Purpose of investigations and the role of PES

Investigations undertaken by PES 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.

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 and Public Service
• ensure that the public interest is protected.

Your contact at PES

The PES investigator is your key contact when a matter is being investigated by PES. You or your representative can contact the investigator or their Team Director if you would like information about the investigation process or progress.

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 a PES 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, all stakeholders will be advised and the investigation will be completed at this stage.
• 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.

Roles within the investigation process

Allegations of misconduct are initially assessed by an investigator from the PES 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 made by witnesses 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 the Executive Director of PES 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 investigation

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.

PES 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 PES.

Your role in the investigation

Reporting an incident or providing information about what you know is the right thing for students and parents to do. The department wants to support witnesses in being able to raise issues about the conduct of an employee so they can be addressed.

In some cases you may be contacted by an investigator from PES to provide information to an investigation. PES or the principal of your child’s school will seek permission from a parent of a witness before it is used in a disciplinary process.

Interviews

Getting the information directly from a witness is an important part of getting to the truth in an investigation. Interviews can be conducted over the phone, through a video conference or in person by a trained PES investigator.

All witnesses will be asked to tell the truth and to have the interview audio recorded.

Witnesses will often be asked what they saw or heard. They may also be asked who else may have information and to provide documents or records.

You should contact the investigator after an interview if any new or relevant information comes to light.

A support person

A witness can choose to have a support person assist them during the investigation process. They can attend meetings and interviews with the witness.

The support person does not require special qualifications and can be a parent, trusted school staff member or family friend but should not be involved in the investigation. The support person provides emotional support to the witness and can ask to take a break on behalf of the victim.

The support person cannot be a witness or otherwise implicated in the investigation.

It is helpful for the investigator to be told the name of the support person in advance of the interview.

Our experience is that some students may feel uncomfortable providing information about sensitive events in the presence of a family member or other adult. An investigator may speak to a parent or carer about whether a particular support person is the best choice for the student witness. However, the choice to have a support person will be up to the witness and their family.

The investigator will need to stop the interview where a support person is answering on behalf of a witness. If a support person believes they have relevant information they should provide this to the investigator at a separate time. This ensures that evidence isn’t contaminated.

After an interview, the investigator may speak to the student witness’ parent or carer about the information provided and any concerns the student raised to ensure they are supported.

Maintaining confidentiality

Care is taken by PES to maintain confidentiality. This protects the integrity of the investigation process and preserves the privacy of the parties concerned. There are limits, however, to confidentiality and in some circumstances information will need to be disclosed.

PES may need to disclose information to:

• ensure the safety of parties and manage risk
• progress an investigation
• meet legal obligations to share or report information to other agencies including: Police or the Department of Communities and Justice
• ensure fairness for an employee subject to allegations including providing:
  • the names of victims and witnesses so that an employee can respond to the allegations
  • the evidence collected and relied on to make findings where disciplinary action is proposed so the employee can respond to the proposed action.

All witnesses 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 their personal health or support needs.

Where there are risks that a witness or their family may inappropriately share confidential information and in turn, jeopardise an investigation, PES may limit the information that can be provided.

Disabilities and serious health conditions

PES takes seriously its responsibilities to identify and hear all witnesses.

PES will take additional steps to accommodate the particular needs of students with disabilities and/or serious health conditions.

Please tell the investigator about any additional considerations that should be accommodated to assist you give the best information you can.

The Office of the Children’s Guardian (OCG)

The OCG oversights workplace investigations when the allegations involve:

• a sexual offence
• sexual misconduct towards or in the presence of a child
• ill-treatment of a child
• neglect of a child
• an assault against a child
• an offence under s 43B (failure to protect) or s 316A (failure to report) of the Crimes Act 1900; and
• behaviour that causes significant emotional or psychological harm to a child.

More information about the role of the OCG is available.

Storage and sharing of information obtained during the investigation

All records relating to investigations are kept by PES under restricted access. This includes evidence relating to the case and its outcome.

As part of the finalisation process for matters involving reportable conduct, a copy of the PES investigation file may be sent to the OCG. The OCG assesses whether or not the matter was properly investigated and if appropriate action was taken.

Some matters do not need to be reported to the OCG. The OCG may still review the file.

More information about the role of the OCG is available.

Information shared with student witnesses and their families

PES will give relevant information about investigations to students, their parents or carers where an employee is alleged to have engaged in reportable conduct against them. This includes the progress of an investigation, the findings and the action taken.

Parents, carers or students may contact the investigator directly at any time and seek clarifying information about various aspects of the investigation.

Support for witnesses

You can access support during the investigation process through your school principal. This may include welfare checks on a student or arranging access to school counselling services.

If you are having difficulties accessing support or the support available to the witness is not adequate, please contact the investigator so that they can help you further with referrals

If you are seeking support to privately fund counselling or want to seek recompense as a result of the conduct of an employee of the department, the investigator can assist in referring these issues within the department.

Additional external support services for students include: Child and Adolescent Mental Health Services and Headspace.

Possible outcomes

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.

Investigations that do not progress to disciplinary action

Investigations that do not progress to formal disciplinary action may be finalised because:

• there was no or insufficient evidence to indicate that the alleged conduct occurred
• there was some evidence that the alleged conduct occurred, but not enough to indicate misconduct
• while there is evidence that the alleged conduct occurred, other management action is more appropriate. E.g. training and development.

If you have any questions about the outcome of an investigation you should contact the investigator directly.

Complaints

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 the Executive Director of PES at: PES@det.nsw.edu.au. A complaint will not result in the review of final action taken against an employee including disciplinary actions.