A teacher has been awarded compensation, but her summary dismissal confirmed, after findings that she 'secured' three Reception (Kindergarten) children to a chair with masking tape. The case was decided before the Fair Work Commission (the FWC), when the teacher (known as Ms RT), applied for relief under unfair dismissal provisions. This case is also a useful illustration of the mechanics of an unfair dismissal claim in a non-government school.

Background

Ms RT worked at The School (a pseudonym was assigned by the FWC) as a Reception class teacher since 2010. She is a teacher of 20 years' standing, and until now her record has been without incident.

The School operates under the South Australian Catholic Schools Enterprise Agreement 2010, but is a joint Anglican and Catholic College that is managed autonomously. Staff are employed directly by The School, but it operates with the support of the Catholic Education system.

Summary dismissal

Ms RT was summarily dismissed from The School by a letter, with effect from 19 December 2014. The summary dismissal followed an investigation by The School.

On 11 November 2014, parents of a student had made a formal complaint, which was facilitated by a meeting with Mr DP (the Acting Head of the Primary School). The parents complained that their son had been secured to a chair with masking tape and claimed that something similar had happened with two other children. A Police investigation was commenced, but there was no evidence to suggest that it was taken into account in this process. Any results of the investigation were not referred to in the decision of the FWC.

After the allegations were made, Ms RT was allowed to remain in the classroom. Notably, she continued to teach for two weeks. The FWC would later conclude that this was because the Acting Principal of The School, Mr P, thought that she was not a risk to students. None of the parents had requested that she be removed from the classroom. After this period, on 25 November 2015, Ms RT was advised that she would be stood down with pay whilst an investigation was commenced.

In the course of investigating the incidents, Ms RT admitted using the masking tape 'in a playful way', and as a 'seatbelt'. The investigation was continued by two representatives of the Catholic Education Office. Its report proposed the termination of Ms RT's employment. The Chairman of the College Council and the Chief Executive of Catholic Education agreed with that proposal and Ms RT was summarily dismissed.

The School's policies

Part of the basis for Ms RT's summary dismissal was her alleged failure to follow policy, and her alleged breach of the minimum standards of behaviour set out for teachers.

Throughout the course of the investigation, Ms RT was found to be aware of the policies that applied in The School. These included:

• The Policy for the Care, Wellbeing and Protection Of Children and Young People;
• The School Standards and Teacher Standards; and
• The School Student Behaviour Management Policy.

Importantly, the FWC made a point of saying that these policies were followed. The contention that the policies were regularly breached was rejected. The FWC found that there was no widespread avoidance or disregard for the policies, nor were there regular and substantive breaches by staff or management. In other words, the policies were effective.

The FWC went on to conclude that Ms RT 'secured' three Reception children to their chairs with masking tape, on multiple occasions.

The FWC ultimately found that Ms RT's behaviour 'clearly breached a significant policy requirement and created the real potential for harm to children entrusted to Ms RT's care'. A further allegation that Ms RT slapped a child on the back of the hand was not made out, but the evidence presented 'legitimately gives rise to some concern about the nature of Ms RT's teaching practices relative to The School practices and procedures'.

The law applied

As with any unfair dismissal claim, making good the allegations is not the end of the story. In Australia, employment laws apply consistently to non-government schools across all States and Territories. The concept of unfair dismissal will often be embodied in the awards or enterprise agreements that govern employment arrangements in non-government schools.

A dismissal will be unfair if it is 'harsh, unjust or unreasonable'. The meaning of this phrase has been unpacked by many cases and decisions. In this case, the FWC determined whether the dismissal was 'harsh, unjust or unreasonable' with reference to:

• notification of the reason for dismissal;
• an opportunity to respond;
• access to a support person during the process;
• unsatisfactory performance and warnings; and
• the size of The School, and its policies and procedures and its access to specialised Human Resources expertise.

The result of applying the law to the facts was that the FWC determined that Ms RT's summary dismissal was harsh because whilst her conduct provided a valid reason for her to be dismissed, The School's decision to allow her to teach after the allegations were made was inconsistent with the summary dismissal. It otherwise considered that the process that was followed, including meetings, support persons and the opportunities to respond, was adequate. The FWC did not consider that the dismissal was unjust or unreasonable.

So, had The School suspended Ms RT immediately, the FWC may have considered her dismissal was not unfair in any way.

Having made good her claim for unfair dismissal, the FWC went on to consider what remedy should follow. The FWC found that reinstatement was not appropriate because, as a result of external factors, Ms RT's registration as a teacher had expired at the end of 2014 and would not be reconsidered until May 2015. She would therefore not be able to teach even if she was reinstated to her employment. It was also not within the jurisdiction of the FWC to reinstate Ms RT with conditions, such as that she undergo professional development.

The FWC then decided that Ms RT would be awarded damages. Given that the relevant notice period in the enterprise agreement was six weeks, the FWC awarded:

• six weeks' pay;
• minus any amounts earned by way of alternative employment during this period;
• minus 10% to account for her misconduct; and
• minus applicable tax.