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Appendix B: Disciplinary and Non-disciplinary Authorities

1. Provincial Comparison of Disciplinary and Non-disciplinary Authorities (2004)

Jurisdiction: Federal

Legislation and Regulations

Financial Administration Act

• The Treasury Board may establish standards of discipline in the Public Service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct (paragraph 11(2)(f))
• The Treasury Board may provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct (paragraph 11(2)(f))
• Disciplinary action, termination or demotion must be for cause (subsection 11(4))

Policies, Guidelines, Manuals, etc.

Guidelines for Discipline

Values and Ethics Code for the Public Service

Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace

Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown

Policy on Prevention and Resolution of Harassment in the Workplace

[list not exhaustive]

Jurisdiction: Alberta

Legislation and Regulations

Public Service Act

• Provides that an employee may be dismissed, suspended, or subjected to other disciplinary action by the employee's department head if:
  1. the employee is unable to satisfactorily perform the employee's duties; or
  2. for misconduct, improper conduct, or negligence (subsection 25(1))
• Provides that a code of conduct and ethics could be established and a system of disclosure for financial information
• No related regulations

Policies, Guidelines, Manuals, etc.

Code of Conduct and Ethics for the Public Service of Alberta

Human Resources Directives

Includes a directive on the authority to discipline, harassment, performance management, etc.

Comments

• Note that discipline is not just for misconduct, it is for "improper conduct or negligence" and could be imposed on someone who "is unable to satisfactorily perform" his or her job
• Merges the concepts of disciplinary action for misconduct, improper conduct, and negligence and non-disciplinary action for an employee who is unable to perform his or her duties

Jurisdiction: British Columbia

Legislation and Regulations

Public Service Act

• The agency head, a deputy minister or an employee authorized by a deputy minister may suspend an employee for just cause from the performance of his or her duties (s.22(1))
• The agency head, a deputy minister or an individual delegated authority under section 6(c) may dismiss an employee for just cause (s.22(2))
• Regulations may be made on all matters respecting discipline, suspension and dismissal of employees (s.25(1))
• No related regulations

Jurisdiction: Manitoba

Legislation and Regulations

The Civil Service Act

• The commission shall, by regulation, establish standards of conduct for members of the civil service for the purpose of maintaining discipline within the civil service (s.24(1))
• The commission shall, by regulation, establish penalties to be imposed by the commission or employing authorities for breach of discipline by a member of the civil service (s.24(2))

Conditions of Employment Regulation

• If someone with supervisory authority determines that disciplinary action is necessary, the supervisory authority may reprimand the employee, refer the matter to a higher authority, or recommend the dismissal or termination, suspension or other action to the employing authority (s.18(1))

Policies, Guidelines, Manuals, etc.

Principles and Policies for Managing Human Resources

• Includes a section on criminal charges

Also see Saskatchewan HR Manual

• Includes a section on conflict of interest

Conflict of Interest Policy

Jurisdiction: New Brunswick

Legislation and Regulations

Financial Administration Act

• Provides that the Board may establish standards of competence and discipline in the public service and prescribe the financial and other penalties, including suspension and discharge, that may be applied for incompetence, incapacity, or for breaches of discipline or misconduct (s.6)
• No related regulations

Policies, Guidelines, Manuals, etc.

Conflict of Interest Policy

Harassment in the Workplace Policy

Comments

• Merges the concepts of disciplinary actions for misconduct and non‑disciplinary actions for incompetence or incapacity
• Only jurisdiction, other than federal jurisdiction, that provides the authority for financial and human resources management in the FAA

Jurisdiction: Newfoundland and Labrador

Legislation and Regulations

Public Employees Act

• The Lieutenant-Governor in Council may dismiss a public employee or suspend him or her from duty or take other measures of disciplinary action against him or her for inefficiency, insobriety, insubordination, misconduct, dishonesty, or other just cause (s.6(1))

Comments

• Discipline may be imposed for inefficiency, insobriety, insubordination, misconduct, dishonesty, or other just cause

Jurisdiction: Northwest Territories

Legislation and Regulations

Public Service Act

• Provides that a deputy head may suspend an employee for up to 30 days, reduce the employee's pay, or demote an employee where the deputy head is of the opinion that the employee is guilty of misconduct or incompetence (s.29(1))
• An employee may appeal the suspension, reduction of pay, or demotion to the Minister (s.29(2))
• A demotion under this section "may be for a fixed period" (s.29(5))
• In any case where it is alleged the employee is guilty of misconduct or incompetence, and the Minister wants to investigate the matter, the Minister may suspend an employee up to 30 days (s.30(1)) and investigate the matter
• The Minister may extend the period of suspension of an employee but each extension must not exceed 30 days (s.30(2))
• The maximum suspension time is 60 days (s.30(3))
• On completion of the investigation, if the Minister is satisfied that the employee is guilty of misconduct or incompetence, the Minister shall dismiss or demote the employee, suspend the employee, or take other action the Minister considers appropriate (s.32(1))
• Where the Minister dismisses an employee, the Minister shall give notice in writing and reasons for it (s.33)

Public Service Regulations

Policies, Guidelines, Manuals, etc.

Human Resources Manual

Includes a section on employee discipline (including disciplinary suspension or demotion, and dismissal)

Includes a section on suspension pending investigation

Includes a section on ethics

Comments

• Merges the concepts of discipline for misconduct and non‑disciplinary action for incompetence
• Provides that an employee's pay may be reduced and also provides for disciplinary demotion or the demotion may be for a fixed period; confirmed
• Suspension during investigation cannot exceed 30 days unless extended by the minister

Jurisdiction: Nova Scotia

Legislation and Regulations

Civil Service Act

• Provides that a deputy head may suspend an employee (s.26)
• Provides that a deputy head may dismiss an employee in accordance with regulations or the terms of a collective agreement (s.27)
• No related regulations

Jurisdiction: Nunavut

Legislation and Regulations

Public Service Act (Nunavut)

• Exactly the same as the Northwest Territories' Public Service Act

Jurisdiction: Ontario

Legislation and Regulations

Public Service Act

• Provides for suspension during investigation (s.22(1))
• A deputy minister may for cause remove from employment without salary any public servant in his or her ministry for a period not exceeding one month or such lesser period as the regulations prescribe (s.22(2))
• A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his or her ministry (s.22(3))
• Includes a section on political activity rights and whistle‑blower protection

Regulation: Rules of Conduct for Public Servants

• Lists prohibited conduct such as not using a position to benefit oneself, one's spouse, same-sex partner, or children; not allowing the prospect of one's future employment to detrimentally affect the performance of duties; not disclosing confidential information except in accordance with the law; no hiring or entering into contracts with one's spouse, same-sex partner, child, parent, or sibling, etc.

Comments

• Deputy minister may suspend an employee from employment during an investigation (and may withhold salary)
• Deputy minister may for cause remove an employee from employment without pay pending investigation for a period not exceeding one month

Jurisdiction: Prince Edward Island

Legislation and Regulations

Civil Service Act

• A deputy head or authorized official may, for cause, reprimand or suspend an employee in his or her department or agency (s.32(3))
• A department head or a deputy head may, for cause, demote or dismiss an employee in his or her department or agency (s.32(4))

Civil Service Act Regulations

• An employee who fails to maintain proper standards of conduct or commits a disciplinary offence, shall be subject to disciplinary action (s.30)
• The following is a general listing of disciplinary offences, which should not be taken as complete:
• attendance, including lateness, incorrect time reporting, abuse of leave, leaving without leave, leaving work without authorization;
• work performance, including negligence, unsatisfactory work performance;
• personal behaviour at work, including breach of the employer's rules or policies, inattention to duties or carelessness, falsifying records or expense claims, harassment, use of obscene language, unruly behaviour, fighting, or assault, use of alcohol or drugs, insubordination, theft or gambling, smoking in forbidden areas, indictable offence, or summary conviction offence, misuse of government property or services including the use of such property or services for purposes other than for government business;
• personal behaviour away from work including any act that would bring the civil service into disrepute, or indictable offence.
• Disciplinary action should be used only after other corrective measures have been considered (s.32(1))
• When it is necessary for the deputy head to remove an employee from a place of employment to investigate the employee's conduct because of a suspected disciplinary offence, the deputy head may, subject to the approval of the Department, suspend the employee for a period of up to 30 days. (s.32(3))
• The deputy head may extend the period of suspension for an additional 30 days (s.32(4))
• The following is the scale of disciplinary actions: oral reprimand, written reprimand, suspension, dismissal or demotion (s.33(1))
• An employee demoted for disciplinary reasons shall not be eligible for a salary increment for six months from the date of the demotion (s.35) reporting, abuse of leave, leaving without leave, leaving work without authorization;
• work performance, including negligence, unsatisfactory work performance;
• personal behaviour at work, including breach of the employer's rules or policies, inattention to duties or carelessness, falsifying records or expense claims, harassment, use of obscene language, unruly behaviour, fighting, or assault, use of alcohol or drugs, insubordination, theft or gambling, smoking in forbidden areas, indictable offence, or summary conviction offence, misuse of government property or services including the use of such property or services for purposes other than for government business;
• personal behaviour away from work including any act that would bring the civil service into disrepute, or indictable offence.
• Disciplinary action should be used only after other corrective measures have been considered (s.32(1)).
• When it is necessary for the deputy head to remove an employee from a place of employment to investigate the employee's conduct because of a suspected disciplinary offence, the deputy head, may, subject to the approval of the Department, suspend the employee for a period of up to 30 days. (s.32(3))
• The deputy head may extend the period of suspension for an additional 30 days. (s.32(4))
• The following is the scale of disciplinary actions: oral reprimand, written reprimand, suspension, dismissal or demotion. (s.33(1))
• An employee demoted for disciplinary reasons shall not be eligible for a salary increment for six months from the date of the demotion. (s.35)

Comments

• Civil Service Act Regulations lists conduct that could be considered "disciplinary offences," such as a breach of the employer's rules or policies, falsifying records, etc.
• Demotion is available as a sanction, for cause
• Suspension during investigation is allowed for 30 days (unless extended by deputy head)

Jurisdiction: Quebec

Legislation and Regulations

Public Service Act

• The Act legislates ethics and discipline together: "A public servant shall exercise his powers and perform his duties in accordance with the standards of ethics and discipline prescribed in this Act or in the regulations under it." (s.4)
• The Act legislates the duty of loyalty, impartiality (perform his or her duties in the public interest, to the best of his or her ability…), confidentiality, conflict of interest, gifts, undue benefit, political neutrality, political opinion, and membership in a political party (Chapter II, Rights and Obligations of Public Servants, Division I, Conditions of Service)
• The Act provides for disciplinary action, including dismissal for contravention of the standards of ethics and discipline, "according to the nature and gravity of the fault" (s.16), providing that discipline is to be meted out by deputy heads. (s.17)
• The Act provides for demotion or dismissal of an employee who is incompetent or unable to perform his or her duties. (ss.18‑23)

Regulation respecting ethics and discipline in the public service

• Regulates the standards of ethics and discipline applicable to public servants, including information management (non‑disclosure of public information, public servants cannot obtain confidential information not required for the performance of their duties), conflict of interest, gifts, etc.
• Regulates provisional suspension (ss.15 – 17) and states that disciplinary measures consist of reprimand, suspension, or dismissal (s.18)

Comments

• Standards of ethics are legislated in the Public Service Act, along with standards of discipline.
• Disciplinary action may be taken against a public servant who contravenes the standards of ethics and discipline.
• The Act deals with administrative measures separately.
• The Act does not provide for whistle‑blowing.

Jurisdiction: Saskatchewan

Legislation and Regulations

Public Service Act

• A permanent head may suspend an employee without pay for disciplinary reasons (s.27)
• Provides that a permanent head may dismiss or demote any employee in his or her department when he or she considers it to be in the interest of the public service to do so (s.28(1))
• A permanent head may dismiss an employee for misconduct (s.28(3))
• The Public Service Regulations, 1999
  A permanent head may demote an employee (s.10)
• Conflict of interest provision (s.95)

Policies, Guidelines, Manuals, etc.

Human Resources Manual

Includes a section on corrective discipline that states that corrective discipline applies only to culpable misconduct: culpable misconduct is behaviour that has the following characteristics:

1. the employee knows, or could reasonably be expected to know, what is required;
2. the employee is capable of carrying out what is required;
3. the employee chooses to perform in a manner other than as required.

Includes a section on performance improvement that deals with non-culpable or blameless performance problems where the means for resolving such problems exist at work

Comments

Very broad provision to dismiss or demote any employee when "in the interest of the public service do so"; although this provision has been in place since 1947, we found no reported cases of a dismissal or demotion (for mismanagement or for non-culpable behaviour) pursuant to this specific authority.

Behaviour that is considered "culpable misconduct" is described in the HR Manual to clearly capture behaviour such as an employee who performs in a manner "other than as required"

Jurisdiction: Yukon

Legislation and Regulations

Public Service Act

• A deputy head may suspend or dismiss an employee for misconduct, neglect of duties, or refusal or neglect to obey a lawful order; if employee is incapable of performing duties; if employee is unsatisfactory in performing duties, if employee is charged with a criminal offence making it inadvisable to continue with his or her duties (s.121)
• Provides the authority to suspend (s.122)
• Provides that a deputy head may not appeal the suspension, dismissal, or release to an adjudicator (s.142)
• Provides for conflict of interest provisions (s.190)

Public Service Commission Regulations

• Provides that a deputy head may reprimand, suspend or dismiss an employee

Policies, Guidelines, Manuals, etc.

Application guidelines issued by the Public Service Commission to assist with the interpretation of collective agreements deals with suspensions, discipline and union representation, performance management, etc.

Comments

Merges the concepts of disciplinary and non‑disciplinary suspension or dismissal for misconduct, neglect of duties, refusal to obey a lawful order, incapacity, unsatisfactory performance of duties, and being charged with a criminal offence

2. Comparison of Disciplinary and Non-disciplinary Authorities in Australia, New Zealand, and the United Kingdom^[20] (2004)

Country: Australia (federal)

Legislation and Regulations

Public Service Act, 1999

Key Disciplinary Authorities

Legislates a Code of Conduct (s.13)

Includes a list of 13 behaviours:

• behave honestly and with integrity in the course of Australian Public Service (APS) employment
• act with care and diligence in the course of APS employment
• treat everyone with respect and courtesy, and without harassment
• comply with all applicable Australian laws — for this purpose, "Australian law" means:
  1. any Act (including this Act), or any instrument made under an Act; or
  2. any law of a State or Territory, including any instrument made under such a law
• must comply with any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction
• maintain appropriate confidentiality about dealings that the employee has with any minister or Minister's member of staff
• disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment
• use Commonwealth resources in a proper manner
• do not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment
• do not make improper use of:
  • inside information; or
• the employee's duties, status, power, or authority;
• in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.
• behave in a way that upholds the APS values and the integrity and good reputation of the APS
• an APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia
• comply with any other conduct requirement that is prescribed by the regulations

Provides that the Code of Conduct binds agency heads in the same way as employees (s.14)

Breaches of the Code of Conduct (s.15)
Agency heads may impose the following sanctions: termination, reduction in classification, re‑assignment of duties, reduction in salary, deductions from salary by way of fine, reprimand

Provides for suspension of employees with or without pay (s.28)

Provides the grounds for termination, including (s.29):

• the employee is excess to the requirements of the agency;
• the employee lacks, or has lost, an essential qualification for performing his or her duties;
• non-performance, or unsatisfactory performance, of duties;
• inability to perform duties because of physical or mental incapacity;
• failure to satisfactorily complete an entry-level training course;
• failure to meet a condition imposed under subsection 22(6);
• breach of the Code of Conduct;

any other ground prescribed by the regulations

Legislates Public Service Values (s.10)
Includes a list of values, from being open and accountable for actions to providing frank, honest, comprehensive, accurate, and timely advice

Imposes a duty on agency heads to promote the values (s.12)

Provides protection for whistle‑blowers (s.16)

Separate Division dealing with "Senior Executive Service" employees (Division 2)

1. Defined as those who provide one of the following at a high level: professional expertise, policy advice, and management
2. Promotes co-operation with other agencies
3. By use of personal example and other appropriate means, promotes the values and compliance with the Code of Conduct
4. Commissioner's certificate needed to terminate these employees

Comments

Comprehensive legislation that legislates a code of conduct, values and ethics, protection for whistle‑blowers, sanctions for breach of the Code of Conduct, termination, and specifies that the "senior executive service" have a duty to promote the code of conduct and values and ethics.

Country: New Zealand

Legislation and Regulations

State Sector Act, 1988

Key Disciplinary Authorities

The Act does not set out specific disciplinary measures, rather, it delegates this to each departmental chief executive pursuant to s. 32 of the Act which states that chief executives are delegated the responsibility for the "general conduct of the department" and the "efficient, effective, and economical management of the activities of the Department."

Establishes a State Services Commissioner (s.6):

1. appoints and employs public service chief executives on behalf of the Crown
2. reviews the performance of public service chief executives on behalf of their responsible ministers
3. sets standards of conduct and integrity for the Public Service
4. investigates and reports on matters relating to departmental performance

Code of Conduct issued pursuant to s.57 of the Act and has three general principles:

1. professionalism and integrity;
2. honesty and efficiency; and
3. not bringing the Public Service into disrepute through private activities.
4. Each general principle has a number of more specific obligations, such as the obligation to obey all lawful and reasonable employer instructions and to work as directed; to avoid behaviour that might endanger or cause distress to colleagues, or otherwise contribute to disruption of the workplace; to exercise care in private communications with ministers and members of Parliament; to be competent, etc.

Departments may issue their own Code of Conduct.

Separate Part dealing with Chief Executives (Part 3)

1. Places responsibility on chief executives for the conduct of the department
2. Places responsibility on chief executives for the efficient, effective, and economical management of the activities of the department
3. Each chief executive shall ensure that all employees maintain proper standards of integrity, conduct, and concern for the public interest.
4. Provides that the Commissioner may, with the agreement of the Governor-General in Council, for just cause or excuse, remove the chief executive of a department from office

Separate Part dealing with the Senior Executive Service (Part 4)

• Subject to any contract of service, the chief executive of a department may, after consultation with the Commissioner, for just cause or excuse, remove from office any person employed in the senior executive service of the department
• Specifically provides that the Commissioner is responsible for training the Senior Executive Service

Comments

The Act does not prescribe specific disciplinary mechanisms; rather, it focusses on conduct and the responsibility of "chief executives" who are specifically given the responsibility for good management and to maintain proper standards of integrity and conduct.

New Zealand has separate whistle‑blowing legislation.

The Act specifically provides that the Commissioner must train chief executives.

Country: United Kingdom

Legislation and Regulations

The Civil Service Order in Council 1995 provides the authority "for controlling the conduct of the Service." Pursuant to this authority, the Civil Service Management Code was adopted.

Key Disciplinary Authorities

Chapter 4 re: Conduct and Discipline

This Code is composed of a general section, and a number of more specific sections.

General Section (s.4.1):

Outlines general principles such as the need to be honest and impartial, not misuse official positions or information obtained in official positions, use money properly and effectively, etc.

States that the Code is not comprehensive, it does not deal with isolated neglect of duty, failure to obey reasonable instructions, or other forms of misconduct that may be the subject of discipline

Departments must establish their own procedures for dealing with discipline

Specific Sections:

Discipline (4.5):

1. Discipline may be imposed for misconduct or breaches of the Code, and any other circumstances in which the behaviour, action, or inaction of individuals significantly disrupts or damages the performance or reputation of the organization
2. Sets out specific procedures to discipline heads of departments and the senior civil service
3. Provides for suspension
4. Provides for recovery of losses to public funds

confidentiality and official information (s.4.2)

standards of propriety (s.4.3)

political activities (s.4.4)

Chapter 6, Management and Development

poor performance: inefficiency and limited efficiency (6.3)

Comments

One code that deals with discipline, conduct and values, recovery of losses of money, confidentiality and official information, etc.

UK has a separate whistle‑blowing regime.

 

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