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18 June 2021

What happens if a school fails to follow the correct processes when dismissing an employee?

A teacher’s summary dismissal for serious misconduct causing harm to a student was not deemed to be unfair despite holes in the dismissal process.

In Parris v Trustees of Edmund Rice Education Australia t/a St Kevin’s College [2021] FWC 2341, the Fair Work Commission considered whether the seriousness of the teacher’s misconduct outweighed the school’s procedural flaws during the dismissal process.

What happened?

Mr Parris was a teacher at St Kevin’s College who was involved in running school musicals. In February 2019, the parents of a 16-year-old student complained that Mr Parris had hugged their son, given hugs to boys after musical rehearsals and put his arm around boys at school. The Principal told Mr Parris about the complaint and told him not to hug students again.

Four months later, Mr Parris sat on a couch with the same student, put his arm across the student’s shoulders, and referred to the student as ‘sweetie’. The school formally recorded a breach of the school’s Code of Conduct and made a Reportable Conduct Notification to the Commission for Children and Young People (CCYP).

On 18 October 2019, the CCYP concluded that the allegation of sexual misconduct was substantiated. Mr Parris was removed from overseeing musical productions and instructed to use a particular set of stairs to minimise the probability of crossing paths with the student.

On 10 February 2020, the student’s parents advised that the student felt anxious about seeing Mr Parris, who was still teaching at the school. The parents requested that another report be made to the CCYP. The Principal advised Mr Parris that an external investigator would be appointed. Mr Parris was later given a letter outlining two allegations, being the incident with the student and the posting of a sexualised comment on his personal Twitter account.

The next day, Mr Parris was requested to attend a meeting in the afternoon. He was unable to secure a support person due to the short period of notice. Mr Parris received a letter restating the two allegations and his employment was terminated the following day.

Mr Parris alleged that he was unfairly dismissed.

Was Mr Parris unfairly dismissed?

While Mr Parris claimed that he was never formally trained in the school’s Code of Conduct or protocols regarding social media and internet use, the Fair Work Commission (Commission) was satisfied that Mr Parris had a clear understanding of his various obligations as a teacher.

The school argued that there were additional valid reasons for Mr Parris’ dismissal, but that these were not known at the time of the dismissal. This included Mr Parris sending emails to students that breached professional boundaries and using a school laptop to access and store pornography. The Commission accepted that Mr Parris’ conduct was serious misconduct and constituted a valid reason for dismissal.

However, there were procedural flaws in the school’s processes when terminating Mr Parris’ employment. Mr Parris was not notified of all the valid reasons for his dismissal or given a proper opportunity to respond. There was a lack of notice provided to Mr Parris of the meeting, and Mr Parris was not given an opportunity to attend a further meeting to respond to the allegations.

Regardless, the significant gravity and extent of Mr Parris’ conduct weighed heavily against him, particularly as his conduct had caused harm to the student.

Even though the school failed to follow the correct processes when dismissing Mr Parris, the Commission upheld his dismissal, finding that it was not unfair in the circumstances having regard to the seriousness of the misconduct.

Key takeaways

The correct processes should be followed when dismissing an employee because this is a significant factor considered by the Commission. These include notifying the employee of the reason for their dismissal, providing an opportunity to respond, and allowing sufficient time for the employee to secure a support person.

It is also important to ensure that employees are formally trained in your school’s Code of Conduct and protocols to minimise potential disputes that may arise concerning a lack of understanding about professional obligations.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Annie Smeaton
Gemma Sharp
Special Counsel

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