38.       MISCONDUCT/SERIOUS MISCONDUCT

38.1     Definitions and Procedural Matters

For the purposes of this clause:

(a)       ‘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.

(b)       ‘Serious Misconduct’ is misconduct 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 staff member concerned. Serious misconduct can be represented by a pattern of behaviour or a single occurrence. It is normally limited to:

(i)        theft from the University, or from staff or students;

(ii)       assault involving another staff member, or student, or which is occasioned on campus or at a work-related function or activity;

(iii)      conduct of a kind which constitutes a significant impediment to the carrying out of a staff member’s duties or to the staff member’s colleagues carrying out their duties;

(iv)       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 in (iii);

(v)        conduct of a serious nature which in the reasonable opinion of the University breaches the University's Code of Conduct;

(vi)       serious dereliction of the duties required of the staff member’s position.

(c)        ‘Disciplinary Action’ means action by the University to discipline a staff member and may include one or a combination of the following:

(i)        counselling and/or training;

(ii)       formal warning;

(iii)      withholding of an increment for one year;

(iv)       removal of one or more increments;

(v)        demotion or temporary demotion by one classification level;

(vi)       redeployment to another position with or without demotion or loss of salary;

(vii)      reallocation of duties; and

(viii)     in the case of Serious Misconduct only, termination of employment without notice.

(d)       When dealing with Misconduct and / or Serious Misconduct, a decision-maker must decide to their reasonable satisfaction, whether the staff member has committed an act or acts of misconduct and / or serious misconduct.

(e)       The staff member is entitled to be represented throughout proceedings under this clause by a Representative as defined in this Agreement.

(f)        These procedures will operate in accordance with the principles of natural justice and procedural fairness.

(g)       If at any time during the operation of these procedures the staff member offers to resign with immediate effect, the resignation shall be accepted by the relevant Senior Executive and the Misconduct/Serious Misconduct proceedings will cease immediately, subject to any legislative reporting requirements.

(h)       It is in the interests of all parties that disciplinary processes are finalised in a timely manner.

38.2     Preliminary management action

(a)       In determining whether a matter which may constitute Misconduct should be dealt with under this sub-clause, a supervisor must consult with the Director Human Resources or nominee.

(b)       Other than in the case of allegations of Serious Misconduct or repeated Misconduct, a supervisor may at an early stage take measures they consider practical and appropriate to resolve a matter which 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:

(i)        guidance and counselling;

(ii)       a requirement to undertake appropriate development activities;

(iii)      providing the staff member with a written statement of expectations in relation to their conduct; and/or

(iv)       giving the staff member 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 staff member’s file and may also include a statement from the staff member in relation to the matter.

38.3     Referral of possible Misconduct /Serious Misconduct matter to Relevant Senior Executive

(a)       Where a matter should not or cannot be resolved in accordance with 38.2, the matter may be referred to the relevant Senior Executive by the Relevant Executive Dean/Institute Director or Head of Division.

(b)       Nothing in this clause prevents the HR Director (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.

38.4     Notice of Allegation/s

Where the Relevant Senior Executive considers that there may be a possible case of Misconduct or Serious Misconduct, they will provide the staff member, in writing, sufficient detail of the matters alleged.

38.5     Response to Notice of Allegation/s

The staff member will have ten (10) working days after the date of receipt of the Notice of Allegation/s, to submit a written response to the Relevant Senior Executive.

38.6     Relevant Senior Executive’s Determination

(a)       Within ten (10) working days after the date of receipt of the staff member’s response, the Relevant Senior Executive must form a view, and advise the staff member 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 matters alleged have resulted in a finding of Misconduct or Serious Misconduct and the relevant disciplinary action to be imposed.

(b)       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 would require further consideration.

(c)        The standard of proof by which the relevant Senior Executive will determine the matter is whether, after evaluating the evidence presented, including the staff member’s response (if any) the relevant Senior Executive is reasonably satisfied that the case against a staff member has been proven. It is sufficient if a fact is proved to the reasonable satisfaction of the relevant Senior Executive.

(d)       Where the disciplinary action to be applied by the Relevant Senior Executive is termination of employment, the staff member will be informed of the recommended disciplinary action in writing and begiven five (5) working days after the date of receipt of the determination to respond in writing. The Relevant Senior Executive will consider any response provided by the staff member prior to making a final decision on termination of employment.

38.7     Suspension

(a)       If the Relevant Senior Executive is of the view that the alleged conduct is such that it would be unreasonable and/or poses a risk for the University to continue the staff member’s attendance at work, the Relevant Senior Executive may in consultation with the Director, Human Resources, suspend the staff member with or without pay and inform the staff member in writing.

(b)       Where suspension without pay occurs:

(i)        the staff member can draw on any recreation leave or long service leave entitlements for the duration of the suspension without pay; and

(ii)       the relevant Senior Executive may at any time direct that salary be paid on the grounds of hardship.

(c)        During any period of suspension, the staff member may be excluded from the University, provided that the staff member will be permitted reasonable access to the University for the preparation of his/her case and to collect personal property.

(d)       If the staff member is suspended for any period without pay, and it is later determined that the staff member has not engaged in Misconduct or Serious Misconduct, the staff member will be reimbursed for any lost salary and entitlements.

38.8     Confidentiality

Proceedings pursuant to this clause are confidential and must not be disclosed outside of the University. 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 advised to maintain similar confidentiality.