Recent child safety cases have rocked the ECEC sector and service leaders need to understand how to act quickly when an employee poses a potential risk to children.
The stakes are high. Services have both a legal and moral duty to protect children, and employees have the right to fair treatment, protection from unfair dismissal, and to have decisions made in a fair and unbiased way. Acting too slowly exposes children to risk and failing to act with procedural fairness can risk breaching workplace law.
Here, we explore that balancing act: examining what the law allows, what good HR practice looks like, and what lessons we can take from recent safeguarding failures. We look at how services can put children's safety first while enacting lawful employment practices.
Procedural fairness
As DreamStone HR Managing Director Kylie Thomas explains, services have the right to act immediately to protect children and do not need to wait for a police or regulatory investigations to conclude. However, they must still carry out their own internal investigation before taking any formal action.
While the safety and wellbeing of children must always come first, Kylie stresses that services need to balance urgency with fairness. Timeliness is critical, and while services should act promptly, the process needs to be carefully considered, impartial and fair on the employee.
The decision-making process followed by an employer falls under ‘procedural fairness’, which according to the Fair Work Commission, can include whether:
- the employer followed their own procedures,
- the employee had a fair opportunity to explain their side,
- a support person was available, and
- the employee was informed of the case against them and given a chance to respond
Acting promptly is key, says Kylie:
One of the procedural fairness elements is that the investigations are managed in a timely fashion, and we don't want something—a serious matter from an employment perspective—to come unstuck because we waited too long.
Kylie adds that every case is situationally dependent: “The complexity comes with the fact that every incident or every investigation is unique in its circumstances. Each child is different, the educator is different, the circumstances are different, and all of that needs to be taken into consideration before a determination can lawfully be made.”
Child-first principle
The safest path is often a cautious one: remove any immediate risk while following due process. This usually means suspending an employee on full pay while investigations are carried out.
Under the Education and Care Services National Law and mandatory reporting duties (which vary by state and territory), services are often obliged to immediately remove an educator from child contact when allegations arise. Once serious misconduct is substantiated (eg. through internal investigation, regulator prohibition, failed WWCC), services can lawfully consider termination.
While suspension can definitely be the safest option, it should also be well-thought out.
“Standing somebody down, or suspending them from their duties, needs to be framed as precautionary,” says Kylie. “It can't be as a presumption of guilt. So basically, what you're standing somebody down for is to give the service and the employee the space to be able to investigate this allegation properly and fairly.”
A step-by-step guide to investigating an allegation
Kylie suggests the following steps should be taken when an allegation of serious misconduct arises:
1. Receive and review the allegation
As soon as an allegation is received (verbally, in writing, or via complaint), review the information to ensure you understand the nature and seriousness of the claim.
2. Verify initial facts quickly
Check details such as who was present and any other verifiable facts (eg. using rosters, incident reports, or CCTV footage) to confirm the plausibility of the allegation. Kylie points out that directors should know exactly how to access CCTV footage quickly.
3. Assess the need for immediate action
If the allegation is serious, consider whether it is necessary to stand the employee down with pay as a precautionary measure. This is not a presumption of guilt, but a step to ensure the safety of children and the integrity of the investigation. In cases of sexual abuse or serious physical abuse, it is necessary to report to the police.
4. Reach out for support if needed
Services may wish to bring in a legal or HR advisor to assist with some of or all the investigation process, communicate with staff, and manage the emotional weight of the case. Employees also have the right to representation if they request a support person or a union. Fair Work offers some free legal help to employers (and employees) who qualify.
5. Communicate clearly with the employee
Inform the employee that they are being stood down as a precaution while the matter is investigated. Make it clear that no assumptions are being made about their guilt at this stage.
6. Gather further evidence
Collect all relevant documentation, such as incident reports, CCTV footage, and witness statements. Interview any witnesses or individuals named in the allegation.
7. Prepare and present allegations to the employee
Once enough information is gathered, prepare a clear statement or letter of allegation outlining the specific claims and any potential breaches of policy or law. Provide the employee with this information and allow them a minimum of 24 hours to prepare a response: The amount of time to respond needs to be proportionate to the number of allegations.
8. Conduct a formal interview or request a written response
Offer the employee the opportunity to respond to the allegations, either in a meeting (with the option of a support person present) or in writing. Take detailed notes and ensure the process is confidential and impartial. Skipping this step exposes the service to unfair dismissal claims, which can be costly and undermine the integrity of the process.
9. Evaluate the evidence and make a decision
Consider all the evidence, the employee’s response, and any mitigating factors. Ensure the outcome is proportionate to the severity of the conduct and follows procedural fairness.
10. Communicate the outcome
Inform the employee of the decision and any consequences. If termination is being considered, ensure all steps have been followed and the decision is well-documented.
11. Report to authorities if required
If the allegation involves criminal conduct or breaches of child safety regulations, report to the relevant authorities (e.g., police and/or the relevant child protection authority and regulator) within required timeframes. Employment investigations can proceed in parallel with police investigations.
12. Document everything
Keep thorough records of every step, communication, and decision made throughout the process. Also ensure all safeguarding policies and employment contracts are clear and up-to-date.
What the law says about termination
Workplace law: serious misconduct
Under the Fair Work Regulations 2009 (s1.07), “serious misconduct” includes behaviour that causes serious and imminent risk to health and safety or is inconsistent with continuing the employment contract. For ECEC services, examples include:
-
Serious breaches of service safeguarding policies
-
Refusing a lawful and reasonable instruction – such as failing to follow mandatory reporting requirements, supervision duties, or health and safety directions
-
Being intoxicated while responsible for children
If an allegation is substantiated and falls within serious misconduct, termination is lawful.
Child protection law
The Education and Care Services National Law requires services to notify regulators of serious incidents, including allegations of harm. Reportable conduct schemes (in NSW, VIC, ACT) also impose a duty to investigate allegations of child-related misconduct and report to oversight bodies.
Termination may be lawful when:
In an article for ABC News, University of New South Wales Professor of Criminology Michael Salter said it was extremely rare for criminal charges to be laid over the sexual abuse of babies and toddlers.
"In the absence of very clear medical evidence or, frankly, in the absence of photographic evidence, these are cases that just often don't proceed," he said.
"They [children] seem to live in a legal void, a legal black hole where they can't speak on their own behalf."
The essentials
Leaders should act quickly and carefully when concerns about an employee’s conduct arise.
- Prioritise children’s safety in every decision: This is a non-negotiable.
- Remove immediate risk: If deemed serious, consider suspending the staff member on full pay while the investigation proceeds.
- Report through the correct channels: Notify child protection authorities, the regulator, and police if required.
- Seek advice: Consider engaging HR and/or legal advisors for support throughout the investigative process.
- Document everything: Records of actions, timelines, and decisions are vital.
- The right to terminate an employee for child safety concerns sits at the intersection of two critical duties: protecting children and respecting employee rights.
The law provides a clear framework for termination in cases of serious misconduct or regulatory failure. But in the grey areas—when investigations are ongoing, or allegations are untested—services must tread carefully and swiftly, prioritising children’s safety and at the same time upholding procedural fairness.
*This is the case if there is it is clear the employer supported the employee to: understand their obligation to report, know how to report and encouraged employees to report without fear or repercussions.
Further reading
How ECEC professionals can recognise and respond to abuse
How ECEC leaders can build a safe reporting culture