HR Fact Sheet

FACT SHEET: Staff Misconduct and Discipline for NSW Local Government

Relevant instruments

When dealing with staff misconduct and discipline (including workplace bullying), you must comply with a number of different legislative instruments.

  1. Local Government (State) Award 2020 (Award).
  2. Local Government Industry Guidelines on Workplace Investigations under section 36 of the Award (Guidelines)
  3. Model Code of Conduct for Local Councils in NSW 2020 (the Code)
  4. Procedures for the Administration of the Model Code of Conduct 2020 (the Procedures)

Key questions to ask when a complaint has been made:

How serious is the complaint?

If the complaint is minor, then it may be best dealt with at a HR level. If it is a Code of Conduct Complaint the General Manager, under clause 5.3 of the Procedures, has discretion not to enquire into the matter where they are satisfied that it is either:

  • Not a Code of Conduct complaint; or
  • Is not made within 3-months of the alleged conduct occurring, or the complainant becoming aware of the alleged conduct; or
  • Is trivial, frivolous, vexatious or not made in good faith; or
  • Relates to a matter of substance of which has previously been considered and addressed by the Council and does not warrant further action; or
  • Is not made in a way that would allow the alleged conduct and any alleged breaches of the Council’s Code of Conduct to be readily identified.

Note, that under clause 5.7, the General Manager must give the complainant reasons in writing for theirdecision not to investigate the complaint.

Is it a Code of Conduct complaint?

  1. Does the complaint show, or tend to show, conduct on the part of a council official in connection with their role or exercise of their functions that would constitute a breach of the Code of Conduct?
  2. Has it been made within 3 months of the alleged conduct occurring or within 3 months of the complainant becoming aware of the conduct? If the complaint has been made after the 3-month period, the general manager or mayor may only accept a complain where they are satisfied that the allegations are serious and compelling grounds exist for the matter to be dealt with under the code of conduct.
  3. Was the complaint made in writing to the General Manager (or made by the General Manager themselves, or, if the complaint was about the General Manager was the complaint made to the Mayor)? If not, the complaint must be confirmed with the complainant in writing as soon as possible.

It the complaint a Public Interest Disclosure?

If the complaint states that it is a ‘Public Interest Disclosure’ then it must be dealt with in accordance withthe Public Interest Disclosures Act 1994 and clauses 5.45 – 5.47 of the Procedures.

Once a decision has been made to commence a workplace investigation:

Most Code Investigations can be dealt with ‘in-house’. However, in certain circumstances it is advisable to seek the assistance of an external body to carry out the Code Investigation. This is particularly advised in cases with:

  1. Corruption;
  2. Sensitive subject matters; and
  3. Conflicts of interest.

Investigation of complaints against Councillors (not including complaints against General Managers):

The General Manager must refer the following Code of Conduct complaints about councillors to the Office:

  1. Complaints alleging a breach of the pecuniary interest provisions in Part 4 of the Code of Conduct
  2. Complaints alleging a failure to comply with a requirement under the Code of Conduct to disclose and appropriately manage conflicts of interests arising from reportable political donations
  3. Complaints alleging a breach of Part 9 of the Code of Conduct relating to the maintenance of the integrity of the code, and
  4. Complaints that are the subject of a special complaints management arrangement with the Office under clause 5.49 of the Procedures

Where the General Manager refers a complaint to the office, the complainant must be notified in writing of this referral.

If the matter does not require referral to the Office, the General Manager has discretion under clauses 5.24 of the Procedures to seek alternative resolution of the matter through a number of means including:

  1. Explanation
  2. Counselling
  3. Training
  4. Mediation
  5. Informal discussion
  6. Negotiation
  7. An apology
  8. Undertaking not to repeat the behaviour.

Other than where the General Manager refers a complaint to the Office, resolves the complaint, or declines to take action, the General Manager must refer all Code of Conduct complaints about councillors to the complaints coordinator.

Investigation of a General Manager:

The Mayor must refer the following Code of Conduct complaints about the General Manager to the Office:

  1. Complaints alleging a breach of the pecuniary interest provisions in Part 4 of the Code of Conduct
  2. Complaints alleging a breach of Part 9 of the Code of Conduct relating to the maintenance of the integrity of the code, and
  3. Complaints the subject of a special complaints management arrangement with the Division under clause 5.49

Where the Mayor refers a complaint, the complainant must be notified in writing of this referral.

The Mayor may decide to take no action in relation to a Code of Conduct complaint about the General Manager where they consider that no action is warranted in relation to the complaint. Alternatively, the Mayor may seek to resolve the Code of Conduct complaint by alternative means.

Other than where the Mayor refers a complaint to the Office, resolves the complaint, or declines to take action, the Mayor must refer all Code of Conduct complaints about the General Manager to the complaints coordinator.

The Complaints Coordinator

The General Manager must appoint a member of staff of the council or another person (such as a member of staff of another council or a joint organisation or regional body associated with the council) to act as the Complaints Coordinator.

The role of the Complaints Coordinator is to:

  • Coordinate the management of complaints made under the Council’s Code of Conduct;
  • Liaise with and provide administrative support to a conduct reviewer;
  • Liaise with the Office; and
  • Arrange the annual reporting of Code of Conduct complaints statistics.

The Investigation Process

Once a complaint has been referred to the Complaints Coordinator, the Complaints Coordinator must refer the complaint to a conduct reviewer within 21 days of receipt of the complaint.

The complaints coordinator must notify the complainant in writing once the complaint has been referred.

The Conduct Reviewer, following a review of the complaint, may do any of the following:

  1. Take no action
  2. Decide to resolve the complaint by alternative means
  3. Refer the complaint back to the general manager or mayor for resolution by alternative means
  4. Refer the matter to an external agency
  5. Investigate the complaint.

The Conduct Reviewer may only decide to investigate the complaint where they are satisfied that:

  • The complaint is a Code of Conduct complaint;
  • The alleged conduct is sufficiently serious to warrant the formal censure of a councillor or disciplinary actions against the general manager; and
  • The matter is one that could not or should not be resolved by alternative means.

Sanctions

Where the Final Investigation Report concludes that there has been a breach of the Code of Conduct, the Council must impose a sanction.

The decision maker needs to review the findings of the investigation thoroughly and make a proportionate decision. It is important that the findings of an external body who conducts the investigation are not ‘blindly’ adopted.

The Council may impose one of the following sactions:

  1. Where the breach has been performed by the General Manager, disciplinary action taken under their contract of employment; or
  2. Where the breach has been performed by a Councillor, either:
    • A formal censure for breach; or
    • A formal censure for breach and referral of the matter to the Office for further action under the misconduct provisions of the Local Government Act.

Any penalties should be proportionate to the found conduct.

Key things to remember in all investigations

Procedural Fairness

Procedural fairness is concerned with the procedures used by the decision-maker, not the outcome. The rules of procedural fairness require:

  1. A hearing appropriate to the circumstances
  2. Lack of bias
  3. Evidence to support decisions, and
  4. Inquiry into matters in dispute

Importantly, the employee concerned has a right:

  1. To receive clear notice of all allegations.
  2. To receive all relevant information before responding to the allegations;
  3. To be given a fair amount of time to consider the allegations and supporting materials before being required to respond;
  4. For their response to be received and genuinely considered by the decision maker before the decision is made.

Suspension

In certain circumstances it may be appropriate to suspend an employee while an investigation is being carried out. However, suspension as an investigation tool should be used sparingly and only when it is absolutely necessary for the integrity of the investigation and protection of the Council. Unnecessary suspension can lead to:

  1. Wasted rate-payer funds
  2. Mental health injuries to the effected employee, and
  3. Difficulties successfully returning the individual to the workplace

Work Health and Safety

It is important to carry out your investigations in a reasonable manner so as to reduce the risk of mental health injuries to those involved.

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