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Last updated: 10 February 1996

Circular 1996/1: Inefficiency procedures - Amendments

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.

The PSMPC regularly issues circulars to agencies in the Australian Public Service (APS) providing information on a range of matters. This circular provides information on amendments to the procedures for dealing with inefficient officers.

Introduction

This document sets out the procedures to be followed where an officer has not achieved an acceptable standard of work performance. The purpose of these procedures is to enable work performance problems to be dealt with effectively and promptly, while protecting staff from arbitrary or unfair action. The procedures are not to be used for disciplinary or invalidity reasons.

The procedures further streamline the processes for dealing with inefficient staff and replace those contained in the booklet entitled Managing Underperformance - Inefficiency Procedures, which was Gazetted on 12 March 1993.

The procedures implement the arrangements for the Improved Handling of Inefficiency in the APS initially introduced in the Agreement - Improving Productivity, Jobs and Pay in the Australian Public Service: 1992-1994 and revised in the Continuous Improvement in the Australian Public Service Enterprise Agreement: 1995-1996 (the Agreement), and are based on the requirements of the Agreement, the Public Service Act 1922 (the Act) and the Public Service Regulations.

Definitions

Unless the contrary intention appears, words and phrases have the meaning attached to them in the Public Service Act:

a `Secretary' includes an an officer or employee as defined in the Act or to a person appointed, employed or engaged under an Act (not being a person engaged as a consultant under section 4 of the Members of Parliament (Staff) Act 1984) who has been authorised for the purpose by the Secretary;
a 'staff member's supervisor' s includes any person appointed, employed or engaged under an Act who has direct line responsibility for the staff member;
an `Assessing Officer' includes any person appointed, employed or engaged under an Act who has been appointed by the Secretary to assess a staff member's work performance; and
a 'staff member who has not achieved an acceptable standard of work performance' means a staff member who has failed, in the performance of the duties he or she is required to perform, to attain and sustain a standard of efficiency that a person may reasonably be expected to attain and sustain in the performance of those duties.

The procedures apply to an officer employed under the Act other than a Secretary, unattached Secretary or Senior Executive Service officer. The procedures also apply to a continuing employee as defined in Division 10 of Part III of the Act who has been an employee for more than one year. The procedures do not apply to an officer whose appointment to the Service on probation has not been confirmed.

Relationship between inefficiency and other provisions

The Inefficiency Procedures overlap the misconduct provisions of the Act, where it is provided that inefficiency within a staff member's own control can be the subject of misconduct action. Under the Inefficiency Procedures a Secretary is not required to establish whether the inefficiency is within or beyond a staff member's control. It is sufficient to establish the inefficiency.

Where a staff member's inefficiency arises from a deliberate act or acts, the misconduct provisions may be used. As provided under subsection 7(3) of the Act, where the services of a staff member cannot be effectively used because of technological or other changes in the work methods of a department, the staff member is to be treated as excess, not as inefficient. Careful examination may reveal that a case of apparent inefficiency results directly and principally from a medical condition.

In such cases the immediate use of the Inefficiency Procedures would not be appropriate and the matter should initially be dealt with in accordance with the Fitness for Continued Duty instructions. The existence of a medical condition does not prevent a Secretary from taking appropriate action in accordance with the Inefficiency Procedures.

The attached chart provides an overview of the steps involved in the Inefficiency Procedures. The chart is intended for use only as a general illustration of the steps and is not intended to have any other effect.

If there are any inconsistencies between any matter contained in the Inefficiency Procedures and the chart, the provisions of the procedures prevail.

Part 1: The inefficiency procedures: An overview


All normal counselling attempts to bring an individuals' work performance up to the required standard have been unsuccessful.

The supervisor issues the formal warning - if the individual fails to attain and sustain an acceptable level of work performance he or she may be retired or reduced in classification. A copy of the warning is forwarded to the Secretary.

The individual may consent to retirement at any time after the formal warning has been issued - but may still appeal to the Industrial Relations Court.

The Secretary appoints an Assessing Officer (who must both be from outside the individual's immediate work area and have had no previous involvement in the matter) and advises the individual. The assessment period commences.

The Assessing Officer completes the assessment and reports formally to the Secretary on whether or not the individual has attained and sustained an acceptable level of work performance.

Does the report indicate that the individual's standard of work performance is acceptable?
YES		or	NO

The Secretary formally advises the individual that no further action will be taken at the time. The process ends.			The Secretary issues a notice of intention to retire the individual, the individual has seven days to show cause why retirement should not occur.

			The Secretary first considers the individual's comments and then decides what action to take. The Secretary may issue a notice of retirement or, if this is not appropriate, may reduce the individual in classification or take some other action.
Reduction			Retirement
Does the individual consent to reduction.			Notice of retirement issued to take effect in accordance with s. 170DB of the IR Act. The individual may appeal to the Industrial Relations Court.
YES	or	NO
The notice takes effect and the process ends.		The individual may appeal, the Redeployment and Retirement Appeals Committee will confirm or revoke the notice, determining any unresolved grievances.

As provided in the Agreement, after normal counselling the following formal procedures apply. The procedures are not to be used for misconduct purposes or invalidity reasons. The procedures will not be delayed by the lodgement of a grievance under the Public Service Regulations.

Step 1 Issue of a Formal Warning

The inefficiency process commences when a supervisor gives a staff member a formal written Warning that the supervisor considers the staff member has not achieved an acceptable standard of work performance.

The supervisor must send a copy of the Warning to the Secretary.

Content of the Warning

A Warning must detail the required standard of work performance and outline how the staff member's performance does not meet the required standard. A Warning must also advise the staff member that his or her work performance will be assessed over a period usually of 3 months and that the staff member must, during this period, both attain and sustain an acceptable standard of work performance. The Warning is to include advice:

that a person will be appointed to assess the staff member's performance; and
of the possible consequences of failure to achieve an acceptable standard of work performance, including retirement from the Service.

Retirement with consent after receipt of a Warning

Where a staff member has received a formal written Warning the Secretary may, with the prior written consent of the staff member, give the staff member notice of retirement under subsection 76W(l) of the Act. In this case, the retirement takes effect:

14 days after the notice is given to the staff member; or
after the expiration of the period of notice required by Section 170DB(2) of the Industrial Relations Act;

whichever is the later, or after payment to the staff member of compensation instead of the notice required above, calculated in accordance with section 170DB(4) and (5) of the Industrial Relations Act.

Assessment of a Staff Member's Work Performance

Appointment of a person to assess a staff member's performance

On receipt of a copy of the Warning a Secretary appoints a person (the Assessing Officer) to formally assess the staff member's performance and advises the staff member in writing of this appointment.

The Assessing Officer must be:

drawn from outside the immediate work area of the staff member whose performance is to be assessed; and
must not have furnished a report about the matters set out in the formal Warning.

The assessment period commences from the date the Secretary advises the staff member of the appointment of an Assessing Officer.

The length of the assessment period is normally three calendar months, but the period may be shortened where the Assessing Officer and the staff member who is subject of the assessment agree before the assessment commences as to a reasonable alternative and shorter period. Care needs to be exercised in coming to this decision as it is critical that there be sufficient time to assess whether the staff member not only has attained the required standard but also sustains it.

However, the assessment period may also be extended if the Secretary considers that an extension is necessary for the Assessing Officer to complete the assessment.

Role of the Assessing Officer

The Assessing Officer is to advise the Secretary, at the completion of the assessment period, on whether the staff member has attained and sustained an acceptable standard of work performance during the assessment period.

It is not intended that the assessment of the staff member's work performance be overly formal or technical. The staff member being assessed should be advised of the approach to be adopted and that he or she may make submissions to the Assessing Officer. Without limiting the matters he or she may take into account, the Assessing Officer:

(a) must have regard to:

any written selection criteria or job specifications applicable to the staff member's duties; and
any duty statement describing those duties; and
any written work standards or instructions relating to the manner of performance of those duties; and
any information on the required standard detailed in the supervisor's Warning to the staff member.

(b) may have regard to:

appropriate personnel records on the staff member, including any available records which may indicate any patterns in the staff member's work performance over a reasonable period;
with the staff member's written agreement - relevant medical reports on the staff member;
referee or supervisor comments on the staff member's performance during the assessment period; and
documents of the kind described in sub-paragraph (a) above relating to similar duties in the department.

The Assessing Officer must make available to the staff member any documents he or she is taking into account. The staff member may provide written comments on these documents.

Step 3 - Action following completion of assessment period

If the staff member achieved an acceptable standard of work performance, the staff member should be advised in writing that no further action will be taken under these procedures at that time.

If the staff member did not achieve an acceptable standard of work performance during the assessment period, the Secretary gives the staff member a notice of 'Intention to Retire'. The notice must include:

a copy of the Assessing Officer's report;
advice that it is the Secretary's intention to retire the staff member from the Service on the grounds of inefficiency; and
advice that the staff member has 7 days to show cause why the retirement should not take effect.

The invitation to show cause why retirement should not occur is a staff member's primary opportunity to rebut the assessment of his or her work performance. In responding to the notice of 'Intention to Retire' the onus is on the staff member to demonstrate why retirement should not occur.

Step 4 - Action following receipt of the staff member's response to a notice of 'Intention to Retire'

Where the Secretary, after considering any comments by the staff member, is satisfied that the staff member is inefficient, the Secretary may, by notice in writing under subsection 76W(1) of the Act, retire the staff member from the Service. If the Secretary decides not to retire the staff member from the Service, the Secretary may take some other action including reducing the staff member's classification or transferring the staff member under section 50 of the Act.

If the Secretary, after considering the staff member's comments, decides to take no further action under this Part or to defer a decision on whether to take any action, the Secretary should advise the staff member in writing.

Part 2: Administrative arrangements for retirement or reduction in classification

Retirement - date of effect

A notice of retirement takes effect:

14 days after the notice is given to the staff member; or
after the expiration of the period of notice required by Section 170DB(2) of the Industrial Relations Act;

whichever is the later or

after payment to the staff member of compensation instead of the notice required above, calculated in accordance with Section 170DB(4) and (5) of the Industrial Relations Act.
The date of effect of retirement is not affected by a decision to appeal.

Reduction following the issue of a notice of 'Intention to Retire'

Where, after considering a staff member's response to the notice of 'Intention to Retire', the Secretary proposes to reduce the staff member in classification, the Secretary may seek the staff member's consent to the proposed action. Where a staff member agrees to a reduction in classification, the Secretary must explain that he or she is not then able to appeal against the reduction taking effect.

If the Secretary decides to reduce a staff member in classification, the reduction must be to duties which the staff member is qualified to perform, would be able to perform efficiently immediately or within a reasonable period, and could reasonably be required to perform. In relation to permanent staff, reduction must be to a vacant position. For continuing employees, the Act provides that reduction in classification means employment in a lower capacity. A staff member reduced in classification on the grounds of inefficiency is not entitled to income maintenance.

Reduction - date of effect

Where a staff member has given prior written consent to the giving of notice of reduction, the notice takes effect one month after the date of the notice.

Where a staff member has not given prior written consent to the giving of notice of reduction, the notice takes effect:

one month after the notice is given to the staff member; or
if the staff member appeals - the day the appeal is disallowed or withdrawn whichever occurs last.

Notice to include reasons for decision

Where the Secretary gives the staff member a notice of retirement or a notice of reduction in classification, the notice must include or be accompanied by the reasons for the decision and advice of the staff member's right of appeal.

Part 3: Appeal rights and consideration of grievances

Appeals against retirements

A staff member who is given a notice of retirement under subsection 76W(1) of the Public Service Act may appeal to the Industrial Relations Court if he/she believes that the termination of his/her employment is harsh, unreasonable or unjust. Such an appeal is made under Section 170EA of the Industrial Relations Act. Appeals have to be made on the appropriate forms available from the Industrial Relations Court Registry and must be lodged with the Court within 14 days of receiving the notice of retirement.

The lodging of an appeal with the Industrial Relations Court does not prevent the retirement from taking effect within the timeframes set out in Section 170DB of the Industrial Relations Act.

Appeals against reductions

Appeal right

A staff member who is given a notice of reduction under subsection 76W(l) of the Act and who has not given prior written consent to the giving of the notice may appeal to a Redeployment and Retirement Appeal Committee constituted under subdivision D of Division 2 of Part II of the Merit Protection (Australian Government Employees) Act 1984.

Ground of appeal

As provided in the Agreement the ground of appeal is that the reduction would be unreasonable in that:

the staff member met the required standard (as detailed in the Warning issued by the staff member's supervisor); or
there was a serious defect in the application of the formal procedures (as outlined in Parts 1 and 2 of these procedures).

How to lodge an appeal

An appeal must be in writing and must reach the Public Service and Merit Protection Commission (PSMPC) within 14 days of the issue of the notice of reduction. An appeal should be lodged with the local office of the PSMPC in the relevant State or Territory. Any statement a staff member submits in support of his or her appeal must be received by the PSMPC within 21 days of the issue of the notice of reduction.

A staff member should provide a copy of any statement relating to the appeal to his or her agency. An appeal may be dismissed where a staff member, without due cause, fails to submit a statement within the time allowed or fails to appear at a scheduled hearing of the appeal.

How long will an appeal take?

The intention of the parties to the Agreement, both unions and management, is that an appeal will be finalised within 4 weeks from the date of lodgement.

Pending the outcome of the appeal, a staff member will:

remain attached to his or her position; and
subject to normal employment provisions, remain on full pay.

An agency should, as soon as possible after being notified of an appeal, provide the PSMPC with any statement to be considered by an Appeal Committee and should be ready to appear on the date set for the hearing by the PSMPC. A copy of any statement provided to the PSMPC should be provided to the staff member.

Powers of the Appeal Committee

An Appeal Committee may only confirm or revoke the notice of reduction in classification. Where an appeal is successful the notice is revoked without detriment to the staff member.

Consideration of grievances

The inefficiency process will not be delayed by the lodgement of a grievance under the Public Service Regulations and the investigation of a grievance should proceed in the normal manner.

Where a staff member appeals against a reduction in classification, any unresolved grievance by the staff member, in relation to the procedures adopted for the purpose of the inefficiency action, will be considered and determined by the Appeal Committee. In such cases the Secretary should refer the grievance and all relevant papers to the local office of the PSMPC in the relevant State or Territory. The investigation of an unresolved grievance on any other matter should proceed in the normal manner.

Part 4: Miscellaneous provisions

Superannuation and other entitlements

Contributors to the Commonwealth Superannuation Scheme and the Public Sector Superannuation scheme are entitled to superannuation benefits if retired on inefficiency grounds.

A staff member retired on inefficiency grounds is entitled to payment in lieu of long service leave and recreation leave credits on the same basis as if he or she resigned or, after reaching the minimum retiring age, retired. A staff member retired on inefficiency grounds who has not reached the minimum retiring age and has less than 10 years service is not entitled to payment in lieu of long service leave.

Inefficient staff members not entitled to a severance benefit

A staff member retired on the grounds of inefficiency is not entitled to the severance payment available to a staff member who is voluntarily retrenched under the Excess Staff Instructions.

Handling of records in inefficiency cases

The handling of information relating to inefficiency action is subject to the provisions of the Privacy Act 1988 and agencies should be aware of the provisions of this Act and the Guidelines on the Keeping of, and Access to, Personnel Records.

It is essential that an agency make arrangements to ensure the confidentiality of information relating to inefficiency proceedings. Agencies must ensure that such information is housed securely and separately from ordinary personal files, and that access to it is restricted.

Advice to the Public Service and Merit Protection Commission

Agencies are asked to inform the PSMPC of each case where a staff member is retired on inefficiency grounds or reduced in classification.

Gazettal of retirements

Agencies must notify retirements on the grounds of inefficiency in the Gazette.

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