Legal: Principals of justice
Queensland Teachers' Journal, Vol 126 No 8, 12 November 2021, page no.25
Recent changes to the management of disciplinary matters in the public service mean that many state schools principals are now responsible for conducting “workplace investigations” into their own staff.
There is much to recommend a “common sense” approach that allows school leaders to deal quickly and sensibly with lower level complaints or alleged staff conduct. The hope is that by dealing with the bulk of these less serious matters at a school level, the department’s Integrity Employee Relations unit will be freed to deal with serious disciplinary matters, resulting in more efficient investigations, better decisions and a shorter wait for members who have been suspended.
While the jury is still out, it is essential that the basic requirements of a workplace investigation are followed before decisions are made on the truth or otherwise of allegations.
Any complaint should be assessed to decide what type of investigation, if any, is required. Relevant factors include:
- the nature and number of allegations made
- how many complainants there are
- the length of time since the events complained of occurred
- whether there a conflict of interest.
If there is a single complainant, the allegations are not serious, and the subject officer has already admitted to the conduct, then the matter can be decided by reviewing the evidence and issuing a decision, with reasons.
Conflict of interest
Even in the above scenario, the “investigator” should consider carefully whether they are the appropriate person to make the decision, or whether they have a conflict of interest. For example, if the matter involves a member of staff who has had prior issues with them, it is advisable to delegate the decision-making role to an appropriate colleague to avoid any allegations of bias.
This is particularly important because, in a “normal” workplace investigation, there must be a clear separation between the investigator and the decision maker. The reality of school-based investigations is that one person is likely to fill both roles, and it is therefore essential that there is no obvious conflict of interest should the subject officer challenge the decision.
Depending on the allegations, it may be appropriate to formulate a letter of allegations from the original complaint and give this to the subject officer, who should then be given time to respond in writing.
Alternatively, it may be more appropriate to put the allegations to the subject officer and allow them to respond verbally at an interview.
The key thing to remember is that the process must be procedurally fair, meaning that the totality of the allegations should be put to the person accused and they must be given a reasonable opportunity to respond. If the subject officer is to be interviewed, they should be given the opportunity to have a support person present. The interview should be recorded, and a copy of the recording made available to them.
Only the allegations in the complaint should be addressed, and the investigator should resist the temptation to address other issues that may have arisen subsequently.
If the nature of the allegations requires the gathering of evidence from other staff members, any statements or interviews should be properly documented. As a rule, the complainant should be interviewed first, relevant witnesses next, and the subject of the complaint last. This affords the person against whom the complaint is made an opportunity to respond to the full allegations and information gathered during the investigation.
The standard of proof for the decision maker to apply is “on the balance of probabilities”, or whether it is more likely than not that the thing alleged did occur. It is not necessary to prove the allegations beyond a reasonable doubt for the decision maker to find that they are capable of substantiation. However, when drafting an outcome letter, the decision maker should carefully explain their findings and their reasoning for arriving at the decision.
Workplace investigations that seem simple at the outset can develop to become increasingly complex. If at any stage the investigator feels out of their depth, they should consider whether the matter should be dealt with at a departmental or regional level. Handing an investigation “back up the chain” should be a last resort, but it is preferable to completing a flawed process that is vulnerable to a challenge from a disgruntled subject officer.