35. Misconduct/Serious Misconduct Investigation and subsequent action by the Vice-Chancellor
35.1 Where a matter is referred to an external investigator in accordance with Subclause 34.2.7, the Vice-Chancellor will engage the investigator within ten (10) working days, where practicable.
35.2 The investigator will be appointed from a pool of individuals agreed annually between the Vice-Chancellor and employee representatives on the Staff Consultative Committee. The employee representatives on the Staff Consultative Committee will be consulted with on the selection of the investigator.
35.3 The appointed investigator 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.
35.4 The role of the investigator 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.
35.5 The investigator in considering allegations of misconduct may, where they are 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.
35.6 The employee must be clearly informed, in writing, of which new matters the investigator considers may constitute serious misconduct and be given full opportunity to respond.
35.7 Where an investigation is commenced in accordance with Clause 35.1, the investigator 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 either in writing or in person. The investigator may consider any further materials they believe appropriate to substantiate or otherwise the facts in dispute, and interview any other individual they see 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 make submissions, present and challenge evidence and ask questions of interviewees (where appropriate);
- conduct the investigation as expeditiously as possible consistent with the need for fairness.
- keep a taped record of any interview conducted during the investigation 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 the investigation.
At any stage during the investigation, the employee may be represented by a Nominated Representative. The Vice-Chancellor or Delegate may also be represented by a Nominated Representative.
35.8 Vice-Chancellor’s decision
35.8.1 On receipt of the investigation report, and having considered the findings on the facts related to the alleged misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action as defined in Clause 4.2.15 of this Agreement.
35.8.2 If, having considered the investigator'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.
35.8.3 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.
35.8.4 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.
35.8.5 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.