Legal Matters | Secretary Greg McLaren:

Managing Parents with Difficult Behaviours and Warring Families

A joint paper by Margaret Baker (Legal Services) and Greg McLaren (NSWPPA) for NSWPPA

The consequences of offensive behaviour in schools are likely to become costly for the DoE. It will be through time lost to ill health, WH&S claims against employers for not providing a safe working environment and reduced functioning while at work.

Australian academic, Phil Riley report author of an independent longitudinal study, Australian Principal Occupational Health, Safety and Wellbeing Survey, identifies that “workplace demands on Principals are 1:5 times higher than the general population”. The report also shows that a concerning number of parents and students are resorting to threats of violence, bullying and offensive behaviour towards schools’ frontline staff. Since 2011, the annual survey has heard from more than half of Australia’s school Principals. In 2020 more than 84 per cent of school leaders reported being subjected to an offensive behaviour over the last year, with 51 percent reported having received threats of violence, and more than 42 percent being exposed to physical violence. More than 37 percent were bullied, more than 57 percent endured conflict and quarrels, and more than 50 percent were the subject of gossip and slander.

Phil Riley asserts “the high emotional demands Principals and other school executive face, together with a lack of systemic support and training, means we see higher levels of burnout and stress. Worryingly, it is also taking a toll on their greatest support group their families”.

What can trigger difficult behaviours?

It is often difficult to understand why people display difficult behaviours. It could be:

• Parents wanting to deflect, defend or justify their child’s mistakes
• Parents, personally had a negative experience at school
• Poor interpersonal skills from the parent
• Poor interpersonal skills from the school leader
• School not following policy and procedures
• Discussing too many issues at once

Principals mostly learn how to deal with the demanding emotional aspects of the role on the job, rather than through systematic preparation. Unlike medicine, social work, psychology. These professions have a defined method to debrief about incidents.

We should employee the Six Thinking Hats, especially the White Hat: Facts and Figures. This hat addresses the areas of being neutral and objective –only the facts – when asking for facts, we should focus on the question on what is relevant – as a barrister does. The white hat allows us to override our habit of arguing.

Difficult people do have an effect on others:

• Waste large amounts of time
• Reduce productivity and job satisfaction
• Cause consideration of resigning or moving
• Damage relationships

What can Principals do:

• Manage your emotion/s
• Remain calm
• Participate with an open mind
• Think about your body language
• Use a low and calm tone of voice
• Be empathetic

Difficult behaviours from conversations

• No establishment of the facts
• Not an appropriate time and place
• Lacking a conversation plan
• Limited knowledge on what you know of the community member
• Have not sourced support
• Failed to check your policies and guidelines

Some things to keep in mind:

• Some complainants will be ‘difficult’ no matter what you do
• Completion and satisfaction for such complainants is unlikely
• Explaining and reasoning often does not work
• Always assume you are being recorded!

It would be fair to state that even the best Principals make an occasional mistake. We are not perfect, and most school leaders will admit failures. Great school leaders will proactively inform parents immediately when they realise they have made a mistake. Most parents will appreciate the candour in this approach. When a Principal realises they have made a mistake and decides not to inform the parent, it seems dishonest and will have a negative effect on the parent-school relationship.

The duty of care and health and safety law

Legal obligations arising under work health and safety law. Amongst other things the Department is required to do what is reasonably practicable to ensure the safety of its staff, students and other people who enter its worksites. NSW DoE H&SD directorate

Organisations are responsible for providing their staff with a safe and healthy workplace and for providing them with support and assistance at all times. NSW Ombudsman

Reasonable action should be taken as the duty of care generally will not be met if no action is taken.

• Assessment and treatment of risk.
• Reporting an incident or injury to the H&SD directorate hotline.

Courts have recognised that a discrepancy can exist between an employer's WH&S policies and implementation at the workplace. Management must be vigilant to ensure that what is put in place by way of policy is actually discharged by those who have day to day responsibilities in the workplace.

Key policies and appeal processes when managing complaints

Complying with policies, procedures and guidelines. As Principal you must be aware of key resources. If a resource is online go back to the source and make sure you use the latest version to guide your decision making. NSW DoE PES directorate

At times people will wish to make complaints about decisions made by schools and institutes. These complaints can sometimes be persistent and repetitive and occasionally cause distress to staff. Such conduct will not amount to harassment or intimidation under the provisions of the relevant legislation. Section 316 Crimes Act 1900

Procedural fairness in the Department of Education –Legal Bulletin 3 states that every day in school districts, state offices and other areas of the department, people acting on behalf of the Department take decisions which affect the rights, interests or legitimate expectations of individuals. All members of the education community have a basic right to expect they will receive procedural fairness in their dealings with authority. Similarly, it is appropriate that they will act fairly when dealing with others.

Procedural fairness, also known as natural justice, is generally recognised as having two elements.

The right to be heard which includes:

• the right to know the purpose of the particular decision-making process and the consequences that flow from it
• the right to know the way in which the issues will be determined
• the right to be fully informed of the allegations and of any other information which will be taken into account in making a decision
• the right to have a reasonable opportunity to respond to the allegations and any other information that will be taken into account in making a decision
• the right to an appeal

The right of a person to an impartial decision which includes:

• the right to impartiality in the investigation and decision-making process
• the right to an absence of bias in the decision maker.

Reasons should be provided as to why a particular decision has been made. Reasons should include relevant details of the evidence or relevant details of other material upon which the decision is made and the rationale for preferring that evidence over other material.

What does the department do if complainants do not behave reasonably?

Where complainant conduct becomes unreasonable and obstructs the proper management of a complaint, a senior officer from the department may decide to restrict or terminate contact with a complainant. NSW DoE PES directorate

Implementing parent codes of conduct

School leaders salute the many thousands of parents whose voluntary efforts, self-sacrifice and forethoughts are such a vital component of so many Australian schools today.

Students learn best when there is a positive partnership between home and school. Whilst every effort will be made to work with parents, this will only be possible where parents behave in an acceptable way.

Prevention is better than the cure. Do not underestimate the effect that one disgruntled community member can have on the morale of an entire school community, especially staff.

The schools coping with adults onsite put in place a list of conditions for staff, students and parents which outlined the appropriate way to behave towards one another.

It is important to remind members of the school community of the standard of behaviour expected of them while they are at school. These expectations should be expressed positively and regularly reinforced.

A polite message to parents that working with the school (instead of against) is a key strategy for supporting their child. The school should take action where behaviour is unacceptable or serious and breaches the home-school code of conduct or health and safety legislation.

Staff should be aware the Crimes Act 1900 (the Act) has specific offences with significant penalties for the assault, harassment, stalking and intimidation of students and staff on school premises or while entering or leaving school premises. Assaulting, stalking, harassing or intimidating any school student or member of staff while the student or member of staff is attending school - maximum penalty is 5 years imprisonment.

Legal Bulletin 57 states that legal obligations of schools responding to a student, staff, parent or other school community member exhibiting anti-social and extremist behaviour… Anti-social behaviour is behaviour which threatens the safe and secure atmosphere of the school and includes but is not restricted to behaviours such as bullying, harassment, discrimination, racism, illegal or criminal behaviour, physical violence or damaging school or other property. (When students engage in this kind of behaviour it is ordinarily dealt with under the school discipline policy).

Effective communication as a litigation minimisation strategy

Communicating school guidelines as well as DoE policies and procedures to school community is a must. Ratify school guideline updates with community using newsletters and website as well as to communicate channels to access staff and define the acceptable standard of behaviour.

Legal Bulletin Number 2 outlines offensive behaviour on or near departmental premises. Principals should be aware of the following offences under the Summary Offences Act 1988 (the Act) that relate to offensive behaviour in public places, particularly when the behaviour is in or near schools.

• Behaving in an offensive manner in, near or within view or hearing of a school or a public place.
• Using offensive language in, near or within hearing of a school or a public place.
• Have custody of an offensive implement in a school or a public place.

Best practice in documenting communications

There are subjective aspects to every school leadership role, no matter how fair we try to make our school. That's why it is important to keep good records of the interactions that are relevant to your communication with student's parents particularly when there are sensitive situations involved.

For this Principals prefer email interactions because there is a built-in document trail associated with it. For verbal or telephone conversations, take notes. In addition to agenda and meeting notes, take a few notes after the fact as to where things were left. Key phrases all of the parties said, and some specifics that could aid in further situations. This is required, for good reason, in many schools. Stored (electronic) school communication records are essential whether you use DoE, Sentral or other electronic communication records too.

Restricting or limiting communication with parents or carers
Depending on the circumstances it may also be appropriate to implement other strategies before preventing someone from coming onto the school site such as limiting the staff that person has contact with or implementing protocols for how a parent contacts the school (for example they can only contact school staff by email rather than by telephone).
Paramount consideration must be given to the safety and wellbeing of students and staff if such strategies are contemplated.

If a decision is made to terminate any future contact with a person and the person continues to disregard any advice about that decision, Principals may contact the department’s Legal Services to discuss what further action, if any, may be taken to resolve the issue.
A blanket policy of not dealing with a person, no matter what issue they raise, should not be adopted.

Restricting a parent from involvement in school activities

Principals should understand Apprehended Personal Violence Orders. In the school and other departmental contexts, these orders may impact on the way students, parents, teachers and community members interact with each other at school during school and other Departmental activities.

The court can grant an AVO if it is satisfied the person in need of protection has been subjected to:

• a domestic or personal violence offence. This covers a wide range of different criminal offences including all forms of assault (sexual and non-sexual), certain firearms offences and some damage to property offences;
• intimidation;
• stalking.

An application for an AVO can be made by the person in need of protection or a police officer on his or her behalf. Unless otherwise specified, an AVO is operative for 12 months. It is important a Principal checks whether the AVO is still current and read it carefully before taking action in response to the AVO.

Where practicable, Principals should consult with their Director Educational Leadership prior to banning/placing conditions on the entry onto the school site of someone who ordinarily has a legitimate reason for being on departmental premises. If the Director Educational Leadership is unavailable urgent advice should be sought from the Legal Services directorate.

Banning a parent from the school

Any subsequent decision to ban/place conditions on someone’s entry onto the school site must be confirmed in writing.

Responding to online criticism of staff or school

Cyber bullying is a form of bullying using text or images posted on personal websites or sent by mobile phone or email. Depending on the nature of the material posted or transmitted, people who engage in cyber bullying may be committing a criminal offence.

• The Commonwealth Criminal Code (the Code) provides for various offences involving inappropriate use of emails, telephones or text messaging.
• The NSW Crimes Act 1900 (the Act) also has a number of provisions which may be relevant.

Keep an archive of any emotional emails you received and send the trail to your Director, Educational Leadership. Use your ethical standards to guide how you respond.

Dealing with anonymous complaints

A community member can make their complaint anonymously. However, it may be difficult to resolve a complaint if they do not provide their contact details and we need further information to clarify the issues or take action to resolve their complaint. NSW DoE

Guide for parents, carers and students

DoE welcomes the opportunity to receive feedback and improve our services. The Department is committed to resolving parents, carers and students complaints promptly and at the first point of contact, wherever possible. DoE will support people that may need assistance to make a complaint. All complaints will be handled fairly, objectively and promptly. NSW DoE

Responding online to posts or messages

DoE staff should forward any correspondence containing threatening content or advocating illegal activities to the NSW Police.

• Collect evidence of the post. It is important to take a screen shot of the offending post. For information about how to do this see the eSafety Commissioner’s website at: https://esafety.gov.au/complaints-and-reporting/cyberbullying-complaints/collecting-information
• Notify the Director Educational Leadership
• Notify the department’s Incident Support Unit on 1800 811 523. That unit will notify other areas of the department, such as Legal Services and the Media Unit and will provide you with post incident management including any other notification requirements (eg to PES)
• Complain to the social media service: For information about how to complain about posts on some major social media services see the eSafety Commissioner’s website

No DoE employee should respond to correspondence containing offensive language or content.

Do not read emails when you leave work. Have two mobile phones –one for work, one for personal use.

When is a school obliged to act regarding conflict between school families?

Schools should not mediate conflict between school families as it is not the role of the school nor the Department. School leaders should remind families of acceptable conduct whilst on school grounds.

Utilise NSW Police Youth/ School Liaison Officer to support school purpose and expectations with visitor behaviour.

Support is available

Never feel alone.

Professional support is a strong predicator of coping with the stresses of the role (job demands).

• Employee Assistance Program (EAPs) Converge on 1800 060 650
• DoE Legal Services Directorate https://education.nsw.gov.au/inside-the-department/legal-services
• NSWPPA State Executive, local PPC Executive &/or NSWPPA Principal Support Officer https://www.nswppa.org.au/
• Director, Educational Leadership

The Phil Riley report into Principal wellbeing revealed Principals with the best mental health also have the highest levels of professional support. Never feel alone!