Part 10 - DISCIPLINARY PROCEDURES |
| | DISCIPLINARY ACTION FOR MISCONDUCT |
| | Application |
| 281 | This Subclause does not apply to casual staff. |
| 282 | Line Supervisors (including Heads of Work Units) have a responsibility to discuss work conduct with employees under their administration, and to ensure employees have a clear understanding of the conduct expected of them. Disciplinary action should normally be initiated as a last resort. |
| 283 | Formal procedures for dealing with misconduct or serious misconduct do not replace a supervisor's responsibility outlined in clause 282. However, when there is evidence that a conduct problem has not been remedied through normal supervisor-employee discussions, the formal procedures of this clause should be utilised. |
| 284 | The University's Code of Conduct contains approved appropriate standards of conduct in relation to a range of general matters affecting the University as a corporate entity. |
| | Definitions |
| 285 | 'Misconduct' includes, but is not limited to, behaviour that is unsatisfactory. |
| 286 | 'Serious misconduct' includes, but is not limited to: |
| | a) | serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an employee's duties or to an employee's colleagues carrying out their duties; | | b) | conviction by a Court of competent jurisdiction of an offence of a kind that may be reasonably regarded as constituting a serious impediment to the discharge by the employee of their functions or duties, or to the employee's colleagues carrying out their functions or duties; and | | c) | serious dereliction of duties. | | d) | examples of 'serious misconduct' in the course of employment include: theft; fraud; misappropriation of funds; assault; serious harassment (including sexual harassment); a serious breach of the University's policies or regulations; or repeated actions of misconduct. |
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| 287 | 'Disciplinary action' means any action by the Vice Chancellor to discipline an employee for misconduct or serious misconduct and may include one or more of the following, except that in cases involving misconduct, disciplinary action will not constitute termination of employment: |
| | | a) | formal censure; | | b) | counselling; | | c) | demotion by one or more classification levels or increments; | | d) | withholding of an increment; | | e) | suspension with or without pay; | | f) | termination of employment; and | | g) | any other appropriate action as recommended by the Misconduct Investigation Committee. |
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| | Procedures |
| 288 | The Vice Chancellor must follow the procedures of this Clause before taking disciplinary action against an employee for misconduct or serious misconduct. However, where a matter that may involve misconduct or serious misconduct has been dealt with in good faith as if it were a case of unsatisfactory performance under clauses 225-245 the procedures of this Clause are not required. |
| 289 | The Vice Chancellor will consider any allegation/s of misconduct and/or serious misconduct. If the Vice Chancellor believes the allegation/s warrant further investigation, then the Vice Chancellor will: |
| | | a) | notify the employee in writing and in sufficient detail to enable the employee to understand the precise nature of the allegation/s, and to properly consider and respond to them; and | | b) | require the employee to submit a written response within ten working days. |
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| 290 | If the employee denies, in part or full, the allegation/s, the Vice Chancellor will: |
| | | a) | refer the matter to a Misconduct Investigation Committee; or | | b) | counsel and/or censure the employee for unsatisfactory behaviour and take no other action; or | | c) | take no further action. |
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| 291 | If the employee fails to submit any written response to the allegations, the Vice Chancellor will: |
| | | a) | refer the matter to a Misconduct Investigation Committee; or | | b) | counsel and/or censure the employee for unsatisfactory behaviour and take no other action; or | | c) | take no further action; or | | d) | take appropriate disciplinary action if the Vice Chancellor is persuaded by the weight of evidence provided that the employee is guilty of serious misconduct for taking the actions described in the allegation. In such a case the Vice Chancellor's decision is final, except that nothing in this Clause will be construed as excluding the jurisdiction of any external court or tribunal which, but for this Clause, would be competent to deal with the matter. |
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| 292 | If the employee admits in full the allegation/s, and the Vice Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, then the Vice Chancellor may take disciplinary action, subject to following the procedure described in clause 293. |
| 293 | Except in cases of termination of employment, the Vice Chancellor will, before deciding to take disciplinary action: |
| | | a) | invite the employee to advise within five working days, in writing, any matters that they may wish the Vice Chancellor to take into account at the time a decision as to disciplinary action is considered; | | b) | have regard to any such matters brought to attention by the employee when deciding whether any disciplinary action should be taken. |
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| 294 | Once the decision is taken, the Vice Chancellor will advise the employee of that decision and of the operative date of any disciplinary action to be taken. |
| 295 | Where the Vice Chancellor is of the view that there has been no misconduct or serious misconduct and decides to take no further action under clause 290 or 291, the Vice Chancellor will advise the employee in writing and may, by agreement with the employee, publish the advice in an appropriate manner. |
| | Establishment and Terms of Reference of Misconduct Investigation Committee |
| 296 | The terms of reference of the Committee are to fairly and objectively report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident. |
| 297 | Where a matter is referred to a Misconduct Investigation Committee the Vice Chancellor will convene the Committee within 20 working days where practicable. |
| 298 | The Committee will consist of three members, chosen as follows: |
| | | a) | a Chairperson, appointed by the Vice Chancellor from the list of Chairpersons agreed between the University and the presiding officers of the institutional union branches; and | | b) | a person from within the University agreed by the presiding officers of the institutional union branches; and | | c) | a person from within the University chosen by the Vice Chancellor. |
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| 299 | The committee will not include any person involved in the management of the case for the University or a person involved in providing advocacy or support for the employee. |
| | Procedures of the Committee |
| 300 | The Committee will conduct its proceedings as a Committee of Inquiry and will: |
| | | a) | meet in camera, unless the employee and the Vice Chancellor agree otherwise; | | b) | allow the employee and the Vice Chancellor each to be assisted or represented by a person of their choice who is not currently a practicing solicitor or barrister. | | c) | provide an opportunity for the employeeto be interviewed by it and ensure that they have adequate opportunity to answer allegations of misconduct or serious misconduct and put their case; | | d) | interview any person it thinks fit to establish the merits or facts of the particular case; | | e) | provide an opportunity for the employee (or the person selected by the employee under clause 300(b) and the Vice Chancellor (or the Vice Chancellor's representative) to be present during the conduct of interviews; | | f) | ensure that the employee (or the person selected by the employee under clause 300(b) and the Vice Chancellor (or the Vice Chancellor's representative) have the right and opportunity to ask questions of interviewees, and to make submissions. They also will have the right to present and challenge evidence; | | g) | conduct proceedings as expeditiously as possible consistent with the need for fairness, but must complete its proceedings within 20 working days of having been convened; | | h) | take into account other material it believes appropriate to the case; and | | i) | keep an audio tape recording of the proceedings (but not its own deliberations), which will be available to either the Vice Chancellor or the employee on request. |
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| 301 | The Committee will provide a report to the Vice Chancellor and the employee within ten working days following the conclusion of its proceedings. |
| 302 | In circumstances where the employee is unable to attend, the Committee may either proceed or elect to reconvene. |
| 303 | On receipt of the report of the Committee, and having considered all its findings on the facts related to the alleged misconduct or serious misconduct, the Vice Chancellor may take disciplinary action. |
| 304 | If, having considered the Committee's findings on the facts, the Vice Chancellor is of the view that there has been no misconduct or serious misconduct the Vice Chancellor will advise the employee in writing. The Vice Chancellor may, by agreement with the employee, publish the advice in an appropriate manner. |
| | Suspension |
| 305 | The Vice Chancellor may suspend an employee with pay, or without pay if the Vice Chancellor is of the view that the alleged conduct amounts to conduct of a kind envisaged in Regulation 1.07 of the Fair Work Act so that it would be unreasonable to continue the employee's attendance at work pending further investigation. |
| 306 | Any such suspension will be subject to the following conditions: |
| | | a) | where suspension without pay occurs at a time when the employee is on paid leave of absence, the employee will continue to receive a salary for the period of leave of absence; | | b) | the employee may engage in paid employment or draw on any annual leave or long service leave credits for the duration of the suspension without pay; | | c) | the Vice Chancellor may at any time direct that salary be paid on the ground of hardship; and | | d) | where a suspension without pay has been imposed and the matter is subsequently referred to a Misconduct Investigation Committee, the Vice Chancellor will ensure that the Committee at its first meeting determines whether suspension without pay should continue. |
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| 307 | During any period of suspension the employee may be excluded from the University; however, they will be permitted reasonable access to the University for the preparation of their case and to collect personal property. |
| 308 | Where an employee has been suspended without pay pending the decision of the Vice Chancellor, then any pay withheld will be reimbursed if it is determined that there was no misconduct or serious misconduct. This reimbursement will include the University making the appropriate payment to the relevant superannuation scheme. |
| 309 | A decision taken by the Vice Chancellor not to dismiss or impose another penalty will not be construed as an admission that there was no conduct justifying suspension without pay. |
| | Other Matters |
| 310 | This Clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of an employee or former employee when required in the public interest, e.g inquiring into the truth of research results. |
| 311 | The action of the Vice Chancellor under this Clause will be final and not subject to further appeal or challenge. However, this Clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter. |
