My job is to root out dodgy workers. These are the warning signs to look for in childcare

“There is evil everywhere under the sun,” wrote Agatha Christie. But the recent case of a Victorian childcare worker charged with over 70 child sex offences is a reminder that reality can be darker than fiction.

That worker, Joshua Dale Brown, was employed across at least 23 centres over 10 years and was reportedly sacked from a childcare centre months before he started working at the centre that is the location of the alleged assaults.

Employers need to ask the right questions to prevent evil entering workplaces.

As a lawyer investigating employee misconduct in the childcare, aged care, and education sectors, I’ve seen how evil infiltrates workplaces. My role often involves advising employers on how to respond swiftly to allegations and remove perpetrators from the workplace, and when to refer matters to police.

I’ve observed how easily offenders move between employers, avoiding accountability. In some cases, I’ve dealt with the same individual being terminated by two different employers. This is often enabled by deeds of release containing confidentiality clauses, which prevent former employers from sharing critical information, including allegations of serious misconduct.

There is a smorgasbord of legal actions an employee can bring against an employer in Australia, including unfair dismissal laws covering any employee who earns under $183,100 and general protections claims that apply to every employee even during probationary periods. So contractual release agreements are often a practical way to resolve employment disputes. But what concerns me is when confidentiality and non-disparagement clauses – a convenient tool for getting rid of bad employees – are used with people who are clearly unfit to work with children. By preventing employers from disclosing the reasons for an employee’s departure, these can conceal serious or criminal behaviour, leaving future employers in the dark.

Law firm partner Paul O’Halloran.Credit: Wayne Taylor

The problem of gag orders has gone unaddressed for too long. The Royal Commission into Institutional Responses to Child Sexual Abuse was critical in 2017 of how some schools were concealing worker misconduct by using confidentiality clauses to protect their reputation in settlement agreements. The royal commission also found that non-disparagement clauses were preventing employers from giving negative references about former employees, allowing individuals who posed a risk to children to move between institutions undetected. Similar clauses are still used widely by some employers today.

Employers must stop including, or accepting, confidentiality clauses in exit agreements where there are concerns about safety risks posed by a worker and ensure accountability and transparency. If that means the employer might need to defend an unfair dismissal claim, so be it. Employers can’t risk enabling further misconduct or abuse.

And it’s not just the childcare sector that attracts perpetrators. I once acted for an aged care provider after allegations of sexual misconduct and sexual assault by a male worker emerged from elderly residents, most with dementia, and their families. Police confirmed a history of similar allegations at other facilities. After his dismissal, the worker filed an unfair dismissal claim. It was later revealed he had signed a deed of release with a former employer, preventing disclosure of earlier allegations.

Poor recruitment practices are part of the problem. A Working with Children Check alone is not enough. Employers need to scrutinise applicants for red flags – the most obvious being an expression of intense personal motives for wanting to work with children. In 2017, the royal commission reported that most perpetrators will not yet have criminal records, and referred to convicted paedophile Jonathan Lord, a childcare worker in Sydney who was guilty of sexually abusing multiple children. In his CV, Lord wrote that his career ambitions were: “To work with kids and help them to experience life, love and friendships in an environment where there are no walls or boundaries.” The commission observed that such statements should cause employers to look more closely at the background of candidates.

Employers shouldn’t rely on pre-prepared written references but should conduct detailed verbal reference checks with former employers to gain an insight into the past behaviour and conduct of job candidates. Did they have a history of compliance with codes of conduct and workplace policies? Did the candidate ever receive complaints from customers or stakeholders? Were they ever subject to a workplace investigation? Even asking “would you rehire this person again” can provide a clue as to whether a candidate’s background might require further scrutiny.

Legally, there is no obligation on an employee to disclose their own past misconduct. So employers need to start asking candidates if they’ve been investigated, charged or dismissed for misconduct – even if no conviction resulted. Employers could ask job candidates to complete detailed written self-disclosure declarations, not dissimilar from pre-existing injury or illness forms many employers already use during recruitment. Such a declaration would require the candidate to volunteer if they have been previously investigated for professional conduct concerns, been charged but not convicted of a criminal offence, or been dismissed and signed a deed of release.

Recruiters can then consider a candidate’s willingness to disclose their history, with dishonesty forming valid grounds for dismissal if uncovered later.

Safety can be further improved by fostering a strong reporting culture among colleagues to prevent the bystander effect and the cultural reluctance to “dob in a mate”. Employers in schools and the childcare sector should increase and preserve CCTV footage to monitor worker/child interactions, and improve complaint handling to identify patterns and concerns raised by parents. Ultimately, workplaces that promote child safeguarding will deter unsuitable individuals.

Until laws catch up, employers dealing with children must lead the way. As a first step, we need to stop a gag culture that allows employers to pass problem employees – and perpetrators – on to the next workplace.

Paul O’Halloran is a partner and head of office in Melbourne law firm Dentons Australia.

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