Misconduct
53Decisions on Disciplinary Action or Termination of Employment
53.1Where the University believes that Disciplinary Action is required to be taken for Misconduct, Serious Misconduct (including Research Misconduct) or Unsatisfactory Performance, the University will act in accordance with clauses 56 and 57 respectively.
53.2All decisions to discipline or terminate the employment of an employee will be in accordance with provisions as set out in this Agreement. Nothing in this Agreement precludes the University from pursuing cases of abandonment of employment.
53.3The timelines referred in clauses 56, 57 and 58 may be varied by mutual agreement between the Relevant Senior Executive, the employee or their Representative.
53.4This clause and clauses 56 and 57 will have no application to Casual employees.
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7Definitions
7.X “Gender-Based Violence”any form of physical or non-physical violence, harassment, abuse or threats, based on gender, that results in, or is likely to result in, harm, coercion, control, fear or deprivation of liberty or autonomy.
7.13X“Misconduct” means conduct on the part of an employee that is unsatisfactory and inconsistent with the expectations of an employee, but which is not so serious as to justify the possibility of termination of employment.
7.22 X “Serious Misconduct”has its ordinary meaning. Examples of serious misconduct include the following conduct of an employee:is conduct of a serious and wilful nature and is normally conduct of a type that would make it unreasonable to require the University to continue employment of the employee concerned. Serious Misconduct can be represented by a pattern of behaviour or a single occurrence. It is normally limited to:
a. wilful andor deliberate behaviour that is inconsistent with the continuation of the contract of employment;
b. conduct that causes serious detriment and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the University;
c. engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;
d. being intoxicated at work;
e. refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment;
f. engaging in misconduct of a sexual nature; or
g. engaging in Gender-Based Violence.
a. theft from the University, or from employees or students;
b. assault involving another employee, or student, or which is occasioned on campus or at a work related function or activity;
c. conduct of a kind which constitutes a significant impediment to the carrying out of an employee’s duties or to the employee’scolleagues carrying out their duties;
d. conviction by a court of an offence or judgment entered in a court or tribunal which constitutes a serious impediment of the kind referred to above;
e. conduct of a serious nature which in the reasonable opinion of the University breaches the University's Code of Conduct;
f. serious dereliction of the duties required of the employee’s position;
g. and/or engaging in sexual harassment.
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56 Misconduct / Serious Misconduct
56.1 This clause does not apply to Casual Employees or employees serving a period of Probation (as set out in clause X (Probation)).
56.156.21Procedural Matters
a. Employees subject to processes provided for under this clause will be given a copy of this clause together with the Notice of Allegations.
b. When dealing with Misconduct and / or Serious Misconduct, a decision-maker must decide to their reasonable satisfaction based solely on the information before themon the balance of probabilities, whether the employee has committed an act or acts of Misconduct and /
c. or Serious Misconduct.
d.a. Employees are entitled to be represented throughout proceedings under this clause by a nominated Representative.
e.b. These processes will operate in accordance with the principles of natural justice and procedural fairness.
c. If at any time during the operation of these processes the employee offers to resigns with immediate effect, the resignation willshall be accepted by the relevant Senior ExecutiveUniversity, and the Misconduct / Serious Misconduct proceedings shall cease immediately subject to any University governance or legislative requirementsand the employee’s employment will cease immediately.
d. It is in the interests of all parties that processes under this clause are managed in a timely manner, balancing the psychosocial wellbeing of employees with the requirements of procedural fairness.
f.
g. It is in the interests of all parties that disciplinary processes are finalised in a timely manner.
e. The timeframes in this clause may be varied by mutual agreement between the employee and the University.
h.f. The timeframes specified in this clause will not apply to matters involving an allegation/s of Gender-Based Violence, provided that an employee will be afforded procedural fairness.
56.3 2 Investigation
a. Where a matter arises which may involve an allegation of Misconduct and/or Serious Misconduct, the University may elect to conduct an investigation into an employee/’’s alleged conduct.
b. The University may direct an employee to provide relevant information to an investigation, including attending an investigation interview, where required.
56.4 Preliminary Management Action
a. In determining whether a matter which may constitute Misconduct should be dealt with under this clause, consultation must occur with the Chief Human Resources Officer or nominee.
b. Other than in the case of allegations of Serious Misconduct or repeated Misconduct, the Head of the Organisational Unit (or nominee) may at an early stage take measures they consider practical and appropriate to resolve a matter (where the conduct at issue may or may not constitute Misconduct) in lieu of referring the matter to the Relevant Senior Executive. Such measures may include one or more of the following:
- guidance and counselling;
- a requirement to undertake appropriate development activities;
- providing the employee with a written statement of expectations in relation to their conduct; or
- giving the employee a written warning.
The provision of a written warning under this clause does not constitute a finding of Misconduct.
c. A record of measures taken will be made and kept on the employee’s file. This may include a statement from the employee in relation to the matter.
56.256.5 Suspension
a. If at any time the Chief Human Resources Officer is of the view that an employee’s alleged conduct is such that it would be unreasonable and/or pose a risk for the University to continue the employee’s attendance at work, the Chief Human Resources Officer may suspend the employee with or without pay and inform the employee in writing.
b. Where suspension without pay occurs:
(i) the employee can draw on any annual leave or long service leave entitlements for the duration of the suspension without pay; and
(ii) the Chief Human Resources Officer may, at any time, direct that salary be paid on the grounds of hardship.
c. During any period of suspension, the employee:
(i) will remain contactable;
(ii) may be excluded from the University, including access to University systems; and
(iii) will , provided that the employee will be permitted reasonable access to the University for the preparation of their response to the allegations against them and to collect personal property.
d. If the employee is for any period suspended without pay, then, following the process required by this clause, if it is determined that the employee has not engaged in Misconduct or Serious Misconduct, the employee will be reimbursed any lost salary and entitlements.
56.3Preliminary Management Action
56.4 In determining whether a matter which may constitute Misconduct should be dealt with under this sub-clause, consultation must occur with the Chief Human Resources Officer or nominee.
56.5 Other than in the case of allegations of Serious Misconduct or repeated Misconduct, the Head of the Organisational Unit (or nominee) may at an early stage take measures they consider practical and appropriate to resolve a matter (where the conduct at issue may or may not constitute Misconduct) in lieu of referring the matter to the Relevant Senior Executive. Such measures may include one or more of the following:
56.6 guidance and counselling;
56.7 a requirement to undertake appropriate development activities;
56.8 providing the employee with a written statement of expectations in relation to their conduct; or
56.9 giving the employee a written warning.
56.10 The provision of a written warning under this clause does not constitute a finding of Misconduct.
56.11 A record of measures taken will be made and kept on the employee’s file. This may include a statement from the employee in relation to the matter.
56.1256.656.4Referral of Possible Misconduct / Serious Misconduct to the Relevant Senior Executive
Where a matter is not or cannot be resolved in accordance with clause 56.456.3 the matter may be referred to the Relevant Senior Executive by the relevant Executive Dean/Institute Director/Head of DivisionChief Human Resources Officer (or nominee). Nothing in this clause prevents the Chief Human Resources Officer (or nominee) from referring a matter directly to the Relevant Senior Executive, or prevents the Relevant Senior Executive from issuing allegations without a referral in accordance with this clause.
56.1356.7 5Notice of Allegations
Where the Relevant Senior Executive considers that there may be a possible case of Misconduct or Serious Misconduct, they will notify the employee of the allegations in writing and in sufficient detail to enable the employee to understand the precise nature of the allegations, and to properly consider and respond to them. Employees subject to processes provided for under this clause will be given a copy of this clause together with a notice of allegations.
56.14
56.1556.8 6Response to Notice of Allegations
The employee will have ten (10) working days after the date of receipt of the Notice of Allegations to submit a written response to the Relevant Senior Executive.
56.1656.97Relevant Senior Executive’s Determination
a. The standard of proof by which the Relevant Senior Executive will determine the matter is on the balance of probabilities whether, after evaluating the evidence presented, including the employee’s response (if any) the allegation/s are proven.
a.b. Within ten (10) working days after the date of receipt of the employee’s response, the Relevant Senior Executive must form a view and advise the employee in writing, that either:
(i) there has been no Misconduct or Serious Misconduct and as such that no further action is to be taken; or
(ii) the allegation(s) have been substantiated, resulting in a finding of Misconduct or Serious Misconduct, the reasons for the finding and the relevant Disciplinary Action (in accordance with clause 7.X) to be imposed.
b.c. The timeframe for response by the Relevant Senior Executive may be extended for a reasonable additional period where new information is presented to the Relevant Senior Executive that requires further consideration.
c. The standard of proof by which the Relevant Senior Executive will determine the matter is on the balance of probabilities whether, after evaluating the evidence presented, including the employee’s response (if any) the allegation/s are proven, the Relevant Senior Executive is satisfied that the allegations against an employee have been proven. It is sufficient if a fact is proved to the reasonable satisfaction of the Relevant Senior Executive.
d. Where the Disciplinary Action imposed by the Relevant Senior Executive is termination of employment, or where the Disciplinary Action imposed may result in financial hardshippenalty, the employee will be given five (5) working days after the date of receipt of the Relevant Senior Executive’s determination to respond in writing. The Relevant Senior Executive will consider any response provided by the employee prior to making a final decisiondetermination.
If an Academic Employee does not accept the final determination and/or Disciplinary Action pursuant to 56.9(d), (other than a decision to apply a Disciplinary Action of counselling, training or retraining or a written or formal warning), they may refer the matter through the Relevant Senior Executive to request a review of the determination in accordance with clause X (Review of Determination). It is in the interests of all parties that disciplinary processes are finalised in a timely manner.
e.
56.17 Committee of Review
If the employee does not accept the determination and/or Disciplinary Action (other than a decision to apply a Disciplinary Action of counselling, training or retraining or a written or formal warning), they may refer the matter through the Relevant Senior Executive to a Committee of Review in accordance with clause 58 of this Agreement.
56.1856.10 Confidentiality
Proceedings pursuant to this clause are confidential and must not be disclosed outside of the University by the Relevant Senior Executive, the Vice-Chancellor and President, the employee or any other University employee, except as required by law or for matters involving Gender-based Violence.
This clause does not prevent disclosure of information to any party's advisors or anyone who is required to be advised of that information, provided the recipients are also instructed to maintain similar confidentiality.