Disciplinary action

Disciplinary action

The Concise Oxford Dictionary includes the following relevant definitions:

disciplinary  adj of, promoting, or enforcing discipline.

discipline  n. 1a  control or order exercised over people or animals, esp. children, prisoners, military personnel, church members, etc.
1b  the system of rules used to maintain this control
4  punishment

action  n. 1  the fact or process of doing or acting.

Cooper J in Chenhall v Comcare (1992) stated that:

In the context of the definition of “injury” in section 4(1) of the Act, the phrase “disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline.  The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth.

Conduct anterior to the decision to take such action is not disciplinary action:

action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition ...

Disciplinary action may include:

• a caution (disciplinary action need not necessarily be punitive, or designed to punish);
• monetary penalties;
• demotion;
• removal of employment benefits, such as flextime.

Disciplinary action generally would not encompass:

• interviews preceding the possible laying of charges: Chenhall v Comcare (1992);
• the process for annulment of a probationary appointment: Roderick and Telstra Corporation Limited (1994);
• preparation of a “Competency Needs Analysis”: Quarry and Comcare (1997);
• a Performance Management Scheme and associated inefficiency procedures: Carson and Comcare (1998).

Counselling as disciplinary action

Whether counselling is disciplinary action will depend very much on the facts of the case and the formal disciplinary framework applicable to the member.

In most cases, informal counselling, or warning counselling putting a member on notice to improve performance, would not be disciplinary action, but rather would be a step preceding disciplinary action.  However, where counselling is an integral part of the continuum of disciplinary action, or is a “punishment” option specified in the relevant regulations, it may be appropriately described as “disciplinary action”.

Ultimately this is a matter of judgment for the assessor after fully considering the facts of the case and the disciplinary code or regulations applicable to the member.

Evidence required

Cooper J in Chenhall v Comcare (1992) identified that it would be necessary in each case to collect evidence to answer the following questions:

• what discipline or rules of conduct apply to the member?
• in what circumstances can the Defence Force as an employer take action of a disciplinary nature to enforce the discipline or rules of conduct against a member?
• what type of action may the Defence Force take against the member if the circumstances giving occasion to the taking of disciplinary action exist?

The conduct of the member must be tested against this evidence and not by reference to general notions of good order and control of Defence Force personnel.