Part H - Disciplinary and Grievance Matters

51. Termination of Employment and Disciplinary Action - Academic Staff

51.1 This clause applies to Academic Staff members only.

51.2 "Disciplinary action - academic staff” is action by the University to discipline a member of academic staff for unsatisfactory performance, misconduct or serious misconduct, as follows:

1. Formal censure or counseling;
2. Demotion by one or more classification levels or increments;
3. Withholding of an increment;
4. Suspension with or without pay; and/or
5. Termination of employment.

Disciplinary action for misconduct shall be as set out in 51.2(a)-(d).

The provisions in this Agreement will be subject to and will not affect the operation of:

• any law empowering a State or Commonwealth industrial tribunal to order reinstatement of or compensation to a staff member or to otherwise deal with the dismissal of that staff member; and
• any other law empowering any court or tribunal external to the University which has jurisdiction to deal with any causes of action or claims arising from actions taken by the University pursuant to this Agreement.

This Agreement is to be read in conjunction with Division 3 of Part VIA of the Act, including the minimum notice periods in section 170CM of the Act. However, Division 3 of Part VIA of the Act is taken not to reduce or remove any additional rights provided under this Agreement.

Notice of termination

51.3 Notice of termination will be in accordance with section 170CM of the Act, provided that any greater period of notice specified in the staff member's contract of employment or in this Agreement will continue to apply.

51.4 Notice shall not be required in relation to the termination of a staff member found to have engaged in serious misconduct of such a nature that it would be unreasonable to require the University to continue the employment of the staff member concerned during the required period of notice, such as, but not limited to:

• Theft;
• Fraud;
• Assault;
• Being intoxicated at work; or
• Refusing to carry out a lawful and reasonable instruction that is consistent with the staff member's contract of employment.

Disciplinary Action For Unsatisfactory Performance/Misconduct

51.5 Where a supervisor is of the view that the staff member's performance or conduct is unsatisfactory, the supervisor shall counsel the staff member in accordance with counselling requirements of the existing University Policy, including identifying the nature of the improvement required and the time within which reasonable improvement can be expected.

51.6 Where a supervisor believes that counselling has not produced the desired improvements in performance, or alleged misconduct or serious misconduct is denied by the staff member or in the opinion of the supervisor, counselling is not an adequate response to the alleged conduct, a formal report will be provided to the relevant Dean and the Vice-Chancellor. The report will state clearly the aspects of performance or conduct seen as unsatisfactory and the record of any attempts to remedy the problem.

51.7 The staff member will be provided with a copy of the report and be given 10 working days to provide a written response to the report to the Dean and to the Vice-Chancellor.

51.8 The Vice-Chancellor may suspend the staff member on full pay, or, if he/she is of the view that the alleged conduct amounts to conduct of a kind envisaged in clause 51.4, the Vice-Chancellor may suspend the staff member without pay. Suspension without pay will be subject to and in accordance with existing University Policy.

51.9 Upon receipt of the supervisor's report and any written response from the staff member, the Vice-Chancellor will satisfy himself/herself that appropriate steps have been taken by the Supervisor and may make such further enquiries as the Vice-Chancellor considers reasonable and appropriate to determine if disciplinary action should be imposed.

51.10 In the case of alleged misconduct or serious misconduct, if the conduct is disputed in whole or in part by the staff member, then unless the Vice-Chancellor intends to take no further action or to only counsel or censure the staff member, then the matter will be referred to a Misconduct Investigation Committee. The staff member may elect in writing and the Vice Chancellor may agree to have the matter dealt with by the Vice-Chancellor without reference to a Misconduct Investigation Committee.

51.11 If the matter is referred to a Misconduct Investigation Committee, that Committee will be convened forthwith, in accordance with clause 12, and will make inquiries and provide a report to the Vice Chancellor and the staff member as soon as practicable, on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.

51.12 Following the inquiries in clauses 51.7, 51.9 and 51.11 (if applicable) the Vice-Chancellor may then decide to:

1. take no further action; or
2. refer the matter back to the supervisor to ensure that the required steps are complied with in substance and in a manner appropriate to the circumstances; or
3. take disciplinary action.

51.13 The Vice-Chancellor will advise the staff member in writing of any decision made in accordance with clause 51.12. If the Vice-Chancellor is of the view that there has been no poor performance or no misconduct or serious misconduct, he/she will immediately advise the staff member in writing, and may, by agreement with the staff member, publish the advice in an appropriate manner.

Review of disciplinary decisions for performance

51.14 In the case of disciplinary action for unsatisfactory performance, the staff member may, within 5 working days from the date of the Vice-Chancellor's written advice make a written request for a review of the decision by the Unsatisfactory Performance Review Committee.

51.15 Where a request for review is made by the staff member in accordance with clause 51.14, an Unsatisfactory Performance Review Committee will be convened forthwith in accordance with clause 12 and will provide a report to the Vice-Chancellor and the staff member, on whether the required process has been followed.

51.16 If the Unsatisfactory Performance Review Committee concludes that the required process was not properly followed, the Vice-Chancellor will reconsider his/her decision but may first take such steps to remedy the perceived unfairness as may seem reasonable to him/her.

51.17 If the Vice-Chancellor, upon reconsidering his/her position is of the view that:

1. there has been no unsatisfactory performance, he/she will forthwith advise the staff member in writing, shall rescind the disciplinary action imposed, and may, by agreement with the staff member, publish the advice in an appropriate manner; or
2. there has been unsatisfactory performance, he/she will forthwith advise the staff member in writing confirming the disciplinary action imposed.

Other Matters

51.18 Nothing in this clause:

1. prevents or affects the procedures for the denial of an increment under the incremental advancement clauses of this Agreement dealing with the terms and conditions of employment of academic staff;
2. constrains the University from carrying out other or further investigations relating to the consequences of conduct of a staff member or former staff member when required in the public interest, eg. inquiring into the truth of research results; or
3. prevents the Vice-Chancellor on his/her own motion referring a question of possible unsatisfactory performance or misconduct to a supervisor for appropriate action.

51.19 Where a staff member has been suspended without pay pending the decision of the Vice-Chancellor, then any lost income will be reimbursed if there was no misconduct or serious misconduct found. However, a decision taken by the Vice-Chancellor in his/her discretion not to dismiss or impose another penalty will not be construed as an admission that there was no conduct justifying suspension without pay.

51.20 All actions of the Vice-Chancellor under this clause will be final, except that nothing in this sub-clause will be construed as excluding the jurisdiction of any external court or tribunal which, but for this sub-clause, would be competent to deal with the matter.