Complaints, Misconduct and Unsatisfactory Performance – Teaching Service

Part 4 – Guidelines for managing unsatisfactory performance in the Teaching Service under Division 9A of Part 2.4 of the Education and Training Reform Act 2006

Introduction

Principals or managers must contact the Employee Conduct Branch at the commencement of the unsatisfactory performance procedures.

The role of principals or managers is to recognise and acknowledge good performance, encourage improved performance, and to address unsatisfactory performance using appropriate measures.

Effective performance and development arrangements seek to continuously support and enhance the way work is undertaken by employees. While established performance and development arrangements provide opportunities for performance assessment and development, a repeated failure by an employee to meet the standards may necessitate the commencement of the unsatisfactory performance procedures.

The Employee Conduct Branch must be contacted at this stage.

The purpose of the unsatisfactory performance procedures is to assist the employee to improve his or her performance to the required standard. The unsatisfactory performance procedures are to be completed as early as possible within a maximum 13 week period, although it is recognised that circumstances may arise where this is not possible.

Note: Where the unsatisfactory performance procedures have been implemented, the normal performance and development process will not take place and the employee will not be eligible for salary progression, if applicable, provided the employee has been notified in accordance with the relevant provisions of the Victorian Government Schools Agreement 2017.

Commencing the unsatisfactory performance process

Where an employee fails to meet the required standard of performance, it is important to consider factors that may be contributing to the unsatisfactory performance.

Organisational and, or personal factors can have a negative influence on the quality of an individual’s performance. Organisational factors that may affect performance could include such things as internal structure and arrangements, clarity of work expectations, access to training and development, the quality of the working environment and procedures for providing feedback.

Issues of a personal nature, such as health or personal relationships can also affect performance. Sensitivity will need to be exercised in recognising and dealing with these factors and the department’s Employee Safety and Wellbeing Branch is available to provide information on the services that are available to assist employees in this situation.

In cases where the principal or manager considers that organisational or personal factors play a role in the employee’s unsatisfactory performance, further support, in addition to the implementation of the unsatisfactory performance procedures may be appropriate and effective in addressing the problem.

Where it is considered that counselling may be appropriate this can be arranged through the department’s Employee Assistance Program (EAP). The telephone number for employees wishing to access EAP is 1300 361 008. EAP comprises:

• a short-term solution focused confidential counselling service consisting of up to 4 sessions for any work related or personal issue for individuals
• a dedicated Manager Assist telephone advisory service to provide management advice and support to principals or managers.

EAP can provide early and effective support to employees and can supplement other workplace support services provided by the department's Employee Safety and Wellbeing Branch.

What is unsatisfactory performance?

Unsatisfactory performance is the repeated failure of the employee to discharge his or her duties in the manner expected of the employee, as evidenced by one or more of the following:

1. the negligent, inefficient or incompetent discharge by the employee of his or her duties
2. the failure by the employee:
   1. to exercise care and diligence in performing his or her duties, or
   2. to perform any or all of his or her duties
3. the employee engaging in unsatisfactory conduct that impacts on the discharge of his or her duties including, without reasonable excuse:
   1. contravening or failing to comply with a lawful direction given to the employee by a person with authority to give the direction, or
   2. being absent from his or her duties without permission.

Note: In limited circumstances, it may be appropriate to address the conduct under the misconduct procedures (Part 3 of these Guidelines).

The roles and responsibilities and the standards of performance and conduct that can be expected of employees are set out in a number of documents or instruments including but not limited to:

• Ministerial Orders
• Industrial Agreements
• department policy statements including the applicable Performance and Development Guidelines.
• The Victorian Public Sector Code of Conduct
• role and responsibilities statements.

Part 11 of Ministerial Order 1038 provides a comprehensive list of the conduct and duties expected of employees. For example, employees are required to:

• be civil, courteous and observe fairness and equity in all official dealings with students, the public and members of the school community
• refrain from obstructing, preventing or deterring the principal or manager from carrying out his or her duties
• comply promptly with all lawful instructions given to him or her by the principal
• carry out the duties as required by the principal of the school such as:
  • comply with the timetable at the school
  • perform their official duties with reasonable skill, care and diligence
  • maintain a record of procedure and instruct students accordingly
  • maintain proper order and discipline among the students
  • give full cooperation to the principal and other employees in the development and implementation of the course of study to be followed and in the performance of their respective duties
  • assess the educational development of students and provide reports to parents
• promote the general welfare of students
• observe safe working practices so as not to endanger themselves or others

General principles regarding unsatisfactory performance

Consideration of an employee’s performance must be fair and comply with the principles of natural justice which provide for:

1. the right of an employee to be informed of the nature of any alleged unsatisfactory performance
2. the right of an employee to respond in respect of his or her alleged unsatisfactory performance
3. the right of an employee to be treated fairly, and
4. fairness and good faith in decision making

Unsatisfactory performance procedure

The unsatisfactory performance procedure may be implemented at any time when a principal or manager considers that an employee’s performance is unsatisfactory. A principal or manager should address an employee’s unsatisfactory performance as soon as this comes to his or her attention.

Principals or managers must contact the Employee Conduct Branch prior to the commencement of the unsatisfactory performance procedure. The Employee Conduct Branch will assist principals or managers in its implementation.

An employee’s unsatisfactory performance may give rise to action under Division 9A of the Education and Training Reform Act 2006.

Under section 2.4.59B of the Education and Training Reform Act 2006, the Secretary must establish procedures for:

1. the improvement and management of alleged unsatisfactory performance by employees, and
2. making determinations in respect of the unsatisfactory performance of employees and other related decisions

The unsatisfactory performance procedure is illustrated below:

1. Written advice to employee

Where a principal or manager considers that an employee’s performance is unsatisfactory, the principal or manager must advise the employee in writing of the following:

• that the employee’s performance is considered to be unsatisfactory
• the particular areas of unsatisfactory performance
• the required standard of performance
• the consequences of continued failure to meet the required standard (that is, that the employee’s unsatisfactory performance may ultimately lead to a determination under section 2.4.59F of the Education and Training Reform Act 2006 which may result in dismissal)
• that the employee has 5 working days (or such longer period as the principal or manager considers reasonable in the circumstances) to explain any reasons for the unsatisfactory performance
• that the employee may have a support person or representative of his or her choice present during meetings (refer to Part 1 in these Guidelines for further information) and
• of the existence of these procedures (a reference to where they may be accessed should also be provided).

The principal or manager should consider meeting with the employee to discuss the matters raised in the written advice and, or any written response.

After consideration of the employee’s response, or following a failure by the employee to respond within the set period, the principal or manager must notify the employee in writing either that:

• performance is satisfactory and no further action will be taken at this time (a copy of this letter should be placed on the employee’s personnel file), or
• performance continues to be unsatisfactory and an opportunity will be provided for the employee to improve his or her performance to the required standard with appropriate support as outlined below. In this case, the employee is to be advised that he or she may appeal the decision to the Merit Protection Boards. However, an appeal will not delay the continuation of these procedures.

2. Support period

Where the principal or manager has informed the employee that an opportunity will be provided to improve his or her performance to the required standard, a support period will commence. The duration of the support period will depend on the circumstances but cannot be less than 10 working days and will normally be between 2 and 7 weeks, excluding school vacation periods. In determining the length of the support period the principal or manager will need to consider the time reasonably required to improve the performance in the identified area(s) and any previous actions taken to support improved performance.

Where an employee who is subject to unsatisfactory performance procedures is absent due to illness or another form of approved leave the support period would normally be extended.

In accordance with the general principles, prior to the commencement of the support period the principal or manager will generally do the following:

• detail the support, where relevant, that will be provided to assist the employee to improve his or her performance and how feedback will be provided
• detail how the performance will be monitored, and
• establish a schedule of meetings to provide the opportunity to discuss progress, receive advice, support and feedback.

If the principal or manager writes to the employee to provide the details of the support that will be provided, he or she will also invite the employee to suggest any additional support that the employee may find useful.

Support may involve, but is not limited to, the following: establishing a support group comprising high performing colleagues who would provide feedback and coaching on relevant areas, external professional development, opportunity to observe effective practitioners (this may occur at neighbouring schools), performance counselling and, in relation to teachers, constructive feedback on observations of the employee’s classes, team teaching, scheduled discussions, and additional time release from scheduled duties for planning purposes.

If a support group is established, the principal or manager may choose to provide advice in writing to the support group members to explain their role and provide them with the reporting requirements. A written copy of this advice will be provided to the employee. The principal or manager should not be a member of any support group that is established but should guide and monitor the work of the group.

The principal or manager will ensure that a written record of the support that is provided, including meeting records, is maintained and copies provided to the employee in a timely manner. These records will form part of any report to the Secretary and will be important during any subsequent appeal proceedings.

During the course of the support period, it may be appropriate for the support available to the employee to be reduced progressively to allow the employee to demonstrate achievement of the required standards in the context of the usual professional support available for employees.

During the support period, the employee’s performance will be monitored regularly. This can involve direct observation of the employee at work, with or without notice, reports provided by appropriate staff, review of employee’s records and consideration of student outcomes.

Support is provided in an overall context that recognises that individuals are ultimately responsible for their own performance.

3. Completion of support period

At the completion of the support period the principal or manager must assess the performance of the employee against the standards outlined in the written advice.

Where performance is satisfactory

Where the principal or manager considers the employee’s performance to be satisfactory, he or she should advise the employee in writing that no further action will be taken provided their performance continues to be at or above the required standard.

Where performance remains unsatisfactory

Where the principal or manager considers that the employee’s performance continues to be unsatisfactory, he or she should advise the employee of this view in writing and the employee is to be given 5 working days or longer to explain any reasons for the continued unsatisfactory performance.

After considering any response or failure to respond within the set period, the principal or manager will notify the employee in writing:

1. performance continues to be unsatisfactory and a second support period will be provided on the basis that the principal or manager considers there to be a realistic opportunity for the employee’s performance to improve to a satisfactory standard during a second period of support, or
2. performance continues to be unsatisfactory and a report will be prepared for the Secretary to consider making a decision in accordance with section 2.4.59F of the Education and Training Reform Act 2006

The principal or manager must notify the employee of their final decision in writing.

If the principal or manager decides to offer an additional support period, go back to step 2, above.

If the principal or manager decides to provide a report to the Secretary, a copy of the report will be given to the employee.

4. Decision of Secretary on receiving report

On receipt of a report from a principal or manager which concerns an employee’s unsatisfactory performance, the Secretary must consider the report and any response from the employee and may make any of the following decisions:

1. defer a determination on whether or not there has been unsatisfactory performance until the Secretary receives a further report in relation to the employee (this option may be utilised where the Secretary considers that a further support period is necessary)
2. proceed to make a determination on whether or not the employee’s performance is unsatisfactory
3. investigate any or all of the matters in the report under Division 10 (that is, where the allegations relate to misconduct)
4. proceed no further with any of the matters in the report

If the Secretary decides to investigate any or all of the matters in a report under Division 10 (Misconduct) the Secretary must not proceed any further under Division 9A in relation to any of those matters investigated under Division 10 (Misconduct).

Note: The powers to make findings and take action under Division 9A of Part 2.4, are vested in the Secretary, but in most cases would be exercised by a delegate.

5. Notice to employee regarding proposed determination

If the Secretary decides to proceed to making a determination on whether or not there has been unsatisfactory performance, notice must be given to the employee in writing advising the employee:

1. of the allegation of unsatisfactory performance (a copy of the report must accompany the notice, as the report will contain the details of the unsatisfactory performance)
2. of the preliminary view of the Secretary in relation to the matters in the report
3. of the actions that may be taken by the Secretary under Division 9A (a reprimand, a reduction in classification or dismissal) and the action that the Secretary proposes to take in relation to the employee, and
4. that the employee may make a submission in writing addressing the matters in the report, the preliminary view in relation to the matters in the report and the actions that the Secretary proposes to take

A submission by an employee per (d) must be received by the Secretary no later than 14 calendar days after the employee is given notice, or any longer period permitted by the Secretary. Any application for an extension of time should be made in writing to the Secretary setting out the reasons for the application.

6. Notice to employee regarding outcome

After considering any submission from the employee, the Secretary may make a determination as to whether or not there has been unsatisfactory performance and may take any of the following actions against the employee:

1. issue a reprimand,
2. reduce the employee's classification, or
3. termination of the employee's employment.

In making a determination, the Secretary must:

1. take into account any report received from the principal or manager, and
2. take into account any submission received from the employee, and
3. comply with these procedures.

If the Secretary makes a determination, he or she must give notice in writing to an employee:

1. advising of the determination made, including any action that the Secretary has taken, and
2. if action has been taken, advising the employee of his or her right of appeal to a Disciplinary Appeals Board.

Employees may also elect to appeal to the Fair Work Commission against action taken by the Secretary.