Retirement of Public Service Officers on the Grounds of Ill Health

Guidelines

Introduction..................................................................................................................................... 2

Procedures..................................................................................................................................... 3

Further considerations.................................................................................................................... 6

Resources...................................................................................................................................... 8

Appendix A: Employee initiated retirement.....................................................................................9

Appendix B: Employer initiated retirement...................................................................................10

This publication can be copied in whole or part with due acknowledgement. It is on www.wa.gov.au. Copies are available in alternative formats on request.

Disclaimer: While every attempt is made to ensure the accuracy, currency and reliability of the information in this publication, changes in circumstances over time may impact on the veracity of the information.

Published by the Public Sector Commission (Western Australia) November 2016.

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IntroductionSection 39 of the Public Sector Management Act 1994 (PSM Act) provides for the retirement of public service officers on the grounds of ill health.

Retirement on the grounds of ill health should be compliant with relevant legislation and requirements including the:

Equal Opportunity Act 1984 Disability Services Act 1993 Occupational Safety and Health Act 1984 Public Sector Management Act 1994 Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 Public Sector Management (Redeployment and Redundancy) Regulations 1994 Public Sector Human Resource Management, Termination Standard human resource management principles contained in section 8 of the PSM Act principles of conduct by public sector bodies outlined in section 9 of the PSM Act Commissioner’s Instruction No. 7 – Code of Ethics and the employing authority’s code of

conduct Public Service and Government Officers General Agreement 2014.

ObjectiveThese guidelines are intended to assist agencies to:

consider and determine a public service officer’s request for retirement on the grounds of ill health

manage situations where a public service officer is called on to retire on the grounds of ill health.

DefinitionsThe terms used in these guidelines have the following meanings:

Employee: A public service officer as defined below.

Employing authority: Defined in section 5 of the PSM Act.

Independent medical practitioner: A registered medical practitioner other than a public service officer’s treating doctor.

Public service officer: Defined in section 3 of the PSM Act to mean an executive officer, permanent officer or term officer employed in the public service under Part 3 of the PSM Act.

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ProceduresRetirement on the grounds of ill health may only be considered in circumstances where:

an employee is unable to perform the inherent duties required of their position due to long term or permanent medical incapacity, and/or

an employee’s long term or permanent medical incapacity poses a significant risk to the welfare of the employee and/or others.

When considering a request for, or deciding to initiate, retirement on the grounds of ill health, the employing authority of the employee is to have regard to:

the employee’s prospects for future recovery alternative work arrangements suitable to both the employee and the employing authority. A

workplace capacity assessment may assist the employing authority to identify the impact of the employee’s health on their ability to work in their current role, or another suitable position

workplace rehabilitation and reasonable adjustments that can be made any medical advice provided and sought.

Discipline and substandard performance matters should be addressed before assessing any request from an employee for, or initiating a, retirement on the grounds of ill health.

The following two scenarios outline the possible process that may occur when an employee or the employing authority initiates the process for retirement on the grounds of ill health.

Employee initiated request1. The employee provides the employing authority with a report, from a registered medical

practitioner, detailing the employee’s inability to continue employment.2. On receipt of this report the employing authority: considers the prospects for future recovery, alternative work arrangements, workplace

rehabilitation and reasonable adjustments seeks independent medical advice as to the employee’s ability to continue employment. The

independent medical practitioner is to be provided with copies of all relevant medical information pertaining to the employee and a copy of the employee’s current job description/duties statement.

3. Where the independent medical practitioner’s advice supports the employee’s retirement on the grounds of ill health, the employing authority may approve the employee’s request for retirement.

4. Where the independent medical practitioner’s advice does not support the employee’s retirement on the grounds of ill health the employing authority may:

seek further advice from another independent medical practitioner direct the employee to return to work take other action appropriate to the circumstances.

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Where a report of one or more independent medical practitioner/s does not support retirement on the grounds of ill health, the employee is to be advised in writing, provided with a copy of the report and given the opportunity to respond.

5. If the employee does not agree with the report of one or more independent medical practitioner/s and the employing authority’s decision not to support the employee’s request, the employing authority should advise the employee that they can request a review of the employing authority’s decision and decision making process.

6. When advising an employee of the employing authority’s decision in relation to the employee’s request, the employing authority is to outline that the employee may lodge a breach of standard claim regarding the decision making process.

Further information regarding the review process, and breach of standard claims, is provided below.

Employer initiated process1. Where an employing authority has: formed the opinion that an employee’s sustained poor performance is attributable to the

employee’s ill health, and/or sufficient evidence to suggest that an employee’s sustained poor health poses a significant

risk to the welfare of the employee and/or others, the employing authority may seek advice from an independent medical practitioner as to the

employee’s ability to continue their employment.

Refer also to clause 21, ‘Personal leave’ of the Public Service and Government Officer’s General Agreement 2014.

2. Where the independent medical practitioner’s advice supports the employing authority’s opinion that the employee is unable to perform the inherent duties of their role due to their ill health, or that the employee’s long term or permanent medical incapacity poses a significant risk to the welfare of the employee and/or others, the employing authority may call on the employee to retire in accordance with section 39 of the PSM Act.

The employee should be provided with a copy of the independent medical practitioner’s report and given the opportunity to respond.

3. Where the independent medical practitioner’s advice does not support retirement of the employee on the grounds of ill health, the employing authority may, having regard to the report:

seek further advice from another independent medical practitioner direct the employee to return to work take other action appropriate to the circumstances.4. The employee should be advised of the employing authority’s decision in writing and

provided with a copy of the independent medical practitioner’s report.

Due care should be given where the release of the information may have the potential to injure or harm the employee.

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5. If an employee does not agree with the report of one or more independent medical practitioner/s and the employing authority’s decision that the employee is to be retired on the grounds of ill health, the employing authority should advise the employee that they can request a review of the employing authority’s decision and decision making process.

6. When advising an employee of the employing authority’s decision to retire them on the grounds of ill health, the employing authority is to outline that the employee may lodge a breach of standard claim in relation to the decision making process.

Further information regarding the review process, and breach of standard claims, is provided below.

Review processWhere a decision is made by the employing authority to either reject a request placed by an employee to retire on the grounds of ill health, or to direct an employee to retire on the grounds of ill health, the employing authority is to afford procedural fairness to the employee in relation to that decision.

Where the employee requests a review of the employing authority’s decision and decision making process, the review process should provide the opportunity for:

the employee to submit additional medical evidence the employing authority to seek additional independent medical advice.

Breach of Standard claimsThe Termination Standard applies to the process used by an employing authority to reach a decision about terminating an employee’s employment, and/or to respond to an employee’s request to cease employment. Cessation of employment includes retirement on the grounds of ill health.

An employee is entitled to lodge a breach of Standard claim with the employing authority in relation to the employing authority’s decision, and decision making process, to retire or not to retire, the employee on the grounds of ill health.

Further information regarding breach of standard claims is available on WA.gov.au.

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Further considerations

Voluntary and involuntary severanceParts 2 to 6 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (the Regulations) do not apply to an employee who is to retire or is called on to retire from employment on the grounds of ill health, whether under section 39 of the PSM Act or otherwise (see Regulation 5).

As such, an employee’s ill health should not be used as primary reason for providing a severance to an employee. An offer of severance should only be considered when an employee’s office, post or position is, or is to be, abolished, or the employee will become surplus to the requirements of his or her organisation.

SuperannuationOn receiving a request from an employee to retire on the grounds of ill health, the employing authority should advise the employee to obtain advice from their superannuation fund. The employee should be given appropriate time to obtain that advice, to consider their intention to withdraw or progress their request.

Section 59 compensation paymentsSection 59 of the PSM Act provides the circumstances under which an executive officer (that is, a chief executive officer or senior executive officer) may receive a compensation payment. If an executive officer retiring on the grounds of ill health has completed not less than 12 months’ continuous service before their retirement date, they may apply to the employing authority for a lump sum payment of pro rata long service leave as part of their compensation payment (see regulation 5 of the Public Service Regulations 1988).

Workers’ compensationWhere an employing authority has accepted liability that the employee’s condition has been caused through a work related injury and is subject to a claim for workers’ compensation, the general position is that retirement on the grounds of ill health is not to be approved until the employee’s claim is settled.

A decision whether or not to retire the employee on the grounds of ill health may only be progressed if the insurer provides advice confirming that a workers’ compensation settlement is being negotiated. Following the settlement, the retirement process may proceed as normal.

The employing authority should ensure they are not exposed to unnecessary or increased liability arising under workers’ compensation legislation or at common law in relation to an illness or injury as a result of the employing authority offering, and the employee accepting, to retire on the grounds of ill health.

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Refusal to retireSection 39 of the PSM Act does not specify what occurs should an employee refuse to retire on the grounds of ill health.

Depending on the circumstances, the ‘retirement’ of an employee on the grounds of ill health where the employee refuses to retire may need to be treated as the employee disobeying or disregarding a lawful order under section 80 of the PSM Act. This may then be dealt with as a breach of discipline through the disciplinary process provided for in Part 5 of the PSM Act.

The employing authority should seek further advice prior to proceeding with disciplinary action.

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Resources Commissioner’s Instruction No. 7 – Code of Ethics

Equal Opportunity Act 1984

Disability Services Act 1993

Occupational Safety and Health Act 1984

Public Sector Management Act 1994

Public Sector Management (Breaches of Public Sector Standards) Regulations 2005

Public Sector Management (Redeployment and Redundancy) Regulations 1994

Public Service Regulations 1988

Public Service and Government Officers General Agreement 2014

Public Sector Human Resource Management, Termination Standard

Managing workplace behaviour – A guide for agencies

Managing substandard performance – A guide for agencies

Supporting good mental health in the workplace – A resource for agencies

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Appendix A: Employee initiated retirementEmployee submits a request with a medical report that provides advice

about the employee’s inability to continue employment

Options considered including prospects of future recovery;

alternative work arrangements; workplace rehabilitation; and

reasonable workplace adjustment

Employing authority to seek independent medical advice

Independent medical advice supports request

Request approved

Independent medical advice does not support request

Further independent reasonable action advice sought

Employee returns to work

Other Further independent reasonable

action

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Appendix B: Employer initiated retirementEmploying authority has concerns about an employee’s ability to perform their role due to ill health. Employing authority considers

prospects of future recovery; alternative work arrangements; workplace

rehabilitation; and reasonable workplace adjustment

Employing authority seeks independent medical advice as to the employee’s ability

to continue employment

Independent advice supports the

employee’s retirement on the grounds of ill

health

Independent advice does not support the employee’s retirement on the grounds of ill health

Employing authority may call upon the

employee to retire in accordance with s. 39

of the PSM Act

Seek further independent adviceTake other action appropriate to the

circumstances

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