Misconduct processes – and what we are learning from them
It appears to NTEU that the University is determined to pursue every matter of misconduct to its most extreme outcome – dismissal. Recent NTEU experience reveals poorly written briefs that bias perceptions against the employee, include misleading legal citations and corrupt the investigative process, unfairly jeopardising the employee’s prospects. Fortunately we have caught them at a few of those things.
Even before we get to the stage where allegations are formally laid, weeks or even months may elapse as the University sorts through material, constructs draft allegations, puts them to the employee for response and then (most likely) lays formal allegations unaltered from the draft. Often the employee is placed on suspension throughout this period (usually with pay) and barred from the campus. This action alone can create problems for the employee as his or her colleagues wonder why they are not around. Damaging rumours may also surface during that period. What happens next differs for academic and professional staff.
Academics who face formal allegations of (serious) misconduct have a couple of choices under the Enterprise Agreement (EA) including an investigation by a committee that reports its findings to the Vice Chancellor. Two of these have been played out since August and a third is a clear possibility under consideration by the Vice Chancellor at present.
These are often complex matters with considerable evidence to sift through and have each taken the form of sporadic days of hearings spread across several months.
In one case, two rather strange things happened. The first was what on paper appeared to be 4 student witnesses each claiming to have witnessed behaviour that was the subject of the allegations. It turned out to be two witnesses who each referred to another student. The brief was written as if those other people had actually made a complaint. When these latter two gave evidence, they denied the version put forward by the first two and indeed denied being involved at all. Thus a very poorly drawn brief for the Vice Chancellor by the Human Resources Division lead to the appearance of 4 incidents attested by four witnesses when in actuality it was two incidents and two witnesses. We wonder why this brief was so badly drawn. Certainly its impact was to increase the apparent weight of evidence against the academic and perhaps ensured that this was taken to the level of a serious misconduct investigation rather than via a student complaint process.
The second event was when new allegations surfaced after all the University’s evidence had been led. The University sought to have those allegations (similar in nature to those already being heard) attached to the matter already nearly completed. NTEU successfully fought in two rounds more than 3 months apart to prevent this abuse of fair process. This included showing that the Clayton Utz legal advice relied upon by the University in this matter was – to say the least – barely relevant. Its presence had the potential to intimidate the academic facing the allegations, his representative and perhaps the committee itself and it was fortunate that NTEU was able to show the irrelevance of the material quoted in the University letter..
What is becoming apparent to NTEU is that once the university representatives have decided that the informal allegations have substance, there is little likelihood of them changing course. They are seeking dismissal – nothing less – even though there are less severe alternative responses available. Any misconduct becomes couched as serious and serious misconduct is for dismissal, it seems.
Professional Staff also affected
The processes protecting professional staff facing dismissal are not as expansive as those for academics and there is no Misconduct Investigation Committee. An internal initial investigation is carried out and a report is prepared. That is provided to the employee, who can respond in writing or at an interview. Formal laying of allegations (or more rarely their withdrawal) can follow. From there it can be relatively quick to move to its conclusion. If the matter is said to be serious misconduct, dismissal appears to be the objective. Protections against abuse of process are weaker than for academic staff because among other things, witness evidence is not tested objectively in the way that the academics’ MIC process does.