Managing Conduct and Unsatisfactory Performance in the Teaching Service

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

Overview of local resolution procedure

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

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

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

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

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

When to use a local resolution procedure

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

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

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

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

Informal resolution processes

Restorative or resolution focused processes:

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

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

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

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

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

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

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

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

Raising the concerns verbally with the respondent

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

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

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

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

Mediation

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

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

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

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

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

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

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

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

The following principles apply to any mediation process:

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

Conflict Resolution Support Service

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

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

The services offered include:

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

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

Manager Assist

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

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

Formal resolution process

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

Benefits of a formal, written process include:

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

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

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

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

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

Step 1: Establish nature of complaint or concern

Establishing the nature of the complaint or concern may involve:

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

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

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

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

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

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

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

Step 3: Consider response

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

Step 4: Conduct further investigation

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

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

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

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

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

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

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

Step 6: Make findings and determine outcome

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

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

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

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

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

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

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

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

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

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