Managing Conduct and Unsatisfactory Performance in the Teaching Service

Part 4 – Managing unsatisfactory performance

Overview of the unsatisfactory performance procedure

Established performance and development arrangements provide opportunities for performance assessment and development on a regular basis. Outside the performance and development process, supporting an employee to improve by identifying and discussing concerns, and providing targeted supports to assist them to improve, is a further option available to principals/managers at any time. For more information on utilising less formal procedures to address performance concerns, see Part 2 – Managing conduct or performance concerns through a local resolution procedure.

A repeated failure by an employee to meet the standards expected of them may necessitate the commencement of an unsatisfactory performance procedure by the principal/manager (which must be in consultation with the Conduct and Integrity Division). The purpose of the unsatisfactory performance procedure is to assist the employee to improve their performance to a satisfactory level.

Any unsatisfactory performance procedure must be conducted in accordance with the principles of procedural fairness, including the right of the employee who is the subject of the performance concern to have a representative or support person present at any meetings and be provided wellbeing supports and any reasonable workplace adjustments.

Generally, an unsatisfactory performance procedure is to be completed within a maximum 13 week period. However, it is recognised that circumstances may arise where this timeframe is not achievable.

The unsatisfactory performance procedure only applies to employees of the Teaching Service, not to contractors or volunteers.

What is unsatisfactory performance?

Unsatisfactory performance is the repeated failure of an employee to discharge their duties in the manner expected of the employee at their level in their position. This may be demonstrated by the employee:

• discharging their duties in a negligent, inefficient or incompetent manner
• failing to perform one or more of their duties
• failing to exercise care and diligence in performing their duties
• engaging in unsatisfactory conduct that impacts on the discharge of their duties including, without reasonable excuse:
  • contravening or failing to comply with a lawful direction given to the employee by a person with authority to give the direction
  • being absent from their duties without permission.

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

• Ministerial Orders
• the Victorian Government Schools Agreement 2022
• department policy statements including the applicable Performance and Development Guidelines
• the Victorian Public Sector Code of Conduct
• the Victorian Teaching Profession's Code of Conduct, published by the Victorian Institute of Teaching
• role and responsibilities statements.

When to use an unsatisfactory performance procedure

Principals/managers must contact the Conduct and Integrity Division before commencing an unsatisfactory performance procedure.

Prior to commencing an unsatisfactory performance procedure, the principal/manager must consider:

• whether the employee is within a probationary period (in which case, the Conduct and Integrity Division should be contacted for advice in relation to implementing the probationary procedures)
• the timing and outcome of the employee's most recent Performance Development Plan (PDP) conversation and whether any areas for improvement were identified or if the employee was recently deemed to be performing satisfactorily
• whether the employee has been recently made aware of the standards and expectations required of them, and any areas in which they are failing to meet those expectations
• whether informal attempts have been made to address the performance issues (see examples of informal methods below)
• any organisational or personal factors that may be relevant, such as lack of role clarity, access to training and development, and personal issues such as family violence, health or disability
• the seriousness of the alleged unsatisfactory performance
• the employee's level of experience and seniority.

Informal attempts to address performance concerns, prior to an unsatisfactory performance procedure, may include:

• regular supervision meetings or informal counselling
• provision of a mentor
• classroom observations and feedback
• opportunities to observe high-performing colleagues
• provision of learning and development opportunities.

Performance concerns may also have been identified through a local resolution procedure.

Records of informal methods to support performance improvement should be kept, which may include:

• notes of any performance issues, including details of the specific issue(s), evidence that this was raised with the employee and the date when issues occurred
• comments in the employee’s performance development plan
• emails summarising conversations and feedback provided to the employee regarding performance, with an opportunity for the employee to provide their comments or point of view.

Where an unsatisfactory performance procedure is implemented (Step 1 below), the normal performance development process will not take place and the employee will not be eligible for salary progression, if applicable, provided the employee has been notified by the principal in accordance with the relevant provisions of the VGSA 2022.

If the principal/manager thinks that reallocation of duties could be a potential option to address performance concerns, in lieu of an unsatisfactory performance procedure, they must contact the Conduct and Integrity Division to discuss.

Unsatisfactory performance procedure

Formal management of performance concerns by the principal/manager

Step 1: Commence formal procedure and advise employee

Where a principal/manager considers that an employee’s performance is unsatisfactory, they 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 (i.e. that the employee’s unsatisfactory performance may be referred to the Secretary's delegate and may ultimately lead to a determination under section 2.4.59F of the ETRA, which may result in dismissal)
• that the employee has 5 working days (or such longer period as the principal/manager considers reasonable in the circumstances) to explain any reasons for the unsatisfactory performance.

This letter would usually be delivered in person. The employee must be offered the opportunity to bring a support person or representative to all meetings during this procedure and offered supports and any workplace adjustments needed.

Step 2: Provide opportunity for employee to respond and consider response

The principal/manager must consider any response provided by the employee and may consider meeting with the employee to discuss the matters raised in the written advice and/or any written response.

After considering the employee’s response, or following a failure by the employee to respond within the specified period, the principal/manager must notify the employee in writing of the next step.

Where the principal/manager considers the employee’s performance to be satisfactory, they will advise the employee in writing that no further action will be taken. A copy of this letter should be placed on the employee’s personnel file.

Where the principal/manager considers the employee’s performance continues to be unsatisfactory, they must advise the employee of this view in writing and that the employee will be provided with an opportunity to improve their performance to the required standard with appropriate support (Step 3: Support period). The employee must also be advised that they may appeal this decision, however an appeal will not delay the continuation of this procedure.

Step 3: Support period

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

Prior to the commencement of the support period, the principal/manager should:

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

The principal/manager should also invite the employee to suggest any additional support that they may find useful. Such support may include:

• establishing a support group comprising high performing colleagues (excluding the principal/manager), who would provide feedback and coaching on relevant areas
• external professional development
• opportunities to observe/shadow effective practitioners (this may occur at neighbouring schools)
• performance counselling
• 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/manager may choose to provide advice in writing to the support group members to explain their role and reporting requirements. A written copy of this advice is to be provided to the employee. The principal/manager should guide and monitor the work of the group.

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

It may be appropriate for the support provided 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.

Length of support period

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 8 weeks, excluding school vacation periods.

In determining the length of the support period, the principal/manager will need to consider the time reasonably required to improve performance in the identified area(s) and any previous actions taken to support improved performance. If an employee is absent during the support period due to illness or another form of approved leave, the support period would normally be extended.

Records of support provided

The principal/manager must ensure that a written record of the support that is provided to the employee, 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's delegate and will be important during any subsequent appeal proceedings.

Step 4: Completion of support period and assessment by principal/manager

At the completion of the support period, the principal/manager must assess the performance of the employee.

Where the principal/manager considers the employee’s performance to be satisfactory, they will 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 the principal/manager considers the employee’s performance continues to be unsatisfactory, they will advise the employee of this view in writing and that the employee has 5 working days (or such longer period as the principal/manager considers reasonable in the circumstances), to explain any reasons for the continued unsatisfactory performance.

This will generally be done in a meeting, with the offer of a support person or representative and any workplace adjustments needed.

Step 5: Consider employee response and make a decision

After considering any response provided by the employee (or failure to respond within the specified period), the principal/manager will notify the employee in writing that:

• no further action will be taken provided that the employee’s performance continues to be at or above the required standard
• performance continues to be unsatisfactory and a second, final support period will be provided on the basis that the principal/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 (in which case, return to Step 3: Support period) or
• performance continues to be unsatisfactory and a report will be prepared for the Secretary's delegate to consider in making a determination in accordance with section 2.4.59F of the ETRA).

The principal/manager must notify the employee of their decision in writing. This will generally be done in a meeting, with the offer of a support person or representative and any workplace adjustments needed.

Referral of performance concerns to Secretary's delegate under the ETRA

Step 6: Principal/manager to prepare report for the Secretary's delegate and provide opportunity for the employee to respond

If the principal/manager decides to provide a report to the Secretary's delegate, a copy of the report must be given to the employee. This will generally be done in a meeting, with the offer of a support person or representative and any workplace adjustments needed.

The employee must be advised that a written response to the report may be provided directly to the Secretary's delegate within a specified timeframe. An appropriate timeframe is to be determined by the principal/manager in consultation with the Conduct and Integrity Division. Reallocation of duties to the employee should be discussed with the Conduct and Integrity Division.

Step 7: Secretary’s delegate to consider report and employee response and make decision

The Secretary's delegate must consider the report provided by the principal/manager and any response from the employee, and may make any of the following decisions:

• defer a determination on whether or not there has been unsatisfactory performance until they receive a further report in relation to the employee (this may be utilised where the Secretary's delegate considers that a further support period is necessary)
• make a preliminary determination on whether or not the employee’s performance is unsatisfactory
• investigate any or all of the matters in the report under Division 10 (that is, where the allegation(s) indicate that grounds for action under Division 10 may exist), in which case the Secretary's delegate must not proceed with any further action under Division 9A in relation to any of those matters to be investigated under Division 10)
• proceed no further with any of the matters in the report.

If the Secretary's delegate makes a preliminary determination that there has been unsatisfactory performance by the employee, the Secretary's delegate may propose to take any of the following actions against the employee:

• a reprimand
• a reduction in the employee's classification
• termination of the employee's employment.

Step 8: Secretary’s delegate to notify employee of proposed determination

If the Secretary's delegate makes a preliminary determination that there has been unsatisfactory performance, the employee must be advised in writing of:

• the allegation of unsatisfactory performance
• actions that may be taken by under Division 9A
• the action the Secretary's delegate proposes to take.

The employee must also be invited to respond in writing. Any submission in writing by the employee must be received by the Secretary's delegate no later than 14 calendar days after the employee is given notice, or any longer period permitted by the Secretary's delegate. Any application for an extension of time should be made in writing to the Secretary's delegate setting out the reasons for the application.

Where termination of employment or reduction in classification is proposed, the provision of the letter to the employee will be organised with the principal/manager and the Conduct and Integrity Division to ensure that appropriate wellbeing support is provided to the employee.

Step 9: Secretary’s delegate to consider employee response, determine outcome and notify employee

After considering any response provided by the employee, the Secretary's delegate may make a determination that there has been unsatisfactory performance.

The Secretary's delegate must give notice in writing to the employee which:

• advises the employee of the determination made, including any action that the Secretary's delegate has taken
• if action has been taken, advises the employee of their right of appeal to a Disciplinary Appeals Board.

In consultation with the Conduct and Integrity Division, consideration should also be given to whether any notification is required to be made to the Victorian Institute of Teaching of the outcome of any action taken by the Secretary's delegate in respect of the employee.