Disciplinary process instruction

Instruction statement

This instruction is not prescriptive but is a suggested approach for staff and managers working with situations of unsatisfactory performance and misconduct/serious misconduct.

This instruction applies to all fixed term and continuing staff members covered by the following agreements:

  • Victorian TAFE Teaching Staff Multi-Business Agreement 2009
  • Royal Melbourne Institute of Technology Children's Services Enterprise Agreement 2014

Exclusions

This instruction does not apply to:

  • non-confirmation of employment during a probation period
  • casual staff
  • staff employed on an executive contract
  • staff covered by the Senior Executive Staff Enterprise Agreement 2006
  • staff covered by the RMIT Academic and Professional Staff Enterprise Agreement 2014 (note: these staff should refer to the relevant Enterprise Agreement for the relevant disciplinary process).

Instruction steps and actions

Principles underpinning disciplinary matters

a) The processes outlined in this instruction apply the principles of natural justice, providing staff members the opportunity to defend themselves against any allegations and ensuring that due process is followed before sanctions are applied.

b) The relevant Pro Vice-Chancellor / Vice-President (Resources)/ DVC (Academic)/ DVC: Engagement and Vocational Education/ Executive Director Human Resources of the University may refer a question of possible unsatisfactory performance, misconduct or serious misconduct to a senior manager for appropriate action.

c) In the event that a staff member resigns, or that the matters which are subject of this instruction are resolved or withdrawn, proceedings initiated under this instruction will lapse.

d) RMIT may carry 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.

e) The University will endeavor to deal with issues of unsatisfactory performance, misconduct or serious misconduct as expeditiously as possible.

f) The University acknowledges the right of a staff member to be accompanied by a representative during the processes outlined in this instruction but not a practising solicitor or barrister.

g) Where a staff member without reasonable cause fails to participate in the disciplinary process, the process will continue without the staff member’s participation.

h) All intermediate steps and decisions taken in accordance with this clause are final.

i) If the matter is resolved satisfactorily any records kept will not be used in any future disciplinary case against the staff member.

j) At each step of the process, the manager will explain to the staff member the process and possible consequences of further steps.

k) Matters of possible misconduct/serious misconduct or unsatisfactory performance highlighted through student complaints or other processes, will be dealt with through this instruction.

l) Nothing in this instruction will limit the right of the Vice-Chancellor or nominee to dismiss a staff member in circumstances that warrant summary dismissal.

Conditions leading to disciplinary action

a) Demonstrated inefficiency or negligence in the performance of the specified duties of the position held; and/or

b) Misconduct/serious misconduct, which includes the commission of acts which constitute an impediment to the carrying out of the staff member’s work or that of the staff member’s colleagues or which is detrimental to students, or the failure to comply with a reasonable instruction of a person in line control of the staff member; and/or

c) Action which is prejudicial to the health and safety of other staff members or students; and/or

d) Breach of University policies or regulations, or breach of published University instruction.

Managing unsatisfactory performance

Instruction

Responsibility

Timeline

1. A manager will take reasonable steps to resolve instances of possible unsatisfactory performance through measures which may include guidance, counseling, staff development and/or appropriate work allocation in the first instance.

Manager

As issues arise as part of day to day management

2. Preliminary counseling constitutes the commencement of formal discipline.

The manager will inform the staff member:

a) they are being counselled under this instruction

b) the possible consequences and outcomes of the process

c) they are entitled to bring a representative to any relevant meetings with their manager if they so choose

d) their rights and responsibilities in the process

e)what will happen with records kept throughout the process.

The manager will keep a record of times and dates of relevant events and preliminary counselling notes in a file or diary.

In the event that the matter is resolved satisfactorily within this phase, the records on file will be destroyed after 12 months. Copies of relevant records will be available to the staff member upon reasonable notice.

Manager/Delegated Authority

Once guidance and coaching have failed to improve performance

3. If the matter is resolved satisfactorily it will not be used in any future disciplinary case against the staff member.

In the event that the matter is not resolved satisfactorily within preliminary counselling, the records will be retained by the manager and will subsequently be destroyed following conclusion of any further proceedings in this guideline.

Manager

Following preliminary counselling

4. Where the manager believes that the staff member’s performance remains unsatisfactory following the steps set out above, the manager will make a formal report to the relevant senior executive that the performance of the staff member is unsatisfactory. This report will clearly state the aspects of the performance seen as unsatisfactory and the attempts to remedy the problem. The manager will provide the staff member with a copy of the report at the time it is submitted.

Senior executiive

Once preliminary counselling has failed to improve performance

5. The staff member will be entitled to provide a written response to the manager’s report to the relevant senior executive within 5 working days.

Staff member

Within 5 working days after the manager submits a report to the relevant senior executive

6. Upon receipt of the manager’s report and any written response from the staff member, the relevant senior executive will first satisfy themselves that the required preceding steps have been followed and relevant principles applied, including:

(i) appropriate steps have been taken to bring the unsatisfactory nature of performance to the staff member’s attention

(ii) an adequate opportunity to respond was given, and that any response was taken into account

(iii) a reasonable opportunity has been afforded to remedy the performance problem.

Relevant senior executive

Within 5 working days after the receipt of the manager’s report

7. In consultation with Human Resources the relevant senior executive may decide to:

(i) take no further action

(ii) refer the matter back to the manager to ensure that the steps are complied with in substance and in a manner appropriate to the circumstances

(iii) recommend to the Vice-Chancellor that disciplinary action be taken.

The relevant senior executive will inform the staff member of their decision in writing.

Relevant senior executive

The decision will take effect no earlier than 5 working days following notification to the staff member.

8. If the disciplinary action to be taken is termination of employment, the staff member will be given the amount of notice as specified in the staff member’s contract of employment or an amount of notice in accordance with the Act, whichever is greater. The University, at its discretion, may provide full or part payment in lieu of notice.

Human Resources

As soon as practicable following decision to terminate

Managing allegations of misconduct/serious misconduct

Instruction

Responsibility

Timeline

1. If appropriate, a manager will seek to resolve an allegation of misconduct through guidance, counselling or other appropriate action in the first instance.

Manager

When manager becomes aware of alleged misconduct

2. Where the actions in step 1 have been unsuccessful or are inappropriate due to the nature of the allegation(s), the manager in consultation with their senior manager will refer the matter to the relevant senior executive

Manager

Where step one is inappropriate or has been unsuccessful in addressing conduct issues

3. Upon receiving the referral of the matter, the relevant senior executive will decide whether the allegation warrants further investigation.

Relevant senior executive

As soon as practicable following receipt of referral from the manager and/or relevant senior manager

4. Where the relevant senior executive decides the allegation warrants further investigation he/she will:

a) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegation(s) and to properly consider and respond to them and

b) require the staff member to submit a written response within 5 working days.

At this time, the relevant senior executive may also suspend the staff member. The suspension may be with or without pay.

Relevant senior executive

As soon as practicable following receipt of referral from the manager and/or relevant senior manager

5. The staff member may submit a written response to the relevant senior executive within 5 working days.

Staff member

Within 5 working days following receipt of notification from the relevant senior executive

6. Following consideration of the staff member’s written response in consultation with Human Resources the relevant senior executive may decide to:

(i) take no further action

(ii) recommend to the Vice-Chancellor that disciplinary action be taken.

The relevant senior executive will inform the staff member of their decision in writing.

Relevant senior executive

As soon as practicable following receipt of the staff member’s written response

7. If the disciplinary action to be taken is termination of employment, the staff member will be given the amount of notice as specified in the staff member’s contract of employment or an amount of notice in accordance with the Act, whichever is greater. The University, at its discretion, may provide full or part payment in lieu of notice.

Human Resources

As soon as practicable following decision to terminate

Provisions for summary suspension

a) Nothing in this instruction will prevent the relevant senior executive from summarily suspending for a defined period of time a staff member for behaviour considered by the relevant senior executive to be of sufficient seriousness to warrant summary action. Suspension may be with or without pay.

b) During any period of suspension the staff member will be excluded from the University. However, with prior approval of the manager, the staff member will be permitted reasonable access to the University for the preparation of his or her case and to collect personal property.

c) In the event that a staff member is suspended without pay, the staff member may engage in paid employment or draw on any accrued annual leave or long service leave credits.

d) Where a staff member has been suspended without pay pending the decision of the relevant senior executive, then any lost income will be reimbursed if there was no misconduct or serious misconduct. However, a decision taken by the relevant senior executive in his or 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.

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