Managing Conduct and Unsatisfactory Performance in the Teaching Service

Overview

The department is committed to a high performing workforce and to providing safe and supportive work environments where excellence is pursued, underperformance is managed, diversity is valued and everyone is treated with respect, fairness and dignity. Discrimination, sexual and other forms of harassment, bullying, violence and threatening behaviour are unacceptable.

Every day, principals and managers may deal with a range of challenges such as workplace conflict, grievances, and policy issues. These matters are dealt with in accordance with the needs and requirements of the particular workplace, taking into account the Department of Education policy and best practice. The department has developed comprehensive guidelines to assist with managing complaints, misconduct and unsatisfactory performance involving employees. The guidelines are not intended to regulate the day-to-day management of ordinary workplace issues and challenges.

A positive workplace climate, including recognition that misconduct and unsatisfactory performance will be dealt with promptly and fairly and within the context of an improvement focused set of procedures, is an integral component of a healthy, successful and fulfilling working environment. It is therefore incumbent on a manager to act where a complaint, unsatisfactory performance or misconduct involving an employee is observed or brought to his or her attention, whether or not a formal complaint has been lodged.

In determining the appropriate action the principal or manager, subject to satisfying any legal or policy requirements, should use his or her professional judgement to decide whether the matter should be dealt with as a complaint, misconduct or unsatisfactory performance.

Where the matter involves alleged serious misconduct, unsatisfactory performance or sexual harassment the Employee Conduct Branch must be contacted for advice regarding the appropriate course of action.

Advice is also available in relation to the managing of complaints.

Detailed information regarding the handling of complaints, misconduct and unsatisfactory performance is available under the Policy and Guidelines tab.

Related topics

• Code of Conduct
• Conflict of Interest
• Complaints – Information for Employees
• Employee Wellbeing Support Services
• Equal Opportunity – Employees
• Fitness for Duty
• Grievances – Teaching Service
• Report Fraud or Corruption
• Sexual Harassment – Employees
• Workplace Bullying

Relevant legislation

• Delegations
• Industrial Agreements
• Industrial Awards
• Legislation – Employment Topics
• Ministerial Orders – Employment

Guidelines for principals and managers

These guidelines contain the following chapters:

• Part 1 – Introduction
• Part 2 – Managing conduct or performance concerns through a local resolution procedure
• Part 3 – Managing misconduct under Division 10 of Part 2.4 of the ETR Act
• Part 4 – Managing unsatisfactory performance

Part 1 – Introduction

Overview

Ensuring that complaints and concerns about conduct and unsatisfactory performance are dealt with promptly and fairly is an integral component of a positive, safe, successful and fulfilling learning and working environment.

Where conduct and performance matters involve children, the overriding concern is child safety and the protection of children. The department will take steps to ensure the safety and wellbeing of students and employees in the implementation of these guidelines.

When responding to allegations against employees, the department is also responsible for ensuring its employees are treated fairly and reasonably, and that the rights of individuals are respected during an investigation and applicable disciplinary process.

The department has robust child protection systems that uphold high standards of child safe practices. The Code of Conduct, policies and procedures underpin these standards.

These guidelines provide information and guidance to principals/managers about the management of conduct and performance concerns for employees in the Teaching Service, including when principals/managers must contact the Conduct and Integrity Division for advice and support.

The guidelines are intended to:

• provide sufficient flexibility to enable complaints and concerns to be dealt with efficiently and appropriately
• support the management of unacceptable behaviour
• ensure processes are procedurally fair and that all matters are dealt with in a timely, fair and consistent manner
• reflect the public sector values and employment principles and that employees are treated with respect, fairness and dignity.

The guidelines include options for addressing complaints or concerns about conduct or performance through a local resolution procedure, as well as more formal processes such as a misconduct procedure under Division 10 of Part 2.4 of the Education and Training Reform Act 2006 (Vic) (the ETRA), and an unsatisfactory performance procedure (which may include action under Division 9A of Part 2.4 of the ETRA). These guidelines are not intended to replace the day-to-day management of ordinary workplace issues and challenges by principals/managers.

Allegations of 'reportable conduct' under the Reportable Conduct Scheme made in respect of current school employees, will also be managed under these guidelines, and may be investigated as part of a procedure under Part 2 or Part 3 of the guidelines.

When principals/managers must contact the Conduct and Integrity Division

For any incident, suspicion or disclosure of child abuse in schools, principals/managers must follow the Four Critical Actions which include reporting to Victoria Police. Any other suspected criminal conduct against principals/managers or the school must also be reported to Victoria Police.

Principals/managers must immediately contact the Conduct and Integrity Division if they become aware of information, concerns or allegations which could fall within one of the following categories (refer to When principals/managers must contact the Conduct and Integrity Division or external bodies below):

• suspected criminal conduct by an employee
• sexual behaviour, sexual assault or sexual misconduct towards a child (including at a school, in the course of employment and elsewhere such as in a worker’s personal or home life)
• reportable conduct allegations
• fraud and/or corruption or any matter which may give rise to a public interest disclosure
• teaching registration – refusal, suspension of cancellation of a teacher's registration
• Working With Children Check (WWCC) – an employee has been issued with a final or interim Working with Children Exclusion (formerly known as an Interim Negative Notice or a Negative Notice)
• sexual harassment, sex-based harassment and conduct that creates a hostile workplace environment on the ground of sex
• disability worker putting safety at risk
• a serious complaint or concern regarding a probationary employee.

Principals/managers must also immediately contact Conduct and Integrity Division where these types of allegations are made against:

• volunteers
• casual relief teachers
• other contractors.

Conduct and Integrity Division will provide advice about the appropriate process and reporting obligations in relation to these workers who are not employees.

Principals/managers must consult the Conduct and Integrity Division where there is consideration to:

• issue directions to an employee to remove them from the workplace
• assign an employee alternative duties at another workplace
• suspend an employee's employment.

Some of these actions can only be taken by the Secretary's delegate. Refer to immediate risk management considerations for more information.

How to contact the Conduct and Integrity Division

Conduct and Integrity Division
03 7034 6768
employee.conduct@education.vic.gov.au

How the Conduct and Integrity Division supports principals and people managers

Conduct and Integrity Division can assist principals and managers with:

• assessing the seriousness of concerns
• providing timely advice on the right process to follow
• effective communication with parents or other individuals who have reported concerns
• practical strategies for handling concerns or complaints with employees
• supporting principals/managers to develop the documentation to support their decision (including planning for meetings, supporting drafting of correspondence)
• ensuring that they comply with their legal obligations
• ensuring that processes are conducted in a timely manner
• ensuring that employees are treated fairly and reasonably
• supporting principals and managers throughout the process, including:
  • joining up principals/managers with other areas of the department such as the Sexual Harm Response Unit or the Employee Safety, Wellbeing and Inclusion Division.

Benefits of early contact with the Conduct and Integrity Division

Conduct and Integrity Division will assist with identifying the most appropriate process to follow and ensure that principals/managers are well-supported in implementing that process.

The Conduct and Integrity Division can assist principals/managers to plan for meetings, provide information to support drafting of correspondence, and can review draft correspondence to employees.

Where necessary, Conduct and Integrity Division are able to make referrals within the department to provide wellbeing and safety support for staff who are affected by the concerns or behaviours that are the subject of the inquiry, minimising the risk of injury and supporting principals to acquit their OHS obligations.

Roles in these guidelines

Employee
A person employed under Part 2.4 of the Education and Training Reform Act 2006 (Vic) (ETRA) in the Victorian Teaching Service. This includes teachers, Education Support officers and principal class officers.

Impacted person/employee
A person who is alleged to have been subjected to inappropriate behaviour by an employee. They may or may not also be the reporter.

Investigator
The person conducting the investigation into the complaint or concern.

Principal/manager
The manager of the person who is the subject of the complaint or concern regarding their conduct or performance.

Reporter
A person who has made a complaint or report, or raised a concern, about an employee. They might be the person who experienced the conduct but may also be a witness or a person who otherwise holds concerns about an employee.

Representative or support person
A representative or support person may provide practical, emotional and/or wellbeing support. They may also provide advocacy, guidance, and attend meetings with the person they are supporting and take notes on their behalf. A support person or representative may be, for example, a union representative, friend, colleague or family member.

Respondent
The employee whose conduct or performance is the subject of a complaint or concern.

Secretary
The Secretary to the Department of Education.

When principals/managers must contact the Conduct and Integrity Division or external bodies

Suspected criminal conduct by an employee

Principals or managers must report suspected criminal conduct to Victoria Police, including:

• any allegations of sexual/physical assault involving a minor
• sexual harassment
• any other criminal offences against them or the school.

Other staff members who are the victim of any alleged criminal offence(s) can be strongly encouraged to report these to police.

Where an employee is reported to have engaged in suspected criminal conduct (including fraud, theft, drug offences, sexual assault of an adult or a child, family violence allegations), the Conduct and Integrity Division must be contacted so that risk can be assessed and the person alleged to have engaged in the conduct can be removed from the workplace, if required.

If a principal/manager is notified by Victoria Police (or police in another jurisdiction) that an employee is the subject of a police investigation, they must contact the Conduct and Integrity Division.

For guidance on reporting an incident to ISOC refer to Managing and Reporting School Incidents (Including Emergencies) or call 1800 126 126.

Sexual behaviour, sexual assault or sexual misconduct by an employee towards a child or physical violence by an employee towards a child

• Including in the course of employment and elsewhere such as in an employee’s personal life or home.
• This includes grooming and child abuse material offences.

For any incident, suspicion or disclosure of child abuse in schools principals/managers must follow the Four Critical Actions which includes reporting to Victoria Police.

The Conduct and Integrity Division must be contacted immediately, before commencing any investigation and before notifying the respondent, so that risk can be assessed, and to ensure that the principal/manager does not unintentionally take steps which may impede an effective investigation. Conduct and Integrity Division will assist with advice on risk mitigation steps, including removal from the workplace, where appropriate and other risk mitigation steps such as increased supervision/ monitoring. Conduct and Integrity Division can also assist with liaison with Victoria Police.

Allegations of this nature frequently require reporting to external agencies, even when there may not appear to be allegations of criminal conduct.

If the conduct is a 'reportable allegation' under the Child Wellbeing and Safety Act 2005 (Vic), it must be reported by the principal/manager to the Conduct and Integrity Division. The Conduct and Integrity Division is responsible for making any required reports to the Commission for Children and Young People.

Where the allegations concern a child in the home or towards a member of the employee’s family, this may also raise mandatory reporting obligations. 'Mandatory reporters' must make a report to Child Protection if they form a belief on reasonable grounds that a child is in need of protection from physical injury or sexual abuse and the child’s parents have not protected or are unlikely to protect the child from harm of that type. A report must be made to Child Protection as soon as practicable after forming the required belief.

For more information, refer to:

• PROTECT – Identifying and responding to all forms of abuse in Victorian schools
• for guidance on reporting an incident to ISOC – Managing and Reporting School Incidents (Including Emergencies) or call 1800 126 126.

Where an employee is charged with a sexual offence, the Conduct and Integrity Division will also refer these matters to the Sexual Harm Response Unit in the department’s Operational Policy, School Engagement and Compliance Division, which provides advice and support to schools to take the further steps required in relation to child safety when an employee has been charged with a sexual offence (for example, conducting child safety risk assessments and supporting the school to communicate with the school community as appropriate).

Reportable conduct allegations

There are 5 harm types of 'reportable conduct' allegations:

1. sexual offences committed against, with or in the presence of a child
2. sexual misconduct committed against, with or in the presence of a child
3. physical violence against, with or in the presence of a child
4. any behaviour that causes significant emotional or psychological harm to a child
5. significant neglect of a child.

If the alleged conduct is criminal in nature, it must be reported to Victoria Police.

When an allegation, complaint or concern arises that may fall into one of the ‘reportable conduct’ allegation categories, principals/managers must contact the Conduct and Integrity Division as soon as possible (on the same day where possible), even if the incident allegedly occurred in the home or outside the workplace.

The Reportable Conduct Scheme applies to any person who is (or was) over the age of 18 years at the time of the incident and who is (or was):

• an employee (including VPS employees and school staff)
• a contractor (including an agency casual relief teacher)
• a volunteer (including parent volunteers)
• otherwise engaged to provide services (including as an office holder or officer) whether or not the person provides services to children.

For more information, refer to the Reportable and Notifiable Conduct policy.

Even if conduct is not criminal in nature it may still be reportable.

Fraud and/or corruption or any matter which may give rise to a Public Interest Disclosure

If the alleged conduct is criminal in nature, it must be reported to Victoria Police.

If a principal/manager becomes aware of any information which may constitute an allegation of fraud or corruption, they must contact the Conduct and Integrity Division. This includes suspected theft or fraudulent medical certificates.

For further information about what constitutes fraud and corruption, refer to the Fraud and Corruption Control policy.

For further information about public interest disclosures, refer to Report Fraud or Corruption.

A teacher's registration has been refused, suspended or cancelled

Where a principal/manager becomes aware that a teacher's registration has been refused, suspended or cancelled, they must contact the Conduct and Integrity Division. The teacher must not be permitted to undertake teaching duties if they are not registered and have not been granted permission to teach by the Victorian Institute of Teaching.

Working With Children Check – an employee has been issued with a final or interim Working with Children Exclusion

Please note: a final or interim Working with Children Exclusion was formerly known as an Interim Negative Notice or a Negative Notice.

Where a principal/manager becomes aware that an employee has been issued with a final or interim Working With Children Exclusion (formerly known as an Interim Negative Notice or a Negative Notice), they must contact the Conduct and Integrity Division. They must not be permitted to engage in child-related work.

For more information, refer to Suitability for Employment Checks: Working with Children and Working with Children Checks and other Suitability Checks for School Volunteers and Visitors.

Sexual harassment, sex-based harassment and conduct that creates a hostile workplace environment on the ground of sex between adults

If the alleged conduct is criminal in nature, it must be reported to Victoria Police.

Where a principal/manager becomes aware of an allegation of sexual harassment, sex-based harassment or conduct that creates a hostile workplace environment on the ground of sex, they must contact the Conduct and Integrity Division.

For more information, refer to the Sexual Harassment policy.

Disability worker putting safety at risk

Please note: this is usually an Education Support worker providing a service to a person with a disability.

If the alleged conduct is criminal in nature, it must be reported to Victoria Police.

Principals/managers must contact the Conduct and Integrity Division where a disability worker may be putting safety at risk due to alleged:

• intoxication while practicing
• sexual misconduct
• detrimental impairment
• a significant departure from professional standards.

The Conduct and Integrity Division may be required to notify the Victorian Disability Worker Commission, under the Disability Worker Regulation Scheme. For more information, refer to Notifications – Victorian Disability Worker Commission.

The Victorian Disability Worker Scheme applies to staff who are performing a disability service to any person, other than VIT registered teachers (unless they are working in an Education Support Officer role). This is usually an Education Support worker providing a service to a person with a disability. The alleged victim does not need to be aged under 18 years.

A serious complaint or concern regarding a probationary employee

If a serious complaint or concern relates to an employee in their probationary period, principals/managers must contact the Conduct and Integrity Division for advice and guidance on utilising the probationary procedures to manage the complaint or concern.

If the alleged conduct is criminal in nature, it must be reported to Victoria Police.

Immediate actions to manage child safety or other risks

In certain cases, it may be necessary to take urgent action to remove an employee from the workplace or issue directions to an employee in relation to their conduct or the performance of work.

Principals/managers must contact the Conduct and Integrity Division before taking any steps to remove an employee from the workplace. Risk management action may be appropriate where:

• there is a potential risk to the health and safety of students, employees or members of the school community (including risk to physical health and risk to mental health)
• there is a potential for the employee to interfere with the procedure or prejudice an investigation (including a risk of destruction of, or tampering with, evidence, or discouraging witnesses from giving evidence)
• there is a risk that the alleged conduct may continue or be repeated
• the conduct alleged is an act of misconduct and it is not appropriate for the employee to remain in the workplace while the matter is referred to the Secretary's delegate for investigation and determination of whether suspension is appropriate
• a teacher's teaching registration has been suspended or cancelled
• an employee has been issued with a final or interim Working with Children Exclusion (formerly known as an Interim Negative Notice or a Negative Notice).

Depending on the circumstances, consideration may be given to:

• issuing directions to an employee in relation to carrying out their work within the workplace and/or revoking permission to engage in other employment (which can be issued by the principal/manager)
• re-assigning an employee to an alternative workplace (which can be undertaken by the Deputy Secretary, Schools and Regional Services and is only appropriate in limited circumstances and never where allegations relate to sexual misconduct involving a child or sexual harm involving a child)
• suspending an employee from their employment (which can only be undertaken by the Deputy Secretary, Schools and Regional Services in accordance with section 2.4.64 of the ETRA).

The purpose of these directions is to manage risk and prevent harm while the appropriate procedure is followed. These are interim, protective measures and not sanctions. They are not a prejudgement or finding as to whether the complaint or concern is substantiated and will not be relevant to future decision-making as to whether the conduct occurred and any appropriate action.

Appropriate risk management steps may change at any time as new information is received or as circumstances change. Principals/managers should give ongoing consideration to appropriate risk management with a focus on child safety and seek expert advice from Conduct and Integrity Division. Employees should be treated fairly and reasonably and with respect, courtesy and sensitivity.

Risk management within the workplace

Depending on the nature of the complaint or concern, it may be appropriate for the employee to continue working within the workplace, but be directed by the principal/manager (in consultation with the Conduct and Integrity Division) to perform their duties in an alternative way or at a different location within the school.

Directions must be fair, lawful and reasonable and may include, for example:

• a direction to temporarily work from home
• a direction to perform their duties from an alternative location within the school (for example, particular spaces within the school, or at another campus of the same school)
• a direction not to visit certain places of work or within the school campus
• a temporary alteration of duties (commensurate with role, classification and range)
• a direction not to speak with particular individuals or categories of people (such as any impacted person, reporter, other staff members, one or more students, family members of students or other individuals within the school community)
• directions regarding how particular situations must be dealt with
• directions regarding conduct which the employee must or must not engage in.

Conduct and Integrity Division can assist principals/managers with devising directions appropriate to each individual circumstance.

Directions should always be confirmed in writing to the employee with reasons provided, both for clarity, and to ensure documentation to support subsequent action in the event of a breach of those directions. Conduct and Integrity Division can provide support with reviewing draft directions.

A principal can allocate other duties to an employee provided the duties allocated are consistent with the professional responsibilities of that employee. This means that the duties must be commensurate with the employee’s role, classification and range.

Where the employee continues working in the workplace, the principal/manager should consider any other necessary actions to minimise any risk to children and young people, such as increased monitoring and supervision of the employee. The Conduct and Integrity Division can provide advice to principals/managers on these strategies.

Depending on the nature of the complaint or concern, there may also be procedural requirements relating to the management of psychosocial hazards in the workplace, particularly where there is demonstrated or threatened violence, aggression, bullying, or harassment, including sexual harassment. The principal/manager should also consider managing the broader mental health risks to the workforce that may have been present prior to, during or after an incident or incidents of misconduct, inappropriate employee behaviour, or poor work performance. For example, high job demands, low role clarity, poor support, or workplace conflict. Please refer to the Psychological Safety and Risk Management policy for further information.

Re-assignment of employee to an alternative work location

If the principal/manager considers that reassignment to an alternative location may be warranted, they must contact the Conduct and Integrity Division for advice.

Reassignment is not a suspension from employment. It involves an employee continuing to work, but being directed by the Secretary or the Secretary's delegate to undertake work in an alternative workplace (for example, at another school or in the Regional Office). Deputy Secretary, Schools and Regional Services has the delegation to make this decision.

Reassignment is only appropriate in limited circumstances and never where allegations relate to sexual misconduct of a child or sexual harm of a child.

The employee will be given an opportunity to respond to any proposed re-assignment.

Suspension from employment

Suspension is a temporary measure and can only be implemented by a person with delegated authority from the Secretary. If the principal/manager considers that suspension may be warranted, they must contact the Conduct and Integrity Division for advice.

A member of the Teaching Service (which includes Education Support, teachers and principal class officers) may be suspended from their employment if it is reasonably believed by the Secretary's delegate (that is, the Deputy Secretary, Schools and Regional Services) that there may be grounds for taking action against them under Division 10 of Part 2.4 of the ETRA, or where an employee is charged with a criminal offence punishable by imprisonment or a fine. The suspension may be with or without pay. The employee will be given an opportunity to respond to any proposed suspension.

An employee may also be suspended without pay in circumstances where their teaching registration is refused, suspended or cancelled. This may occur separately from, or in conjunction with, a procedure under these guidelines.

Information relevant to all procedures under these guidelines

The following sections are relevant to each procedure under these guidelines and principals/managers should ensure they familiarise themselves with these requirements before commencing any procedure:

• verbal complaints
• anonymous complaints
• public interest disclosures
• support for reporters, impacted people, respondents, witnesses and principals/managers throughout all procedures under these guidelines and beyond
• fairness, which includes providing the employee the subject of any complaint or concern with an opportunity to respond
• confidentiality throughout the procedure and, where appropriate, in relation to the outcome
• witnesses and the right of an employee who is the subject of a procedure under these guidelines to nominate witnesses whom they believe are relevant
• documentation and requests for access to personnel files
• roles of a support person and representative
• notification to Victorian Institute of Teaching
• appeals and reviews.

Verbal complaints

It is not necessary that a complaint be made in writing for a principal/manager to take action under these guidelines. A principal/manager must consider the nature of the concerns raised rather than how they have been raised, in determining what process to follow.

Anonymous complaints

Where the reporter advises the principal/manager they wish to remain anonymous, the principal/manager should seek to understand why the reporter does not want their identity disclosed. As part of the discussion between the principal/manager and the reporter, the principal/manager will explain the limitations which may arise as a result of a reporter wishing to remain anonymous, such as less precise or detailed allegations being able to be provided to the respondent, which may impact the extent to which allegations can be investigated and addressed fairly. Whilst the reporter's wishes to remain anonymous should be seriously considered, it may not be possible to act in accordance with those wishes where it would mean that principal/manager cannot take appropriate action in relation to serious concerns.

Principals/managers can contact Conduct and Integrity Division for advice.

If a reporter is anonymous, the principal should consider what action can be taken and seek advice from Conduct and Integrity Division. Specific protections regarding confidentiality and anonymity apply in relation to public interest disclosures.

Public interest disclosures

Where a person has real and substantial concerns that they may suffer a detriment as a result of raising a complaint or concern, they may raise their concerns under the provisions of the Public Interest Disclosures Act 2012 (Vic) (The PID Act). The PID Act ensures that people who report improper conduct and corruption in the Victorian public sector (whistleblowers) can do so in the knowledge that they will be protected.

Where a matter is classified as ‘public interest disclosure’ (previously known as a ‘protected disclosure’ and also known as a 'whistleblower complaint'), the department, the person making the disclosure, and respondent must comply with their obligations under the PID Act.

Further information can be located at Report Fraud or Corruption.

Support for participants in a process

Wellbeing supports are available at any time to department employees. Any involvement in a procedure under these guidelines, whether as a reporter, impacted person, respondent or witness, may affect a person's health and wellbeing. Principals/managers must ensure that all employees involved in any procedure under these guidelines are made aware of the supports available throughout the procedure and, where relevant, provide contact details for these supports.

For any impacted persons not covered under the department's Employee Wellbeing Support Services, such as parent volunteers, contractors, CRTs employed through an agency or any other person not covered under a DE employment contract, principals/managers can suggest supports under the 'External Supports' section below.

Regular welfare checks should also be conducted on the respondent, reporter and impacted people (particularly students) by the principal/manager (or another appropriate person, determined in consultation with the Conduct and Integrity Division). This includes checks following directions issued about the performance or work, re-assignment of duties or suspension.

A welfare check with a person may include:

• enquiries about a person’s current wellbeing levels
• personal supports that they have, such as immediate family or community support
• professional supports they have accessed, such as those set out below and the effectiveness of these services.

Welfare checks provide an opportunity for the person to ask questions and provide clear information about timelines for the next action where this is possible.

Principals/managers can access the Employee Wellbeing Support Service’s Manager Assist for advice on staff wellbeing matters and guidance on having difficult conversations. Principals/managers are also encouraged to access the range of support services available.

Manager Assist

Manager Assist provides dedicated coaching support to people managers. Principal-class employees, business managers and other school leaders are encouraged to use Manager Assist for coaching and advice on staff wellbeing matters, having difficult conversations, leading people through change, developing leadership competencies and other people management matters.

Unlimited sessions are available to people managers. Refer to Employee Wellbeing Support Services for more information.

Employee Wellbeing Support Services

Employee Wellbeing Support Services provides free and confidential advice to proactively support Victorian government school staff wellbeing.

It includes a short-term, solution-focused confidential counselling service, consisting of up to 4 sessions per issue, per year for any work-related or personal issues, such as anxiety and stress, conflict and communication, or performance issues. The department's Employee Wellbeing Support Services is provided by Converge International and can be contacted on 1300 291 071 or by booking online via the Converge portal with the organisational code mywellbeing.

Crisis support (emergency counselling) is available 24 hours a day, 7 days per week via telephone. If you or an employee are distressed or require urgent crisis counselling please call Converge International on 1300 291 071 – and press option 2. A client support officer will attend to the call immediately. Family Assist is available to staff’s immediate family members aged 18 years and over. For further information, refer to Employee Wellbeing Support Services.

External supports

External supports can be suggested as an alternative or in addition to Employee Wellbeing Support Services for department employees and can be suggested to any person who is not covered under Employee Wellbeing Support Services, such as parent volunteers or independent contractors.

External supports include:

• visiting their doctor who may prepare a mental health treatment plan and refer them to a mental health professional
• contacting national services such as Lifeline on 13 11 14 or Beyond Blue on 1300 224 636
• visiting Mental Health Australia: Need Help? for a list of hotlines that offer advice on supporting the mental health or safety of themselves or someone they know.

Refer to Psychological Safety and Risk Management: Resources for all supports available to staff.

Nurses and midwives can contact NMHPV Get Help Now for free assistance and wellbeing support.

People who have experienced, or are at risk of, family, domestic or sexual violence may also contact 1800 RESPECT (1800 737 732), which is a 24-hour national sexual assault, family and domestic violence counselling line.

Other external supports available for persons experiencing sexual harassment are detailed at Respect at Work: Get Help.

Supports for students and their parents/carers

In matters involving students and/or their parents/carers, appropriate wellbeing supports must be considered. For students, arranging support from the school’s student wellbeing support staff and/or Student Support Services will frequently be appropriate and sufficient. Student Support Services can also provide referrals to appropriate additional external supports.

For students and family members involved in investigations of alleged sexual misconduct, sexual assault, serious physical violence towards a child, or other conduct which may have had a significant impact on that child’s health or wellbeing, consider more comprehensive and targeted wellbeing supports which are detailed on the department’s website.

For matters involving criminal charges in relation to child sexual abuse, the Sexual Harm Response Unit in the department’s Operational Policy, School Engagement and Compliance Division will provide advice to schools on arranging targeted wellbeing support for affected students and their families, and on the other actions the school may need to take to discharge the duty of care owed to students (for example, child safety risk assessments and communications to the school community). Relevant matters are referred to the Sexual Harm Response Unit by the department’s Incident Support and Operations Centre (ISOC). The Conduct and Integrity Division and the Sexual Harm Response Unit contact schools directly to provide support, in close consultation with the relevant Area team.

Fairness

The principles of procedural fairness must be observed at all times when managing complaints and concerns about an employee. All parties have the right to be heard with respect to the allegations, be treated fairly and to have a decision maker who acts fairly and in good faith.

A fundamental principle of procedural fairness is that, before a decision is made that affects the rights or interests of a person, they be advised of the matter, have an opportunity to respond and have their response considered by the decision-maker. Section 2.4.59B of the ETRA requires the principal/manager to do the following in relation to the employee who is the subject of the complaint or concern:

• advise the employee of any meeting and the process to be followed
• provide the employee with a reasonable opportunity to seek advice, including from their union or a representative of their choice
• provide the employee with a reasonable opportunity to respond to the complaint or concern
• take into account any reasonable explanation for any failure by the employee to respond to the complaint or concern or otherwise participate in the procedure
• act fairly and in good faith, without bias and not bring a prejudiced or predetermined mind, or preferred outcome to the matter.

Principals/managers must also ensure that impacted people and reporters are treated fairly, through regular and clear communication about the steps being taken to address their complaint or concern and what they can expect from the process.

Conflict of interest

Any person with responsibility for determining whether to proceed with an investigation, who undertakes the investigation or is the person delegated with responsibility to determine an appropriate disciplinary outcome, is to consider if there is any actual, potential or perceived conflict of interest that needs to be declared. Where a conflict is identified, the relevant person will make a declaration in line with the Conflict of Interest policy so that it can be addressed appropriately.

Confidentiality

Confidentiality must be maintained by all parties at all times. Principals/managers should only disclose information to those who need to know, for example, the Conduct and Integrity Division, other members of the leadership team at the school (as determined by the principal) and the SEIL/AED. Confidentiality does not prevent a principal/manager from sharing information in order to obtain advice within the department as needed.

In addition, there may be circumstances where some information may need to be shared in order to protect the health or safety of another person or a group of people. There will also be circumstances where it is appropriate to inform some or all of the school community about serious allegations of a sexual nature which have been made against a staff member where that communication is necessary to ensure that the department’s duty of care towards students and other relevant legal obligations are met. Where a staff member is charged with sexual offences involving a child, it will also be necessary to communicate this with the school community provided that when doing so the communication does not breach the Judicial Proceedings Reports Act 1958 (Vic) in relation to identifying any person against whom the sexual offence is alleged to have been committed. The Sexual Harm Response Unit will advise and assist on appropriate timing and content of the communications in all of these cases, in consultation with Victoria Police and the alleged victim-survivor/their family.

Particular care should be taken with any personal or health information. Principals/managers can contact Conduct and Integrity Division if they have any privacy concerns.

Reasonable measures should be taken to ensure that the confidentiality of a complaint or concern is maintained when communicating with others in the workplace about any directions issued to an employee about the performance of work, re-assignment of duties or suspension.

Confidentiality is particularly important in any investigation under these guidelines, as it:

• assists the investigative process by encouraging witnesses to be forthcoming in their evidence
• protects the psychological safety of parties involved, particularly that of the person/s reporting behaviour
• reduces the likelihood or opportunity for evidence to become compromised
• reduces the risk of untested or unsubstantiated allegations being circulated outside of the relevant procedure.

The requirement for confidentiality is not intended to impede an employee’s ability to prepare a response to an allegation, or to discuss matters relating to their employment with their principal or manager. Employees are entitled to seek personal and professional support and advice, for example, from immediate family members, a support person or representative. However, employees must not discuss the substance of the complaint or concern with fellow employees, students and/or the wider school community. Employees must also comply with directions not to approach potential witnesses regarding the matter (see ‘Witnesses’, below’).

At the end of a process, a reporter, impacted person or witness should be provided with information about the outcome of the investigation. Conduct and Integrity Division can provide guidance to principals/managers on what information can be provided and how to do this well to ensure transparency, honesty and trust. This may include, for example, advising a reporter that their concern has been investigated, that it was found to have substance, or not. In such cases, the following factors should be considered and balanced:

• the interests and rights of the reporter, impacted person and witness(es) to know that the complaint or concern has been dealt with appropriately
• the interests and rights of the respondent to have personal information, including information regarding their employment, kept confidential.

Confidentiality does not prevent the provision by principals/managers of honest references or pre-employment child safety checks in regard to an employee. It is vital that when providing a reference or pre-employment check for an employee that the person providing the information discharges their duty of care to students. This means that they must be transparent about any allegations of a child safety nature that have been raised about the employee, even if those allegations were found to be unsubstantiated at the time. This is important information for any prospective employer because they will need to put in place appropriate child safety supervision measures in order to discharge their duty of care and meet their obligations under the Child Safe Standards.

Witnesses

A reporter, impacted person or respondent may nominate the names of witnesses (including students) who have relevant information to give and should be interviewed. Nominations can be made to the principal/manager or investigator. The investigator (which may be the principal/manager in a local resolution procedure) will determine which, if any, of these individuals will be interviewed. The reporter, impacted person or respondent is not entitled to be present during any interviews with witnesses. Witnesses who are employees of the department and any students must be offered support and assistance (see 'Support' for further information).

A respondent must not knowingly approach or seek to contact witnesses, reporters, impacted people or students to discuss the details of the complaint, concern or investigation. This is critical to protect the integrity of an investigation, ensure that there can be no suggestion of intimidation of any witness, and to preserve the welfare of students and staff. Approaches to a witness by a respondent will be regarded seriously and may lead to disciplinary action.

If a person wishes to nominate a witness, the person may inform that witness that they have provided (or intend to provide) their name to the principal/manager or investigator for the purposes of being interviewed on the basis that they may have information that is relevant to the investigation. However, in doing so, they must not discuss the details of the complaint, concern or investigation.

Communication with parents/carers

Where a principal/manager becomes aware of a complaint, concern or allegation that an employee has behaved inappropriately towards a student, in the vast majority of cases the principal/manager should ensure that the student’s parent/carer is contacted (on the same day, where possible) and informed:

• of the concern/allegation
• that the school is making inquiries
• that the parent/carer will be informed of the outcome. Appropriate measures for ensuring the wellbeing of the student should be discussed.

If the complaint, concern or allegation is of sexual misconduct, sexual assault or a criminal physical assault, the principal/manager must contact Conduct and Integrity Division immediately to seek advice before parents are contacted.

There will be some circumstances where communication with parents/carers may be complex or not yet appropriate, for example, when police have not yet been contacted in relation to an allegation of criminal conduct, when police have provided instructions that the parent/carer is not to be informed, when there are concerns for the safety of the child in the home, where the student is in out of home care, or other circumstances.

If a principal/manager is unsure whether a parent/carer should be contacted, they should contact the Conduct and Integrity Division.
Parents/carers must be advised that confidentiality must be maintained. Notes should be kept of discussions and meetings with parents/carers.

Where a parent/carer reports concerns regarding a student who is not their child, that student’s privacy must be respected in any communication with the individual who has made the report. Depending on the matter, Conduct and Integrity Division or the Sexual Harm Response Unit can provide advice on communicating with the reporter on the steps taken as a result of their report.

The Conduct and Integrity Division can provide advice and support regarding communication with parents in handling complaints and concerns regarding employees, including support with correspondence where required. Where there are charges or substantiated allegations related to sexual harm of a child by an adult working within a school, this advice and support will be provided by the department’s Sexual Harm Response Unit.

Documentation

Documents created as part of any procedure implemented under these guidelines must:

• be complete, accurate and dated
• record the steps taken in the procedure, the relevant decisions made, the evidence considered, and any disciplinary or other action taken
• be sufficiently clear and comprehensive so that reasons for decisions are transparent
• be stored securely in accordance with the department’s Records Management policy.

Request for access to personnel file by respondent

For information regarding managing a request from a respondent to access their personnel file, refer to Records Management – Employee Information.

An application may be made under the Freedom of Information Act 1982 (Vic) or the Privacy and Data Protection Act 2014 (Vic) for copies of the documents relating to any of the procedures outlined in these guidelines. If this occurs, the department's Freedom of Information Unit will make a determination as to what documents may be released. For more information, refer to Freedom of Information.

Representatives and support people

Where indicated in these guidelines, a person (including a respondent, reporter, impacted person or witness) may be assisted by a representative or support person.

A representative or support person may provide practical, emotional and/or wellbeing support. They may also provide advocacy, guidance, and attend meetings with the person they are supporting and take notes on their behalf. A support person or representative may be, for example, a union representative, friend, colleague or family member.

Employees must be provided with reasonable notice before each stage or step in the procedure that directly involves or requires their contribution or response, so that they may arrange representation or a support person.

An employee may be required to nominate an alternative representative and/or support person where the representative or support person is, or is potentially, a witness to the alleged incident or where their participation in the procedure would be otherwise inappropriate.

Representatives and support people must treat all matters in a confidential manner.

Notification to Victorian Institute of Teaching

As required under sections 2.6.21B and 2.6.30 of the ETRA, the Conduct and Integrity Division will inform the Victorian Institute of Teaching of action taken by the department concerning a registered teacher (which includes employees in the principal class) in relation to:

• serious misconduct
• serious incompetence
• that the registered teacher is unfit to be a teacher
• that the registered teacher’s ability to practise as a teacher is seriously detrimentally affected because of an impairment
• any other actions that may be relevant to the registered teacher's fitness to teach
• other information necessary for the purpose of enabling the Victorian Institute of Teaching to perform its functions and duties or exercise its powers.

Appeals and reviews

Merit Protection Boards

A respondent may contact the Merit Protection Boards to lodge a 'personal grievance' about a local resolution procedure under these guidelines.

A 'personal grievance' means a grievance of an employee in respect of any action, other than certain excluded matters, taken within a work location, which directly relates to that employee and directly affects that employee, and which the employee considers:

• is in breach of the ETRA or Ministerial Order 1388
• infringes the principles of merit and equity, or infringes any personnel policy or guidelines issued by the Secretary (or her delegate)
• is otherwise unreasonable.

A personal grievance may be lodged in relation to a local resolution procedure. Proceedings under Divisions 9A (unsatisfactory performance) and 10 (misconduct) of Part 2.4 of the ETRA are excluded from the definition of personal grievance. Appeals against these decisions are considered by the Disciplinary Appeals Board.

Disciplinary Appeals Board

An employee may appeal to a Disciplinary Appeals Board against a determination of the Secretary's delegate to take action against them under a misconduct or unsatisfactory performance procedure.

A notice of appeal must be lodged with the Senior Chairperson of the Disciplinary Appeals Boards within 14 days after the date on which the employee is given notice in writing of the determination of the Secretary's delegate.

Employees can also contact the Fair Work Commission in relation to disputes under the VGSA and unfair dismissal rights.

Part 2 – Managing conduct or performance concerns through a local resolution procedure

Overview of local resolution procedure

The local resolution procedure is intended to assist principals/managers to take direct management action to manage complaints or concerns in respect of employee conduct and/or performance. A formal complaint or report is not required to initiate this procedure. The procedure can be initiated in response to any relevant information which comes to the attention of the principal/manager and any concern the principal/manager may have about an employee.

This procedure must be implemented in a manner that supports respect and inclusion, with consideration of the potential impacts on the persons health and wellbeing. For example, asking the person what supports or adjustments that they might need to be able to participate in the process, and making sure that these are provided from start to finish.

Principals/managers must check whether they need to contact the Conduct and Integrity Division or an external organisation before starting a local resolution procedure. Refer to When principals/managers must contact the Conduct and Integrity Division for more information.

Any local resolution procedure must be conducted in accordance with the principles of procedural fairness. This includes the right for the respondent to have a support person present at any meetings.

Parties are committed to local resolution procedures being completed as early as possible within a period of 3 months, however circumstances may arise where this timeframe is not achievable.

When to use a local resolution procedure

The principal/manager should use their professional judgement to decide whether the matter should be dealt with under the guidelines and if so, whether it should proceed under the local resolution, misconduct or unsatisfactory performance procedure.

If principals/managers require assistance to decide whether a local resolution procedure is appropriate, they should contact the Conduct and Integrity Division.

Responding to conduct or performance concerns through local resolution- available options

Principals/managers should consider how to respond to conduct or performance concerns on a case by case basis. The aim should be to deal with matters promptly, focussing on resolution where possible. Many concerns expressed to the principal or manager by parents, students, employees or members of the community may appropriately be dealt with using a restorative approach, emphasising resolution rather than utilising a process that focuses on determining the substance and veracity of a complaint or concern.

Informal resolution processes

Restorative or resolution focused processes:

• may be faster to implement
• are less adversarial, which may be more appealing to reporters and impacted people
• allow matters to be resolved before they escalate
• focus on resolution not attribution of blame.

Regardless of what approach is taken, any decision-making and outcome must be documented, with advice and expectations confirmed in writing and given to the employee concerned. Providing a written response to the reporter outlining the resolution of the matter is advisable. Documentation should be sufficiently detailed to provide a record of the action taken in the management of the complaint or concern, and may include a diary entry, notes of meetings/discussions, copies of emails with relevant parties and/or a copy of any response provided to the reporter or the employee.

Supporting the reporter (the person making the complaint or report)

The reporter may inform their principal/manager of concerns and also state that they wish to:

• deal with the situation themselves
• seek advice about possible strategies to resolve the matter
• ask the principal/manager to speak to the employee about whom they have concerns on their behalf.

If the principal/manager considers it appropriate, they may support the reporter to deal with the situation themselves. In determining whether this is appropriate, the principal/manager must take into account their obligations to provide a safe and respectful workplace and learning environment for employees and students. Further action by the principal/manager may be required to fulfil their duty of care, such as:

• undertaking a risk assessment to understand the nature of any risk posed to other employees
• meeting with the respondent to reiterate behavioural expectations
• commencement of a local resolution procedure, reporting allegations to Victoria Police
• contacting the Conduct and Integrity Division regarding a misconduct procedure.

For advice, contact the Conduct and Integrity Division and refer to the Support section of these guidelines.

Raising the concerns verbally with the respondent

Often, the most appropriate approach is for a principal/manager to invite the respondent to a meeting to discuss the complaint or concern, give them an opportunity to verbally respond and/or explain the reasons for their behaviour, and set expectations for the future. If the respondent accepts the complaint or concern, the principal/manager may also obtain an undertaking from the respondent that their behaviour will change, or agree on another appropriate outcome.

The respondent must be given the opportunity to bring a support person to the meeting if they wish and to be provided with any workplace adjustments that they might need to be able to participate. The principal/manager should also arrange for another person to attend the meeting to take notes.

The principal/manager should clearly discuss with the respondent the requirements of confidentiality and the importance of not raising the subject with any relevant reporter, impacted person, colleagues or potential witnesses. The respondent should also be given information about available supports.

Following the meeting, the principal/manager should follow up with an email setting out the matters discussed. This record may be referred to if further issues arise in future. In particular, it is advisable to record in writing expectations or directions that have been given to an employee regarding their future conduct, via email, meeting minutes or formal correspondence.

Mediation

In some matters, mediation may assist the parties to resolve the complaint or concern. For example, a complaint or concern may arise from lack of, or unclear, communication, or from a problematic professional relationship. Through mediation, a mutually acceptable resolution may be achieved with the assistance of an independent third party, for example:

• acknowledging each other’s perspective and developing agreed strategies for managing differences
• offering an apology
• giving an undertaking that inappropriate behaviour will be changed
• agreed communication protocols
• letting another party know how their behaviour has impacted them or had an unintended effect
• clarifying expectations of appropriate conduct
• counselling.

It is not recommended that the principal/manager or another member of staff attempt to conduct a mediation themselves. The department’s Conflict Resolution Support Service is available to support principals/managers with mediation and other forms of individual and team conflict resolution.

Mediation is most useful when both parties are interested in participating to seek a mutual resolution.

Where a mediation is conducted, the mediator must ensure that the conduct of participants in the mediation is appropriate and professional at all times. The mediation must also be conducted in a trauma-informed manner.

Any party involved in the mediation process may be accompanied by a support person.

Where any of those involved in the mediation may be disadvantaged, for example due to disability or impairment or non-English speaking background, reasonable steps should be taken by the mediator to mitigate the disadvantage including reasonable accommodation and access to interpreters.

Neurodiverse staff can also access counselling and coaching to help with workplace situations, day-to-day work and to communicate reasonable workplace adjustment needs. For more information on the services and how to access them, refer to the Neurodiverse confident services page or contact the Workforce Diversity and Inclusion team by email: diversity@education.vic.gov.au

The following principles apply to any mediation process:

• encouraging willingness in parties to acknowledge circumstances and develop solutions
• identifying and working from areas of common understanding
• identifying scenarios and alternative responses and behaviours
• offering counselling or other forms of welfare support (for example, Employee Wellbeing Support Services)
• ensuring an effective mechanism for communication where there is difficulty with interpersonal relationships.

Conflict Resolution Support Service

The department's Conflict Resolution Support Service is available to assist employees in addressing workplace conflict.

Prior to determining whether to commence a formal local resolution procedure, and where the parties agree to participate, the principal/manager may choose to use one of the services offered by the Conflict Resolution Support Service.

The services offered include:

• mediations
• case conferencing and facilitated meetings
• conflict coaching
• team conflict intervention.

To arrange one or more of the above services, principals/managers should call the service provider, Converge International, on 1300 687 633 or mediation@convergeintl.com.au

Manager Assist

Manager Assist is a dedicated telephone advisory service available to support leaders and managers. This service can provide advice and coaching on a range of issues such as approaching a difficult conversation with employees, managing challenging team dynamics, leading through uncertainty and change, supporting staff at risk, and managing the impact of mental health issues within the workplace.

More information on the department’s Employee Wellbeing Support services is available through: Occupational Health, Safety and Wellbeing Management in Schools: Employee Wellbeing Support Services.

Formal resolution process

Some complaints and concerns regarding employee conduct may warrant a written, allegations-based process.

Benefits of a formal, written process include:

• conveying the seriousness of the matter to the people involved
• enabling effective escalation where previous verbal directions or advice has not been followed
• involving findings being made following an investigation, which can bring more finality to an issue and avoid re-agitation of complaints
• thorough documentation to support a principal/manager’s decision on the matter
• a firm grounding for future action against an employee should conduct be repeated.

The Conduct and Integrity Division may be contacted for advice and support in the implementation of any formal process.

Principals/managers must contact the Conduct and Integrity Division in relation to:

• any proposal to issue directions to an employee to remove them from the workplace
• any allegations set out under When principals/managers must contact the Conduct and Integrity Division or external bodies.

Where allegations fall within the reportable conduct scheme and require notification to the Commission for Children and Young People, Conduct and Integrity Division will provide advice about the appropriate process. Where appropriate, Conduct and Integrity Division will support the principal/manager by arranging for an investigator to be appointed to conduct the investigation. The principal/manager remains responsible for the overall process and outcomes.

Step 1: Establish nature of complaint or concern

Establishing the nature of the complaint or concern may involve:

• making a written record of a verbal complaint or concern and/or requesting that the complaint or concern be put in writing (however, the failure of a reporter to put the complaint or concern in writing does not mean that no further action is required – refer to verbal complaints)
• interviewing the reporter and, if appropriate, the impacted person if they are not the reporter
• talking with other relevant individuals, such as students or other employees
• reviewing relevant documents.

Where a complaint or concern has been received in writing, the principal/manager should acknowledge receipt of the complaint or concern in writing.

Step 2: Provide respondent with details of complaint or concern and opportunity to respond

The principal/manager must provide the respondent with details in writing of the complaint or concern and a reasonable opportunity to respond in writing to the complaint or concern.

This would usually be by letter, delivered in person with the offer of a support person and any adjustments that the person may need to be able to participate.

Where the respondent is invited to provide a response but does not do so, this does not prevent the procedure from continuing.

Respondents must be informed of the implications of not providing a response (for example, that the matter will progress without their version of events being considered).

Step 3: Consider response

The principal/manager must consider any response provided by the respondent, and then decide what further inquiries may be appropriate in order to reach their decision. Where the respondent admits the conduct, the principal/manager may proceed to make findings (Step 6). Where there is significant dispute about the alleged conduct, or if the principal/manager considers for any reason that more information is required to inform their decision, the principal/manager may conduct further inquiries in relation to the complaint or concern. If so, the principal/manager should proceed to Step 4 (further investigation).

Step 4: Conduct further investigation

The principal/manager may conduct any further investigation required to satisfy themselves as to what occurred, or to inform their decision about appropriate outcome. This may involve:

• examining records and other documentation
• requesting a written account from any witnesses or other persons
• interviewing any other people
• seeking further information from the reporter or impacted person (for example, where other evidence contradicts their account or it is otherwise in the interests of fairness to the parties involved)
• reviewing CCTV or other footage, where available
• any other inquiries that may be relevant to the case at hand.

When a student is to be interviewed, the principal/manager should consider whether the student's parent or carer needs to be contacted.

The principal/manager must keep detailed notes of all interviews conducted, including the date and time of the meetings and the individuals present.

Step 5: Give the respondent an opportunity to respond to any further adverse information

The principal/manager must provide the respondent with an opportunity to respond to any further adverse information obtained in the course of the investigation. This may occur in writing (for example, by email) or in a meeting.

Where the respondent is invited to provide a response but does not do so, this does not prevent the procedure from continuing. The respondent must be informed of the implications of not providing a response (for example, that the matter will progress without their version of events being considered).

Step 6: Make findings and determine outcome

Following the investigation and consideration of any response from the respondent, the principal/manager must determine whether the complaint or concern has substance or not and make a decision about what action, if any, should be taken. Relevant considerations include:

• the evidence which has been collected and whether or not it supports the complaint or concern
• the source of the evidence and whether those sources are credible and/or reliable
• the circumstances and context of the complaint or concern
• the absence of evidence where it should logically exist
• other considerations relevant to the matter at hand.

The principal/manager must reach a reasonable state of satisfaction that, on the balance of probabilities, the complaint or concern has substance in order to find an allegation substantiated. 'Balance of probabilities' means it is more likely than not that the alleged conduct occurred, having regard to the seriousness and potential ramifications of the allegations. If the principal/manager is not satisfied on the balance of probabilities that the allegation has substance, it may be found unsubstantiated. The principal/manager does not need to be satisfied beyond a reasonable doubt, in order to find allegations substantiated, as this is not a criminal process. In some cases it may be appropriate to find that it was not possible to determine whether the alleged conduct occurred or not.

The principal/manager's decision and the reasons for it must be provided in writing to the respondent. Consideration must also be given to providing the reporter and any impacted person appropriate information regarding the outcome of the procedure. Refer to Confidentiality for further guidance.

If the principal/manager determines that a complaint or concern is not substantiated, the principal/manager must explain why and deal with any outstanding issues. This may involve:

• acknowledging different perspectives
• reminding those involved of expected standards of conduct
• monitoring the situation.

If the principal/manager determines that a complaint or concern is substantiated (that is, it is more likely than not that the conduct occurred), the principal/manager must determine the appropriate course of action. Possible actions include:

• contacting the Conduct and Integrity Division (if not already aware) to commence a misconduct procedure
• implementing an unsatisfactory performance procedure
• recommending counselling, whether personal or performance based counselling
• directions that particular behaviours will cease
• clarification of expectations of appropriate conduct
• setting up a support group
• conflict resolution
• issuing a warning in relation to the consequences of continued behaviour, and placing a copy on the respondent's personnel file, along with other documentation
• implementing a period of monitoring
• provision of a mentor
• referral to professional development
• requiring the employee to complete a relevant department online training module, such as the Respectful Workplaces eLearning module
• requiring the employee to undertake training or participate in supported discussions to develop understanding of applicable policies
• referring the respondent and/or reporter/impacted person to the department’s Employee Wellbeing Support Services
• other appropriate action.

Principals/managers must advise respondents of their appeal rights in relation to the decision made (refer to Appeals and reviews for further information).

As soon as possible after making a decision, the principal/manager must ensure that the outcome letter related to this local resolution procedure is placed on the respondent's personnel file. Where the Conduct and Integrity Division has provided advice on the process, relevant documentation must also be provided to Conduct and Integrity. Refer to Documentation for further information.

Part 3 – Managing misconduct under Division 10 of Part 2.4 of the ETRA

Overview of misconduct procedure

Procedures for an investigation and determination of an inquiry under Part 2.4 Division 10 of the ETRA generally involve the following steps:

• the Secretary's delegate nominating an investigator to conduct an investigation
• the investigator preparing a Notice of Allegations in relation to the person who is the subject of the allegations and giving them an opportunity to respond
• the investigator preparing an investigation report
• if the allegations are substantiated in the investigation report, the Secretary's delegate giving the respondent an opportunity to respond to the report, the grounds for action and the proposed disciplinary outcome
• the Secretary's delegate making a decision on whether there are grounds for action and the disciplinary outcome to be taken, after considering the respondent’s response.

The department refers to these procedures as a misconduct procedure. Any misconduct procedure must be conducted in accordance with the principles of procedural fairness. This includes the right for the respondent to have a support person present at any meetings and be provided with any workplace adjustments that they require.

Parties are committed to misconduct procedures being completed as early as possible within a period of 4 to 7 months, however it is recognised that circumstances may arise where this timeframe is not achievable.

When to use a misconduct procedure?

A decision to commence a misconduct procedure can only be made by a person with the delegated authority of the Secretary, such as a regional director or the Deputy Secretary, Schools and Regional Services.

Principals/managers must contact the Conduct and Integrity Division in relation to any information which comes to their attention which may constitute misconduct or grounds for action under Division 10 of Part 2.4 of the ETRA or serious misconduct. The Conduct and Integrity Division will provide advice and guidance to the principal/manager in relation to how to proceed.

Any information collected by the principal/manager through a local resolution procedure may be used in the misconduct procedure. However, a local resolution procedure is not required before commencing a misconduct procedure.

What are grounds for action?

Misconduct is one of the grounds for action against an employee under Division 10 of Part 2.4 of the ETRA. The procedure set out in Section 2.4.60(1) of the ETRA provides that, after investigation, action may be taken under against an employee who:

• conducts themselves in a disgraceful, improper or unbecoming manner in an official capacity or otherwise
• commits an act of misconduct
• is convicted or found guilty of a criminal offence punishable by imprisonment or a fine during their period of service
• is negligent or incompetent in the discharge of their duties
• contravenes a provision of the ETRA or a Ministerial Order made for the purposes of Chapter 2 of the ETRA
• contravenes a requirement by or under any Act that corporal punishment not be administered to any government school student
• contravenes or fails to comply with a lawful direction given to them by a person with authority to give the direction, without reasonable excuse
• is absent from their duties, without permission and without reasonable excuse or
• is unfit on account of character or conduct to discharge their duties.

Examples of misconduct and other grounds for action under Division 10 include (although consideration must be given to the seriousness of the conduct in question):

• sexual or other criminal offences (including grooming and child sexual abuse material offences)
• inappropriate relationships with or breaching appropriate boundaries with students
• inappropriate physical contact with students
• physical violence towards a student, other employee or member of the public, or otherwise inflicting harm on, or endangering the life of, another person
• a failure to act in accordance with Child Safe Standards and/or the school’s child safe policies, such as a breach of a relevant code of conduct (for example, the School’s Child Safety Code of Conduct or the Victorian Teaching Profession’s Code of Conduct (PDF)) or a failure to take reasonable steps to respond to and report suspected child abuse
• wilfully damaging property
• unlawful discrimination
• sexual harassment
• racial or religious vilification
• improper use of information, or school or department resources, for private purposes or personal gain
• breaching a lawful and reasonable direction or instruction
• alcohol or drug misuse affecting the employee’s performance of their duties
• serious or gross negligence
• inappropriate use of the internet or the department’s information technology resources including, for example, accessing pornography
• conduct involving dishonesty, wilfulness or recklessness, loss or damage.

In considering the fitness of an employee to discharge their duties, consideration may be given to any relevant matters, including their character and any conduct in which they have engaged (whether before or after becoming an employee).

Allegations dealt with as misconduct under Division 10 may include conduct which occurs at work, as well as conduct which occurs outside of work or the workplace. For example, where the employee has failed to maintain the general standards of conduct required in the public sector or where the behaviour contravenes the requirements of Ministerial Order 1388, which sets out the conduct and duties required of employees in the Teaching Service (including a requirement not to behave in any way which would impair their influence over students or standing in the community generally, or outside the hours of duty act in any manner unbecoming of their position).

Action taken under Division 10 can only be taken by the Secretary or the Secretary's delegate following a misconduct procedure.

If, after following the investigation process set out below, the Secretary's delegate is satisfied that there are one or more grounds for taking action against an employee under Division 10 of Part 2.4, the delegate may take one or more of the following actions:

• reprimand the employee
• fine the employee up to 50 penalty units (penalty units are indexed annually – refer to Penalties and values)
• reduce the employee’s classification
• terminate the employee’s employment.

What is serious misconduct?

Serious misconduct is wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.

Serious misconduct includes conduct that may cause serious and imminent risk to the health or safety of a person or the reputation of the department, such as theft, fraud, assault or the violation of a relationship of trust and influence in relation to a student.

Termination for serious misconduct

The Secretary may terminate the employment of an employee under section 2.4.61A of the ETRA if they reasonably believe that the employee has engaged in serious misconduct. In some circumstances, there will not be sufficient information to form a 'reasonable belief' that an employee has engaged in serious misconduct until after an inquiry has been conducted under Division 10 of Part 2.4 (including any investigation). However, in some cases the Secretary may form a reasonable belief that an employee has engaged in serious misconduct without conducting an investigation, if sufficient evidence of the serious misconduct is available. 'Reasonable belief' in this context has a high threshold and must be founded on clear and credible evidence.

Prior to reaching a final decision about any disciplinary outcome in respect of serious misconduct, the employee must be provided with a reasonable opportunity to respond.

If an employee's employment is terminated under section 2.4.61A of the ETRA for serious misconduct, the employee must be advised of their right to appeal to the Disciplinary Appeals Board. The Conduct and Integrity Division will also consider what communication is required to the Victorian Institute of Teaching, the Commission for Children and Young People and/or the Victorian Disability Worker Commission.

Misconduct procedure

Step 1: Secretary's delegate determines to commence misconduct procedure

Where an allegation is made that may constitute grounds for action against an employee under the ETRA, the Secretary's delegate will determine whether to commence an inquiry under Division 10 of Part 2.4 of the ETRA.

If an inquiry is commenced, the Secretary's delegate will nominate a person to investigate and report to the delegate in connection with the inquiry. Principals are generally not appointed as investigators in misconduct inquiries. The respondent will be notified, in writing, of the decision to commence an inquiry and who has been appointed to conduct the investigation. The respondent will also be advised of the action which could be taken if the alleged grounds are substantiated (namely, action under section 2.4.61 of the ETRA).

Step 2: Investigator conducts investigation

An investigation involves establishing the nature of the allegations and possible grounds for action under Division 10 of Part 2.4 of the ETRA. The investigation will usually involve reviewing documents and other evidence and speaking with any relevant witnesses. In some cases, evidence and information will already have been obtained as part of a formal local resolution procedure and information collected in that procedure can be relied upon by the investigator, where appropriate.

Step 3: Investigator prepares Notice of Allegations and provides opportunity to respond

The respondent must be given an opportunity to respond in writing to the alleged grounds for action and written particulars within 14 calendar days. The allegation(s) must be sufficiently clear as to ensure that the respondent can understand what is alleged to have occurred.

The investigator will also offer the respondent the opportunity to meet with the investigator to discuss their written response to the allegations.

Step 4: Investigator completes investigation and reports to Secretary's delegate

Following receipt of any response from the respondent to the allegations, the investigator will proceed to finalise the investigation, which may include conducting further inquiries to investigate any explanation made by the respondent, or any other relevant matter.

The investigator will then prepare a report for the Secretary's delegate, which includes the investigator's assessment of the evidence. All relevant materials considered by the investigator in their investigation must be attached to their report, including any response or other materials provided by the respondent.

A copy of the report and all attachments will be provided to the respondent in Step 5.

Step 5: Secretary's delegate gives respondent a copy of investigation report and an opportunity to respond to proposed findings and disciplinary outcome

The Secretary's delegate will consider the investigator's assessment of the evidence (along with the report and its attachments) and:

• may request the investigator to conduct further investigation and provide a further report (for example, if the Secretary's delegate considers that further evidence should be considered)
• will proceed to propose findings and a determination about action to be taken under Division 10.

Prior to reaching a final decision about any action to be taken under Division 10 of Part 2.4 of the ETRA, the Secretary’s delegate will write to the respondent to provide them with a copy of the investigation report and seek a response on proposed findings and disciplinary outcome. The respondent is invited to respond by way of a written submission to the Secretary's delegate within 14 calendar days. The Secretary's delegate must take into consideration the respondent's response before making findings and determining any final action.

If the Secretary's delegate is satisfied that there are one or more grounds for taking action against an employee under Division 10 of Part 2.4, the delegate may take one or more of the following actions:

• reprimand the employee
• fine the employee up to 50 penalty units (penalty units are indexed annually – refer to Penalties and values)
• reduce the employee’s classification
• terminate the employee’s employment.

Step 6: Secretary's delegate determines final action

After considering any response provided by the respondent, the Secretary's delegate must advise the respondent in writing of their determination.

The respondent must also be advised of their right to appeal to the Disciplinary Appeals Board, if action is taken under section 2.4.61(1) of the ETRA.

The Conduct and Integrity Division will also consider whether any communication is required to the Victorian Institute of Teaching, the Commission for Children and Young People and/or the Victorian Disability Worker Commission.

Step 7: Update person who raised allegation of misconduct

If the misconduct procedure was conducted because of an allegation made by another person, the reporter must be advised that the allegation has been dealt with in accordance with the ETRA. Where reasonably practicable and appropriate, this may include advising the reporter:

• whether an investigation was conducted
• if the matter was not investigated, why not
• if the matter was investigated, whether a disciplinary outcome was applied.

It may also be appropriate to update any other impacted people.

Depending on the circumstances, this notification may be completed by the Secretary's delegate, the principal/manager or another appropriate person. Principals/managers or the Secretary’s delegate must consult with the Conduct and Integrity Division about who will provide this notification to the reporter and any impacted person, and what can be communicated to them.

Employment ceasing during misconduct procedure

Where a respondent’s employment ceases during the course of a misconduct procedure, the investigation may continue. For example, the investigation may need to continue if the alleged conduct amounts to reportable conduct and/or the investigation is necessary to identify any steps required to manage risks to child safety or the health and safety of remaining employees. Where this occurs, Division 10 of Part 2.4 of the ETRA will no longer apply, as the respondent is no longer an employee of the Teaching Service. At the conclusion of the procedure, consideration may be given to notifying the Victorian Institute of Teaching.

Part 4 – Managing unsatisfactory performance

Overview of the unsatisfactory performance procedure

Established performance and development arrangements provide opportunities for performance assessment and development on a regular basis. Outside the performance and development process, supporting an employee to improve by identifying and discussing concerns, and providing targeted supports to assist them to improve, is a further option available to principals/managers at any time. For more information on utilising less formal procedures to address performance concerns, see Part 2 – Managing conduct or performance concerns through a local resolution procedure.

A repeated failure by an employee to meet the standards expected of them may necessitate the commencement of an unsatisfactory performance procedure by the principal/manager (which must be in consultation with the Conduct and Integrity Division). The purpose of the unsatisfactory performance procedure is to assist the employee to improve their performance to a satisfactory level.

Any unsatisfactory performance procedure must be conducted in accordance with the principles of procedural fairness, including the right of the employee who is the subject of the performance concern to have a representative or support person present at any meetings and be provided wellbeing supports and any reasonable workplace adjustments.

Generally, an unsatisfactory performance procedure is to be completed within a maximum 13 week period. However, it is recognised that circumstances may arise where this timeframe is not achievable.

The unsatisfactory performance procedure only applies to employees of the Teaching Service, not to contractors or volunteers.

What is unsatisfactory performance?

Unsatisfactory performance is the repeated failure of an employee to discharge their duties in the manner expected of the employee at their level in their position. This may be demonstrated by the employee:

• discharging their duties in a negligent, inefficient or incompetent manner
• failing to perform one or more of their duties
• failing to exercise care and diligence in performing their duties
• engaging in unsatisfactory conduct that impacts on the discharge of their duties including, without reasonable excuse:
  • contravening or failing to comply with a lawful direction given to the employee by a person with authority to give the direction
  • being absent from their duties without permission.

The roles and responsibilities and the standards of performance and conduct that are expected of employees in the Teaching Service are set out in a number of documents or instruments including but not limited to:

• Ministerial Orders
• the Victorian Government Schools Agreement 2022
• department policy statements including the applicable Performance and Development Guidelines
• the Victorian Public Sector Code of Conduct
• the Victorian Teaching Profession's Code of Conduct, published by the Victorian Institute of Teaching
• role and responsibilities statements.

When to use an unsatisfactory performance procedure

Principals/managers must contact the Conduct and Integrity Division before commencing an unsatisfactory performance procedure.

Prior to commencing an unsatisfactory performance procedure, the principal/manager must consider:

• whether the employee is within a probationary period (in which case, the Conduct and Integrity Division should be contacted for advice in relation to implementing the probationary procedures)
• the timing and outcome of the employee's most recent Performance Development Plan (PDP) conversation and whether any areas for improvement were identified or if the employee was recently deemed to be performing satisfactorily
• whether the employee has been recently made aware of the standards and expectations required of them, and any areas in which they are failing to meet those expectations
• whether informal attempts have been made to address the performance issues (see examples of informal methods below)
• any organisational or personal factors that may be relevant, such as lack of role clarity, access to training and development, and personal issues such as family violence, health or disability
• the seriousness of the alleged unsatisfactory performance
• the employee's level of experience and seniority.

Informal attempts to address performance concerns, prior to an unsatisfactory performance procedure, may include:

• regular supervision meetings or informal counselling
• provision of a mentor
• classroom observations and feedback
• opportunities to observe high-performing colleagues
• provision of learning and development opportunities.

Performance concerns may also have been identified through a local resolution procedure.

Records of informal methods to support performance improvement should be kept, which may include:

• notes of any performance issues, including details of the specific issue(s), evidence that this was raised with the employee and the date when issues occurred
• comments in the employee’s performance development plan
• emails summarising conversations and feedback provided to the employee regarding performance, with an opportunity for the employee to provide their comments or point of view.

Where an unsatisfactory performance procedure is implemented (Step 1 below), the normal performance development process will not take place and the employee will not be eligible for salary progression, if applicable, provided the employee has been notified by the principal in accordance with the relevant provisions of the VGSA 2022.

If the principal/manager thinks that reallocation of duties could be a potential option to address performance concerns, in lieu of an unsatisfactory performance procedure, they must contact the Conduct and Integrity Division to discuss.

Unsatisfactory performance procedure

Formal management of performance concerns by the principal/manager

Step 1: Commence formal procedure and advise employee

Where a principal/manager considers that an employee’s performance is unsatisfactory, they must advise the employee in writing of the following:

• that the employee’s performance is considered to be unsatisfactory
• the particular areas of unsatisfactory performance
• the required standard of performance
• the consequences of continued failure to meet the required standard (i.e. that the employee’s unsatisfactory performance may be referred to the Secretary's delegate and may ultimately lead to a determination under section 2.4.59F of the ETRA, which may result in dismissal)
• that the employee has 5 working days (or such longer period as the principal/manager considers reasonable in the circumstances) to explain any reasons for the unsatisfactory performance.

This letter would usually be delivered in person. The employee must be offered the opportunity to bring a support person or representative to all meetings during this procedure and offered supports and any workplace adjustments needed.

Step 2: Provide opportunity for employee to respond and consider response

The principal/manager must consider any response provided by the employee and may consider meeting with the employee to discuss the matters raised in the written advice and/or any written response.

After considering the employee’s response, or following a failure by the employee to respond within the specified period, the principal/manager must notify the employee in writing of the next step.

Where the principal/manager considers the employee’s performance to be satisfactory, they will advise the employee in writing that no further action will be taken. A copy of this letter should be placed on the employee’s personnel file.

Where the principal/manager considers the employee’s performance continues to be unsatisfactory, they must advise the employee of this view in writing and that the employee will be provided with an opportunity to improve their performance to the required standard with appropriate support (Step 3: Support period). The employee must also be advised that they may appeal this decision, however an appeal will not delay the continuation of this procedure.

Step 3: Support period

Support is to be provided in an overall context that recognises that individuals are ultimately responsible for their own performance.

Prior to the commencement of the support period, the principal/manager should:

• detail the support that will be provided to assist the employee to improve their performance and how feedback will be provided
• detail how the performance will be monitored
• establish a schedule of meetings to provide the opportunity to discuss progress, receive advice, support and feedback.

The principal/manager should also invite the employee to suggest any additional support that they may find useful. Such support may include:

• establishing a support group comprising high performing colleagues (excluding the principal/manager), who would provide feedback and coaching on relevant areas
• external professional development
• opportunities to observe/shadow effective practitioners (this may occur at neighbouring schools)
• performance counselling
• in relation to teachers, constructive feedback on observations of the employee’s classes, team teaching, scheduled discussions, and additional time release from scheduled duties for planning purposes.

If a support group is established, the principal/manager may choose to provide advice in writing to the support group members to explain their role and reporting requirements. A written copy of this advice is to be provided to the employee. The principal/manager should guide and monitor the work of the group.

During the support period, the employee’s performance will be monitored regularly, which may involve direct observation of the employee at work, with or without notice, review of the employee's records or reports provided by appropriate staff and consideration of student outcomes.

It may be appropriate for the support provided to the employee to be reduced progressively to allow the employee to demonstrate achievement of the required standards in the context of the usual professional support available for employees.

Length of support period

The duration of the support period will depend on the circumstances, but cannot be less than 10 working days and will normally be between 2 and 8 weeks, excluding school vacation periods.

In determining the length of the support period, the principal/manager will need to consider the time reasonably required to improve performance in the identified area(s) and any previous actions taken to support improved performance. If an employee is absent during the support period due to illness or another form of approved leave, the support period would normally be extended.

Records of support provided

The principal/manager must ensure that a written record of the support that is provided to the employee, including meeting records, is maintained and copies provided to the employee in a timely manner. These records will form part of any report to the Secretary's delegate and will be important during any subsequent appeal proceedings.

Step 4: Completion of support period and assessment by principal/manager

At the completion of the support period, the principal/manager must assess the performance of the employee.

Where the principal/manager considers the employee’s performance to be satisfactory, they will advise the employee in writing that no further action will be taken, provided their performance continues to be at or above the required standard.

Where the principal/manager considers the employee’s performance continues to be unsatisfactory, they will advise the employee of this view in writing and that the employee has 5 working days (or such longer period as the principal/manager considers reasonable in the circumstances), to explain any reasons for the continued unsatisfactory performance.

This will generally be done in a meeting, with the offer of a support person or representative and any workplace adjustments needed.

Step 5: Consider employee response and make a decision

After considering any response provided by the employee (or failure to respond within the specified period), the principal/manager will notify the employee in writing that:

• no further action will be taken provided that the employee’s performance continues to be at or above the required standard
• performance continues to be unsatisfactory and a second, final support period will be provided on the basis that the principal/manager considers there to be a realistic opportunity for the employee’s performance to improve to a satisfactory standard during a second period of support (in which case, return to Step 3: Support period) or
• performance continues to be unsatisfactory and a report will be prepared for the Secretary's delegate to consider in making a determination in accordance with section 2.4.59F of the ETRA).

The principal/manager must notify the employee of their decision in writing. This will generally be done in a meeting, with the offer of a support person or representative and any workplace adjustments needed.

Referral of performance concerns to Secretary's delegate under the ETRA

Step 6: Principal/manager to prepare report for the Secretary's delegate and provide opportunity for the employee to respond

If the principal/manager decides to provide a report to the Secretary's delegate, a copy of the report must be given to the employee. This will generally be done in a meeting, with the offer of a support person or representative and any workplace adjustments needed.

The employee must be advised that a written response to the report may be provided directly to the Secretary's delegate within a specified timeframe. An appropriate timeframe is to be determined by the principal/manager in consultation with the Conduct and Integrity Division. Reallocation of duties to the employee should be discussed with the Conduct and Integrity Division.

Step 7: Secretary’s delegate to consider report and employee response and make decision

The Secretary's delegate must consider the report provided by the principal/manager and any response from the employee, and may make any of the following decisions:

• defer a determination on whether or not there has been unsatisfactory performance until they receive a further report in relation to the employee (this may be utilised where the Secretary's delegate considers that a further support period is necessary)
• make a preliminary determination on whether or not the employee’s performance is unsatisfactory
• investigate any or all of the matters in the report under Division 10 (that is, where the allegation(s) indicate that grounds for action under Division 10 may exist), in which case the Secretary's delegate must not proceed with any further action under Division 9A in relation to any of those matters to be investigated under Division 10)
• proceed no further with any of the matters in the report.

If the Secretary's delegate makes a preliminary determination that there has been unsatisfactory performance by the employee, the Secretary's delegate may propose to take any of the following actions against the employee:

• a reprimand
• a reduction in the employee's classification
• termination of the employee's employment.

Step 8: Secretary’s delegate to notify employee of proposed determination

If the Secretary's delegate makes a preliminary determination that there has been unsatisfactory performance, the employee must be advised in writing of:

• the allegation of unsatisfactory performance
• actions that may be taken by under Division 9A
• the action the Secretary's delegate proposes to take.

The employee must also be invited to respond in writing. Any submission in writing by the employee must be received by the Secretary's delegate no later than 14 calendar days after the employee is given notice, or any longer period permitted by the Secretary's delegate. Any application for an extension of time should be made in writing to the Secretary's delegate setting out the reasons for the application.

Where termination of employment or reduction in classification is proposed, the provision of the letter to the employee will be organised with the principal/manager and the Conduct and Integrity Division to ensure that appropriate wellbeing support is provided to the employee.

Step 9: Secretary’s delegate to consider employee response, determine outcome and notify employee

After considering any response provided by the employee, the Secretary's delegate may make a determination that there has been unsatisfactory performance.

The Secretary's delegate must give notice in writing to the employee which:

• advises the employee of the determination made, including any action that the Secretary's delegate has taken
• if action has been taken, advises the employee of their right of appeal to a Disciplinary Appeals Board.

In consultation with the Conduct and Integrity Division, consideration should also be given to whether any notification is required to be made to the Victorian Institute of Teaching of the outcome of any action taken by the Secretary's delegate in respect of the employee.

Resources

Procedures and forms

• Memorandum of Understanding between Department and Victorian Institute of Teaching (Word)
• Complaint Procedures — FAQs (Word)
• Complaint Procedures — FAQs (PDF)