32 Managing unsatisfactory performance
Nothing in this clause prevents the Vice-Chancellor referring a question of possible unsatisfactory performance to a supervisor for appropriate action.
32.1 The provisions of this clause apply when taking disciplinary action against a staff member, but not a probationary staff member, for unsatisfactory performance. However, where a matter that may involve unsatisfactory performance has been dealt with in good faith as though it were a case of misconduct, the procedures of this clause are not required, but the procedures of Clause 33, including notice periods and review procedures, must be followed.
32.2 If a supervisor forms the view that the performance of a staff member is unsatisfactory, the supervisor will address the issue(s) promptly and, in consultation with the staff member, will develop and implement specific strategies to address any concerns related to the staff member's performance.
32.3 To assist the staff member to address any performance concerns, the supervisor will:
(a) counsel the staff member on the nature of the improvement required and the time within which reasonable improvement is expected;
(b) inform the staff member that action is being taken in accordance with this clause , and
(c) make a record of the counselling given and provide a copy to the staff member.
32.4 Where a supervisor believes that the processes referred to in 32.2 have not produced the desired improvements in performance, the supervisor will make a report to the Authorising Officer and, at the same time, provide a copy to the staff member. The report will state clearly the aspects of performance viewed as unsatisfactory and the record of attempts to remedy the problem/s. The staff member will be invited to make a written response at this time. The staff member may, within ten working days of receipt of the report, submit to the Authorising Officer a written response to the report. The Authorising Officer will review the report and any response provided by the staff member and may decide to refer the report to the Vice-Chancellor.
32.5 Upon receipt of the report and any written response from the staff member, the 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.
32.6 The Vice-Chancellor may then decide to:
(a) take no further action;
(b) refer the matter back to the supervisor (via the Authorising Officer) to ensure that the steps referred to in paragraph 32.5 are complied with in substance and in a manner appropriate to the circumstances, or
(c)take disciplinary action.
32.7 The Vice-Chancellor will advise the staff member in writing of the decision and the date of effect of the decision.
32.8 The decision of the Vice-Chancellor under this clause will be final. However, this does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter.
33 Disciplinary action for misconduct
33.1 For the purposes of this clause 'Misconduct' means:
(i) 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
(ii) 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
(iii) serious dereliction of duties.
33.2 The Vice-Chancellor must follow the provisions 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 32, the procedures of this clause are not required, but the procedures of Clause 32 must be followed.
33.3 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.
33.4 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.
33.5 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 subclause 33.6.
33.6 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.
33.7 Where the Vice-Chancellor is of the view that there has been no misconduct and decides to take no further action under 33.4, 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
33.8 Where a matter is referred for investigation in accordance with 33.4(a), an investigator will be appointed by the Vice-Chancellor within 20 working days.
33.9 The investigator will investigate the facts relating to the alleged misconduct, including whether any mitigating circumstances are evident.
33.10 The investigator will:
(a) meet with the Vice-Chancellor and staff member who each may be assisted or represented by a representative (in the case of a staff member), or the University's relevant association (in the case of the University);
(b) interview any person and take account of any material the investigator thinks fit to establish the merits or facts of the particular case;
(c) conduct the investigation normally within one month of the appointment of the investigator unless otherwise agreed between the Vice-Chancellor and the staff member.
33.11 Within 10 working days (or longer period as agreed between the Vice-Chancellor and staff member) of completing the process under 33.10, the investigator will provide a report to the Vice-Chancellor and the staff member.
33.12 On receipt of the report of the investigator, and having considered its 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.
33.13 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.
33.14 The Vice-Chancellor may suspend a staff member with pay, or without 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.
33.15 Any such suspension will be subject to the following conditions:
(a) where suspension without pay occurs at a time when the staff member is on paid leave of absence the staff member will continue to receive a salary for the period of leave of absence;
(b) the staff member may engage in paid employment or draw on any annual leave or long service leave credits for the duration of the suspension without pay;
(c) the Vice-Chancellor may at any time direct that salary be paid on the ground of hardship.
33.16 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.
33.17 Where a staff member has been suspended without pay pending the decision of the Vice-Chancellor, then any pay withheld will be reimbursed if it is determined that there was no misconduct.
33.18 A decision taken by the Vice-Chancellor’s not to dismiss or impose another penalty will not be construed as an admission that there was no conduct justifying suspension without pay.
33.19 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.
33.15 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.
34 Notice periods for termination by the university
34.1 Where, in accordance with subclauses 32.7 and 33.12, the Vice-Chancellor has confirmed a decision to terminate the employment of a staff member, notice or payment in lieu will be as provided in subclauses 34.2 to 34.4.
34.2 The staff member will receive the following minimum period of notice of their last day of duty as follows:
|Period of continuous service||Period of notice|
|1 year or less||1 week|
|Over 1 year and up to the completion of 3 years||2 weeks|
|Over 3 years and up to the completion of 5 years||3 weeks|
|Over 5 years of completed service||4 weeks|
34.3 In addition to this period of notice, staff who are over 45 years of age at the time of giving notice and who have at least two years’ continuous service with the University will receive an additional one week of notice.
34.4 Payment instead of notice will be made if the University does not require the person to work out the notice period. Where the staff member is only required to work part of the notice period, the University will pay out the remainder of the notice period. Any payments in lieu of notice will be based on the staff member’s salary at the date of cessation of employment.
34.5 In instances of termination as a result of misconduct involving suspension without pay, there will be no requirement for the notice prescribed in this clause.
This clause applies to a continuing staff member and not to staff who are on fixed-term or reversionary appointments.
'Redundant position' means a position that is identified as surplus to the University's requirements for reasons of an economic, technological, structural or similar nature. Such reasons may include, but are not limited to:
(a) a decrease in student demand or enrolments in any academic course or subject or combination or mix of courses or subjects conducted on one or more campuses;
(b) a decision to reduce or cease providing or to vary a service, function or activity conducted on one or more campuses;
(c) financial exigency within an organisational unit or cost centre; or
(d) changes in technology or work methods.
35.3 Provision of information and consultation
35.3.1 Where the University has decided to make redundant the positions of one or more staff, it will:
(a) provide affected staff with relevant information including the following;
(i) the redundancies and the reasons for them;
(ii)the number and categories of staff likely to be affected; and
(iii)the time when, or the period over which, the University intends to carry out the redundancies
(b) consult with affected staff about measures to mitigate any negative consequences of the change. Such measures may include natural attrition, voluntary separation, fixed-term retirement contracts, leave without pay, voluntary conversion to part time employment (for a specified period of time unless otherwise agreed), long service leave, and/or redeployment.
35.3.2 Following the discussions with the affected staff, the University will decide which measures will be pursued.
35.4 Voluntary separation
35.4.1 The Vice-Chancellor may invite the staff member(s), who have been provided with information as required under paragraph 35.3.1, to apply for voluntary separation. The invitation will include details of the voluntary separation benefit that would be payable, under subclause 35.5.
35.4.2 A staff member will have six weeks from the date of the Vice-Chancellor's invitation in which to submit an application for voluntary separation to the Vice-Chancellor.
35.4.3 Where a staff member applies for voluntary separation the Vice-Chancellor must inform the staff member whether the application is approved no later than 5 working days after the expiration of the six week period referred to in paragraph 35.4.2. Where the Vice-Chancellor does not approve the application, the staff member will be advised of the reasons for that decision and will be informed that their employment is to continue.
35.5 Voluntary separation benefit
For the purposes of this subclause 'pay' means current base salary.
(i) The amount paid for voluntary separation will consist of the following components:
(a) a lump sum of 12 weeks pay
(b) severance pay at the rate of 3 weeks pay for each completed year of service for the first 10 years of service
(c) for each year of service thereafter severance pay at the rate of 2 weeks pay for each completed year of service
(d) the total amount of payment under (a), (b) and (c) above shall not in total exceed payment equivalent to 66 weeks pay
(e) entitlements in the form of accrued annual leave and long service leave.
(ii) The final date of employment will be determined by the staff member’s supervisor in consultation with the staff member.
(iii) All payments under this subclause will be calculated on the basis of the pay applicable to staff member’s average proportion of full-time employment over his/her last five years of service or his/her proportion of full-time employment at the date of cessation of employment, whichever is the greater.
(iv) The benefits under 35.5 are in lieu of any notice period, access to a scheme of redeployment or other redundancy benefit.
35.6.1 Following the close of the period for application referred to in 35.4.2, the Vice-Chancellor may formally advise in writing any staff member who has not applied for voluntary separation that the staff member occupies a position deemed to be surplus to the requirements of the University and that their employment will be terminated in accordance with this clause. Such a termination is referred to as a “retrenchment”.
35.6.2 Benefits on retrenchment
(i) A staff member will be given eight weeks’ notice (or equivalent compensation) prior to a retrenchment taking effect.
(ii) On retrenchment, a staff member will receive a severance payment of two weeks for each completed year of service with the University, to a maximum of 38 weeks’ salary.
35.7 Leave and expenses
35.7.1 A staff member who is retrenched will be entitled to reasonable leave with full pay to attend necessary employment interviews. Where expenses to attend such interviews are not met by the prospective employer, the staff member will be entitled to reasonable travel and other incidental expenses incurred in attending such interviews as determined by the University.
35.7.2 The University will reimburse reasonable costs and charges as determined by the Authorising Officer (or equivalent) associated with a program of retraining as an agreed measure to mitigate the effects of his/her position being surplus.
36 Separation from employment on medical grounds
36.1 The procedures outlined in this clause apply to all staff covered by this Agreement. Nothing in this clause is intended to preclude a staff member from initiating separation from employment on medical grounds or from applying to their superannuation fund for ill-health retirement or temporary disability benefit.
36.2 If the Vice-Chancellor believes there is doubt regarding a staff member’s capacity to perform the duties of their office, the Vice-Chancellor may require the staff member to undergo a medical examination. The University will choose a medical practitioner to conduct the medical examination at the expense of the University. The Vice-Chancellor will provide a staff member with written notice that a medical examination is required.
36.3 If, within the notice period referred to in subclause 36.2, the staff member elects to apply to their superannuation fund for ill-health retirement or temporary disability benefit and provides the Vice-Chancellor with evidence of the application and co-operates with the superannuation fund in the processing of the application, the requirement for a medical examination will lapse. In this case, subject to the provisions of this Clause, the Vice-Chancellor will take no further action until such time as the superannuation fund has reached a decision on the application.
36.3 Where the superannuation fund decides that the staff member, following a period of receipt of a temporary disability benefit, is capable of resuming work and the Vice-Chancellor elects to dispute this decision, the Vice-Chancellor may proceed to provide the staff member with written notice of not less than two months, except in exceptional circumstances, that a medical examination is required.
36.5 Where a medical examination is sought by the University, the practitioner conducting the examination will be asked to advise whether the staff member is unable to perform his or her duties and is unlikely to be able to resume those duties within a reasonable time, being not less than twelve months. A copy of the medical practitioner’s report will be made available to the Vice-Chancellor and to the staff member. The staff member will also be advised that an application to refer the report to a panel of medical practitioners for confirmation may be made within 14 days of the medical report being supplied to the staff member.
36.6 Not with standing the provisions of subclause 36.5, where a staff member has been continually absent from employment on account of a medical condition which has been the subject of examination under subclause 36.5, and the absence has been for a period of not less than two years, the University may terminate the staff member’s employment with six month’s notice or pay in lieu thereof.
36.7 A staff member (or person acting on their behalf) may request that the findings of the medical examination referred to in subclause 36.5 be confirmed by a panel of medical practitioners in accordance with subclause 36.9 below. The Vice-Chancellor must receive such a request within 14 days of the medical report being supplied to the staff member.
36.8 If such a request is received, the Vice-Chancellor will not terminate the employment of the staff member unless and until the panel confirms the findings of the report.
36.9 Where a request pursuant to subclause 36.7 is received, the required panel will consist of three medical practitioners, as follows:
(a) one medical practitioner appointed by the University;
(b) one medical practitioner appointed by the staff member or a person acting on his/her behalf; and
(c) one medical practitioner appointed by the President of the New South Wales Branch of the Australian Medical Association.
This panel will not include the practitioner who made the initial report. Every effort will be made to appoint a panel no later than seven days from the staff member's request being received by the Vice-Chancellor.
36.10 In making an assessment as to whether or not a staff member is unable to perform his/her duties and is unlikely to be able to resume them within twelve months, the medical practitioner or panel of practitioners, as far as possible, will apply the same standards of permanent incapacity as contained in the trust deeds of the staff member's superannuation scheme, if any, in determining qualification of a disablement pension or other similar benefit.
Separation from employment
36.11 If the medical examination report reveals that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within twelve months, and a request pursuant to subclause 36.7 has not been received, the Vice-Chancellor may terminate the staff member’s employment. In this case, the University will provide six months notice or pay in lieu thereof.
36.12 The University may, at its option, pay compensation in lieu of notice equal to the total amounts that the University would have been liable to pay to the staff member if the staff member’s employment had continued until the end of the required period of notice. Prior to taking action to terminate the employment of a staff member, the Vice-Chancellor may offer the staff member the opportunity to submit a resignation. If a resignation is offered, the Vice-Chancellor will accept it immediately and will not proceed with action to terminate employment.
36.13 Failure by a staff member to undergo a medical examination may be regarded as prima facie evidence that a medical examination would have found the staff member unable to perform their duties and unlikely to be able to resume them within twelve months. In this case, the Vice-Chancellor may act in accordance with subclause 36.11. However, such a failure by a staff member in these circumstances will not constitute misconduct nor lead to any greater penalty or loss of entitlements than would have resulted from an adverse medical report.
36.13 These provisions will not displace or override any existing workers' compensation schemes or awards whether State or Federal, including WorkCover, or the provisions contained in any workers' compensation or relevant discrimination legislation that may be enacted.