NSW Local Government: Staff Misconduct and Discipline

This factsheet will introduce you to the legislation underpinning the topics of staff misconduct, discipline and workplace bullying in the local government sector in NSW.

Relevant Legislation

When dealing with staff misconduct and discipline (including workplace bullying), local government organisations must comply with a number of different legislative instruments:

• Local Government (State) Award 2017 (the Award);
• Local Government Industry Guidelines on Workplace Investigations  (the Guidelines);
• Model Code of Conduct for Local Councils in NSW (the Code); and
• Procedures for the Administration of the Model Code of Conduct (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 5.7 of the Procedures, has discretion not to enquire into the matter on grounds that the complaint is trivial, frivolous, vexatious or is not made in good faith.

Note: the General Manager must give the complainant reasons in writing for their decision not to investigate the complaint.

Is it a Code of Conduct complaint?

• Has it been made in the 3 month time period after the alleged conduct occurred? If so, it may only be accepted if the General Manager, or, in the case of a complaint about the General Manager, the Mayor, is satisfied that there are compelling grounds for the matter to be dealt with under the Code of Conduct.
• Does the complaint allege that a council official, acting in their official capacity, has conducted themselves in a manner which could constitute a breach of the standards of conduct?
• 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.

Is 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 with the Public Interest Disclosures Act 1994 and clauses 5.35 5.38 of the Procedures.

Once a decision has been made to commence a Code of Conduct Investigation (Code Investigation)

It is important to follow the Procedures when commencing a Code Investigation.

Investigation (not including complaints against General Managers):

The General Manager must refer the following code of conduct complaints about councillors to the Division:

• Breach of the pecuniary interest provisions of the Act;
• 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;
• Complaints alleging a breach of Part 8 of the Code of conduct relating to the maintenance of the integrity of the Code and
• Complaints the subject of a special complaints management arrangement with the Division of Local Government, Department of Premier and Cabinet (the Division) under clause 5.40 of the Procedures.

The complainant must be notified in writing of this referral.

If the matter does not require referral to the Division, the General Manager has discretion under clauses 5.18 and 5.20 of the Procedures to seek alternative resolution of the matter through a number of means including:

• Referral to the complaints coordinator;
• Counselling;
• Mediation; and
• An apology.

Investigation of a General Manager:

The Mayor must refer the following code of conduct complaints about the General Manager to the Division:

• Complaints alleging a breach of the pecuniary interest provisions of the Act;
• Complaints alleging a breach of Part 8 of the Code of conduct relating to the maintenance of the integrity of the Code; and
• Complaints the subject of a special complaints management arrangement with the Division under clause 5.40

The complainant must be notified in writing of this referral.

Sanctions:

Once the investigation is complete, 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.

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

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:

• Corruption;
• Sensitive subject matters; and
• Conflicts of interest.

Penalties:

Similarly to Code of Conduct proceedings, any penalties placed on the employee 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; and
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.

Contact our Employment Law & Investigations Team for more information.