Complaints, Misconduct and Unsatisfactory Performance — Teaching Service

Part 1 – General principles

Introduction

Every day, principals or managers may deal with a range of challenges such as workplace conflict, parent and community member concerns, staff and student grievances, and policy issues. These matters are dealt with in accordance with the needs and requirements of the particular school community or workplace, taking into account Department of Education (the department) policy and best practice. The Guidelines are intended to assist with complaints against employees and unsatisfactory performance and misconduct involving employees. They are not intended to regulate the day-to-day management of ordinary workplace issues and challenges.

The department and the Secretary of the department have a responsibility to ensure that employees and any other persons working with schools (including contractors, office holders and volunteers) maintain high standards of conduct and performance. The department is committed to a high performing workforce and to providing safe and supportive work environments where excellence is pursued, performance 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. It is therefore incumbent on a principal or manager to act where a complaint, unsatisfactory performance or misconduct is brought to his or her attention, whether or not a formal complaint has been lodged.

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 positive, healthy, successful and fulfilling working environment.

The quality of the workforce in schools is directly proportional to the quality of the education provided to students. A culture that promotes high standards of conduct and encourages performance improvement in school education is critical.

The Victorian Government Schools Agreement 2017 (the Agreement) details a process for managing unsatisfactory performance for employees in the teaching service. The unsatisfactory performance procedures in these Guidelines are consistent with the Agreement. They do not apply to casual employees, school council employees or employees subject to probation.

Which process should be used?

In relation to a particular issue or incident, the principal or manager will need to make an assessment as to the appropriate course of action to take as illustrated below:

Allegations of reportable conduct

Irrespective of whether the above process are used, where a matter may involve an allegation of reportable conduct, principals or managers must contact the Employee Conduct Branch as soon as possible.

For more information, refer to the ‘Reportable conduct, sexual assault and criminal offences’ section below.

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 under the Guidelines and if so, whether it should proceed under the Complaints, Misconduct and Unsatisfactory Performance procedures.

The department’s Employee Conduct Branch will provide advice and assistance to principals or managers on the appropriate course of action to take. The Branch can be contacted on 03 7022 0005 or by email at employee.conduct@education.vic.gov.au An employee who is the subject of a complaint, misconduct or unsatisfactory performance process may contact the Employee Conduct Branch who will provide the employee with information regarding the process, but it is not the role of the Branch to provide support and assistance to employees subject to a particular procedure.

The complaints process should be used for dealing with incidents such as those described in Part 2 of the Guidelines. The unsatisfactory performance procedure set out in Part 4 of the Guidelines should be used in relation to unsatisfactory performance. Unsatisfactory performance may ultimately lead to action by the Secretary (the powers to commence an inquiry and take action under Division 10, Part 2.4 of the Act, are vested in the Secretary but in most cases would be exercised by a delegate such as the Regional Director) under the Education and Training Reform Act 2006. The misconduct procedure set out in Part 3 of the Guidelines is to be applied to an employee who is alleged to have engaged in conduct of a serious nature warranting action by the Secretary under the Education and Training Reform Act 2006.

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

The principal or manager is expected to have a note-taker present at all meetings conducted in accordance with the Guidelines.

Reportable conduct, sexual assault and suspected criminal offences

Some matters, such as alleged sexual assault or criminal offences as well as ‘reportable conduct’ allegations, must be notified to the Employee Conduct Branch as soon as possible after the principal or manager becomes aware of them, regardless of whether a principal or manager decides to respond to the matter using the complaints process, unsatisfactory performance process or misconduct process.

What are ‘reportable conduct’ allegations?

The Child Wellbeing and Safety Act 2005 (Vic) imposes obligations on the Secretary of the department (or the officers he or she authorises to act on his or her behalf — in this case, the Manager of the Employee Conduct Branch) to report certain conduct (known as ‘reportable conduct’) to the Commission for Children and Young People (CCYP).

This means principals or managers must notify the Employee Conduct Branch as soon as possible if there is an allegation that a person who is over the age of 18 years and who is an:

• an employee (including Victorian Public Service employees and teaching staff)
• contractor
• volunteer (including parent volunteers)
• allied health practitioner
• school council employee (including early childhood staff)
• officer
• office holder.

has engaged in ‘reportable conduct’ towards a child.

'Reportable conduct' is conduct that leads a principal or manager to form a ‘reasonable belief’ that there has been:

• a sexual offence, sexual misconduct or physical violence committed against, with or in the presence of a child
• behaviour causing significant emotional or psychological harm to a child, or
• significant neglect of a child, or
• misconduct involving any of the above.

‘Reportable conduct’ is broad, and it includes conduct alleged to have occurred outside the course of a person’s employment or engagement whether in the teaching service or the department.

If you are unsure as to whether or not a matter involves reportable conduct, you should contact the Employee Conduct Branch for further advice.

For further guidance on what is ‘reportable conduct’, please refer to the Reportable Conduct Scheme page. For further information on forming a ‘reasonable belief’ in this context, please refer to the PROTECT resource.

Sexual assault and suspected criminal offences

Principals or managers must report suspected criminal conduct, including:

• allegations of sexual assault
• any other criminal offences.

The Employee Conduct Branch should be advised immediately of these allegations and the matter referred to Victoria Police. Further information about responding to allegations of sexual assault or criminal offences is set out in Part 3 – Guidelines for managing misconduct procedures.

Definitions

In these Guidelines, a reference to:

Manager
A manager may include a reference to a Regional Director in respect of unsatisfactory performance, misconduct and complaints against a principal.

Secretary
The Secretary may include a reference to the Secretary’s delegate.

Principal or manager
A principal or manager may also include a reference to an investigator where one has been appointed.

Fairness for all

In the management of complaints, misconduct and unsatisfactory performance matters, the principles of natural justice must be observed as necessary. The Guidelines incorporate these principles and also include the following:

• the right of an employee to know the allegation or allegations being made against him or her
• the right of each party to be heard with respect to the allegations
• the right of each party to be treated fairly
• the right of the employee to have a support person present during meetings (the role of the support person or representative is set out in these Guidelines)
• the right of each party to a decision maker who acts fairly and in good faith.

Consistent with the Fair Work Act 2009 (Cth), these Guidelines have been developed to ensure that the principle of a 'fair go all round' is accorded to all parties. That is, the principles of procedural and substantive fairness underpin any investigation or inquiry into an employee’s performance or conduct.

An inadvertent failure by a principal or manager to apply any of the steps in the Guidelines does not make an action or decision defective, as long as the action, investigation or decision is fair and reasonable overall. The implementation of the Guidelines:

• supports the education and welfare of students ensuring appropriate duty of care is maintained
• reinforces that the department will consider all matters seriously
• ensures that all matters are dealt with in a fair and consistent manner
• highlights occurrences of unacceptable and inappropriate behaviour and the need for preventative strategies in particular areas
• meets the department’s legal obligation to take all ‘reasonable precautions’ to prevent discrimination and sexual harassment
• reduces the risk of the department, the school council or other parties being held vicariously liable for the actions of individuals that contravene anti-discrimination legislation
• prevents the unnecessary escalation of the situation
• ensures the provision of natural justice to all parties, as appropriate, and
• should occur in a timely manner.

Public sector values and employment principles

The public sector values underpin and reflect the behaviours essential to the relationship between the public sector and the Government, the public sector and the community, and between those who work in the public sector. The values apply to all employees in the department. The employment principles provide Victorian public sector employees with a framework for ensuring all employment processes are fair and merit-based.

Public sector values

The Public Administration Act 2004 (Vic) specifies the public sector values to be observed by all Victorian public officials, including employees of the department. The values set out in section 7 for public officials may be summarised as follows. Public officials should demonstrate:

Responsiveness

• Provide frank, impartial and timely advice to the Government
• Provide high quality services to the Victorian community
• Identify and promote best practice

Integrity

• Be honest, open and transparent in their dealings
• Use powers responsibly
• Report improper conduct
• Avoid any real or apparent conflicts of interest
• Strive to earn and sustain a high level of public trust

Impartiality

• Make decisions and provide advice on merit and without bias, caprice, favouritism or self interest
• Act fairly by objectively considering all relevant facts and fair criteria
• Implement government policies and programs equitably

Accountability

• Work to clear objectives in a transparent manner
• Accept responsibility for decisions and actions
• Seek to achieve best use of resources
• Submit to appropriate scrutiny

Respect

• Treat others fairly and objectively
• Ensure freedom from discrimination, harassment and bullying
• Use their views to improve outcomes on an ongoing basis

Leadership

• Demonstrate leadership by actively implementing, promoting and supporting these values

Human Rights

• Make decisions and provide advice consistent with the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic)
• Actively implement, promote and support human rights

The Public Sector Standards Commissioner has issued binding Standards and non-binding Guidelines on:

• Equal Employment Opportunity
• Fair and Reasonable Treatment
• Merit in Employment
• Reasonable Avenues of Redress

These may be obtained from the Victorian Public Sector Commission's Employment principles and standards page.

The Public Sector Standards Commissioner has also issued a Code of Conduct which applies to the public sector. The Code is based on the values set out in the Public Administration Act 2004.

Employment principles

Under section 8 of the Public Administration Act 2004, the Secretary must establish employment processes that ensure that:

• employment decisions are based on merit
• public sector employees are treated fairly and reasonably
• equal employment opportunity is provided
• human rights as set out in the Charter of Human Rights and Responsibilities Act 2006 are upheld
• public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment.

Role of the support person or representative during meetings

An employee who is the subject of a complaint, misconduct or unsatisfactory performance process has the right to have a support person or representative present at meetings with their principal or manager in matters arising under the Guidelines.

It is the principal or manager’s responsibility to advise the employee of the right to a support person or representative.

A support person or representative may be a friend, colleague, relative or union or association representative. The role of the support person or representative is to provide professional and moral support to the employee concerned. He or she also acts as a witness or observer to the process. The role is one of support where meetings are preliminary to the commencement of formal procedures or where relevant information is being gathered to determine if formal procedures are warranted. Where formal procedures are commencing the employee has a right to advocacy.

It is not appropriate for meetings to be unreasonably delayed due to the unavailability of an employee’s support person or representative. If this occurs, the employee should be advised to nominate another person. However, reasonable attempts should be made to identify agreed meeting times.

If the employee chooses not to have a support person or representative the process should still continue. It should be minuted that the employee declined to have a support person or representative present during meetings.

Direct discussions between a principal or manager and an employee during meetings are encouraged and can assist in maintaining a constructive working relationship both during and following the completion of the process.

If the employee chooses not to answer any questions during a meeting, the principal or manager may proceed with the process in the absence of any response from the employee.

During a meeting, if the support person or representative wishes to provide advice in private to the employee, the meeting should be temporarily adjourned to allow this to happen. If unreasonable behaviour disrupts the meeting, consideration should be given to an adjournment.

The support person or representative, as with others present, is expected to treat all matters in a sensitive, respectful and confidential way.

Confidentiality

All persons involved in a complaint, misconduct or unsatisfactory performance process must observe confidentiality, unless otherwise authorised or required to disclose information. Employees are entitled to seek personal and professional support and advice from a union or other professional body or person.

Confidentiality is an important issue in any investigation concerning employees, students or members of the wider school community. Confidentiality assists the investigative process by encouraging witnesses to be forthcoming in their evidence. It reduces the likelihood or opportunity for evidence to become compromised and also reduces the risk of untested or unsubstantiated allegations being circulated outside of the complaint process. Should details of a complaint become widely known, it may be less likely that the complaint will be resolved to the satisfaction of all parties.

However, confidentiality does not mean that the details of a person’s evidence will not be provided to the respondent or a witness for a proper purpose in connection with an investigation. The considered disclosure of critical evidence by the investigator to persons who have a role or contribution to make in the investigation can be an important part of an investigation. Where this occurs, it should be done as discreetly as possible.

The requirement for confidentiality should not impede an employee’s ability to prepare a response to an allegation. As mentioned above, employees are entitled to seek personal and professional support and advice from individuals who have knowledge of the complaint (other than potential witnesses) and the seeking of such support is not considered to be a breach of confidentiality. It is not appropriate for employees to initiate a discussion of the complaint with fellow employees, students and, or the wider school community but an employee is entitled to explain to colleagues in response to questions that he or she is entitled to the presumption of innocence.

The principal or manager must ensure that they observe appropriate confidentiality in relation to the management of any complaint, unsatisfactory performance or misconduct procedure. The principal or manager must advise all witnesses of their obligation to keep details of the investigation confidential and respect the confidentiality rights of the employee or complainant involved. However, in order to conduct a thorough investigation, it may be necessary for the principal or manager to disclose certain information to other persons involved in the investigation or management of the matter.

Proper steps should be taken at every stage of the process to secure documentation. The use of email or facsimiles as part of the process may require particular arrangements to be put in place to ensure confidentiality is not breached.

Witnesses

The employee must not approach witnesses to discuss the details of the complaint or investigation. In no circumstances is the employee to question or interrogate complainants or students in relation to an investigation. However, they may inform a staff member that they have provided their name to the principal or manager for the purposes of being interviewed in relation to the information that the employee may have that is relevant to the investigation. The reason for this protocol is to protect the integrity of the investigation, to ensure that there can be no suggestion of intimidation of any witness and to preserve the welfare of students. A breach of this protocol will be regarded as a serious breach and may lead to action in respect to misconduct.

An employee may nominate to the principal or manager the names of witnesses, including students, who in the employee’s opinion have relevant evidence to give and should be interviewed as part of any investigation. On receipt of these names, the principal or manager will determine which, if any, of these people will be interviewed and will contact them directly. The employee has no right to be present during the interviews with witnesses.

Defamation

Defamation is a specific area of law that deals with the loss of reputation or public standing.

It is generally not defamatory for an individual to make a complaint or raise a concern in good faith through the proper channels. However, the matter should only be discussed with those who have the responsibility for dealing with it. A claim that defamation has occurred may be defended on the basis that the alleged defamatory statement was made without malice and only to a person with a proper duty to receive such a statement.

Allegations may carry the risk of a claim of defamation especially if confidentiality has not been maintained properly.

Protection from victimisation

The department will not tolerate victimisation. Victimisation occurs when a person is subjected to, or threatened with, any detriment for his or her involvement, whatever that may be, in the matter at issue.

Principals or managers need to be aware that victimisation of one or more of the parties involved in a particular matter may occur. Reasonable precautions need to be taken to prevent this from happening. In implementing these processes, the principal or manager should make it clear to the persons involved that victimisation is not tolerated and may be dealt with in accordance with the misconduct procedures.

Victimisation for making a complaint of discrimination, racial or religious vilification or sexual harassment is also unlawful under relevant legislation.

Victimisation should not be confused with the natural consequences of a properly applied process. A person who claims the application of these procedures to victimisation should be counselled about due process.

Complainant protection

Where a complainant has real and substantial concerns that, as a result of raising a complaint, they may suffer a detriment, they may have access to protection under the provisions of the Public Interest Disclosures Act 2012 (Vic) (formerly known as Protected Disclosure Act 2012). The Public Disclosure Act 2012 defines the types of complaints that may be accepted as complaints under the Act.

Report Fraud or Corruption provides further information about making a protected disclosure.

Vexatious complaints

Some complaints may be determined to be vexatious or malicious in nature. Where the principal or manager determines after due consideration that this is the case, the complaint should be dismissed and the complainant counselled about his or her action in lodging a complaint. Making a vexatious or malicious complaint may be an act of misconduct in itself.

Documentation

Documents relating to a complaint, misconduct or unsatisfactory performance should be placed by the principal or manager in a sealed envelope marked ‘Confidential — access limited to principal or manager only’ and filed on the employee’s personnel file. There should not be anything in the envelope or personnel file that would be unknown or of surprise to the employee.

All documents created as part of the processes in the Guidelines should be clearly legible, dated and signed with the author clearly identified.

Employees are entitled to inspect their personnel file at any time. Inspection should occur in the presence of a suitable witness.

Generally only the principal or manager or other authorised persons would access these documents as they may contain information that could be considered to be about the personal affairs of people involved and are subject to strict privacy provisions. Principals or managers are responsible for ensuring that all documents are handled with absolute confidentiality. Where possible, faxes should be sent to a machine that cannot be accessed by other staff members. Principals or managers may also need to ensure the confidentiality of any emails sent or received in relation to a particular matter.

Application may be made under the Freedom of Information Act 1982 (Vic) or Privacy and Data Protection Act 2014 (Vic) for copies of the documents relating to any of the processes outlined in the Guidelines. If this occurs, the department’s Information Management Unit will make a determination as to what documents may be released.

For further information in relation to accessing personnel files in schools, refer to Records Management — Employee Information.

Removal from duty

In some circumstances, it is not appropriate for an employee to continue working in their normal workplace during an investigation. It may be appropriate for an employee to be removed from duty where:

• there is a potential risk to the health and safety of other employees or students
• there is a potential for the employee to interfere with the investigation
• there is a risk that the alleged conduct may continue or be repeated
• the conduct alleged is an act of misconduct and the continuing presence of the employee in the workplace is not consistent with the ongoing employment relationship.

An employee may be reassigned duties or suspended from duty with or without pay. A reassignment of an employee’s duties still enables the employee to work but may remove the employee from working with a complainant or being in a position to tamper with the evidence. A suspension from duties involves the employee being suspended from the workplace and does not enable the employee to continue working.

A person taking the action of reassigning duties or suspending an employee must have the delegated authority to do so and must comply with the law. A reassignment of duties or a suspension taken in connection with a process in these Guidelines must not occur without consultation with the Employee Conduct Branch. The Branch will advise on the correct process to be followed.

Principals or managers must not be seen to prejudge the finding as to whether the allegations are substantiated. Reassignment of duties and suspension from duty are not sanctions and should not be used as a penalty.

The employee’s welfare and reputation are to be considered before a decision to reassign or suspend is made particularly where no findings of wrongdoing have yet been made.

Summary dismissal for serious misconduct

The Secretary may decide to terminate the employment of an employee summarily, which means without notice, or payment in lieu of notice, if the employee has engaged in serious misconduct.

What is serious misconduct?

Serious misconduct is willful 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.

Reasonable belief

Before taking action, the Secretary must have a reasonable belief that serious misconduct has occurred.

'Reasonable belief' in this context has a high threshold and must be founded on clear and credible evidence. The Secretary may decide that an investigation is necessary to determine whether or not serious misconduct has occurred. However, the Secretary can form a reasonable belief without further investigation if sufficient evidence of the serious misconduct is available.

Secretary must act fairly and reasonably

In deciding whether or not to summarily dismiss an employee, the Secretary must:

• comply with these Guidelines and all applicable laws, including the Charter of Human Rights and Responsibilities Act 2006 and the Equal Opportunity Act 2010
• be satisfied that the available evidence and facts clearly support any finding or decision made
• weigh the seriousness of the allegation against the strength of the evidence
• consider relevant information and circumstances and disregard irrelevant information and circumstances
• consider the consequences of the decision or finding for the employee
• comply with the principles of natural justice, which require that the employee be provided with sufficient details of the allegations on which the decision will be based to enable a response, a reasonable opportunity to provide a response, an impartial decision maker.