53. TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION – ACADEMIC STAFF

Application and Definitions

53.1 This clause applies to continuing and fixed-term Academic Staff members only. It does not apply during any period of probationary employment.

53.2 "Disciplinary action” for academic staff is action by the University to discipline a member of academic staff for unsatisfactory performance, misconduct or serious misconduct, as follows: 

     (a) Formal censure or counselling;

     (b) Demotion by one or more classification levels or increments;

     (c) Withholding of an increment;

     (d) Suspension with or without pay; and/or

     (e) Termination of employment.

Disciplinary action for misconduct shall be as set out in clause 53.2(a)-(d).

The provisions in this Agreement will be subject to and will not affect the operation of:

• any law empowering a State or Commonwealth industrial tribunal to order reinstatement of or compensation to a staff member or to otherwise deal with the dismissal of that staff member; and


• any other law empowering any court or tribunal external to the University which has jurisdiction to deal with any causes of action or claims arising from actions taken by the University pursuant to this Agreement.

This Agreement is to be read in conjunction with Division 11 of Part 2-2 of the Fair Work Act 2009, including the minimum notice periods in section 117 of the Act. However, Division 11 of Part 2-2 of the Act is taken not to reduce or remove any additional rights provided under this Agreement.

Notice of Termination

53.3 Notice of termination will be in accordance with section 117 of the Act, provided that any greater period of notice specified in the staff member's contract of employment or in this Agreement will continue to apply.  

53.4 Notice shall not be required in relation to the termination of a staff member found to have engaged in serious misconduct of such a nature that it would be unreasonable to require the University to continue the employment of the staff member concerned during the required period of notice, such as, but not limited to:

• Theft;


• Fraud;


• Assault;


• Being intoxicated at work; or


• Refusing to carry out a lawful and reasonable instruction that is consistent with the staff member’s contract of employment.

Counselling for Unsatisfactory Performance and/or Conduct

53.5 Where a supervisor is of the view that the staff member’s performance and/or conduct is unsatisfactory, the supervisor shall counsel the staff member in accordance with the following counselling requirements:

     (a) The supervisor shall first counsel the staff member on the nature of the improvement required and the time within which reasonable improvement is expected;

     (b) A record shall be kept of the counselling given and a copy supplied to the staff member; and

     (c) If the supervisor considers appropriate, the staff member will be directed to appropriate professional development to assist in improving performance.

Supervisor’s Report and Staff Member’s Response

53.6 Where a supervisor believes that counselling has not produced the desired improvements in performance, or alleged misconduct or serious misconduct is denied by the staff member or in the opinion of the University, counselling is not an adequate response to the alleged conduct, a formal report will be provided to the relevant Dean and the Vice-Chancellor by the supervisor or representative of Monash HR. The report willstate clearly the aspects of performance and/or conduct seen as unsatisfactory and the record of any attempts to remedy the problem.

53.7 The staff member will be provided with a copy of the report and be given 10 working days to provide a written responseto the report to the Dean and to the Vice-Chancellor.

53.8 The Vice-Chancellor may suspend the staff member on full pay, or, if he/she is of the view that the alleged conduct amounts to conduct of a kind envisaged inclause 53.4, the Vice-Chancellor may suspend the staff member without pay. Suspension without pay will be subject to and in accordance with the following:

     (a) Where suspension without pay occurs at a time when the staff member is on paid leave of absence, the staff member's leave of absence will be immediately discontinued.

     (b) The staff member may engage in paid employment outside of the University for the duration of the suspension without pay.

     (c) On the ground of hardship during a staff member's suspension without pay, the Vice-Chancellor may at any time direct that salary be paid or that an application to draw on any accrued annual leave or long service leave be granted.

     (d) 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 Committee at its first meeting determines whether suspension without pay should continue and that Committee will have the power to revoke such a suspension from its date of effect.

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

     (f) Where a staff member has been suspended without pay pending the decision of the Vice-Chancellor, then any lost income will be reimbursed if there was no serious misconduct found. However, a decision taken by the Vice-Chancellor in his/her discretion not to dismiss or impose another penalty will not be construed as an admission that there was no conduct justifying suspension without pay.

53.9 Upon receipt of the supervisor’s report and any written response from the staff member, the Vice-Chancellor willsatisfy himself/herself that appropriate steps have been taken by the supervisor and may make such further enquiries as the Vice-Chancellor considers reasonable and appropriate to determine if disciplinary action should be imposed.

Reports of Misconduct and the Misconduct Investigation Committee

53.10 In a case of alleged misconduct or serious misconduct where the conduct (or its characterisation as misconduct or serious misconduct) is disputed in whole or in part by the staff member, the matter will be referred to a Misconduct Investigation Committee unless:

     (a) the Vice-Chancellor intends to take no further action or to only counsel or censure the staff member; and/or

     (b) the staff member elects in writing and the Vice-Chancellor agrees to have the matter dealt with by the Vice-Chancellor without reference to a Misconduct Investigation Committee.

53.11 If the matter is referred to a Misconduct Investigation Committee, that Committee will be convened forthwith, in accordance with clause 11, and will make inquiries and provide a report to the Vice-Chancellor and the staff member as soon as practicable, on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.

Decision of the Vice-Chancellor

53.12 Following the inquiries in clauses 53.9 and 53.11 (if applicable) the Vice-Chancellor may then decide to:

     (a) take no further action; or

     (b) in the case of a report of unsatisfactory performance, refer the matter back to the supervisor to ensure that appropriate steps are complied with in substance and in a manner appropriate to the circumstances; or

     (c) take disciplinary action.

53.13 The Vice-Chancellor will advise the staff member in writing of any decision made in accordance with clause 53.12. If the Vice-Chancellor is of the view that there has been no unsatisfactory performance or no misconduct or serious misconduct, he/she willimmediately advise the staff member in writing and may, by agreement with the staff member, publish the advice in an appropriate manner.

Reviews of Disciplinary Action for Unsatisfactory Performance

53.14 In the case of disciplinary action for unsatisfactory performance, the staff member may, within five working days from the date of the Vice-Chancellor’s written advice, make a written request for a review of the decision by the Unsatisfactory Performance Review Committee.

53.15 Where a request for review is made by the staff member in accordance with clause 53.14, an Unsatisfactory Performance Review Committee will be convened forthwith in accordance with clause 11 and will provide a report to the Vice-Chancellor and the staff member on whether the required process has been followed.

53.16 If the Unsatisfactory Performance Review Committee concludes that the required process was not properly followed, the Vice-Chancellor willreconsider his/her decision but may first take such steps to remedy the perceived unfairness as may seem reasonableto him/her.

53.17 If the Vice-Chancellor, upon reconsidering his/her decision under clause 53.16 is of the view that:

     (a) there has been no unsatisfactory performance, he/she willforthwith advise the staff member in writing and rescind the disciplinary action imposed and may, by agreement with the staff member, publish the advice in an appropriate manner; or

     (b) there has been unsatisfactory performance, he/she willforthwith advise the staff member in writing confirming the disciplinary action imposed.

Other Matters

53.18 Nothing in this clause:

     (a) prevents or affects the procedures for the denial of an increment under the incremental advancement clauses of this Agreement dealing with the terms and conditions of employment of academic staff; 

     (b) 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; or 

     (c) prevents the Vice-Chancellor on his/her own motion referring a question of possible unsatisfactory performance or misconduct to a supervisor for appropriate action.

53.19 All actions of the Vice-Chancellor under this clause will be final, except that nothing in this clause 53.19 will be construed as excluding the jurisdiction of any external court or tribunal which, but for this clause 53.19, would be competent to deal with the matter.