RMIT University Academic and Professional Staff Enterprise Agreement 2014


29. Disciplinary procedures

29.1 Definitions

29.1.1

“Termination of employment” means termination of employment at the initiative of RMIT University.

29.1.2

“Disciplinary action” means action to discipline a member of staff for unsatisfactory performance, misconduct or serious misconduct and includes one or more of the following.

(a) Formal censure and/or counseling and/or in the case of professional staff, formal warnings

(b) Demotion by one or more classification levels or increments

(c) Withholding of an increment

(d) Suspension with or without pay

(e) Transfer to another position in the same or another department, at the same or another RMIT campus or site

(f) Termination of employment.

In cases involving misconduct of an academic, disciplinary action will be limited to the scope of clause 29.1.2.a) to clause 29.1.2.e) inclusive.

29.1.3

“Serious misconduct” means serious misbehaviour of a kind which constitutes (or conviction by a Court which constitutes) a serious impediment to the carrying out of an employee’s duties or to the employee’s colleagues carrying out their duties, or serious dereliction of the duties required of the position.

29.1.4

“Misconduct” means conduct or behaviour which is not serious misconduct, but which is nonetheless unsatisfactory.

29.1.5

“Relevant senior officer” is the Vice-Chancellor in the case of an academic employee and in respect of a professional staff employee it is the relevant Pro Vice-Chancellor or Deputy Vice-Chancellor or Vice-President.

29.1.6

“Representative” means an employee’s Chosen Representative or, in the case of the Vice-Chancellor’s representative, an RMIT employee or an officer or employee of the Australian Higher Education Industrial Association.

29.2 Principles

29.2.1

Termination of employment for disciplinary reasons will only occur in accordance with this clause. However this clause does not apply to casual employees or to the non-confirmation of employment during a probation period.

29.2.2

In the event that an employee resigns proceedings under this clause will lapse. This clause in no way constrains RMIT from carrying out other or further investigations relating to the consequences of conduct of an employee or former employee when required in the public interest.

29.2.3

The University will endeavour to deal with issues of unsatisfactory performance, misconduct or serious misconduct as expeditiously as possible. Where an employee unreasonably fails to participate in the disciplinary process, this will not delay the proceedings being completed.

29.2.4

This clause covers exhaustively the subject matter concerned, and is to the complete exclusion of the legislation establishing RMIT.

29.2.5

The University acknowledges the right of an employee to choose to be accompanied by a Chosen Representative.

29.2.6

All intermediate steps and decisions taken in accordance with this clause are final and may not be challenged via the Dispute Settling Procedure at clause 22 of this Agreement.

29.2.7

If a matter involving a professional staff employee is resolved satisfactorily any records kept will not be used in any future disciplinary cases against the employee.

29.2.8

Nothing in this clause will limit the right of the University to dismiss a professional staff employee whose misconduct is so grave as to warrant summary dismissal.

29.3 Preliminary Action for Unsatisfactory Performance

29.3.1

A supervisor 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. The supervisor will provide the employee with constructive criticism as well as setting appropriate performance standards for the employee to meet. The supervisor will also establish a reasonable timeframe for monitoring the employee’s progress against these performance standards. The employee will be provided with an opportunity to respond. Assistance with specific training and development programs may be provided where the supervisor considers it appropriate. At the request of an academic, a supervisor must consult with colleagues in the academic unit before making a formal report to the Vice-Chancellor under clause 29.4.

29.3.2

The employee will be informed that they are being counseled under these procedures, the possible implications of continued unsatisfactory performance and that they are entitled to bring a representative to any relevant meetings with their supervisor if they so choose.

29.3.3

Records of times and dates of relevant events and preliminary counseling notes will be maintained by the University in the official personal file. In the event that the matter is resolved satisfactorily during this stage, those records after 12 months will be removed from the individual’s personnel records and will not be relied upon for any matter. Copies of relevant records will be available to the employee.

29.4 Formal Disciplinary Action for Unsatisfactory Performance

29.4.1

Where a supervisor believes that counseling has not produced the desired improvements in performance, the supervisor will make a formal report to the relevant senior officer, with a copy sent at the same time to the employee, that the performance of the employee is unsatisfactory. At the request of an academic, a supervisor must consult with colleagues in the academic unit before making a formal report to the Vice-Chancellor under this sub clause. Such a report will state clearly the aspects of performance seen as unsatisfactory and the record of attempts to remedy the problem. The employee will be entitled to 10 working days to submit to the relevant senior officer a written response. After receiving any such response, the relevant senior officer must first satisfy himself/herself that each of the required preceding steps and relevant principles has been complied with.

29.4.2

The relevant senior officer may then decide to: take disciplinary action, as defined; take no further action; or refer the matter back to the supervisor to ensure that the process in this clause is complied with in substance and in a manner appropriate to the circumstances. He/she will then advise the employee in writing of the decision, which will take effect no earlier than five working days from the date of that advice. Within five working days of receiving that advice the employee may write to the Vice-Chancellor to request a review of the decision by, at the employee’s choice, either an independent person, “the reviewer”, or an Unsatisfactory Performance Review Committee. In this case only, the decision will take effect after the Vice-Chancellor has considered the report of the Unsatisfactory Performance Review Committee or the reviewer. The Vice-Chancellor will convene the Committee or appoint a reviewer within 10 working days of the application.

29.4.3

The terms of reference of the Unsatisfactory Performance Review will be to report to the Vice-Chancellor on whether the processes set out in this clause have been followed, as soon as practicable after its review. Following the receipt of the report, the Vice-Chancellor may reconsider the decision and will:

(a) if the Vice-Chancellor is of the view that there has been no unsatisfactory performance he/she will forthwith advise the employee in writing, and may, by agreement with the employee, publish the advice in an appropriate manner, or

(b) take disciplinary action as defined, or

(c) remedy any procedural defects identified in the report, or

(d) take no further action.

29.5 Disciplinary Action for Misconduct/Serious Misconduct

29.5.1

A supervisor must make every reasonable effort to resolve instances of possible misconduct through guidance, counseling and appropriate staff development, or appropriate work allocation before a possible report to the relevant senior officer. The employee may be counseled. A record of the counsel if given will be kept by the University and provided to the employee.

29.5.2

Notwithstanding clause 29.5.1, where the relevant senior officer considers any allegation of misconduct and/or serious misconduct warrant further investigation the relevant senior officer will notify the employee in writing and in sufficient detail to enable the employee to understand the precise nature of the allegations, and to properly consider and respond to them and require the employee to submit a written response within 10 working days. At this stage or thereafter the relevant senior officer may suspend the employee on full pay, or may suspend without pay if he/she is of the view that the alleged conduct amounts to serious misconduct.

Provided that:

(a) the employee may engage in paid employment or draw on any annual leave or long service leave credits for the duration of the suspension without pay;

(b) the relevant senior officer may at any time direct that salary be paid on the grounds of hardship;

(c) during any period of suspension the employee will be excluded from the University, provided that he or she will be permitted access to the University only for the preparation of her or his case and to collect personal property, and such permission will not be unreasonably withheld by the University;

(d) where a suspension of an academic without pay has been imposed and the matter is subsequently referred to a Misconduct Investigation Committee or investigator, the Vice-Chancellor will ensure that the investigator or Misconduct Investigation Committee at its first meeting determine whether suspension without pay should continue and that Committee or investigator will have the power to revoke such a suspension from its date of effect.

29.5.3

If the allegations are denied by the employee and the relevant senior officer is of the view that there has been no misconduct or serious misconduct, he/she will immediately advise the employee in writing, and may, by agreement with the employee, publish the advice in an appropriate manner.

29.5.4

If the allegations are admitted in full by the employee and the relevant senior officer is of the view that the conduct amounts to misconduct or serious misconduct, the relevant senior officer will advise the employee in writing of her or his decision and the operative date of any disciplinary action.

29.5.5

If the allegations are denied in part or in full, or if the employee has not responded to the allegations, the relevant senior officer will in line with the employee’s choice refer the matter for investigation by an independent person, “the investigator”; or a Misconduct Investigation Committee. If the employee fails to make that choice, the matter will be referred to an independent investigator. Where the allegation(s) are denied in part, the relevant senior officer may withdraw the allegation(s) that are denied and take action specified in clause 29.5.4 in respect of the allegation(s) that are admitted by the employee.

29.5.6

Alternatively, the relevant senior officer may decide to take no further action, or counsel or censure the employee for unsatisfactory behaviour, and take no other action.

29.5.7

Where a matter is referred to a Misconduct Investigation Committee or investigator, the Vice-Chancellor will convene the investigation within 10 working days where practicable. The terms of reference of the misconduct investigation are to report in writing to the Vice-Chancellor as soon as practicable on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.

29.5.8

On receipt of the report of the Committee or investigator, and having considered its findings on the facts related to the alleged misconduct or serious misconduct, the Vice-Chancellor may take disciplinary action.

29.5.9

If, having considered the Committee’s or investigator’s findings on the facts relating to the alleged misconduct or serious misconduct, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct he/she will immediately advise the employee in writing, and may, by agreement with the employee, publish the advice in an appropriate manner.

29.5.10

Where an employee 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 or if the Vice-Chancellor so decides.

29.6 Review / Investigation Committees and Independent Reviewer’s / Investigators

29.6.1

A Review or Investigation Committee established in accordance with this clause will consist of:

(a) an independent Chairperson;

(b) an RMIT employee nominated by the Vice-Chancellor; and

(c) a staff representative nominated by the NTEU.

29.6.2

A panel of independent Chairpersons and a panel of Independent Reviewers/Investigators will be established by the University by agreement with the NTEU. Chairpersons and panel members will be independent and command the confidence of management and staff.

29.6.3

The Vice-Chancellor will appoint a Chairperson or Independent Reviewer/Investigator from the panel when establishing a review process following agreement with the NTEU, ensuring that there is no conflict of interest. The NTEU will not unreasonably withhold agreement.

29.6.4

The Review/Investigation Committees and the Investigators/Reviewers will determine their own procedures consistent with the principles of natural justice and procedural fairness and which include the right of the University and the employee to test evidence, including by interviewing persons, and the recording of proceedings.

29.6.5

Each Committee established or the Investigator/Reviewer appointed in accordance with clause 29.6.4 shall:

(a) provide an opportunity for the employee to be interviewed by it and ensure that he/she has adequate opportunity to answer findings of unsatisfactory performance, or allegations of misconduct or serious misconduct;

(b) interview any person it thinks fit to establish the merits or facts of the particular case;

(c) conduct all interviews in the presence of the employee and/or the employee’s representative and the Vice-Chancellor and/or his or her representative;

(d) conduct proceedings as expeditiously as possible consistent with the need for fairness;

(e) conduct proceedings in camera (unless otherwise agreed by the Union and the Vice-Chancellor) and as a committee of inquiry to establish the merits or facts of the particular case;

(f) take into account such further material as it believes appropriate to substantiate or otherwise the facts in dispute;

(g) ensure that the employee or his/her representative and the Vice-Chancellor or his/her representative has the right to ask questions of interviewees, and to make submissions. They also shall have the right to present and challenge evidence;

(h) make its report available to the Vice-Chancellor and the employee as soon as reasonably possible; and

(i) keep a recording of the proceedings (but not its own deliberations), which shall be available on request to either party.

29.6.6

In cases dealing with matters pertaining to allegations of sexual harassment the questioning of interviewees may be done through the Committee or the Investigator. Further, the committee or investigator may exclude other persons as provided for in 29.6.5 c) from the interview.

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