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Bad Apple Bully school principals and departmental officers can bully Australian teachers into ill health - and out of work!

Queensland teachers - be ready to deal with the Department of Education disciplinary process.

The Queensland Department of Education's disciplinary process can take an extraordinary time.

As the months of investigation and deliberation go on and on, the process becomes increasingly stressful.

To protect yourself, it is vital to carefully follow changes and developments in the department's policies and procedures.

Then keep to them really carefully. 

Do not make the mistake of believing that the department's investigators will be understanding of the reality of life in the classroom.

 

The April 2018 QTU journal contains some excellent legal advice for teachers facing investigations

Criminal investigations

The QTU will grant full legal assistance for any QTU member who is asked to respond to a police inquiry arising from their work as a teacher. 

 

Take details from the police officer.

Ask to speak to the QTU lawyers before answering any questions.

Be aware that the police are entitled to record conversations without telling you.

The recording can be used against you.

 

If the complaint results in a criminal charge, the criminal trial must usually occur before the department will address the complaint. 

 

Alleged code of conduct breach investigations.

If the matter does not involve a complaint to police, or if the police decline to charge you, the department will commence an investigative process.

The department's Ethical Standards Unit may appoint an investigator or oversee an investigation by regional office staff.

For a minor matter, the investigation will be conducted informally (see below).

The investigator decides whether the allegation can be substantiated.

Investigators play an essential part in the discipline process.

All interactions with investigators must be given serious consideration.

Many of the department's investigators have experience in the Queensland Police Service.

They are experienced interrogators.

Once the investigation phase is complete, you can be asked to wait months while the department considers its next step.

 

Substantiated findings and penalty outcomes.

Once an investigator decides whether an allegation can be substantiated, the department's Workforce Review Unit will review the material and decide whether to issue you with a "show cause" notice. 

The role of the Workforce Review is to review the investigation material, ask you for your response and then decide what the appropriate penalty is.

If a "show cause"  notice is issued, you will have only 14 days to respond.

It is essential to seek help from the QTU if you receive a"show cause" notice.

Once you respond, you can again be asked to wait months for the Workforce Review Unit to make a decision.

If the Workforce Review Unit finds that any allegations are substantiated, a second "show cause" letter will propose a penalty, ranging from a reprimand or a drop in pay to a transfer or dismissal.

You will have seven days to respond.

It is essential to seek assistance from the QTU at this stage also.

 

Examples of serious breaches of the code of conduct -

 * using the corporate credit card to buy alcohol.

 * interfering with NAPLAN test papers to improve grades.

 * operating a home business (e.g. eBay store) during class time.

 * failing to comply with mandatory reporting obligations.

 

Minor breaches of the code of conduct. 

In the case of a minor breach of the code of conduct, an investigation may be conducted by the region, the school or principal.

The maximum penalty is a caution.

There is no right of appeal against a caution.

This may seem unfair, but minor investigations are fast and do not suffer the delays of more serious investigations.

If you have received a caution and do not agree one should have been imposed, seek QTU support to ensure your response to the allegation is clearly recorded in writing and placed on your file.

 

Examples of minor breaches of the code of conduct -

 * swearing in the staffroom.

 * swearing in a classroom.

 * pushing a student into line.

 * snatching a hat off a student's head.

 * Other minor student-related complaints.

 

Student protection investigations

During 2017-2018 the department has pursued an increased number of investigations into alleged failures to follow the mandatory reporting rules.

Failure to report suspected s-xual abuse of a student under the age of 18 years, as required by section 365 of the Education (General Provisions) Act 2006 (QLD), has been the main source of these investigations.

It is essential that you contact the QTU immediately should you find yourself in this situation.

 

Giving evidence as a witness

If asked to give evidence against a colleague, take care to avoid any admission of involvement or that you have otherwise breached the department's code of conduct.

Even if invited to participate as a witness only, if investigators suspect you have breached the code of conduct, the investigation process may be turned on you

 

 'D' for discipline, Edmund Burke, Holding Redlich Lawyers , p. 29, the Queensland Teachers' Journal, Volume 123 Number 3, 13 April 2018

Edmund Burke, Holding Redlich Lawyers

When serious allegations are made concerning you.

The February 2018 QTU Journal contains some excellent legal advice for Queensland teachers facing allegations -

 

Treat all allegations very seriously.

Do not be hurried into a speedy response.

Be aware of the potential pitfalls in how you respond.

 

Your first response to any allegation concerning you is vital.

Your first response to any serious allegation can make the difference between facing a lengthy suspension and official disciplinary action or having the matter dealt with swiftly and sensibly at school level.

 

The allegations.

Common allegations concerning Queensland teachers include  -

 * hitting a student

 *  indecently touching a student

 *  aggressively shouting or yelling at a student in class.

Sometimes these allegations can be easily disproved.

If they are taken seriously by the accused teacher from the very beginning, it can make a hugely positive difference to the outcome of the investigation.

 

An increasing number of Queensland teachers and school administrators are facing allegations that they -

 * failed to make a mandatory report of suspected abuse under Queensland's strict mandatory reporting laws, either at all or "immediately", as is required by section 365 of the Education (General Provisions) Act 2006.

The department's policy on mandatory reporting is based on the act, but is actually more onerous.

 * How you make your report

 * and how you answer any disciplinary allegations concerning you

can be vital.

 

The 'hurdles' 

There is an almost limitless list of allegations that can be made against a teacher.

But there are generally three levels of potential legal "hurdles" that need to be cleared when more serious allegations are made concerning you.

These are :

 * criminal proceedings

 * disciplinary proceedings by the department

 * professional registration proceedings by the Queensland College of Teachers. 

 

Your response

When you are first made aware of an allegation, you may be tempted to respond quickly, and even worry that a delay in making your statement may cause suspicion of "guilt". 

The reality is that if your response is not carefully considered, important matters may be left out or inappropriate statements made.

 

For example, if a physical intervention has taken place with a student, it is important that you put it in a proper context.

The events leading up to the intervention should be carefully recorded, along with any directions given by you to the student before the intervention took place.

For the criminal hurdle, you must show that you intended to protect both the student involved and the other students from harm.

For the department and college, it is important to show that any force used was proportionate and that departmental guidelines were followed.

 

You are required to report suspected s-xual abuse as soon as possible, but when you form a suspicion we recommend that you immediately sit down and write out a factual account of what happened.

For example, "student A came up to me in the playground and told me that Mr B had been tickling her in the classroom". 

The statement will be vital as the basis of making the report in the department's system and as the basis for police statements later, should that be necessary.

 

In summary, your first response is always vital, and you should make sure it is accurate, detailed and honest while not omitting important information or making careless statements.

 

If you are unsure about how to respond to al allegation or feel pressured to respond too quickly, contact the QTU for advice.

Where necessary the QTU will refer the matter for legal advice.

 

You need to get it right first time every time,  Edmund Burke, Holding Redlich Lawyers , p. 29, the Queensland Teachers' Journal, Volume 123 Number 1, 3 February 2018

Edmund Burke, Holding Redlich Lawyers

 

Yes, you must report s-xual activity between students.

S-xual activity between students, even between willingly participating students, can be s-xual abuse.

Holding Redlich Lawyers recommend reporting all s-xual activity between students as an SP4 (report of suspected harm or risk of harm).

In 2018, expect an increased focus on criminalisation of failure to report s-xual abuse of children.

In its interim report, the Royal Commission into institutional Responses to Child S-xual Abuse  states : "We are satisfied that there are good reasons for the criminal law to impose obligations on third parties to report to police in relation to child s-xual abuse." ( Criminal Justice Report, Page 49, Interim Report, 14 August 2017).

Between the introduction of mandatory reporting for Queensland teachers and principals on 19 April 2004 and the start of 2017, the QTU never had a request for assistance with a police investigation into failure to report.

Holding Redlich Lawyers is aware of one example in an independent school. 

From the start of 2017, however, there have been two police investigations, one of which has resulted in a criminal charge against the teacher.

Since the release of the Royal Commission's report, the QTU had assisted four members to respond to police investigations into allegations that they failed to report s-xual abuse.

In each of the four matters, the s-xual abuse being investigated is s-xual activity between students.

Mandatory reporting obligations require the report of s-xual abuse of students under 18 years. 

Students under the age of 16 years cannot consent to s-xual activity of any type.

Therefore, even if it appears the student was a "willing" participant in the s-xual activity, it is potentially a criminal offence to  fail to report.

Also, consider the situation of a "willing" participant who comes to regret the s-xual activity because of peer bullying, or a student under the pressure of a disapproving parent who says "I didn't want to do it" in their own defence.

When considering whether to report s-xual activity, a supportive parent is irrelevant.

You must report even if there is a supportive parent acting protectively.

The mandatory reporting obligations are contained in two pieces of legislation in Queensland - 

Child Protection Act 1999 (QLD)

Under s13E of the Child Protection Act 1999, a teacher, registered nurse or early childhood education and care professional must give a written report  when they reasonably suspect a child has suffered or is at risk of suffering significant harm caused by physical or s-xual abuse and may not have a parent able and willing to protect the child from harm.

Education (General Provisions) Act 2006 (QLD)

Under s365 & 365A of the Education (General Provisions) Act 2006, a school staff member must immediately give a written report to the principal or the principal's supervisor when they become aware or reasonably suspect the s-xual abuse or likely s-xual abuse of a student under 18 years.

While the Child Protection Act is concerned with parents able and willing to protect, that is an irrelevant consideration when the matter relates to s-xual activity.

 

The requirement is for "immediate" reporting.

 

The department has published a policy which extends to 64 pages in length.

There is a "traffic lights" brochure which is promoted in various places by the department to identify "normal" s-xualised behaviour.

Neither satisfactorily covers how mandatory reporting works.

Neither has anticipated the increasing criminalisation of failure to report arising since the Royal Commission's recent report.

If you think you need to refer to a policy to decide whether to report, Holding Redlich Lawyers recommend you complete an SP4 immediately.

By the time you have finished reading the 64 pages, as well as the related policy documents, police are likely to have arrived to question you on your failure to report.

 

Report everything; report often; report in writing, Rachel Drew, Holding Redlich Lawyers, p. 27, Queensland Teachers' Journal,  Volume 122 Number 8, 3 November 2017

Rachel Drew, Holding Redlich Lawyers.

 

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