Acting swiftly and fairly: Responding to misconduct allegations in ECEC settings

When serious allegations arise, early childhood leaders must balance swift action with procedural fairness to protect children and comply with workplace law.

Recent high-profile cases have reinforced the need for early childhood education and care (ECEC) leaders to act decisively when misconduct concerns emerge, particularly those involving the safety or wellbeing of children.

The stakes are high when managing concerns about educator conduct. Under the Education and Care Services National Law, services have a legal and ethical responsibility to protect children from harm. At the same time, they must uphold the principles of procedural fairness, as required by workplace legislation, including the Fair Work Act 2009. Delayed responses can compromise child safety, while poorly managed investigations may result in unfair dismissal claims and reputational harm.

Procedural fairness requires that employees:

• are informed of the concerns raised
• have a genuine opportunity to respond
• may access a support person if requested
• are treated impartially and without presumption of guilt
• have decisions made in accordance with service policies and legal obligations

Each situation must be considered on its own merits, with careful attention to the needs of the child, the context of the incident and the rights of the employee involved.

When an allegation involves a serious risk to children, such as physical or sexual harm, the priority is to remove the employee from direct contact while an investigation takes place. This often means suspension on full pay,not as a presumption of guilt, but as a precaution.

The Education and Care Services National Law and various mandatory reporting schemes across jurisdictions may require immediate reporting of serious allegations to the regulator, child protection agencies or police.

The following steps are recommended when responding to serious allegations involving staff:

1. Receive and review the allegation
   Understand the nature, seriousness and context of the concern.
2. Verify key facts quickly
   Use rosters, incident reports, or CCTV footage to confirm initial details.
3. Assess immediate risk
   If necessary, stand down the employee on full pay while investigating.
4. Seek expert support
   Engage legal or HR professionals to guide processes and support leadership.
5. Communicate clearly with the employee
   Notify the employee of the suspension, emphasising it is precautionary.
6. Gather evidence
   Collect reports, witness statements, CCTV footage and other documentation.
7. Present allegations and provide time to respond
   Share clear details of the concern and allow reasonable time to reply.
8. Offer a formal opportunity to respond
   Conduct a meeting or accept a written response, allowing a support person.
9. Evaluate all information fairly
   Weigh the evidence and determine if a breach occurred.
10. Decide and communicate the outcome
    Clearly inform the employee of the decision and any consequences.
11. Report to authorities where required
    Notify regulators or child protection authorities as mandated.
12. Document the process
    Maintain thorough records of all actions, timelines and decisions.

Under Fair Work Regulations 2009 (s1.07), serious misconduct includes behaviour that:

• Poses serious and imminent risk to health and safety
• Is inconsistent with continued employment
• Breaches child protection obligations or service policies
• Involves intoxication while supervising children
• Defies lawful and reasonable instructions

In ECEC settings, substantiated allegations, especially those involving harm or regulatory breaches, may lawfully result in termination.

Additionally, Working with Children Check (WWCC) failures, prohibition orders, or findings from internal investigations can lawfully justify dismissal.

Services must meet mandatory reporting and notification duties under the National Law and, in jurisdictions, comply with reportable conduct schemes. These schemes require services to investigate and report allegations of child-related misconduct to oversight bodies, irrespective of criminal proceedings.

Misconduct investigations are complex, especially when child safety is involved. Leaders should act quickly, but never rashly, balancing urgent safeguarding responsibilities with procedural fairness. A clear framework, thorough documentation and a commitment to lawful process will help services uphold their dual duty: to protect children, and to treat employees fairly.

For further guidance, visit the Fair Work Ombudsman, the Australian Children’s Education & Care Quality Authority (ACECQA), state or territory child protection regulator, or explore CELA’s guide on responding to misconduct allegations.