee’s dismissal was unfair may have significant impacts upon a local government as the employee may be reinstated with back-pay for all wages and entitlements (such as annual leave) as if there was no break in their employment. If the failure to correctly apply the procedure of section 283 is replicated across many disciplinary processes, the local government will carry a significant financial risk of reinstating multiple employees, as well as defending multiple actions in the Queensland Industrial Relations Commission.

Conclusion

Local governments need to be aware of their unique obligations under the Regulation when taking disciplinary action against an employee. It is not sufficient to consider that a show-cause process, or an investigation automatically meets the requirements of the Regulation.

Gadens understands that ensuring compliance with the Regulation may be burdensome for local governments with limited resources. We have extensive experience in advising and assisting local governments throughout workplace investigations, industrial disputes, and defending actions in the Queensland Industrial Relations Commission. Gadens can provide tailored advice to reduce the risk associated with undertaking disciplinary action.

To enquire as to how Gadens may be able to assist, please contact Jonathon Hadley in Brisbane by email jonathon.hadley@gadens.com or phone 07 3231 1653.

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Authored by:

Jonathon Hadley, Partner
Ebony Archer, Senior Associate
Melissa Sidney, Solicitor

[1] Promnitz v Gympie Regional Council [2015] ICQ 011.

[2] Ibid.

[3] Local Government Regulation 2012 (Qld).

[4] Blows v Townsville City Council [2016] QIRC 066.

[5] Promnitz v Gympie Regional Council [2015] ICQ 011; Blows v Townsville City Council [2016] QIRC 066; Bentzen v Hinchinbrook Shire Council [2021] QIRC 158.

[6] Ibid.