Human Resources

University Policy on Managing Misconduct (Professional Employees)

Policy No.
UP07/260
Function
Human Resources
Authoring Organisational Unit
Employee Relations and Management Services
Date Approved
Revised 30/09/2014
Next Review Date
30/09/2016
Approving Body
Senior Deputy Vice-Chancellor And Registrar

The University of Western Australia

University Policy on: Managing Misconduct (Professional Employees)

Purpose of the policy and summary of issues it addresses:

This policy defines acts of misconduct and serious misconduct and outlines the responsibilities of the supervisor when handling misconduct in the workplace and appropriate action to be taken. This policy also outlines the opportunity for employees to respond to allegations of misconduct and serious misconduct together with consideration of the matter by Director, Human Resources and subsequent disciplinary action if determined warranted.

Definitions:

'Disciplinary Action' is the action or actions taken as a result of an allegation meeting the required standard of proof, for which a penalty is considered appropriate.

Penalties may include:

formal censure, warning or counselling;

withholding an increment for up to one year;

suspend the employee for a period with or without pay;

demotion to a lower classification or increment and/or transfer to another position; and

termination of employment.

'Disciplinary Process' is the process undertaken by University management to investigate and manage allegations of unacceptable conduct or workplace behaviour.

'Employee' means a person employed by the University who has an ongoing or fixed term contract under the terms of the following Agreements (as amended or replaced from time to time) - Professional and General Staff Agreement, ELICOS Agreement and the Childcare Employees' Agreement.

'Employee Representative' is a person nominated by an employee to provide support and/or to make representations to the University on their behalf, and who is not currently a practising solicitor or barrister.

'Misconduct' means:

negligence in the performance of the duties of the position held; or

misbehaviour; or

refusal to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment; or

a serious breach of the University's code of conduct, policies, regulations or procedures.

'Professional Employee' means a person employed by the University who has an ongoing or fixed term contract under the terms of the following Agreements (as amended or replaced from time to time) - Professional and General Staff Agreement, ELICOS Agreement and the Childcare Employees' Agreement and excludes academic employees.

'Serious misconduct' means:

(a)

wilful, or deliberate, behaviour that is inconsistent with the continuation of the employee's employment; or

(b)

conduct that causes imminent, and serious, risk to:

- the health, or safety, of a person; or

- the reputation, viability or profitability of the University.

'Standard of proof' means findings are based on the conclusion that it is more probable than not that the matter found to have occurred did in fact occur.

'Summary Dismissal' means dismissal without notice for serious misconduct.

'Supervisor' means the person who is responsible for day-to-day supervision of an employee.

"University" means The University of Western Australia.

Policy statement:

This policy must be read in full before proceeding to address misconduct or serious misconduct. Supervisors must discuss any allegations of misconduct or serious misconduct with an officer from Employee Relations and Management Services (ERMS) and their own supervisor.

This policy is intended to -

assist supervisors when handling misconduct in the workplace and to provide guidance in taking appropriate action, and

provide employees with a clear understanding of the processes for dealing with allegations of misconduct or serious misconduct.

Employees must be afforded procedural fairness throughout the implementation of this policy. Normal standards of respect, civility and confidentiality must be maintained throughout the process.

Nothing in this policy precludes the University from terminating the employment of an employee without notice for serious or wilful misconduct.

Depending on the nature of the misconduct, it may also be appropriate to refer to the University's policy on Anti-Fraud and Corruption.

Conduct that is serious misconduct includes but is not limited to -

theft

assault

fraud

being intoxicated at work

a serious breach of the University's Code of Conduct, Statutes or Policies

disobeying a lawful and reasonable instruction given by a supervisor

repeated acts of misconduct for which the employee has been counselled

abusing or threatening an employee, student or member of the public

serious bullying or harassment (including sexual harassment)

malicious damage to University property or reputation

repeatedly refusing to carry out a lawful or reasonable instruction that is consistent with the employee's contract of employment

Employees who are unsure about any aspect of this policy should seek further advice from ERMS.

Confidentiality

The confidentiality of all parties involved in the management of misconduct and serious misconduct processes must be respected and all information gathered is confidential.

Dealing with misconduct and serious misconduct

1 Initial Inquiry

Allegations of misconduct or serious misconduct will be considered in the first instance by the employee's supervisor. Where there is a perceived conflict of interest on the part of the supervisor, they may refer the matter to their own supervisor.

If the initial inquiry determines that the allegation does not meet the required standard of proof, no further action will be taken under this policy.

If the initial inquiry determines that an allegation of misconduct or serious misconduct is of sufficient substance to warrant an investigation, the supervisor will then consult their own supervisor and the Director, Human Resources to initiate the investigation process.

If the Director, Human Resources considers that a matter is of a sufficiently serious nature to warrant summary action, the employee may be summarily dismissed. Where the decision is to summarily dismiss without notice, a confirmation of this decision will be communicated to the employee as soon as possible. In circumstances where summary dismissal is not warranted, the following procedures will be applied.

Should the information obtained indicate that criminal misconduct has occurred, the Director, Human Resources will ensure compliance with the Corruption and Crime Commission Act 2003 and the University Policy on Fraud and Corruption.

2 Investigation

Allegations of sufficient substance will be formally investigated. The investigation process must be carried out as soon as possible after the alleged misconduct is discovered. It is critical to ascertain all the available relevant facts and circumstances and determine what action is to be taken in the shortest practicable period of time. Investigations will normally be conducted by an officer of ERMS, Financial Services (Internal Audit), etc. depending on the nature of the allegation.

The investigation process may include:

  • interviewing relevant people and witnesses; and/or
  • gathering and assessing relevant documents/evidence;

and will -

afford the employee procedural fairness.

The employee will be informed of the investigation, the form it will take and that the employee may be accompanied at any interviews by an employee representative.

3 Non-attendance at work during investigation

Depending on the nature of the allegations, the Director, Human Resources may determine that it is appropriate to direct the employee not to attend work (with or without pay) whilst a full investigation is carried out. A reinstatement of pay may be approved by the Vice Chancellor where the allegations prove unfounded or in the case of significant and unmanageable hardship.

4 Proceeding to interview

It is a requirement of the investigation process that -

  • allegations are specifically put to the employee;
  • adequate opportunity is given for the employee to respond; and
  • the employee is offered an opportunity to be interviewed.

Depending on the circumstances -

  • the allegations will be set out in writing; and
  • a formal interview will be conducted;
  • a formal interview will be conducted; and
  • the allegations will be confirmed afterwards in writing.

An employee must be advised in advance of the nature of the interview, that they may be accompanied by an employee representative and that the interview may result in disciplinary action or termination of employment.

5 Opportunity for response

The employee will ordinarily be given at least three working days (from the date of reasonable receipt of correspondence or verbal discussions) in which to respond in writing to any allegations put to them. Where two or more employees are alleged to be involved in the same misconduct, each employee should be given the opportunity to state his or her own case. For that purpose each employee should be interviewed separately.

6 Report of allegations and opportunity for written response

At the completion of the investigation a written report will be produced for the Director. Human Resources, outlining the following:

  • Allegations;
  • investigation process;
  • findings as to misconduct or serious misconduct;
  • any written response received from the employee; and
  • a suggested course of action.

The employee will be provided with a copy of the report and invited to submit a written response to the Director, Human Resources within 3 working days or a time agreed by the Director, Human Resources. The Director, Human Resources will consider the report, the employee's response and, in addition, will also consider:

  • any mitigating circumstances associated with the employee's misconduct;
  • the employee's work record; and
  • the seriousness of the misconduct.

The Director, Human Resources may, after consideration of the matter, decide to:

  • take no further action; or
  • take disciplinary action.

7 Disciplinary Action

If the Director, Human Resources determines that disciplinary action is warranted, the employee will be advised of the decision in writing and a copy placed on the relevant file. If the determination is for a written warning, the warning must outline the elements of the misconduct or serious misconduct, the required improvement and the consequences if misconduct or serious misconduct is repeated.

If the Director, Human Resources decides to terminate employment, the employee will be given a final opportunity to be heard.

Findings of misconduct or serious misconduct must meet the required standard of proof.

8 Records

Relevant records must be kept of all meetings, for example records of discussions with witnesses, responses, e-mails and any other considerations relevant to the alleged misconduct.

The employee being interviewed will be asked to sign the notes of all interviews as a true and accurate record. If the employee refuses to sign the notes, the reasons for such refusal will be recorded.

Related forms:

TRIM File No:

F26092

Contact position:

Employee Relations and Management Services

Related Policies or legislation: