All employees:

• report suspected serious wrongdoing, or other misconduct
• assist investigations into serious wrongdoing if asked to do so
• support those who have made reports of wrongdoing
• protect and maintain the confidentiality of those who report wrongdoing.

Managers:

• receive reports of serious wrongdoing from employees they supervise, directly or indirectly
• act expediently and impartially in relation to any disclosure made to them, including recording the disclosure and reporting it to a disclosure officer, or accompanying the public official to make their report to a disclosure officer.

Disclosure officers (including principals):

• receive reports of serious wrongdoing from public officials or managers
• act expediently and impartially in relation to any disclosure made to them, including recording this disclosure and reporting it to Professional and Ethical Standards (PES) within 24 hours
• assess the risk to the reporter as a result of their report
• in consultation with PES, take action to mitigate any identified risks.

It is important that disclosure officers can differentiate between a report of serious wrongdoing that may amount to a public interest disclosure (PID) and a report of general misconduct, a complaint or a grievance, because of the way in which they must respond to PIDs.

The PES guidance on misconduct and reporter guide assists disclosure officers in making this assessment.

Professional and Ethical Standards (including the disclosure manager and disclosure coordinators):

• receive and assess reports of serious wrongdoing from public officials, managers and disclosure officers
• assess the risk of reprisal against the reporter as a result of their report
• take action to reduce any identified risks
• respond to reports of wrongdoing, including, where appropriate by investigating and taking corrective action
• implement and manage the department’s Public Interest Disclosures (PID) Scheme
• deliver training, support and guidance to all staff on how to make and respond to a PID, including the Secretary, disclosure officers and managers.

Secretary:

• fosters a workplace culture where reporting is encouraged
• receives reports of wrongdoing from public officials
• ensures department compliance with the PID Act and these procedures.

To be a voluntary PID, the report must be made by a public official.

You are a public official if you are:

• employed by the department, whether you are permanent, temporary or casual, part time or full time
• a person providing services or exercising functions on behalf of the department, including a contractor, subcontractor or volunteer
• an employee, partner or officer of an entity that provides services, under contract, subcontract or other arrangement on behalf of the department, or exercises functions of the department and is involved in providing those services or exercising those functions.

You can make a voluntary PID in writing or orally. A voluntary PID may be made anonymously.

If you chose to remain anonymous, you will still be protected under the PID Act. However, if you cannot be contacted for further information, it may be difficult for the department to investigate your report, manage the risk of detrimental action or make a conclusion about whether the serious wrongdoing occurred.

To be a voluntary PID, you must honestly, and on reasonable grounds believe that the disclosure shows or tends to show serious wrongdoing.

You will not be expected to prove what you reported happened or that it is serious wrongdoing. However, it may be difficult for a report with no supporting evidence to meet the threshold to be assessed as a PID.

Under the PID Act, there are 5 relevant categories of serious wrongdoing (Table 2).

Table 2 Categories of serious wrongdoing

A report may be about more than one type of serious wrongdoing or include information about other types of conduct that do not fall within the PID Act.

Example:

An employee accesses confidential information and shares this with a student via Instagram direct message. The information access and disclosure amount to serious wrongdoing (a privacy contravention), while the communication will constitute a serious child protection allegation of crossing professional boundaries.

Further examples of serious wrongdoing are available in the PES guidance on misconduct.

To be a voluntary PID, a report must be made to certain employees of the department. This includes:

• the Secretary
• a disclosure officer – ordinarily, the most senior person at your worksite will be a disclosure officer. In schools, the principal will be the disclosure officer. Some locations, such as corporate offices have multiple disclosure officers. In the Department of Education, people occupying the following positions are disclosure officers for the purpose of these procedures and the PID Act
  • the Secretary
  • all Deputy Secretaries (Public Service Senior Executive Band 3)
  • all Executive Directors (Public Service Senior Executive Band 2)
  • all Directors (Public Service Senior Executive Band 1)
  • all Professional and Ethical Standards investigators and principal investigators
  • all principals of schools of more than one employee (PDF 890 KB)
  • the most senior ongoing employee at each Department of Education support staff location (PDF 249 KB)
• your manager
  • for employees – your manager will be the person who directly or indirectly supervises you. You may have more than one manager. Your manager will make sure that your report is communicated to a disclosure officer or may accompany you to make the report to a disclosure officer
  • for contractors or contracted entities – your manager will be the employee who is responsible for overseeing the provision of the service you provide or function you exercise, or the employee who manages the contract you are engaged under.

You can also make a PID about serious wrongdoing relating to any agency, not just the Department of Education, or to an integrity agency, like the Independent Commission Against Corruption (ICAC) and the NSW Ombudsman.

A report will be a voluntary PID if it meets the above requirements and is not a mandatory or witness PID.

In the first instance, you should report suspected wrongdoing to your workplace manager. If the alleged wrongdoing involves your manager, you should make your report to their line manager.

You can also make a verbal or written report to a person who indirectly supervises you, to any disclosure officer, or directly to Professional and Ethical Standards (PES) on 7814 3722 or via pes@det.nsw.edu.au.

So appropriate action can be taken, your report should include:

• the name of employees involved in the alleged serious wrongdoing
• the nature of your concerns
• the date, time and location of key events if applicable
• your relationship with the employee/s you are reporting, including whether you work closely with them
• the names and positions of possible witnesses
• other information you have that supports your report.

When you make a report, you do not need to state that you are reporting serious wrongdoing, that your report is a PID, or what category of wrongdoing you are reporting.

You can also make a report to a disclosure officer in another agency, or to an integrity agency.

Details about an agency’s disclosure officers can be found in their PID policy, available on their public website.

If you choose to make a disclosure to another agency (Table 3), it is likely that your report will be referred back to the department, so that appropriate action can be taken.

Table 3 Integrity agencies

Disclosures to MPs or journalists are different from other reports.

You can only disclose a report of wrongdoing as a voluntary PID to an MP or journalist in the following circumstances:

• you have first made substantially the same disclosure to someone who is authorised to receive it (your manager or a disclosure officer)
• the previous disclosure was substantially true
• the previous disclosure was not made anonymously
• you did not give a written waiver of your right to receive information relating to your previous disclosure
• the department did not provide you:
  • notification that the disclosure will not be investigated or referred to another agency
  • information at the end of the investigation period including notice of their decision to investigate, a description of the results of this investigation and details of the proposed or recommended corrective action.

The investigation period means either:

• 6 months after your disclosure was made
• 12 months after your disclosure was made if you applied for internal review of the department’s decision as to how they will deal with the disclosure.

Many people who make voluntary PIDs may want their identity and the fact they have made a report to be confidential.

The PID Act requires that if you make a voluntary PID, your identifying information, including your name, must not be disclosed except for in certain circumstances.

The circumstances under which your information might be disclosed includes:

• if you consent in writing to the disclosure
• if it is generally known that you are the maker of a voluntary PID, because you have told people this
• if the investigator thinks it is reasonably necessary to protect you from detriment
• if it is necessary in the interests of another person affected by the disclosure
• if the information has already been lawfully published
• if it is disclosed to a medical practitioner or psychologist for the purposes of providing you with medical or psychiatric care, treatment or counselling
• for the purpose of proceedings before a court or tribunal
• if it is necessary to deal with the disclosure effectively, for example, to investigate the serious wrongdoing
• if it is otherwise in the public interest.

It may not be possible for the department to maintain complete confidentiality while we progress the investigation, but we will do all that we can to not unnecessarily disclose your identity.

The department will:

• limit the number of people who are aware of your identity or information that could identify you
• ensure that employees who do know your identity are reminded that they have a legal responsibility to keep this confidential
• ensure that only authorised employees have access to emails, files or other documentation that includes your details
• provide you with information about the importance of maintaining confidentiality and ways in which you can manage this in the workplace.

If we cannot maintain your confidentiality, the department will:

• tell you this and in some circumstances request your permission to release your identity
• reassess the risk of detrimental action
• implement risk management action to minimise the risk of detrimental action, if required
• provide you with additional support and information
• remind employees who become aware of your identity of the consequences of failing to maintain confidentiality
• remind employees that the taking of detrimental action may amount to an offence or be grounds for taking disciplinary action.

Detrimental action is an act or omission that causes, comprises, involves or encourages detriment to a person, or a threat of detriment to a person. Detrimental action can be express or implied.

It occurs when a person (generally an employee) suspects, believes or is aware that another person has either:

• made, may have made, may make or proposes to make a PID
• is, has been or may be investigating, or proposes to investigate a PID, whether or not the investigation relates to or arises from the making of a voluntary public interest disclosure or constitutes dealing with a voluntary public interest disclosure.

The suspicion, belief or awareness must be a contributing factor to the taking of the action.

Detriment to a person includes:

• injury, damage or loss
• property damage
• reputational damage
• intimidation, bullying or harassment
• unfavourable treatment in relation to another person’s job
• discrimination, prejudice or adverse treatment
• disciplinary proceedings or disciplinary action, or
• any other type of disadvantage.

An employee who takes detrimental action against another employee who has made a PID (whether voluntary, witness or mandatory) has engaged in misconduct.

Under the PID Act, taking detrimental action is a criminal offence. It may also result in an employee, or the department being liable for compensation.

Detrimental action can range in severity. Examples of detrimental action may include making negative comments about a colleague in a team meeting, placing an employee on a performance improvement program or ceasing their temporary contract.

Reporting suspected detrimental action

If you experience adverse treatment or treatment that you think might be detrimental action, you should report this immediately.

All allegations of detrimental action must be reported to Professional and Ethical Standards (PES). You can do this by telling the investigator responsible for investigating your report, by contacting PES of 7814 3722 or by emailing the disclosure coordinator at pes@det.nsw.edu.au.

Reasonable management action

The PID Act defines reasonable management action. It provides that even if an employee has PID status, reasonable management action will not be detrimental action.

Actions that may be reasonable management action, if reasonable in and of themselves, include:

• an appraisal of an employee’s work performance
• the taking of risk management action
• a decision to investigate alleged misconduct
• the taking of disciplinary or remedial action
• a decision to transfer, deploy or redeploy an employee
• a decision to cease an employee’s temporary contract or employment via redundancy.

In making a PID, you may be required to breach or disregard your duty to keep a matter confidential. If that happens, you cannot be disciplined, sued, or criminally charged for breaching confidentiality as a result of making a voluntary PID.

If in making a voluntary PID, you disclose your own wrongdoing or misconduct, you will not be protected from liability.

However, the Attorney General can give the maker of a voluntary PID an undertaking that a disclosure of their own past conduct will not be used against them if, while making their report, they disclose their own wrongdoing or misconduct.

This undertaking can only be given on application by an integrity agency to the Attorney General.

The Preliminary Investigation Team (PIT) in PES is responsible for receiving, assessing and determining appropriate action in relation to allegations of misconduct against employees.

All reports of wrongdoing that may reach the threshold for misconduct, or that may be a voluntary PID, must be referred to PES for assessment.

If you make a PID or a purported PID, the PIT will refer your report to the disclosures coordinator for consideration of whether the report has the features of a PID. Following this assessment, the disclosures coordinator will write to you with their determination.

If your report is a voluntary PID, you will receive:

• an acknowledgement that your report has been received, that it is a voluntary PID and that the PID Act applies
• information about accessing the department’s PID procedures
• details of available supports.

PES will inform you as soon as possible how we intend to deal with your report. In most cases this will involve PES investigating the alleged serious wrongdoing.

If PES decide not to investigate your report (or refer the report to another agency to investigate), you will be advised of this, along with the reasons for this decision. PES will also provide this information to the NSW Ombudsman.

If your report is not a voluntary PID, it may still be investigated. In some cases, including if the alleged conduct does not reach the threshold for misconduct, the matter may be referred to the appropriate manager for direct management action.

Further information on misconduct and the threshold for investigation can be found in the guidance on misconduct.

See ‘section 6 Review of certain decisions relating to voluntary public interest disclosures’ for the options available to you if you disagree with the decision to discontinue the investigation or to not classify your report as a voluntary public interest disclosure.

In conjunction with workplace managers and disclosure officers, PES will assess and take steps to manage risk and prevent detrimental action being taken against the maker of a voluntary PID, the person whose conduct is subject of a PID, investigators and witnesses.

PES will do this by:

• conducting an initial and ongoing risk assessments to document the identified risks and applicable treatments
• implementing risk management action, including for example by issuing directions, removing the person subject of the allegations from the workplace, arranging alternative working arrangements for the voluntary PID maker
• providing information to the employee subject of the report about public interest disclosure and the consequences of taking detrimental action
• communicating with the maker of the voluntary PID regularly to ascertain any new or emerging risks
• providing the maker of the voluntary PID with supports, preferably within their workplace.

If PES decides to investigate the alleged serious wrongdoing, you will be provided with the contact details of an investigator who will give you updates on the investigation at least every 3 months. If you would like more frequent updates, you can request these.

Generally, the investigation will consider whether the serious wrongdoing disclosed in the report occurred, who was involved, who was responsible, and whether the people involved or the agency engaged in serious wrongdoing or misconduct.

If you have made an anonymous report, we will not be able to provide you with updates on the progress of the investigation.

The department will not tolerate an employee taking detrimental action.

PES is responsible for reporting on and referring or investigating allegations of detrimental action.

If the department becomes aware of an allegation that a detrimental action offence has or may have occurred, we will:

• notify the NSW Ombudsman
• take action to stop or prevent the conduct and protect the employee subject of the alleged detrimental action. This may involve taking further risk management action
• refer any evidence of a detrimental action offence to the Commissioner of Police and the Independent Commission Against Corruption
• investigate the allegation of detrimental action and if substantiated, take appropriate corrective action.

If, after the investigation, it is found that serious wrongdoing occurred or detrimental action was taken against a reporter, the department will take appropriate action to address the conduct. The PID Act describes this as taking corrective action.

In most cases, this will include the delegated decision maker, the executive director or a director in PES, taking disciplinary and/or remedial action against the employee or employees who engaged in serious wrongdoing or misconduct.

Other types of corrective action include:

• a formal apology
• improving internal policies to adequately prevent, detect and respond to similar instances of wrongdoing
• providing additional education and training to staff where required
• the payment of compensation.

The department’s Chief Risk Office (CRO) also has a role in responding to serious wrongdoing.

The CRO is responsible for managing the department’s Fraud and Corruption Control Framework and enabling business areas in the department to prevent and detect fraud.

Following an investigation into serious wrongdoing, PES may refer information to the CRO.

The CRO may make recommendations or suggest controls to mitigate identified risks and further promote an ethical, speak up culture.

Once the investigation is complete, you will be provided with the following information:

• whether, based on the available evidence, the serious wrongdoing took place
• what corrective action was taken or will be taken as a result of the investigation, both:
  • in relation to the person who engaged in the serious wrongdoing
  • if applicable, the structure or procedures that allowed or enabled the serious wrongdoing to occur.

If you have made an anonymous report, we will not be able to provide you with advice on the outcome of the investigation.

Under the PID Act, employees who make voluntary PIDs can seek a review of some decisions made about their report.

This includes:

• an assessment that a report is not a voluntary PID
• a decision to stop dealing with a report as a voluntary PID
• a decision not to investigate the serious wrongdoing, without referring it to another agency
• a decision to cease investigating the serious wrongdoing prior to completing the investigation, without referring it to another agency.

Internal reviews of these decisions are conducted in compliance with the PID Act.

If you would like to make an application for an internal review, you must apply in writing within 28 days of being notified of the reviewable decision.

Your application should be forwarded to pes@det.nsw.edu.au, attention to the disclosures coordinator and should state the reasons why you consider the decision should not have been made. You may also submit any relevant material with your application.

Decisions made under these procedures are not reviewable under the Staff Complaint Procedure (PDF 638 KB).

Disciplinary decisions made following an investigation into serious wrongdoing are not reviewable except where provided for by legislation, including for example, the Industrial Relations Act 1996.

If a dispute arises, we may request the NSW Ombudsman to conciliate the dispute.

Conciliation is a voluntary process and will only be suitable where the department and the maker of the report are willing to resolve the dispute.

Under the PID Act, employees have an obligation to use their best endeavours to assist an investigation into serious wrongdoing which came about because of a voluntary PID.

A report made by an employee who provides information either under their duty or as a witness to an investigation into serious wrongdoing will be a mandatory or witness PID.

Employees who make mandatory and witness PIDs are also entitled to protections under the PID Act. These protections include:

• protection from detrimental action
• a right to seek an injunction to prevent, or compensation to remedy detrimental action
• immunity from civil and criminal liability.

The maker of a witness PID will only receive immunity from civil and criminal liability if the information they disclose is relevant to the investigation or if it constitutes a new disclosure, showing or tending to show wrongdoing.

While not required by the PID Act, where possible and provided it does not hinder an investigation, the department will endeavour to maintain the confidentiality of those who make witness and mandatory PIDs.

Director Investigations, Professional and Ethical Standards

pes@det.nsw.edu.au

(02) 7814 2275

The Executive Director, Professional and Ethical Standards monitors the implementation of this procedure, regularly reviews its contents to ensure relevance and accuracy, and updates it as needed.