Information for employees and volunteers for when a reportable allegation is made against them.
How will my organisation respond to the reportable conduct allegation?
When a reportable allegation is raised against an employee, volunteer or contractor, the head of the entity must take certain steps to respond to the allegation to comply with their legal obligations.
For processes to be accepted as appropriate and fair, they must be applied consistently and with integrity and treat all people involved in investigations with respect. This includes recognising and managing actual, potential or perceived conflicts of interest.
The steps the entity will take generally include:
- making any mandatory reports to Police or Department of Communities and Justice (DCJ)
- conducting risk assessments and managing any real or perceived risk to children
- notifying the Office of the Children’s Guardian about the allegation within 7 business days
- planning and conducting an investigation into the allegation
- advising the employee, volunteer or contractor that a reportable allegation has been made against them (after receiving clearance from the Police or DCJ if they are involved)
- providing the Office of the Children’s Guardian with further detailed advice or update within 30 calendar days
- drafting a report including any findings, outcomes, recommendations and actions
- providing the report and supporting documents to the Office of the Children’s Guardian for review and closure (should no further action be required)
- storing the information in a secure and private location.
What does investigation planning involve?
An investigation plan is a record of what the entity will do to address the allegation, including the:
- objectives of the investigation and proposed timeframes
- a record of the allegations
- the risks which may arise from the investigation for the child, employee and entity, and how these risks will be managed
- information and evidence required to investigate the allegations
- the level of investigative activity required to obtain required information or evidence
- communication and collaboration with other stakeholders e.g. NSW Police
- where a decision has been made to/not to interview the child or young person or a witness and the reasons why
- when and how the subject of the allegation will be informed of the allegation, the investigation process, their rights, obligations and access to support, and possible outcomes of the investigation, taking account of information provided during a child protection response
- how any cultural issues or special needs of the relevant parties will be addressed during the investigation.
How will a reportable conduct investigation affect my work with children?
One of the first actions a head of a relevant entity should take when a reportable allegation is raised against an employee is to conduct a risk assessment and decide how to manage any identified risks. What this will look like will differ case by case, depending on a range of factors including the nature of the reportable allegation, the type of entity and its work with children and the employee’s role.
Risk management strategies can range from increased supervision or providing an employee direction, to paid or unpaid suspension, alternative duties, de-authorisation or dismissal. When deciding on the appropriate strategy, the head of the relevant entity will consider all the information at their disposal, including staff policies and procedures and codes of conduct.
It is not the role of the Children’s Guardian to make decisions about appropriate risk management. Our role is to make sure entities consider all relevant factors and that their decisions are properly supported and documented. Different entities may be governed by different industrial laws and policies about these actions and you are entitled to ask your organisation for more information if you need it.
When the Office of the Children’s Guardian receives information (including from notifications of reportable allegations) that indicates or suggests that a child or children may be at risk, the Children's Guardian can – and in some cases must – share that information in certain ways. If the information relates to the safety, welfare or wellbeing of a child, children or a class of children, the Children's Guardian may share the information with another body for the purpose of assessing risk or conducting an investigation – for example, to DCJ or to Police.
The information may result in an assessment by the Working with Children Check Directorate that the employee poses a risk to children while an investigation or assessment is underway, relevant information will be made available to enable appropriate assessment of a WWCC application. However, the Office of the Children’s Guardian has robust information protection provisions in place to ensure that information is only shared where there is the legislative authority to do so.
What are my responsibilities and rights?
The overarching principle in responding to any reportable allegation is to ensure the safety and wellbeing of any child, children or class of children who may be involved.
At the same time this objective is not met employees who are the subject of reportable allegations are not afforded procedural fairness.
Procedural fairness promotes fair and reasonable decision making. In general terms, procedural fairness will involve a decision-maker:
- informing employees of the allegations against them
- giving them a right to be heard
- maintaining appropriate confidentiality
- not having a personal interest in the outcome or any other real or perceived conflict of interest
- making findings only on the basis of well-reasoned probative evidence
- providing reasons for adverse findings
- making decisions in good faith and without bias
- considering any person whose interests will be affected by the decision.
Following the conclusion of an investigation, you should generally be told about the outcome, particularly if that outcome is unfavourable. However, you may not always receive the full detailed investigation findings and reasons as the information can include sensitive or private details.