In Practice

Workplace investigations: The educator’s perspective

It’s a part of our professional career working with young children that no-one wants to think or talk about – being formally investigated for our workplace conduct or behaviour as an educator.

Children’s services workplaces are unique in many ways. It is one of the very few professions that has regular, daily interactions and engagement with large groups of very young children. The job of an educator is complex and diverse, and requires huge amounts of emotional, physical and mental energy.

But our workplaces are also places of employment just like any other. That means our work needs to be managed and assessed, and if we don’t meet the expectations of our employer, we can undergo performance management. If it is alleged that you have engaged in serious misconduct, you might be subjected to a formal workplace investigation.

This can be uncomfortable and challenging to think about, but it’s important that educators are aware of how this process can work, and why it is important that these processes are in place. There are also some things you can do to ensure you are supported during that process if it ever happens.

Formal workplace investigations are important to ensure children are protected

Child protection and child safety have become a much stronger part of the early childhood sector, largely due to two important reforms.

Firstly, the National Quality Framework (NQF) ensured there were nationally consistent regulations and quality standards for children’s health and safety that applied to every service working with young children under the NQF. As well as ensuring that educators work to ensure children are safe while in a service, the NQF also ensures that employers and approved providers ensure they create a workplace culture that ensures children are kept safe.

Secondly, the Royal Commission into Institutional Responses to Child Sexual Abuse highlighted a range of organisational and employer approaches to child safety that were not OK, including in many children’s services organisations. The Government’s response to the Royal Commission is still being developed, but one of the recommendations that will most likely be implemented will be a national set of Child Safe Standards that services will have to meet.

What these two big reforms that have taken place over the last decade mean in practice is that employers have to take their workplace obligations to children’s safety very seriously.

Employers have to take action when they receive an allegation

One of the most important things educators need to know about workplace investigations, particularly those related to possible harm to children, is that employers have a legal obligation to investigate when they receive an allegation that an employee has engaged in serious misconduct.

Starting an investigation does not mean that they employer thinks the allegation is true, or that misconduct has taken place. The investigation process is to try and find out what has happened, and the outcome is not pre-judged.

As an example, one of the most common workplace investigations in children’s services organisations is that an educator has “dragged” a child in some way. It may be that a child was not in fact dragged at all, but was misinterpreted by another person nearby, who might then let their Manager know that they saw something.

Given the potential that a child may have been harmed, the employer is obligated to investigate. That can be extremely difficult and challenging for the educator who is being investigated, but it is a process that must happen to ensure that we are taking children’s safety seriously.

Investigations are not about the person, but the conduct

Undergoing a workplace investigation can be a very challenging process to go through, but it is important to remember that the process is not about determining whether someone is “a good person”, but whether the National Law, National Regulations, or organisational policies have been breached.

One of the clearest findings of the Royal Commission was that in many cases, despite multiple allegations being raised about an employee’s performance, no action was taken because the employee was seen as “a good person” who couldn’t have done anything wrong.

Because of that view – a very natural human view to want to see the best in people – children were harmed and traumatised for life.

Human beings are complex. No person is entirely “bad” or “good”. People can have bad days, be affected by stresses outside the workplace, or just do the wrong thing for reasons we can’t understand. Workplace investigations are not about passing judgements on people’s worth, but determining whether their workplace performance was not meeting the required expectations.

Employees are entitled to support and procedural fairness

It is very important to remember that under Australia’s Fair Work system, every employee is entitled to support from their organisation if they are undergoing a workplace investigation. This might be as simple as having a point of contact at the organisation to talk through concerns with, or access to a formal Employee Assistance Program where matters can be discussed with trained specialists confidentially.

Larger organisations will likely have a Human Resources (or People and Culture) team who can also provide support. It’s important to remember that Human Resources are not there to “protect” the organisation, but to support every member of the organisation and ensure their employment rights are upheld.

Every employee is also entitled to “procedural fairness”. In essence this means that if you are undergoing a workplace investigation, or any performance management process, you must still be treated with dignity and respect; be given all reasonable opportunities to respond to allegations and state your position; and be able to challenge and dispute the outcome of an investigation if you think it is unfair.

It is illegal for employers to conduct investigations that do not provide procedural fairness. This might be the case if you are only told about allegations verbally, and are not given them in writing; or if you are not given an opportunity to formally respond to the allegations.

Make sure you engage with the process, and seek support if you need it

Every workplace investigation process is different. In some cases the allegation is determined to not be true; in some cases it is completely true; in many cases it is somewhere in the middle. If you are ever subject to a workplace investigation, the best approach is to:

  • Engage in the process honestly. Follow the directions for how and when to respond, and be honest and truthful in your responses.
  • Make sure you know what support is available. Talk with your organisation’s HR team, or ask for similar support if your employer does not have a HR team. Joining your union is one of the best ways to ensure your rights are upheld as an employee.
  • Remember that the process is not personal, but professional. While it can be difficult, remember that all allegations must be investigated thoroughly by the employer, to ensure that children are safe.

The majority of educators working in children’s services will never have to go through a formal workplace investigation. But those that do still have a range of employment and workplace rights.

Educators have the right to expect that while their employers do not compromise on protecting children, they ensure that educators are properly and fairly supported through any performance management process.

This article is the first of two that explore workplace investigations in children’s services. The second, which will look at the employer perspective, will be available soon.

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