51 Misconduct/Serious Misconduct
- Academic and ELC Teaching Staff Collective Agreement 2014–2017
- Misconduct means conduct of a kind which is unsatisfactory, including:
- conduct of a kind that constitutes an impediment to the carrying out of an employee’s duties or to other employees carrying out their duties; or
- a dereliction of duties.
- Serious misconduct means:
- conduct of a kind that constitutes a serious impediment to the carrying out of an employee’s duties or to other employees carrying out their duties; or
- a serious dereliction of duties.
- For the purposes of this clause, a University Officer will mean a relevant senior employee of UNE who has had no prior involvement in the process of the alleged misconduct or serious misconduct. The University Officer will act impartially and without bias.
- An allegation/s of misconduct/serious misconduct must be dealt with in a timely manner. Where delays cannot be avoided, an explanation for the delay should be provided to the parties involved.
- Where there is an allegation/s of misconduct or serious misconduct, the supervisor or other relevant University officer will undertake or arrange preliminary investigations or reasonable enquiries to determine an appropriate course of action to deal with the matter. This will include talking to the employee who is the subject of the allegations.
- Where the supervisor or relevant University officer considers there is no merit to the allegation(s) the matter will be dismissed and the employee notified in writing.
- Where the supervisor or relevant University officer considers there is merit in the allegation/s, and that the allegation/s may constitute misconduct or serious misconduct, a written report containing formal allegation/s of misconduct/serious misconduct will be prepared and referred to the Head of Cost Centre (or relevant University officer if the University believes appropriate given the nature of the allegations) and a copy provided to the employee.
- The Head of Cost Centre or relevant University officer (hereafter referred to as ‘the Delegate’) will consider any formal allegation/s of misconduct and/or serious misconduct.
- If it is considered that the allegation/s warrant no further action or should be dismissed, the Delegate will advise the employee accordingly and the matter will be closed.
- If it is considered that the allegation/s warrant being taken further, then the Delegate may proceed to deal with the matter in accordance with clauses 51.9 – 51.13.
- Where the Delegate proceeds with the matter in accordance with subclause 51.8.2, the Delegate will notify the employee in writing and in sufficient detail to enable the employee to understand the precise nature of the allegation/s and to properly consider and respond to them. The employee will be given ten (10) working days to submit a written response.
- Where the employee fails to provide a written submission without reasonable explanation, the Delegate may proceed to determine the case in accordance with 51.12. Where a reasonable explanation is provided, the Delegate will notify the employee in writing that they have an additional ten (10) working days to provide a written response.
- Where the employee denies the allegation/s in full, or admits in some parts but denies in others, the Delegate will establish a Misconduct Investigation Committee within 10 working days (where practicable) to consider the allegation/s that the employee has denied. The employee will be advised in writing.
- Where the employee admits the allegation/s in full, or is prepared to accept the allegation/s in full, or fails to provide a written response in accordance with subclause 54.10, the Delegate may take one of the actions listed below and advise the employee accordingly:
- dismiss the matter; or
- counsel and/or censure the employee for unsatisfactory behaviour and/or arrange for appropriate professional development; or
- refer the matter in writing to the relevant senior executive.
- Where action is taken in accordance with subclause 51.12.1 – 51.12.2, action as per 51.21 will occur.
- Where the Delegate refers the matter to the relevant senior executive in accordance with subclause 51.12.3, the relevant senior executive assesses that the conduct is misconduct or serious misconduct, and may, after considering any mitigating circumstances, take appropriate action as set out below:
- reprimand the employee, and a copy of the formal notice recorded on the employees personnel file; or
- recommend to the Vice-Chancellor disciplinary action, which is limited to:
- withholding a salary increment for up to one (1) year; or
- demotion to a lower level position with the resulting reduction in salary for persistent and unresolved unsatisfactory performance; or
- that consideration is given to termination of employment. Termination of employment would only be for serious misconduct.
- Where a misconduct or serious misconduct matter is referred to a Misconduct Investigation Committee (MIC or the Committee), the Delegate will convene the Committee within ten (10) working days (where practicable).
- Where such a Committee is established, it will comprise:
- A Chairperson (who is not a union official) agreed between the Vice-Chancellor and the NTEU, from a list of Chairpersons agreed between the University and NTEU (such list will be reviewed on an annual basis, or more regularly if required, by the Joint Consultative Committee);
- an employee nominated by the University; and
- an employee nominated by the NTEU.
- The terms of reference of the Committee are to report on the facts relating to the allegation/s that have been denied in the alleged misconduct or serious misconduct matter, including whether there are any mitigating circumstances evident, and make a finding as to whether misconduct or serious misconduct has occurred, and to recommend appropriate action.
- The Committee will:
- conduct proceedings in private, unless the employee and the University agree otherwise;
51.18.2 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);
- provide an opportunity for the employee to be interviewed, and ensure an adequate opportunity to answer the allegation/s and to put a case;
51.18.4 interview any other person and consider any further material as it believes appropriate to establish the merits or facts of the case;
- provide the right for the employee (and their representative) and the Delegate (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.
Actions following the Committee’s Report
- conduct proceedings in private, unless the employee and the University agree otherwise;
- The employee will have ten (10) working days after being sent the Investigation Committee’s report or a report pursuant to sub clause 51.14.2c) to write to the Vice-Chancellor and raise any concerns about the process or to outline any mitigating circumstances or other factors that they wish to have taken into account prior to a final decision being made.
- The Vice-Chancellor will consider the report and any written response from the employee and will determine such action as he/she deems appropriate. Termination of employment would only be for serious misconduct. For matters that have been before a MIC, if the Vice-Chancellor believes that the matter(s) may constitute serious misconduct he/she may request the record of the proceedings of the Investigation Committee and any other information used by the Investigation Committee to make its findings before making a decision.
- Once a determination is made, the employee will be advised of the decision and of the operative date of any disciplinary action to be taken. Where the decision is that there has been no misconduct or serious misconduct the advice may, by agreement with the employee, be published in an appropriate manner.
- 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.
- The Vice-Chancellor may suspend the employee pending further investigation if the alleged conduct creates a reasonable expectation of imminent or serious risk to any person/s or to the University’s business. Where such suspension occurs, the suspension will be on full pay and all time on suspension shall count as service for all purposes. The staff member will be advised in writing of the reasons for the suspension.
- During any period of suspension the employee may be excluded from the University provided that they will be permitted reasonable access to the University, subject to prior approval on each occasion by a specified University officer, for preparation of their case and to collect personal property.
Misconduct Investigation Committee