51 MANAGING UNSATISFACTORY PERFORMANCE

Application

51.1 The procedures outlined in this Clause apply to all continuing and fixed-term staff employed by the University.  This Clause does not apply to casual and probationary staff.

51.2 It is expected that supervisors will have provided regular feedback on performance as part of the performance review processes at UTS and will deal promptly and fairly with issues.  Supervisors will provide guidance and counselling and, where appropriate, staff development, to address performance issues when these are first identified.

51.3 The procedures of this Clause must be followed before disciplinary action against a staff member for unsatisfactory performance may be taken.  However, where a matter that may involve unsatisfactory performance has been dealt with in good faith as though it were a case of misconduct under Clause 52, the procedures of this Clause are not required, but the procedures of Clause 52 including notice periods and review procedures, must be followed.  Nothing in this Clause prevents the relevant Dean, Director, Head of Division or the Vice-Chancellor from referring a question of possible unsatisfactory performance to a supervisor or Manager for appropriate action.

Definition

51.4 ‘Disciplinary action’ means action by the University to discipline a staff member for unsatisfactory performance in accordance with the provisions of this Agreement and may include one or more of the following:

(a) formal censure

(b) formal counselling

(c) demotion by one or more classification levels or increments

(d) withholding of an increment

(e) suspension with pay

(f) termination of employment.

Procedures

51.5 Where a supervisor forms a view that the performance of a staff member is unsatisfactory, the supervisor will:

(a) inform the staff member that action is being, or may be, taken in accordance with this Clause

(b) counsel the staff member on the nature of the improvement required and the time within which reasonable improvement is expected, and

(c) make a record of the counselling given and provide a copy to the staff member.

51.6 A staff member may choose to be accompanied by a representative of the staff member’s choosing at any counselling or meeting convened in accordance with this Clause, provided that person is not a barrister or solicitor in private practice.

51.7 When performance issues are identified as part of the University’s performance review processes and the staff member has been advised in accordance with sub-clause 51.5(b), the procedures outlined in that process for dealing with performance issues may be deemed to satisfy the requirements of sub-clause 51.5.

51.8 Where a supervisor believes that the processes referred to in 51.5 have not produced the desired improvements in performance, the supervisor will make a report to the Dean or Director (as appropriate) and, at the same time, provide a copy to the staff member.  The Dean or Director will review the report and any response provided by the staff member and may decide to:

(a) take no further action

(b) refer the matter back to the supervisor to ensure that the steps referred to in sub-clause 51.5 are complied with in substance and in a manner appropriate to the circumstances; or

(c) refer the report to the Deputy Vice-Chancellor.  The report will state clearly the aspects of performance viewed as unsatisfactory and the record of attempts to remedy the problem/s.

51.9 The Dean or Director will provide the staff member with a copy of the report at the time it is referred to the Deputy Vice-Chancellor.  The staff member may, within ten working days of receipt of the report by the Deputy Vice-Chancellor, submit to the Deputy Vice-Chancellor a written response to the report.

51.10 Upon receipt of the report and any written response from the staff member, the Deputy Vice-Chancellor will first be satisfied that:

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

(b) an adequate opportunity to respond was given

(c) any response was taken into account, and

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

51.11 Following consideration of the report and any written response from the staff member, the Deputy Vice-Chancellor may then:

(a) take no further action

(b) refer the matter back to the supervisor (via the Dean or Director) to ensure that the steps referred to in sub-clause 51.5 are complied with in substance and in a manner appropriate to the circumstances, or

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

51.12 The Deputy Vice-Chancellor will advise the staff member in writing of his/her recommendation in relation to disciplinary action.  Following receipt of the Deputy Vice-Chancellor’s written advice, the staff member has five working days to submit, in writing, a request for a review of the process leading to the Deputy Vice-Chancellor’s recommendation.

51.13 If the staff member does not request a review of the process leading to the Deputy Vice-Chancellor’s recommendation, the Deputy Vice-Chancellor will refer his/her recommendation to the Vice-Chancellor.  The Vice-Chancellor will consider the recommendation and determine if any disciplinary action is to be taken.  The Vice-Chancellor will advise the staff member, in writing, of her/his decision and the operative date of any disciplinary action to be taken.

Review

51.14 Where a staff member requests a review of the Deputy Vice-Chancellor’s recommendation in accordance with sub-clause 51.12, a Reviewer will be appointed within ten working days [refer to Clause 53, Reviewers and Investigators].  .

51.15 The Reviewer will:

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

(b) allow the Deputy Vice-Chancellor and staff member to be assisted, if they so choose, by an agent of his/her choice who is not a solicitor or barrister in private practice

(c) give the staff member adequate opportunity to put his/her case that fair process was not observed up to the point of the recommendation by the Deputy Vice-Chancellor to advise the staff member that his/her performance is unsatisfactory

(d) provide an opportunity for the staff member to be interviewed

(e) conduct all interviews in the presence of the staff member and the Deputy Vice-Chancellor and, where applicable their representatives

(f) ensure that the staff member and the Deputy Vice-Chancellor have the right to ask questions, to make submissions and to present and challenge evidence

(e) interview any person the Reviewer thinks fit to establish the facts of the particular case

(f) take into account other material the Reviewer believes appropriate to the case;

(g) keep a record of the interviews and proceedings

(h) provide a report together with a record of proceedings to the Vice-Chancellor and the staff member within ten working days of completion of the proceedings

(i) conclude the proceedings within ten working days of the appointment of the Reviewer unless otherwise agreed between the Investigator, the Deputy Vice-Chancellor and the staff member.

51.16 If the Reviewer concludes that the procedures set out in sub-clause 51.5 to 51.10 were not properly followed the Vice-Chancellor will consider the Deputy Vice-Chancellor’s recommendation in light of the Reviewer’s report and may first take steps to remedy any perceived unfairness as may seem to the Vice-Chancellor reasonable.

51.17 The Vice-Chancellor will then decide if disciplinary action is to be taken.  The Vice-Chancellor will advise the staff member in writing of her/his decision, and of the operative date of any disciplinary action to be taken.  If the Vice-Chancellor decides there has been no unsatisfactory performance, she/he will immediately advise the staff member in writing, and may, by mutual agreement with the staff member, publish the advice in an appropriate manner.

51.18 If the Reviewer concludes that the procedures set out in sub-clauses 51.5 to 51.10 were followed properly, the Vice-Chancellor will consider Reviewer’s report and the Deputy Vice-Chancellor’s recommendation and decide if disciplinary action is to be taken.  The Vice-Chancellor will advise the staff member in writing of her/his decision, and of the operative date of any disciplinary action to be taken.

51.19 The action of the Vice-Chancellor under this Clause will be final.  However, this Clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter.

52 DISCIPLINARY ACTION FOR MISCONDUCT

Application

52.1 The procedures outlined in this Clause apply to all staff (other than casual staff) employed by the University.

Definition

52.2 ‘Misconduct’ means:

(a) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member’s duties or to a staff member’s colleagues carrying out their duties; or

(b) conviction by a Court of competent jurisdiction of an offence of a kind that may be reasonably regarded as constituting a serious impediment to the discharge by the staff member of his or her functions or duties, or to the staff member’s colleagues carrying out their functions or duties; and/or

(c) serious dereliction of duties.

52.3 ‘Disciplinary action’ means any action by the University to discipline a staff member for misconduct and may include one or more of the following:

(a) formal censure

(b) formal counselling

(c) demotion by one or more classification levels or increments

(d) withholding of an increment

(e) suspension with pay

(f) termination of employment.

Procedures

52.4 The Vice-Chancellor must follow the procedures of this Clause before taking disciplinary action against a staff member for misconduct.  However, where a matter that may involve misconduct has been dealt with in good faith as if it were a case of unsatisfactory performance under Clause 51, the procedures of this Clause are not required, but the procedures of Clause 51, including notice periods and review procedures, must be followed.

52.5 The Vice-Chancellor will consider any allegation/s of misconduct.  If the Vice-Chancellor believes the allegation/s warrant further investigation then the Vice-Chancellor 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 ten working days.

52.6 If the staff member denies in part or full the allegation/s, or fails to submit a written response to any allegations, the Vice-Chancellor will:

(a) arrange for the matter to be investigated; or

(b) counsel and/or censure the staff member for unsatisfactory behaviour and take no other action; or

(c) take no further action.

52.7 If the staff member admits in full the allegation/s, and the Vice-Chancellor is of the view that the conduct amounts to misconduct, then the Vice-Chancellor may take disciplinary action, subject to following the procedure described in sub-clause 52.8.

52.8 Before deciding to take disciplinary action, the Vice-Chancellor will:

(a) invite the staff member to advise within five working days, in writing, any matters that he or she may wish the Vice-Chancellor to take into account at the time a decision as to disciplinary action is considered

(b) have regard to any such matters brought to attention by the staff member when deciding whether any disciplinary action should be taken, and

(c) advise the staff member of that decision and of the operative date of any disciplinary action to be taken.

52.9 Where the Vice-Chancellor is of the view that there has been no misconduct and decides to take no further action under sub-clause 52.6, the Vice-Chancellor will immediately advise the staff member in writing and may, by agreement with the staff member, publish the advice in an appropriate manner.

Investigation of misconduct

52.10 Where a matter is referred for investigation in accordance with sub-clause 52.6(a), an Investigator will be appointed within ten working days [refer to Clause 53, Reviewers and Investigators].

52.11 The Investigator will investigate the facts relating to the alleged misconduct, including whether any mitigating circumstances are evident.

52.12 The Investigator will:

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

(b) provide an opportunity for the staff member and the Vice-Chancellor, should they so choose, to be assisted in the proceedings (but not by a person who is a solicitor or barrister in private practice)

(c) provide an opportunity for the staff member to be interviewed by the Investigator and ensure that he/she has adequate opportunity to answer any allegations of misconduct and put his/her case

(d) conduct all interviews in the presence of the staff member and the Vice-Chancellor and, where applicable their representatives

(e) ensure that the staff member and the Vice-Chancellor have the right to ask questions, to make submissions and to present and challenge evidence

(f) interview any person the Investigator thinks fit to establish the facts of the particular case and take into account any material the Investigator believes appropriate to the case

(g) keep a record of proceedings and

(h) provide a report together with a record of proceedings to the Vice-Chancellor and the staff member within ten working days of completion of the proceedings

(i) conclude the investigation within ten working days of the appointment of the investigator unless otherwise agreed between the Investigator, the Vice-Chancellor and the staff member.

52.13 On receipt of the report of the Investigator, and having considered the findings on the facts related to the alleged misconduct, including any findings as to whether any mitigating circumstances are evident, the Vice-Chancellor may take disciplinary action.

52.14 If, having considered the investigator’s findings on the facts, the Vice-Chancellor is of the view that there has been no misconduct the Vice-Chancellor will immediately advise the staff member in writing. The Vice-Chancellor may, by agreement with the staff member, publish the advice in an appropriate manner.

Suspension

52.15 The Vice-Chancellor may suspend a staff member with pay if the Vice-Chancellor is of the view that it would be unreasonable to continue the staff member’s attendance at work pending further investigation.

52.16 During any period of suspension the staff member may be excluded from the University, however, he/she will be permitted reasonable access to the University for the preparation of his/her case and to collect personal property.

Other matters

52.17 This Clause in no way 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.

52.18 The action of the Vice-Chancellor under this Clause will be final.  However, this Clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter.

53 REVIEWERS AND INVESTIGATORS

53.1 Where a ’Reviewer‘ under Clauses 33 [Redundancy] and 51 [Managing Performance], or an ’Investigator‘ under Clause 52 [Disciplinary Action for Misconduct] is required, the staff member concerned and the University will agree on the nomination of a Reviewer or Investigator, as required.  Reviewers or Investigators will be persons external to the University and have experience in University decision-making processes, dispute resolution, arbitration and/or adjudication.  If agreement cannot be reached with ten working days, then the Vice-Chancellor will ask a member of the Higher Education Panel of the AIRC to nominate a person to act as the Reviewer or Investigator and that person will be appointed as the Reviewer or Investigator.