Today’s question is again about disciplinary action in the RFS.

My correspondent has been the subject of an investigation conducted in accordance with Service Standard 1.1.2 Discipline.  A complaint was made and referred to an investigator (SOP SS1.1.2-2 Investigation of Allegations; cl 2.1 and cl 2.4-2.6).  My correspondent understands that an investigator’s report has been delivered to the appointing officer. The member has asked for a copy of that report. They have been advised by the appointing officer that ‘I have a copy of the Investigator’s report and plan to have it forwarded to you ASAP pending the Disciplinary Panel setting a hearing date’.  The question is: can the appointing officer withhold the report ‘pending the Disciplinary Panel setting a hearing date’?

Clause 2.9 of SOP SS1.1.2-2 Investigation of Allegations says:

2.9       Upon receipt of a report prepared in accordance with clauses 2.6 or 2.7 the appointing officer must consider the report and:

a. If he or she believes that the matter should be dealt with, in whole or in part, as a breach of discipline:

i. Refer it to a disciplinary panel or discipline delegate for hearing;

ii. Give a copy of the report to the respondent; and

iii. Notify the person who made the allegation that the matter will proceed to a hearing;

b. The appointing officer may provide additional material to the disciplinary panel or discipline delegate provided that a copy of that additional material is also provided to the respondent;

c. If he or she believes that the matter should not be dealt with as a breach of discipline:

i. Notify the respondent of that decision;

ii. Notify the person who made the allegation that the matter will not proceed further; and

iii. Make an appropriate notations detailing the reasons for that decision.

The obligation to give the respondent a copy of the report arises when the appointing officer makes the determination that ‘the matter should be dealt with, in whole or in part, as a breach of discipline’ (cl 2.9(a)). (If he or she ‘believes that the matter should not be dealt with as a breach of discipline’ (2.9(c)) then there does not appear to be an obligation to provide the report, even if there is an argument that as a matter of fairness the person the subject of the investigation should get it).

Assuming that the decision ‘that the matter should be dealt with, in whole or in part, as a breach of discipline’ has been made, then the appointing officer’s obligations is to provide the report to the Panel and to the member the subject of the complaint and investigation. Clause 3.8 of Service Standard 1.1.2 Discipline says:

3.8       A disciplinary panel (or discipline delegate) which receives a report from an appointing officer in accordance with clause 2.9 of SOP 1.1.2-2 Investigation of Allegations must:

a. Set a time and place at which the disciplinary hearing will be held;

b. Give the respondent not less than 7 working days’ notice in writing of the time and place at which the disciplinary hearing will be held; and

c. Give the respondent a copy of this Service Standard and the associated SOPs.

That is, they set the ‘time and place’ when they receive the report. There is nothing in the Standard or SOP to say the Panel delivers the report to the respondent, that is a duty imposed on the appointing officer.

Conclusion

SOP 2.9 says that the appointing officer must send a copy of the investigator’s report to the respondent and to the panel. Having sent it to the panel, the panel sets the hearing date and time and gives the respondent not less than 7 days notice of the hearing. That notice period is unrelated to the delivery of the report.

There is no justification, at least not in the Service Standard or associated SOP’s to withhold the report ‘pending the Disciplinary Panel setting a hearing date’.  The obligation upon the appointing officer is to provide both the Panel and the respondent with a copy of the report. His or her involvement is then over until the Panel makes a finding and recommendations.

I would agree that withholding the report ‘pending the Disciplinary Panel setting a hearing date’ is inconsistent with the Service Standard and its associated SOPs and can only disadvantage the respondent by giving him or her less time to prepare a response.