8.3 Independent Review

Eligibility and Application Process

1. An employee may request a review of a decision made under the following clauses of this agreement, if that decision would lead to demotion or the termination of their employment:

   1. 6.2 – Probationary Employment

   2. 6.8 – Managing Unsatisfactory Performance

   3. 6.9 – Action to Address Misconduct or Serious Misconduct

   4. 7.5 – Redundancy

2. A request for a review must be made in writing by the employee within ten (10) working days of the employee receiving notice of the decision.

3. In order to request a review, an employee must provide the Chief People Officer, with the following materials at the time the request is lodged:

   1. the basis for requesting the review;

   2. any written submissions supporting the request for review;

   3. any documentary evidence that the employee relies on in respect of sub-clauses 8.3(c)(i) and (ii) above.

Appointment of Independent Reviewer

4. Within ten (10) working days of receiving an application under sub-clause 8.3(c) above, the Chief People Officer will engage an Independent Reviewer and provide the reviewer with the request for review and the employee’s materials. In the case of a review of a Medical Assessment under clause 6.10, the Independent Reviewer will be a medical practitioner or specialist.

5. Upon the commencement of the Agreement, the University, the NTEU and CPSU NSW will agree to a list of suitable Independent Reviewers with industrial relations knowledge and experience to conduct reviews. The Independent Reviewer will be selected from this pre-approved list based on availability and who is free from conflict of interest and an apprehension of bias in the matter to be reviewed. The parties commit to reviewing this list during the life of the Agreement.

6. The University will provide the Independent Reviewer with its own submissions and any supporting materials within ten

   (10) working days of the request for review.

7. The Independent Reviewer will consider all materials provided in accordance with this clause. The Independent Reviewer may seek additional information from the employee or the University if the Independent Reviewer considers that this is necessary.

8. The Independent Reviewer will report their findings and recommendations to the employee and the Vice-Chancellor

   and President or Chief People Officer within ten (10) working days of receiving the University’s submission.

9. The Chief People Officer will not unreasonably refuse a request from the Independent Reviewer for an extension of time of up to ten (10) working days.

Scope of Review

10. For reviews of a decision made under clause 6.2 (Probationary Employment) or clause 6.8 (Managing Unsatisfactory Performance), the Independent Reviewer will review the steps taken during the process of applying the relevant clause in order to establish whether the employee was afforded procedural fairness throughout that application.

11. For reviews of a decision made under 6.9 (Action to Address Misconduct or Serious Misconduct), the matters to be considered by the Independent Reviewer are:

    1. whether there is, overall, sufficient evidence to support a finding of misconduct/serious misconduct;

    2. whether the provisions of this Agreement were followed; and

    3. whether the employee was afforded procedural fairness throughout that process; and

    4. recommendation(s) (if any) about disciplinary action in light of the matters outlined in sub-clauses 8.3(k)(i), (ii) and (iii).

12. For reviews of a decision made under clause 7.5 (Redundancy), the matters to be considered by the Independent Reviewer are:

    1. whether the redundancy/ies are genuine and comply with the terms of this Agreement;

    2. whether fair and objective criteria were used to select the employee/s for redundancy;

    3. whether the decision makers acted without unlawful discrimination;

    4. whether adequate consideration was given to measures to avert or mitigate the adverse effects of redundancy, and if not, whether there were alternative measures available.

Further consideration of decisions

13. The Vice-Chancellor and President (or their nominee) having considered the Independent Reviewer’s report, may confirm the original decision to terminate or demote, or may reconsider the preliminary decision and determine what, if any, action should be taken. The Vice-Chancellor and President (or their nominee) may seek additional information if they consider that this is necessary.

14. The Vice-Chancellor and President (or their nominee) will then advise the employee’s supervisor or relevant member

    of the Executive and the employee in writing of the decision.

15. Where the original decision was to terminate the employee’s employment and this is confirmed, the notice period (if

    any) (or payment in lieu) will then apply from the written notification of the outcome of the review.

16. In the case of a Redundancy Review, the Vice-Chancellor and President (or their nominee) will consider the Independent Reviewer’s report and determine if the redundancy is to be reversed or not, dependant on the considerations outlined at sub-clause 8.3(l).

17. The decision of the Vice-Chancellor and President (or their nominee) will be final, subject to the jurisdiction of any court or tribunal which, but for this clause, would have jurisdiction to deal with the matter.