Union supports member to get job back in protracted unfair dismissal case

An IEU member has won the right to return to work after the IEU supported him through a protracted case before the Fair Work Commission (FWC).

In this case the FWC considered the duty of care owed by teachers to students in their care.

The decision of the Full Bench of the FWC was handed down just before Christmas. It was the final stage of a protracted unfair dismissal case following the dismissal in June 2018 of a PE teacher employed by Catholic Education Archdiocese of Canberra and Goulburn (CE).

Background to the ‘kayak case’

The teacher was dismissed in June 2018 following a practical kayaking class, part of a Year 9 Physical Activity and Sport (PASS) course. The class was conducted in November 2017 in a river close to the ocean. During the class students got into difficulty after a number of kayaks capsized because of wave action and students were forced to swim or kayak back to shore. Emergency services were called but the students and staff were able to return to shore without requiring their assistance.

After the incident, CE conducted an extensive investigation and interviewed the students in the class, the teacher and a trainee who had accompanied the class.

Following the investigation and considering the responses of the teacher, CE dismissed the teacher for failure to meet duty of care obligations and failing to act in a professional manner. CE sustained four specific elements of the alleged misconduct. CE held that the class was conducted in an environment that was unsafe (deteriorating weather, tidal runout and high sea swell); there was a failure to conduct sufficient safety checks of helmets and life vests; the teacher deliberately lead the class into a dangerous wave zone and finally a general failure by the teacher to follow CE policies and procedures.

The first FWC decision

The case was heard in late 2018 by Deputy President Dean of the FWC. Evidence was taken from witnesses including students and staff of the school. The Deputy President also inspected the river where the class had been conducted.

In July 2019, Deputy President Dean ordered CE to reinstate the teacher, finding there was no valid reason for the dismissal. She found that on the evidence, the teacher had adequately assessed the risks and had had appropriate consideration for the safety of students in his care. She found he did not recklessly lead the students into a dangerous wave or current area. Finally, she concluded as a result, there was no breach of CE policy.

CE appeal

CE challenged the reinstatement and lodged an appeal to the Full Bench of the FWC. CE argued the Full Bench should hear the appeal because it raised important issues relating to the duty of care of teachers and student safety.

In a decision handed down in December, the Full Bench agreed that there were important issues about child safety to be considered. However, they rejected the appeal, describing the legal arguments put on behalf of CE as “a scattergun approach whereby the Archdiocese is prepared to attribute fault to any element of [the teacher’s] conduct on 17 November 2017 if it can assist in sustaining the conclusion that [the teacher] was wholly culpable for the incident which occurred on that day”.

The Full Bench of the FWC held that the main cause of the incident was that some students did not follow the teacher’s instructions in the class and instead diverted on a course that was closer to the ocean in order to catch waves.

This exposed them to a risk of capsizing and placed them in a location where the current was stronger. Other students went to rescue the students in difficulty, contrary to the teacher’s instructions to return to shore. The FWC also considered that the weather conditions were not relevant to the cause of the incident.

Employer responsibility

The FWC criticised the legal argument of CE as trying to shift the full responsibility of risk assessment of the PASS class from the school to the teacher and then seeking that the teacher bear sole responsibility if anything went wrong. The FWC said there must be an established and safe system of risk assessment in place so that employees may then operate within that framework. The fact that the risk assessment process was inadequate was the fault of CE and the teacher did undertake steps to assess and control the risk.

As the FWC commented “difficult judgments about the conduct of outdoor sporting activities in the prevailing weather conditions are required to be made by teachers and members of the community day in and day out”. The approach of the FWC provides comfort to teachers conducting outdoor activities that involve some risks.

The effect of the decision is that provided you act within the risk assessment process established by the school/employer and you take reasonable care of students you should not face disciplinary action just because things ‘go wrong’. This is particularly the case when a factor in things going wrong is the failure of students to follow a teacher’s instructions.

IEU support

The IEU provided strong support for the member throughout the process. This support involved representation and advice from the organiser and other officers throughout the investigation and representation by a barrister throughout the FWC proceedings.

Carol Matthews
Deputy Secretary