New South Wales Consolidated Acts

GOVERNMENT SECTOR EMPLOYMENT ACT 2013 - SECT 69

69 Misconduct--Public Service and other prescribed government sector employees

(1) In this section--

"detrimental action" has the same meaning as in the Public Interest Disclosures Act 2022 .

"detrimental action offence" has the same meaning as in the Public Interest Disclosures Act 2022 .

"government sector agency" means--

(a) a Public Service agency, and

(a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990 , and

(b) any other government sector agency prescribed by the regulations for the purposes of this section.

"misconduct" extends to the following--

(a) a contravention of this Act or an instrument made under this Act,

(b) taking action that constitutes a detrimental action offence,

(c) taking detrimental action against another person in circumstances where--

(i) the person taking the detrimental action suspects, believes or is aware, when taking the action, that any person has made, may have made, may make or proposes to make a disclosure about alleged misconduct by an employee of a government sector agency, and

(ii) the suspicion, belief or awareness, whether correct or incorrect, is a contributing factor to the taking of the detrimental action,

(d) a conviction or finding of guilt for a serious offence.

The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment.

"serious offence" means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales).

(2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section.

(3) The government sector employment rules may deal with the following--

(a) misconduct by employees of government sector agencies,

(b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness).

(4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions--

(a) terminate the employment of the employee (without giving the employee an opportunity to resign),

(b) terminate the employment of the employee (after giving the employee an opportunity to resign),

(c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee),

(d) reduce the remuneration payable to the employee,

(e) reduce the classification or grade of the employee,

(f) assign the employee to a different role,

(g) caution or reprimand the employee.

(5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee.

(6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations.

Note : See also section 82(2) for inquiries into conduct of heads of agencies.