TRB disciplinary processes: all above board?
The Teacher Registration Board has the power to impact a teacher’s ability to work by imposing conditions on your registration. Make sure you understand the process and your compliance obligations, writes Jarvis Ryan*
There is often confusion among teachers about the disciplinary powers of the Teacher Registration Board (TRB) and how these differ from those exercised by an employer.
An employer – in the case of most AEU NT members, the Department of Education – may take disciplinary action under the Public Sector Employment and Management Act (PSEMA), other legislation such as the Fair Work Act, and common law.
The TRB is governed by its own Act: the Teacher Registration (Northern Territory) Act, introduced in 2004 and last amended in 2020. This Act governs the make-up and decision-making process of the Board and gives the Board a range of powers in relation to a teacher who is registered (or seeking to be).
The Board’s powers do not always relate directly to a teacher’s employment, rather to their capacity to be registered as a teacher. However, it follows that a decision by the Board to cancel, suspend or impose conditions on a teacher’s registration will have implications for that person’s employment.
If the Board determines to cancel or suspend a teacher’s registration, or impose certain conditions, this could potentially lead to termination of employment, if a person employed as a teacher is unable or unwilling to be redeployed to other suitable work.
For teachers who are referred to the Board, the process can feel like double jeopardy, because a referral is often triggered by the employer commencing disciplinary or inability proceedings. They are in fact separate processes, governed by different legislation, although the evidence relied on may be identical or very similar. (In some cases, there will be yet another layer to consider, because if the matter referred to the Board is of a criminal nature it will in the first instance be investigated by police.)
These processes may run in parallel, but often the employer process will be completed before the Board commences its own procedures.
The Board applies a “fit and proper” person test to determine whether a person can be or remain registered as a teacher. While there is no one-size-fits-all definition of this concept, broadly it means the Board must be satisfied that a teacher will be able to carry out their role competently and professionally, maintaining the confidence of the community and their colleagues.
Under this test and the provisions of the Act, conviction of a serious criminal offence would almost certainly be disqualifying. Most referrals to the Board are less clear cut and therefore the members of the Board, usually acting on recommendations from the Director and TRB staff, must use their judgment on what course of action to take.
The Board has several options available for each matter before it. In some cases, the Board may dismiss the matter if it deems there are not sufficient grounds for further investigation or action, or because the matter has already been appropriately resolved. An example of this could be where the employer referred a teacher because the employer had commenced inability proceedings against them, but the teacher was able to successfully resolve underperformance concerns.
In most instances, the Board will authorise a preliminary investigation to gather more information about the matter. The teacher under investigation must be notified in writing and given the opportunity to make submissions, which includes providing supporting documentation such as character references and witness statements.
At the conclusion of the investigation, the Board may elect to impose conditions on a teacher’s registration or take no further action. If the matter is more serious and in the opinion of the Board warrants potential temporary cancellation of registration or total disqualification, an inquiry may be held.
An inquiry is a more formal process than an investigation, conducted by a three-person panel consisting of two Board members and an experienced legal practitioner. Again, the subject of the inquiry must be notified and given a right to defend themselves.
At the conclusion of any disciplinary process conducted by the Board, if a teacher wishes to remain registered, or reapply for registration in the event theirs has been suspended, the teacher must abide by any conditions imposed.
More generally, the Act imposes numerous obligations on registered persons, such as maintaining their registration by paying the annual fee on time. Teachers must cooperate with investigations and requests for information. In some instances the Act obliges teachers to notify the Board office of changes in circumstances. At the most basic level, this means maintaining up-to-date contact details. More seriously, teachers must notify the Board if they are charged with or convicted of certain criminal offences.
Failure to comply with these requirements may lead to conditions being imposed on registration, or cancellation.
National agreements on sharing of information mean that conditions imposed in the NT will inevitably follow teachers elsewhere, and vice versa – so there is no running away from a disciplinary process once it is commenced by a registration body.
There is external oversight of TRB decisions via the NT Civil and Administrative Tribunal (NTCAT), which can review many Board decisions.
For any teacher referred to the Board, the experience can be stressful and akin to navigating a labyrinth. Fortunately, the experienced industrial team at the AEU NT and our lawyers are there to support members every step of the way.
It’s yet another example of why you’d be foolish to step foot inside a classroom without the protection of union membership, especially in an environment of increasing disrespect for teachers and the employer's standard refusal to defend teachers effectively against unfair complaints.
* Note: the information presented here is general in nature only. For specialist advice in relation to your specific circumstances, you should always seek support from the union office. This is an expanded online version of an article prepared for the Semester 2, 2021 edition of the Territory Educator magazine.
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