education.vic.gov.au

When will an employment limitation be applied?

Initial decisions regarding the application of employment limitations are made by the Manager of the Employee Conduct Branch, at his or her discretion. The terms of any employment limitation will be proportionate to the conduct which is the subject of the investigation.

A person may seek review of an employment limitation that is applied against them. Refer to Review of an employment limitation chapter.

Some situations in which an employment limitation may be applied are set out below.

Following a misconduct or unsatisfactory performance disciplinary process

Where an investigation carried out in accordance with the relevant guidelines for managing Complaints, Misconduct and Unsatisfactory Performance — Teaching Service has found a complaint or an allegation of misconduct or unsatisfactory performance to have been substantiated and, or the person’s employment has come to an end.

Expiry of a period of fixed term employment or probationary period during the course of an investigation

The Department’s legal power to investigate allegations of misconduct and unsatisfactory performance relates only to employees of the Department (Divisions 10 and 9A of the ETR Act and section 22 of the PA Act).

When a person’s period of fixed term employment or probation expires during the course of a complaint process, or an investigation into alleged misconduct or unsatisfactory performance, the Department no longer has power to investigate, as the person is no longer an employee. However, as there remain unresolved issues with that person’s employment, an employment limitation may be applied

In making the decision as to whether an employment limitation will be applied or maintained in these circumstances, the following issues will be considered:

  • the circumstances and context of the issue of concern
  • the response to the allegations provided by the former employee
  • the credibility of the evidence obtained or provided

Resignation during the course of an investigation

If an employee resigns during the course of an investigation or complaint process, or where there are unresolved issues about his or her performance or conduct, an employment limitation may be applied.

This is to ensure that a person cannot circumvent a disciplinary, unsatisfactory performance or complaints process by resigning in order to avoid an adverse finding and being re-employed without proper consideration of the circumstances of the resignation.

In making the decision as to whether an employment limitation will be applied or maintained in these circumstances, the following issues will be considered:

  • the circumstances and context of the issue of concern
  • the response to the allegations provided by the former employee
  • the credibility of the evidence obtained or provided

Conduct during employment which, if known, would constitute grounds for employment action

An employment limitation may be applied if the Department becomes aware of an allegation that a former employee engaged in conduct during their employment which, had it been known during their employment, would have constituted grounds for an investigation (under Division 10 of ETR Act or section 22 of the PA Act), and:

  1. would constitute improper conduct (as defined in the Protected Disclosure Act 2012), or
  2. would constitute corrupt conduct (as defined in the Independent Broad-based Anti-corruption Commission Act 2011)

Application of an employment limitation on medical grounds

If an employee of the teaching service resigns or retires following a period of long term sick leave, or his or her employment is terminated due to physical or mental incapacity pursuant to Part 2.4 Division 8 of the ETR Act, an employment limitation may be applied.

This is not a disciplinary measure, but is to ensure that medical evidence is obtained to confirm that the person is fit for duty before he or she is re-employed.

In these circumstances, clauses 6.2.10 of Ministerial Order 1038External Link and Ministerial Order 1039External Link will apply, and the person seeking re-employment will not be permitted to return to duty unless and until a medical practitioner, approved by the Secretary, has certified that he or she is fit to resume work. The person seeking re-employment will be responsible for the cost of the medical examination.

Chapter of the Employment Limitation Policy explaining when employment limitations are applied

Reviewed 16 October 2020

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