35. Misconduct/Serious Misconduct Investigation Committee and Subsequent Action by the Vice-Chancellor
35.1 Where a matter is referred to a Misconduct Investigation Committee in accordance with Subclause 34.2.7, the Vice-Chancellor will convene the Misconduct Investigation Committee within ten (10) working days, where practicable.
The Committee will consist of:
- A Chairperson agreed between the Vice-Chancellor and employee representatives on the Staff Consultative Committee;
- An employee nominated by the Vice-Chancellor;
- An employee nominated by the employee representatives on the Staff Consultative Committee.
A Committee member has an obligation to advise of any conflicts/s or potential conflicts of interest that may undermine the application of natural justice and procedural fairness.
35.2 The role of the Misconduct Investigation Committee referred to in Clause 35.1 is to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.
35.2.1 A Misconduct Investigation Committee which is considering allegations of misconduct may, where it is convinced that the merits and facts of the particular case go substantially beyond those contained in the initial allegation, indicate that the allegation must be considered one of serious misconduct.
35.2.2 The employee must be clearly informed, in writing, of which new matters the Misconduct Investigation Committee considers may constitute serious misconduct and be given full opportunity to respond.
35.2.3 Where a Misconduct Investigation Committee is convened in accordance with Clause 35.1, the Committee will:
- provide an opportunity for the employee against whom the allegations are made, to be interviewed and ensure that the employee has adequate opportunity to answer allegations of misconduct or serious misconduct. The Committee may consider any further materials it believes appropriate to substantiate or otherwise the facts in dispute, and interview any other individual it sees fit to establish the merits or facts of the particular case;
- ensure that the employee, or their nominated representative, and the Vice-Chancellor or delegate, or nominated representative, have the right to ask questions of interviewees, to make submissions and to present and challenge evidence;
- conduct proceedings in camera (unless otherwise agreed); as a Committee of inquiry; as expeditiously as possible consistent with the need for fairness.
- keep a taped record of the proceedings (but not its own deliberations), which will be available on request to the employee or the Vice-Chancellor; and
- provide a report to the Vice-Chancellor and the employee within 10 working days following the conclusion of Committee’s proceedings.
At any stage during the process, the employee may be represented by a nominated representative. The Vice-Chancellor or delegate may also be represented by a nominated representative.
35.4 Vice-Chancellor’s Decision
35.4.1 On receipt of the report of the Misconduct Investigation Committee, and having considered its findings on the facts related to the alleged misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action as defined in Clause 4.2.11 of this Agreement.
35.4.2 If, having considered the Misconduct Investigation Committee's findings on the facts relating to the alleged misconduct or serious misconduct, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct the Vice-Chancellor will immediately advise the employee in writing, and may, by agreement with the employee, publish the advice in an appropriate manner.
35.4.3 Where an employee has been suspended without pay pending the decision of the Vice-Chancellor, any lost income will be reimbursed if there was no misconduct or serious misconduct. However, a decision taken by the Vice-Chancellor, at the Vice-Chancellor’s discretion, not to dismiss or impose another penalty, will not be construed as an admission that there was no conduct justifying suspension without pay.
35.4.4 This Clause in no way constrains the University from carrying out other or further investigations relating to the consequences of the conduct of an employee.
35.4.5 All actions of the Vice-Chancellor under this Clause will be 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.