Chapter 8: Grievance and appeal, discipline and termination

It is the role of the chair of a panel considering a candidature case to ensure procedural fairness, or natural justice, to all parties involved.

Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached. It requires a fair and proper procedure be used when making a decision. Where the process for hearing a case is comprehensive and fair, the panel is more likely to reach the correct outcome.

Procedural fairness consists of three broad principles:

• the right for all parties to have notice of the case to answer prior to the hearing and in a reasonable time to prepare a defence;
• the right for all parties to be heard and to have an adequate opportunity to present a case in relation to the matter under investigation; and
• the panel to hear the case, make reasonable inquiries or investigations before making a decision, and to act in good faith. This includes a freedom from bias, or the appearance of bias, and to make a decision based on a balanced and considered assessment of the information and evidence placed before it.

A decision by a panel must be based upon proof or evidence and not on speculation or suspicion. The Chair, in the panel report, should be able to clearly point to the evidence on which the determination is based. A panel is bound by the rules of procedural fairness or natural justice. The standard of proof that the panel would be satisfied with is based on a balance of probabilities.

The chair should ensure that the panel has sufficient information from all involved parties and any possible witnesses to make a clear and informed decision. To this end a panel may determine an appropriate procedure for making enquiries and receiving submissions.

Where it is appropriate to give a candidate the opportunity to improve his/her performance or behaviour within reasonable time frames, this should be reflected in the panel report. Should the matters in contention be proven, the consequence should be commensurate with the matter proved. Does the penalty fit the offence?

The panel will normally hear from all involved parties and witnesses in person. However, in exceptional circumstances, the chair of the panel can determine that a hearing will be by written submission.

Grievance, termination, non confirmation, discipline and appeal hearings involve very sensitive and confidential information. Strict confidentiality must be maintained throughout the process and information released on a need to know basis. However, procedural fairness requires the chair of the panel to inform those involved of the main points of any allegations or grounds for negative comment and provide them with a reasonable opportunity to put their case, whether in writing, at a hearing or otherwise. When conducting an investigation in relation to a complaint it is important that any candidate or staff member being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations.

For example, a candidate who is facing an allegation of research misconduct is entitled to know the exact nature of the charges against them. Equally, where a candidate lodges a formal grievance against a staff member, the staff member has a right to know what the candidate is alleging, so that they can prepare a response.

The chair of the panel should determine what information is released to assist witnesses to prepare submissions for the panel.

The chair should establish an acceptable timeline for resolution of the case. While a case is pending, the matters under consideration may be causing significant delays to the candidates research or stress to those parties involved. It is in all parties' best interests to ensure a timely consideration of the concerns raised. All interested parties should be kept informed of developments and notified if there is going to be any significant delay to the process.

Policies and procedures are in place which, for the most part, will determine timelines.

A meeting date and time will be arranged when panel members are available to hear the matter under consideration. Every effort will be made to accommodate the availability of all parties involved. However, it is expected that the candidate and academic unit/faculty representatives will make themselves available at the proposed meeting time. If there are extenuating circumstances, a request for a reasonable deferral of the meeting date may be lodged. Requests for deferral will be considered on a case by case basis. In normal circumstances, and provided the members of the panel are available, this deferral should be no more than two weeks. Only in exceptional circumstances would a second deferral be considered.

Where it is not possible to establish a meeting date and time within a reasonable timeframe, the chair may decide to hear the case by way of written submission. In such circumstances full documentation must be provided to those directly involved and they must be given an opportunity to respond to any written submissions. The chair may set strict deadlines for written submissions and responses to be provided.

A panel will not normally hear evidence in person from any witness, unless all parties involved in the case have an opportunity to be present. Where a person involved in the case has been given the opportunity to be present at a hearing, but decides not to attend, the panel may hear from witnesses in that persons absence.

The candidate has the right to be accompanied and supported at the hearing by another person. Unless the regulations, policies or procedures stipulate that a candidate may be legally represented, this person may support but not represent or advocate for the candidate and may not be a legal representative.

Where legal representation is permitted under the relevant regulations, policies or procedures; and where the chair of the panel has agreed to the candidate being legally represented, the University may also be legally represented.

The candidate should be advised in writing of support services which are available to them from MPA and from Health and Wellbeing.

Staff members who have had a complaint lodged against them may also request to be accompanied and supported at the hearing by another person. This person may support but not represent or advocate for the staff member.

Staff members may wish to be supported by a union representative, colleague or friend.

The chair should establish an appropriate format for the hearing, ensuring that both the candidate and the academic unit/faculty have an opportunity to present their case in a fair and non-threatening environment. Appropriate time frames should be negotiated for all parties to present their case/s. The candidate, the academic unit/faculty representatives and panel members should be advised of the format and proposed time frames by way of a formal Order of Proceedings. All documents relating to the hearing should be provided with the Order of Proceedings prior to the hearing date. It is the candidates responsibility to provide copies of the documentation to a support person who is to accompany him/her. The suggested format includes:

• Initial discussion of the panel. The chair should brief panel members of the format and invite them to ask questions of the candidate, academic unit/faculty representatives and witnesses should they require clarification at any time during the meeting. Academic unit/faculty representatives, other than those who are members of the panel, must not attend or take part in any initial discussions the panel may have prior to the commencement of the formal panel hearing.
• Invite candidate/candidates adviser and academic unit/faculty representatives to join the hearing. The chair should explain the standard of proof required to satisfy the panel before a decision will be made. The chair should ensure that all questions from the candidate and academic unit/faculty representatives are addressed through the chair. Neither party should directly address their comments or questions to the other party and should be advised accordingly at the commencement of proceedings. The chair may relax this requirement throughout the hearing, should they decide that communication between the parties is appropriate and constructive.
• The candidate, if he or she chooses to be in attendance, should be invited to present his/her case, respond to matters raised by the academic unit/faculty representatives and answer questions from the panel members. The academic unit/faculty representatives have a right to be present.
• Academic unit/faculty representatives should be invited to present their case, respond to matters raised by the candidate, and answer questions from the panel members. The candidate/candidates support person has a right to be present.
• The panel should then meet in camera to consider the evidence presented and make final determinations with regard to the candidates hearing, within specified timelines, as appropriate.

The academic unit/faculty may determine who will represent them and present their case at a hearing (referred to in these guidelines as the academic unit/faculty representatives). In some cases a particular academic or academics may be named in a grievance. In such cases these academic staff will be given an opportunity to represent themselves and respond to allegations.

The chair should determine those people best placed to provide evidence to the panel and answer questions in relation to the candidates case (referred to in these guidelines as the witnesses).

The academic unit/faculty representatives, including individual academics named in a grievance, and witnesses should be contacted and asked to attend the hearing.

Administrative staff will take comprehensive notes of the proceedings, which will be available to the panel members. These are working notes for the panel and will not be made available to the candidate/candidates adviser or academic unit/faculty representatives. In the case of GRC appeal hearings, the responsible administrative staff will be from the Monash University Institute of Graduate Research.

The chair will be responsible for providing a final report which will summarise the proceedings and document the panels determination. This report will be made available to the candidate and the academic unit/faculty representatives. In the case of a GRC appeal hearing, the determinations of the panel will be final and will be reported to the Graduate Research Committee in confidence.

There will be circumstances where the panel may need to reconvene. Perhaps further information is needed, or additional people need to be contacted for their advice. The chair may feel that the candidate is not in a position to continue at the initial meeting, or all could benefit from a 'time-out'. In these circumstances it is better to draw the hearing to a close and reconvene at another time.