Education Law Articles - Investigations

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Keep your word!

The High Court has recently stressed that an important principle of natural justice is that the decision-maker honour commitments made in the course of an enquiry. A Muslim Tamil from India applied for a protection visa in Australia. At the end of a hearing, the Tribunal member said she would write to him with some questions to allow him to clarify some matters about which there was some confusion. She did not do this and did not explain why but proceeded to deliver judgment.

School executives investigating allegations against staff or students must take heed. If you indicate to someone that they will have further opportunity to provide information or answer questions, it will generally be unfair if you do not provide this opportunity.
 

Does Police involvement let the school off the hook?

In a recent US case, while away from his school, but with two school friends, a 16-year-old said that he was going to "get his dad's gun in Indianapolis, bring it to school, start with the 7th grade, and work his way up." Someone told the principal, who later interviewed the student. He admitted making the statements in violation of school rules. He was suspended. Later, he was interviewed by a sheriff's deputy and a probation officer, but no charges were brought against him. He was expelled. He then challenged this, arguing that law enforcement officials, such as a prosecutor, needed to determine whether he had engaged in unlawful activity before he could be punished. The court disagreed and said that the prosecutor's failure to determine whether he engaged in unlawful activity when he made the statement did not preclude his expulsion. It also said that the school could determine whether the student's unlawful activity was an interference with school purposes or functions, or whether his removal was necessary to restore order or to protect persons on school property, as was required by the relevant law that permitted the suspension or expulsion of a student for engaging in unlawful activity on or off campus.

David Ford's paper presented at ANZELA's conference in Wellington, NZ (Read David Ford's paper) dealt with a school's responsibility to investigate after police inaction:

“It is not uncommon for educational institutions to be required to investigate alleged behaviour which could constitute criminal activity in situations where the Police have already investigated but decided against bringing charges. The institution finds itself in the invidious position of having to investigate the alleged criminal activity when the Police have decided that there is not enough evidence to prove what is alleged beyond reasonable doubt - the appropriate burden of proof in criminal matters. The decision by the Police not to charge a student or teacher cannot be relied upon by the educational institution as being determinative of the issues which are the subject of the investigation. As the Full Bench of the Industrial Commission said in Wang v Crestell Industries Pty Ltd:

The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and gravity of the consequences of the finding.”
 

Procedural Fairness - Teachers

Allegations against teachers are all too common. Nevertheless, they must be investigated and in a way that is fair to both the accused teacher and the alleged victim. Several recent Australian cases illustrate how easy it is to overlook basic principles of procedural fairness when investigating serious allegations. In one, a school authority wrote to a teacher saying it had received a complaint of sexual abuse and harassment but did not provide details of the allegation. An investigation followed in which gossip and hearsay evidence was accepted and no findings of fact were made. There was obvious bias against the accused teacher. Decisions were made at a meeting without a quorum. The decision making body did not allow the teacher to make representations to it nor did it independently consider the issues; instead, it just adopted the investigator’s report.

The court concluded that the investigation was amateurish and inadequate. A major error was the failure to separate the three distinct stages of an investigation. The first stage is information gathering by the investigator to determine if there is a case of misconduct to be made. The second stage is giving the teacher a clear statement of the matters to be answered. It is at this point that the teacher must be given an opportunity to respond to the charges. The final stage is the adjudication.

It is becoming more common for schools to outsource investigations, particularly where the allegations are serious. While there is merit in this, be careful to ensure that the investigators appointed know what the law expects of them.
 

Take care when investigating!

Two teachers took 29 Year 10 students on a five day history excursion visiting various sites in southern Tasmania. One of their activities involved a role play and re-enactments relating to the penal system. Following the excursion, five female students made allegations that one of the teachers had sexually misbehaved in conducting the re-enactments and on other occasions. An investigation was carried out.

The teacher is now suing the Tasmanian Education Department for the damage to his mental health suffered as a result of the negligent conduct of that investigation. The teacher is pointing to:

• the failure to provide him with particulars of the charges for 10 months;
• the failure of the investigator to interview all potential witnesses;
• suggestive interview techniques employed by the investigator when speaking to the complaining students;
• private communications by a department employee with the investigator;
• opposition by the investigator to an application by the teacher to be permitted legal representation at the hearing;
• seven months delay by the investigator in publishing her findings and recommendations.

While the substantive claims of negligence have not yet been heard by the Court, an application by the Department to strike out much of the teacher's claim was unsuccessful. The clear lesson for schools is that their investigation of allegations made against employees must be carried out fairly and with due regard to the principles of natural justice.

Procedural Fairness - Students

A 13 year old student was suspended for possessing a cigarette at school. After she returned home at the end of the day, the student committed suicide. The student's parents unsuccessfully sued the school district, the assistant principal who suspended the student, and several other school officials. The Court said that the school authorities did not violate her rights to procedural fairness by suspending her without providing parental notice and a pre-suspension hearing. In addition, the Court concluded that there was no evidence that school authorities knew that the student had previously threatened suicide. Further, there was insufficient evidence to support a finding that the school acted with deliberate indifference in meting out different punishments to the girl and another student also caught with cigarettes.
 

Procedural Fairness - Teachers

Allegations against teachers are all too common. Nevertheless, they must be investigated and in a way that is fair to both the accused teacher and the alleged victim. Several recent Australian cases illustrate how easy it is to overlook basic principles of procedural fairness when investigating serious allegations. In one, a school authority wrote to a teacher saying it had received a complaint of sexual abuse and harassment but did not provide details of the allegation. An investigation followed in which gossip and hearsay evidence was accepted and no findings of fact were made. There was obvious bias against the accused teacher. Decisions were made at a meeting without a quorum. The decision making body did not allow the teacher to make representations to it nor did it independently consider the issues; instead, it just adopted the investigator’s report.

The court concluded that the investigation was amateurish and inadequate. A major error was the failure to separate the three distinct stages of an investigation. The first stage is information gathering by the investigator to determine if there is a case of misconduct to be made. The second stage is giving the teacher a clear statement of the matters to be answered. It is at this point that the teacher must be given an opportunity to respond to the charges. The final stage is the adjudication.

It is becoming more common for schools to outsource investigations, particularly where the allegations are serious. While there is merit in this, be careful to ensure that the investigators appointed know what the law expects of them.

Need help with an investigation?
Contact %96%B1%A6%CA%B4%96%88%BE%A2%C9%D9%87+61 2 9267 9800