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Perspective

Seriousness of misconduct outweighs failure to apply values in approach to termination

Mathew Reiman
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In the recent case of Mr Simon Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 (28 April 2021), a school has avoided disaster in an unfair dismissal claim despite its procedural fairness failings due to the overwhelming seriousness of a teacher’s misconduct involving a student at the school.

The teacher had their employment terminated for reasons including an incident between the teacher and a student, an inappropriate tweet by the teacher, and a blog post identifying the school as the teacher’s employer.

The incident with the student had occurred over 6 months earlier and the school had referred the incident to the Commission for Children and Young People (CCYP) at the time, identifying the incident as a Reportable Conduct incident. The school relied on a closure of the investigation by the CCYP to issue the teacher with a warning for the incident.

The school did not investigate the incident itself at the time and the parents of the student escalated their concerns in February 2020. Only then did the school initiate an investigation into the incident.

Before the investigation could properly get under way, a Four Corners report into the school was released with a focus on child safety. The leadership of the school changed and the Acting Principal, on the day of his appointment, terminated the employment of the teacher after reviewing correspondence from the student’s parents.

In rejecting the teacher’s unfair dismissal claim, the FWC identified the procedural failures of the school as being a breach of the school’s enterprise agreement. However, the FWC also made significant findings of fact regarding the teacher’s conduct (particularly in relation to the incident with the student), finding the conduct to be serious misconduct.

The teacher sought to dispute the school’s entitlement to rely on the incident with the student on the basis it had condoned the conduct in issuing him with a warning, rather than terminating his employment. However, the FWC rejected this argument too, identifying the school had not had “full knowledge” of the incident when the warning was issued, meaning the school could not have condoned the conduct.

Taking all the factors into account, FWC emphasised the “significant gravity and extent of [teacher’s] misconduct”, particularly the “harm to [the student]”, and found the seriousness of the misconduct outweighed the school’s procedural failings.

Key lessons for employers

  • Employers must not ignore procedural fairness requirements in terminating employment, but seriousness of misconduct will be given favourable treatment by FWC if a dispute arises.
  • Failure to always adhere to values can have significant impact on employees and stakeholders. Don’t express a value if it is not genuinely held!
  • Employers should always ensure to fully investigate serious allegations, even where potential third parties are involved for specific aspects of those allegations. Primacy of responsibility for employer to deal with employment related matters remains.
Mathew Reiman
Published:

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