ANNEXURE TO GENERAL CONDITIONS OF EMPLOYMENT AWARD 1993

ANNEXURE TO GENERAL CONDITIONS OF EMPLOYMENT AWARD 1993

ANNEXURE A:
EMPLOYEE CONDUCT AND DISCIPLINE PROCEDURES AGREED BETWEEN THE AUSTRALIAN TELECOMMUNICATIONS CORPORATION AND THE STAFF ORGANISATIONS RESPONDENT TO THE TELECOM GENERAL CONDITIONS OF EMPLOYMENT AWARD 1989

INTRODUCTION

These are the agreed procedures that are referred to in Clause 10 of the Telecom General Conditions of Employment Award 1989. However, the parties reserve their rights to seek variations to these procedures having regard to changing circumstances.

SECTION 1 DISCIPLINARY PROCESS

STAGE 1

(1) If a Supervisor has reason to believe that the behaviour of an employee may constitute misconduct, the supervisor may require the employee to provide a written explanation as to the matters alleged to constitute the misconduct.

(2) If, after having considered any explanation provided by the employee, the supervisor is still of the Opinion that misconduct has occurred, the supervisor may: (a) counsel the employee; or

(b) submit a report to a delegated employee together with any explanation provided by the employee.

STAGE 2

(3) If, after having considered the report provided by the supervisor, the delegated employee believes that misconduct may have occurred, the delegated employee may either:

(a) counsel the employee;
(b) have the supervisor counsel the employee; or
(c) charge the employee in writing with misconduct.

(4) Where an employee is charged with misconduct a copy of the charge shall, upon the request of the employee, be forwarded to the staff organisation to which the employee belongs.

STAGE 3 INQUIRY INTO MISCONDUCT

(5) Where an employee is charged with misconduct, an inquiry shall be held, without undue delay, into the charge by an Inquiry Officer. Such an inquiry shall be conducted by a person not being either the supervisor of the employee or the delegated employee referred to in sub-sections 1[2] and 1[3].

(6) For the purpose of an inquiry referred to in sub-section 1[5], a formal hearing is not required, but the employee shall:

(a) be notified that an inquiry is to be held into the alleged misconduct;

(b) be given the opportunity to provide within 7 days upon receipt of notification of the inquiry, or such longer period as may be allowed, a written statement as to the matters alleged to constitute the misconduct; and

(c) be given the opportunity to provide a further oral statement to the Inquiry Officer which shall be recorded in Writing by the Inquiry Officer.

(7) An employee charge with misconduct shall not be taken, by reason only of having failed to deny the truth of a matter, to have admitted the truth of that matter

STAGE 4 ACTION SUBSEQUENT TO INQUIRY

(8) If the Inquiry Officer is satisfied that the charge of misconduct is justified, the Inquiry Officer may:

(a) counsel the employee;

(b) arrange for the supervisor of the employee to counsel the employee;

(c) admonish the employee;

(d) direct that a sum not exceeding $500 be deducted from the salary of the, employee;

(e) direct that the employee's salary be reduced to a lower salary, within the range applicable to his/her classification, for a period not exceeding 12 months. Provided that the employee is in receipt of a salary above the minimum level; or

(f) recommend in writing to the Corporation; (i)that the employee be transferred to other duties which have the same classification and salary as the employee's current duties; (ii) that the employee be transferred to other duties which have a lower classification and salary than the employee's current duties; or (iii) that the employee be dismissed

(9) After considering any recommendation made by the Inquiry Officer, the Corporation may:

(a) counsel the employee;

(b) admonish the employee;

(c) give effect to the recommendation of the Inquiry Officer;

(d) take any other action that could have been recommended under paragraph (f) of sub-section [8];

(e) give a direction referred to in paragraph (d) or (e) of sub-section [8]

(10) Where an Inquiry Officer recommends or the Corporation decides, that an employee be transferred to duties having the same classification and salary as the duties previously held, the Inquiry Officer may also recommend, or the Corporation may also direct, as the case may be, that a sum not exceeding $500 be deducted from the employee's salary

(11) Where an employee's salary is reduced under this section, the employee is entitled, at the expiration of the specified period of that reduction, to be paid a salary at the rate of salary which would have been payable had the reduction not taken place

ACTION INOPERATIVE PENDING APPEAL

(12) Disciplinary action, other than counselling, under this section shall not take effect:

(a) if the employee appeals against the action - unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board confirms the decision; or

(b) in any other case - until the expiration of the period within which the employee may appeal against the decision to a Disciplinary Appeal Board.

SECTION 2 CONVICTION BY COURTS

(1) If an employee is convicted of a criminal offence by a court, or, without having a conviction recorded, is found to have committed such an offence, the Corporation may, after giving the employee the opportunity to provide a written statement in relation to the offence.

(a) counsel the employee;

(b) transfer the employee to other duties which have the same or lower classification and determine the salary, within the salary range

(c) dismiss the employee.

(2) A decision by the Corporation under paragraph (b) and (c) of sub-section 2[1] does not take effect: (a) until the expiration of the period within which the employee may appeal against the decision to a Disciplinary Appeal Board; or (b) if an appeal is lodged Unless that decision is confirmed by a Disciplinary Appeal Board or the appeal lapses or is withdrawn

(3) If a person is dismissed or transferred pursuant to sub- section 2[1] and the finding of the court in relation to the offence is subsequently nullified, the person may apply to the Corporation to be re-appointed without probation, to his/her original duties or transferred back to his/her original duties as the case may be. If the Corporation refuses such an application it shall notify the appellant in writing of its reasons for the refusal An applicant shall have a right of appeal against a refusal in accordance with Section (4) of these Agreed Procedures.

(4) If an employee serves a term of imprisonment or a period of custody in relation to an alleged offence but is not dismissed, such periods shall not break the employee's continuity of service with the Corporation but shall not count as service for any purpose under these Agreed Procedures

(5) An employee shall not be punished under Section 1 and Section 2 of these Agreed Procedures in respect of the same matter.

SECTION 3 SUSPENSION

SUSPENSION

(1) An employee may be suspended from duty or transferred temporarily to other duties having the same classification as their existing duties if:

(a) the employee is charged with having committed a criminal offence; or

(b) the Corporation is of the opinion that the behaviour of the employee constitutes misconduct and the continued performance by the employee of his/her existing duties would be prejudicial to the effective Operations of the Corporation, the interests of the public or the interests of the employee and his/her fellow employees.

(2) An employee suspended from duty on the basis of being charged with having committed a criminal offence shall be suspended without pay

(3) An employee who is suspended from duty on the basis of alleged misconduct shall be suspended with pay until such time as a decision is made as to whether the employee is to be charged with misconduct

(4) Where an employee is suspended from duty at a time when he/she is absent on leave of absence, the employee shall continue to receive their salary to which they are entitled in respect of that period of leave of absence

(5) The suspension of an employee from duty does not prevent the granting to the employee of leave of absence with salary.

(6) An employee who is suspended from the duty is entitled to engaged in paid employment during any period of suspension without salary.

REMOVAL AND VARIATION OF SUSPENSION

(7) The Corporation may, at any time, remove the suspension of an employee or direct that salary be paid during the suspension on the grounds of hardship.

(8) If the suspension of an employee continues for more than 30 days, the Corporation shall consider whether the suspension should be removed or whether salary should be paid to the employee during the suspension

(9) Notwithstanding sub-section 3[7] and 3[8], the Corporation shall remove the suspension of an employee or transfer an employee back to his/her original duties,as the case may be, where:

(a) a direction or decision by an Inquiry Officer or the Corporation under Section 1, a decision by the Corporation under sub-section 2[1] or a decision by a Disciplinary Appeal Board under Section 4 takes effect;

(b) an employee who is charged with a criminal offence is subsequently found not guilty of the charge is not proceeded with;

(c) an employee is charged with misconduct and the charge is subsequently not established or is withdrawn; or

(d) an delegated employee decided that the employee should not be charged with misconduct.

(10) An employee whose suspension has been removed by the Corporation shall be paid any salary that was not paid during the suspension period and shall be credited with any leave that was taken during the suspension period.

(11) Except where an employee is dismissed from the Corporation, the period during which the employee is suspended from duty counts as service for all purposes.

SECTION 4 DISCIPLINARY APPEALS RIGHT OF APPEAL

(1) An employee may appeal against:

(a) an admonition, direction or decision made or given with respect to him/her by an Inquiry Officer or the Corporation under Section 1;

(b) a decision made with respect to him/her by the Corporation under sub-section 2[1]; or

(c) a refusal by the Corporation to an application made under sub-section 2[3].

(2) A Disciplinary Appeal Board shall hear and conduct a full enquiry into each appeal submitted and may:

(a) confirm,vary or set aside the direction or decision against which the Appeal is made; or

(b) in respect to an appeal under paragraph

(c) of sub-section 4[1], confirm the refusal appealed against or direct the Corporation to approve the application.

(3) A Disciplinary Appeal Board shall give reasons, in writing for its decision on an appeal and the Corporation shall take such action as is necessary to give effect to the decision.

LODGING OF APPEAL

(4) A disciplinary appeal shall be in writing, shall state the grounds of appeal and shall be lodged with the Corporation within 14 days after the date on which the appellant receives notice of the admonition, direction, decision or refusal from which he/she is appealing.

(5) Within 10 working days after receiving the appeal the Corporation shall forward to each member of the Disciplinary Appeal Board and the appellant all documentation associated with the appeal including a copy of the appeal as lodged by the appellant.

(6) The Disciplinary Appeal Board shall commence hearing the appeal as soon as possible at a time and place fixed by the Chairperson which shall be notified to the Corporation on, other members of the Disciplinary Appeal Board and the appellant.

CONDUCT OF HEARING

(7) At the commencement, or during the course, of a disciplinary appeal the appellant may alter the grounds of the appeal.

(8) Where an employee appeals under sub-section 4(1) against a direction or decision on the ground that the action to be taken in accordance with that direction or decision is excessively severe, evidence may be given on the hearing of that appeal:

(a) if the employee was suspended without salary prior to the giving of that direction or the making of that decision - of any loss of earnings arising from the suspension;

(b) if the employee is to be transferred to another position of the expenses that will be incurred by the employee in connection with that transfer; and

(c) of matter relating to the previous employment history and general character of the appellant.

(9) A Disciplinary Appeal Board shall exercise its powers having regard to the rules of natural justice and procedural fairness in making a decision.

(10) At the hearing of a disciplinary appeal, the appellant or the Corporation may be represented by Counsel, a solicitor or agent who may examine witnesses and address the Disciplinary Appeal Board hearing the appeal on the appellants or the Corporation's behalf.

(11) Copies of all documents intended to be used at the hearing of a disciplinary appeal shall, where practicable, be provided to the appellant by the Corporation no later than 7 days before the commencement date of the hearing.

(12) Where a copy of a document is intended to be used at the hearing of a Disciplinary Appeal is not furnished to the appellant in accordance with sub-section 4[1], the appellant is entitled to inspect that document.

(13) As soon as practicable, after a Disciplinary Appeal has been heard by a Disciplinary Appeal Board, the Chairperson of the Board shall, in writing, notify the Corporation of the decision and the Corporation shall forthwith, in writing inform the appellant of the decision.

DISCIPLINARY APPEAL BOARDS

(14) There shall be established, as are required, Disciplinary Appeal Boards, whose function will be to hear and determine Disciplinary Appeals in accordance with these Agreed Procedures.

(15) An employee shall not be nominated as a member of a Disciplinary Appeal Board for the purpose of an appeal relating to a charge if that employee was concerned in the laying of the charge against the appellant or in the inquiry related to the charge.

(16) A person shall not be appointed as Chairperson of a Disciplinary Appeal Board unless that person is or has been a magistrate or barrister or solicitor of not less than 5 years standing.

(17) A Disciplinary Appeal Board may, where only 2 of the 3 members are present, with the consent of the appellant and the Corporation, exercise all the powers of a Disciplinary Appeal Board in respect of an appeal.

(18) Where, at a meeting of a Disciplinary Appeal Board, the members are divided in opinion on a question, that question shall be decided according to a decision of the majority but, if 2 members only are present and those members are equally divided on a question, the appeal shall be deemed to be adjourned for the purpose of being reheard by another Disciplinary Appeal Board.

SECTION 5 REVIEW OF DISCIPLINARY FINDINGS AND ACTIONS

(1) Where an Inquiry Officer or a Disciplinary Appeal Board has found that a charge of misconduct against a person under sub- section 1[3] has been established and disciplinary action is imposed in respect of the charge, the person may, at any time, make a written request to the Corporation for a review of the finding or action taken in respect of the charge.

(2) A request for a review under sub-section 5[1]may be lodged on the ground that new evidence is now available which might, if it had been given during the investigation of the charge, have resulted in: (a) the non-establishment of the charge; or (b) less severe action being taken in respect of the charge.

(3) Where the Corporation is satisfied that the ground of the request is established, the Corporation shall conduct a review of the finding or action taken in respect of the charge and shall take one of the following steps in respect to the finding or action, as the case may be: (a) confirm the finding; (b) quash the findings and take action to recompense the person, as is, in the opinion of the corporation, reasonable and practicable in the circumstances; (c)confirm the action; or (d) mitigate the severity of the action.

(4) Without limiting the power of the Corporation under sub- section 5[3], the Corporation may reappoint a person to his/her original duties or transfer a person back to his/her original duties, as the case may be.

(5) For the purpose of this section, a reference to the investigation of a charge is a reference: (a) if the person charged appealed to a Disciplinary Appeal Board - to the investigation of the charge by that Board; or (b) in any other case - to the investigation of the charge by the Inquiry Officer authorised under sub-section 1[5] to investigate the charge.

TELECOM GENERAL CONDITIONS OF EMPLOYMENT AWARD 1989

AGREED DISCIPLINE PROCEDURES