Public Service Act 1999 Advice No. 11: Managing underperformance

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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 provide information about the changed heads of power in the new Public Service Act for managing underperformance. In addition this advice highlights the need for agencies to ensure that their performance management systems provide a framework which allows for the proper management of cases of underperformance.

Background

3 Underperformance in this advice includes unsatisfactory performance due to inefficiency, physical or mental incapacity (lack of fitness for continued duty) or loss of an essential qualification.

4 Under s.76X of the old Act, the Public Service Commissioner on 25 February 1998 signed a principles-based direction in relation to procedures for dealing with inefficiency, fitness for continued duty and loss of an essential qualification. Advice concerning this reform was included in PSMPC Circular 1998/2 at section M and attachments M1 and M2. This Direction required each agency to develop suitable procedures to manage instances of underperformance, taking into account the principles set down in the Commissioner's Direction by 30 June 1998, at the latest.

5 Section 76W of the old Act permitted Agency Heads to transfer an officer, to reduce the officer's classification or retire an officer on a number of grounds. Termination decisions were subject to the unfair dismissal provisions of the Workplace Relations Act 1996. Officers whose classification had been reduced without consent were able to appeal against the decision to a Redeployment and Retirement Appeal Committee established by the Merit Protection and Review Agency.

Changes under the new legislation

6 The Commissioner's Direction of February 1998 will be repealed with the commencement of the new Act. It is expected, however, that agencies will be able to continue to apply their performance management systems, albeit under different heads of power. In addition, it is expected that the new Commissioner's Direction relating to Value (k) will make specific reference to managing cases of underperformance. The specific provisions are as follows:

APS Value (k) (s.10(1)(k)) of the new Act provides that the APS focuses on achieving results and managing performance. The Public Service Commissioner's Direction in relation to this Value is expected to require an Agency Head to ensure that there is a fair and open performance management system established in the Agency. The system is to provide each APS employee with a clear statement of performance expectations and it must provide a framework in which the agency is able to manage any cases of underperformance.
Section 23(4)(e) of the new Act provides that an Agency Head cannot reduce the classification of an APS employee without the employee's consent except in certain circumstances, including on the ground of unsatisfactory performance of duties at the higher classification.
Section 29(3)(c) of the new Act dealing with termination of employment includes unsatisfactory performance of duties as one of the grounds for terminating a person's employment.
It is expected that the power to direct an employee to attend a medical examination under certain circumstances, formerly contained in Public Service Regulations 46-51, will be included in the new Public Service Regulations. The regulation is also expected to contain an obligation on the employee to give a copy of the medical report to the Agency Head. The terms of this regulation are intended to obviate the need to obtain the prior consent of an employee to give access to the report, which agencies might otherwise be obliged to do in relation to ACT employees who may be affected by the ACT Health Records (Privacy and Access) Act 1997.
Section 33 of the new Act provides for an APS employee to have an entitlement to a review of actions that relate to his or her APS employment, except in the case of termination of employment. An employee terminated under s.29(3)(c) of the new Act continues to be entitled to seek a remedy from the Australian Industrial Relations Commission. A separate advice will be issued on this matter.

Implications for agencies

7 It is expected that agencies will be able to continue to apply their existing performance management systems under the new Act, but it is strongly recommended that agencies check that any procedures, particularly in relation to managing cases of underperformance, are consistent with the new Act and subordinate legislation. It is not expected that any transitional legislation-based arrangements will be necessary. However, where cases have commenced under existing arrangements before 5 December, it will be necessary to check the terms of relevant provisions in Certified Agreements or CEO Instructions before proceeding to finality. It should be possible from 5 December to use the heads of power contained in the new Act for cases commenced before that date.

Further Advice

8 This advice should be read in conjunction with the related advices:

Breaches of the Code of Conduct; and
Non-Performance of Duties.

9 PSMPC contact is ph: 02 6202 3859.

Superseded advice

10 A number of earlier PSMPC publications have now been superseded, although some do contain useful good practice advice which may be worth retaining until updated material is published. These are as follows:

PSMPC Circular 1998/2 (Section M and Attachments M1, M2)
Essentials Booklet No. 1, Managing Poor Performance, 1996 (The checklist on page 5 is particularly useful)
Fitness for Continued Duty Interim Guidelines, 1995
Loss of an Essential Qualification Guidelines, 1990
The booklet Counselling for Better Work Performance, 1997 (produced jointly with Comcare Austalia) continues to contain relevant good practice advice.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

18 November 1999