4.12 Misconduct and Serious Misconduct
Note: this agreement is to be read together with an undertaking given by the employer. The undertaking is taken to be a term of the agreement.
Undertakings - Macquarie University Academic Staff Enterprise Agreement 2014
Macquarie University (University) undertakes, while the Agreement is in operation, the following:
1. Clause 2.5.11 - Deduction of Union Dues
The University undertakes to require that a Staff Member provide a written authorisation for the deduction of union dues and levies from salary under clause 2.5.11.
2. Clause 3.3.1 - Backpayments
The University undertakes to make a payment of backpay of the 3% salary increase from 20 March 2014 to current Staff Members employed as at the commencement of the Agreement in the first payrun following the commencement of the Agreement.
3. Clause 3.6.60 - Redundancy Payments Below NES Scale in some circumstances
Where clause 3.6.60 provides for a severance payment which is lower than the NES requires in any particular circumstances, the University will pay the severance payment required by the NES in satisfaction of the Staff Members entitlement to a severance payment under both the NES and clause 3.6.60.
4. Clause 4.1.10 - Cashing Out of Annual Leave
Without affecting clause 4.1.11, the University undertakes that it will never agree to the cashing out of annual leave under clauses 4.1.10 to 4.1.12 of the Agreement if the cashing out would result in the Staff Member's remaining accrued entitlement to paid annual leave being less than 4 weeks.
The University undertakes it will not agree to the cashing out of annual leave under clauses 4.1.10 to 4.1.12 of the Agreement unless the cashing out of the particular amount of paid annual leave is by a separate agreement in writing between the University and the Staff Member.
5. Clause 4.1.14 - Payment in lieu of annual leave
The University will pay an employee their untaken paid annual leave on termination of employment as required by section 90(2) of the Fair Work Act 2009, as amended or replaced.
6. Clause 4.1.25(c)(ii) - Compassionate or bereavement leave
The University undertakes to extend to bereavement leave under clause 4.1.25(c)(ii) to the sibling of a Staff Member's defacto partner (including same sex defacto partners).The University undertakes that it will not deduct leave taken under clause 4.1.25(c)(ii) from personal leave accrued under the NES.
7. Clause 4.1.60(a) - Return from parental leave
The University undertakes not to apply clause 4.1.60(a).
8. Clause 4.12.8 - Suspension without pay
The Vice Chancellor will only exercise the power to suspend without pay in the case of possible Serious Misconduct and the University will - if no Serious Misconduct is found - pay the Staff Member their salary foregone during the period of unpaid suspension.
9. Clause 6.2.6 - Payment of Long Service Leave on Voluntary Redundancy
The University undertakes to pay an employee their long service leave entitlement payable under the Long Service Leave Act 1955, as amended or replaced, where that payment exceeds the amount payable under the Agreement. Such a payment is paid in satisfaction of the Staff Members entitlement to a long service leave including under the Agreement and the Long Service Leave Act 1955
For the avoidance of doubt, all reference to provisions of legislation in these undertakings is a reference to those provisions as amended or replaced.
A copy of the Undertaking agreement can be found here.
4.12.1 The procedures outlined in this clause apply to all Staff (other than casual Staff).
4.12.2 Misconduct means:
(a) wilful conduct by a Staff Member that is unsatisfactory or otherwise unacceptable to the University; or
(b) Misconduct in Research.
4.12.3 Serious Misconduct means:
(a) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a Staff Member's duties or to a Staff Member'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 Staff Member of his or her functions or duties, or to the Staff Member's colleagues carrying out their functions or duties; or
(c) repeated incidents of misconduct;
(d) serious dereliction of duties; and/or
(e) serious acts or omissions of Misconduct in Research.
4.12.4 Disciplinary Action means any action by the University to discipline a Staff Member for unsatisfactory performance or misconduct or serious misconduct and is limited to:
(b) written warning;
(c) formal censure;
(d) withholding of an increment;
(e) varying the Staff Member's duties/removing any Administrative position;
(f) demotion by one or more classification levels or increments; and
(g) termination of employment.
In cases of misconduct, disciplinary action is limited to (a) to (f) above.
4.12.5 Misconduct in Research means fabrication, falsification, plagiarism, or other practices that seriously deviate from those commonly accepted within the academic or research community for proposing, conducting or reporting research. It includes misleading ascription of authorship including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research, and the lack of appropriate acknowledgment of the work of others. It does not include honest errors or honest differences in interpretation of data.
4.12.6 The University must follow the procedures of this clause before taking disciplinary action against a Staff Member 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 clause 4.11 the procedures of this clause are not required, but the procedures of clause 4.11, including notice periods, must be followed if the Staff Member's employment is terminated.
4.12.7 A Staff Member's Supervisor should initially, if appropriate, seek to resolve instances of possible misconduct or serious misconduct through guidance, counselling, training or a written warning. If the Staff Member's Supervisor is unable to resolve the possible misconduct or serious misconduct, or considers that it is not appropriate to do so, the Supervisor must refer the alleged conduct to the Director, Human Resources.
4.12.8 The Director, Human Resources may refer the alleged conduct to the Vice-Chancellor for consideration as to whether the Staff Member's employment should be suspended. If the alleged conduct is referred to the Vice-Chancellor under this sub clause, the Vice-Chancellor may, at any time, suspend the Staff Member with or without pay during the period in which the procedures in this clause are followed.
4.12.9 If a Staff Member is suspended without pay then the Staff Member may access any available annual or long service leave entitlement or undertake other paid employment.
4.12.10 The Director, Human Resources will consider any alleged conduct referred to him/her under sub clause 4.12.7 and may:
(a) take no further action; or
(b) refer the matter to an Investigator for the purpose of investigating the alleged conduct; or
(c) proceed under sub clause 4.12.13.
4.12.11 An Investigator, who may be a Staff Member or officer of the University, will not have had any prior involvement in or dealings with the alleged conduct and not have any conflict of interest in investigating the matter.
4.12.12 The Investigator will investigate the alleged conduct and provide the Director, Human Resources with a report of his/her investigations.
4.12.13 If, following the consideration of the conduct alleged by the Supervisor and the report of the Investigator, if any, the Director, Human Resources believes the alleged conduct does not warrant further investigation the Director, Human Resources will notify the Staff Member in writing that no further action will be taken by the University in relation to the alleged conduct.
4.12.14 If, following the consideration of the conduct alleged by the Supervisor and the report of the Investigator, if any, the Director, Human Resources believes the alleged conduct warrants further investigation then he/she will:
(a) notify the Staff Member in writing of the nature of the allegation/s in sufficient detail to enable the Staff Member to understand the allegation/s, and to properly consider and respond to them;
(b) provide the Staff Member with a copy of the Investigator's report, if any; and
(c) provide the Staff Member with an opportunity to submit a written response to the allegations, including any mitigating circumstances. Any response must be made within ten working days of receipt of the allegations by the Staff Member.
4.12.15 If the Staff Member admits the allegation/s in part or in full, or fails to submit a written response to any allegations, the Director, Human Resources will refer the matter to an appropriate Deputy Vice-Chancellor. The Deputy Vice-Chancellor may then:
(a) take no further action in relation to any or all of the allegation/s which the Staff Member has admitted in part or in full or failed to respond to;
(b) in relation to any allegations which have not been responded to, warn in writing or censure the Staff Member for unsatisfactory conduct and take no other action;
(c) determine whether any of what has been admitted or not responded to constitutes misconduct or serious misconduct and if so, determine what, if any, disciplinary action is proposed to be taken; or
(d) defer any decision under sub clause (b) or (c) until any allegation/s that the Staff Member has denied in part or in full (or has not admitted) have been investigated by a Committee.
4.12.16 If the Deputy Vice-Chancellor makes a determination under sub clause 4.12.15(c), he/she must proceed in accordance with sub clause 4.12.23 below.
4.12.17 If the Staff Member denies any of the allegation/s in part or in full, the Director, Human Resources may:
(a) refer any of the allegation/s to a Misconduct Investigation Committee (MIC); or
(b) take no further action in relation to those allegations.
The Misconduct Investigation Committee
4.12.18 If the Director, Human Resources determines that any of the allegations of misconduct/serious misconduct should be referred to an MIC under sub clause 4.12.17(a) above, the Director, Human Resources will appoint an MIC in accordance with sub clause 4.12.19. The Committee will convene within 15 working days of its appointment.
4.12.19 The Committee will comprise three (3) persons consisting of:
(a) a Chair appointed by:
(i) the Vice-Chancellor from a pool agreed between the Vice-Chancellor and the Chair of the MUCC. The Chair will be external to the Staff Member's Faculty/Office or may be external to the University, in relation to any allegations of misconduct or serious misconduct which do not include Misconduct in Research; or
(ii) Academic Senate in relation to any allegations of misconduct or serious misconduct which includes any allegation of Misconduct in Research;
(b) one Staff Member appointed by the Vice Chancellor; and
(c) one Staff Member selected by the NTEU.
Terms of Reference and Procedures of the MIC
4.12.20 The terms of reference of the MIC are to report on the facts relating to the alleged misconduct or serious misconduct and any mitigating circumstances raised by the Staff Member in their response to the Director, Human Resources.
4.12.21 The MIC will:
(a) determine whether a Staff Member on suspension without pay will remain on suspension without pay;
(b) allow the Staff Member (and/or, if they so choose, the NTEU or other Staff Representative) a reasonable opportunity to attend an interview and provide him/her with an opportunity to respond to the allegations of misconduct or serious misconduct;
(c) make all reasonable efforts to interview any person it thinks fit to establish the facts of the particular case;
(d) invite the Staff Member (and/or, if they so choose, the NTEU or other Staff Representative) and the University's representative to attend all interviews conducted by the MIC;
(e) provide the Staff Member (and/or, if they so choose, the NTEU or other Staff Representative) and the University's representative with an opportunity to ask questions of interviewees whose interview they attend;
(f) provide the Staff Member (and/or, if they so choose, the NTEU or other Staff Representative) and the University with a reasonable opportunity to make submissions and present evidence to the Committee;
(g) conduct the investigation as expeditiously as possible consistent with the requirements of this sub clause;
(h) take into account other material it believes appropriate to the case, including any alleged conduct not responded to or admission made by the Staff Member in relation to any matter relating to, concerning or arising out of the allegations at any time;
(i) keep a record of proceedings; and
(j) provide a report of its findings and a copy of proceedings to the Staff Member and to the Director, Human Resources within 5 working days of completion of the proceedings.
4.12.22 The Director, Human Resources will provide the MIC report, the Investigators report, if any, the allegations and any response to the allegations by the Staff Member to the appropriate DVC.
4.12.23 The DVC will:
(a) advise the Staff Member of his/her decision regarding what disciplinary action, if any, is proposed to be taken;
(b) if any disciplinary action is proposed to be taken, invite the Staff Member to advise in writing, within five working days, about any matters that he or she wants the DVC to take into account in making a decision about what disciplinary action is to be taken;
(c) consider any matters brought to his/her attention by the Staff Member when deciding what, if any, disciplinary action should be taken; an
(d) if any disciplinary action is to be taken, advise the Staff Member of his/her final decision about what disciplinary action is to be taken, and of the operative date of any disciplinary action to be taken.
4.12.24 If, having undertaken the procedure in sub clause 4.12.23, the DVC is of the view that the conduct amounts to misconduct or serious misconduct, then the DVC may take disciplinary action against the Staff Member.
4.12.25 If the DVC is of the view that there has been no misconduct or serious misconduct and decides to take no further action, the DVC will advise the Staff Member in writing.
4.12.26 This clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of a Staff Member or former Staff Member when required in the public interest, e.g. inquiring into the truth of research results.
4.12.27 The action of the Director, Human Resources and the Deputy Vice-Chancellor under this clause will be final. However, this clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter.
4.12.28 Where, in accordance with sub clause 4.12.15(c) or 4.12.24, the Deputy Vice-Chancellor decides to terminate the employment of a Staff Member, notice or payment in lieu of notice will be as provided in clause 6.3.
4.12.29 Payment in lieu of notice of termination will be made if the University does not require the person to work out the notice period. Where the Staff Member is only required to work part of the notice period, the University will pay out the remainder of the notice period.
4.12.30 Any payments in lieu of notice will be based on the Staff Member's salary at the date of termination of employment.
4.12.31 In instances of termination of employment as a result of serious misconduct involving suspension without pay (refer to sub clauses 4.12.8 to 4.12.9), there will be no requirement for the notice of termination prescribed in this Clause.