EPAC Complaints & Investigations
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of EPAC investigations before acting or relying on any of its content.
The NSW Department of Education (previously known as the NSW Department of Education and Communities (DEC) as well as the Department of Education and Training) handles complaints relating to the performance and conduct of DEC employees through its Employee Performance and Conduct Directorate (EPAC). EPAC can deal with things like parental complaints against teachers or complaints by DEC employees against fellow employees for things such as teacher inefficiency and serious misconduct. NSW public schools and TAFE NSW institutes are both part of the DEC.
Once EPAC receives a complaint, it is assessed. This can be done by EPAC personnel or investigators (duty investigators and senior investigators). This involves determining whether or not it is a ‘special case’, ascertaining the level of seriousness, and choosing the appropriate course of action. There are typically 6 steps associated with an EPAC investigation, as follows:
Step 1 – Complaint recipient refers the matter to the Principal or workplace manager, who refers it to the appropriate delegate.
Step 2 – Delegate considers the matter and determines whether or not a coordinated approach is needed.
Step 3 – Delegate checks for previous action re the complaint.
Step 4 – If appropriate, delegate commences investigation or appoints an investigator to do so.
Step 5 – Investigation is conducted.
Step 6 – On receiving the Investigation Report, Delegate takes action and provides advice as needed.
Certain types of complaints are regarded as special as they are covered by particular legislation, policies and procedures, and are required to be dealt with accordingly. For instance, matters relating to child protection may be referred to the Department of Community Services (DOCS) or Department of Family and Community Services and can be “reportable” offences.
Where a complaint is determined to be serious, an investigation procedure will apply. A serious breach is defined by the DEC as one which could amount to serious misconduct under the Code of Conduct and may include a breach of legislation, policy, procedure or contract likely to lead to disciplinary or remedial action, or conduct of a criminal nature. Besides staff disciplinary or remedial action, including suspension or removal/dismissal from the teaching service, internal investigations may recommend referral for police action or to the Independent Commission Against Corruption (ICAC) and notification to the Commission for Children and Young People.
Where appropriate, EPAC investigations should not just concentrate on “Staff disciplinary action” such as dismissal from the Department, directing an officer to resign and/or permitting them to resign within a certain time frame, demotion, school transfer, fining the teacher or officer, or cautioning or reprimanding them.
Within the EPAC legal framework, there is also scope for EPAC to impose remedial action such as counselling, training and development, ongoing monitoring of teaching efficiency and performance, putting a teacher on a teacher improvement program, issuing a warning and providing guidance as to how to avoid unsatisfactory performance going forward etc.
It is very important to ensure that your case is properly dealt with according to the rules of procedural fairness (sometimes referred to as natural justice). To the extent possible, EPAC investigations should also incorporate:
EPAC investigations can be stressful for teachers, Departmental officers and educators. Teachers will often be asked to participate in interviews and bring a support person. Alternatively, teachers or officers may be asked to answer a written set of questions from the EPAC directorate. Before participating in such processes, it is often prudent to seek independent legal advice from a barrister and solicitor. Indeed, it may be appropriate for a lawyer to attend with you as a support person at any meetings with the Department of Education.
Given the potentially far-reaching implications for teachers, educators and other Departmental officers, those being investigated by EPAC should thoroughly understand their rights and obligations in matters of this kind.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org