What Does Misconduct in an Official Capacity Mean Under the Public Service Act?

When a public service employee is the subject of disciplinary action, a very common ground for disciplinary action under the Public Service Act 2008 (Qld) (‘Public Service Act’) is that the chief executive may discipline the employee if they are reasonably satisfied that the employee has been guilty of misconduct.

This is often the first ground put forward by a government department or agency, and is usually followed by an alternative ground such as contravening, without reasonable excuse, a provision of the Public Service Act, or a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

The term ‘misconduct’ is defined under section 187 (4) of the Public Service Act. Misconduct under that section is defined as inappropriate or improper conduct in an official or private capacity.

This article will explore the meaning of inappropriate or improper conduct in an official capacity and will provide a general overview of the meaning of inappropriate or improper conduct in an official capacity.

This article should not be relied upon as legal advice, and if you are the subject of disciplinary action, particularly if it relates to allegations of misconduct, we recommend seeking independent legal advice as soon as possible.

You may wish to contact our firm on 07 5532 3133 to discuss your legal matter with us.

 

Onus of Proof

Before discussing what constitutes misconduct by reference to whether such conduct was inappropriate or improper conduct in an official capacity, it is important to establish who has the onus of proving the disciplinary action of misconduct.

The department or agency has the onus of proving that the disciplinary allegations against the employee are capable of being substantiated on the balance of probabilities, and if substantiated, the employee’s conduct constitutes misconduct within the meaning of section 187(4) of the Public Service Act.

 

Standard of Proof

Additionally, the quality of the evidence relied upon to substantiate any disciplinary allegation must be consistent with the Briginshaw principle.

You can read more about why responding to allegations of misconduct may not be as simple as you think here: Workplace Investigations And Responding To Allegations Of Misconduct

 

What Constitutes Inappropriate or Improper Conduct In an Official Capacity?

In the matter of Weaver v State of Queensland (Queensland Corrective Services) [2021] QIRC 413, one of the questions that needed to be decided was whether the alleged conduct constitutes ‘misconduct’ within the meaning of section 187(1)(b) of the Public Service Act.

In deciding this question, McLennan IC cited and adopted the approach in The Australian Workers’ Union of Employees, Queensland v Metro North Hospital and Health Service [2020] QIRC 79:

In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.

Determining whether misconduct satisfies the threshold of inappropriate or improper conduct will depend on the alleged circumstances relevant to each disciplinary allegation by reference to the above excerpt.

It is imperative that if you are the subject of disciplinary allegations which could amount to misconduct that you engage a solicitor with experience and knowledge of how to properly apply the above excerpt. Failing to properly apply the above excerpt can be deleterious to the outcome of the disciplinary process.

 

Responding to Alleged Misconduct

Government departments and agencies are bound by the principles of natural justice, which includes providing a person who is the subject of disciplinary allegations with an opportunity to respond. This is often referred to as the ‘show cause’ process.

In a previous article we discuss some key considerations when deciding to respond to disciplinary allegations. You can view that article here: To Show Cause Or Not Show Cause – Is That Really A Question?

If you are debating about whether you should respond to allegations of misconduct, we recommend that you obtain independent legal advice as soon as possible so that you can ascertain your position and protect your interests as early as practical.

 

Misconduct, Corrupt Conduct and Criminal Charges

While allegations of misconduct are dealt with under the Public Service Act, depending on the nature of the disciplinary allegations, there is also scope for the allegations to constitute corrupt conduct, or criminal charges.

For this reason, it is particularly important that if you are the subject of disciplinary allegations that you seek legal advice as soon as practicable.

If you would like to find out more about corrupt conduct you can view our article about public servants and corrupt conduct here: Public Servants And Corrupt Conduct

 

Conclusion

If you are the subject of any disciplinary allegations, particularly relating to misconduct, there are other potential consequences which may follow, and which should be given important consideration when responding to any disciplinary allegations.

Our litigation team are adept at assisting clients with disciplinary matters by protecting their interests and assisting clients with responses to allegations of misconduct and other serious disciplinary allegations.

You can contact our litigation team on 07 5532 3133 to discuss your matter with us.