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Fairly advice for all educational institutions in Australia - teachers can sink misconduct claims and avoid termination

A recent the whole Administration conclusion of the FWA Commission (the Commission) has spotlighted the essentiallity of Employers thinking about as many re-employment work choices as possible so that as a boss you will not be found to have unfairly dismissed your worker. The Commission FWA can uphold any dispute by workers in disagreement to determinations not to give the worker their job back. Despite acknowledging there was a valid reason for the workers dismissal. In these cases the key is considering all options (this is king), It does not matter if the empoyee is a teacher in the Public/private/special or Catholic school systems.

The Facts
When investigating these issues it was uncovered some staff who have been employed as a teacher at private /public or catholic Patrician Brothers Colleges in Blacktown, Paramatta and around Australia. Whether being there for a period of 30 years or more before ending their job on the basis of misconduct for various reasons which have in many cases included being alone with students out of school hours due to special activities like tennis, water sports, lifesaving and other classes.  

This troubling problem that has been identified is when a teacher is without others and alone with these pupils. Educational Institutes must give very clear directions to teachers so the security issues which may include a plans of action that have the effect of stopping these situations arising and compromising student /teacher relationship.  One of these directions could be not being involved with transportation for out of school hours activities.

If teachers do not follow these instructions this will provide proper grounds for disciplinary action.  The next major issue facing the employer is whether the employee should be terminated etc. Depending on length of service of tutors.

Possible decisions
An appeal to the Full Bench of (FWA) can accept the initial Commissioners or original Deputy President’s findings as valid and therefore reasonable for an employee to be dismissed due to not following a reasonable and lawful direction (such as not being alone with pupils outside of school time). And although it can be said that these activities were out of normal school hours, Fair work Australia have found these interactions arose directly out of the pupil/teachers relationship and is an appropriate concern to any teaching institution. The overriding duty is to protect pupils from possible abuse, and protect itself (and staff) from potential liability.

Whilst in these types of situations a breach of child protection directions provide a valid reason for a tutors dismissal, the Full Bench can still find a termination was unfair due to serious procedural deficiencies in the way an employer had dealt with the misconduct, especially at the stage of a ‘disciplinary’ meeting.
These included failing to:
sufficiently particularise the allegations against a teacher before the meeting; provide notice of the potential consequences for a teacher (i.e. dismissal) prior to or during the meeting; and provide a meeting with the decision maker not just offering this to a staff member. Therefore, the Commission can consider a teacher had not been adequately notified of the reasons for such terminations or provided with a real opportunity to respond.

The Commission can also find the following factors also contributing to a College’s decision to terminate a educators being unfair:
the employer can give insufficient weight to a teachers years’ service and contribution to the College; and the influence  of serious allegations of abuse against others at the same College. 

However, while the commission can confirm a previous decision to order a substantial amount of compensation and refuse reinstatement to the school as showing a teacher has given legitimate concerns held by the Institution/Private School/College Diocese about a teachers past and potential future conduct, they can hold there are cases where the commission can err in failing to consider the possibility of a tutors being reinstated to another position elsewhere in the Institution/Private School/College, which would not involve teaching or unsupervised interaction with pupils/students. And in cases like this specific issue the matter will be referred back to the original commissioner for consideration and determination.

Things to be learnt by employers wanting to act fairly
HR managers need to remain aware that even if the reason for terminating a tutor is valid, the Commission may still find the termination unjust and unreasonable under the Fair Work Act and make orders accordingly

To avoid these negative outcomes, it is important for managers to follow correct procedures for termination by:
Detailing the allegations against the tutors prior to any disciplinary meeting; Informing the employee of the possible outcomes of the disciplinary meeting in the disciplinary invitation letter;
Providing the staff with a genuine opportunity to respond to the allegations.
In thinking about a remedy that suits such misconduct, it is also pertinent to consider the individual merits of a staff members  individual case, this may include length and quality of service provided to the employer.

While termination for a misbehaving teacher with only a few months employment can be seen as acceptable, the same may not apply for the same misconduct with an employee having over 20 years and otherwise excellent employment record. A dismissal may also be considered harsh, unjust or unreasonable where the employer dismissing an employee is reasonably seen to be influenced by other events and/or the misconduct of other employee.

Finally, before dismissing a tutor managers, especially in large diverse organisations, should consider all re-instatement options, including suitable positions in other departments.