Employment Limitation

Policy

This policy provides guidelines for schools on employment limitations.

Summary

• An employment limitation is a limitation on a person’s eligibility for employment or engagement with the department. This limitation includes work as a casual employee via a casual relief agency.
• An employment limitation may be applied when a concern arises about a person’s conduct, performance and/or suitability to be employed in a Victorian government school, Early Learning Victoria (ELV) centre or in another department workplace.
• As part of pre-employment screening and suitability checks, if a former employee has an employment limitation in place, this will be flagged through the payroll system if any government school tries to re-employ them in the future.
• Principals, managers, nominated supervisors and school councils (via the principal as executive officer) must use eduPay to check for employment limitations for any new employees.

Details

The Department of Education (the department) has an obligation to support the maintenance of proper standards of performance and conduct for employees of the department, and to protect and provide for the welfare and safety of students, children and other employees. In this context, from time-to-time persons are considered unsuitable for employment with the department and may have an employment limitation imposed.

The process of imposing an employment limitation aims to balance fair and reasonable treatment of former employees and/or job applicants with the department’s fundamental responsibility to protect the welfare and safety of students, children and other employees and to comply with its legal obligations.

These guidelines set out the department’s policy on employment limitations. The guidelines explain what an employment limitation is, the legal basis to impose a limitation, circumstances when a limitation may be applied and review mechanisms where a person seeks to have a limitation removed.

In these guidelines a reference to the department includes a reference to a school council established under Part 2.3 of the Education and Training Reform Act 2006 (Vic) (ETR Act) and a reference to an employee includes a reference to a person employed under Part 2.3 or Part 2.4 and Chapter 2A of the ETR Act or section 20 of the Public Administration Act 2004 (Vic) (the PA Act).

Related policies

• Child Safe Standards
• Code of Conduct
• Fitness for Duty
• Managing Conduct and Unsatisfactory Performance in the Teaching Service
• Protecting Children – Reporting and Other Legal Obligations
• Recruitment in Schools
• Suitability for Employment Checks

Relevant legislation

• Child Wellbeing and Safety Act 2005 (Vic)
• Education and Training Reform Act 2006 (Vic)
• Freedom of Information Act 1982 (Cth)
• Independent Broad-based Anti-corruption Commission Act 2011
• Ministerial Order 1388 (for teaching service) (PDF)
• Ministerial Order 1389 (for school council employees) (PDF)
• Ministerial Order 1454 (for ELV centres) (PDF)
• Public Administration Act 2004 (Vic)
• Public Interest Disclosure Act 2012 (Vic)

Guidance

This policy contains the following chapters:

• Employment limitation defined
• Authority to impose employment limitations
• Pre-employment check
• Employment limitations and VIT registration
• Employment limitations and Working with Children Check clearance
• Application of an employment limitation
• Notification of an employment limitation
• Reviews of an employment limitation

Employment limitation defined

An employment limitation is a limitation on a person’s eligibility for employment or engagement with the department, or a school council. An employment limitation may be applied when a question or concern arises about a person’s conduct, performance and/or suitability to be employed in a Victorian government school, Early Learning Victoria (ELV) centre or in another department workplace.

The imposition of an employment limitation is a process internal to the department and relates to a person’s:

• suitability to be an employee of the department or a school council
• suitability for engagement by the department or school council via a casual relief agency
• performance of work in a school, ELV centre or the department.

In practical terms, when an employment limitation is put in place, a notation is made on the person’s departmental Human Resources record (HR record). This alerts authorised users of the department’s payroll to the fact that there may be concerns with the person’s employment or engagement via a casual relief agency and directs them to contact the Conduct and Integrity Division for advice.

Once applied, the employment limitation has immediate effect.

An employment limitation may:

• preclude a person from any further work or engagement with the department
• limit the terms under which a person is to be employed or engaged (for example, a teacher may be restricted to fixed term periods of employment or to casual relief teaching).

Authority to apply employment limitations

• Under section 20(1) of the Public Administration Act 2004 (Vic) (the PA Act), the Secretary, as the employer of employees within the department, has all the rights, powers, authorities and duties of an employer and as such may decide who should be employed by the department, including current and former employees, and can delegate this power (subject to any relevant legal requirements and principles, for example, those contained in state or federal anti-discrimination legislation).
• The Secretary’s general employment powers and duties are codified in the PA Act, Part 2.4 and Chapter 2A of the Education and Training Reform Act 2006 (Vic) (ETR Act) and Ministerial Orders made under the ETR Act.
• Similarly, a school council has a power to employ staff in accordance with section 2.3.8 of the ETR Act.

School based employees

• Employees of the Teaching Service (principal, teacher and education support class) are employed under Part 2.4 of the ETR Act. School councils are discrete entities and can employ employees under Part 2.3 of the ETR Act. Typically, school councils may employ casual relief teachers, teacher aides, grounds maintenance staff, gardeners and cleaners.
• The ETR Act enables the Minister for Education to make Ministerial Orders to give effect to the ETR Act, including any matters relating to employment in the teaching service or by school councils. Ministerial Order 1388 (PDF) contains the current provisions dealing with employment in the Teaching Service and Ministerial Order 1389 (PDF) contains the current provisions dealing with employment by school councils.
• Clauses 3.1.5 of both orders provide that the Secretary may determine that a person’s eligibility for employment is subject to an employment limitation. The clauses also provide for the Secretary to establish criteria and procedures for imposing an employment limitation on a person, including the grounds for a review of an employment limitation.
• This policy constitutes the criteria and procedures for imposing an employment limitation on a person referred to in the relevant order, as well as the grounds and procedures for a review of an employment limitation.

Victorian Public Service (VPS) employees

• VPS employees are employed under section 20 of the PA Act. They include employees within the Allied Health Adaptive structure of the VPS, school nurses (including in the Maternal and Child Health Information Line) and VPS employees in central and regional offices.

Early Learning Victoria employees

• ELV employees are employed under section 2A.1.4(1) of the ETR Act. Ministerial Order 1454 (PDF) contains current provisions dealing with employment in ELV centres.

Pre-employment check

As part of pre-employment screening and suitability checks, principals, managers, nominated supervisors and school councils must ensure that a person’s HR record is checked on the department’s payroll to ensure that no employment limitation has been applied.

The HR record should be checked even where the person is to be employed on the local payroll of a school or engaged by the school council.

This is to ensure that former employees, or persons who have otherwise worked for the department previously or in non-government schools, and who were the subject of significant conduct or performance concerns which resulted in the imposition of an employment limitation, are not re-employed by the department, ELV centres or government schools.

As part of suitability screening processes, it is also a requirement of agencies that provide casual employees to schools and ELV centres to check with the Conduct and Integrity Division (CID) whether there are any limitations on placing a person in a government school or ELV centre as a casual employee or educator.

Employment limitations and VIT registration

The application of an employment limitation is a process internal to the department, and relates to a person’s conduct, performance and/or suitability to be an employee of, or to otherwise be engaged by, the department.

The question of a teacher’s suitability to be registered to teach in Victorian schools is legally a separate question. The Victorian Institute of Teaching (VIT), an independent statutory body established by Part 2.6 of the Education and Training Reform Act 2006 (Vic) (ETR Act), is responsible for the registration of teachers in government and non-government schools and ELV centres in Victoria.

Under section 2.6.30 of the ETR Act, the department (as an employer) is required to notify VIT if it has taken any action against a teacher in response to any allegations of serious incompetence, serious misconduct, unfitness to be a registered teacher, detrimental effect to the ability to practice as a teacher or that may be relevant to the teacher’s fitness to teach. Under section 2.6.21B of the ETR Act, the department may also advise VIT of information that is necessary for the purpose of regulating and registering teachers and early childhood teachers, screening persons who work or intend to work with children, or necessary to promote the safety and wellbeing of a child or children.

The fact that an employment limitation has been imposed by the department does not necessarily mean that a teacher’s registration to teach will be affected.

If VIT does not take further action following the notification by the department, the employment limitation is not automatically removed and is not automatically invalidated.

The department reserves the right to maintain an employment limitation on a teacher who VIT has permitted to retain their teacher registration.

Employment limitations and Working with Children Check clearance

A person who has a valid Working with Children Check (WWCC) may nonetheless have an employment limitation applied, at the department’s discretion. Similarly, an employment limitation does not affect a person’s WWCC.

Types of employment limitations

There are 2 different types of employment limitations:

1. an interim employment limitation
2. an ongoing employment limitation.

An interim employment limitation is temporary in nature, and may be imposed while an investigation is being undertaken. Interim employment limitations will be reviewed at least quarterly by the delegate, to determine whether the limitation is still required.

An ongoing employment limitation is put in place following substantiated misconduct allegations or in other specified circumstances where the department wishes to limit a person’s eligibility for employment.

Application of an employment limitation

Initial decisions regarding the imposition of employment limitations are made by the Executive Director, Conduct and Integrity Division (CID), or the directors within CID (CID executives) at their discretion. The terms of any employment limitation will be proportionate to the conduct which is the subject of the allegation, investigation, finding or child safety risk.

A non-exhaustive list of situations in which an ongoing employment limitation may be applied are set out below.

1. Following a misconduct or unsatisfactory performance disciplinary process

Where an investigation carried out in accordance with the relevant guidelines for managing Complaints, Misconduct and Unsatisfactory Performance has found a complaint or an allegation of misconduct or unsatisfactory performance to have been substantiated and/or the person’s employment with the department has come to an end. For more information, refer to:

• the department’s Managing Conduct and Unsatisfactory Performance in the Teaching Service policy
• Guidelines for Managing Complaints, Misconduct and Unsatisfactory Performance in the VPS (PDF)
• Managing Conduct and Unsatisfactory Performance in Early Learning Victoria centres (coming soon).

2. Expiry of a period of fixed term employment or probationary period during the course of an investigation

When a person’s period of fixed-term employment or probationary period with the department expires during the course of an investigation into alleged misconduct or unsatisfactory performance, and there remain unresolved issues with that person’s conduct or performance, an employment limitation may be applied.

In making the decision as to whether an employment limitation will be applied or maintained in these circumstances, the following factors will be considered:

• the circumstances and context of the issue of concern
• any response to the allegations provided by the former employee
• the credibility of the evidence obtained or provided.

3. Resignation during the course of an investigation

If an employee resigns during the course of an investigation and where, due to the timing of their resignation, there are unresolved issues about their performance or conduct, an employment limitation may be applied.

This is to ensure that a person cannot circumvent a disciplinary or complaints process by resigning in order to avoid an adverse finding and later be re-employed without proper consideration of the circumstances of the resignation.

In making the decision as to whether an employment limitation will be applied or maintained in these circumstances, the following factors will be considered:

• the circumstances and context of the issue of concern
• any response to the allegations provided by the former employee
• the credibility of the evidence obtained or provided.

4. Conduct by a person who is not a current employee, which would warrant commencement of an investigation if they were a current employee

An employment limitation may be imposed if the department becomes aware of allegations or findings that a non-employee has engaged in conduct that, if they were employed, would constitute a ground for an investigation into:

1. improper conduct (as defined in the Public Interest Disclosure Act 2012 (Vic))
2. corrupt conduct (as defined in the Independent Broad-based Anti-corruption Commission Act 2011 (Vic))
3. reportable conduct under the Child Wellbeing and Safety Act 2005 (Vic)
4. other child safety allegations that would make them unsuitable for employment.

5. Application of an employment limitation on medical grounds

If an employee:

• of the teaching service resigns or retires following a period of long-term sick leave, or their employment is terminated due to physical or mental incapacity pursuant to Part 2.4 Division 8 of the ETR Act, an employment limitation may be applied
• of ELV resigns or retires following a period of long-term sick leave an employment limitation may be imposed.

These are not disciplinary measures but are to ensure that medical evidence is obtained to confirm that the person is fit for duty before they are re-employed.

In these circumstances, clauses 6.2.10 of Ministerial Order 1388 (PDF) and Ministerial Order 1389 (PDF) will apply for the teaching service and clause 5.2.9 of Ministerial Order 1454 (PDF) for ELV, and the person seeking re-employment will not be permitted to return to duty until a medical practitioner, approved by the Secretary, has certified that he or she is fit to resume work. The person seeking re-employment will be responsible for the cost of the medical examination.

A non-exhaustive list of some situations in which an interim employment limitation may be applied are:

1. Allegations of reportable conduct have been notified by the department to the Commission for Children and Young People and an investigation is underway or due to commence.

   In this situation, allegations have been made but they have not yet been substantiated. An interim limitation is reasonably required to prevent the relevant person working with children whilst the child safety allegations are being investigated.

2. Child safety or other serious allegations have been raised and further information is being sought to determine whether an investigation is required.

   An interim limitation is reasonably required to prevent the relevant person working with children whilst further information is gathered and/or whilst the allegations are investigated.

Notification of an employment limitation

Once the decision has been made to apply an employment limitation, the person subject to the limitation will be notified in writing. The notification will be made via email (if known) and/or via letter sent to the person’s last known address. The notification will:

• advise the person that an employment limitation has been applied
• outline the terms and conditions of the employment limitation, including the type of employment limitation applied
• advise the person of the basis upon which it has been decided to apply an employment limitation
• advise the person of referral of the matter to the VIT (for teachers and early childhood teachers)
• advise the person how to seek a review of the employment limitation.

Reviews of an employment limitation

An interim employment limitation is subject to review at least quarterly by the Conduct and Integrity (CID) executives. At each review, the reviewers will consider whether the limitation is still required to manage the risk for which it was put in place.

A person subject to an interim employment limitation can write to the Child Safety Compliance and Operations, Conduct and Integrity Division team at csco@education.vic.gov.au to request that the limitation be varied or lifted.

Decisions regarding the removal or variation of an interim employment limitation are made by CID executives. An interim employment limitation can be removed at any time by the CID executives.

In some circumstances an interim employment limitation may be replaced with an ongoing employment limitation, for example, if allegations are substantiated at the conclusion of an investigation.

If a decision is made to remove an interim employment limitation, or to replace it with an ongoing employment limitation, the affected person will be notified via email (if known) and/or via letter to their last known address.

Process for review of employment limitation

Internal review

Decisions regarding the removal or variation of an employment limitation are made by the department’s Deputy Secretary, Schools and Regional Services, Deputy Secretary, Early Childhood Education or the Executive Director, Schools Human Resources Division.

A review may be initiated by an application from a person subject to an employment limitation, or may be initiated at the discretion of the Executive Director, CID.

A person subject to an ongoing employment limitation can apply for a review of the limitation by writing to the department’s CID at csco@education.vic.gov.au. The application for review of the limitation should be supported by the provision of the names and contact details (phone and email addresses) of at least 3 referees. If the applicant is seeking school-based or Early Learning Victoria (ELV) centre engagement or employment, one of the referees should be a school principal or nominated supervisor if possible.

Referees may include employers in the non-government school sector, persons who have employed the applicant on a voluntary basis, or anyone who can comment on a position of responsibility held by and/or performance engaged in by the applicant.

Referees will be contacted by the department and requested to provide a confidential reference in relation to the person’s professional performance and conduct.

Copies of the confidential references will not be made available to the applicant. However, they may be requested under the Freedom of Information Act 1982 (Cth) or court order.

The applicant may also submit a statement and/or written submissions on their own behalf. The applicant should not collect or provide professional references and the department may not consider such references.

The fundamental issue that will be considered by the reviewer is whether the applicant can demonstrate that the conduct that led to the application of the employment limitation is no longer of concern or that the applicant can now demonstrate competent performance or is now medically fit for duty.

The reviewer will consider the nature and seriousness of the conduct or performance that led to the imposition of the employment limitation, the length of time since the limitation was imposed, and any other relevant issues/information (including that provided by the applicant and/or their referees).

Once the information has been reviewed and considered by the department, the applicant will be notified in writing of the outcome of the review.

There are 3 possible outcomes of the internal review:

1. removal of the employment limitation
2. variation of the employment limitation. For example, a teacher previously subject to a full employment limitation may be permitted to undertake casual relief teaching or fixed term employment
3. maintenance of the employment limitation.

If the decision is not the outcome sought by the applicant, the applicant will be advised of the process for further review. If the employment limitation is maintained or varied, the applicant may request a further internal review at a later date. When determining whether to undertake a further review, a relevant decision maker within the department will assess:

• whether a reasonable period of time has passed
• whether and when any previous applications for review have been made
• whether the applicant has any new relevant information

External review

External review procedures in Part 5 of Ministerial Order 1388 (PDF) (for teaching service) and Ministerial Order 1389 (PDF) (for school council employees) provide that an employee, other than a casual employee, may lodge an application for a personal grievance in writing with the senior chairperson of the Merit Protection Board (MPB).

Information about review procedures for Victorian Public Service (VPS) employees can be found in the Review of Action Guide – Public Service (staff login required) and for ELV employees can be found in the Review of Action – Personal Grievance for ELV on the department’s intranet.

In accordance with Part 5 of Ministerial Orders 1388 and 1389, the only ground for review of an employment limitation internal review decision is that there was a significant deficiency in the process.

Resources

• Guidelines for Managing Conduct and Unsatisfactory Performance in the Teaching Service