Local Government employers beware terminating employees without following proper procedure

The QIRC has recently confirmed that compliance with the requirements of s 283(1) of the Local Government Regulation 2012 is a mandatory step before taking disciplinary action against an employee

Highlights

In the decision of Bentzen v Hinchinbrook Shire Council [2021] QIRC 158, the Queensland Industrial Relations Commission (“QIRC”) held: -

• When taking disciplinary action under s 197 of the Local Government Act 2009 against a local government employee by reference to their responsibilities or actions, giving written notice pursuant to s 283 of the LGR of the proposed action, particularised grounds for the action and a reasonable opportunity to respond,  is a mandatory precondition to taking disciplinary action, even where the employee is guilty of serious misconduct;
• Disciplinary action taken without complying with that precondition will be invalid;
• Giving verbal notice is insufficient to satisfy the notice requirement.

Facts

A Council employee was informed her employment was to be terminated for misconduct arising from negligent mismanagement and subsequent lack of diligent, effective, efficient and economical management of a public resource.

The employee sought reinstatement on the basis that her dismissal was harsh, unjust or unreasonable and that the termination was invalid because in dismissing her, the Council’s CEO failed to comply with the notice requirement in s 283(1).

Decision

Asserting that s 283 was invalid, the Council argued that:-

• s 283 sought to prescribe how disciplinary action may be taken, whereas s 197(2) of the LGA only authorised a regulation prescribing when and the types of disciplinary action that may be taken against an employee;
• A regulation could not operate to exceed the terms of its authorising law;
• s 283 was not necessary or convenient to give effect to s 197(2) because there was no warrant to argue that s 283 was, objectively speaking, either necessary or convenient to seek to mandate how the disciplinary process should be carried out.

Finding against the Council the QIRC held that:-

• s 283(1) was valid because it was necessary to give effect to the power to take disciplinary action against an employee;
• Alternatively, s 283 was, at the very least, convenient, to be prescribed to give effect to the power in that it was incidental to the execution of that power;
• This is because the measures in s 283(1) ensure that any disciplinary action is taken in a way that is procedurally fair;
• The scope and purpose of s 197(1) and s 283 are mutually inclusive.

The Council also argued that:-

• When the LGR was amended in 2018 the term notice remained in s 283(1)(a), but the word written was omitted;
• The dictionary to the LGR did not include a definition of the term notice;
• While the LGA had also been amended to define the term notice to mean a written notice, this definition was only inserted for the introduction of a system with respect to Councillor complaints and not for the purpose of s 283;
• The only provision of the authorising law relevant to interpreting s 283 was s 197(2).

In rejecting these submissions, the QIRC held that the definition of notice in the LGA applies to understanding the meaning of that term in s 283 of the LGR.  As a result, verbal notice will be insufficient for s 283 and written notice will be required.

The Council further argued that where an employee has engaged in misconduct that warranted summary dismissal under the common law, it was not required to comply with s 283(1)(a), as to do so would exclude the operation of the common law.

Relying on Promnitz v Gympie Regional Council (2015) 248 IR 64, the QIRC found that:-

• The question, in respect of whether the requirements under Chapter 8, Part  3, Division 1 of the LGR are mandatory, is whether disciplinary action is taken against an employee by reference to their responsibilities or actions under the LGA;
• As the reasons for the employee’s termination made reference to her failure to comply with the Code of Conduct and her responsibilities under the LGA, compliance with the LGR was mandatory;
• As a result of the failure to comply with the requirements of s 283(1) the dismissal was invalid.

The QIRC also considered whether the termination was unfair and found that whilst there may have been a reasonable basis to terminate, overall the dismissal was unjust due to the procedural deficiencies leading up to the termination.

The QIRC directed the parties to make further written submissions about the other orders the employee sought, namely that: -

• The employee be restored to her former position with the Council;
• Her continuity of service be maintained; and
• The Council pay her the remuneration lost by reason of her purported dismissal.

Implications

A local government must carefully consider the process for taking disciplinary action against an employee.  Where proposed reasons for action relate to an employee’s failure to perform their responsibilities under the LGA, or an employee acting under the LGA inconsistent with the local government principles in the LGA, written notice and a reasonable opportunity to respond will be required before action is taken.

Failure to comply with this requirement can result in a finding that a dismissal was invalid.

If you need assistance with the proper procedure to be applied before taking disciplinary action against a local government employee please email Kristie Taylor or Tim Fynes-Clinton, or call us on (07) 3243 0000.