50 Unsatisfactory Performance

  1. Academic and ELC Teaching Staff Collective Agreement 2014–2017
    1. The purpose of this clause is to ensure that issues of unsatisfactory performance are managed in a consistent and transparent manner.  Staff are to be provided with all relevant information on issues of concern and given opportunity and support to improve their performance. Heads of Cost Centres, or Delegates, must provide employees with regular feedback on their performance as outlined in Clause 46 Performance Planning, Development and Review System.
    2. Definitions

    3. Delegate means a relevant senior employee of UNE, including Deputy Head of School.
    4. Head of Cost Centre means the Head of School or Director (as the case may be) of the relevant School or Directorate.
    5. Unsatisfactory Performance means a level of performance that is unacceptable, and may include, but is not limited to:
      1. unsatisfactory, inefficient or negligent performance of the specified duties of the position held;
      2. persistent, unsupported absence or lateness, or persistent unavailability;
      3. 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
      4. inadequate completion of administrative tasks or other responsibilities without reasonable justification.
    6. University Officer means a Senior Executive or Head of Cost Centre who has had no prior involvement in the process.

      Management of Unsatisfactory Performance

    7. Heads of Cost Centres, or Delegates, are responsible for managing the performance of employees reporting to them.
    8. Before taking any other measures set out in this clause a Head of Cost Centre, or Delegate, 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.
    9. At any time in this process a staff member can seek the advice and support of Human Resource Services.
    10. Where a Head of Cost Centre, or Delegate, forms the view that the performance of an employee is unsatisfactory the Head of Cost Centre, or Delegate, 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. 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 the Head of Centre’s, or Delegate’s, attention and provide the employee with a document which sets out the matters referred to in (a) to (d) at the commencement of the review period; and
      6. one or more review meetings will be held between the Head of Cost Centre, or Delegate, and the employee concerned. Where necessary, the review period as set out in subclause 50.9.2 may be extended.
    11. If at the conclusion of the first review period the Head of Cost Centre, or Delegate, is of the view that the employee’s unsatisfactory performance has not improved to a satisfactory level, the Head of Cost Centre, or Delegate, 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
    12. If at the conclusion of a review period the Head of Cost Centre, or Delegate, is of the view that the employee’s performance has improved to a satisfactory level, the Head of Cost Centre, or delegate, will advise the employee in writing that the unsatisfactory performance process has been completed.
    13. If at the conclusion of the second review period the Head of Cost Centre, or Delegate, is of the view that the employee’s unsatisfactory performance has not improved to a satisfactory level, the Head of Cost Centre, or Delegate, will report the matter to the Head of Cost Centre or appropriate Senior Executive. 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 or appropriate Senior Executive. The employee may submit a written response to the Head of Cost Centre or appropriate Senior Executive within ten (10) working days.
    14. Where the Head of Cost Centre has been involved in the process to subclause 50.11, the report referred to in subclause 50.12 will be made to the appropriate Senior Executive. The Senior Executive may delegate their responsibilities to a University Officer.
    15. Upon receipt of a report made in accordance with subclause 50.12, and the employee’s written response, where relevant, the Head of Cost Centre or Senior Executive or University Officer (HCC/SnrEx/UO) 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.
    16. Where the HCC/SnrEx/UO is not satisfied in relation to any of the matters set out in subclause 50.14.1 to 50.14.6, the report must be returned to the HCC/SnrEx/UO with a direction as to the measures to be undertaken to satisfy subsclause 50.14.1 to 50.14.6 and the employee advised of those measures.
    17. Where the HCC/SnrEx/UO is satisfied in relation to each of the matters set out in subclause 50.14.1 to 50.14.6, they may:
      1. dismiss the matter; or
      2. where there is substance in the allegations, reprimand the employee and/or recommend counselling. A copy of the formal notice of reprimand is 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:
        • demotion to a lower level position with the resulting reduction in salary for persistent and unresolved unsatisfactory performance; or
        • withholding a salary increment for up to one (1) year; or
        • that consideration is given to termination of employment. Termination of employment would only be for unresolved unsatisfactory performance.
        • The HCC/SnrEx/UO Officer must advise the employee in writing of the outcome.
    18. For action taken in accordance with subclause 50.16.2 to 50.16.3, the HCC/SnrEx/UO must advise the employee they may seek a review of the decision in accordance with subclause 50.19.
    19. A review of the action taken in accordance with subclause 50.16.2 to 50.16.3 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;
      4. mitigating circumstances.
    20. 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 50.17.
    21. Where the employee seeks a review of the decision, in accordance with subclause 50.19, the Vice-Chancellor must establish a Review Panel within ten (10) working days to consider the case for review.

    22. Where an employee does not seek a review of a recommendation, in accordance with subclause 50.19 within five (5) working days, the Vice-Chancellor will consider the recommendations of the HCC/SnrEx/UO 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 50.16.3.
    23. Review Panel

    24. A Review panel will be constituted as follows:
      1. a Chairperson (who is not a union official) agreed between  the Vice-Chancellor and  the NTEU (such a list will be reviewed on an annual basis, or more regularly if required, by the Joint Consultative Committee);
      2. an employee nominated by the University; and
      3. an employee nominated by the NTEU.
    25. The panel members will not have been materially involved in any way in the process.
    26. The panel will convene no later than ten (10) working days (where practicable) from the date of receipt of the request for review, unless the Vice-Chancellor and the affected employee mutually agree an alternative timeframe.
    27. The Review Panel will:
      1. conduct proceedings in private, unless the employee and the University agree otherwise;
      2. 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 (but not a solicitor or barrister in private practice);
      3. provide an opportunity for the employee to be interviewed, and ensure an adequate opportunity to put a case;
      4. interview any other person and consider any further material as it believes appropriate to establish the facts of the case;
      5. 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);
      6. conduct all proceedings as expeditiously as possible consistent with the principles of procedural fairness;
      7. take into account any mitigating circumstances or other relevant matters which the employee may bring to the Review Panel’s attention;
      8. keep a record of the proceedings (but not its own deliberations) which will be available to either party on request; and
      9. make its report available to the Vice-Chancellor and the employee within ten (10) working days of the conclusion of the proceedings.
    28. The Review Panel Report will include findings relating to:
      1. whether there was sufficient evidence to support the finding of unsatisfactory performance;
      2. whether the process was properly followed; and/or
      3. whether the formal reprimand or recommended disciplinary action is commensurate with the level of unsatisfactory performance.
    29. 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:
      1. uphold or dismiss the recommendation of the Review Panel; and/or
      2. where appropriate, determine the process for reconsidering the matter; and/or
      3. take any appropriate disciplinary action in accordance with this clause.
    30. The Vice Chancellor will advise the employee in writing of their decision within five working days.
    31. 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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