Child Protection Training Package Module 2 ALLEGATIONS INVOLVING EMPLOYEES (August 2004)

1. In preparing this training module Parramatta Catholic Education Office gratefully acknowledges the support and contribution of theCatholic Commission for Employment Relations Child Protection Training PackageModule 2 ALLEGATIONS INVOLVING EMPLOYEES(August 2004)

2. Modules Module 2A- Reportable allegations to the Ombudsman’s Office Scenarios - Ombudsman Module 2B – Reportable matters to the Commission for Children and Young People Scenarios – Commission for Children and Young People End Presentation

3. Module 2A • REPORTABLE ALLEGATIONS TO THE OMBUDSMAN’S OFFICE

4. Please Note: Reports to the Ombudsman are based on ALLEGATIONS (i.e. complaints on face value) as the Ombudsman’s process is an allegations based scheme

5. Safe and supportive work environments The following process is only one of a number of work practices aimed at: • lawful compliance • adherence to duty of care • ensuring safe work environments for children and employees • reflective of the Catholic values of the work place and the parish community

6. Safe and supportive work environments Examples of such work practices/documents: • Occupational Health and Safety • Mandatory reporting to Department of Community services • Professional development • Employee Assistance Programs • Appropriate selection of staff • Clear policies, code of conducts and workplace procedures • Supervision • CEO mission statement/relevant policies

7. Role of NSW Ombudsman’s Office • The NSW Ombudsman’s role in child protection was established following the Royal Commission into the NSW Police Service in response to identified issues concerning agencies’ systems for responding to allegations of child abuse against employees • The Ombudsman has a role in oversighting Catholic schools in NSW in how they respond to allegations and make employment decisions involving employees • The Ombudsman also handles complaints about the investigation process • Catholic Schools in NSW are oversighted and required to report to the Ombudsman Office

8. Complaints that a Catholic school must report to the Ombudsman’s Office • Requires a current “employee” (at the time the allegation was made) • Requires a child to be under age of 18 years at time of alleged incident • Requires an allegation of “reportable conduct”

9. Who is “employed” or “engaged”? A person is employed by the school, if the school provides a group certificate for taxation purposes A person is engaged, if the school: • Provides the person with work • Provides the person with general directions about the services to be provided • Is able to terminate the contract or involvement if work unsatisfactory or for any other reason

10. Examples of who may be an “employee” Parish Priest Religious Br or Sr Principal School administration staff Boarding supervisors Private bus driver Guest speakers DESIGNATED NON-GOVERNMENT AGENCY - Non government school Librarian Teachers Sports coaches Volunteers parents Gardeners Assistant Priest Teachers Aide School counsellor Work experience placements School nurse

11. Definition of reportable conduct Reportable allegation: ‘an allegation of reportable conduct against a person is an allegation of reportable conduct or an allegation of misconduct that may involve reportable conduct’

12. What conduct does the school have to report to the Ombudsman ? Reportable Conduct: a) Any sexual offence, 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.

13. Ombudsman Act 1974- Sexual Offences Sexual offences include (not limited to): • Acts of indecency (contrary to community standards) • Indecent assault (assault with sexual connotations) • Sexual intercourse and sexual assault • Exposing oneself • Possession of child pornography

14. Ombudsman Act 1974- Sexual Misconduct Range of behaviours/pattern of behaviour which may be aimed at the involvement of a child in sexual acts • Inappropriate conversations of a sexual nature • Unwarranted and inappropriate touching • Sexual exhibitionism • Personal correspondence of a sexual nature • Grooming behaviour – special relationship; testing of boundaries – usually pattern of behaviour With or without child’s consent

15. Ombudsman Act 1974 - Assault Physical assault includes an application of force or an act that causes the child to think that immediate force will be used • The act is either hostile or reckless • No physical harm/injury is required • Intention of employee is not relevant Examples: pushing, hitting, shaking, smacking, kicking, threatening to hit, unreasonable restraint

16. Ombudsman Act 1974 - Neglect & Ill-treatment Neglect • Neglect is usually a failure to take action to provide basic physical and emotional necessities of life to a child Example: failure to provide medical attention Ill-treatment • Ill-treatment is where the employee exceeds what is reasonable or appropriate for the situation • Focus is on the alleged conduct not whether harm is caused to the child Examples: locking a child in a cupboard; taping a child to a chair

17. Ombudsman Act 1974 - Psychological Harm • Any behaviour that causes psychological harm to a child, whether or not in any case with the consent of the child. • The allegation must contain 3 elements- • Alleged inappropriate conduct of an employee (usually a pattern/repetitive) 2. Alleged harm caused to a targeted child or group of children 3. A causal link between the conduct and the harm • Examples: degrading, isolating, intimidating, exploitation, humiliating

18. Ombudsman Act 1974 - Misconduct that may involve reportable conduct Where the behaviour suggests that there: • May be a pattern of behaviour, or • May indicate misconduct which poses a risk to children e.g. breach of boundaries, such as taking children home in employee’s car; giving gifts to child • This is reportable to the Ombudsman

19. EXEMPTIONS TO REPORTABLE CONDUCT

20. What does NOT need reporting to the Ombudsman ? • Complaints/allegations that do not fall within definition of “reportable conduct” • An allegation that on face value is reasonable for the care and discipline and management of a child and consistent with the code of conduct • An allegation that is one of physical force and is of a trivial and negligible nature in all the circumstances AND the employer is going to investigate the complaintand record the result • An allegation of conduct that falls within a Class or Kind Determination [more details next slide]  These allegations/complaints do not require reporting to the Ombudsman Office. The schools usual grievance/inquiry process is applied.

21. What does NOT need reporting to the Ombudsman ? Continued……….. • An allegation of conduct that falls within a Class or Kind Determination for Systemic Schools • Yrs K-4 first time allegations of a low level physical nature where contact is below the neck • Yrs 5-12 first time allegations of a low level physical nature, but not kicking or punching of a student • First time allegations of neglect involving 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  These allegations/complaints do not require reporting to the Ombudsman Office. The schools usual grievance/inquiry process is applied.

22. The employer has the duty to enquire into all complaints…[Parramatta CEO protocols in Child Protection Kit - Section 8] Principles applied to all investigation/grievance processes • Transparency - including clear documentation • Confidentiality • Support to all parties • The level of seriousness = the level of investigation • Procedural fairness: - Inform employee of allegation and provide an opportunity to respond - Make reasonable inquiries before reaching a finding - Consider all relevant available evidence - Act fairly and without bias/conflict of interest - Conduct investigation without undue delay

23. The employer has a duty to makea finding When a complaint is reportable to the Ombudsman an employer may make a finding as follows: • Sustained (that is, on the balance of evidence the allegation is found to have occurred) • Not reportable conduct (that is, on the balance of evidence the allegation is found not to have occurred) • Not sustained (that is, insufficient evidence is available to prove that the alleged conduct did or did not occur) • False • Vexatious • Misconceived

24. What happens to the documentation relating to the complaint ? • When the complaint is not reportable to the Ombudsman, a copy of the file is retained with the employer and at CCER (as Head of Agency ) as applicable • When the complaint is reportable to the Ombudsman, a copy of the file is retained with the employer, with CCER (as Head of Agency) and at the Ombudsman’s Office • Employees may apply for access to their file through the employer • All documents are stored securely

25. OMBUDSMAN SCENARIOS

26. Scenario 1 The football coach jumps up, slaps a boy on the back and then lifts another up into the air triumphantly as the 1st 15 team wins the grand final in extra time. Is this reportable to the Ombudsman? Yes No

27. Yes is incorrectX

28. No is correct √ An allegation for physical assault requires that there be some application of force; and that • the act is either hostile orreckless; or • the act has caused the child or young person to think that immediate force will be used (fear of imminent harm) In this scenario the complaint contains • no indication that the act was hostile or reckless, • no indication that the child was in imminent fear of harm There is NO allegation of reportable conduct

29. Scenario 2 A year 11 student is clowning around and completely ignoring the teacher’s requests to stop. As the teacher passes his desk, he sees the student making obscene gestures at another student. The teacher clips the student on the back of the head to get his attention. Another student tells the Principal. Is this a complaint that is reportable to the Ombudsman? Yes No

30. Yes is incorrectX

31. No is correct √ Whilst clearly a physical assault, it may be exempt from reporting to the Ombudsman if it is either 1) considered to be trivial or negligible in all the circumstances; Or 2) A first time allegation within the Class or Kind Determination The employer is still required to investigate the matter and take appropriate action if the conduct is found to have occurred

32. Scenario 3 A year 10 student is sent to the Deputy Principal’s office for misbehavior. He complains that the teacher pushed him out the door and he hit his side on a railing opposite the door. You know this student is one of the most difficult in the school. You also know that this teacher had 2 similar complaints last year which were both sustained. Is this complaint reportable to the Ombudsman? Yes No

33. No is incorrectX

34. Yes is correct √ The alleged incident meets the criteria of a physical assault in that: • there was some application of force • on the face of the allegation it seems hostile This matter would not be exempt as “trivial or negligible in all the circumstances” as this is a third incident indicating a pattern of behaviour. Also the level of force is high (pushing into a railing) This would not be exempt within the Class or Kind Determination as it is not a first time allegation

35. Scenario 4 A student reports that during preparation for a school reconciliation, the instructing priest, Fr Peters, poked him in the back for talking continually and “it hurt”. Is this reportable to the Ombudsman? Yes No

36. Yes is incorrectX

37. No is correct √ Whilst clearly a physical assault, it would be exempt from reporting to the Ombudsman as a “poke” in the back is either : 1) considered to be trivial or negligible in all the circumstances; Or 2) a first time allegation within the Class or Kind Determination The employer would refer the matter to the Chancery for the investigation and management of this matter

38. Scenario 5 Anthony aged 13 has been challenging all day. During a visit to the library, he begins to mishandle a number of library books. The librarian who is approaching the end the day is feeling worn out and frustrated. She asks him to put the books down. Anthony replied, “ I just feel like messing about right now.” The librarian says “don’t do that” and grabs the books out of Anthony’s hands. Anthony complaints that she pulled his arm and hurt it by grabbing the book. He says his arm hurt all day and night. Is this reportable to the Ombudsman? Yes No

39. Yes is incorrectX

40. No is correct √ Whilst an allegation of “grabbing a child by the arm” in a disciplinary context is clearly a physical assault, it may be exempt from reporting to the Ombudsman if it is either: 1) considered to be trivial or negligible in all the circumstances; Or 2) a first time allegation within the Class or Kind Determination The employer is still required to investigate the matter and take appropriate action if the conduct is found to have occurred

41. Scenario 6 A year 1 child is on a behaviour management program agreed to by the parent and the school. This allows the class teacher to remove him to a safe place when his behaviour is aggressive to other students. During an outdoor assembly, he begins to punch and kick a child next to him. The class teacher picks him up as approved by the behaviour management program and carries him to the safe place. The mother is present and upset by the incident, complaining her son was assaulted. Is this reportable to the Ombudsman? Yes No

42. Yes is incorrectX

43. No is correct √ As the conduct alleged by the mother is consistent with what is contained within the agreed behaviour management plan, this would be exempt from reporting as: “The complaint is reasonable conduct subject to relevant codes of conduct or professional standards” The matter is not reportable to the Ombudsman and the standard school grievance process would apply

44. Scenario 7 A parent complains that a casual teacher was rude and shouted at her son’s class. Her son was reluctant to go to school this week. The parent is concerned that this may affect her son’s HSC exams due to commence soon. Is this reportable to the Ombudsman? Yes No

45. Yes is incorrectX

46. No is correct √ • This is not an allegation of psychological harm as not all of the 3 criteria have been alleged. That is, the alleged conduct is not targeted at the child, and it is not alleged that the child has suffered significant harm • The matter is not reportable to the Ombudsman and the standard school complaint/grievance process would apply

47. Scenario 8 A parent complains that her son in yr 8 was not provided with medical treatment when he suffered concussion as a result of being hit over the hit by another student with a baseball bat. Is this reportable to the Ombudsman? Yes No

48. Yes is correct √ • This is an allegation of neglect because it is an allegation that a person responsible for the care of the child failed to meet a child’s physical needs by not providing medical attention when required

49. N0 is incorrectX

50. Scenario 9 A 15 year old girl complains that her teacher makes her feel uncomfortable. She says the teacher has tried to get her alone with him in the photography dark room, and made comments about how long her legs are and he “would win competitions if he could take photos of legs like that”. He also leans too closely to her when she is working in class and recently touched her on the breast when walking past her. Is this reportable to the Ombudsman? Yes No