71. Managing misconduct, serious misconduct and serious research misconduct and suspension

Definitions

71.1.    Misconduct means conduct which is not serious misconduct or serious research misconduct but which is nonetheless wilful conduct which is unsatisfactory, which may include research misconduct or a breach of the Code of Conduct or failure to follow reasonable direction.

71.2.    Research misconduct means: significant behaviour that improperly appropriates the intellectual property or contributions of others, that intentionally impedes the progress of research, or that risks corrupting the research record or compromising the integrity of research practices, including such behaviours that are unethical and unacceptable in proposing, conducting or reporting research, or in reviewing the proposals or research reports of others.

71.3.    Serious misconduct means: 

1. recurrence or continuation of conduct which has been previously found to be misconduct on the part of the staff member; or 
2. serious misbehaviour, which may be a single occurrence, of a kind which constitutes: a serious impediment to the carrying out of a staff member’s duties, or to other staff carrying out their duties; a serious risk to the safety of staff, students or visitors to the University; a serious risk to the University’s property; serious misconduct in research; a serious dereliction of duties; or a conviction by a court of an offence which constitutes a serious impediment to the carrying out of the duties. Behaviour that constitutes serious misconduct can take many forms but could include serious and/or persistent harassment or bullying, or a criminal offence such as theft, fraud or assault. 

71.4.    Serious research misconduct means the recurrence or continuation of conduct, which has previously been found to be research misconduct on the part of the staff member; a failure to follow research protocols approved by research ethics committees or statutory licence conditions, where that failure has resulted in an unreasonable risk or actual harm to humans, animals or the environment or the University; deliberately publishing false research results that become part of the public record; conduct that is alleged to be research misconduct but where the consequences of the alleged breach result in serious harm to the University, or other staff, students or visitors, and the conduct is characterised by a reckless and wilful disregard for the consequences of the alleged conduct.

71.5.    Disciplinary action for misconduct; serious research misconduct; and serious misconduct means: 

1. formal counselling of a staff member by an appropriate supervisor; 
2. giving a staff member a written warning (including, where appropriate, a final warning); 
3. withholding an increment; 
4. demotion from an increment point within a grade; 
5. demotion of a staff member; 
6. other action as recommended by a review committee; or 
7. termination of a staff member’s employment (in the case of un-remediated unsatisfactory performance, serious research misconduct or serious misconduct). 

71.6.    Research Misconduct Assessor means a senior researcher appointed by the University to assess whether allegations may be research misconduct;

71.7.    Designated Person means a Pro Vice-Chancellor appointed by the Vice-Chancellor to receive complaints and allegations of research misconduct and carry out other duties as specified in this clause (clause 71).

Suspension

71.8.    The University may, at any time while the process for managing misconduct is in progress, suspend a staff member with pay, or without pay. Suspension of a staff member without pay may occur where the alleged misconduct is of a nature that causes imminent and/or serious risk to the health or safety of a person; and/or the staff member’s continued presence on campus otherwise presents a serious risk to the University, its staff students and/or visitors. Where this occurs, the staff member may draw on accrued annual leave or long service leave entitlements. Any lost salary and other entitlements will be reimbursed if it is ultimately determined that the allegation is dismissed. 

71.9.    A staff member who has been suspended must not attend the grounds of the University without prior approval from the Director – Human Resources. Provided that the Director – Human Resources is satisfied that the behaviour of the staff member is not likely to be of a nature described in clause 71.4 above, Director – Human Resources will, on application by the staff member, give permission for a staff member to attend a specific part of the University for approved purposes.
Disciplinary Procedures

71.10.    A staff member may seek assistance from a union or staff representative and may seek procedural advice from Human Resources staff at any time during the processes set out below.

71.11.    All decisions to discipline or terminate the employment of a staff member must be in accordance with this Agreement and before any decision is made to discipline a staff member for misconduct, serious research misconduct or serious misconduct the University must ensure that the steps in clauses below have been complied with.

71.12.    Procedural fairness and natural justice will apply. Those involved in any disciplinary action or grievance process have a duty that any decision not be affected by favouritism, bias or conflict of interest and they must act fairly and impartially. 

71.13.    In relation to allegations of research misconduct or serious research misconduct, before action is taken under this Agreement, any allegation will be referred to the Designated Person. The Designated Person will refer the allegation to one of the Research Misconduct Assessors to determine:-

1. whether the conduct that it is central to the substance of the allegations, if proven, would amount to research misconduct; and 
2. whether a prima facie case of research misconduct exists.

71.14.    If both 71.13 (a) and (b) above are not satisfied the allegations are either dismissed or referred to another relevant process (for example - as misconduct or serious misconduct), the staff member who is the subject of the allegations will be informed accordingly.

71.15.    If  71.13 (a) and (b) are satisfied the Research Misconduct Assessor refers the allegations back to the Designated Person who will decide whether the allegations will be pursued according to the provisions of this Agreement as allegations of research misconduct or serious research misconduct.

71.16.    The University through the supervisor, and the staff member, must make every effort to resolve instances of possible misconduct, through guidance, counselling and appropriate staff development, or appropriate work allocation before a possible report to the Director – Human Resources.

Misconduct 

71.17.    Where the supervisor of a staff member is concerned about conduct of the staff member the supervisor will meet with the staff member as soon as is reasonably practicable to discuss these concerns and establish a reasonable review period. This will, where necessary, include: 

1. the specific deficiencies in the staff member’s conduct; 
2. appropriate development assistance required to address the issue/s; 
3. the specific corrective action required; 
4. the conduct standards required; and 
5. a reasonable timeframe in which to address the issue/s. 

71.18.    Where the staff member has addressed the conduct concerns within the identified timeframe, the informal action will cease.

71.19.    Following the completion of a reasonable review period as outlined in clause 71.17, if there is little or no improvement in the conduct of the staff member, the supervisor will work with the staff member to achieve the conduct standards within an agreed timeline. After considering any explanation offered by the staff member, the supervisor shall specify in writing the specific improvements required, the review period, and, if necessary, the additional guidance, assistance and training which would reasonably enable the staff member to meet the appropriate conduct standards.

71.20.    At the end of the review period the supervisor shall advise the staff member in writing that either: 

1. the issues are resolved, and that no further action is required; 
2. a further period of review is required, specifying the new review period; or 
3. that the staff member’s conduct constitutes misconduct and that proportionate disciplinary action is warranted, in which case the supervisor shall make a report to the Director – Human Resources which will include the aspects of the staff member’s conduct seen as unsatisfactory, the record of attempts to remedy the problem, and any issues in mitigation of which they are aware. 

71.21.    The University shall provide the staff member with a copy of the report. The staff member shall be entitled to a reasonable opportunity, of no less than 5 working days, to submit a written response to the Director – Human Resources.

71.22.    After considering the staff member’s response, the Director – Human Resources or the Vice-Chancellor ’s nominee will then decide to:

1. take no further action;
2. where the Director Human Resources of the Vice-Chancellor’s nominee is of the view that procedural fairness or natural justice have not been afforded the staff member, refer the matter back to the supervisor with a direction to revisit any of the steps or processes above; or
3. take proportionate disciplinary action, in which case the Director – Human Resources or Vice-Chancellor’s nominee shall set out in writing and provide to the staff member a statement as to what material has been considered; what acts or omissions or failings on the part of the staff member constitute misconduct, and any relevant conclusions upon which the findings are based.

71.23.    Where a decision is made to take disciplinary action the staff member may only seek a review of this decision in accordance with clause 73.

Serious misconduct

71.24.    Where a supervisor concludes that there are reasonable grounds for any allegation(s) of serious misconduct against a staff member, they will provide a written report to the delegate of the area in which the staff member works. The delegate will firstly satisfy himself or herself that there are sufficient grounds for considering that serious misconduct may have occurred. If so satisfied the delegate will forward a report via the head of the budget unit to the Director – Human Resources.

71.25.    Where the Director – Human Resources is not satisfied that the conduct alleged is sufficient to meet the test for serious misconduct the Director – Human Resources will refer the conduct back to the supervisor for action consistent with the Misconduct provisions.

71.26.    Where the Director – Human Resources is satisfied that serious misconduct may have occurred, the Director will inform the staff member of the receipt of allegations of serious misconduct and will clearly outline the nature of those allegations in writing to the staff member. The staff member will have five working days from the receipt of the allegations to submit a written response. 

71.27.    After considering the staff member’s response and any other relevant report or material, the Director - Human Resources will: 

1. decide that there is no case to answer and inform the staff member, their supervisor and the delegate in writing that the matter is closed and there will be no further action; or 
2. decide that there is a case of unsatisfactory performance requiring a formal performance review process to commence under clause 70;  
3. decide that there is a case of misconduct requiring a formal misconduct review process to commence under clause 71.17; or 
4. decide that there is a case of serious misconduct and proportionately take any of the disciplinary actions listed under clause 71.5. 

71.28.    The Director – Human Resources may appoint an Investigation Officer to investigate the allegations at any point during the review of the allegations.

Research Misconduct

71.29.    Where an allegation of research misconduct is made, the Designated Person will report the allegations to the Director Human Resources at the time the allegation is considered by the Research Misconduct Assessor pursuant to clause 71.2.

71.30.    If the Research Misconduct Assessor determines that a prima facie case of research misconduct is established, the Designated Person will refer the allegations to the staff member’s supervisor to be dealt with according to the procedures for handling allegations of Misconduct. 

71.31.    If the Research Misconduct Assessor determines that the allegations are not properly characterised as research misconduct, the Designated Person will refer the allegations back to the staff member’s supervisor for consideration as to whether the allegations could be misconduct, serious misconduct or under performance.

Serious research misconduct

71.32.    Where an allegation of serious research misconduct is made, the Designated Person will report the allegations to the Vice-Chancellor (or delegate) at the time the allegation is considered by the Research Misconduct Assessor pursuant to clause 71.4.

71.33.    Following the report of the Research Misconduct Assessor, if there is sufficient information provided to substantiate the allegations without further investigation, charges of serious research misconduct will be formulated by the Designated Person and those charges will be referred to a Research Investigation Committee;

71.34.    If the Designated Person determines that further investigation is warranted the office holder will conduct enquiries (either personally or through an investigating officer) to gather relevant material. Once the Designated Person determines that sufficient investigations have been completed, or determines that reasonable efforts to gather information have been exhausted, the Designated Person either:

1. dismisses the allegations; 
2. formulates charges of the alleged serious research misconduct; or 
3. where the conduct is considered more properly as potentially misconduct, research misconduct or serious misconduct refers the allegations and any material that has been gathered to the relevant officer for management under the relevant provisions of this Agreement.

71.35.    Subject to securing relevant evidence as above or where the safety of members of the University may be compromised, the staff member(s) who is the subject of the allegations of misconduct will be informed that allegations have been made.

71.36.    Once the Designated Person determines that the allegations will be the subject of serious research misconduct charges, the staff member will be given an opportunity to respond. If the staff member admits the charges the matter will be referred to the Director – Human Resources for appropriate disciplinary action in accordance with this Agreement. If the staff member disputes the charges, a Research Investigation Committee will be formed.

71.37.    The Vice-Chancellor (or delegate) shall appoint the Chair of the RIC having conferred with the ANU Branch President of the NTEU and agreed on an acceptable chair. Normally the Chair of the Committee will not be an ANU staff member and will be experienced in conducting a research investigation, or in the conduct of tribunals of fact, and/or be a subject expert in relation to the matter under investigation. In the event that agreement on a Chair cannot be reached the matter may be referred to Fair Work Australia for resolution under clause 74 (Dispute avoidance and settlement).

71.38.    The Committee shall include a suitably qualified nominee of the NTEU ANU Branch President and a suitably qualified nominee of the Vice-Chancellor (or delegate). Prior to determining the specific composition of the Committee, the Vice-Chancellor (or delegate) shall confer with the ANU Branch President of the NTEU to ensure that the Committee includes: 

1. at least one member with sufficient expertise and standing in a discipline relevant to the allegation of serious research misconduct (or in a cognate discipline) such that that member will be capable of understanding and assisting the other members of the Committee to understand any technical, research or scientific questions which may be in dispute; but who will be seen as clearly independent of any of the participants; and
2. at least one member with expertise in investigating research conduct issues, either through their academic study or through the administration of research; 
3. no member who holds current employment or visitor appointments with the ANU; and
4. no members who have any conflict of interest.

71.39.    In order to achieve the requirements of clause 71.38 (a) and (b) the Vice-Chancellor and the NTEU Branch President may agree that two additional members be added to the membership of the Committee (so there may be five members).

71.40.    The Committee will ensure that the rules of procedural fairness are followed, but otherwise will determine what additional procedures to follow in its inquiry and shall at all-times act in conformity with the procedures set out in clauses 73.11 and 73.12 (Review of decision). The Committee shall:

1. allow union representation; and/or
2. (permit the staff member facing misconduct charges to seek legal advice, however the staff member may not be represented by a legal practitioner;
3. have power to gather evidence and have access, where required for the purposes of its inquiries to all areas of the University, including to staff and students, 
4. be provided with sufficient facilities and services; and
5. have power to determine the allegations and decide if serious research misconduct has occurred

71.41.    All processes and findings of a Committee are private unless:

1. this Agreement or another law permits them to be public; or    
2. all persons involved in the inquiry have expressly or impliedly waived their right to privacy; and
3. suitable legal protections (for example, against defamation proceedings) for persons involved in the Committee processes are obtained.

71.42.    The Committee may be assisted by one or more University officer (legally trained or otherwise) with the gathering of evidence, questioning of witnesses, obtaining of expert opinions and advice on procedural questions.

71.43.    Where a Committee has been established and is investigating charges of serious research misconduct, but determines that the conduct revealed by its investigations is more properly characterised as research misconduct, the Chair of the Committee will inform the Vice-Chancellor (or delegate) and cease further operations. The Vice-Chancellor will refer the matter to the staff member’s supervisor to take action as per clause 71.30.

71.44.    Notwithstanding these procedures, where the Vice-Chancellor and the President of the NTEU Branch agree that the allegations of research misconduct appear to involve action in concert between employees of more than one employer, the relevant CEOs of the employers and the NTEU may agree that a joint investigation and inquiry be held. The procedures for such a joint investigation and inquiry shall be agreed in writing, and where this occurs, those agreed procedures shall apply in substitution for the procedures otherwise set out in this Agreement.

71.45.    Should the Committee establish a finding that serious research misconduct has occurred, appropriate disciplinary action will be taken in accordance with clause 71.46 (below).

Disciplinary action: serious research misconduct

71.46.    Upon finding of serious research misconduct by the Research Investigation Committee, the Director – Human Resources or the Vice-Chancellor’s nominee will then decide to:

1. take no further action; or
2. take proportionate disciplinary action, in which case the Director – Human Resources or the Vice-Chancellor’s nominee shall set out the findings of the Research Investigation Committee in writing and/or provide to the staff member a statement as to what material has been considered; what acts or omissions or failings on the part of the staff member constitute serious research misconduct and any relevant conclusions upon which the findings are based.

71.47.    If a decision is made to terminate the staff member’s employment the staff member will be suspended without pay for five working days in which time the staff member may make an application to have this decision reviewed in accordance with clause 73 ( Review of decision). 

71.48.    If the staff member fails to make an application for a review of this decision the employment will cease at close of business on the fifth day. 

71.49.    If the staff member lodges an application to review this decision, the review process will proceed and the staff member shall remain suspended without pay until the review process is finalised.