Northern Territory Numbered Acts Northern Territory Numbered ActsPart 7
repeal , insert
(1) There are inability or performance grounds for an employee if the employee:
(a) is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or
(b) is not suited to perform, or capable of efficiently performing, those duties; or
(c) is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or
(d) is not performing those duties efficiently or satisfactorily.
(2) If the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the Agency, the Chief Executive Officer may take action in relation to the employee under section 46(1).
(3) In determining whether there are inability or performance grounds for an employee, the Chief Executive Officer must have regard to:
(a) the performance and conduct principle; and
(b) the employee's performance record under the Agency's employee performance management and development system as mentioned in section 24(3)(f); and
(c) any other matter the Chief Executive Officer considers relevant.
(4) For determining whether there are reasonable grounds as mentioned in subsection (2), the Chief Executive Officer may, subject to the Employment Instructions, do one or more of the following:
(a) obtain relevant information from persons as, and in the way, the Chief Executive Officer considers appropriate;
(b) consult with persons as the Chief Executive Officer considers appropriate;
(c) make inquiries as the Chief Executive Officer considers appropriate;
(d) if applicable, obtain a report from a health practitioner under section 45.
(5) The Chief Executive Officer must not take remedial action in relation to an employee unless satisfied:
(a) the action is appropriate and reasonable in the circumstances; and
(b) the employee:
(i) has been given written notice of the proposed action and the grounds for taking it; and
(ii) has been given a reasonable opportunity to show why the action should not be taken.
(6) As soon as practicable after making a decision under subsection (2), the Chief Executive Officer must give written notice of the decision to the employee.
(7) If the decision is to take remedial action, the notice must:
(a) give the reasons for the decision; and
(b) inform the employee of the employee's right to request a review under section 59 or to appeal under section 59A (as appropriate).
(8) A decision to take remedial action takes effect on the day the notice is given to the employee or a later day specified in the notice.
(1) This section applies if the Chief Executive Officer suspects, on reasonable grounds, that inability or performance grounds for an employee are caused or contributed to by a physical or mental illness or disability of the employee.
(2) The Chief Executive Officer may engage a health practitioner, approved by the Commissioner, to determine whether the employee has a physical or mental illness or disability that may adversely affect the employee's performance of the duties he or she is assigned to perform.
(3) The employee must submit to examination by the health practitioner as directed by the Chief Executive Officer, and to any subsequent examinations or tests required by the health practitioner.
(4) The health practitioner must give a written report about the employee to the Chief Executive Officer.
(5) The report must set out the health practitioner's opinion as to the following:
(a) whether the employee has a physical or mental illness or disability that may adversely affect the employee's performance of those duties;
(b) if so:
(i) the likely direct or indirect effect of the illness or disability on the employee's performance of those duties; and
(ii) how long the illness or disability or its effects are likely to last;
(c) whether disclosure of the information in the report to the employee by the Chief Executive Officer might be prejudicial to the employee's health or wellbeing.
(6) Subject to subsection (7), the Chief Executive Officer must give a copy of the report to the employee as soon as practicable after the Chief Executive Officer receives it.
(7) If the health practitioner's opinion under subsection (5)(c) is that disclosure might be prejudicial to the employee's health or wellbeing, the Chief Executive Officer:
(a) must not disclose the information in the report to the employee; but
(b) if asked by the employee to do so, must give a copy of the report to another health practitioner nominated by the employee.
(1) If permitted under section 44 to take action in relation to an employee, the Chief Executive Officer may:
(a) take no further action; or
(b) do one or more of the following:
(i) order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;
(ii) reduce the employee's salary within the range applicable for the employee's designation;
(iii) under section 35:
(A) transfer the employee to perform other duties in the Agency; or
(B) transfer, or request the Commissioner to transfer, the employee to perform duties in another Agency; or
(c) terminate the employee's employment.
(2) The employee must comply with an order made under subsection (1)(b)(i) within the period specified in the order.
(3) The merit principle and section 36(3) do not apply in relation to a transfer under subsection (1)(b)(iii).
Note for section 46(3)
Because section 36(3) does not apply, a transfer may be made under section 46(1)(b)(iii) that results in a reduction in the employee's designation.
(1) This section applies if the Chief Executive Officer of an Agency:
(a) suspects there are inability or performance grounds for an employee in the Agency; and
(b) has not yet made a decision under section 44(2); and
(c) is of the opinion that the suspected inability or performance grounds are of such a serious nature that the employee should not continue performing the duties he or she is assigned to perform pending the making of that decision.
(2) The Chief Executive Officer may suspend the employee:
(a) for a period or periods not exceeding a total of 6 months; and
(b) with or without remuneration.
(3) The Commissioner may:
(a) extend the period of the suspension for any further period or periods the Commissioner thinks fit; or
(b) if the suspension imposed by the Chief Executive Officer has lapsed or been revoked – resuspend the employee for any further period or periods the Commissioner thinks fit.
(4) A suspension ceases when any of the following occurs:
(a) the period of the suspension expires;
(b) the Chief Executive Officer makes a decision under section 44(2);
(c) the Chief Executive Officer or Commissioner revokes the suspension.
(5) An employee who is suspended under this section:
(a) does not accrue any leave for the period of the suspension; but
(b) may, during the period of the suspension, take any long service or recreation leave to which the employee was entitled at the time the suspension was imposed.
(6) If the Chief Executive Officer makes a decision under section 44(2) in relation to an employee suspended under this section:
(a) the employee must be credited with any leave that would have accrued to the employee for the period of the suspension had the employee not been suspended; and
(b) if the suspension was without remuneration for any period – the employee must be paid the remuneration to which the employee would have been entitled for that period had the employee not been suspended; and
(c) if the employee took leave as mentioned in subsection (5)(b) – the employee must be re-credited with the leave so taken.
(7) Subsection (6) does not apply if the employee's employment is terminated under section 46(1)(c).
(1) For this section an employee is totally and permanently incapacitated if, because of a physical or mental condition, it is unlikely the employee will ever be able to work in any employment or hold any office for which he or she is reasonably qualified by education, training or experience or could become reasonably qualified after retraining.
(2) If the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, an employee in the Agency is totally and permanently incapacitated the Chief Executive Officer may retire the employee on the grounds of invalidity.
(3) The Chief Executive Officer must not take action under subsection (2) unless the Chief Executive Officer:
(a) has obtained and considered a medical report under section 45 or 49B; and
(b) has complied with section 50 of the Superannuation Act if applicable; and
(c) has considered any relevant legislation relating to superannuation; and
(d) is satisfied the action is appropriate and reasonable in the circumstances; and
(e) is satisfied the employee:
(i) has been given written notice of the proposed action and the grounds for taking it; and
(ii) has been given a reasonable opportunity to show why the action should not be taken.
(4) This section does not affect the Chief Executive Officer's ability to take action under section 44 in relation to the employee.