Investigations - Advice for employees under investigation
In this bulletin, we respond to issues often raised by employees under investigation.
This bulletin contains general information. For specific advice, you should speak to the Employee Performance and Conduct Directorate (EPAC) investigator allocated to the investigation.
This bulletin is framed around the school context. The information is relevant, however, to other workplaces within the department.
The short story
EPAC seeks to ensure its investigations are fair and timely. The investigator is your key contact to guide you through the process and provide regular updates on the investigation’s progress.
Your key contact at EPAC and getting updates
The investigator is your key contact at EPAC. You or your representative can contact the investigator or their Team Director if you would like information about the investigation process or progress.
Purpose of investigations and EPAC’s role
Investigations undertaken by EPAC are intended to explore and establish facts about alleged misconduct so that a decision maker can take appropriate action. The decisions can range from taking no further action to the dismissal of an employee.
For all employees the process should:
- manage risk to all parties, with the protection of children the paramount consideration
- be procedurally fair and timely
- provide an opportunity to respond to matters raised about an employee where an adverse finding is contemplated.
When addressing misconduct the department seeks to:
- ensure the safety and protection of children as the paramount consideration
- maintain appropriate standards of conduct and work related performance for employees
- protect and enhance the integrity and reputation of the Teaching Service, Staff Administrative and Support staff and Public Service
- ensure that the public interest is protected.
Specific guidelines and legislative arrangements are in place for some employees.
The Guidelines for the Management of Conduct and Performance (the Guidelines) apply to all permanent officers and employees of the department employed under the following legislation:
- Teaching Service Act 1980
- Education (Staff Administrative and Support Staff) Act 1987.
The Guidelines extend to temporary employees, under these employment Acts, in the following circumstances:
- where an employee is charged with a serious offence
- where an employee is charged with and/or convicted of serious sex offences, or offences against children that would mean they are prohibited from engaging in child-related work.
The Government Sector Employment Act 2013 and associated rules set out the legislative framework for managing unsatisfactory performance and misconduct by a person employed under that Act.
Stages of the investigation process
Most investigation will follow these key stages:
- Preliminary assessment of allegation/s
Includes: school based enquiries which may include written versions of events, determining whether to investigate, allocating an investigator, addressing risks to all parties
- Information gathering
Includes: notifying the employee, seeking information and nominated witnesses from the employee, case planning, gathering documents, interviewing witnesses
- Putting allegations to the employee
Includes: analysing the evidence, drafting allegations, seeking a response from the employee to the allegations
- Report writing
Includes: analysing evidence and submissions, drafting an investigation report and endorsement by an EPAC Team Director
- Making findings
Includes: decision maker reading the evidence and report, making sustained/not sustained findings on each allegation, seeking additional information. If misconduct is not found, the employee will be advised and the investigation will be closed at this point.
- Proposing action
Includes: writing to the employee proposing what action (if any) will be taken, providing the employee with an opportunity to make submission on any adverse action
- Finalising action
Includes: advising the employee and relevant parties of the final outcome.
In matters where an employee has been found guilty by a court of a serious offence a show cause process may be adopted. In such circumstances:
- information about the conduct is gathered and then reviewed by a decision maker
- a decision maker proposes whether further action should be taken
- the employee is invited to make a submission about the proposed action
- the employee can make a further submission.
Roles within the investigation process
Allegations of misconduct are initially assessed by an investigator from EPAC’s Preliminary Investigation Team and that Team’s Director.
Once a decision has been made that a formal investigation should commence, an investigator is assigned to the case. The investigator gathers evidence, considers any submissions you provide and writes an investigation report. Each investigator is attached to a team with a Director who oversees the investigation process and endorses the final report.
Decisions about findings and action to be taken are made by EPAC’s Executive Director or a Director independent from the investigation.
The Disciplinary Advisory Panel regularly meets to provide advice to the Executive Director on matters where they are contemplating demoting, directing to resign or dismissing a permanent employee.
Length of investigations
As a guide - simple matters take about three months to complete and complex matters about nine months. In 2019, 42% of matters were closed within 6 months and 75% of matters were closed within 12 months.
EPAC strives to be timely in our responses, however, some matters will take longer to finalise for a range of reasons including the:
- involvement of other agencies
- complexity of the issues
- number of witnesses/parties involved
- need to seek external or internal expert advice
- impact of delay on the fairness of the process, or matters arising from the process such as the suspension of the officer
- health and wellbeing needs of the employee or witness.
Approximately one in four investigations are placed on hold as a direct result of external factors outside the control of EPAC.
Involvement of another agency or a court
EPAC will report matters to other agencies where it has a legal responsibility to do so. This includes sharing information about the safety welfare and wellbeing of children.
EPAC may be limited in how we can progress an investigation where another external investigating body has requested that the department’s process be deferred while it carries out an investigation.
These organisations include NSW Police Force, the Department of Communities and Justice, Office of the Children’s Guardian, NSW Ombudsman, Safework NSW or the Independent Commission Against Corruption (ICAC).
EPAC will wait for the decision of a court when the matters under investigation are being considered by a court.
Providing early submissions and nominating witnesses for EPAC to interview
An employee at the point of notification can make a submission about:
- their version of events regarding the incident(s)
- the names and details of witnesses who have direct knowledge of the matters under investigation and who they believe should be spoken to by the investigator.
Employees are not required to provide information to EPAC and further opportunities are provided to give information.
Responding to the allegations and proposed disciplinary action
You will be provided with the opportunity to respond to the complete allegation/s of misconduct and any proposed disciplinary action prior to a final decision being reached.
You are not required to make a submission during an investigation.
Your decision not to provide a response will always be respected. However, a decision will be taken on the basis of the available information.
You should seek early advice on the course of action that is appropriate to your circumstances.
If you need more time, an application for an extension will be considered on its merits. You need to keep in mind that this may delay the investigation. In deciding on an extension EPAC will look at the overall circumstances and balance the need to ensure fairness with the need to progress the matter.
The investigator uses professional judgement about how to conduct the investigation and may not approach every witness that is nominated.
The investigation report will document why a witness nominated by an employee was not approached. Circumstances where a nominated witness may not be interviewed include but are not limited to:
- where there is information that approaching a witness may adversely impact on their welfare
- where permission from a parent of a child witness cannot be obtained
- a witness attesting solely to an employee’s character and not to the matters subject to investigation
- where the nominated witness cannot be identified or is too broad including the nomination of a whole class of students
- where a sufficient sample of witnesses have been approached to provide a balanced account of the matters subject to investigation.
Approaching or taking detrimental action against a witness
You must not discuss the investigation or evidence with potential witnesses without first seeking the agreement of the investigator as it may contaminate the investigation process. You should instead nominate the person as a witness for the investigator to approach.
It is a criminal offence under section 64 of the Children’s Guardian Act 2019 to take, or threaten to take, detrimental action in respect of a person who reports or proposes to report, in good faith, a reportable allegation. It also is a criminal offence under section 20(1) of the Public Interest Disclosures Act 1994 to take detrimental action substantially in reprisal for the person making a Public Interest Disclosure (PID).
Providing character references
Character reference or character witnesses do not assist a decision maker in deciding whether or not conduct has occurred. A person’s character has little evidentiary weight when deciding whether a person has engaged in misconduct.
You may choose to provide a character reference if misconduct has been found to support your response about the proposed action to be taken about the conduct.
If you are seeking a character reference you should:
- not seek a reference from a witness or act contrary to directions which may be in place
- not place pressure on a person to provide a reference
- be mindful that you may place a colleague in a difficult position in balancing their professional obligations if you are seeking their support through a personal reference
- advise the person of the nature of the misconduct found and how the reference will be used
- remind the referee that their reference must align with the requirements of the Provision of Personal References Procedures.
- not provide a reference that is dated historically and supplied for other purposes.
Care is taken by EPAC to maintain confidentiality. This protects the integrity of the investigation process and preserves the privacy of the parties concerned. However, there are limits to confidentiality and in some circumstances information will need to be disclosed. EPAC may need to disclose information to:
- ensure the safety of parties and to manage risk
- progress an investigation
- meet legal obligations to share or report information
- ensure fairness for an employee subject to allegations including providing:
- names of victims and witnesses so that an employee can respond to the allegations
- evidence collected and relied on to make findings where disciplinary action is proposed so the employee can respond to the proposed action.
All witnesses, including you and your support person, are advised to maintain confidentiality and not discuss the matter except for the purposes of the investigation, obtaining legal advice/union support and/or in relation to your personal health or support needs.
It is never appropriate to discuss an investigation in open forums such as school assemblies, general staff meetings or community forums.
Information shared with parents and families
EPAC is required under the Children’s Guardian Act 2019 to communicate relevant information about investigations to students and their families where an employee is alleged to have committed reportable conduct against them. This includes the progress of an investigation, the findings and the action taken.
Support for you
Being involved in an investigation can be overwhelming. Your welfare is important and you are encouraged to seek support early in the process. Supports are available to help employees during the investigation process. This includes:
- The Employee Assistance Program (EAP) on 1800 060 650 or live chat at: http://www.convergeinternational.com.au for temporary and permanent/ongoing staff. Immediate telephone support is available 24/7, 365 days a year.
- The NSW Teachers Federation (for members) on 9217 2100 or toll free on 1300 772 639
- The Public Service Association (PSA) (for members) on 1300 772 679.
- your general practitioner or local community health service.
In a crisis you can also contact the NSW Mental Health Line on 1800 011 511 or Lifeline on 13 11 44.
Leave or illness during an investigation
Employees should ensure that they are contactable during an investigation. In addition to the usual leave approval processes, EPAC will be consulted about the leave arrangements. Long absences may not be approved, particularly if an employee cannot be contacted.
If you become ill during an investigation it is important that you advise the investigator about the best way for you to receive information or correspondence about the investigation. In some cases we can provide information through a legal representative, union support or a medical practitioner to ensure you receive an appropriate level of support.
EPAC may require evidence of illness from a medical practitioner including their opinion as to your fitness to take part in an investigation where it impacts on the progress of an investigation.
The need to ensure fairness to an employee will be weighed against the department’s duty to respond to and finalise matters in a timely way.
Role of your support person
The role of the support person is to provide you with practical and emotional support.
Your support person may act as a witness to any meetings or interviews you attend during the investigation process. They help safeguard against unfair practices.
A specific bulletin on the role of a support person during an investigation is available.
Allegations about others
Allegations against another employee may be raised in the course of an investigation. EPAC will assess these matters and may ask relevant parties for supporting information. EPAC will continue to investigate the original conduct while completing an assessment of the additional allegations.
In 2019, 439 (64%) of 687 matters were sustained. Of these 439 sustained matters, 220 (50%) resulted in remedial action, 152 (35%) resulted in disciplinary action and 67 (15%) resulted in the employee exiting employment (60 of these were dismissed and seven of these were allowed to resign).
These investigation outcomes align with the outcomes of like organisations with professional standards units.
If the decision maker determines that misconduct has occurred, they have the following options which can be used in combination.
What records are kept
Full details of all investigations are stored digitally and held under restricted access by EPAC.
Where misconduct is found a notation is placed on the employee’s personnel file. It references that an EPAC investigation has occurred, that misconduct was found and any action that has been taken.
A record is not made on the employee’s personnel file where misconduct is not found to have occurred.
Alternative duties and suspensions
Alternative duties and suspensions are used in less than 10% of matters and only where the risks are serious and it is not feasible to manage the risks while the person remains on duty.
Resignation or retirement
Any resignation or retirement provided by an employee subject to an investigation must be referred to the investigator. Resignations or retirements are reviewed by the Executive Director EPAC who has discretion to accept or refuse them.
In most cases the investigation will continue even after your employment has ceased. Section 93P of the Teaching Service Act 1980 allows for disciplinary action to be taken even though the officer has retired or resigned.
Reportable Conduct and the Working With Children Check (WWCC)
EPAC is required to make a finding about reportable conduct in child related allegations.
Where EPAC makes a finding of sexual misconduct, a sexual offence or a serious physical assault the Office of the Children’s Guardian (OCG) is prompted to re-assess the employee’s WWCC.
There are other considerations including relevant and disqualifying offences which impact on an employee’s WWCC.
The decision to place an interim bar or ongoing bar on an employee’s WWCC is determined by the OCG independent of EPAC.
Further information about the type of matters considered by OCG in relation to WWCC is available.
There is no right to an internal review or appeal of a disciplinary decision made by a delegated decision maker. However, you may be able to explore external review options.
The Industrial Relations Commission deals with disciplinary appeals in line with the Industrial Relations Act 1996 for public sector employees. Section 97 of the Act sets out the type of disciplinary decisions which can be appealed. There may be other legal avenues you can consider and you should seek your own legal advice.
A complaint can be made about the way a matter is being investigated. In the first instance, you or your representative should seek to resolve the issue directly with the investigator. You can escalate your concern/s with the investigator’s Team Director where the issue cannot be quickly resolved.
Where informal approaches have not resolved the matter, a person can complain to EPAC’s Executive Director at: EPAC@det.nsw.edu.au.
A complaint will not result in the review of final action taken against an employee including disciplinary actions.