H2. Disciplinary Action for Misconduct or Serious Misconduct

H2.1 Introduction
H2.2 Policy statement
H2.3 Procedures
   H2.3.1 Allegations
   H2.3.2 Suspension
   H2.3.3 Misconduct investigation committee
   H2.3.4 Report to Vice-Chancellor

H2.1 Introduction

H2.2 Policy statement

The University will manage misconduct or serious misconduct of employees in accordance with the provisions of relevant legislation, agreements and awards.

(Approved by Council June 1998)

H2.3 Procedures

Throughout these procedures, “nominated representative” means, in relation to an employee, a person selected by the employee to assist or represent the employee.  The person may be either another employee of the University (but not if such a person is a currently practising solicitor or barrister) or, at the request of the employee, an officer or employee of the relevant Union, or any person chosen by the employee who does not present a conflict of interest.  In relation to the University, it means a person selected by the University to assist or represent the University.  The person may be either an employee of the University (but not if such a person is a currently practising solicitor or barrister) or, an officer or employee of the AHEIA or any other person chosen by the University who does not present a conflict of interest.

Throughout these procedures, “disciplinary action” means action by the University to discipline an employee for misconduct or serious misconduct and includes: formal censure or counselling; demotion by one or more classification levels or increments; withholding of an increment; suspension with or without pay; or termination of employment for serious misconduct only.

H2.3.1 Allegations

H2.3.1(a) Any allegation of misconduct or serious misconduct will be considered by the Vice-Chancellor.  If the Vice-Chancellor believes such allegations warrant further investigation, the Vice-Chancellor will:

• Notify the employee 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;  and
• Require the employee to submit a written response within 10 working days.

H2.3.1(b) If the allegations are denied by the employee, and 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.

H2.3.1(c) If the allegations are admitted in full by the employee, and the Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, the Vice-Chancellor will advise the employee, in writing, of the Vice-Chancellor's decision and the operative date of the disciplinary action.

H2.3.1(d) If the allegation is denied in part or in full, or if the employee has not responded to the allegations, the Vice-Chancellor will refer the matter to a Misconduct Investigation Committee unless the Vice-Chancellor decides to take no further action or counsel or censure the employee for unsatisfactory behaviour and take no other action.

H2.3.2 Suspension

H2.3.2(a) At the time of notifying the employee under H2.3.1(a), the Vice-Chancellor may suspend the employee on full pay, or may suspend the employee without pay if the Vice-Chancellor is of the view that the alleged conduct amounts to serious misconduct such that it would be unreasonable to require the University to continue employment during a period of notice.  After notifying the employee under H2.3.1(a), the Vice-Chancellor may, in exceptional circumstances, at the time of their choosing, suspend the employee on full pay, or may suspend the employee without pay if the Vice-Chancellor is of the view that the alleged conduct amounts to serious misconduct such that it would be unreasonable to require the University to continue employment during a period of notice.

H2.3.2(b) Where suspension without pay occurs at a time when the employee is on paid leave of absence the employee will continue to receive a salary for the period of leave of absence.

H2.3.2(c) The employee may engage in external paid employment or draw on any recreation leave or eligible long service leave credits during the suspension without pay.

H2.3.2(d) The Vice-Chancellor may direct that salary be paid on the grounds of hardship.

H2.3.2(e) Where a suspension without pay has been imposed and the matter is subsequently referred to a Misconduct Investigation Committee, the Vice-Chancellor will ensure that the Misconduct Investigation Committee at its first meeting determines whether suspension without pay should continue.  The Misconduct Investigation Committee will provide advice as to whether the suspension without pay should  continue.

H2.3.2(f) During any period of suspension the employee may be excluded from the University, provided that the employee will be permitted reasonable access to the University for the preparation of the employee’s case and to collect personal property.

H2.3.3 Misconduct investigation committee

H2.3.3(a) The terms of reference of the Misconduct Investigation Committee are to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.

H2.3.3(b) Where a matter is referred to a Misconduct Investigation Committee, the Vice-Chancellor will convene the Misconduct Investigation Committee within 10 working days, where practicable.

H2.3.3(c)  The Misconduct Investigation Committee will consist of three members as follows:

• An employee chosen by the Vice-Chancellor;
• An employee nominated by the employee representatives on the Staff Consultative Committee from a pool of employees elected by and from employees, whose conditions of employment are covered by the Certified Agreement;
• A chairperson chosen by the Vice-Chancellor following consultation with the two committee members.

H2.3.3(d) 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.

H2.3.3(e) 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.

H2.3.3(f) The Misconduct Investigation Committee will:

• provide an opportunity for the employee to be interviewed by it and ensure that the employee has adequate opportunity to answer allegations of misconduct or serious misconduct;
• take into account such further materials as it believes appropriate to substantiate or otherwise the facts in dispute;
• interview any person it thinks fit to establish the merits or facts of the particular case;
• allow the employee, where they choose, to be represented by a nominated representative, and the Vice-Chancellor or delegate to be assisted by a nominated representative;
• ensure that the employee, or where they choose 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 its proceedings in camera (unless otherwise agreed) as a Committee of inquiry as expeditiously as possible consistent with the need for fairness;
• take into account such further material as it believes appropriate to the case;
• make its report available to the Vice-Chancellor and the employee within 10 working days following the conclusion of the review;
• 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.

H2.3.4 Report to Vice-Chancellor

H2.3.4(a) 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.

H2.3.4(b) If 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.

H2.3.4(c) 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.

H2.3.4(d) The University is not constrained from carrying out other investigations relating to the consequences of conduct of an employee.

H2.3.4(e) All actions of the Vice-Chancellor under this Section will be final, except that nothing in this Section will be construed as excluding the jurisdiction of any external court, tribunal or commission competent to deal with the matter.