Policy Redesign Project

All policies and procedures are being reviewed as part of this project. This document is pending review, but remains in effect until the review is carried out.

Academic Discipline: Unsatisfactory Performance and Misconduct/Serious Misconduct

Establishment: Council, 24 November 2004 
Date Last Amended: Senior Vice-President, 7 November 2014
Nature of Amendment:

7 August 2014 - Enterprise Agreement 2014 to 2017

Clarification of the definition of Level 1 disciplinary action and improved provisions for the handling of allegations that involve academic research misconduct

Date Last Reviewed:  
Responsible Officer: Director, Human Resources

 


ENTERPRISE AGREEMENT 2014–2017, CLAUSE C14 ACADEMIC DISCIPLINE: UNSATISFACTORY PERFORMANCE AND MISCONDUCT/SERIOUS MISCONDUCT

C14.1 [Scope] This clause applies to all academic staff except those serving a probationary period and staff employed on a casual basis.

C14.2 [Prior opportunity to remedy concerns] The supervisor will normally deal with a case of less than satisfactory performance or conduct in the first instance.  Action under this clause will not normally be undertaken unless:

C14.2.1 In the case of performance, the staff member has been provided with a reasonable opportunity to understand the University’s expectation of performance as described in the relevant Academic Profile; and

C14.2.2 The staff member has been afforded reasonable opportunity and support to respond to and remedy concerns about performance and/or conduct; and

C14.2.3 The supervisor determines that despite reasonable efforts to remedy concerns, the staff member’s performance and/or conduct continues to be unsatisfactory; and

C14.2.4 The supervisor makes a formal report to the Executive Dean; and

C14.2.5 The Executive Dean, having given due consideration to the report and any response from the staff member, determines that disciplinary action is warranted.

C14.3 Notwithstanding C14.2, the Executive Dean may deal with an allegation of misconduct or serious misconduct in the first instance under this clause should the special circumstances warrant.  The staff member will be afforded reasonable opportunity to respond to the allegation prior to any action under C14.7.

C14.4 Disciplinary action should be used as a last resort and may only be taken in accordance with this clause.

C14.5 [Definitions]

[‘Misconduct’] means:

  • conduct or behaviour of a kind which constitutes an impediment to the carrying out of an employee’s duties or to an employee’s colleagues carrying out her or his duties;
  • conduct or behaviour which is inconsistent with an employee’s obligations to the employer, as specified in A8 of this Agreement; or
  • dereliction of the duties required of an academic office.

[‘Serious misconduct’] means:

  • serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an academic’s duties or to an academic’s colleagues carrying out their duties;
  • serious dereliction of the duties required of an academic office, or
  • conviction by a court of an offence which constitutes a serious impediment of the kind referred to above.

[‘Level 1 disciplinary action’] means:

  • censuring the staff member; and/or
  • giving the staff member a written warning (including, where appropriate, a final warning) about potential disciplinary action if the unsatisfactory performance is not remedied or if the misconduct or serious misconduct is repeated.

[‘Level 2 disciplinary action’] means disciplinary action including:

  • demoting the staff member by one or more salary steps and/or by one classification level;
  • suspending the staff member with pay;
  • withholding of an increment;
  • removing certain administrative duties and responsibilities which involve the payment of an allowance; or
  • terminating the staff member’s employment.

C14.6 [Disciplinary action in accordance with clause] Subject to C14.1, disciplinary action may only be taken in accordance with the provisions of this clause.

C14.7 [Action by Executive Dean following determination] Where, in accordance with C14.2 or C14.3, the Executive Dean has determined that disciplinary action be undertaken, she/he may:

C14.7.1 [‘Level 1’ disciplinary action] determine that level 1 disciplinary action be taken, as provided for in clause C14.5. This determination is final.  The staff member will have an opportunity to provide a written statement, for placing on file with the University’s formal advice about the discipline action.

C14.7.2 [‘Level 2’ disciplinary action] recommend to the Deputy Vice-Chancellor (Academic) that she/he take ‘Level 2’ disciplinary action, as provided for in clause C14.5.

C14.8 [Opportunity for staff member to respond to Level 2 disciplinary action recommendation to Deputy Vice-Chancellor (Academic)] The staff member will be entitled to provide a written response to the Executive Dean’s report within 10 working days.

C14.9 [Investigative Officer] Where a matter has been referred to the Deputy Vice-Chancellor (Academic) she/he will appoint an Investigative Officer to investigate the matter, prior to making a determination under C14.10. The Investigative Officer will make a written report of the investigation.

C14.10 [Deputy Vice-Chancellor (Academic)’s determination] will have regard to the Investigative Officer’s report, the Executive Dean’s report and recommendation, and any written or verbal response from the staff member.  The Deputy Vice-Chancellor (Academic) may:

C14.10.1 advise the staff member in writing that she/he is satisfied that there has been no unsatisfactory performance/misconduct/serious misconduct. By agreement with the staff member, the Deputy Vice-Chancellor (Academic) may publish the advice in an appropriate manner; or

C14.10.2 take a ‘Level 1’ disciplinary action (in which case the decision will be final); or

C14.10.3 take a ‘Level 2’ disciplinary action.

C14.11 [Date of effect of ‘Level 2’ disciplinary action] The decision will take effect no earlier than 5 working days from the date of written advice from the Deputy Vice-Chancellor (Academic).

C14.12 [Termination of employment] may occur:

  • on the grounds of unsatisfactory performance, where the staff member has previously received a written warning that further unsatisfactory performance may lead to termination of employment; or
  • on the grounds of unsatisfactory conduct, where the Deputy Vice-Chancellor (Academic) determines that the conduct of the staff member amounts to serious misconduct.

C14.13 [Review of Decision] A staff member may seek a review of a decision by the Deputy Vice-Chancellor (Academic) to take ‘Level 2’ disciplinary action, in which case the matter will be referred to a Discipline Review Committee.

C14.14 [Disciplinary action suspended for duration of review] A ‘Level 2’ disciplinary action will not take effect prior to the conclusion of the review proceedings. However, in cases of alleged misconduct/serious misconduct, the Deputy Vice-Chancellor (Academic) may suspend the staff member for the duration of the review proceedings, in accordance with clause C15.

C14.15 [Discipline Review Committee composition] will be in accordance with clause A33 of this Agreement.

C14.16 [Terms of Reference] are to report to the Vice-Chancellor on whether:

  • the allegation of unsatisfactory performance, misconduct or serious misconduct has been substantiated;
  • the procedures in this clause have been followed;
  • there are any mitigating circumstances not already raised for consideration by the Deputy Vice-Chancellor (Academic); and
  • whether, having regard to the above, the proposed disciplinary action is commensurate with the level of unsatisfactory performance, misconduct or serious misconduct.

C14.17 [Vice-Chancellor’s determination] The Vice-Chancellor will consider any matters raised by the report of the Discipline Review Committee, before making a final determination as to whether the relevant form of disciplinary action is warranted, or whether alternative disciplinary action or no further action should be taken.

C14.18 [No further action] The steps and decisions taken under this clause (subject to consideration by the Discipline Review Committee) may not be challenged via any one or more of the disputes, grievance or review processes of the University.

C14.19 [Research Misconduct] Where an allegation of Research Misconduct has been made, the following additional provisions apply:

C14.19.1  For the purposes of this clause Research Misconduct means:

  • fabrication, falsification, plagiarism or deception in proposing, carrying out or reporting the results of research;
  • failure to declare or manage a serious conflict of interest;
  • avoidable failure to follow research proposals as approved by a research ethics committee, particularly where this failure may result in unreasonable risk or harm to humans, animals or the environment;
  • the willful concealment or facilitation of research misconduct by others.

A complaint or allegation relates to research misconduct if it involves both intent and deliberation, recklessness or gross and persistent negligence; and serious consequences, such as false information on the public record, or adverse effects on research participants, animals or the environment.

C14.19.2  The Vice-Chancellor may determine, at her/his absolute discretion, that an investigation and/or review concerning allegations of research misconduct requires specialised knowledge about the area of research and expertise in the conduct of research.  This means that:

(a) a matter for investigation under clause C14.9 may be referred to a small panel of investigative officers of no more than three (3) persons, as determined by the Deputy Vice-Chancellor (Academic) in place of an “Investigative Officer”. 

(b) the composition of a Discipline Review Committee under clause C14.15 may be augmented by up to two (2) persons (so there may be a maximum of five (5) members).  Where additional members are required, these will be agreed with the Flinders President of the NTEU.

(c) a Chair who has expertise in the conduct of a research investigation, or in the conduct of tribunals of fact, and/or is a subject expert in relation to the matter under investigation may be appointed in place of the Chair appointment under clause C14.15.  Such a Chair may be appointed by the Vice-Chancellor or delegate, having conferred with the Flinders Branch President of the NTEU and agreed on an acceptable Chair.

C14.19.3  Research Misconduct shall be dealt with in accordance with this Clause as either misconduct or serious misconduct except for variations provided for under clause C14.19.

C14.19.4  Where the allegations of research misconduct appear to involve action in concert between employees of more than one employer, the Vice-Chancellor, the NTEU and the CEOs of the other employers may agree to the conduct of a joint independent investigation and review process, governed by provisions which are to be agreed in writing.  Should this occur, the provisions as agreed in writing shall apply in substitution for the provisions set out in this Agreement.

C14.19.5  If in the future the University is required to further comply with the procedures for dealing with allegations of misconduct or serious misconduct in research as set out in Part B of the Australian Code for the Responsible Conduct of Research, then the University will discuss this requirement with the NTEU.


Policy and Procedures

1.  Overview

The University is committed to providing a working environment that maximises the opportunities for academic staff to undertake their duties to a satisfactory standard of performance and conduct.

 

2.  Academic Staff Performance Review Scheme

A key element to achieving this is the University's Academic Staff Performance Review Scheme (ASPRS). The ASPRS is designed to assist with the performance review and professional development of staff and it is through this scheme that reliable information is provided to a staff member on the University's expectation of performance across all academic areas of activity

 

3.  Fair and reasonable case management

The University is committed to ensuring that all cases of unsatisfactory performance, misconduct or serious misconduct are managed in a fair and reasonable manner. 

 

4.  Guidelines

4.1  Genuine attempt to resolve issue

An academic supervisor must make every effort to resolve unsatisfactory performance or an allegation of misconduct or serious misconduct before referring a matter involving unsatisfactory performance, misconduct or serious misconduct to the Executive Dean/Portfolio Head (hereinafter referred to as Executive Dean). The supervisor must be able to demonstrate what processes have taken place, through appropriate records or documentation.

4.2  Formal report to Executive Dean

A report made to the Executive Dean by an academic supervisor will state clearly the aspects of performance or conduct seen as unsatisfactory and the record of attempts to remedy the problem.

4.3  Staff member's response

The academic supervisor will provide the staff member with a copy of the report at the time that it is submitted. The staff member will be entitled to 10 working days to submit to the Executive Dean a written response to the academic supervisor's report. In addition to providing a written response the Executive Dean may meet with the staff member to discuss the matter prior to making a final determination.

4.4  Executive Dean considers report

Upon receipt of the academic supervisor's report and any written response from the staff member, the Executive Dean will consider the documentation, including the processes applied. The Executive Dean may seek relevant expert advice where necessary to inform a decision in this regard (eg where professional academic judgement is required).

4.5  Executive Dean to advise staff member

The Executive Dean will advise the staff member in writing of any decision made.

4.6  Response to 'Level 1' disciplinary action

A staff member will have 28 days from receiving formal advice of ‘Level 1’ disciplinary action to be taken to provide a written statement. Where the staff member provides such a statement, it will be placed on file with the formal advice under clause 4.5. This statement may, at the staff member's request, be considered in any further unsatisfactory performance, misconduct or serious misconduct proceedings against the staff member. The Executive Dean will be responsible for ensuring that the staff member is aware of the opportunity to provide such a statement.

4.7  Recommendation to Deputy Vice-Chancellor (Academic) to take 'Level 2' disciplinary action

4.7.1  Opportunity for staff member to respond

The Executive Dean will provide the staff member with a copy of the recommendation at the time that it is submitted to the Deputy Vice-Chancellor (Academic). The staff member will be entitled to 10 working days to submit to the Deputy Vice-Chancellor (Academic) a written response to the Executive Dean's report. In addition to providing a written response the Deputy Vice-Chancellor (Academic) may meet with the staff member to discuss the matter prior to making a final determination.

4.7.2  Deputy Vice-Chancellor (Academic) to advise staff member

The Deputy Vice-Chancellor (Academic) will advise the staff member and the Executive Dean in writing of any decision made.

4.8  Review of decision

Where a staff member has been advised under clause 4.7.2 of a decision by the Deputy Vice-Chancellor (Academic) to take ‘Level 2’ disciplinary action, she/he will have 5 working days to apply in writing for a review of the decision. This application will state the grounds for the review.

4.9  Discipline Review Committee

Where a review is sought by the staff member under clause 4.8, the Deputy Vice-Chancellor (Academic) will refer the matter to a Discipline Review Committee.

Where an allegation of research misconduct has been made, there are additional provisions in C14.19 that may have application.

4.9.1  Composition

The Discipline Review Committee will comprise three (3) members, as follows:

  • A Chairperson, appointed by the Vice-Chancellor from a panel of independent chairpersons which has been established by the University following appropriate consultation with the University Consultative Committee (UCC);
  • A member nominated by the Vice-Chancellor;
  • A staff member nominated by the Deputy Chair of the UCC, in consultation with the members of the UCC who have not been nominated by the Vice-Chancellor.

4.9.2  Terms of Reference are to report to the Vice-Chancellor on whether:

  • the allegation of unsatisfactory performance, misconduct or serious misconduct has been substantiated;
  • the procedures in this clause have been followed;
  • there are any mitigating circumstances not already raised for consideration by the Deputy Vice-Chancellor (Academic); and
  • whether, having regard to the above, the proposed disciplinary action is commensurate with the level of unsatisfactory performance, misconduct or serious misconduct.

4.9.3  Operating principles

At all times the Committee will apply the principles of natural justice and procedural fairness and will:

  • take into account such further materials and/or interview any person that it believes appropriate;
  • ensure opportunity for the parties to the review to make submissions, present evidence, see all evidence to be considered and ask questions of any person interviewed by the Committee; and
  • make its report available to the parties to the review.

4.10  Final determination by Vice-Chancellor  The Vice-Chancellor will advise the staff member of her or his decision in writing.