Last week the Fair Work Commission ruled in favour of a teacher who appealed against unfair dismissal after 37 years of service. The appeal was granted in spite of recognition that there was a valid reason for him not to be reinstated. In the ruling the Fair Work Commission stated that the employer had acted unfairly during the process and had not adequately investigated reinstatement options for the teacher. The teacher was employed by the Catholic Education Diocese of Parramatta and had been an employee there for 37 years. He was dismissed at the end of 2012 after refusing to follow a direction not to have contact with students out of school hours (for non-school related activities). Although the request not to have contact with students was found to be reasonable, the way the matter was handled and the teacher’s subsequent dismissal were considered unfair by the Fair Work Commission. This result highlights the need for employers to thoroughly consider reinstatement options for employees and to ensure that employees are fully informed if there is a possibility that they will be dismissed.

Employees should be advised if dismissal is a possibility

The teacher was dismissed at the end of last year after a disciplinary interview. During the process, and especially during the interview he wasn’t made aware of the possibility that he would be dismissed. The Fair Work Commission found that he wasn’t advised that the issues being discussed were significant enough to lead to a dismissal or that the diocese was considering dismissing him. This meant that he was not given an opportunity to address the allegations against him and put forward his case against being dismissed. Investigations also showed that the decision to dismiss the teacher was made for a number of reasons which weren’t discussed during the disciplinary interview. These included unsubstantiated rumours of sexual misconduct. During that time a number of teachers were under investigation for alleged sexual abuse of children and this was believed to be an influencing factor in the decision to dismiss the teacher. These reasons weren’t discussed with him prior to his dismissal and he wasn’t provided with the opportunity to respond to them. Although the teacher was advised that he would have the opportunity to put forward his case to the diocese’s executive director, he was never given that chance and was dismissed a couple of weeks later.

Unfair procedure

The Fair Work commission ruled that although the procedure for dismissing the teacher was unfair, the ruling for him to avoid out of school contact with students was reasonable. At the time, the school was under scrutiny for alleged sexual misconduct, and the request for teachers to avoid unsupervised contact with children was reasonable to protect the reputation of the school and the teachers and prevent further allegations being made against them. The Fair Work Commission also agreed that it was reasonable for the principal to refuse to reinstate the teacher to a teaching position, but that other options hadn’t been fully evaluated. The teacher had requested a non-contact position which didn’t involve spending time with students and this wasn’t given due consideration. The teacher had been with the school for 37 years and the fact that his long service hadn’t been taken into consideration formed a significant part of the appeal. This case highlights the need for employers to consider all reinstatement options for employees and ensure that any dismissal is conducted in a fair and reasonable manner.

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