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Last updated: May 1996
Circular 1996/8: Forfeiture of office/employment - replacement pro formas
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
Purpose
The purpose of this Circular is to provide you with revised pro formas designed to assist you in undertaking the procedures related to forfeiture of office or employment. These pro formas replace those provided in Chapter 12 of the Discipline Handbook (1988).
Background
The revised pro formas take into account the addition of sections 82AJ and 82AK to the Public Service Act 1922 in 1991 to cover forfeiture of employment, and include an attachment which suggests possible changes to the procedures. These changes may be necessary given the uncertainty surrounding the application of the unfair dismissal provisions of the Industrial Relations Act 1988 and the 1995 Service-wide workplace bargaining agreement Continuous Improvement in the Australian Public Service Enterprise Agreement: 1995-96, where it also has some relevance.
The attachment to the pro formas covers the impact of the IR Act on the forfeiture provisions, and also confirms that the person's retirement will take effect at the end of the two-week period prescribed by s.66A or s.82AJ of the Public Service Act. Where s.170DB of the Industrial Relations Act requires a longer period of notice because of the person's age or length of service (up to a maximum of five weeks), any notice in excess of the two weeks required by the Public Service Act can be paid out (i.e. up to a maximum of three weeks extra). In cases of forfeiture, there is normally no salary compensation required as the person is already on unauthorised leave without pay. However, there may be other leave credits to which the person is entitled.
Use of pro formas
The Attorney-General's Department has suggested that in the absence of a test case relating to forfeiture of office, these pro formas should form part of the formal processes. The attachment will provide essential information. It is the responsibility of agencies to ensure that any advice provided to staff members meets the requirements of the Public Service Act and the Industrial Relations Act.
The replacement pro formas are for use as follows:
- Appendix A Notice under sub-section 66A(1) commencing formal forfeiture action
- Appendix B Notice under sub-section 82AJ(2) commencing formal forfeiture action
- Appendix C Notice granting an extension of leave to an officer who responded to the s.66A(1) notice.
- Appendix D Notice granting an extension of leave to an employee who responded to the s.82AJ(2) notice.
- Appendix E Notice under s.66A(3)(b) directing the officer to return to duty.
- Appendix F Notice under s.82AJ(4)(b) directing the employee to return to duty.
- Appendix G Notice under s.66B(2)(b) refusing the application for re-appointment.
- Appendix H Notice under s.82AK(2)(b) refusing the application for re-engagement.
Attachment (for use with most of the above notices) Statement about (a) the Industrial Relations Act and its impact on termination of employment; (b) re-engagement after forfeiture of office/employment; and (c) appeal rights in relation to the AIRC
Should you wish to discuss issues concerning the pro formas or the forfeiture procedures, please contact the PSMPC on (02) 6202 3859.
Mike Jones
Team Leader
Managing Performance Team
May 1996
Appendix A
To be used when Secretary or Delegate sends notice under s.66A(1) commencing formal forfeiture action
Forfeiture of Office
Public Service Act 1922
Notice under Sub-section 66A(1)
TO: [Name of officer]
[Address last known to Secretary or Delegate]
1. You are absent from duty without permission and have been so absent for a continuous period of not less than 4 weeks.
2. TAKE NOTICE THAT unless within a period of 2 weeks from and including the date on which this notice is sent, you:
(a) return to duty; or
*(b) explain your absence and seek my permission for any further period of absence that
may be necessary having regard to your explanation,
OR (if the Delegate is the author)
*(b) explain your absence and seek the permission of the Secretary for any further period
of absence that may be necessary having regard to your explanation,
you will be deemed to have retired from the Australian Public Service upon the expiration of that period of 2 weeks.
Dated 19
* SECRETARY or DELEGATE OF THE SECRETARY
** Notice sent by security post on ......................... 19
* Delete whichever is not applicable.
** The date the notice is sent must be indicated on the notice itself and the notice should
be annotated to confirm that it was sent on this date.
Appendix B
To be used when the Secretary or Delegate sends notice under s.82AJ(2) commencing formal forfeiture action
Forfeiture of Employment
Public Service Act 1922
Notice under Sub-section 82AJ(2)
TO: [Name of employee]
[Address last known to the Secretary or Delegate]
1. You are absent from duty without permission and have been so absent for a continuous period of not less than 4 weeks.
2. TAKE NOTICE THAT unless within a period of 2 weeks from and including the date on which this notice is sent, you:
(a) return to duty; or
*(b) explain your absence and seek my permission for any further period of absence that
may be necessary having regard to your explanation,
OR (if the Delegate is the author)
*(b) explain your absence and seek the permission of the Secretary for any further period
of absence that may be necessary having regard to your explanation,
you will be deemed to have retired from the Australian Public Service upon the expiration of that period of 2 weeks.
Dated 19
* SECRETARY or DELEGATE OF THE SECRETARY
** Notice sent by security post on ....................... 19
* Delete whichever is not applicable.
** The date the notice is sent must be indicated on the notice itself and the notice should
be annotated to confirm that it was sent on this date.
Appendix C
To be used when the Secretary or Delegate grants an extension of leave to an officer who responded to the s.66A notice
Public Service Act 1922
Notice under Paragraph 66A(3)(a)
TO: [Name of officer]
[Address last known to Secretary or delegate of Secretary]
1. On [ * ] a notice was sent to you under sub-section 66A(1) of the Public Service Act
1922.
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought my permission for a further period of absence by letter dated ............ [OR
in person on ...............]
OR (if the author is the Delegate)
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought the permission of the Secretary for a further period of absence by letter dated
............ [OR in person on ...............]
3. In accordance with sub-section 66A(3) of the Act, I have now considered the matter.
4. TAKE NOTICE THAT you have been granted leave of absence from [ specify period ] on the following conditions [ specify conditions, if any ]. This means that you are required to return to duty on [ date ].
Dated 19
...........................................
**Secretary
OR
**Delegate of the Secretary
* Insert date on which the s.66A(1) notice was sent.
** Delete whichever is not applicable.
Appendix D
To be used when the Secretary or Delegate grants an extension of leave to an employee who responded to the notice sent under s.82AJ(2)
Public Service Act 1922
Notice under Paragraph 82AJ(4)
TO: [Name of employee]
[Address last known to Secretary or delegate of Secretary]
1. On [ * ] a notice was sent to you under sub-section 82AJ(2) of the Public Service Act
1922.
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought my permission for a further period of absence by letter dated ............ [OR
in person on ...............]
OR (if the author is the Delegate)
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought the permission of the Secretary for a further period of absence by letter dated
............ [OR in person on ...............]
3. In accordance with sub-section 82AJ(4) of the Act, I have now considered the matter.
4. TAKE NOTICE THAT you have been granted leave of absence from [specify period] on the following conditions [specify conditions, if any]. This means that you are required to return to duty on [ date ].
Dated 19
...........................................
**Secretary
OR
**Delegate of the Secretary
* Insert date on which the s.82AJ(2) notice was sent.
** Delete whichever is not applicable.
Appendix E
To be used when Secretary or Delegate sends notice under s.66A(3)(b) directing the person to return to duty
Forfeiture of Office
Public Service Act 1922
Notice under Paragraph 66A(3)(b)
TO: [Name of officer]
[Address last known to Secretary or delegate of Secretary]
1. On [ * ] a notice was sent to you under sub-section 66A(1) of the Public Service Act
1922.
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought my permission for a further period of absence by letter dated ............ [OR
in person on ...............]
OR (if the author is the Delegate)
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought the permission of the Secretary for a further period of absence by letter dated
............ [OR in person on ...............]
3. In accordance with sub-section 66A(3) of the Act, I have now considered the matter and have decided that the reason you have supplied in your request for the granting of leave to extend your absence is unsatisfactory. I have therefore denied your request.
4. The reasons for my decision are [ here give reasons for denying the request ]
5. TAKE NOTICE THAT you are directed to return to duty and that unless you return to duty within the period ending on [ *** ] you will be deemed to have retired from the Australian Public Service upon the expiration of that period.
Dated 19
.............................................
** Secretary or Delegate of the Secretary
Note: Notice should be annotated to indicate the date it was sent.
* Insert date the notice under s.66A(1) was sent.
** Delete whichever is not applicable.
*** Insert date at least two weeks after the date this notice is to be posted.
Appendix F
To be used when Secretary or Delegate sends notice under s.82AJ(4)(b) directing the person to return to duty
Forfeiture of employment
Public Service Act 1922
Notice under Paragraph 82AJ(4)(b)
TO: [Name of employee]
[Address last known to Secretary or delegate of Secretary]
1. On [ * ] a notice was sent to you under sub-section 82AJ(2) of the Public Service Act
1922.
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought my permission for a further period of absence by letter dated ............ [OR
in person on ...............]
OR (if the author is the Delegate)
**2. Within the period of 2 weeks after that notice was so sent, you explained your absence
and sought the permission of the Secretary for a further period of absence by letter dated
............ [OR in person on ...............]
3. In accordance with sub-section 82AJ(4)(b) of the Act, I have now considered the matter and have decided that the reason you have supplied in your request for the granting of leave to extend your absence is unsatisfactory. I have therefore denied your request.
4. The reasons for my decision are ( here give reasons for denying the request )
5. TAKE NOTICE THAT you are directed to return to duty and that unless you return to duty within the period ending on [ *** ] you will be deemed to have retired from the Australian Public Service upon the expiration of that period.
Dated 19
.............................................
** Secretary or Delegate of the Secretary
Note: Notice should be annotated to indicate the date it was sent.
* Insert date that the notice under s.82AJ(2) was sent.
** Delete whichever is not applicable.
Appendix G
To be used when Secretary or Delegate refuses an application for re-appointment under s.66B
Forfeiture of Office
Public Service Act 1922
Notice of Refusal under Sub-section 66B(2)
TO: [Name of Applicant]
[Address last known to Secretary or Delegate ]
1. On [ * ] you applied to me {OR (if the author is the Delegate) to the Secretary} under sub-section 66B(1) of the Public Service Act 1922 for re-appointment to the Australian Public Service.
2. In accordance with sub-section 66B(2) of the Act, I have now considered your application.
3. TAKE NOTICE that I am not satisfied that you had, in all the circumstances, reasonable grounds for being absent and have decided to refuse your application.
4. My reasons for making that decision are:
(here set out reasons for the decision, including any relevant findings of fact, the evidence upon which they were based and the weight given to those matters mentioned in the application)
5. There is no right of appeal against my decision. However, you may apply to the Merit Protection and Review Agency for a review of the situation.
Dated this day of 19
.................................
** Secretary or Delegate of the Secretary
* Insert date on which person applied for re-appointment.
** Delete whichever is not applicable.
Appendix H
To be used when Secretary or Delegate refuses an application for re-engagement under s.82AK
Forfeiture of Employment
Public Service Act 1922
Notice of Refusal under Sub-section 82AK(2)
TO: [Name of Applicant]
[Address last known to Secretary or Delegate ]
1. On [ * ] you applied to me {OR (if the author is the Delegate) to the Secretary} under sub-section 82AK(1) of the Public Service Act 1922 for re-engagement in the Australian Public Service.
2. In accordance with sub-section 82AK(2) of the Act, I have now considered your application.
3. TAKE NOTICE that I am not satisfied that you had, in all the circumstances, reasonable grounds for being absent and have decided to refuse your application.
4. My reasons for making that decision are:
[ here set out reasons for the decision, including any relevant findings of fact, the evidence upon which they were based and the weight given to those matters mentioned in the application ]
5. There is no right of appeal against my decision. However, you may apply to the Merit Protection and Review Agency for a review of the situation.
Dated this day of 19
...............................................
** Secretary or Delegate of the Secretary
* Insert date on which person applied for re-engagement.
** Delete whichever is not applicable.
Attachment
To be used with Appendices A, B, E, F, G and H
General information
The Industrial Relations Act 1988 - impact on termination of employment
Should you be deemed to have retired, the provisions of section 170DB of the Industrial Relations Act 1988 may need to be taken into consideration. This section deals with mandatory notice periods in most cases of termination of employment. If these provisions are relevant in forfeiture cases, the length of the notice period will depend upon your age and length of service. In your case, if s.170DB applied, you would be entitled to a notice period totalling #### weeks. In accordance with the provisions of section 170DB, you may be paid out instead of receiving notice.
(Where the person is entitled to more than two weeks' notice, add:) Should you be deemed to retire at the end of the two-week period set down in the Public Service Act, you will be paid out the remaining #### weeks instead of receiving the additional notice required by the Industrial Relations Act.
(Where the person is entitled to less than two weeks' notice, add:) Since you are entitled under the Industrial Relations Act to less than two weeks' notice, the provisions of the Public Service Act prevail and you receive two weeks' notice.
As you are currently absent on unauthorised leave without pay, however, this payment will amount to nil. Any other moneys owed to you in respect of outstanding leave credits etc. will be paid as soon as practicable.
Re-engagement after forfeiture of office/employment
Officers and employees who are deemed to have retired under the forfeiture provisions have the right under s.66B(1) or s.82AK(1) respectively to apply to the Secretary or head of agency for re-engagement in the agency. If the Secretary is satisfied that the applicant had, in all the circumstances, reasonable grounds for being absent, the Secretary may re-engage the officer or employee under s.66B(2) or s.82AK(2). Re-engagement is not automatic, but depends on the specific circumstances and the judgement of the Secretary.
Where the Secretary refuses an application for re-engagement, the person may apply to either:
- the Merit Protection and Review Agency for review of the Secretary's decision; or
- the Australian Industrial Relations Commission (AIRC) if the person believes that the termination of his or her employment was harsh, unjust or unreasonable.
Appeal rights in relation to the Australian Industrial Relations Commission (AIRC)
There is uncertainty surrounding the application of the unfair dismissal provisions of the Industrial Relations Act 1988 and the 1995 Service-wide workplace bargaining agreement Continuous Improvement in the Australian Public Service Enterprise Agreement: 1995-96, where it also has some relevance.
You may be entitled to apply under section 170EA of the Industrial Relations Act 1988 to the AIRC in respect of the termination of your employment with the Australian Public Service if you believe the termination of your employment is harsh, unjust or unreasonable. It is unclear at this stage as to whether the AIRC should deal with forfeiture cases; however, this information is provided so that if you are entitled to apply to the AIRC you will be aware of the procedures. The AIRC can provide you with all relevant information on lodging claims about termination of employment.
Your application must be in writing on the appropriate form available from the AIRC. It must be addressed to the Registry of the AIRC in your capital city. Your application must be delivered to that address within 14 days of receiving notice of the termination of your employment. If you intend to post your application as a letter, it must be posted so as to be received within that period. However, you may apply in writing to the AIRC for an extension of the time within which you may lodge your application. The AIRC may or may not grant an extension.
If your application is accepted, the AIRC will refer you to a conciliation hearing for possible settlement. If this does not bring your case to a satisfactory conclusion, the matter can be referred to the Industrial Relations Court of Australia for a legally binding decision, or dealt with by consent arbitration or by private arbitration.
The AIRC can provide you with more detailed information about the processes followed in the conciliation proceedings. You should approach the Registry of the AIRC in your capital city for further information.
You may wish to contact ............................................................... [insert name and telephone number of departmental contact officer] if you have any questions regarding these procedures.
