53. Unsatisfactory Performance

  1. Professional staff collective agreement
    1. The purpose of this clause is to ensure that issues of unsatisfactory performance are managed in a consistent and transparent manner. Employees are to be provided with all relevant information on issues of concern and given opportunity and support to improve their performance. Supervisors must provide employees with regular feedback on their performance as outlined in Clause 48 (Performance Planning, Development and Review System).
    2. Definitions

    3. Unsatisfactory Performance” means a level of performance that is unacceptable, and may include, but is not limited to:
      • unsatisfactory, inefficient or negligent performance of the specified duties of the position held;
      • persistent, unsupported absence or lateness, or persistent unavailability; held;
      • persistent substantiated complaints by students or other employees about not achieving the required and reasonable standard of work duties and responsibilities or meeting deadlines; and/or held;
      • inadequate completion of administrative tasks or other responsibilities without reasonable justification.

      Management of Unsatisfactory Performance

    4. Supervisors are responsible for managing the performance of employees reporting to them.
    5. At any time in this process an employee can seek the advice and support of Human Resource Services.
    6. Before taking the other measures set out in this clause a supervisor must make every reasonable effort to resolve instances or aspects of an employee’s performance which are viewed as possibly unsatisfactory. This includes provision of guidance, support, counselling, appropriate staff development measures and, if considered necessary, variation of work allocation. Only when all such efforts fail to rectify the possible unsatisfactory performance should the following formal process be undertaken.
    7. Where a supervisor forms the view that the performance of an employee is unsatisfactory the supervisor will:
      1. meet with the employee and inform the employee of the aspects of performance which are viewed as being unsatisfactory; and
      2. document within a performance improvement plan the improvements required to resolve the employee’s unsatisfactory performance. This includes a reasonable review period within which the necessary improvements are expected and set dates during that period when progress will be reviewed; and
      3. 53.6.3 if considered appropriate, direct the employee to undertake specified staff development activities; and
      4. provide the employee with an opportunity to bring to attention any mitigating circumstances or other relevant matters; and
      5. take into account any mitigating circumstances or other relevant matters which the employee may bring to attention and provide the employee with a document which sets out the matters referred to in 53.6.1 to 53.6.4 at the commencement of the review period.
    8. If at the conclusion of the first review period the supervisor is of the view that the employee’s unsatisfactory performance has not been resolved, the supervisor will undertake a further review and determine if there are additional support and development options, which may include counselling, to provide the employee with further opportunity to improve their performance.
    9. If at the conclusion of a review period the supervisor is of the view that the employee’s performance has improved, the supervisor will advise the employee in writing that the unsatisfactory performance process has been completed.
    10. If at the conclusion of the second review period the supervisor is of the view that the employee’s unsatisfactory performance has not been resolved, the supervisor will report the matter to the Head of Cost Centre. Any report must set out the aspects of the employee’s performance viewed as being unsatisfactory, together with the steps taken to improve their performance. A copy must be provided to the employee at the same time it is submitted to the Head of Cost Centre. The employee may submit a written response to the Head of Cost Centre within ten (10) working days.
    11. Where the supervisor is also the Head of Cost Centre (or Vice-Chancellor) a report referred to in subclause 53.9 will be made to the appropriate Senior Executive and a copy provided at the same time to the employee.
    12. Upon receipt of a report made in accordance with subclause 53.9 or 53.10, and the employee’s written response, where relevant, the Head of Cost Centre or Senior Executive will:
      1. meet with the employee; and
      2. consider the report and any response submitted by the employee; and
      3. determine whether the steps required by this clause have been undertaken; and,
      4. if so, determine whether a reasonable opportunity has been afforded to the employee to resolve the unsatisfactory performance; and
      5. determine whether any mitigating circumstances or other relevant matters bought to attention by the employee have been taken into account; and
      6. where the employee has so requested, confidentially consult with colleagues of the employee.
    13. Where the Head of Cost Centre or Senior Executive is not satisfied in relation to any of the matters set out in subclause 53.11.1 to 53.11.6, the report must be returned to the supervisor with a direction as to the measures to be undertaken to satisfy subclause 53.11.1 to 53.11.6 and the employee advised of those measures.
    14. Where the Head of Cost Centre or Senior Executive is satisfied in relation to each of the matters set out in subclause 53.11.1 to 53.11.6, they may:
      1. dismiss the matter; or
      2. where there is substance in the allegations, reprimand the employee, and a copy of the formal notice of reprimand recorded on the employees personnel file; or
      3. where the seriousness of the matter warrants, recommend to the Vice-Chancellor disciplinary action, which is limited to:
        1. withholding a salary increment for up to one (1) year; or
        2. the reallocation of duties, or transfer to another role, where appropriate, which may result in a reduction in level and subsequent reduction in salary; or
        3. that consideration is given to termination of employment. Termination of employment would only be for unresolved unsatisfactory performance.
      4. The Head of Cost Centre or Senior Executive must advise the employee in writing of the outcome.
      5. For action taken in accordance with subclause 53.13.2 - 53.13.3, the Head of Cost Centre or Senior Executive must advise the employee they may seek a review of the decision in accordance with subclause 53.16.
      6. A review of the action taken in accordance with subclause 53.13.2 - 53.13.3 must be on one or more of the following grounds:
        1. there is insufficient evidence to support the finding of unsatisfactory performance;
        2. the procedures of this clause have not been followed;
        3. the proposed disciplinary action is unreasonable in light of the level of unsatisfactory performance.
      7. The request for a review must be in writing, to the Vice-Chancellor, and received within five (5) working days from the receipt of the written advice, in accordance with subclause 53.14.
      8. Where the employee seeks a review of the decision, in accordance with subclause 53.16, the Vice-Chancellor must establish a Review Panel within ten (10) working days to consider the case for review.
      9. Where an employee does not seek a review of a recommendation, in accordance with subclause 53.16 within five (5) working days, the Vice-Chancellor will consider the recommendations of the Head of Cost Centre or Senior Executive and any written response from the employee and will determine such action as is deemed reasonable and appropriate in accordance with this clause. The Vice Chancellor will advise the employee in writing of their decision within ten (10) working days from the receipt of the written advice, in accordance with subclause 53.13.3.
      10. Review Panel

      11. A Review panel will be constituted as follows:
        • Chairperson (who is not a union official) appointed by the Vice-Chancellor as agreed between the University and the CPSU or NTEU;
        • a relevant Senior Executive; and
        • an employee nominated by the relevant union.
      12. The panel members will not have been materially involved in any way in the process.
      13. The panel will convene no later than ten (10) working days from the date of receipt of the request for review, unless the Vice-Chancellor and the affected employee mutually agree an alternative timeframe.
      14. The Review Panel will:
        • conduct proceedings in private, unless the employee and the University agree otherwise;
        • allow the employee and the University to be assisted and/or represented by a person of their choice who is an employee of the University, or by an officer of a relevant employer association or the NTEU or CPSU (but not a solicitor or barrister in private practice);
        • provide an opportunity for the employee to be interviewed, and ensure an adequate opportunity to put a case;
        • interview any other person and consider any further material as it believes appropriate to establish the facts of the case;
        • provide the right for the employee (and their representative) and the relevant senior executive (and their representative) to be present during the conduct of interviews; ask questions of interviewees; make submissions; and present and challenge evidence. (Where the employee is unable to attend, the Committee may either proceed or elect to reconvene);
        • conduct all proceedings as expeditiously as possible consistent with the principles of procedural fairness;
        • keep a record of the proceedings (but not its own deliberations) which will be available to either party on request; and
        • make its report available to the Vice-Chancellor and the employee within ten (10) working days of the conclusion of the proceedings.
      15. The Review Panel Report will include findings relating to:
        • whether there was sufficient evidence to support the finding of unsatisfactory performance;
        • whether the process was properly followed; and/or
        • whether the formal reprimand or recommended disciplinary action is commensurate with the level of unsatisfactory performance.
      16. Upon receipt of the Review Panel’s Report, the Vice-Chancellor will consider the Report of the Review Panel, any recommendations of the Head of Cost Centre or Senior Executive and any written response from the employee and:
        • uphold or dismiss the recommendation of the Review Panel; and/or
        • where appropriate, determine the process for reconsidering the matter; and/or
        • take any appropriate disciplinary action in accordance with this clause.
      17. The Vice Chancellor will advise the employee in writing of their decision within five working days.
      18. All decisions of the Vice-Chancellor under this clause will be final, provided 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.
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