Emil Ford Lawyers

Fair or Unfair? Lessons to learn from a dismissal

A school dismissed a teacher on the grounds that she had engaged in ‘disgraceful, improper or unbecoming conduct’ when she:

• read out a statement listing grievances that she had with the school at an all-of-school meeting;
• sent an email to the entire School Distribution List (that is, all staff members), criticising both past and present staff members and leadership at the school;
• continued to send emails to all staff members, despite having been told not to do so by the Acting School Principal; and
• again sent an email to all staff members, in defiance of the Acting School Principal’s instructions, further criticising the school leadership.

Subscribe Button - Education Law NotesDuring the course of the hearing, the Department of Education changed its position and conceded that the dismissal was harsh, while still maintaining that there was a valid reason for the teacher’s dismissal.

The decision

The Fair Work Commission found that there was nothing in the content of the statement of grievances, nor the manner in which it was read, from which to draw the conclusion that the teacher had conducted herself in a disgraceful, improper or unbecoming manner.

Nor did her act of sending emails to all staff members against instructions, two of which were critical of the school, constitute disgraceful, improper or unbecoming conduct.
The Commission stated that because the teacher had reason to assume that use of the entire School Distribution List was limited to staff at the school and because she was not aware that the chair of the School Council, who was included on the list, was also a parent of the school, the emails and the surrounding circumstances did not provide a valid reason for dismissal.

The Commission acknowledged that there were better ways for the teacher to have communicated her concerns, but found that her dismissal was a ‘grossly disproportionate response’ to her ‘reasonable’ conduct.

The Commission took issue with the school’s failure to distinguish in its allegations between when the teacher’s behaviour was ‘disgraceful,’ ‘improper’ or ‘unbecoming conduct.’ It said that conduct may be unbecoming but at the same time fall far short of being improper and/or disgraceful.

In a subsequent decision, the Commission ordered that the teacher be reinstated and reimbursed for her lost earnings. The Department was also ordered to pay the teacher’s legal costs of more than $87,000 despite the fact that the Commission is usually a costs-free jurisdiction. The Commission made this exceptional order after deciding that the Department exposed the teacher to unnecessary costs through the arguments it pursued.

What does this mean for employers?

Employers must ensure that any response to an employee’s misconduct or poor performance is lawful and proportionate and that any disciplinary or dismissal process is fair and reasonable. Careful attention must be given to which elements of an employee’s behaviour constitute ‘disgraceful,’ ‘improper’ or ‘unbecoming conduct.’

The Department’s change of tune part-way through the hearing also worked against it and serves as a reminder of just how important it is to make sound decisions when responding to an unfair dismissal claim.

Employers need to decide whether to:

• make a jurisdictional objection;
• maintain that there was a valid reason for the dismissal;
• maintain that any flaws in the termination procedure did not result in an unfair dismissal; and/or
• oppose reinstatement.

These decisions should be made quickly upon receiving an unfair dismissal claim and with a full understanding of the facts surrounding the dismissal. If you would like to know more, contact at Emil Ford Lawyers.

Suite 4 Level 5
580 George Street
Sydney NSW 2000
Phone: +61 2 9267 9800
Fax: +61 2 9283 2553