Managing Conduct and Unsatisfactory Performance in the Teaching Service

Part 3 – Managing misconduct under Division 10 of Part 2.4 of the ETRA

Overview of misconduct procedure

Procedures for an investigation and determination of an inquiry under Part 2.4 Division 10 of the ETRA generally involve the following steps:

• the Secretary's delegate nominating an investigator to conduct an investigation
• the investigator preparing a Notice of Allegations in relation to the person who is the subject of the allegations and giving them an opportunity to respond
• the investigator preparing an investigation report
• if the allegations are substantiated in the investigation report, the Secretary's delegate giving the respondent an opportunity to respond to the report, the grounds for action and the proposed disciplinary outcome
• the Secretary's delegate making a decision on whether there are grounds for action and the disciplinary outcome to be taken, after considering the respondent’s response.

The department refers to these procedures as a misconduct procedure. Any misconduct 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 and be provided with any workplace adjustments that they require.

Parties are committed to misconduct procedures being completed as early as possible within a period of 4 to 7 months, however it is recognised that circumstances may arise where this timeframe is not achievable.

When to use a misconduct procedure?

A decision to commence a misconduct procedure can only be made by a person with the delegated authority of the Secretary, such as a regional director or the Deputy Secretary, Schools and Regional Services.

Principals/managers must contact the Conduct and Integrity Division in relation to any information which comes to their attention which may constitute misconduct or grounds for action under Division 10 of Part 2.4 of the ETRA or serious misconduct. The Conduct and Integrity Division will provide advice and guidance to the principal/manager in relation to how to proceed.

Any information collected by the principal/manager through a local resolution procedure may be used in the misconduct procedure. However, a local resolution procedure is not required before commencing a misconduct procedure.

What are grounds for action?

Misconduct is one of the grounds for action against an employee under Division 10 of Part 2.4 of the ETRA. The procedure set out in Section 2.4.60(1) of the ETRA provides that, after investigation, action may be taken under against an employee who:

• conducts themselves in a disgraceful, improper or unbecoming manner in an official capacity or otherwise
• commits an act of misconduct
• is convicted or found guilty of a criminal offence punishable by imprisonment or a fine during their period of service
• is negligent or incompetent in the discharge of their duties
• contravenes a provision of the ETRA or a Ministerial Order made for the purposes of Chapter 2 of the ETRA
• contravenes a requirement by or under any Act that corporal punishment not be administered to any government school student
• contravenes or fails to comply with a lawful direction given to them by a person with authority to give the direction, without reasonable excuse
• is absent from their duties, without permission and without reasonable excuse or
• is unfit on account of character or conduct to discharge their duties.

Examples of misconduct and other grounds for action under Division 10 include (although consideration must be given to the seriousness of the conduct in question):

• sexual or other criminal offences (including grooming and child sexual abuse material offences)
• inappropriate relationships with or breaching appropriate boundaries with students
• inappropriate physical contact with students
• physical violence towards 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 and/or the school’s child safe policies, such as a breach of a relevant code of conduct (for example, the School’s Child Safety Code of Conduct or the Victorian Teaching Profession’s Code of Conduct (PDF)) or a failure to take reasonable steps to respond to and report suspected child abuse
• wilfully damaging property
• unlawful discrimination
• sexual harassment
• racial or religious vilification
• improper use of information, or school or department resources, for private purposes or personal gain
• breaching a lawful and reasonable direction or 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
• conduct involving dishonesty, wilfulness or recklessness, loss or damage.

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

Allegations dealt with as misconduct under Division 10 may include conduct which occurs at work, as well as conduct which occurs outside of work or 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 1388, which sets out the conduct and duties required of employees in the Teaching Service (including a requirement not to 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 of their position).

Action taken under Division 10 can only be taken by the Secretary or the Secretary's delegate following a misconduct procedure.

If, after following the investigation process set out below, the Secretary's delegate is satisfied that there are one or more grounds for taking action against an employee under Division 10 of Part 2.4, the delegate may take one or more of the following actions:

• reprimand the employee
• fine the employee up to 50 penalty units (penalty units are indexed annually – refer to Penalties and values)
• reduce the employee’s classification
• terminate the employee’s employment.

What is serious misconduct?

Serious misconduct is wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.

Serious misconduct includes conduct that may cause serious and imminent risk to the health or safety of a person or the reputation of the department, such as theft, fraud, assault or the violation of a relationship of trust and influence in relation to a student.

Termination for serious misconduct

The Secretary may terminate the employment of an employee under section 2.4.61A of the ETRA if they reasonably believe that the employee has engaged in serious misconduct. In some circumstances, there will not be sufficient information to form a 'reasonable belief' that an employee has engaged in serious misconduct until after an inquiry has been conducted under Division 10 of Part 2.4 (including any investigation). However, in some cases the Secretary may form a reasonable belief that an employee has engaged in serious misconduct without conducting an investigation, if sufficient evidence of the serious misconduct is available. 'Reasonable belief' in this context has a high threshold and must be founded on clear and credible evidence.

Prior to reaching a final decision about any disciplinary outcome in respect of serious misconduct, the employee must be provided with a reasonable opportunity to respond.

If an employee's employment is terminated under section 2.4.61A of the ETRA for serious misconduct, the employee must be advised of their right to appeal to the Disciplinary Appeals Board. The Conduct and Integrity Division will also consider what communication is required to the Victorian Institute of Teaching, the Commission for Children and Young People and/or the Victorian Disability Worker Commission.

Misconduct procedure

Step 1: Secretary's delegate determines to commence misconduct procedure

Where an allegation is made that may constitute grounds for action against an employee under the ETRA, the Secretary's delegate will determine whether to commence an inquiry under Division 10 of Part 2.4 of the ETRA.

If an inquiry is commenced, the Secretary's delegate will nominate a person to investigate and report to the delegate in connection with the inquiry. Principals are generally not appointed as investigators in misconduct inquiries. The respondent will be notified, in writing, of the decision to commence an inquiry and who has been appointed to conduct the investigation. The respondent will also be advised of the action which could be taken if the alleged grounds are substantiated (namely, action under section 2.4.61 of the ETRA).

Step 2: Investigator conducts investigation

An investigation involves establishing the nature of the allegations and possible grounds for action under Division 10 of Part 2.4 of the ETRA. The investigation will usually involve reviewing documents and other evidence and speaking with any relevant witnesses. In some cases, evidence and information will already have been obtained as part of a formal local resolution procedure and information collected in that procedure can be relied upon by the investigator, where appropriate.

Step 3: Investigator prepares Notice of Allegations and provides opportunity to respond

The respondent must be given an opportunity to respond in writing to the alleged grounds for action and written particulars within 14 calendar days. The allegation(s) must be sufficiently clear as to ensure that the respondent can understand what is alleged to have occurred.

The investigator will also offer the respondent the opportunity to meet with the investigator to discuss their written response to the allegations.

Step 4: Investigator completes investigation and reports to Secretary's delegate

Following receipt of any response from the respondent to the allegations, the investigator will proceed to finalise the investigation, which may include conducting further inquiries to investigate any explanation made by the respondent, or any other relevant matter.

The investigator will then prepare a report for the Secretary's delegate, which includes the investigator's assessment of the evidence. All relevant materials considered by the investigator in their investigation must be attached to their report, including any response or other materials provided by the respondent.

A copy of the report and all attachments will be provided to the respondent in Step 5.

Step 5: Secretary's delegate gives respondent a copy of investigation report and an opportunity to respond to proposed findings and disciplinary outcome

The Secretary's delegate will consider the investigator's assessment of the evidence (along with the report and its attachments) and:

• may request the investigator to conduct further investigation and provide a further report (for example, if the Secretary's delegate considers that further evidence should be considered)
• will proceed to propose findings and a determination about action to be taken under Division 10.

Prior to reaching a final decision about any action to be taken under Division 10 of Part 2.4 of the ETRA, the Secretary’s delegate will write to the respondent to provide them with a copy of the investigation report and seek a response on proposed findings and disciplinary outcome. The respondent is invited to respond by way of a written submission to the Secretary's delegate within 14 calendar days. The Secretary's delegate must take into consideration the respondent's response before making findings and determining any final action.

If the Secretary's delegate is satisfied that there are one or more grounds for taking action against an employee under Division 10 of Part 2.4, the delegate may take one or more of the following actions:

• reprimand the employee
• fine the employee up to 50 penalty units (penalty units are indexed annually – refer to Penalties and values)
• reduce the employee’s classification
• terminate the employee’s employment.

Step 6: Secretary's delegate determines final action

After considering any response provided by the respondent, the Secretary's delegate must advise the respondent in writing of their determination.

The respondent must also be advised of their right to appeal to the Disciplinary Appeals Board, if action is taken under section 2.4.61(1) of the ETRA.

The Conduct and Integrity Division will also consider whether any communication is required to the Victorian Institute of Teaching, the Commission for Children and Young People and/or the Victorian Disability Worker Commission.

Step 7: Update person who raised allegation of misconduct

If the misconduct procedure was conducted because of an allegation made by another person, the reporter must be advised that the allegation has been dealt with in accordance with the ETRA. Where reasonably practicable and appropriate, this may include advising the reporter:

• whether an investigation was conducted
• if the matter was not investigated, why not
• if the matter was investigated, whether a disciplinary outcome was applied.

It may also be appropriate to update any other impacted people.

Depending on the circumstances, this notification may be completed by the Secretary's delegate, the principal/manager or another appropriate person. Principals/managers or the Secretary’s delegate must consult with the Conduct and Integrity Division about who will provide this notification to the reporter and any impacted person, and what can be communicated to them.

Employment ceasing during misconduct procedure

Where a respondent’s employment ceases during the course of a misconduct procedure, the investigation may continue. For example, the investigation may need to continue if the alleged conduct amounts to reportable conduct and/or the investigation is necessary to identify any steps required to manage risks to child safety or the health and safety of remaining employees. Where this occurs, Division 10 of Part 2.4 of the ETRA will no longer apply, as the respondent is no longer an employee of the Teaching Service. At the conclusion of the procedure, consideration may be given to notifying the Victorian Institute of Teaching.