Misconduct and serious misconduct
47. MISCONDUCT AND SERIOUS MISCONDUCT
47.1 This clause sets out the process for taking Remedial Disciplinary Action and Formal Disciplinary Action against a Staff Member and applies to all Staff Members other than:
(a) casual Staff Members; and
(b) Staff Members within probation in relation to matters involving possible serious misconduct. In these circumstances, the procedures set out in clause 13, Probation will apply.
47.2 The procedures of this clause will not apply in matters involving alleged Breach/Serious Breach of the Code or alleged Research Misconduct as defined in this Agreement. Instead, the procedures of clause 48, Research Misconduct will apply.
47.3 Where there is ambiguity in a particular matter as to whether the procedures in this clause 47 or clause 48, Research Misconduct, should apply, the Director, Human Resources will consult with the Pro Vice-Chancellor (Research Integrity and Development) and agree which process should apply and to avoid duplication. If, during the process, it becomes apparent that the alternate process is more applicable, the University may adopt the alternate process and steps taken under the first process will be recognised in the second process.
47.4 Where a matter that may involve misconduct or serious misconduct is dealt with in good faith as if it were a case of unsatisfactory performance under clause 46, the procedures of this clause are not required, but the procedures of clause 46, including notice periods, must be followed if the Staff Member's employment is terminated.
In this clause, the following definitions apply:
47.5 Misconduct means conduct or behaviour of a kind that is unsatisfactory and inconsistent with the expectations of a Staff Member in the workplace.
47.6 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 their functions or duties, or to the Staff Member's colleagues carrying out their functions or duties;
(c) repeated incidents of Misconduct; and/or
(d) serious dereliction of duties.
47.7 Remedial Disciplinary Action means any action by the University to discipline a Staff Member and is limited to:
(b) training; and/or
(d) written warning.
47.8 Formal Disciplinary Action means any action by the University to discipline a Staff Member for unsatisfactory performance or misconduct or serious misconduct in accordance with 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/or
(g) termination of employment.
In cases of Misconduct, disciplinary action is limited to (a) to (f) above.
47.9 A Staff Member's Supervisor should initially, if appropriate, seek to resolve instances of possible misconduct or serious misconduct through Remedial Disciplinary Action. Having regard to the principles of procedural fairness, this may involve the Supervisor making enquiries to inform any action under this subclause.
47.10 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.
47.11 In the event that the Staff Member at this stage makes a full admission, the matter will be dealt with under subclause 47.27.
Referral to Director, Human Resources
47.12 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 subclause, 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. In circumstances where a Staff Member is suspended with pay, the Vice Chancellor will issue directions regarding whether the suspension relates to:
(a) all duties; or
(b) specified duties including adjustments to the way specified duties may be carried out.
47.13 If a Staff Member is suspended without pay then the Staff Member may access any available annual or long service leave entitlement or (with the permission of the University) undertake other paid employment.
47.14 The Director, Human Resources will consider any alleged conduct referred to them under sub clause 47.8 and may:
(a) take no further action;
(b) refer the matter back to the Supervisor with instructions;
(c) determine to resolve the matter through taking Remedial Disciplinary Action. Having regard to the principles of procedural fairness, this may involve the Director, Human Resources making enquiries to inform any action under this subclause.
(d) refer the matter to an investigator for the purpose of investigating the alleged conduct;
(e) proceed under sub clause 47.18.
47.15 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.
47.16 The investigator will investigate the alleged conduct and provide the Director, Human Resources with a report of the investigation.
47.17 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 may:
(a) notify the Staff Member in writing that no further action will be taken by the University in relation to the alleged conduct; and/or
(b) determine to resolve the matter through taking Remedial Disciplinary Action.
47.18 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 the Director, Human Resources 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. In the event that a Staff Member’s response has not changed in light of the Investigator’s report, if any, they may notify the Director, Human Resources that their initial response is their final response.
Referral to Deputy Vice Chancellor
47.19 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, determine to deal with the matter through Remedial Disciplinary Action and take no further 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 subclause (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.
47.20 If the Deputy Vice-Chancellor makes a determination under sub clause 47.19(c), they must proceed in accordance with sub clause 47.28 below.
47.21 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
47.22 If the Director, Human Resources determines that any of the allegations of misconduct/serious misconduct should be referred to an MIC under sub clause 47.19(a) above, the Director, Human Resources will appoint an MIC in accordance with sub clause 47.23. The Committee will convene within 15 working days of its appointment.
47.23 The Committee will comprise three (3) persons consisting of:
(a) a Chair appointed by the Vice-Chancellor from a pool agreed between the Vice-Chancellor and the Chair of the Academic Staff Implementation Committee. The Chair will be external to the Staff Member's Faculty/Office and may be external to the University;
(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
47.24 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.
47.25 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, their Representative) a reasonable opportunity to attend an interview and provide them with an opportunity to respond to the allegations of misconduct or serious misconduct;
(b) make all reasonable efforts to interview any person it thinks fit to establish the facts of the particular case;
(c) invite the Staff Member (and/or, if they so choose, their Representative) and the University's representative to attend all interviews conducted by the MIC;
(d) provide the Staff Member (and/or, if they so choose, their Representative) and the University's representative with an opportunity to ask questions of interviewees whose interview they attend;
(e) provide the Staff Member (and/or, if they so choose, their Staff Representative) and the University with a reasonable opportunity to make submissions and present evidence to the Committee;
(f) conduct the investigation as expeditiously as possible consistent with the requirements of this subclause;
(g) 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;
(h) keep a record of proceedings; and
(i) 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.
47.26 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.
Decision of the Deputy Vice Chancellor
47.27 The DVC may:
(a) form the view that the conduct does not amount to misconduct or serious misconduct. In these circumstances, the DVC will take no further action and advise the Staff Member in writing;
(b) form the view that the conduct warrants Remedial Disciplinary Action; or
(c) form the view that the conduct amounts to misconduct or serious misconduct. In these circumstances, the DVC will undertake the procedure in subclause 47.28 below.
47.28 The DVC will:
(a) advise the Staff Member of the decision regarding what Formal Disciplinary Action, if any, is proposed to be taken;
(b) if any Formal Disciplinary Action is proposed to be taken, invite the Staff Member to advise in writing, within five working days, any matters they want the DVC to take into account in making a decision about what disciplinary action is to be taken;
(c) consider any matters brought to their attention by the Staff Member when deciding what, if any, Formal Disciplinary Action should be taken.
47.29 If, having undertaken the procedure in sub clause 47.28, the DVC is of the view that the conduct amounts to misconduct or serious misconduct, then the DVC may take Formal Disciplinary Action against the Staff Member. The DVC will advise the Staff Member of the final decision about what Formal Disciplinary Action is to be taken and of the operative date of any Formal Disciplinary Action to be taken.
47.30 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.
47.31 The action of the Director, Human Resources and the DVC 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.
47.32 Where, in accordance with subclause 47.19(c) or 47.28, the DVC decides to terminate the employment of a Staff Member, notice or payment in lieu of notice will be as provided in clause 53, Termination of Employment.
47.33 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.
47.34 Any payments in lieu of notice will be based on the Staff Member's salary at the date of termination of employment.
47.35 In instances of termination of employment as a result of serious misconduct involving suspension without pay, there will be no requirement for the notice of termination prescribed in this Agreement.