Public Service Act 1999 Advice No. 10: Non-performance of duties

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Note: This document has not been updated to reflect changes that may flow from the WorkChoices legislation enacted on 27 March 2006

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.

2 The purpose of this advice is to outline the options available to Agency Heads for dealing with employees who fail to perform their duties because of unauthorised absence ("non-performance of duties").

Background

3 The Public Service Act 1922 (the old PS Act) sections 66A and 66B made provision for forfeiture of office and sections 82AJ and 82AK covered forfeiture of employment. Agencies were able to commence forfeiture procedures only after an officer or employee had been absent without permission for a continuous period of at least four weeks. (It should be noted that before 15 March 1998 short periods of unauthorised absence were dealt with as misconduct under old Reg.13 and s.56 of the old Act. When Reg.13 was repealed on 15 March 1998, short unauthorised absences were able to be dealt with under s.56 as breaches of the Code of Conduct.) Termination procedures were subject to the unfair dismissal provisions of the Workplace Relations Act 1996. There was specific provision under s.66B and s.82AK for officers or employees whose employment had been terminated on these grounds to apply to their former Agency Head to be re-appointed or re-engaged.

Changes under the Public Service Act 1999

4 Under s.29(3) of the new PS Act, Agency Heads are able to terminate the employment of an ongoing employee on the ground of "non-performance of duties". Agency Heads may terminate the employment of a non-ongoing employee under s.29(1) at any time, provided this is in accordance with s.170CC of the Workplace Relations Act 1996. The new PS Act does not:

prescribe the conditions under which Agency Heads can take termination action on the basis of non-performance of duties; or
contain any provision for reinstatement equivalent to s.66B or s.82AK of the old PS Act (see paragraph 7 below).

Implications for agencies

5 From 5 December 1999, termination of employment of an ongoing employee for "non-performance of duties" under s.29(3)(c) may apply either to an extended unauthorised absence or to frequent short periods of unauthorised absence. It is expected that transitional regulations will require any action commenced under the old Act but not completed by 5 December 1999 to continue to finality.

6 Agencies will need to establish procedures covering termination of employment on the ground of non-performance of duties because of unauthorised absences and to make this information generally available to staff. Agencies are advised to check, as far as is reasonable, whether there are any mitigating factors contributing to the absences, e.g. a medical condition, before completing termination action.

7 An ongoing employee whose employment is terminated under s.29(3)(c) is entitled to seek a remedy from the Australian Industrial Relations Commission under the provisions of the Workplace Relations Act. In relation to non-ongoing employees, agencies are advised to refer to the advice number 9, Termination of Employment - General.

Related advice

8 This advice should be read in conjunction with related advices

number 5 - Breaches of the Code of Conduct,
number 9 - Termination of Employment - General, and
number 11 - Managing Underperformance.

9 PSMPC contact is ph: 02 6202 3859