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Disciplinary Action for Misconduct or Serious Misconduct Procedure

Procedure overview

1 Purpose

To outline the processes involved in managing Misconduct or Serious Misconduct of Employees at the University.

2 Scope

This procedure applies to Employees whose conditions of employment are covered by the University of Southern Queensland Enterprise Agreement 2014-2017, excluding casuals and Employees whose conditions of employment are covered by a written agreement or contract with the University.

Whilst casual Employees are formally excluded from the procedures for Disciplinary Action for Misconduct or Serious Misconduct in this policy and procedure, casual Employees may have their employment with the University terminated with one hour's notice, in accordance with the provisions of the University of Southern Queensland Enterprise Agreement 2014-2017.

Individuals other than Employees may have their association with the University terminated, or have their right or access to University services, facilities or infrastructure revoked.

3 Procedure Overview

This procedure outlines the University's management of Misconduct or Serious Misconduct of Employees in accordance with the provisions of relevant legislation, agreements, awards and contracts of employment.

4 Procedures

4.1 Investigation

Prior to initiating any action in accordance with 4.2 through 4.5, the University will make every effort to resolve instances of possible Misconduct or Serious Misconduct through guidance, counselling or other appropriate action. If the concerns are not able to be resolved, then the University may undertake an initial investigation process to establish whether a Complaint can be reasonably substantiated or clarified with no need for further action.

The investigation process will be conducted in accordance with the principles of natural justice and procedural fairness and may include questioning other individuals who may be involved in or observed the incident in question. Where there is a reasonable suspicion of Serious Misconduct having occurred, the University will advise the Crime and Corruption Commission.

Where the Vice-Chancellor determines that there is a case of Misconduct or Serious Misconduct to answer, then the process in 4.2 will be initiated. Where the Vice-Chancellor determines that there is no case of Misconduct or Serious Misconduct to answer, there will be no further action taken by the University.

In some circumstances a Complaint under this procedure may also be regarded as a matter that requires attention under the Public Interest Disclosure Policy and Procedure.

With the exception of Complaints that are made in accordance with the University's Public Interest Disclosure Policy and Procedure, the University will not normally investigate anonymous Complaints unless the issues raised within the Complaint are of a serious nature and sufficient information is provided.

4.2 Formal action

Any allegation of Misconduct or Serious Misconduct will be considered by the Vice-Chancellor. If the Vice-Chancellor believes such allegations warrant further investigation, the Vice-Chancellor 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
  • require the Employee to submit a written response within 10 working days from the receipt of the letter.

If the allegations are denied by the Employee, and the Vice-Chancellor is of the view that there has been no Misconduct or Serious Misconduct, the Vice-Chancellor will immediately advise the Employee, in writing, and may, by agreement with the Employee, publish the advice in an appropriate manner.

If the allegations are admitted in full by the Employee, and the Vice-Chancellor is of the view that the conduct amounts to Misconduct or Serious Misconduct, the Vice-Chancellor will advise the Employee, in writing, of the Vice-Chancellor's Decision and the operative date of the Disciplinary Action.

If the allegation is denied in part or in full, or if the Employee has not responded to the allegations, the Vice-Chancellor will refer the matter to a Misconduct Investigation Committee unless the Vice-Chancellor decides to take no further action or counsel or censure the Employee for unsatisfactory behaviour and take no other action.

4.3 Suspension

At the time of notifying the Employee under 4.2, or subsequently, in exceptional circumstances the Vice-Chancellor may suspend the Employee on full pay, or may suspend the Employee without pay if the Vice-Chancellor is of the view that the alleged conduct amounts to Serious Misconduct such that it would be unreasonable to require the University to continue the Employee's employment during a period of notice.

Where suspension without pay occurs at a time when the Employee is on paid leave of absence the Employee will continue to receive a salary for the period of leave of absence.

The Employee may engage in external paid employment or draw on any annual leave or eligible long service leave credits during the suspension without pay.

The Vice-Chancellor may direct that salary be paid on the grounds of hardship.

Where a suspension without pay has been imposed and the matter is subsequently referred to a Misconduct Investigation Committee, the Vice-Chancellor will ensure that the Misconduct Investigation Committee at its first meeting determines whether suspension without pay should continue. The Misconduct Investigation Committee will provide advice as to whether the suspension without pay should continue.

During any period of suspension the Employee may be excluded from the University, provided that the Employee will be permitted reasonable supervised access to the University campus and to request relevant documentation in order to prepare their response to any allegations of Misconduct or Serious Misconduct that has been made against them; and to collect or have personal property returned.

4.4 Misconduct Investigation Committee

The terms of reference of the Misconduct Investigation Committee are to report on the facts relating to the alleged Misconduct or Serious Misconduct, including whether any mitigating circumstances are evident.

Where a matter is referred to a Misconduct Investigation Committee, the Vice-Chancellor will convene the Misconduct Investigation Committee within 10 working days, where practicable.

The Misconduct Investigation Committee will consist of:

  • a Chairperson agreed between the Vice-Chancellor and Employee representatives on the Staff Consultative Committee
  • an Employee nominated by the Vice-Chancellor
  • an Employee nominated by the Employee representatives on the Staff Consultative Committee.

A committee member has an obligation to advise of any conflicts/s or potential conflicts of interest that may undermine the application of natural justice and procedural fairness.

A Misconduct Investigation Committee which is considering allegations of Misconduct may, where it is convinced that the merits and facts of the particular case go substantially beyond those contained in the initial allegation, indicate that the allegation must be considered one of Serious Misconduct.

The Employee must be clearly informed, in writing, of which new matters the Misconduct Investigation Committee considers may constitute Serious Misconduct and be given full opportunity to respond.

The Misconduct Investigation Committee will:

  • provide an opportunity for the Employee against whom the allegations are made to be interviewed by it and ensure that the Employee has adequate opportunity to answer allegations of Misconduct or Serious Misconduct
  • consider such further materials as it believes appropriate to substantiate or otherwise the facts in dispute
  • interview any other person it sees fit to establish the merits or facts of the particular case
  • ensure that the Employee, or their Nominated Representative, and the Vice-Chancellor or delegate, or Nominated Representative, have the right to ask questions of interviewees, to make submissions and to present and challenge evidence
  • conduct its proceedings in camera (unless otherwise agreed) as a Committee of inquiry as expeditiously as possible consistent with the need for fairness
  • keep a taped record of the proceedings (but not its own deliberations), which will be available on request to the Employee or the Vice-Chancellor
  • make its report available to the Vice-Chancellor and the Employee within 10 working days following the conclusion of the Committee's proceedings.

At any stage during the process, the Employee may be represented by a Nominated Representative. The Vice Chancellor or delegate may also be represented by a Nominated Representative.

4.5 Report to Vice-Chancellor

On receipt of the report of the Misconduct Investigation Committee, and having considered its findings on the facts related to the alleged Misconduct or Serious Misconduct, the Vice-Chancellor may take Disciplinary Action.

If the Vice-Chancellor is of the view that there has been no Misconduct or Serious Misconduct the Vice-Chancellor will immediately advise the Employee in writing, and may, by agreement with the Employee, publish the advice in an appropriate manner.

Where an Employee has been suspended without pay pending the Decision of the Vice-Chancellor, any lost income will be reimbursed if there was no Misconduct or Serious Misconduct. However, a Decision taken by the Vice-Chancellor, at the Vice-Chancellor's discretion, not to dismiss or impose another penalty, will not be construed as an admission that there was no conduct justifying suspension without pay.

The University is not constrained from carrying out other investigations relating to the consequences of conduct of an Employee.

All actions of the Vice-Chancellor under this Section will be final, except that nothing in this Section will be construed as excluding the jurisdiction of any external court, tribunal or commission competent to deal with the matter.

5 Delegated responsibilities

Approver

Level of Delegation

Vice-Chancellor

Decision (after considering the Misconduct Investigation Committee report)

Misconduct Investigation Committee

Determination

Director (Human Resources)

Ensure matter proceeds in accordance with other relevant policies and timeframes; and to provide procedure and process recommendations to the Vice-Chancellor

6 References

Nil.

7 Schedules

This procedure must be read in conjunction with its subordinate schedules as provided in the table below.

8 Procedure Information

Subordinate Schedules

Accountable Officer

Executive Director (Finance and People Capability)

Policy Type

University Procedure

Approved Date

26/2/2016

Effective Date

26/2/2016

Review Date

21/1/2018

Relevant Legislation

Crime and Corruption Act 2001

Fair Work Act 2009

Public Interest Disclosure Act 2010 (Qld)

University of Southern Queensland Act 1998

University of Southern Queensland Enterprise Agreement 2014-2017

Related Policies

Code of Conduct Policy

Fraud Corruption and Control Management Policy and Procedure

Media Engagement Policy

Public Interest Disclosure Policy and Procedure

Termination and Separation Policy

Related Procedures

Employee Conflict of Interest Procedure

Media Engagement Procedure

Termination of Employment Procedure

Related forms, publications and websites

Public Interest Disclosure Website

Definitions

Terms defined in the Definitions Dictionary

Complaint

An expression of dissatisfaction made in relation to an action, Decision or omission within the responsibility and control of the University, a University Member or a Student, where a response or resolution process is expected wherever possible....moreAn expression of dissatisfaction made in relation to an action, Decision or omission within the responsibility and control of the University, a University Member or a Student, where a response or resolution process is expected wherever possible.

Corrupt Conduct

As defined in section 15 of the Crime and Corruption Act 2001....moreAs defined in section 15 of the Crime and Corruption Act 2001.

Decision

A determination made by an Employee, contractor or other authorised delegate in the course of their duties on behalf of the University....moreA determination made by an Employee, contractor or other authorised delegate in the course of their duties on behalf of the University.

Employee

A person employed by the University and whose conditions of employment are covered by the USQ Enterprise Agreement and includes persons employed on a continuing, fixed term or casual basis. Employees also include senior Employees whose conditions of employment are covered by a written agreement or contract with the University....moreA person employed by the University and whose conditions of employment are covered by the USQ Enterprise Agreement and includes persons employed on a continuing, fixed term or casual basis. Employees also include senior Employees whose conditions of employment are covered by a written agreement or contract with the University.

University

The term 'University' or 'USQ' means the University of Southern Queensland....moreThe term 'University' or 'USQ' means the University of Southern Queensland.

Definitions that relate to this procedure only

Disciplinary Action

Means action by the University to discipline an Employee for Misconduct or Serious Misconduct and includes: formal censure or counselling; demotion by one or more classification levels or increments; withholding of an increment; suspension with or without pay; or termination of employment for Serious Misconduct only.

Misconduct and Serious Misconduct

Are defined in accordance with the University of Southern Queensland Enterprise Agreement 2014-2017 definitions 4.2.24 and 4.2.33 respectively.

Nominated Representative

Means in relation to an Employee, a person selected by the Employee to assist or represent the Employee. The person may be an officer or Employee of the relevant Union, or any other person chosen by the Employee. In relation to the University, it means a person selected by the University to assist or represent the University. The person may be an Employee of the University, or an officer or Employee of AHEIA, or any other person selected by the University. The Nominated Representative must not be a practising barrister or solicitor and must not present a Conflict of Interest.

Keywords

Misconduct, serious misconduct, discipline, allegations, suspension

Record No

13/300PL

Failure to comply with this Policy or Policy Instrument may be considered as misconduct and the provisions of the relevant Policy or Procedure applied.

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