Principles
The provisions of this clause are a complete code to address possible misconduct or serious misconduct.
The University may instigate an investigative process that might give rise to disciplinary action for misconduct or serious misconduct where it appears that an employee may have committed misconduct or serious misconduct in accordance with this Agreement.
Throughout the proceedings associated with misconduct or serious misconduct, an employee may choose to be assisted by an Employee Representative.
Proceedings associated with misconduct or serious misconduct will be conducted in accordance with natural justice, procedural fairness and this Agreement.
The Vice-Chancellor and President may at any time suspend an employee with pay, or in exceptional circumstances without pay, if the Vice-Chancellor and President is of the view that the alleged conduct amounts to conduct of a kind envisaged in Regulation 1.07 of the Fair Work Act Regulations 2009 so that it would be unreasonable to continue the employee’s attendance at work pending further investigation.
Misconduct and Serious Misconduct
If an allegation of misconduct or serious misconduct (as defined in clause 1.4) is made, the employee will be:
Advised in writing of the alleged misconduct or serious misconduct, including details of the allegations and if relevant, how they meet the standard of serious misconduct as defined by this Agreement; and
Given a reasonable opportunity to be heard and/or to make written submissions, within ten (10) working days, in relation to the allegations.
Where allegation/s of misconduct or serious misconduct involve gender-based violence:
The matter will be dealt with in accordance with this Agreement and the University’s employee gender-based violence procedures as amended from time to time;
The University will apply the investigation and appeal (independent review) timelines set out in the National Higher Education Code to Prevent and Respond to Gender-Based Violence (as amended from time to time) and notify relevant employees accordingly; and
The University may approve an extension of these timelines in circumstances where required by the particular context of the matter (for example, to ensure procedural fairness or to complete a review of evidence) and will identify to the parties the reason for the extension.
If the employee admits to the allegations, and if deemed appropriate in the University’s view, the University may give the employee a reasonable opportunity to improve their conduct, otherwise the matter will be considered by the Vice-Chancellor and President (or their nominee) under sub-clause 6.9(l)-(q) below.
Suspension and additional allegations
Where an allegation of serious misconduct has been made against an employee, the Vice-Chancellor and President (or their nominee) may, at any stage during the procedures under this clause, suspend an employee with pay or, in exceptional circumstances without pay, until the conclusion of the matter, provided that:
The employee may draw on any accrued entitlement to recreation leave or long service leave for the duration of the suspension without pay;
The Chief People Officer may at any time direct that salary be paid in part or in full on the grounds of hardship, for the period of suspension or part period;
The Vice-Chancellor and President (or their nominee) may at any time reconsider the issue of the suspension of the employee.
While suspended, the employee will be excluded from the University or any identified parts of the University but will be permitted reasonable access to the University including electronic records to prepare their case and to collect personal property.
If at any stage during the procedures under this clause, it is found that the allegation/s should be amended or new allegations added, or the allegation/s contain additional elements which amount to serious misconduct, the employee must be advised of this in writing and be given a further reasonable opportunity to be heard and to make written submissions prior to any further steps being taken by the University.
Proposed disciplinary action
The Vice-Chancellor and President (or their nominee) will consider the allegation/s and the employee’s
response.
The Vice-Chancellor and President (or their nominee) may seek additional information prior to proposing disciplinary action as considered necessary.
The Vice-Chancellor and President (or their nominee) will advise the employee in writing of their decision as to whether there was misconduct and/or serious misconduct and will advise the employee of their decision, any proposed disciplinary action and the operative date of that proposed disciplinary action.
Where the Vice-Chancellor and President (or their nominee) has confirmed a decision to terminate the employee’s employment, the minimum period of notice, or payment in lieu of notice, will be provided in accordance with sub-clause 8.6(c). The employee’s employment may be proposed to be terminated without notice (or payment in lieu thereof) if they have engaged in serious misconduct. If the Vice-Chancellor and President’s (or their nominee’s) decision is to propose termination for serious misconduct without notice, this termination will take effect at the end of ten (10) working days after notification, or if the employee seeks an Independent Review in accordance with clause 8.3 and a proposal to terminate is confirmed under clause 8.3, the termination will take effect at that time.
If the Vice-Chancellor and President (or their nominee) determines that no disciplinary action will be taken and the employee has been suspended under sub-clauses 6.9(e) or 6.9(i) above, the employee will be reinstated at no loss of salary or conditions.
Except where the employee seeks a review in accordance with clause 8.3, the Vice-Chancellor and President’s (or their nominee’s) disciplinary action under sub-clause 6.9(n) above is final, subject to the jurisdiction of any court or tribunal which, but for this clause, would have jurisdiction to deal with the matter.
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