educator scuttles misconduct termination

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

A brand new full Bench judgement of Fair Work Australia (the Commission) has highlighted the
essentiallity of HR Managers considering every different employment position alternative to avoid
being found to have unfairly terminated an employee. The Commission FWA can uphold any
appeal by staff against determinations not to give the worker their job back despite acknowledging
there was a valid reason for the employees dismissal when thinking of how to approach this type
of situation thinking of all the possibilities are King, if the teacher is not a part of the public or
catholic school system.

The Facts
When looking into these matters Edward King found some employees who have been employed
as a tutor at private and public schools including Catholic Diocese and Patrician brothers Colleges
around the country and have been employed for a long or short time period before ending their
work on the basis of misconduct. And this breach of policy is where the teacher and students are
alone outside of school hours in the course of seemingly reasonable activities which could include
driving to and from various activities like tennis, windsurfing, lifesaving and other classes.
These type of issues can be seen to be compounded by situations such as the publised scandals
in the catholic colleges In and around West Sydney Diocese in 2010 to 2013. At this time it was
well known all Catholic and other educational institutions needed to clean their act up and were
also faced highly publicised disclosurers of major wrongdoings including claims of teachers and
administrators had did very little to protect stuents and pupils. Or were involved in some type of
instituionlised anmesia

the Australian Police force established investigations like Strike Force Avia to look into the
evidence. These claims subsequently meant a number of teachers being charged. However there
were some tutors which investigations cleared finding that the allegations were not substantiated.
Even so in some cases there were child protection issues. Through these investigations it could
be discovered that with hindsight where allegations made by students that teachers had been
abusing there position and these claims can be therefore confirmed and such issues this will
result in the development of better policies providing safer environments informing all involved of
the potential risks.A troubling problem that has been identified is when an educator is alone with
these pupils. School Principals must give very clear directions to tutors so the security issues
which may include a plan of actions are put into effect to stop children and educators being
situations where they are alone outside of school. One of these directions could be not being
involved with transportation for out of school hours activities.If educators donot 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
teachers.

The decision
The Appeals Hearing can accept the initial Commissioners or original Deputy President's findings
as valid and therefore reasonable for a educators termination, based on disobeying a lawful and
reasonable direction such as not being alone with students outside of school hours.

Managers need to remain aware that even if the reason for terminating a tutors is valid, the
Commission may still find the termination unjust and unreasonable under the Fair Work Act and
make orders accordingly

To avoid these outcomes, it is necessary for bosses to follow dismissal procedures correctly by:
Particularising the accusations made against the employee prior to any disciplinary interview;
Informing the educators of the potential consequences of the disciplinary meeting in the
disciplinary invitation letter;
Providing the teachers with a genuine opportunity to respond to the allegations.

While termination for a misbehaving teachers with only a few months employment may often be
accepted as fair, the same may not apply for the same misconduct with an employee having over
15 years and otherwise unblemished service. 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 staff. Finally, before terminating a educators,
bosses, especially in large diverse organisations, should ensure they consider all re-instatement
possiblities, including suitable positions in other departments.

teachers v Catholic Diocese through Fair Work Australia. # Make sure you follow correct
procedure to stop FWA Appeals finding termination was not reasonable Fair Work Act Australia