The recent decision of Deputy President Merrell in Bentzen-v-Hinchinbrook Shire Council on 13 May 2021, is an important reminder for local government employers to comply with the prescriptive requirements of the Local Government Act 2009 (LG Act) and Local Government Regulations 2012 (LG Regulation) when disciplining local government employees.
The decision
Ms Bentzen challenged the validity of the termination of her employment by the Hinchinbrook Shire Council (Council) on the basis that the Council had failed to comply with the provisions of the LG Act and LG Regulation.
Deputy President Merrell noted that the power to discipline a local government employee is vested in the Chief Executive Officer (CEO) of Council by s 197 of the LG Act which stated that a CEO may take disciplinary action against a local government employee and that regulation may prescribe when disciplinary action may be taken and the types of disciplinary action that may be taken.
Section 278 of the LG Regulation states that the division prescribes for s 197 of the LG Act, when the CEO may take disciplinary action and the types of disciplinary action that may be taken.
Section 280 of the LG Regulation prescribed the types of disciplinary action which could be taken, noting if the disciplinary action to be taken is dismissal, this dismissal must comply with the requirements of the IR Act.
Section 283 (1) of the LG Regulation states that before the CEO takes disciplinary action against a local government employee, the CEO must give the employee notice of the following:
- the disciplinary action to be taken;
- the grounds on which the disciplinary action is taken;
- the particulars of conduct claimed to support the grounds; and
- a reasonable opportunity to respond to the information contained in the notice.
Deputy President Merrell found that the QIRC did have the power to declare the dismissal of a local government employee was invalid due to non-compliance with s 283 of the LG Regulation given its power to hear and decide all matters arising out of an industrial matter and to determine all questions arising out of the employee’s rights with respect to the disciplinary action taken against her. He further determined that s 283 of the LG Regulation was valid as it was necessary or convenient to be prescribed for carrying out or giving effect to the authorising law or other law.
Deputy President Merrell noted the decision of Martin J President in Promnitz-v-Gympie Regional Council [2015] ICQ 011 authoritatively established that:
- the provisions of s 283 of the LG Regulation were designed to provide an employee with notice of the allegations made against them and the action proposed to be taken based on those allegations and to then give them a reasonable opportunity to respond to the information contained in the notice;
- the provisions were mandatory in form; and
- the proper construction of s 283 is that a failure to give notice in the terms set out in that section results in the invalidity of any action taken by a local authority with respect to discipline under the LG Regulation.
Deputy President Merrell found Council had not complied with the mandatory requirements of s 283 of the LG Regulation before dismissing Bentzen in that it did not give her:
- written notice of the disciplinary action to be taken against her;
- the grounds on which the disciplinary action was to be taken; and
- the particulars of the conduct claimed to support the grounds.
Accordingly, the result was that Ms Bentzen’s dismissal was invalid.
Deputy President Merrell stated that the purpose of the procedures in s 283(1) of the LG Regulation was to ensure natural justice was observed before disciplinary action being taken. It was a requirement of fairness so that when a decision was made which would deprive a person of some right or interest or the legitimate expectation of a benefit, they were entitled to know the case sought to be made against them and given an opportunity of replying. He said he would not be acting in good conscience and would be ignoring the substantial merits of the case if he was not to issue a declaration that Ms Bentzen’s dismissal was invalid because as a matter of law Council was required to comply with s 283(1) of the LG Regulation.
He also considered whether Ms Bentzen had been unfairly dismissed and determined that her dismissal was unjust based on the failure to comply with s 283 of the LG Regulation and the CEO’s evidence that before meeting with Ms Bentzen, he formed the view that she had engaged in misconduct for which she could be dismissed without allowing her to be heard about the conclusion, that he had not given her prior notice that the disciplinary matters were going to be discussed involving allegations of serious misconduct which may result in her dismissal.
Further directions were made in relation to other orders sought by Ms Bentzen regarding lost remuneration, continuity of service and that she be restored to her former position with Council which were to be the subject of further determination.
Takeaways
However, given that the decision to terminate Ms Bentzen was found to be invalid, it seems clear that she will be placed in a position in which she would have been if the decision had not been made.
This decision highlights the importance of compliance with the LG Act and LG Regulation when disciplining an employee. Whilst it may be tempting to shorten a disciplinary process and not prepare a detailed show cause notice, the provisions of the LG Act and LG Regulation are mandatory and must be complied with.
If you have any concerns about your disciplinary processes or are considering terminating a local government employee, please do not hesitate to contact Matt Bell on 1300 068 736 for advice.
This publication has been carefully prepared but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
