Procedural fairness deficiencies lead to problems

The case of PSA v Director-General of Department of Human Services (Juvenile Justice) [2010] NSWIRComm 32, provides a timely warning to managers responsible for making decisions on relevent disciplinary action following findings of misconduct, particularly for those working within the NSW Public Sector Employment and Management Act.

In this case, Marks J declared invalid a decision to take disciplinary action against a Juvenile Justice Officer for a long string of offences. His Honour found that the Department had breached two fundamental provisions that meant the Officer had been unable to make an adequate response to the Department’s intention to take action against him.

The key problem appeared to be that the Officer was not provided with sufficient particularity of the various matters being taken into account by the Director-General when determining the appropriate penalty for his misconduct. The employee had been employed since the early 1990’s but had committed a number of serious driving offences around 2008, including:

  • Having his driver’s licence suspended for a mid range PCA offence
  • Being caught speeding while suspended

Additionally, after the last offence, the Officer, Mr Philip Sullivan continued to drive a departmental vehicle on at least ten occasions before informing his manager of his 18 month disqualification from driving. Upon advice of this, the Department instituted a misconduct investigation in the three above issues which resulted in advice to the Director-General that Mr Sullivan had engaged in misconduct.

Consistent with Departmental processes, a letter was sent to Mr Sullivan advising him of the investigation findings and informed him that before making a final decision on disciplinary action, the Director-General would consider the investigation report, his “previous employment matters (such as past remedial actions, warnings/disciplinary matters or previous satisfactory work history)” and any submission he wished to make. The next day, the Department sent another letter to Mr Sullivan asserting that as he had been convicted of a serious offence ie one punishable with 18 months imprisonment for driving whilst disqualified, he should also make a submission on this issue before the Director-General made a decision using the same criteria as above.

Eventually, the Director-General made a decision which took into account Mr Sullivan’s prior performance and disciplinary action, including discipline in 2006 for failing to report the receipt of emails at work containing sexually explicit material from other employees. The Director-General also took account of other issues that Mr Sullivan was not specifically referred to, including:

  • His untruthfulness in failing to notify his manager of his licence suspension
  • His recording false information in vehicle log books during his suspension
  • His dishonest representations to the police officer booking him for speeding

The Director-General then directed Mr Sullivan to resign.

The PSA claimed that the specificity of “previous employment matters” as set out in the Director-General’s letter did not sufficiently alert Mr Sullivan of the significance they had assumed in the mind of the Director-General in determining what disciplinary action would be taken against him and on this point Marks J agreed, declaring the decision on disciplinary action to be invalis. Additionally, His Honour noted that the Department had a general right to be afforded the common law notions of natural justice and procedural fairness and that these principles were not displaced by Part 2.7 of the Act – finding instead that Part 2.7 embraced these principles.

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