Permanent demotion for poor performance deemed excessive
In a decision handed down on 26 September 2017, the Industrial Relations Commission imposed a cap on the period of demotion for a Corrective Services Assistant Superintendent following incidents of unsatisfactory performance.
Mr Frank Cunningham was employed by the Department of Justice (Corrective Services NSW) for approximately 26 years and held the role of Assistant Superintendent for approximately 16 years.
Corrective Services took disciplinary action in against Mr Cunningham on the basis of performance determined to be unsatisfactory, following a Performance Management Plan commenced in October 2016 to deal with a list of examples of performance/behaviour. During the course of the PMP, it was alleged a number of other incidents demonstrating poor performance took place, despite Mr Cunningham being provided with coaching and other assistance. Consequently, pursuant to s 68(2) of the Government Sector Employment Act 2013 (the “GSE Act”), Mr Cunningham was demoted in rank to Correctional Officer, amounting to a salary reduction of $41,969 gross per annum, effective 29 March 2017, transferred to another facility and placed on a Performance Improvement Plan (“PIP”).
Mr Cunningham appealed his demotion, claiming there was no, or an inadequate, foundation for the disciplinary action taken by Corrective Services.
Consideration and finding
Recently appointed Commissioner Jane Seymour considered the Applicant’s job performance alongside his Assistant Superintendent role description which sets out key accountabilities, key relationships, a capability summary and focus capabilities. She also took account:
cumulative evidence provided to the Commission of a number of incidents which took place in the context of his PMP;
evidence of a commendation for services in 2011, as well as a reprimand in 2015 for posting threatening, as well as work related information on Facebook;
the recent successful completion of his PIP.
Based on these considerations, Commissioner Seymour deemed the disciplinary decision to permanently demote Mr Cunningham to be excessive in the circumstances and decided to order his reinstatement to Assistant Superintendent rank as well as backpay to the date he completed his PIP ie 1 August 2017.
Comments on the decision
It is interesting that in the judgment of Commissioner Seymour in this matter differed from that of Commissioner Murphy in Kuzma v State Transit Authority Group of the Transport Service of NSW  NSWIRComm 1061 (13 September 2017), which confirmed a 3 month demotion in a case involving a bus operator who allegedly used abusive and offensive language towards a colleague and left a bus unattended.
This suggests the Commission has a willingness to support employers using demotion as a disciplinary tool for underperforming staff, provided a cap on the period of demotion has been set by the employer.
Tips for public sector and local government
In her decision Commissioner Seymour made a number of comments about the lack of documentation made by Mr Cunningham’s manager during the PMP. Accordingly, to avoid such criticism, responsible managers overseeing processes to deal with poor performance should be in a position to provide sufficient details of all of matters that are causing concern and clearly communicate to the employee the alleged shortcomings in their performance by way of concrete examples, not broad terms as used by Corrective Services.
Additionally, each alleged deficiency should be referenced to the relevant parts of the employee’s Role Description and/or the Code of Conduct. An explanation should be given to the employee of how the performance fails to meet each such part and these should be confirmed in writing to the employee.
Graham Evans is the Managing Partner of O'Connell Workplace Relations, a Sydney-based provider of independent investigations into workplace issues. He has over 20 years' experience in working with NSW State and Local Government to deal with complex issues within their workplaces.