Complaints, Misconduct and Unsatisfactory Performance — Teaching Service

Part 3 – Guidelines for managing misconduct in the Teaching Service under Division 10 of Part 2.4 of the Education and Training Reform Act 2006

Introduction

Some, but not all, allegations of misconduct will first be handled by the principal or manager at the local level in accordance with the complaints processes in the Guidelines. It is not intended that the misconduct process be used for complaints of a minor nature.

Where the principal or manager has formed a view that there may be grounds for action under Division 10 of Part 2.4 of the Education and Training Reform Act 2006, the Employee Conduct Branch will, in accordance with the misconduct processes, advise on the next steps.

The principal or manager must ensure that persons affected by the alleged misconduct are provided with appropriate support, such as referring them to the department’s Employee Assistance Program for counselling.

Grounds for action under Division 10 of Part 2.4

Division 10 of Part 2.4 of the Education and Training Reform Act 2006 is entitled 'Misconduct'. Misconduct is one of several grounds upon which the Secretary, after investigation, may take action against an employee under this Division. In many instances, the conduct that constitutes a breach of one of these grounds will also constitute misconduct.

The Secretary, after investigation, may take action under section 2.4.60(1) of Division 10 of the Education and Training Reform Act 2006 against an employee who:

1. conducts himself or herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise, or
2. commits an act of misconduct, or
3. during his or her period of service is convicted or found guilty of a criminal offence punishable by imprisonment or a fine, or
4. is negligent or incompetent in the discharge of his or her duties, or
5. contravenes a provision of this Act or a Ministerial Order made under Division 10 for the purposes of this Chapter, or
6. contravenes a requirement by or under any Act that corporal punishment not be administered to any Government school student, or
7. without reasonable excuse, contravenes or fails to comply with a lawful direction given to the employee by a person with authority to give the direction, or
8. without permission and without reasonable excuse, is absent from his or her duties, or
9. is unfit on account of character or conduct to discharge his or her duties

In considering the fitness of an employee to discharge his or her duties, consideration may be given to any relevant matters including his or her character and any conduct in which he or she has engaged (whether before or after becoming an employee).

Examples of misconduct and other grounds for action

Misconduct generally involves wrongful, improper, or unlawful conduct, motivated by a premeditated or intentional purpose or by a flagrant indifference to the consequences of one's acts. Misconduct may involve either gross negligence or a deliberate departure from accepted standards. Misconduct can include a single act or repeated acts. Examples of misconduct and other grounds for action under Division 10 include but are not limited to:

• inappropriate relationships with students
• ‘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 harassment, including sexual harassment, bullying or victimisation of other staff members, students or the public
• racial or religious vilification
• striking a student, other employee or member of the public, or otherwise inflicting harm on, or endangering the life of, another person
• a failure to act in accordance with Child Safe Standards, such as a breach of a relevant code of conduct or a failure to take reasonable steps to respond to and report suspected child abuse
• wilfully damaging property
• unlawful discrimination or sexual harassment
• sexual or other criminal offences
• improper use of information, or school or department resources, for private purposes or personal gain
• refusal to obey a lawful instruction
• alcohol or drug misuse affecting the employee’s performance of their duties
• serious or gross negligence
• inappropriate use of the internet or the department’s information technology resources including, for example, accessing pornography
• medical certificate fraud
• conduct involving dishonesty, wilfulness or recklessness, loss or damage.

Allegations dealt with under Division 10 may include conduct outside, as well as inside, the workplace — for example where the employee has failed to maintain the general standards of conduct required in the public sector or where the behaviour contravenes the requirements of Ministerial Order 1038, which sets out the conduct and duties required of employees in the Teaching Service. Order 199 requires employees to not behave in any way which would impair their influence over students or standing in the community generally, or outside the hours of duty act in any manner unbecoming his or her position.

Sexual harassment

The department has a Sexual Harassment — Employees Policy that sets out the rights and obligations of all persons in the workplace in relation to sexual harassment. Sexual harassment, if substantiated, may constitute misconduct. Sexual harassment allegations are to be handled in accordance with the processes in the Guidelines (that is Part 2 — Guidelines for managing complaints against employees or Part 3 — Guidelines for managing misconduct).

Sexual assault

Sexual assault involving employees is a criminal offence and the police must be contacted. The manager must also contact the department’s Employee Conduct Branch.

Alleged sexual offences against children and young persons may be ‘reportable conduct’ allegations (refer above) and have mandatory reporting implications. Refer to the department's protocol for Protecting Children — Reporting and Other Legal Obligations and mandatory reporting Reportable Conduct Scheme.

The department has guidelines for use when responding to allegations of student sexual assault in Victorian government schools. Refer to Reporting and Managing School Incidents (including emergencies), the PROTECT website and Reporting incidents in my school (staff login required).

Suspected criminal offences

Principals or managers should report suspected criminal conduct to the Victoria Police and immediately advise the Employee Conduct Branch. Where the Victoria Police report to the principal or manager, or he or she becomes aware, that an employee is the subject of a police investigation, the principal or manager should immediately contact the Employee Conduct Branch.

Where an employee is the subject of a police investigation, care must be taken not to interfere with the police investigation. Even when the police are involved, the department has certain responsibilities to fulfil and is entitled to determine appropriate action in terms of the employee’s employment.

However, close liaison with the Employee Conduct Branch and the police is necessary to ensure that the police investigation is not compromised in any way. The Employee Conduct Branch is the department’s main liaison point with the Victoria Police.

Misconduct procedure

The procedure for the management of misconduct inquiries is established under section 2.4.62 of the Education and Training Reform Act 2006. This section provides that the Secretary must establish procedures for the investigation and determination of an inquiry under Division 10.

The misconduct procedure is as follows:

1. Nomination of investigator

Where there appears to be grounds for action under Division 10 of Part 2.4 of the Education and Training Reform Act 2006, the principal or manager will in consultation with the Employee Conduct Branch write to the Secretary’s delegate (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) to advise that there may be grounds for action and to recommend the commencement of an inquiry under Division 10 of Part 2.4 of the Education and Training Reform Act 2006. The principal or manager will not provide to the Secretary any details of the particular matter at this stage.

The nomination of the investigator is the first step in the commencement of an inquiry under Division 10 of Part 2.4 of the Education and Training Reform Act 2006. The role of the investigator is to collect evidence, prepare a Notice, seek a response from the employee and send a report to the Secretary for his or her consideration and action.

Under Division 10 of Part 2.4 of the Education and Training Reform Act 2006, the Secretary will nominate a person as the investigator. In most cases, it will be appropriate for the principal or manager to be the investigator. In addition, investigators may be senior Departmental employees from central and regional offices, other school principals, retired Departmental employees or other suitable persons whose experience or training equips him or her to deal with investigations in educational settings.

2. Investigation

After nominating a person as the investigator, the Secretary will write to the employee to advise that an inquiry under the Education and Training Reform Act 2006 has commenced and inform the employee of the name of the person who has been nominated as the investigator. The investigator will then write to the employee to explain the process.

The investigation will involve establishing the precise nature of the allegations and possible grounds for action under Division 10 of Part 2.4 of the Education and Training Reform Act 2006. This would normally involve reviewing documents and other evidence, separately interviewing those people who may assist in the investigation and obtaining statements from those people if appropriate. In some cases, this process will already have been completed as part of a complaints process.

The employee must not approach witnesses to discuss the details of the complaint. Under 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 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 may be regarded as a serious breach and may lead to additional 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.

3. Investigator to prepare the notice

After the investigation phase, the investigator will prepare a Notice of Allegations, seek a response from the employee, offer the employee the opportunity to participate in an interview and send a report to the Secretary. The Notice to the employee must contain:

• the alleged ground(s) for action under Division 10 of Part 2.4 of the Education and Training Reform Act 2006
• the particulars of the alleged ground(s).

The investigator will request the employee to provide a response to the Notice within a suitable time frame (being not less than 14 and up to 21 calendar days). Requests for extensions should be addressed to the investigator.

The investigator will also provide the employee with the opportunity to meet with the investigator to discuss his or her written response to the allegations.

The employee may have a support person or representative present during this meeting (the role of a support person/representative is set out in Part 1 of these Guidelines).

4. Investigator’s report

The investigator will consider the employee’s response, should one be provided, and will prepare a report for the Secretary. The report will include:

• the alleged grounds, the alleged particulars, and the investigator’s assessment of the evidence
• any response by the employee to the Notice
• all relevant documentary evidence.

Where a report is provided to the Secretary, the employee must be informed in writing that a report has been provided to him or her (a copy of which is to be attached to the notification) and advised that a written response to the report may be provided directly to the Secretary within a suitable time frame, being not less than 7 and up to 14 calendar days of receiving the report.

5. Decision of the Secretary

The Secretary will consider the report provided by the investigator and the employee’s response if provided. The Secretary may:

• request the investigator to conduct further investigation and provide a further report under Division 10 of Part 2.4 of the Education and Training Reform Act 2006, or
• hold an oral hearing or take evidence orally.

Based on the material provided, the Secretary will form a preliminary view as to the facts of the matter. After this, the Secretary will either:

• write to the employee to advise that, on the basis of preliminary findings of fact (which will be set out in the letter) it would be open to the Secretary: to find that there are grounds for action, and to take action against the employee (specifying what action is contemplated)
• and invite the employee to make a submission in writing to the Secretary within 14 calendar days addressing one or more of these matters. The Secretary should set out clearly his or her preliminary view on the grounds and proposed action, or
• request the investigator to conduct further investigation and provide a further report to the Secretary under Division 10 of Part 2.4 of the Education and Training Reform Act 2006, or
• take no action on the basis that no grounds for action exist.

Where the Secretary finds that there are one or more grounds under Division 10 of Part 2.4 for taking action against an employee, he or she may take one or more of the following actions:

• terminate the employee’s employment
• reduce the employee’s classification
• fine the employee up to 50 penalty units (the way in which penalty units are set and calculated is contained in the Monetary Units Act 2004)
• reprimand the employee.

The Secretary will, by Notice in writing, advise the employee of the determination and, if the Secretary takes action, the right to appeal to a Disciplinary Appeals Board.