Complaints, Misconduct and Unsatisfactory Performance — Teaching Service

Part 2 – Guidelines for managing complaints against employees

Introduction

A positive working environment is an integral component of a healthy, successful and fulfilling working environment. Every day principals or managers may deal with a range of challenges including workplace conflict, general parent and community member concerns, staff and student grievances and policy issues. These matters should be handled in accordance with the needs and requirements of the particular school community and workplace, taking into account department policy and best practice. The complaints processes are not intended to regulate the day-to-day management of ordinary workplace issues and challenges. Rather, they are to be used for dealing with complaints against employees or conduct which has come to the attention of the principal or manager which ought to be dealt with as a complaint. Complaints against an employee may arise from:

• unprofessional conduct and, or unsatisfactory performance
• allegations of aggressive, demeaning or uncooperative behaviour
• a particular incident
• allegations of unlawful discrimination (for example, discrimination on the grounds of a protected attribute such as race, religious belief, disability, sexual orientation, gender or family responsibilities) or racial or religious vilification
• allegations of unlawful harassment, including sexual harassment
• allegations of bullying, as defined by the Victorian WorkCover Authority
• ‘reportable conduct’ allegations, which are allegations of inappropriate conduct towards a child, including 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
• decisions made, or not made, by the principal or manager that a complainant believes are unfair, unreasonable or inappropriate.

The principal or manager must ensure that a complaint is dealt with in a way that is both procedurally and substantively fair. It is important that all steps in the complaints process are documented.

The principal or manager can provide advice regarding the process for making a complaint.

Complaints resolution process

The complaints resolution process provides a framework for the resolution of complaints against employees. Complaints against employees should be dealt with promptly using a complaints resolution procedure as outlined below:

The complaints resolution process encompasses both informal and formal action.

Upon receiving a complaint, the principal or manager will assess the nature of the complaint and form a view regarding the appropriate course of action. In exceptional circumstances it is open to a principal or manager to decline to accept a complaint, where he or she is satisfied the complaint is clearly without merit, vexatious or malicious. In such a case, the principal or manager should give the complainant his or her reasons in writing.

The principal or manager will need to make an assessment in each case, about whether the concern or complaint requires the use of a formal process, or whether informal resolution is appropriate. If the matter involves allegations of misconduct or sexual harassment, the principal or manager must contact the Employee Conduct Branch for advice.

Many concerns expressed to the principal or manager by parents, students, employees or members of the community are most appropriately dealt with at an informal level.

Informal action

The principal or manager may decide to respond to a complaint through informal action where:

• a complaint is of a minor nature
• the complainant wishes the matter dealt with informally and the principal or manager considers this appropriate in the circumstances
• a complaint has arisen from lack of or unclear communication.

Informal action may involve talking to one or more of the parties. The complainant may wish to deal with the situation him or herself but may seek advice as to possible strategies to resolve the matter. The complainant may ask the principal or manager, or another person, to speak to the employee on his or her behalf. The principal or manager, or other person, may then privately convey the complainant’s concerns, listen to the response of the employee and respond accordingly. Informal action emphasises resolution rather than determining the substance of a complaint and may include conciliation.

Documentation associated with informal action could be a diary entry and, or retention of a copy of any response provided to the complainant. However, documentation should be sufficiently detailed to provide a record of the action taken in the management of the complaint. Providing a written response to the complainant outlining the action taken is advisable. At any point where the principal or manager considers it appropriate, formal action may be commenced, particularly where informal action has been unsuccessful or new information is received.

Conflict resolution

The department’s Conflict Resolution Support Service is available to assist all employees in addressing workplace conflict. This service can provide the following:

• mediation
• case conferencing and facilitated meetings
• conflict coaching
• team conflict intervention
• prior to determining whether to commence a formal complaint process, and where the parties agree to participate, the principal or manager may choose to use one of the Conflict Resolution Support Services such as mediation, where the nature of the complaint lends itself to being resolved by informal means.

Mediation

In some matters mediation may assist the parties to resolve the complaint, unless the conduct complained of concerns inappropriate conduct such as sexual harassment. It is important not to expose the complainant to a repeat of the alleged behaviour. The principal or manager must ensure that the conduct of a participant in mediation is appropriate and professional at all times. It is important that all parties understand that mediation is not mandatory and there will be no adverse consequences as a result of non-participation.

Any party involved in the mediation process may include another person for support and assistance. No party to the mediation process may be represented by another person acting for fee or reward. Where any of those involved may be disadvantaged, for example, due to disability or impairment or non-English speaking background, reasonable steps should be taken to mitigate the disadvantage including reasonable accommodation and access to interpreters. The following principles apply to any mediation process:

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

Through mediation a resolution may be achieved which is mutually acceptable to the parties, for example:

• acknowledging each other’s perspective and developing agreed strategies for managing differences
• offering an apology
• giving an undertaking that inappropriate behaviour will be changed
• clarifying expectations of appropriate conduct
• counselling (refer below).

To request the assistance of a trained facilitator and, or mediator principals and managers should call the service provider, Converge International incorporating ResolutionsRTK on 1300 687 633 or email mediation@resolutionsrtk.com.au

Employee Assistance Program

The Employee Assistance Program (EAP) is a free, short term, solution focused and strictly confidential counselling service of up to 4 sessions. EAP is for department employees to discuss any personal or work related issues such as anxiety and stress, conflict and communication, or performance issues. This program also provides a dedicated Manager Assist telephone advisory service to support principals and managers in leadership positions to access management support and coaching. EAP may be contacted on 1300 361 008.

Procedures where allegations of sexual harassment are made

Allegations of sexual harassment must be treated seriously and in most cases formal action is necessary. In certain limited circumstances, allegations of sexual harassment may be handled informally, for example:

• where the complainant asks the principal or manager, or other person to speak to the respondent on their behalf. This person should privately convey the complainant’s concerns and reiterate the objectives of the department’s Sexual Harassment — Employees Policy to the respondent without assessing the merits of the case (and without establishing if the complaint has substance)
• where the complainant wants to deal with the matter him or herself but seeks advice on possible strategies to resolve the matter (that is, from the principal or manager, sexual harassment contact or other person). In this situation, the complainant should be advised that the principal or manager has an obligation to the whole workplace and may be required to take action regardless of the complainant’s wishes.

Where a complainant wishes to handle the matter him or herself, and the principal or manager considers this appropriate, this does not absolve the principal or manager of their obligation to act. This obligation exists regardless of whether the procedure implemented is formal or informal.

It is imperative that principals and managers act as soon as they are alerted to the possibility that sexual harassment may be occurring in the workplace.

Sexual harassment can have serious ramifications for the whole of the workplace, not just for the harassed person. The employer has a duty of care to provide a safe workplace and must take responsibility for the work environment and culture.

Further action available to principal or manager

With regard to complaints of sexual harassment, whether or not the complainant wishes to deal with the matter himself or herself and the principal or manager considers this appropriate, the obligation on the employer to act in these circumstances may require the principal or manager to:

• reiterate to the whole workplace that sexual harassment is unacceptable and will not be tolerated
• promote the department’s Sexual Harassment — Employees Policy and the avenues for seeking advice and making complaints
• monitor the whole workplace to ensure that acceptable standards of conduct are maintained in the workplace
• ensure compliance as far as practicable with the items listed in the Responsibilities chapter of the Sexual Harassment Policy
• ensure that the alleged harasser is aware of and understands the Sexual Harassment Policy (this may involve speaking directly to the respondent about the allegations)
• take any other appropriate action.

It is advisable to provide the complainant(s) with a written response outlining the action taken and the outcome. Documentation regarding the sexual harassment complaints should be sufficiently detailed to provide a record of the action taken in the management of the complaint. Where informal action is inappropriate, or unsuccessful, the principal or manager will consider implementing formal action (as below) or commencing a misconduct inquiry or unsatisfactory performance procedure.

Formal action

Some matters raised directly with the principal or manager or otherwise brought to the principal’s attention may warrant the use of formal action. The Employee Conduct Branch may be contacted for advice and support in the implementation of any formal action.

Formal action comprises:

1. investigating the complaint
2. making a finding
3. determining appropriate action

1. Investigating the complaint

Commencement of a formal complaints resolution process requires the principal or manager to investigate the complaint to determine whether or not it has substance. An investigation may involve:

• establishing the precise nature of the complaint. This may involve making a written record of the verbal complaint, interviewing the complainant and requesting that the complaint be put in writing (where this has not already occurred). The failure of a complainant to put the complaint in writing does not mean the complaint should not be investigated. Where the complainant advises the principal or manager they wish to remain anonymous, the principal or manager needs to establish why the complainant does not want their identity disclosed. In this respect, the principal or manager will need to manage the concerns of the complainant. In most cases, it is not possible for the complainant to remain anonymous due to the right of the respondent to natural justice and to know the allegation(s) being made against him or her. Whilst the complainant’s wishes should be taken into account, they do not determine whether or how the complaint should be investigated. That is the responsibility of the principal or manager
• where a complaint has been received in writing, the principal or manager should acknowledge receipt of the complaint in writing
• providing the employee with the details of the complaint in writing and an opportunity to respond in writing. It is preferable that the written details of the complaint be provided to the respondent in person. The letter of complaint should include information regarding who made the complaint and when it was received, the specific allegations, and advice to the employee regarding confidentiality
• providing the employee with an indicative timeline for the investigation. Where this timeline needs to be varied, the principal or manager should advise the employee
• considering other relevant matters to assist in clarifying the complaint. This may involve examining personnel records and other documentation, requesting a written statement from any witnesses or other persons and where necessary, interviewing those people
• keeping written accounts of all interviews
• providing the opportunity for the respondent to have a support person or representative present during all meetings as part of this process (the role of the support person or representative is defined in Part 1 of these Guidelines)
• if the principal or manager considers it appropriate in the circumstances, providing the opportunity for the employee to meet with the principal or manager in person to clarify matters in the response
• in some circumstances, the principal or manager may decide it is appropriate to provide evidence obtained in the investigation to the complainant and seek a further submission from them. This may be appropriate where the evidence contradicts their original claims and where the relative merits of the competing claims are not readily discernible, or otherwise in the interests of natural justice.

Note: Where an employee is invited to provide a written statement but does not do so, or chooses not to meet with the principal or manager, this does not prevent the investigation of the complaint proceeding. Employees should be informed of the implications of not providing a response, for example that the matter will progress without their version of events, as set out in a written response, being considered.

Note: The principal or manager should give consideration to whether a student’s parent or carer(s) needs to be advised of any interview conducted as part of an investigation into an employee’s conduct or performance.

2. Making a finding

Following the investigation, the principal or manager should determine whether the complaint has substance and make a decision about what action, if any, should be taken. In addition to the information listed in step 1, this assessment should take into consideration:

• whether the weight and reliability of the evidence demonstrates that the complaint has or has not been substantiated
• the circumstances and context of the complaint
• whether evidence was presented by the parties and witnesses in a credible and consistent manner
• the absence of evidence where it should logically exist.

The investigation must be sufficiently thorough to allow the principal or manager to arrive at a reasonable state of satisfaction that, on the balance of probabilities, the complaint is or is not substantiated. It may not therefore be necessary to interview every witness to an incident to make a finding about the relevant facts.

Where the evidence appears to demonstrate that the allegations have no substance, the principal or manager may consider providing the complainant with the preliminary findings and seeking a further submission from them. The general principles of natural justice should guide the principal or manager in determining whether this step is warranted in all the circumstances.

The standard of proof is a civil standard of the balance of probabilities — that, on the balance of probabilities, it is more likely than not, that the alleged conduct occurred. The principal, as the investigator, does not have to be satisfied beyond reasonable doubt (which is the criminal burden of proof).

Where there are no independent witnesses to provide evidence, the principal or manager may make a decision based on the credibility of the parties involved. Each case should be assessed on its own particular circumstances. ‘Hearsay’ evidence (that is, evidence provided by a person who did not witness the event or matter in question) may be taken into account, but may be given less weight.

3. Determining appropriate action

Following the investigation, the options available to the principal or manager are to find the complaint substantiated or not substantiated.

Complaint not substantiated

The principal or manager may determine that a complaint is not substantiated and dismiss it. In this case the principal or manager should identify why the complaint is not substantiated and clarify any misunderstandings and deal with any issues. This may involve:

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

Complaint substantiated

Where the principal or manager determines that a complaint does have substance, the principal or manager is to determine the appropriate course of action. In determining appropriate action, the principal or manager may consider one or more of the following:

• the recommendation of suitable counselling, whether personal or performance-based counselling
• undertakings that inappropriate behaviour will cease
• clarification of expectations of appropriate conduct
• setting up a support group
• issuing a warning in relation to the consequences of continued behaviour, and placing a copy on the employee’s personnel file, along with other documentation
• implementing a formal period of monitoring
• provision of a mentor
• referral to professional development
• completing the department’s online Workplace Discrimination Training Course, if this has not already occurred (or re-doing the course if appropriate)
• referring the employee to the department’s Employee Assistance Program
• implementing unsatisfactory performance procedures
• implementing the misconduct procedures
• other appropriate action.

Where the investigation of the complaint identifies issues in relation to the employee’s work performance, the principal or manager may consider managing these through the performance and development process or, in more serious cases, implementing unsatisfactory performance procedures in accordance with these Guidelines. Similarly, if the conduct amounts to misconduct, consideration should be given to implementing the misconduct procedures.

A written response outlining the decision and the reasons for it should be provided to the employee. A written response should also be provided to the complainant informing them of the conclusion of the process. Where appropriate, and taking into account privacy considerations, the response should broadly outline the key findings. In some situations, it may not be appropriate to inform the complainant about specific details of the action taken against the employee for reasons of sensitivity or confidentiality.

Document management

As soon as possible after making and acting on a decision, the principal or manager should attach a copy of all documentation related to the complaints process to the employee’s personnel file (refer to Part 1 of these Guidelines for further information).

Personal grievance or review of action

In accordance with the relevant Ministerial Order, persons employed under Part 2.4 (teaching service employees) or Part 2.3 (school council employees) of the Education and Training Reform Act 2006 have the right to lodge a personal grievance with the Merit Protection Boards in respect of an action taken within a work location that directly affects an employee. This includes the outcome of a local complaints process. A personal grievance may be lodged by any employee who believes that their rights or legitimate interests have been affected by the outcome of a complaints process, this includes complainants as well as respondents to a process.

Further information in relation to personal grievances is available on Grievances — Teaching Service.

Complainants who believe that a complaints process has been improperly managed or has resulted in a manifestly unreasonable outcome may put their concerns in writing to the Regional Director who has direct authority over the principal who made the relevant decision.