54. PROFESSIONAL STAFF DISCIPLINARY PROCEDURES

54.1 This clause will apply to continuing and fixed-term staff members only (other than during any period of probationary employment) where there is alleged or actual:

54.1.1 continued unsatisfactory performance of the duties of the position held; or

54.1.2 negligence in the performance of the duties of the position held; or

54.1.3 misbehaviour (which will include favouritism); or

54.1.4 the failure to comply with a reasonable instruction of a person in line management control of the staff member; or

54.1.5 breach of the University's policies, regulations or procedures; or

54.1.6 serious misconduct, in which case the procedure set out in clause 54.8 will be followed subject to clause 54.10; or

54.1.7 serious and wilful misconduct, in which case the procedure set out in clause 54.10 will be followed

54.2 Principles

54.2.1 These procedures will be used on the following basis:

     54.2.1.1 all issues are investigated thoroughly and justly;

     54.2.1.2 the standards of behaviour and performance required are clear to all parties;

     54.2.1.3 a staff member has been counselled and given every reasonable opportunity to improve his or her behaviour and performance, excepting in cases of serious misconduct;

     54.2.1.4 staff members may have representation at any stage of the disciplinary procedures; and

     54.2.1.5 if, in spite of all reasonable efforts by the University, the staff member has failed to meet the required standards, then termination of employment might occur.

54.3 Unsatisfactory Performance and Misconduct

54.3.1 The stages of the Disciplinary Procedure for unsatisfactory performance and/or misconduct (other than serious misconduct or serious and wilful misconduct) are as follows:

     54.3.1.1 Stage 1 – meeting to counsel staff member regarding performance or behaviour;

     54.3.1.2 Stage 2 – first written warning if performance or behaviour has not improved;

     54.3.1.3 Stage 3 – review meeting following first written warning to determine what (if any) improvement has occurred and whether or not a second warning is to be issued; and

     54.3.1.4 Stage 4 – if no substantial improvement has occurred following the first written warning or the required standard of behaviour or performance has still not been achieved following a second written warning, the Head of Department investigates the performance or behaviour and makes recommendations to the Vice-Chancellor who then determines the appropriate outcome.

54.4 Stage 1 – Counselling

54.4.1 The supervisor and staff member will attempt to resolve the difficulties through a counselling process including co-operation, constructive criticism, setting of appropriate performance/behaviour standards and assistance with specific training and development programs where appropriate.

54.4.2 The staff member will be:

     54.4.2.1 informed of the possible implications of continued unsatisfactory behaviour or performance; and

     54.4.2.2 will be advised that they are being counselled under these procedures; and,

     54.4.2.3 will be given an opportunity to respond to the allegations.

54.4.3 The supervisor will record the relevant events and dates in a file or diary. Copies of all relevant contents of such file or diary will be available to the staff member upon request.

54.4.4 In the event that the matter is resolved satisfactorily at this stage, the records on the file or diary will be destroyed and the matter will not be used in any future disciplinary matter against the staff member.

54.5 Stage 2 – First Written Warning

54.5.1 Where the matter has not been resolved during the first stage the supervisor will issue a written warning to the staff member. The written warning will be given to the staff member at an interview between the supervisor and the staff member. The supervisor may be assisted by a nominee of the Head of Department. The staff member may be assisted by a representative. A copy of this clause will be given to the staff member

54.5.2 The written warning will include:

     54.5.2.1 clarification of the required performance or behaviour standards; and

     54.5.2.2 where these standards are not being met; and

     54.5.2.3 a time frame for monitoring progress against the standards; and

     54.5.2.4 a future meeting time to assess progress.

54.5.3 At this interview, the reasons for the dissatisfaction, as set out in the written warning, will be explained to the staff member. Further, the staff member will be told that, if the matter is not resolved within the time-frame set out in the written warning, the matter may proceed to a second written warning or be referred to the Head of Department for investigation. The staff member will be given an opportunity to respond at the interview or within an agreed time period.

54.5.4 A statement, signed by both the supervisor and the staff member, acknowledging receipt of the warning and setting out any agreement reached at the interview will be placed on the staff member's file. The signing of the statement will serve only as an acknowledgement of receipt of the warning and that the interview occurred. If the staff member refuses to sign the statement, the supervisor will complete the statement and provide a copy to the staff member in the presence of a witness.

54.6 Stage 3 – Review Meeting Following First Written Warning

54.6.1 At the end of the time-frame set out in clause 54.5.2.3 a meeting to assess progress will take place. Where reasonably practicable, this meeting will involve the same people as in the first interview.

54.6.2 The supervisor will advise the staff member that:

     54.6.2.1 the matter is resolved and that no further action will be taken. A statement to this effect signed by the supervisor and staff member will be placed on the staff member's file; or

     54.6.2.2 improvement has occurred, but not to the standard required. A second written warning will be issued and a further meeting will be scheduled to establish whether the required standard of behaviour or performance has been achieved; or

     54.6.2.3 no substantial improvement has occurred, in which case the supervisor will refer the matter to the Head of Department for investigation (4th stage of the procedure).

54.6.3 Where a second written warning has been issued and, after a further meeting to assess progress, the supervisor believes that the required standard of behaviour or performance has still not been achieved the supervisor will refer the matter to the Head of Department for investigation (4th stage of the procedure).

54.7 Stage 4 – Investigation by the Head of Department and Decision

54.7.1 Where a supervisor has referred a matter under these procedures, the Head of Department (or his/her nominee) will conduct an investigation during which the staff member will be given the opportunity to be heard and/or submit a written statement.

54.7.2 Where the supervisor is also the Head of Department, the Vice-Chancellor will nominate an acting Head of Department for the purposes of carrying out an investigation under these procedures.

54.7.3 At the conclusion of the investigation, the Head of Department (which may include an acting Head of Department appointed for the purpose by the Vice-Chancellor) will prepare a written report including:

     54.7.3.1 findings of fact on the balance of probabilities;

     54.7.3.2 conclusions reached on the evidence provided;

     54.7.3.3 reasons in support; and

     54.7.3.4 a recommendation to the Vice-Chancellor.

54.7.4 The recommendation will include one or more of the following courses of action:

     54.7.4.1 that the matter be further investigated;

     54.7.4.2 that no action be taken;

     54.7.4.3 that the matter be dismissed;

     54.7.4.4 that the staff member be transferred to another position in the University and paid salary appropriate to that position;

     54.7.4.5 that the staff member be reprimanded;

     54.7.4.6 that the staff member's salary increment be withheld for up to one year;

     54.7.4.7 that the staff member be dismissed.

54.7.5 A copy of the Head of Department's report, and any other accompanying material, will be given to the staff member who may respond to the recommendation in writing to the Vice-Chancellor within five working days.

54.7.6 After receipt of the report and any written response from the staff member, the Vice-Chancellor will make a decision on disciplinary action that will be conveyed in writing to all parties.

54.8 Serious Misconduct

In the case of an allegation of serious misconduct and subject to clause 54.10 below:

54.8.1 The Vice-Chancellor may summarily suspend a staff member for a defined period of time for behaviour considered to be of sufficient seriousness to warrant summary action. Any such action will only occur pursuant to the following procedures:

     54.8.1.1 suspension will be on full pay and will extend until either the expiry of a period at the discretion of the Vice-Chancellor or until an inquiry is concluded and a determination is made on the allegation of serious misconduct, whichever is the earlier;

     54.8.1.2 written notification of suspension, including the grounds for suspension, will be given to the staff member within one working day of the suspension; and

     54.8.1.3 a suspended staff member will not have access to his/her workplace except with the knowledge and approval of the Vice-Chancellor, and then only for the purpose of preparing any case under this clause.

54.8.2 The Vice-Chancellor will initiate an inquiry during which the staff member will be given the opportunity to be heard and/or submit a written statement.

54.8.3 At the conclusion of the inquiry, the Vice-Chancellor may determine an action that will be one of the following:

     54.8.3.1 that no disciplinary action be taken and the staff member be reinstated to his/her position;

     54.8.3.2 that the staff member be transferred to another position in the University, and paid salary appropriate to that position;

     54.8.3.3 that the staff member be reprimanded;

     54.8.3.4 that the staff member's salary increment be withheld for up to one year;

     54.8.3.5 that the staff member be dismissed.

54.8.4 Formal notice of that decision will be given to the staff member within two working days and the staff member’s appeal rights are as prescribed under clause 54.9.

54.9 Disciplinary Appeals

54.9.1 On receipt of the Vice-Chancellor’s decision under clauses 54.7.6 or 54.8.3, the staff member may appeal against a penalty imposed by the Vice-Chancellor within five working days of the date of the letter setting out the decision.

54.9.2 The decision of the Vice-Chancellor will be subject to confirmation in writing after any appeal lodged under clause 54.9.1 is completed.

54.9.3 The staff member may appeal on the following grounds:

     54.9.3.1 that the penalty is too harsh; and/or

     54.9.3.2 that the conclusions reached on the evidence considered were wrong; and/or

     54.9.3.3 that a miscarriage of process has occurred.

54.9.4 The staff member will be given at least five working days’ notice in writing of the time and date of the appeal. The staff member will also be provided with all relevant documents.

54.9.5 The staff member and his/her representative and the University’s representative will be entitled to:

     54.9.5.1 present written and/or oral evidence;

     54.9.5.2 call witnesses;

     54.9.5.3 be present during the submission of all evidence; and

     54.9.5.4 respond to that evidence.

54.9.6 In the event of an appeal lodged under clause 54.9.1, a Disciplinary Appeals Committee will be convened in accordance with clause 11 of this Agreement.

54.9.7 The Disciplinary Appeals Committee will determine one of the following courses of action:

     54.9.7.1 to uphold the decision of the Vice-Chancellor;

     54.9.7.2 that the matter be dismissed;

     54.9.7.3 that the decision of the Vice-Chancellor was correct except that a lesser penalty will be imposed;

     54.9.7.4 that there has been a miscarriage of process in which case the matter will be referred to management for consideration under these procedures in accordance with any directions given by the Committee.

54.10 Summary Dismissal

54.10.1 Notwithstanding the provisions of this clause, the employment of any professional staff member may be terminated without notice by the University for serious and wilful misconduct.

54.10.2 A statement of reasons for such dismissal will be supplied within 24 hours of dismissal.

54.11 Lapse of Proceedings

54.11.1 In the event that a staff member resigns, or, that the matters which are the subject of these procedures are resolved or withdrawn, proceedings initiated under this clause will lapse.

54.12 Non-derogation

54.12.1 The invoking of any of the above procedures does not derogate from a staff member’s rights under sections 394 and/or 773 of the Fair Work Act 2009.