Archdiocese of Canberra and Goulburn
Catholic Education Office

Child Protection (NSW): Responding to Allegations of Reportable Conduct
and Allegations of Misconduct that May Involve Reportable Conduct Made Against Employees

Related Policies:

Child Protection
Child Protection – Mandatory Reporting NSW
Complaints

Purpose:

The protection of children from harm is the paramount consideration in establishing systems to prevent and to investigate reportable conduct. This policy addresses the obligation of the Catholic Education Office on behalf of the Archbishop and the school to investigate allegations of reportable conduct and allegations of misconduct that may involve reportable conduct made against school employees.

The primary objective of the NSW Child Protection Legislation, this policy and of the investigation of allegations of reportable conduct and other related matters, is the safety and well being of children.

This policy aims to ensure that:

• children's rights to a safe environment are balanced with employee's rights to a proper investigation, NSW Ombudsman Child Protection in the Workplace: Responding to Allegations Against Employees p vii
• allegations are investigated promptly and thoroughly, and
• the investigation process is grounded in principles of procedural fairness.

Policy:

The Catholic Education Office takes seriously its obligation to create and maintain school environments which respect the right of children and young people to be safe in their places of learning, work and play. NSW Commission for Children and Young People The Working with Children Check Guidelines p 2

All allegations of reportable conduct or possible reportable conduct against an employee of the Catholic Education Office will be subject to investigation by the employer in accordance with the Ombudsman Act 1974 (NSW) using procedures outlined in this policy.

Reportable allegations, reportable convictions and reportable conduct must be notified to the Ombudsman. NSW Ombudsman Child Protection in the Workplace Responding to Allegations Against Employees 3.3.1

Employers are required to notify the Commission for Children and Young People of the name and other relevant identifying particulars of any employee against whom relevant employment proceedings have been completed. NSW Commission for Children and Young People The Working With Children Check Guidelines Section 5

Definitions:

Child means a person under the age of 18 years. Section 25A Ombudsman Act 1974

Class or Kind Matters

Extracted from Determination by the NSW Ombudsman under Section 25CA of the Ombudsman Act concerning the Catholic Education Office, Canberra and Goulburn

3.0 Determination Regarding Employees of the Catholic Education Office Canberra and Goulburn

3.1 Pursuant to s.25CA of the Ombudsman Act 1974 (the Act), the Ombudsman has determined that the Catholic Education Office, Canberra and Goulburn has achieved a standard of investigative practice whereby the following kinds of reportable allegations against employees of the Catholic Education office Canberra and Goulburn need not be notified to the Ombudsman under s.25C(1):

3.1.1 Allegations of physical assault, in so far as they involve:

(a) Age group 1: Children attending pre-school to Year 4

• Hitting or smacking a child below the head and neck, grabbing, pushing, pulling or poking a child except where:
• The behaviour resulted in harm or injury to the child; or
• The behaviour involved an assault to a child on the head or neck other than with a small and light object as specified in (c) below; or
• Other allegations of the same type indicate a pattern or escalation of the behaviour.

(b) Age group 2: Children attending Year 5 to Year 12

• Any allegation of physical assault below the head and neck except where:

• The behaviour resulted in harm or injury to the child; or
• The behaviour involved an assault to a child on the head or neck other than with a small and light object as specified in (c) below; or
• Other allegations of the same type indicate a pattern or escalation of the behaviour 

• Allegations of unreasonable conduct or use of excessive force to protect a child in a situation which was perceived to be harmful or threatening to the safety of a child, group of children, employee or any other person, which do not fall within the ‘reasonable conduct' exemption set out in the definition of reportable conduct in s 25A except where:
• The behaviour resulted in harm or injury to the child or children.

(c) All age groups – use of objects

• Throwing a small and light object towards a child/children except where:
• The object could reasonably be expected to inflict harm; or
• It could be inferred that there was intention to harm any child
• Hitting a child/children with a small and light object except where:
• The object could reasonably be expected to inflict harm; or
• It could be inferred that there was intention to harm a child/children.

3.1.2 Allegations of neglect where the alleged matter involves a failure to provide supervision or a failure to provide adequate medical treatment where the risk of harm was reasonably perceived at the time to be low, unless a pattern of behaviour is evident.

3.2 This Determination does not cover the following:

• allegations of any sexual offence or sexual misconduct (including child pornography); or
• allegations of physical assault that also include an allegation of any sexual offence or sexual misconduct; or
• where the allegation involves a child/children in age group 1, any allegation of physical assault that is not listed in 3.1.1(a); or
• reportable allegations which are also reported to the Department of Community Services (DoCS) or the Police; or
• allegations of behaviour causing psychological harm; or
• convictions of reportable conduct; or
• any allegations where the behaviour resulted in injury or harm to the child; or
• allegations which when first received appeared to fall within the Determination but upon investigation reveal behaviours not exempted by this Determination, must be reported fully according to section 25C (1-3); or
• any allegation which is similar to a prior allegation and which indicates a pattern of behaviour or an escalation in the seriousness of behaviour.

3.3 In relation to the kinds of reportable allegations against employees referred to in 3.1 above, the Archbishop is responsible for ensuring that:

• each allegation is investigated, including undertaking a risk assessment and making a finding as a result of that investigation. The level of investigation should be commensurate with the level of seriousness of the allegation and the perceived risk to a child or children;
• Appropriate action is taken as a result of that investigation;
• Adequate records are kept of the investigation and the reasons for taking or not taking any action as a result of the investigation; and
• Adequate records are kept of those matters covered by this Determination and ensuring those records are accessible to the Ombudsman for auditing purposes under section 25B of the Act; and
• The Ombudsman is provided within one month of the end of the months of June and December of each year, with the total number of allegations exempted from notification to the Ombudsman under the provisions of this Determination.

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 includes:

(a) any employee of the agency, whether or not employed in connection with any work or activities of the agency that relates to children; and

(b) any individual engaged by the agency to provide services to children (including in the capacity of a volunteer). Section 25A Ombudsman Act 1974

Employer

For the purposes of this policy Employer 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.

Head of Agency

The Archbishop of Canberra and Goulburn.

Head of Agency authority is generally delegated to the Director of Catholic Education.

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 Employees3.5.7

Investigation

An investigation of a matter includes any preliminary or other inquiry into, or examination of, the matter. Section 25A Ombudsman Act 1974

Neglect

Neglect occurs when a child is harmed by the failure of a person whose job includes care responsibilities towards a child to provide the basic physical and emotional necessities of life, including a failure of such a person to provide or arrange for the provision of adequate and proper food, nursing, clothing, medical attention or lodging for a child in that person's care. NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 3.5.8

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:

• it is an act committed on or towards a child; and
• it involves either the application of force to a child or an act that causes a child to think that immediate force will be used on them; and
• it is either hostile or reckless (a reckless act is one where a person would reasonably foresee the consequence of or likelihood of inflicting injury or fear, and ignores the risk).

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. NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 3.5.6

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:

• a description of persistent and targeted behaviour, eg. Scapegoating, humiliation or verbal abuse – although in rare cases the alleged behaviour may be a single incident which is extreme and harmful to a child;
• signs of harm, eg. displaying patterns of ‘out of character behaviour' such as refusal to attend school, sleep disturbances, anxiety, physical symptoms, self harm; and
• an alleged causal link between the behaviour and the harm. NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 3.5.9

Relevant Employment Proceedings

Disciplinary proceedings (in NSW or elsewhere) against an employee by the employer or by a professional body that supervises the professional conduct of the employee, being proceedings involving:

•  reportable conduct by the employee; or

•  an act of violence committed by the employee in the course of employment and in the presence of a child. Section 33 Commission for Children and Young People Act 1998

Reportable Allegation

An allegation of reportable conduct against a person or an allegation of misconduct that may involve reportable conduct. Section 25A Ombudsman Act 1974

Reportable Conduct

Reportable conduct means :

(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence); or

(b) any assault, ill treatment or neglect of a child; or

(c) any behaviour that causes psychological harm to a child; whether or not, in any case with the consent of the child.

Reportable conduct does not extend to:

(a) conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards; or

(b) the use of physical force that in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures; or

(c) conduct of a Class or Kind exempted from being reportable conduct by the Ombudsman under section 25CA of the Ombudsman Act 1974

Reportable Conviction

Reportable conviction means a conviction (including a finding of guilt without the court proceeding to a conviction), in this State or elsewhere, of an offence involving reportable conduct.

Procedures:

The Principal, in consultation with a Human Resources Officer, will determine whether an allegation or complaint, taken at face value, is a reportable allegation. A CEO Human Resources Officer will manage the investigation of reportable allegations. The investigation of allegations which are not reportable allegations will be managed at school level. The Ombudsman does not expect an extensive investigation of an allegation of a low risk matter. (NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 5.1) In all cases, the level of inquiry should be commensurate with the seriousness of the alleged behaviour. (NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 5.12)

In all cases the procedures outlined in this policy must be reasonably followed according to the particular facts and circumstances of each allegation.

The child or young person relevant to the allegation may expect that the allegation will be:

• accepted on face value;
• taken seriously;
• investigated thoroughly.

The employee against whom the allegation is made may expect a fair investigative process which includes:

• confidentiality;
• adequate access to information regarding the allegation;
• an opportunity to respond to the allegation;
• reasonable notice for meetings and interviews;
• the right to have a support person present for interviews;
• an impartial decision maker and an impartial decision making process;
• the opportunity to respond to adverse findings and disciplinary action.

If there is a departure from rules of procedural fairness in particular cases the reasons for the departure must be documented.

When planning a response to an allegation 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 allegation should aim to minimise anxiety and to demonstrate sensitivity, compassion and respect for all involved while maintaining the integrity of the investigative / disciplinary process.

Procedural Steps

1. Record the Allegation

The Principal, or person receiving the allegation, records in writing information from the person/s reporting the allegation against the employee using the person's exact words and advises that the allegation will be investigated. In recording the allegation the Principal 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 person making the allegation.

2. Confer with Human Resources Officer

School Principals must inform their Human Resources Officer of the initial details of the allegation.

The immediate response to an allegation should be one that protects the child or other children from the possibility of further allegations. (NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 5.14.2)

The Principal in consultation with their HR Officer must make an assessment of any perceived risk to the safety and wellbeing of the child and other children.

The risk to the employee, to other employees, the school, confidentiality and the investigation itself should also be assessed. Risk assessment should inform the planning of the investigation and any necessary preliminary action. Risk should be regularly reassessed and managed appropriately.

The Principal and HR Officer determine action to be taken based on the following questions:

Q: Is this an allegation / possible allegation of reportable conduct as defined by the Ombudsman Act 1974?

A: If it is not an allegation of reportable conduct or is exempt from notification, the allegation is handled as a complaint at school level. Investigation must still be conducted and a finding made. The procedures in this policy are adapted according to the circumstances.

If it is an allegation of reportable conduct, the matter must be notified to the Catholic Education Office and an investigation must be conducted and the finding reported to the Ombudsman.

Q: Are there reasonable grounds to suspect a child is at current risk of harm?

A: If the answer is yes then the complaint must be reported to the Department of Community Services (DOCS) as required by section 27, Children and Young Persons (Care and Protection) Act 1998 (NSW).

If the HR Officer is unsure when making assessments regarding notification to the Ombudsman's Office or DOCS, he or she should seek advice from the Head of Human Resources or from the DOCS help line on 133 627.

• If a report is made to DOCS or Police, an investigation is conducted by the school or the CEO only on the advice of DOCS or Police. The matter is notified to the Ombudsman's Office by the CEO.
• If DOCS or Police investigates an employee of the CEO, the process will be managed by the Head of Human Resources.

Q: Does the allegation fall within the definition of reportable conduct but is not reportable to the Ombudsman as it falls within exemption (a), (b) or (c)?

A: Yes

Document the rationale for applying the appropriate exemption.
Complete an exemption notification form and nominate the exemption being applied.
Initial risk assessment and draft investigation plan will be completed by the Principal and forwarded to the Head of Human Resources within 4 working days.
Forward the exemption notification form to the CEO within 7 working days.
Follow the investigation procedures outlined in this document and forward Part B of the Ombudsman's notification form to the Head of Human Resources. Conduct final risk assessment.

Q: What if exemptions do not apply?

A: If the allegation falls within the definition of reportable conduct and exemptions do not apply follow the investigation procedures outlined in this document.

The Principal and the HR Officer completes and forwards Part A of the Ombudsman's Notification Form, Risk Assessment and Draft Investigation Plan to the Head of Human Resources within 48 hours of the allegation. The Head of Human Resources (or delegated officer) will ensure that these correctly completed and signed forms are forwarded to the Ombudsman's Office within 4 working days of the allegation being made.

On completion of the investigation the CEO must take into consideration whether the matter is to be reported to the Commission for Children and Young People (CCYP). (NSW Commission for Children and Young People, The Working With Children Check Guidelines Section 5) It is the employer's responsibility to ensure any reporting requirement to CCYP is fulfilled. The CCYP guidelines must be followed.

Part B of the Ombudsman's Notification Form and all relevant documentation should be forwarded to the CEO with 30 days of becoming aware of the allegation or conviction of reportable conduct.

3. The Investigation Process is Planned

The Principal and the Human Resources Officer, having regard to the nature of the allegation and particular school / community characteristics, plan the investigation in line with the CEO protocol.

An investigator (or panel of 2 investigators) will be appointed by the Principal / Human Resources Officer.
The investigation objectives should be clarified and established.
Any relevant documentation relating to the allegation should be compiled.
A timeframe for notifying parents and the employee is discussed.
Witnesses to be interviewed should be identified.
A timeframe for obtaining consent to interview children and the conducting of interviews should be drafted.
The Principal with their HR Officer ensure that Part A of the Ombudsman's Notification Form is completed.

4. Notifying Parents of the Allegation.

The parents/guardians of the child will be informed by the Principal that an allegation has been received and that the matter will be taken seriously and investigated. This information should also be confirmed to the parents in writing.

It is important that the notification to parents occurs as close as possible to the notification to the employee (Step 5).

5. Principal and Staff Member Meet.

Principal meets briefly with staff member to:

• inform the employee that an allegation / complaint has been received and to advise the employee of the general nature of the allegation i.e. sexual assault, misconduct, reportable conduct, physical assault, behaviour causing psychological harm;
• give the employee a copy of this policy and the “Responding to allegations of child abuse and other CCYP – notifiable matters” Protocol;
• inform the employee of the investigative procedure and the timeline for bringing the matter to completion;
• inform the employee of who will be investigating the allegation / complaint. The employee is informed that he or she may raise any possible conflict of interest regarding the person investigating. (The Principal and the Human Resources Officer will together consider and seek resolution of any such issues raised by the employee before the investigation commences);
• ask the employee if he or she wishes to nominate any witnesses to the alleged incident to be interviewed during the investigation;
• inform the employee that as soon as information is gathered a meeting will be held with the employee to fully inform the employee of the allegation. The employee may choose to have a support person present at that meeting. If the staff member elects to have a union organiser at the meeting a CEO Officer may be appointed to attend the meeting;
• offer the employee adequate support including an offer of counselling at no cost to the employee and, if the staff member wishes, a support person at the school or CEO who can assist them through the process.

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/Human Resources 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

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 should not interview a child on more occasions than is absolutely necessary. Part 8G of NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees offers excellent guidelines for interviewing children.

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. The number of persons present at the interview should be kept to a minimum.

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 allegation.

Following information gathering and clarification of facts the investigator(s) presents the allegation to the employee for his or her response.

The employee must be given at least 24 hours 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 or witnesses interviewed during the investigation should not be automatically disclosed to the employee unless:

• the notifier consents in writing to disclosure of his / her identity; or
• the disclosure of the identity of the notifier is necessary to investigate the matter effectively; or
• the making of the allegation is found to be malicious or vexatious

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

9.1 Where the allegation concerns “reportable conduct”

When all the information is gathered, the investigator(s) forwards all documentation to the Head of Human Resources. The investigator(s) does not make a finding but makes a report and recommendations. The Head of Human Resources is responsible for considering all available information and deciding whether, on the balance of probabilities, the allegation is:

• sustained, (evidence shows that it's more probable than not that the conduct as alleged did occur); or
• not sustained – insufficient evidence (i.e. insufficient evidence is available to establish that the alleged conduct did or did not occur); or
• false (evidence shows that it is more probable than not that the conduct as alleged did not actually occur at all. There may be conclusive evidence that the alleged conduct did not occur or they may be no evidence of any weight that it did occur); or
• vexatious (ie where inquiries into the matter find that the allegation was made without substance and with the intent of being malicious or to cause distress to the person against whom the allegation was made); or
• misconceived (ie where inquiries into the matter find that, even though the allegation was made in good faith, it was based on a misunderstanding of what actually happened. This category is ONLY used when conduct is found to be appropriate); or
• not Reportable Conduct (NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 5.12.5),
  • where the conduct was found to be inappropriate but does not meet the criteria of reportable conduct i.e. It is not a sexual offence, sexual misconduct, assault, ill treatment or neglect of a child, or behaviour that has caused psychological harm to a child;
  • where the conduct is found to be accidental;
  • where the victim was not a child.

The Head of Human Resources may seek clarification and direct that further action occur to ensure that the relevant interests of the child and the employee are served.

9.2 Where the allegations concerns conduct that is “exempt”

The Ombudsman also expects that employers will investigate exempt matters to an appropriate standard and commensurate with the nature of the allegation and that they use the exact same terminology in findings as with findings of reportable conduct (see 9.1 above). However, correspondence to employees who are the subject of an allegation and to parents of children may use less formal terminology where appropriate as long as this does not affect the clarity as to outcome.

The Principal will meet with the employee to outline the finding of the investigation. If the allegation is sustained, the employee must be given the opportunity to respond to that finding and to any disciplinary or support initiatives that the Principal intends to implement as a result of the finding.

Exempt matters are not reported to the CCYP.

In all cases, the employee should be given the opportunity to debrief regarding the allegation and the investigation. An offering of counselling, at no cost to the employee, should be made. Counselling will be arranged through the Head of Human Resources.

10. If an allegation of reportable conduct is sustained, 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 whether the matter will be notified to the CCYP. NB Allegations of reportable conduct which are not sustained may be subject to notification to CCYP (NSW Commission for Children and Young People, The Working With Children Check Guidelines Section 5)
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.  The Final 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, the Principal and the Ombudsman's Office and advises the Principal of the finding.

The Head of Human Resources advises the employee in writing of:

• the finding;
• whether the matter will be notified to the Ombudsman and / or CCYP;
• disciplinary action and/or support initiatives to be implemented;
• the procedures in place for storage of files in relation to this case;
• the availability of support and/or counselling.

12. Notification to the Ombudsman

12.1 Where the allegation is of reportable conduct and EXEMPTIONS DO NOT apply

The Human Resources Officer completes Part B of the Ombudsman's Notification Form in consultation with the Principal. The Human Resources Officer collects and forwards all relevant documentation regarding the case and forwards it to the Ombudsman's Office through the Head of Human Resources.

For a final finding the following documentation is required:

• Ombudsman Notification Form – Sections A and B;
• letter advising the employee of the allegation and inviting the employee to a meeting;
• letter advising parents/guardians of child of the commencement of the child protection investigation process;
• employee's response to the allegation (if written);
• all meeting records signed and dated;
• all statements (witnesses etc) signed and dated;
• letter advising employee of the preliminary finding;
• any documentation detailing a response from the employee (if relevant);
• letter advising the employee of the determination (final finding) and any intended disciplinary action by the employer;
• letter advising parent / guardian of the conclusion of the investigation process;
• relevant e-mails and memos.

12.2 Where the allegation is of reportable conduct and EXEMPTIONS DO apply

The Principal should record a clear document trail. This documentation will be subject to auditing by the CEO and Ombudsman's Office. Documentation should include:

• rationale for applying the exemption;
• ongoing risk assessment;
• letter advising the employee of the allegation and inviting the employee to a meeting;
• letter advising parents/guardians of child of the commencement of the child protection investigation process;
• employee's response to the allegation (if written);
• all meeting records signed and dated;
• all statements (witnesses etc) signed and dated;
• letter advising employee of the preliminary finding;
• any documentation detailing a response from the employee (if relevant);
• letter advising the employee of the determination (final finding) and any intended disciplinary action by the employer;
• letter advising parent / guardian of the conclusion of the investigation process;
• relevant e-mails and memos.

13. 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 informed of 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.

14. 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 the NSW Ombudsman for review.

15. Security of Records and Documentation

All documentation relating to complaints, allegations and ongoing investigations must be maintained in a secure and confidential environment with access restricted to the person conducting the inquiry and other authorised person(s).

Information regarding the allegation, investigation and finding should not be noted in any personal record maintained at school 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.

16. Employee's access to investigation file

An employee may, subject to reasonable notice, apply to inspect the investigation file regarding a relevant employment proceeding or other Commission for Children and Young People notifiable matters 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.

17. Notification to the Commission for Children and Young People

Section 39 of the Commission for Children and Young People Act 1988 requires all employers to notify the CCYP of the name and other relevant identifying particulars of any employee against whom relevant employment proceedings have been completed since 3 July 1995.

Where it is decided that an employee's conduct is reportable and that the employment proceedings should be reported, employers must categorise these proceedings.

A two tier reporting system has been introduced for relevant employment proceedings. This system recognises the varying degrees and complexities of employee behaviour in a child protection context.

Employers are required to indicate whether they are reporting a Category One or Category Two employment proceeding. (NSW Commission for Children and Young People, The Working With Children Check Guidelines Section 5.2)

Detailed information regarding Category classification and implications for future employment screening when notification is made to CCYP can be found in Section 5 of the Working With Children Check Guidelines. The Guidelines are available in schools and on the CCYP website.

18. Apologies

With the commencement of amendments to the Civil Liability Act 2000 (NSW) on 6 December 2002, in most cases the giving of an apology is no longer an admission of fault of liability. Part 10 of the Act provides that an apology (including an expression of sympathy or regret) does not constitute an admission of liability and will not be relevant to the determination of fault or liability in connection with civil liability of any kind, other than in certain limited circumstances. (NSW Ombudsman, Child Protection in the Workplace Responding to Allegations Against Employees 1.8)

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)

19. Matters of Jurisdiction

Any matters of jurisdiction should be referred to the Human Resources Officer who will liaise with the Head of Human Resources regarding the matter.

References:

Responding to Allegations of Child Abuse and other CCYP Notifiable Matters Protocol

The Working With Children Check Guidelines

NSW Ombudsman; Child Protection in the Workplace Responding to Allegations Against Employees

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Ombudsman Act 1974 (NSW) Part 3A

Commission for Children and Young People Act 1988

Child Protection (Prohibited Employment) Act 1998

Forms:

Nil

Last updated on April 19, 2008