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Child Protection (ACT): Responding to Complaints Against Employees |
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Related Policies: |
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Child Protection Purpose:This policy addresses the obligation of the Catholic Education Office on behalf of the Archbishop and the school to investigate complaints made against an employee where the complaint raises issues such as the employee's relationship with a student or the employee's conduct towards or with a student. The primary objective of this policy is the safety and well being of children. This policy aims to ensure that principles of natural justice are employed to ensure that:
Policy:A complaint made against an employee of the Catholic Education Office (CEO) which raises concerns for the safety and well being of a child or young person will be subject to inquiry by the employer using procedures outlined in this policy. All such complaints must be notified immediately to the Catholic Education Office (CEO) Human Resources Division. The employee against whom the complaint is made may expect a fair inquiry process which includes:
If there is a departure from rules of procedural fairness in particular cases the reasons for the departure must be documented. The appropriate response by the employer to each complaint and each employee must be determined by reference to the particular, factual circumstances surrounding each case. When planning a response to a complaint, careful consideration should be given to the particular vulnerabilities of any child(ren), employee, witness or notifier of which the employer or investigator becomes aware. The procedures adopted in response to the complaint should aim to minimise anxiety and to demonstrate sensitivity, compassion and respect for all involved while maintaining the integrity of the inquiry process. If a complaint alleges abuse or neglect the matter must be referred to the ACT Department of Family Services. In some cases the Police may be involved. In cases involving abuse or neglect, the employer must await the advice the Department of Family Services or Police as to when an employee is informed of the complaint or when the inquiry may be commenced. The employer will liaise closely with such statutory agencies to ensure that the matter is dealt with fairly and efficiently.Definitions:Abuse Under the Children and Young People Act 1999 (ACT) abuse, in relation to a child or young person means –
Child Under the Children and Young People Act 1999 (ACT), is a person who is under 12 years old. Class or Kind Matters The “Class or Kind” definition is relevant only to employees working in NSW. The definition is included in the ACT policy to illustrate the type of matters that are best managed at school level rather than by CEO personnel. Extracted from Determination by the NSW Ombudsman under Section 25CA of the Ombudsman Act concerning the Catholic Education Office, Canberra and Goulburn
1. Any alleged physical assault claimed to have resulted in more than transitory harm or injury, such as bruising, abrasions, welts, stiffness of the body part or area must be notified to the Ombudsman. 2. One-off incidents that in themselves are exempted but which reflect an increasing seriousness may constitute escalated behaviour requiring notification. Employee For the purposes of this policy means any person engaged either by the school or the Catholic Education Office for any work or activities of the school or Catholic Education Office that relates to children and includes any individual engaged by the agency to provide services to children (including in the capacity of a volunteer). Employer For the purposes of this policy means the Director of Catholic Education or the Director's delegate. The school Principal may be delegated to assume particular roles on behalf of the Director. Ill-treatment Ill-treatment of a child occurs where an employee disciplines or corrects a child in excess of what is reasonable or appropriate for the situation. Any punishment administered by a person in authority that [unreasonably] restricts a child's freedom or makes excessive and unreasonable demands on them amounts to ill treatment. (NSW Ombudsman, Child Protection in the Workplace: Responding to Allegations Against Employees pp 39 - 40) Inquiry An inquiry into a complaint includes any preliminary or other inquiry into, or examination of, the matter. Neglect Under the Children and Young People Act 1999 (ACT) neglect of a child or a young person, means a failure to provide the child or young person with a necessity of life that has caused, is causing or is likely to cause the child or young person significant harm to his or her wellbeing or development. Examples of necessities of life: Food, shelter, clothing and medical care. Physical assault Physical assault involves a ‘hostile act' by the employee towards the child. The assault occurs regardless of the employee's intention to harm the young person or child and regardless of the child's consent. Assault can include pushing, shoving, hitting, smacking, threatening behaviour (verbal or actions) that causes the child to fear that an assault is likely to occur. Physical assault of a child under common law principles, must include all three of the following elements:
Actual physical harm does not have to occur in order for assault to have occurred. Physical contact which is an inevitable or accepted part of everyday life does not amount to an assault. Psychological Harm Psychologically harmful behaviour is behaviour that results in significant harm or trauma to a child. There needs to be a causal link between the inappropriate behaviour and the harm. For a matter to involve reportable conduct of psychological harm, the following must be present:
Reportable Allegation A reportable allegation means an allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct. (NSW Ombudsman, Child Protection in the Workplace: Responding to Allegations Against Employees pp 47) Where the behaviour suggests that the allegation:
This includes breaches of boundaries of code of conduct, inappropriate use of power relationship, targeting children for specialised treatment, inappropriate touching (but not sexual), inappropriate relationship (not sexual) between an adult and a child that breaches community standards, taking children home in breach of agency guidelines. Reportable Conduct For the purposes of this policy, reportable conduct is the conduct so defined by the Ombudsman Act 1974 (NSW). This definition is included to assist determination of the level of response required by the Principal and the Catholic Education Office. Complaints which meet the definition of “Reportable Conduct” and which do not attract an exemption will normally be managed by a Human Resources Officer. Reportable conduct means:
Reportable conduct does not extend to:
Young Person U nder the Children and Young People Act 1999 (ACT), a young person is a person who is 12 years old or older, but not yet an adult. Procedures:The Principal, in consultation with a Human Resources Officer, will determine whether a complaint is of a matter which should be managed by a CEO Human Resources Officer. In all cases the procedures outlined in this policy must be reasonably followed according to the particular facts and circumstances of each complaint. 1. Record the Complaint The Principal, or person receiving the complaint, records in writing information from the complainant using the person's exact words and advises that the complaint will be acted upon. In recording the complaint the Principal or other person receiving the complaint notes WHO is involved, WHAT happened, WHEN did it happen, WHERE did it happen, HOW did it happen. It is important that this initial step is not rushed. The Principal should take time to read over the information and ensure that the notes taken are an accurate statement of the information received from the complainant. 2. Confer with the Human Resources Officer The Principal must inform their Human Resources Officer of the initial details of the complaint. Together they determine action to be taken based on the following questions: Q: Is this a complaint which should be managed by the CEO? The Principal and HR Officer may use the NSW standard to assess whether the complaint is of level or sensitivity which requires CEO involvement. The Principal may make some preliminary enquiries to assist this determination. A: If it determined that the complaint is a low level matter, it should be resolved at school level using modified procedures from this policy and the School Level Response Flowchart. All relevant information including details of the complaint, signed transcripts of interviews, correspondence, recommendations and findings are forwarded to the CEO for secure filing. If it is a higher-level complaint or a sensitive issue, the resolution of the complaint will be managed by a HR Officer using procedures outlined in this policy. Q: Are there reasonable grounds to suspect a child is at current risk of harm? Are there reasonable grounds to suspect that the employee or employee's colleagues are at risk? What risks are there to the school, to confidentiality or to the resolution of the complaint? A: A risk assessment is made. Appropriate decisions must be made to respond to any perceived risk. In the ACT, the Children and Young People Act 1999 ( ACT), legally requires teachers, counsellors and carers as mandated people, to report to Family Services when they have formed a reasonable suspicion that a child or young person has suffered or is suffering sexual abuse or non accidental physical injury. Although the law requires that teachers and counsellors notify physical and sexual abuse, these guidelines also apply to the other categories of abuse. Section 159 of the Act legally requires mandated persons to report to Family Services when the abuse of children falls under the following categories:
Failure by a mandated person to report the abuse of a child or young person may result in a fine or imprisonment for 6 months or both. If the HR Officer or Principal is unsure when making assessments regarding notification to Family Services, he or she should seek advice from the Head of Human Resources or from the ACT Family Services (Northern Line on 6207 1069; Southern Line 6207 1466).
3. The Parents/Guardians of the child are notified. The parents/guardians of the child will be advised by the School Principal that the allegation has been received and that the investigation process has commenced. In matters alleging reportable conduct notification should also be confirmed in writing. A sample letter advising parents/guardians of the allegation will be provided by Human Resources. It is important that the notification to parents occurs as close as possible to the notification to the employee (Step 5). 4. The Investigation Process is Planned The Principal and the HR Officer, having regard to the nature of the allegation and particular school / community characteristics, plan the investigation in line with the system protocol. An investigator (or panel of 2 investigators) will be appointed by the Principal / HR Officer. 5. Principal and staff member meet. Principal meets briefly with staff member to:
The employee also receives this advice in writing. 6. Staff member may make an initial response In some cases the staff member may wish to acknowledge that the allegation is true. An admission that the allegation is true should be recorded in writing, signed and dated by the employee. No further investigation may be required, the Principal/HR Officer proceeds with step 9. The staff member may request an interview early in the process in order to clarify procedural matters or to provide initial information. The Principal and the HR Officer managing the case must consider the staff member's request for an early interview. Arranging an early interview will not preclude the holding of the later interview outlined in step 9 below. 7. Interviewing witnesses and gathering information Using the draft investigation plan as a guide the investigator(s) proceeds to gather relevant information. The need for confidentiality must be stressed with all witnesses and parties concerned. Investigators must have concern for the developmental stage of child witnesses. Questions should be planned in advance keeping in mind what information the interviewer is seeking or seeking to assess or clarify. Questions should be open and not leading. Investigators may need to re-interview witnesses to clarify as far as possible inconsistencies in recall of facts between witnesses. Child witnesses should not be interviewed formally without parental permission. Parents may be present for the interview but may not participate unless directed by the investigators. Records of interview should be read, signed and dated by the witness. If the witness refuses to sign the record of interview the investigators should document both the request and the refusal. If the witness disputes the accuracy of the record of interview, he or she should be asked to indicate in writing what he or she believes was actually said. 8. The employee is interviewed and responds to the complaint. Following information gathering and clarification of facts the investigator(s) are able to present the allegation to the employee for his or her response. The employee must be given reasonable notice of the time and location of the interview. The employee will be advised of the identity of the alleged victim except where the employer has compelling reason not to disclose the identity; such compelling reasons must be comprehensively documented. The identity of the notifier should not be automatically disclosed to the employee or witnesses interviewed during the investigation unless:
During the interview the employee must be fully informed of the information that has come to the investigators regarding the allegation. The employee must be given every opportunity to respond to the allegation and any information adverse to his or her interest. The employee may be questioned to seek further information or to clarify matters. The employee should be given an opportunity, as soon as practicable, to read, verify / amend, date and sign a copy of the record of interview. If he or she refuses to do so, the investigator(s) should record both the request and the refusal. 9. Finding
10. If it is found that conduct which generated a high risk complaint did occur or if there is some evidence that it did occur, the employee is advised of the preliminary finding and proposed action by the employer. The Head of Human Resources informs the employee of the preliminary finding. The employee is provided with the opportunity to respond to an adverse finding within 10 working days. The employee is advised of any proposed disciplinary action or support initiatives. The employee is advised that she or he may request to view the file. The employee is offered support including an offer of counselling at no cost to the employee and, if the staff member wishes, a support person who can assist debrief regarding the investigation. This information is conveyed in writing. 11. Confirming a finding The employee's response to an adverse finding will be given due consideration. The Head of Human Resources determines the finding, consulting where necessary with the Human Resources Officer managing the case and the Principal and advises the Principal of the finding. The Head of Human Resources advises the employee in writing of:
12. Parents are notified of the conclusion of the process. At the conclusion of the process, the parents/guardians of the child who was the alleged victim of the notification are informed that the investigation process has been completed. Generally, parents/guardians are not entitled to know the outcome of the investigation. Findings are confidential to employer and employee. Further parental enquiries regarding investigations or findings should be directed to the Head of Human Resources. 13. The File is closed The following documentation will usually be required before the file is closed:
14. Apologies With the commencement of the Civil Law (Wrongs) Act 2002 (ACT) on 1 November, 2002, in most cases the giving of an apology is no longer an admission of fault of liability. Part 2.3 of the Act provides that “an oral or written expression of sympathy or regret, or of a general sense of benevolence or compassion, in relation to an incident” (s 13) “is not (and must not be taken to be) an express or implied admission of fault or liability by the person in relation to the incident; and is not relevant to deciding fault or liability in relation to the incident.” (s 14s) The following text from the NSW Ombudsman's Child Protection Guidelines offers further information on offering apology to students, parents and employees. “The most common instances where it would be appropriate for an apology to be given will be where conduct has not been of a standard expected by a school. If such behaviour does not constitute an intentional infliction of physical or sexual harm, then an apology may be given that not only expresses regret for the detriment suffered, but also provides some explanation for the way the situation occurred (eg accident, oversight, inadvertence, distraction, etc). An agency should consider apologising (to the employee) for distress caused by an investigation into an allegation against an employee where the matter is not sustained and the employee suffered some detriment in the course of the investigation. An apology can express regret for that detriment. This can be done while still maintaining that the action causing the detriment (eg temporary transfer to other duties) was a necessary part of the investigation (which may also have been in the best interests of the employee). Where an investigation has been conducted less than perfectly, for example, if the completion of the investigation was unnecessarily delayed or there was a breach of confidentiality or some other procedural error, an apology, including an explanation for the deficiency in the investigation, should be made for any detriment or distress caused.” (NSW Ombudsman, Child Protection in the Workplace: Responding to Allegations Against Employees pp 13 - 14) 15. Dispute Resolution. In the event of disputation about the investigation, determination of findings and disciplinary action, the employee is entitled to request that the particulars of the matters in dispute be referred to an appropriate means of dispute resolution. 16. Security of Records and Documentation All documentation relating to allegations and ongoing investigations must be maintained in a secure and confidential environment with access restricted to the person conducting the enquiry and other authorised person(s). Information regarding the allegation, investigation and finding should not be noted in any personal record maintained in relation to the employee. This means the information must be removed from any records or files such as personnel, student records or similar files. Such records should be forwarded to the CEO for confidential and secure storage: they must not be destroyed. 17. Employee's access to investigation file An employee may, subject to reasonable notice, apply to inspect the investigation file regarding an allegation of reportable concerning him or her. Access may be granted to the investigation file' prior to the completion of the investigation, in exceptional circumstances. Before an employee is given access to the file advice from the Catholic Commission for Employment Relations should be sought regarding documents or parts of documents which must be excluded from employee access. Exclusions will be made to protect the identity of victims and notifiers and to ensure compliance with privacy and other legislation. The employee, having inspected the file, may submit additional documentation that will be added to the investigation file by way of amendment, correction or clarification of information held on the file. If the employee contends that the additional or clarified information was relevant to the finding application for a review of the finding may be made. 18. Matters of Jurisdiction Any matters of jurisdiction should be referred to the Human Resources Officer who will liaise with the Head of Human Resources and CCER regarding the matter. References:Responding to Allegations of Child Abuse and other CCYP Notifiable Matters Protocol Ombudsman Act 1974 (NSW) Part 3A Children and Young People Act 1999 (ACT) Civil Law (Wrongs) Act 2002 (ACT) NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees Forms:Procedure Checklist (ACT) |
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Last updated on December 2, 2006 |
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