Disciplinary Procedure: Serious Breach

Disciplinary Procedure: Serious Breach

Background

This document sets out the procedures under which a resident may be disciplined for a serious breach of the Resident Code of Conduct (JCU Halls of Residence), including the rights and responsibilities of residents and staff.

Definitions

CRL: Coordinator of Residential Life, JCU Halls of Residence.
Manager: Manager, JCU Halls of Residence.
Residential Agreement: Written agreement entered into between a resident and JCU.
Resident Code of Conduct: A code of conduct applicable to all residents of JCU Halls of Residence. Includes a list of serious breaches for the purposes of these procedures.
SRA: Senior Residential Assistant, JCU Halls of Residence.

Procedures

1. Procedure to be followed by SRA/CRL when handling possible serious breaches of the Resident Code of Conduct

1.1 The following procedures will be followed by a SRA/CRL when handling possible serious breaches of the Resident Code of Conduct. Before the sanctions referred to in section 9 may be imposed, the SRA/CRL will observe the following procedures.

1.2 Where a SRA/CRL’s attention is drawn to a possible serious breach of the Resident Code of Conduct, the SRA/CRL will, at the earliest opportunity, advise the resident of the possible breach and indicate that they should meet to discuss this.

1.3 The SRA/CRL will advise the resident, either in writing or verbally:

  • that the possible breach is being investigated in accordance with these procedures;

  • where a full copy of these procedures may be obtained; and

  • that the resident may be accompanied to the meeting with the SRA/CRL by another resident acting as a supporter.

1.4 The SRA/CRL may impose any interim conditions referred to in section 7 upon the resident, deemed appropriate by the SRA/CRL, taking into consideration the circumstances of each matter.

1.5 The SRA/CRL must then arrange a meeting with the resident. If the resident fails to attend this meeting, after being given reasonable opportunity to do so, the SRA/CRL may then decide the matter in the absence of the resident.

1.6 When the SRA/CRL and the resident meet, the resident may be accompanied by another resident acting in the role of supporter and the SRA/CRL may ask another SRA or a JCU staff member to also be present.

1.7 During this meeting, the resident’s alleged behaviour will be outlined by the SRA/CRL with evidence of this being presented as appropriate. The resident may respond by either agreeing with the information presented by the SRA/CRL, or by presenting additional or alternative evidence, mitigating circumstances etc.

1.8 The SRA/CRL will (either at that meeting or after further consideration and enquiries) make a decision in the matter and inform the resident of this and, if necessary, an appropriate sanction. If there are misconduct matters related to the same incident as the alleged serious breach, these misconduct matters will also be addressed by the SRA/CRL in accordance with these procedures with penalties imposed in accordance with the sanctions applicable to misconduct matters.

1.9 The SRA/CRL will inform the resident of the decision (and sanction, if any) in writing. The SRA/CRL will confirm the content of the discussion, the decision, the basis on which the decision was reached, and any sanction in a letter to the resident. Details of where a full copy of these procedures may be obtained will also be included in the letter to the resident.

The SRA/CRL is responsible for conveying to any resident (or group of residents) who may be affected by the breach, such information on the outcome as may be necessary to keep them informed. In doing so, the SRA/CRL must give due regard for considerations of privacy and confidentiality.

If after the SRA/CRL has made a decision, new or significant evidence which is not merely corroborative or repetitive and which was not known (or could not have been known) at the time of the original decision comes to light and may have produced a different decision, the resident should provide that evidence and request that the SRA/CRL reconsider the matter. The SRA/CRL will reconsider a matter at his/her discretion.

2. Appeal to Manager, JCU Halls of Residence

It is possible that a resident may disagree with a SRA/CRL’s decision and wish to have it reviewed by the Manager, JCU Halls of Residence. The following protocol outlines the procedures that will be followed:

2.1 A resident asking for a SRA/CRL’s decision to be reviewed must lodge with the Manager a letter outlining the reasons for the request. Except in exceptional circumstances, this request must be received by the Manager within three (3) working days of the written notification of the SRA/CRL’s decision being received by the resident. In cases which involve termination of residency, this period is reduced to one (1) working day.

2.2 If a resident lodges such a request, any sanction imposed by the SRA/CRL is suspended until the Manager has made a decision on the appeal.

2.3 In constructing this letter, the resident should be mindful that the basis for appeal would normally be limited to the following grounds:

  • the SRA/CRL did not follow the correct protocol for SRA’s/CRL in making the decision (refer section 1);

  • evidence or circumstances that should have been taken into account by the SRA/CRL in reaching a decision were overlooked or were not given sufficient weight; and/or

  • the inconsistency of the sanction with the nature of the breach of the Resident Code of Conduct.

2.4 New or significant evidence, which is not merely corroborative or repetitive and which was not known (or could not have been known) at the time of the original decision and has come to light, and may have produced a different decision, may not be introduced as grounds for appeal. Refer section 1.9.

2.5 When a resident requests a review of a SRA/CRL’s decision, the burden of proof resides with the resident. In other words, the resident must demonstrate to the Manager:

  • the SRA/CRL did not follow the correct protocol for SRA/CRL’s in making the decision (see section 1);

  • evidence or circumstances that should have been taken into account by the SRA/CRL in reaching a decision were overlooked or were not given sufficient weight; and/or

  • the inconsistency of the sanction with the nature of the breach of the Resident Code of Conduct.

2.6 Upon receiving an appeal, the Manager will decide whether the resident has presented an adequate prima facie case to justify further consideration of the appeal.

2.7 If the Manager decides that an adequate prima facie has not been presented, the Manager will inform the resident of this, preferably in a face-to-face meeting during which the resident can be given the opportunity to respond. The Manager will confirm the decision, and the basis on which it was made, in writing to the resident.

2.8 If the Manager decides that an adequate prima facie case has been presented, the Manager will review the SRA/CRL’s decision.

2.9 A mutually convenient time will be arranged at which the Manager and the resident are available to attend. The resident may be accompanied by another resident who may act in the role of a supporter.

2.10 Prior to the meeting, all parties will be provided with a copy of any documentation pertaining to the matter.

2.11 If the resident fails to attend the meeting, the Manager may, without further notice, proceed in the resident’s absence or dismiss the appeal. If there are medical or compassionate reasons for the absence, the Manager should be notified immediately. The Manager will determine the acceptability of such reasons and whether the meeting should be adjourned.

2.12 The appeal will be conducted by considering only those matters to which the resident’s appeal is related. For example, if the grounds for the resident’s appeal are that the sanction imposed by the SRA/CRL is inconsistent with the nature of the breach of the Resident Code of Conduct, then the Manager will address only this issue.

2.13 The Manager is not bound by the rules of evidence or other technicalities or legal forms.

2.14 The Manager will invite the resident into the meeting room to present the grounds of the appeal. The resident will then be asked to leave the meeting room and the SRA/CRL will be invited into the meeting room to explain the matter from his/her perspective.

2.15 The Manager will make a decision to confirm, put aside, modify (in full or in part), or increase the sanction(s) originally imposed by the SRA/CRL.

2.16 The Manager will firstly inform the SRA/CRL and then the resident of the decision in the matter and confirm this in writing to the resident.

3. Discrimination and Harassment

JCU is committed to providing an environment for effective work and study, free from unlawful and unacceptable discrimination and harassment. At no time will discrimination and harassment in any form be condoned at JCU Halls of Residence. JCU’s Discrimination and Harassment: Policy & Procedure will be applied to any circumstance brought to residential staff or administrative staff attention. Residents will be advised to follow the steps outlined within the Discrimination and Harassment: Policy & Procedure should they be subjected to harassment or discrimination at any time. Residents are also advised that community agencies are available to victims of harassment.

4. Communication with residents

For the purposes of this policy, a letter addressed to a resident’s room or an E-mail addressed to the resident’s University E-mail address shall be deemed to have been received by the resident.

5. Proceedings of Meetings

All proceedings (including any initial meetings between residents and a SRA/CRL) will be carried out in a manner which is informal but at the same time assures natural justice.

6. Supporter

A resident, who is required to meet with a SRA/CRL, or the Manager, may be accompanied by another resident acting in the role of supporter.

The supporter’s role is to observe the meeting and provide support and guidance to the resident, as requested. The supporter may not represent the resident or speak on the resident’s behalf.

In choosing a supporter, the resident should be mindful of any potential conflict of interest. For example, a RA, SRA, CRL, a witness or another resident involved in the matter under consideration may not act in this role.

7. Interim powers

In order to ensure the safety of all persons within JCU Halls of Residence, a SRA/CRL may impose any of the following directions upon a resident, pending finalisation of the alleged serious breach (including any appeal to the Manager) or pending finalisation of any referral in accordance with the Discrimination and Harassment: Policy and Procedure:

  • confiscation of items/removal of any person/animal/thing;

  • immediate temporary relocation of allocated room;

  • loss/restriction of privileges;

  • requirement to attend mediation/counselling;

  • no contact with a resident(s)/staff member.

In some instances, to ensure the safety of all persons within JCU Halls of Residence, a SRA/CRL may direct that a resident be immediately removed from JCU Halls of Residence pending the finalisation of the alleged serious breach (including any appeal to the Manager). If a resident is directed to be immediately removed, the resident must not return unless as approved by the SRA/CRL who made the direction. Grounds for immediate removal include:

  • physical assault and/or physical harassment;

  • sexual assault and/or sexual harassment;

  • violent and/or overtly aggressive behaviour;

  • possession of illegal drugs or other illegal substances (including synthetic drugs or other natural or chemical compound which purports to mimic the effects of illegal substances);

  • use and/or being under the influence of illegal drugs or other illegal substances (including synthetic drugs or other natural or chemical compound which purports to mimic the effects of illegal substances);

  • selling and/or distribution of illegal drugs or other illegal substances (including synthetic drugs or other natural or chemical compound which purports to mimic the effects of illegal substances);

  • engaging in any activity of a criminal nature;

  • threats and/or emotional harm, including but not limited to harassment, stalking, psychological aggression;

  • causing psychological harm and/or emotional distress through the use of any form of social networking media, including but not limited to email, text messaging, web pages, digital and physical noticeboards;

  • engaging in any behaviour which brings JCU and/or JCU Halls of Residence into disrepute; or

  • a breach of any interim conditions imposed by a SRA/CRL.

8. Standards of Evidence

Formal rules of evidence are not applicable. If a resident denies responsibility for an alleged breach of the Resident Code of Conduct, the SRA/CRL will make a decision based on the balance of possibilities.

In a case where the facts are contested there is generally a “weight” of evidence on each side. The SRA/CRL will place greater emphasis on evidence which, when fairly considered, produces the stronger impression and is more convincing. After considering all the available evidence, the SRA/CRL will decide whether there is a greater weight of evidence that the resident was responsible for the breach than the resident was not.

This standard is not the same as ‘beyond reasonable doubt’ which is a more rigorous requirement demanded by the courts in criminal cases. Given this, the SRA/CRL need not attain the degree of certainty that is required to justify a criminal conviction.

9. Sanctions

Where a resident has been found in breach of the Resident Code of Conduct, a SRA/CRL may impose a sanction. Such sanctions are designed to hold residents accountable for their inappropriate behaviour and are imposed for their educative effect. The discipline process should be one in which residents are encouraged to examine the motives for, and consequences of, their actions. Sanctions should enable residents to examine their own actions, and heal any ill feelings or unease in the community caused by their behaviour.

In determining an appropriate sanction, a SRA/CRL will evaluate each situation and resident individually. The SRA/CRL will consider multiple factors including the details of the current breach, the resident’s previous conduct, history and attitude in arriving at the best sanction for that individual.

Change of allocated room/hall

Resident required to relocate to another room/hall and possibly restricted from accessing the hall the resident is being relocated from.

Community Service

Resident required to serve a period of supervised community service within the hall, in either administration, catering, housekeeping or grounds. Wherever possible there should be a logical relationship between the serious breach and the community service assigned.

Confiscation

Confiscation of property, or removal of any animal/thing in accordance with Clause 20 of Residential Agreement.

Loss/Restriction of Privileges

Restriction imposed on a resident’s social or personal privileges for a set period of time, for example an alcohol ban, exclusion from hall events/communal areas/use of recreational facilities, not permitted to host functions/host overnight guests.

Mediation/Counselling

Resident required to attend mediation and/or counselling.

Probation

Resident required to serve a period of probation, during which a resident is given a chance to show capability and willingness to live in accordance with the Resident Code of Conduct. If a resident commits any further breaches of the Resident Code of Conduct whilst undertaking probation, this may result in termination of the resident’s Residential Agreement.

Restitution

Reimbursement for damage caused to, or misappropriation of, property.

Student Fine

A monetary penalty, not exceeding $250, in the form of a contribution to the Resident Student Association Facilities Fund.

Termination of Residential Agreement

Termination of residency at JCU Halls of Residence.

Written admonition

Written warning to the resident stating that there has been a serious breach of the Resident Code of Conduct. A record of this warning will be kept on the resident’s file and will be taken into account if future misconduct/serious breaches occur, resulting in more severe disciplinary action and potential refusal of future readmission to the JCU Halls of Residence.

10. Avenues of Appeal

Apart from the procedures for an appeal outlined in Section 2, there will be no further avenues of appeal and the decision of the Manager is final.