Emil Ford Lawyers

No teacher contact with students outside school - a lawful and reasonable direction?

For a number of years students from a NSW school attended a surf lifesaving club for training and other events. A teacher from the school was involved in arranging the activities and regularly drove students to the club in his own car after school hours during the week and on weekends. This was generally done without a parent being present, although with their consent.

The school warned the teacher that he was not to have students in his car and was no longer to be involved in activities at the surf lifesaving club with students of the school, regardless of whether it was during weekends or after school. When the school became aware that the teacher had not complied with this direction, his employment was terminated.


"students from a NSW school attended a surf lifesaving club for training ... A teacher ...regularly drove students to the club in his own car after school hours ..."

The school was at the time dealing with allegations of child sexual abuse spanning back to the 1980s. Numerous allegations had also been made against the teacher in question, although they were found to be groundless. Nevertheless, the school considered that it had a genuine interest in the dealings between its teachers and students both inside and outside of the school.

The Full Bench of the Fair Work Commission agreed. It accepted that the situations in which an employer may make lawful directions in respect of the off-work activities of employees are very restricted and that only in exceptional situations does an employer have the right to extend any supervision over the private activities of employees. The Full Bench found that this was one of those ‘exceptional’ instances. The school’s non-delegable duty of care towards it students, and the likelihood of it being vicariously liable for any criminal behaviour of its teachers towards its students, were fundamental features of the teacher’s employment. These features operated to expand the scope of the teacher’s employment to any behaviour by him in respect of a student which arose from his relationship with the school and its students, whether or not the conduct occurred in school hours or during the teacher’s working hours.

Although the school had a valid reason to terminate the teacher’s employment, the Fair Work Commission, when the matter was first heard, found that the termination had been unfair because of procedural errors and the fact that the teacher’s length of service (37 years) had not been taken into consideration. Instead of reinstating the teacher, compensation was awarded.


"the FWC found that the termination had been unfair because of procedural errors "

However, on appeal, although the Full Bench agreed that the school had a valid reason to terminate the teacher’s employment, it found that other options for reinstatement (such as available non-teaching positions elsewhere) had not been taken into account. The matter has been referred back to the Commission.

What does this mean for schools? If there is a significant connection between a teacher’s employment and their out-of-hours activity, a direction that aims to stop them being placed in a potentially compromising position will be lawful.

If you would like to know more about lawful and reasonable directions by schools, please contact or .

 

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