Long-serving worker claims lack of preparation contributed to physical altercation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a worker who was terminated after physically striking a young person during her duties. The worker had been employed for 16 years before the incident that led to her dismissal in February 2025.
The worker argued that her actions were motivated by genuine safety concerns and that dismissal was disproportionate to her conduct. She claimed her employer had failed to consider her mental state at the time, her years of good service, and inadequate training on handling difficult situations.
The worker also suggested her employer had ulterior financial motives for the dismissal and that the investigation process was procedurally unfair.
The incident occurred on 27 August 2024 during the worker's duties as a science laboratory technician at a Catholic college. The worker admitted to slapping a 15-year-old student's hand as the student was packing up equipment that included a scalpel, scissors and forceps.
The worker initially claimed this was a reflex action taken to prevent the student from injuring herself on the scalpel, but the college had established clear policies prohibiting such conduct.
The college principal gave evidence that their Child Safe Code of Conduct "specifically prohibits staff from using physical means or corporal punishment to discipline or control students." The principal explained that the worker had been trained on this code as recently as February 2024 and was required to comply with it as part of her employment contract.
This policy was designed to meet the college's obligations under the Child Wellbeing and Safety Act 2005 (Victoria), which requires reporting of incidents involving physical abuse of students.
The worker's actions were captured on video by a student's laptop, which became crucial evidence in the subsequent investigation. The recording showed the worker slapping the student's hand with sufficient force that the Commission later found "a loud smack can be heard" and the student "recoils, and says, 'Oh my God'."
The FWC concluded based on this video evidence that "the slap was forceful." The footage became central to both the college's internal investigation and the Commission's later assessment of the dismissal's fairness.
Following the incident, the college initiated an investigation process in accordance with their enterprise agreement. The college principal immediately directed the worker to remain at home on full pay whilst the matter was investigated.
The college sought external advice before proceeding and disclosed the incident to the Commission for Children and Young People (CCYP) on 4 September 2024, as required by the Child Wellbeing and Safety Act.
The college sent the worker a formal letter on 11 September 2024 outlining four specific allegations about her conduct on 27 August 2024. These included being involved in a tense conversation with students not following instructions, slapping the student's hand, continuing to argue aggressively with the student, and raising her voice in an intimidating manner in front of other students. The letter also advised that the conduct was considered reportable and had been notified to the CCYP.
An external investigator was appointed on 3 October 2024, and the worker met with this investigator on 7 November 2024. The investigator's report, received on 20 January 2025, found that the worker had been physically violent towards the student in the presence of other students.
The worker raised several procedural concerns, arguing she wasn't given adequate opportunity to respond to allegations at the first meeting on 17 September 2024. However, the FWC found that the college had complied with their agreement requirements, noting that discussions about concerns had occurred from the initial telephone contact with the college principal.
The worker maintained throughout the process that her actions were motivated by genuine safety concerns for the student. She argued that dismissal was too harsh for her conduct and that the college had failed to consider her poor mental state at the time of the incident, her 16 years of good service, and her lack of training on dealing with unruly student behaviour.
The worker also suggested the college had ulterior motives for dismissing her to save money, though this was later rejected by both the college and the Commission.
During her defence meeting on 4 February 2025, the worker raised various matters including "that she had not received training on dealing with unruly behaviour; that if she had received such training, she would have been able to walk away from the situation on 27 August 2024."
She also complained about the college's use of the video recording, arguing it was taken without her permission and that the college had not followed proper procedures.
The worker described the classroom situation as chaotic, with students misbehaving and not paying attention to the teacher's instructions about how to pack up equipment safely. She said students had been "flicking pieces of a bull's eye at each other" and had ignored directions to respect the dissection materials.
The worker acknowledged being cross with the students' behaviour but maintained that her physical intervention was necessary to prevent injury from the scalpel attached to the plastic board the student was folding.
The FWC rejected the worker's safety-based defence after examining the video evidence and her own testimony. The Commission found that [the worker] "did not slap the student with the intention of protecting her" and noted that "it does not make sense that slapping the student's hand would prevent her from cutting herself on a scalpel." The decision emphasised there was nothing in the video evidence suggesting any safety risk to the student other than the worker's own actions.
The Commission found the safety justification inconsistent with the worker's own statements about needing training to handle difficult situations. The FWC stated: "I find that the reason for which [the worker] slapped [the student's] hand was that she was cross with her. It had nothing to do with safety."
This finding was based on the worker's own admission that she was frustrated with the students' behaviour and her acknowledgment that proper training would have helped her walk away from the situation.
The college principal gave evidence that raised questions about the worker's understanding of the incident's seriousness. During meetings following the incident, the worker had referred to the matter as "one little incident" and something "trivial," which the college principal found concerning.
The Commission noted this lack of insight into the gravity of her actions as a significant factor in assessing whether the dismissal was appropriate for the conduct.
The college terminated the worker's employment on 14 February 2025, providing five weeks' pay in lieu of notice. The college principal explained that due to the seriousness of the conduct and the college's child safety obligations, the worker's continued employment was not viable.
The college rejected claims of ulterior financial motives, providing evidence that the worker's position still existed and needed to be filled.
The FWC acknowledged several factors in the worker's favour, including her 16 years of service without previous disciplinary issues and her poor mental state due to recent deaths of friends.
However, these mitigating factors were outweighed by the seriousness of the conduct and the worker's failure to fully accept responsibility. The Commission was particularly concerned about the worker's continued insistence that safety motivated her actions despite clear evidence to the contrary.
The FWC noted: "I consider that she has not accepted full responsibility for her conduct" and "[the worker] lacks insight into the seriousness of the incident and has not accepted full responsibility for it."
The decision also rejected the worker's argument about inadequate training, stating: "one does not need such training to know that it is impermissible to slap a student." The Commission ultimately dismissed the unfair dismissal application.
