Director disputes college complaints lacking proper investigation and evidence
The Fair Work Commission (FWC) recently found in favour of an education director who was dismissed following a series of performance and conduct warnings, determining that the employer failed to establish valid reasons for termination despite legitimate workplace concerns.
The case arose when the college terminated a Teaching English to Speakers of Other Languages (TESOL) instructor and director of studies after issuing multiple oral and written warnings over several months, leading to findings that the disciplinary process lacked substance and proper procedural foundations.
The worker argued he was unfairly dismissed following a pattern of unsubstantiated warnings and complaints that were not properly investigated or addressed through appropriate procedures.
He maintained that many of the allegations against him lacked credibility and that the employer failed to follow its own disciplinary policies when making the termination decision.
Multiple roles create complex performance expectations
The employment relationship involved an educator who commenced as a TESOL instructor in February 2023 before expanding duties to include English Language Intensive Courses for Overseas Students (ELICOS) teaching and director of studies responsibilities by April 2023.
The worker's multiple roles encompassed teaching English to overseas students, academic administration, and oversight of study programs requiring coordination across different educational streams.
Between February and July 2024, the college raised various concerns about the worker's performance and conduct, resulting in four oral warnings and one written warning covering issues from student support to administrative responsibilities.
The disciplinary process escalated through multiple meetings where management addressed alleged deficiencies in student services, information provision, and workplace behaviour.
The general manager served as the primary decision-maker in disciplinary proceedings, conducting meetings and issuing warnings based on student complaints, staff concerns, and observed performance issues.
However, the decision-maker acknowledged limited human resources expertise and unfamiliarity with formal performance management processes, raising questions about the adequacy of procedures followed.
Student complaints form basis of disciplinary action
Several student complaints formed the foundation of performance concerns, including allegations that the worker failed to provide proper documentation, imposed incorrect fees, and delivered inadequate academic support.
The complaints involved students from different programs who reported confusion about requirements, delayed certificate issuance, and inappropriate fee requests during off-campus meetings.
Investigation of these complaints revealed significant inconsistencies between reported issues and available evidence, with some students providing testimony that contradicted the college's interpretation of events.
One student explicitly denied making complaints attributed to her and stated the worker had never provided incorrect information, undermining key disciplinary allegations.
The worker provided alternative explanations for disputed incidents, including legitimate concerns about food safety violations and proper academic procedures that were reframed as aggressive behaviour toward colleagues.
His attempts to address workplace safety issues and student assessment requirements were characterized as interpersonal conflicts rather than professional due diligence.
Warning system lacks procedural clarity
The college's warning system relied heavily on oral warnings documented in diary notes rather than formal disciplinary procedures, with the decision-maker acknowledging uncertainty about what constituted proper warning protocols.
Most warnings were delivered verbally during meetings without clear communication about employment consequences for continued performance issues.
Analysis of diary notes revealed inconsistent use of warning terminology, with the decision-maker using "warning" interchangeably with "explain the reasons" and describing warnings as counselling rather than formal disciplinary action.
This ambiguity created confusion about whether the worker understood his employment was at risk and what improvements were required.
The one written warning related to alleged unprofessional conduct during a management meeting, but the audio recording of the session contradicted claims of disruptive behaviour.
The recording showed the worker remained calm while his colleague raised his voice, and the meeting continued normally after the disputed exchange, undermining the characterization of serious misconduct.
Employment terms complicate punctuality allegations
Chronic lateness formed a significant component of dismissal reasons, with the employer documenting multiple instances of late arrival, particularly on Mondays when student orientations occurred.
The college argued that punctuality was essential for the director of studies role, especially regarding student induction procedures requiring the worker's presence.
However, evidence emerged that the worker's appointment as director of studies included negotiated flexibility regarding start and finish times, provided contracted weekly hours were completed.
This arrangement was designed to support work-life balance and had not been challenged by management during recruitment discussions or subsequent performance reviews.
The Commission found that punctuality criticisms must be viewed in the context of the agreed employment terms that permitted discretionary working hours.
Without clear evidence that flexible arrangements had been revoked or that late arrivals actually disrupted student services, punctuality concerns could not support dismissal decisions.
Lack of procedural fairness undermines dismissal
The Commission identified significant procedural deficiencies in the dismissal process, noting that many complaints and performance issues were never properly communicated to the worker before being used as grounds for termination.
Several student complaints were not discussed with the worker until the final dismissal meeting, denying him opportunities to respond or provide explanations.
The college failed to follow progressive discipline principles, moving from counselling and warnings directly to termination without clear trigger events or final opportunities for improvement.
The decision-maker could not identify specific incidents after the final warning that justified escalating to dismissal, suggesting the termination decision lacked immediate cause.
Despite claims of following progressive discipline processes, the college could not produce relevant policies or demonstrate compliance with established procedures.
The absence of proper documentation and procedural guidance contributed to an unfair process that failed to meet basic employment law standards.
Compensation reflects relationship breakdown
The Commission determined that reinstatement was inappropriate given the breakdown in trust between the worker and decision-maker, particularly following allegations of evidence fabrication and procedural misconduct during proceedings.
The adversarial nature of the relationship made restoring an effective working environment unlikely.
Compensation of approximately $21,307 plus superannuation was awarded based on an estimated three-month employment continuation period, reflecting both the unfair nature of dismissal and legitimate performance concerns that would likely have led to eventual termination.
The calculation considered the worker's multiple roles and combined weekly earnings across different responsibilities.
The award included reductions for failure to mitigate losses through job searching efforts, while acknowledging the college's limited resources and procedural inexperience as contributing factors to the unfair dismissal rather than deliberate misconduct requiring additional penalties.
