Two recent unfair dismissal decisions illustrate this point and provide some interesting guidance for schools to consider when dealing with employees who have engaged in misconduct to such a degree that their employment is at stake.
UNFAIR DISMISSAL APPLICATION TO PROCEED DESPITE ASSAULT CHARGES
Mahony v Dr Daniel J White, Executive Director of Catholic Schools, Sydney  FWC 1593 (1 May 2015)
In the first decision, a school religious education coordinator ("GM") was stood down on full pay after he was charged with a number of indecent assault charges involving a child under 10 and a child younger than 16.
These were very serious charges and the Catholic Education Office ("the CEO") took appropriate action by suspending GM on full pay in accordance with the relevant enterprise agreement in place (which permitted suspension with pay but only permitted suspension without pay for a maximum of four weeks).
There were a number of delays with the police case against GM and after he had been on suspension with full pay for seven months, the CEO sought to suspend him without pay.
GM refused to agree to go on leave without pay and protested his innocence saying he was entitled to the "presumption of innocence".
The CEO then terminated GM's employment with payment in lieu of notice, citing, amongst other things, its obligations with respect to child protection laws and the need to ensure the welfare and best interests of children and the wider Catholic and public community.
GM commenced unfair dismissal proceedings in the Commission.
The CEO raised a jurisdictional objection saying that GM's employment wasn't terminated by the CEO because the employment had already come to an end by "operation of the doctrine of frustration". The Doctrine of Frustration applies where an unexpected event occurs, which makes performance of the contract by one of the parties no longer possible.
This argument related to the fact that while GM was suspended on full pay, the Child Protection (Working with Children) Act 2012 (NSW) ("the Act") commenced, which deemed GM to be a "disqualified person" by virtue of the charges he was facing and therefore he was unable to be employed in child-related work.
In an interesting decision, Commissioner Donna McKenna agreed that GM could not work in child-related work following the commencement of the Act. However, she went on to say that because GM was on suspension, at all relevant times he was "not engaged in child-related work that involved direct contact by him with children". In addition the Commissioner said there was no legal impediment in the CEO continuing to employ GM, subject to him being either suspended with or without pay, on leave without pay, accessing accrued leave entitlements or redeployed to perform other work that did not involve contact with children.
Another fact that was significant in this case was that the CEO's termination letter was very specific with respect to dismissal and advised that GM would receive "a payment in lieu of notice". The Commissioner noted that it was difficult to reconcile the CEO's argument that the doctrine of frustration meant that the employment was not terminated, as against what was "in form and in substance" a dismissal letter advising of the termination of employment.
In addition, if GM's employment was subject to the doctrine of frustration then his contract would have automatically terminated when the Act commenced. In that regard, a contract cannot be terminated twice: firstly on the date the Act commenced and secondly when terminated by the employer.
GM's unfair dismissal application was able to proceed.
TEACHER'S DISMISSAL "HARSH" AFTER TAPING STUDENTS TO CHAIRS
Ms RT v The School  FWC 2927 (7 May 2015)
The second decision involves a finding that a primary school teacher's summary dismissal was "harsh" after the teacher taped three five-year old students to their chairs in the classroom.
The harshness related to a delay between the incidents occurring and the school taking action.
After the school received a complaint from a parent, the teacher ("RT") admitted to her employer that she had used masking tape like a "seatbelt" in the classroom to secure the children to their chairs until they finished their work.
The school allowed her to continue teaching the class for a further two weeks before it suspended the teacher and commenced a formal investigation into her conduct.
After the investigation was concluded, the school dismissed RT without notice.
Fair Work Commission Senior Deputy President Matthew O’Callaghan found that RT’s conduct was deliberate and a clear breach of school policy.
There was evidence before the Commission that even RT agreed her actions had frightened at least one of the students.
The Commission held RT's conduct in taping the children to their chairs in breach of child protection guidelines was a valid reason for dismissal and summary dismissal was an appropriate response.
However, given the school allowed a two-week delay in commencing its investigation, the Commission found the school’s "decision to permit her to continue to teach after the allegations against her were made was inconsistent with that summary dismissal" and therefore the summary dismissal was "harsh".
The Commission said, "in simple terms, if her behaviour was that significant, the school acted inappropriately by allowing her to continue to teach before it even commenced its investigation."
The Commission found the dismissal was not unreasonable because it followed a fair and equitable investigation process, nor was it unjust because her behaviour was "fundamentally inconsistent with the reasonable and clearly articulated expectations of her as a teacher."
However, because the dismissal was found to be harsh, that meant it was unfair.
Importantly, the Commission noted that if RT had been dismissed with notice, the outcome would have been different.
The school was ordered to pay RT six weeks’ wages on the basis that it was likely she would have been dismissed with six-weeks’ notice (if not summary dismissed). There was a deduction of 10% on account of RT's misconduct.
LESSONS FOR EMPLOYERS
Where dismissal is a likely outcome after a finding of misconduct, employers need to be sure that outcome is reasonable and proportionate to the conduct committed, having regard to the facts and the employment history.
This will turn on the individual facts in each situation, which will often be wide-ranging.
As we saw in the above two examples, summary dismissal was found to be harsh and therefore unfair, where a dismissal with notice would have sufficed in that particular situation. In addition, taking action to dismiss an employee, notwithstanding the very serious charges faced by that person, has led to an outcome where that person's unfair dismissal application is able to proceed.
It is very important for employers not to shoot first and ask questions later. Follow policies and procedures that are already in place and seek professional advice if the matter is particularly sensitive or if you are unsure.
David Thompson (Melbourne)
Shawn Skyring (North Ryde)
Emily Slaytor (North Ryde)
Martin Dunne (Sydney)
Sarah Sealy (Hobart)
The Hunt & Hunt national team advises on compliance with all workplace and industrial relations issues, modern awards, and workplace legislation including the Fair Work Act 2009; equal opportunity laws and discrimination; and workplace/occupational health and safety laws including critical incident management advice, policy implementation and defending prosecutions.
Disclaimer: The information contained in this update/case note is not advice and should not be relied upon as legal advice. Hunt & Hunt recommends that if you have a matter that is legal, or has legal implications, you consult with your legal adviser.