Purpose
This policy outlines the process to be undertaken to address cases of alleged misconduct or serious misconduct by an employee of our company.
Scope
This policy applies to all employees of our company including, office staff, field workers, volunteers, apprentices/trainees, suppliers and labour-hire staff acting in an authorised capacity for our company.
In line with our company principles, which expresses a fundamental concern for the dignity of all human beings, this policy seeks to develop a supportive workplace with policies and procedures that provide a clear statement of our company expectations of its staff, including with respect to conduct that may constitute a breach of the workplace policies, including, but not limited to the Code of Conduct for All Staff.
Policy Statement
Our company expects its staff to behave professionally and uphold the organisation’s Mission, Values and Code of Conduct for All Staff in undertaking their duties. Cases of alleged misconduct or serious misconduct by a staff member will be dealt with seriously, promptly, in line with natural justice and procedural fairness principles in accordance with this policy.
Action to Address Misconduct or Serious Misconduct Principles
Our company may instigate an investigative process that might give rise to a disciplinary action for misconduct or serious misconduct where it appears that an employee may have committed a breach of the law or a serious breach of a policy. Nothing prevents Executive Management or the CEO from referring a question of possible misconduct or serious misconduct to a supervisor for appropriate action or from undertaking an enquiry into an employee’s behaviour.
The management of misconduct/serious misconduct will be in accordance with this organisation’s Misconduct and Serious Misconduct Policy and Procedures.
At any stage during the proceedings associated with misconduct or serious misconduct, an employee is entitled to make a protected disclosure in accordance with our company’s Protected Disclosures Policy.
Representation
- Throughout the proceedings associated with misconduct or serious misconduct, a staff member may choose to be assisted by a person of their choice, provided that person is not a practising barrister or solicitor.
- The person who is providing assistance may undertake the role of either a support person or the role of the staff member’s “staff representative”.
- The role of a support person is to provide moral and practical support to the staff member, but not to act as their advocate.
- Alternatively, a staff member may choose to be represented by their “staff representative” who may be a union member or union official but who is not a practising barrister or solicitor.
Proceedings associated with misconduct or serious misconduct will be conducted in line with natural justice and procedural fairness.
Cessation of duties
The CEO may at any time suspend a professional employee with, or without pay, if the he/she is of the view that the alleged conduct amounts to conduct of a kind envisaged in Regulation 1.07 of the Fair Work Act Regulations 2009 so that it would be unreasonable to continue the staff member’s attendance at work pending further investigation.
Action to Address Misconduct
Where our company becomes aware of behaviour of an employee which may constitute misconduct or serious misconduct, depending upon the seriousness of the possible misconduct or serious misconduct, the relevant manager (who may be the supervisor and/or member of the Executive); may undertake preliminary inquiries and/or discuss the matter with the employee .
The supervisor and/or Manager may form the view that there is no case to answer and advise the staff member accordingly.
If following preliminary inquiries and/or discussions with the employee, a supervisor and/or Manager reasonably forms a view that the behaviour of the staff member is not acceptable, the supervisor and/or Manager may implement one or more of the following options:
- Counsel the employee on the nature of the improvement required and the time within which reasonable improvement is expected and how the employee’s behaviour and/or interaction with colleagues and stakeholders will be assessed, and/or
- Refer the matter to the relevant Senior Executive for consideration of potential disciplinary action through the submission of a report to the Manager of HR or CEO. A copy of the report will be provided to the staff member who will be invited to submit a response to the report to the relevant Senior Executive within ten (10) working days.
If the supervisor and/or Manager decides to counsel the employee and, at the end of the specified review period, the employee’s behaviour has improved to the required standard; the supervisor and/or Manager will advise the employee that no further action will be taken under this policy. The employee’s behaviour and performance will be managed in accordance with the organisation’s performance management policies and procedures and in accordance with the Code of Conduct.
If the supervisor and/or Manager decides to counsel the staff member and, at the end of the specified review period, the staff member’s behaviour has not improved to the required standard, the supervisor and/or Manager will submit a report to the relevant Senior Executive. A copy of the report will be provided to the staff member who will be invited to submit a response to the report to the relevant Senior Executive within ten (10) working days
Consideration of the Misconduct Report
Following consideration of the report and response, if the relevant Senior Executive concludes that:
- the behaviour of the staff member may constitute misconduct or serious misconduct, and/or the required improvements in behaviour and conduct have not been achieved within the specified timeframe,
- the relevant Member of the Senior Executive will either:
- endorse the report and forward it to the CEO with a recommendation that our company consider taking action in relation to potential misconduct or serious misconduct, along with any other appropriate consideration and/or recommendation; or
- refer the matter back to the relevant supervisor or Manager to counsel the staff member, or take some other appropriate action that does not constitute disciplinary action.
Investigation of Misconduct or Serious Misconduct
Where a matter is referred for investigation a Misconduct Investigation Committee will be appointed by the CEO to investigate and prepare a report on the facts of the matter/s referred.
The Committee will:
- where relevant, interview the staff member and any other appropriate person to establish the facts relating to the matter(s) referred for investigation;
- take into account any other relevant material or information;
- conduct its own fact-finding proceedings and interviews. These may occur either in the presence of the employee and if they so choose, their chosen representative allowing the asking of questions, presentation or challenging of evidence, and/or the provision of submission; or, at the discretion of the Committee Chair, a witness may be interviewed via video conferencing facilities;
- where it decides that it is appropriate to do so, create, maintain and making available on request to the participants in the process, a sound or video recording of its proceedings but not including its deliberations (subject to the Committee obtaining the written consent of all of the participants to be recorded, in accordance with Federal Privacy Regulations), and Misconduct and Serious Misconduct Policy
- present a copy of its final report to the CEO and the employee as soon as is reasonably practicable.
Consideration and Action of the CEO
All actions of the CEO to discipline an employee shall be final, except that nothing in this sub-clause shall be construed as excluding the jurisdiction of any external court or tribunal which, but for this sub-clause, would be competent to deal with the matter. The final determination of the CEO is final and is not open to challenge via the Disputes Settling Procedures of the Agreement.
Investigative Process
Policy Review
From time to time our company may make changes to this Policy to improve the effectiveness of its operation. Any staff member who requires assistance with this Policy and/or other related provisions or procedures should first consult with their Nominated Supervisor or the Manager of Human Resources.
Documentation
- Protected Disclosure Form
- General Misconduct Lodgement Form
- Misconduct Report