The new Public Sector Commission Workplace Investigations Directive 01/24, which replaces Directive 17/20, was issued on 10 June 2024. This directive outlines how complaints or allegations about the performance or personal conduct of a public sector employee under the Public Sector Act 2022 (Act) are investigated and introduces several key changes from the previous directive.
What has changed?
The new directive expands coverage to all public sector employees and entities as defined in the Act. While generally consistent with the previous directive, the new directive includes several key changes:
- requires (rather than recommends) consideration of guidance material issued by the Public Sector Commissioner, including the new 'Managing Workplace Investigations - A practical guide for the Queensland Public Sector' (Workplace Investigations Guide)
- stipulates that the chief executive cannot conduct a management enquiry instead of a workplace investigation if the intent is to avoid the responsibilities and obligations required by a workplace investigation
- mandates that the investigator must not be involved in approving the terms of reference for the investigation
- reminds chief executives to consider their obligations under the Managing the risk of psychosocial hazards at work Code of Practice 2022
- expressly states that where necessary to meet the requirements of procedural fairness, the subject officer must be told the identity of the complainant and/or witness, and that the subject officer must be provided with evidence relevant to the allegations
- provides confirmation that an external investigator is considered a functional 'public entity' under the Human Rights Act 2019 and is therefore subject to the human rights obligations of the entity when carrying out an investigation
- removes the requirement for the Public Sector Commission to conduct periodic reviews at 12 and 18 months, as these reviews will now be undertaken by the chief executive of the respective public sector entity.
Similarly to other directives issued since the Act commenced, the new directive also:
- provides information about the obligations of a chief executive in relation to reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples
- notes the obligations of a chief executive in relation to equity, diversity and fostering a respectful and inclusive workplace culture.
Changes in the guidance material
The Public Sector Commission also issued a new Workplace Investigations Guide alongside the new directive, which includes updated templates for various steps in the investigation process.
The biggest change in the guidance material is the publication of the new 'Periodic review guide – discipline, suspension and workplace investigation reviews' document. This guide :
- contains helpful tables summarising various aspects of review processes. One table outlines when each type of process commences for the purpose of calculating the review periods. Another table summarises the mandatory considerations for each type of process
- outlines considerations relevant to all discipline, suspension and workplace investigation reviews, namely human rights and the procedural fairness considerations of the fair hearing rule and the rule against bias
- attaches templates for discipline reviews, suspension reviews and workplace investigation reviews.
Each review template comprehensively lists all the decision components that must be considered to determine whether the discipline, suspension or workplace investigation process has complied with the Act and relevant directive and whether the process ought to be extended. The templates also prompt the reviewer to specify the source material and/or reasons for considering each component to be satisfied or not satisfied.
If you have any questions on discipline, suspension or workplace investigations processes, please get in touch with a member of our team.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.