Managing Conduct and Unsatisfactory Performance in the Teaching Service

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 7022 0005
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.