Download to read offline
![Even if there is a valid reason, the dismissal may still be
unfair
Reaching an overall determination of whether a given dismissal was “harsh, unjust or
unreasonable” notwithstanding the existence of a “valid reason” involves a weighing
process. The Commission is required to consider all of the circumstances of the case, having
particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal
not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to
account as weighing against a finding that dismissal was a fair and proportionate response
to the particular misconduct.”
(Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191
at parr. 58)](https://image.slidesharecdn.com/legalwiseschoollawconference3blw-170927045442/75/LawSense-Law-Conference-2015-Disciplinary-Action-Involving-Teachers-38-2048.jpg)
![Case Examples: Where did they go wrong?
• King v Catholic Education Office Diocese of
Parramatta [2014] FWCFB 2914
• Webster v Mercury Colleges Ltd [2011] FWZ 1807
• Nguyen v Vietnamese Community in Australia
[2014] FWCFB 7198](https://image.slidesharecdn.com/legalwiseschoollawconference3blw-170927045442/75/LawSense-Law-Conference-2015-Disciplinary-Action-Involving-Teachers-39-2048.jpg)
![An investigation may be adverse action
The initiation of an investigation that may lead to
dismissal can be considered adverse action in itself.
Must have cause and document it.
Jones v Queensland Tertiary Admissions Centre Ltd
[2010] FCA 399](https://image.slidesharecdn.com/legalwiseschoollawconference3blw-170927045442/75/LawSense-Law-Conference-2015-Disciplinary-Action-Involving-Teachers-50-2048.jpg)
More Related Content
Similar to LawSense Law Conference 2015: Disciplinary Action Involving Teachers
![Progressive Discipline Training _1[1]](https://cdn.slidesharecdn.com/ss_thumbnails/a3188883-2602-43f1-a2bd-ca69cf3a4bc9-160120154326-thumbnail.jpg?width=640&height=640&fit=bounds)
LawSense Law Conference 2015: Disciplinary Action Involving Teachers
- 1. School Law Conference2015 Disciplinary Action Involving Teachers Brett Wilson Partner Nikolina Gaute Senior Associate 10 March 2015
- 2. Disciplinary Action involvingTeachers • What amounts to Poor Performance? • What amounts to misconduct? • Disciplinary actions, what are the options? • Managing the process ….. • Decision making … • Minimising your risk profile …..
- 3. Disciplinary Action for….. • Poor Performance • Misconduct as an employee
- 4. Poor Performance ….. •Are teachers different? • How is it measured? • Subjective assessment? • Does it reach the standard of a Breach of Contract?
- 5. Poor Performance ….. Usea bench mark ….. • Australian Standards • Queensland College of Teachers Standards
- 6. Poor Performance ….. •Rely on Practice Standards • Knowledge • Practice • Engagement • Assess and review • Seek another opinion
- 7. Poor Performance ….. •Allow realistic time to improve • Observe and report regularly • Document observations and results
- 8. Misconduct ….. • Atschool • Outside school, employees private life • Reputation of employer damaged • Negligence • Breach of Contract • Damages
- 9. Misconduct ….. • Canbe at work, work related • Out of work, private matter
- 10. Misconduct ….. • Don’toverreact • Assess the misconduct in light of your duty of care and the school’s duty of care • Consider reputational damage to the school • If it relates to a criminal offence, being charged does not equate to guilt • Is there a breach of the Contract of Employment
- 11. Always be Consistent….. Apply Practice Standards consistently • Personally; and • Across the Organisation
- 12. Always be Prompt….. • When an issue arises address it • Promptly; and • In compliance with ‘natural justice’
- 13. What is disciplinaryaction ….. • Counselling; • Written warning; • Demotion or reduction in role; • New or additional training; • Transfer; or • Termination of employment.
- 14. Termination ….. • Summary,that is on the spot …. • Serious; and • Wilful. • With Notice …. • Worked notice; or • Paid out notice.
- 15. Termination ….. You mayconfront a dilemma in: • Protecting the interests of the School or Students; and • Protecting the teachers right to procedural fairness
- 16. Termination ….. A judgementcall, consider: • The risk, is it real at present; • The balance of convenience, what damage is caused or may be caused to the parties; • Alternatives, i.e. suspension.
- 17. Termination ….. In thissituation: • Document your consideration and the reasons for your decision in detail. • Seek advice.
- 18. More serious thedisciplinary action ….. The more the process may be called into question by the Courts, see Briginshaw v Briginshaw (1938) 60 CLR 336 … ‘The more inherently unlikely or the more serious the allegation; then it attracts more careful scrutiny.’
- 19. Is there arelevant Award ….. Queensland State Schools – IR Act 1999: • Teachers Award (State) 2012; Non State Schools – FW Act 2009 • Educational Services (Teachers) Award 2010
- 20. Get it wrong….. Queensland State Schools – IR Act 1999: • Industrial Dispute Notification; • Unfair Dismissal Application; • Discrimination; • Ombudsman; and/or • CMC.
- 21. Get it wrong….. Non State Schools – Fair Work Act 2009: • Industrial Dispute Notification; • Reinstatement Application; • General Protections; • Bullying Complaint to the FWC; and/or • Human Rights Commission.
- 22. Manage the Process….. • Be consistent • Be prompt • Be confidential • Document the process • Seek advice • Use independent persons to assist
- 23.
- 24. Preventing Underperformance • PositionDescriptions • Early identification and resolution • Performance Appraisals • Communication • Performance Management Policy
- 25. What to dowhen an employee underperforms STEP 1: Identify the problem STEP 2: Assess the gravity of the problem STEP 3: Notify the Employee STEP 4: Meet with the Employee STEP 5: Follow up/Review
- 26. Step 1: Identifythe problem What is causing the problem? • The employee does not know what is expected of them; • The employee lacks the requisite knowledge or skill for the task/role; • Interpersonal differences; • Low morale or lack of motivation; • Personal issues; • Workplace bullying and harassment What is the supporting evidence?
- 27. Step 2: Assessthe gravity of the problem • How serious is the problem? • Are informal or formal methods of performance management required? • Verbal warnings; counselling; feedback; • Formal Warnings/Show Cause process
- 28. Step 3: Notifythe Employee • Notify the Employee of the problem behaviour; • Request attendance at a disciplinary meeting; • Provide “sufficient notice” of the meeting; • Inform the Employee of a right to a support person
- 29. Step 4: Meetwith the Employee • What is the problem? Why is it a problem? How does the conduct impact on the workplace? • Provide the Employee with an opportunity to respond • Identify and clarify performance expectations • Establish meeting outcomes or an action plan • Set a timeframe for improvement (what is the employee expected to achieve and by when?) What steps will the employer take to assist the employee? (e.g. training; mentoring) • Document the meeting.
- 30. Step 5: Followup underperformance discussions • Provide feedback • Monitor employee’s progress • Meet to discuss results • If no improvement, formal performance action required
- 31. Written Warnings • Beclear about the reason for the warning • Provide sufficient details to enable the employee to understand the reason; • Set expectations; what needs to be done differently and how; • Ensure the warning is fair and reasonable; • Document the meeting (meeting plan/copies of written warning).
- 32. If there isno improvement • First/Second Warning • Show Cause Notice or Final Warning • Termination “Show Cause” • Employee to show cause as to why their employment should not be terminated • Provide sufficient notification and particulars of the allegations • Request response • Meet with the Employee • Consider responses • Consider whether termination warranted.
- 33.
- 34. What to doin event of ‘serious misconduct’ Serious misconduct may warrant summary dismissal. However, the Employee is still entitled to natural justice/procedural fairness. STEP 1: Identify the serious misconduct – what contract/policy or document has been breached? What supporting evidence is there? STEP 2: Notify the Employee STEP 3: Meet with the Employee; provide an opportunity to respond/show cause STEP 4: Be aware of the Employee’s legal rights (unfair dismissal; general protections; discrimination).
- 35. Termination of Employment •Private schools – section 387 Fair Work Act 2009 • State schools – section 77 Industrial Relations Commission (Qld) 1999 To reduce the risk of an unfair dismissal application you need to ensure: • There is a “valid reason”; and • The process in which the Employee’s position is terminated is procedurally fair.
- 36. Criteria to satisfy •There is a valid reason related to the Employee’s capacity or conduct; • The Employee is notified of that reason; • The Employee has been given an opportunity to respond to any valid reason related to their capacity or conduct; • The Employee was permitted to have a support person present to assist at any discussions relating to dismissal; • If related to unsatisfactory performance, the Employee has been warned about unsatisfactory performance before the dismissal;
- 37. Criteria to satisfy TheCommission will also consider: • The degree which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; • The degree to which the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal; • Any other relevant consideration. Note: eligibility criteria applies for unfair dismissal applications.
- 38. Even if thereis a valid reason, the dismissal may still be unfair Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh: (i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable; against (ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” (Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at parr. 58)
- 39. Case Examples: Wheredid they go wrong? • King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2914 • Webster v Mercury Colleges Ltd [2011] FWZ 1807 • Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198
- 40. How to draftdisciplinary notices and performance documents 1. Letter of Warning; 2. Letter of Final Warning; 3. Show Cause Notice; 4. Letter of Termination – with notice (for unsatisfactory performance); 5. Letter of Termination – without notice (for serious misconduct).
- 41. Letter of Warning Aftermeeting with the Employee to discuss unsatisfactory performance, put it in writing. The Letter of Warning must cover: • The reason for the warning (including sufficient particulars); • Recap matters discussed at the disciplinary meeting; • The Employee’s response to the allegations; • The support to be offered to the Employee (e.g. training; mentoring; counselling); • The agreed action plan – Performance Improvement Plan/next meeting; agreed expectations; • Specify “this is your First/Second Written Warning. If your performance does not improve by XYZ further disciplinary action will be taken which may involve the termination of your employment.”
- 42. Letter of FinalWarning If no improvement, meet with the Employee again and then put it in writing. It should cover: • The reason for the warning with sufficient particulars; • Recap of prior written warnings and disciplinary meetings; • Employee’s response to the allegations; • Reiterate performance expectations; • Specify “this is your final warning. If your performance does not improve further disciplinary action will be taken which may include the termination of your employment.”
- 43. Show Cause Notice •Similar to the earlier written warnings, outline the allegation in question with sufficient particulars; • Invite the Employee to respond and “show cause” as to why their employment should not be terminated. • Specify, “Serious consideration is being given to the termination of your employment. You are invited to show case as to why your employment should not be terminated.”
- 44. Letter of Termination– underperformance (with notice) • Outline the decision (i.e. termination of employment); • Recap previous disciplinary meetings and warnings provided; • Outline the reasons for the decision relating to capacity or conduct; • Specify the Employee’s Notice Period to be served (or paid in lieu) • Section 117 Fair Work Act 2009; Section 84 of the Industrial Relations Act (Qld); • Contract of Employment • Modern Award • EBA • Specify the Employee’s accrued statutory entitlements which will be paid out
- 45. Letter of Termination– serious misconduct (without notice) • Outline decision that conduct constitutes serious misconduct warranting summary dismissal. • Outline meeting had and nature of discussion. What was discussed during the meeting • Wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract; • Causing serious or imminent risk to health and safety of a person • Causing serious or imminent risk to reputation, viability or profitability of the employer’s business; • Theft – making serving notice period unreasonable • Assault • Intoxication • Refusal to carry out a reasonable and lawful direction and continued employment unreasonable. • Outline the reasons for the termination • Specify when the employment will end and what statutory entitlements will be paid.
- 46. Current Risks ….. •General Protections • Bullying jurisdiction of the Fair Work Commission
- 47. General Protection Disputes.... Cause of Action -> Workplace Right, Disability & Temporary Absence -> Adverse Action -> Damage to employee
- 48. Meaning of AdverseAction ……. In relation to an employee by an employer: • Dismisses the employee; • Injures the employee in their employment; • Alters the position of the employee adversely; or • Discriminates between the employee and other employees.
- 49. General Protection Disputes.... If it is alleged that a person took, or is taking action for a particular reason or with a particular intent, and that would constitute a contravention, then it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. That’s a reversal of the onus of proof
- 50. An investigation maybe adverse action The initiation of an investigation that may lead to dismissal can be considered adverse action in itself. Must have cause and document it. Jones v Queensland Tertiary Admissions Centre Ltd [2010] FCA 399
- 51. An investigation maybe bullying The Fair Work Act 2009 section 789FC permits a worker to make a complaint of bullying to the Fair Work Commission, the Commission may issues orders that the bullying stop. A failure to stop the bullying may lead to penalties
- 52. An investigation maybe bullying There are cases where teachers have been investigated and claimed that the actions of the school and staff was bullying. Some dismissed on jurisdictional grounds, but a real risk if process not performed properly
- 53. Conclusion ….. Manage yourrisk profile
- 54. By being proactiveand ….. • Consistent • Prompt • Confidential • Document the process • Seek advice HR etc • Use independent persons to assist
- 55. DISCLAIMER Please note thatthis Power Point and Presentation is not legal advice and the material has been altered to simplify the presentation and should not be relied upon in the provision of legal advice or for any other purpose.