68. Unsatisfactory performance and misconduct

Application

68.1 The procedures set out in this Part will apply where there is alleged or actual:

• continued unsatisfactory performance;
• misconduct; or
• serious misconduct.

68.2 This Part does not apply to casual staff members.

68.3 The procedures in this Part do not apply to action in relation to unsatisfactory performance during a probation period, or to termination of employment under the probationary procedures.

Definitions

68.4 Unsatisfactory performance occurs where performance is below and continues to be below expected performance standards, despite attempts to improve performance in accordance with the Performance Improvement Measures set out in clause 64.

68.5 Misconduct means:

• negligence in the performance of the duties of the position held;
• misbehaviour (which shall include favouritism); or
• conduct in breach of the staff member’s contract or the University’s policies, regulations or procedures that does not constitute serious misconduct.

68.6 Serious misconduct:

1. Serious misconduct means in relation to professional staff, any action or omission which would constitute serious misconduct under the Fair Work Act.
2. Serious misconduct means in relation to academic staff:
   • 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; or
   • serious dereliction of duties; or
   • conviction by a court of an offence 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; or
   • acceptance of payment or other forms of inducement to vary the result of a student.
3. Examples of conduct which may constitute serious misconduct are:
   • theft;
   • fraud;
   • assault;
   • serious or repeated bullying or harassment, including sexual harassment;
   • persistent or repeated acts of misconduct; and
   • wilful and gross breach of the staff member’s contract, the University’s policies or regulations, such that it would be unreasonable to continue the staff member’s employment.

68.7 Disciplinary action means action by the University to discipline a staff member and is limited to:

• formal censure, warning or counselling;
• withholding of an increment for up to one year;
• demotion to a lower classification or increment and/or transfer to another position;
• in the case of professional staff unsatisfactory performance primarily related to a lack of skill or capacity, transfer to a more appropriate position;
• suspension with pay; or
• termination of employment, provided it may only occur on the following basis:
  • for continuing staff, in the case of serious misconduct or unsatisfactory performance, and
  • for fixed term staff, in the case of serious misconduct.

68.8 Upon a finding of misconduct or serious misconduct, disciplinary action includes administrative action, such as physical (but not organisational) relocation of the staff member or suspension of access to particular University computer applications that may be taken, having regard to the nature of the misconduct. For administrative action to be taken, there must be a sufficient connection between the action and the offence, and the purpose and extent of the administrative action must only be such as is strictly necessitated by the circumstances, not to impose an additional penalty.

Procedures

68.9 The Vice-Chancellor may take disciplinary action against a staff member for unsatisfactory performance, misconduct, or serious misconduct on the recommendation of the Provost or the Executive Director (Human Resources), if:

• allegations of misconduct or serious misconduct against the staff member have been investigated by an impartial person/s and a report of the investigation has been forwarded to the Provost or the Executive Director (Human Resources) and Vice Chancellor; or
• in the case of unsatisfactory performance, the staff member has previously been given a reasonable opportunity to improve their performance, a report consistent with clause 68.4 has been submitted to the Executive Director (Human Resources) for review and the staff member has had the opportunity to respond;

and

• the Review and Appeals process, if invoked, has concluded; and
• the staff member has been accorded fair treatment.

68.10 A staff member has been accorded fair treatment if:

• the staff member has been advised in writing of allegations made against her or him, including relevant facts, reasoning and documentation;
• the staff member has, during the investigation process, been given a reasonable opportunity to be heard, to produce all relevant evidence, to have relevant persons interviewed and to make written submissions in relation to all allegations and to comment on any disciplinary action recommended;
• the allegations have been investigated in accordance with this Agreement and with law;
• findings made against the staff member are made on the basis of a reasonable and accurate assessment of the evidence; and
• any disciplinary action is proportionate to the staff member’s alleged conduct or performance.

68.11 ‘Allegations’ refers to all the allegations which have led to the determination of unsatisfactory performance, misconduct or serious misconduct.

68.12 A recommendation from the Provost or the Executive Director (Human Resources) that a disciplinary penalty be imposed must be forwarded to the staff member before the Vice Chancellor determines the matter. The recommendation must be accompanied by a report detailing the alleged unsatisfactory performance, misconduct or serious misconduct and stating:

• findings of fact;
• conclusions reached on the evidence provided (including an outline of any evidence and documents relied on); and
• reasons in support of findings (including any mitigating factors).

68.13 A staff member may seek review of the recommendation of the Provost or Executive Director (Human Resources) by the Review and Appeals Committee within ten (10) days of receiving it.

68.14 Where review is sought, the Review and Appeals Committee shall report to the Vice-Chancellor on:

1. whether there is sufficient evidence to support the finding of misconduct or serious misconduct;
2. whether the procedures of in this clause have been followed; and
3. whether the proposed disciplinary action is in proportion to the level of unsatisfactory performance, misconduct or serious misconduct.

A copy of that report will be provided to the staff member.

68.15 The Committee must report within 20 working days of first convening (or such longer time as the Vice- Chancellor allows). The Vice-Chancellor shall then determine the matter and advise the staff member of the grounds for the penalty arising from the recommendations of the Review and Appeals Committee.

68.16 A staff member has the right to be represented by a person other than a practising barrister or solicitor when a matter is being investigated or reviewed under this Part.

68.17 At the time allegations are put to a staff member, the staff member must be advised whether, in the opinion of the University, the allegations amount to serious misconduct. If, at any stage during the investigation referred to in clause 68.9, but prior to a recommendation being made to the Vice-Chancellor pursuant to clause 68.12, the University finds that the allegations need to be amended or new allegations added or the allegations contain additional elements which amount to serious misconduct, the staff member must be advised of this in writing and be given a further reasonable opportunity to provide a response prior to any further steps being taken by the University.

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69. Review and Appeals Committee

69.1 The University will establish a Review and Appeals Committee to hear requests for review arising from decisions relating to unsatisfactory performance, misconduct, serious misconduct and academic probation.

Composition

69.2 The Review and Appeals Committee shall consist of three members:

1. a person from within the University chosen by the Vice-Chancellor;
2. a person from within the University nominated by the relevant Union; and
3. a chairperson chosen by the Vice-Chancellor in accordance with clause 69.6.

69.3 No member of a Review and Appeals Committee may represent the interests of either the University or the staff member.

Chairpersons of Review and Appeal Committees

69.4 Chairs appointed to Review and Appeal Committees under clause 69.2 shall have relevant experience, be independent and command the confidence of management and staff.

69.5 A pool of Chairs will be established by agreement between the University and the NTEU. Once initially established, the University and the NTEU can add additional persons to the pool by agreement.

69.6 The Chair of each Review and Appeal Committee established under this clause will be agreed between the University and the NTEU by the following process:

1. The Vice-Chancellor will nominate an individual from the pool of Chairs referred to in clause 69.5. If the NTEU does not object to this nominee in accordance with clause 69.6(b), he or she will be appointed as Chair.
2. The NTEU may object to the Chair nominated by the Vice-Chancellor in clause 69.6(a) if the NTEU considers that the nominee does not meet the requirements in clause 69.4, by providing a written statement to the University within 5 working days of the nomination.
3. The University will consider the NTEU’s written objection and the Executive Director (Human Resources), or nominee, will meet with the NTEU to discuss the objection within five working days of receiving the written objection with a view to resolving the matter.
4. If the matter cannot be resolved through the discussion in clause 69.6(c), the NTEU may refer the matter to FWA for conciliation within three working days of the discussion, requesting FWA convene a conference of the University and the NTEU as soon as possible to assist the parties to reach agreement on the Chair to be appointed from the pool. In the absence of agreement, the University and the NTEU agree to comply with any recommendation of FWA regarding the Chair to be appointed from the pool.
5. If the NTEU does not apply to FWA within the timeline articulated in clause 69.6(d), the agreed and appointed Chair for the purposes of this clause will be the Vice-Chancellor’s initial nominee in clause 69.6(a).

Operation of Review and Appeal Committees

69.7 The Review and Appeals Committee must:

• act quickly, fairly, impartially, and confidentially;
• only consider the case brought before it in the light of the grounds for review specified at clause 68.14;
• provide a reasonable opportunity for the University and staff member and if they so wish, their Representatives:
  • to make representations and answer any matters in person or in writing,
  • to question any witnesses, and,
  • to present and challenge evidence;
• consider all the material relevant to the matter, including all material considered in any initial investigation, and any other material it thinks fit;
• permit the University and staff member and if they so wish, their Representatives, to be present at all hearings where evidence is taken or submissions are being made;
• at the request of the staff member or the University, keep an audio recording of the proceedings, but not its deliberations, which will be made available on request to either party;
• provide reasons to the Vice Chancellor; and
• provide a report in accordance with clause 68.14.

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70. Suspension after allegation of serious misconduct

70.1 Where serious misconduct is alleged, the Provost or the Executive Director (Human Resources) may suspend the staff member. Such suspension shall be on full pay.

70.2 Written notification of suspension, including the grounds for suspension shall be given to the staff member within two (2) working days of the suspension. During any period of suspension the staff member may be excluded from the University and denied access to University systems and facilities, provided that s/he shall be permitted reasonable access to the University for the preparation of his or her case and to collect personal property.

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