FWC examines whether authorities 'weaponised' legal provisions against educator
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application involving a teacher whose employment ended after being unregistered for twelve months.
The case centred on whether the worker was dismissed by his employer or whether his employment ceased automatically by operation of law under Victorian education legislation.
The worker argued that his employment was terminated on the employer's initiative because the department failed to investigate his conduct, provide assistance with his registration status, or consider alternative deployment options.
He contended that both the department and the Victorian Institute of Teaching (VIT) allowed time to run out deliberately, effectively “weaponising” the automatic cessation provision as a substitute for fair process.
Employment’s automatic cessation provisions
The worker was employed by the Department of Education and Training as a teacher at a public primary school when his troubles began in February 2024.
The VIT notified the department on 16 February 2024 that the worker had been charged with category A offences. Three days later, on 19 February 2024, the VIT informed the department that it had suspended the worker's registration on an interim basis with immediate effect.
The department responded by writing to the worker on 22 February 2024, stating that Victoria Police had confirmed the charges and that the Secretary considered his presence at the school inappropriate until the outcome of an inquiry was known.
On 19 March 2024, the department advised the worker that he was now suspended without pay.
The day after, the VIT issued a notice of suspension of the worker's registration pursuant to Part 2.6 of the Education and Training Reform Act 2006 (ETR Act).
The VIT revoked the interim suspension and placed the worker's registration under ongoing suspension.
The worker's registration as a teacher expired on 31 March 2024, and his application to renew his registration remained undetermined by the VIT throughout the relevant period.
Complications in teacher's employment registration
The charges against the worker were withdrawn on 22 August 2024, but this did not immediately resolve his employment situation.
The next day, his sister contacted the school principal to ask about next steps regarding the worker's employment. The principal replied that the worker's registration had been suspended, and suggested he contact the VIT if he wanted to inquire about this matter.
The worker said that between September 2024 and January 2025, he sent multiple emails to the Education Professional Conduct Department of the VIT seeking information about how to have his suspension lifted and resume teaching, but received no reply.
He stated that on 3 February 2025, he spoke to a VIT officer who said he had made certain inquiries, but that the people who would usually respond were not doing so.
On 18 March 2025, the VIT revoked the suspension of the worker's registration, stating it had received information confirming that the charges had been withdrawn.
However, the VIT noted that his registration was 'out of cycle' and that a decision on his renewal application was yet to be made. The VIT also stated that its decision to revoke the suspension did not affect its ongoing investigation into the conduct that had led to the laying of charges.
Employment cessation by operation of law
By letter dated 2 April 2025, the Acting Deputy Secretary of the department wrote to the worker notifying him that his employment had ceased on 21 March 2025 by operation of section 2.4.59(5) of the ETR Act.
This provision states that if an employee is refused registration or has registration suspended or cancelled, and remains unregistered for a continuous period of twelve months, "the employment of that person ceases, by virtue of this subsection, at the end of that period of 12 months."
The department submitted that the worker had not been dismissed because his employment was not terminated on its initiative, but had ended by operation of law.
The department contended that the employment ended on 19 February 2025, being twelve months after the commencement of the interim suspension on 19 February 2024.
Alternatively, the department argued that even if time was marked from the ongoing suspension that commenced on 20 March 2024, the worker remained unregistered after the suspension was revoked because his registration had expired.
The department emphasised that section 2.6.54K of the ETR Act provided that a teacher whose registration is suspended is deemed not to be registered for the period of the suspension.
The department said it had taken no step to end the employment, and the only action was to advise the worker that cessation had occurred, which was required under section 2.4.59(7) of the ETR Act.
Terminated by the employer?
The worker submitted that his employment had been terminated on the initiative of the department because it was the conduct of the department that led to the end of the employment.
He argued that after the charges were dropped, he tried to find out how to lift his suspension and resume teaching, but his efforts came to nothing.
The worker said the department had not undertaken an investigation and did nothing to assist him or clarify his registration status.
The worker contended that if the department or the VIT had contacted him in sufficient time, he could have re-registered and avoided the termination of his employment.
He argued that both the VIT and the department had chosen to do nothing and had allowed time to run out. The worker also suggested that the department could have redeployed him to a non-teaching role that did not require registration, but did not consider this option.
The worker further argued that the process in section 2.4.59(5) of the ETR Act was not intended to be a disciplinary mechanism and that in this case it had been 'weaponised' as a substitute for a fair process.
He claimed the department failed to comply with section 2.4.63 of the ETR Act, which requires that once a conviction is quashed, the action taken by the Secretary must be set aside and the teacher must be reinstated.
Dismissed by operation of law
The FWC found that the worker's employment ceased by operation of law pursuant to section 2.4.59(5) of the ETR Act.
The Commission stated that "the section is perfectly clear. If an employee's registration is suspended or cancelled, and the employee remains unregistered for a continuous period of 12 months, the employment 'ceases, by virtue of this subsection, at the end of that period of 12 months'."
The FWC agreed with the department that the suspension of the worker's registration started on 19 February 2024, noting that the fact this was an interim suspension was of no relevant consequence.
The Commission found that on 19 February 2025, the worker had been suspended for twelve months.
Even considering the alternative timeframe from the ongoing suspension starting 20 March 2024, the outcome remained the same as the worker's registration had already expired.
The Commission emphasised that "the Secretary of the Department did not exercise any power to end [the worker's] employment. The only step taken by the Secretary in connection with the end of the employment was to advise him that it had occurred."
The FWC concluded that "the termination of [the worker's] employment was not on the Department's initiative. [The worker] was not dismissed within the meaning of s 386 of the FW Act."
The Commission found that "the Department did nothing to bring about the end of [the worker's] employment" and rejected the worker's theories of collusion between the department and the VIT as "entirely unsubstantiated."
