Schoolteacher fired after ‘constricting’ hugs found to be sexual misconduct

The teacher's hugs topped a long list of misconduct

Schoolteacher fired after ‘constricting’ hugs found to be sexual misconduct

The Fair Work Commission recently handed down judgment to find that the gravity of an applicant’s misconduct outweighed procedural deficiencies in his dismissal. The applicant was a maths and chemistry teacher at a Melbourne school (“the respondent”) and headed the school’s theatre productions.

In February 2019, the respondent’s Principal disciplined the applicant after receiving complaints from one student (referred to as “Student A”)’s parents alleging that the applicant had hugged students the previous year. Four months later, CCTV footage confirmed another alleged incident, whereby the applicant had pulled Student A into two “constricting” hugs while sitting in a corridor.

Student A also submitted that, during this incident, the applicant ran his hand up and down the student’s inner thigh. The student stated that, after the incident, he developed great anxiety and feared seeing the applicant at school. Although the applicant firmly denied this allegation, the Commission affirmed Student A’s submission, given Student A had relayed the event to the school counsellor and another teacher.

The applicant attended several meetings with the respondent over the next few months. Finally, one afternoon in February 2020, the respondent requested that the applicant attend a meeting that evening. During the meeting, the respondent alleged that the applicant had breached the school’s Code of Conduct and his implied duty of good faith. The respondent subsequently terminated the applicant’s employment.

After the applicant’s termination, several other instances of his misconduct surfaced, including his storing and viewing pornography on his work computer and his sending emails to several students in a manner inconsistent with professional boundaries.

The applicant submitted that his dismissal was unfair in that he was not afforded adequate notice of the reasons for termination nor provided an opportunity to respond. He also asserted that he could not secure a support person for his dismissal meeting, given the meeting’s short notice.

The Commission found that given aspects of the applicant’s misconduct were revealed after his dismissal, the respondent afforded him no opportunity to respond to these reasons. It rejected the respondent’s argument that it had expedited the dismissal process due to concern for the students’ safety, given the applicant was already suspended at the time of his dismissal.

The Commission found that the respondent’s failure to follow mandated steps of the disciplinary process weighed in favour of a finding that the applicant’s dismissal was unfair. However, ultimately, the Commission found that the seriousness of the applicant’s misconduct outweighed these procedural deficiencies and therefore made for a sound and defensible dismissal.

Key Takeaways:

  • Employers must ensure they follow correct procedures when dismissing an employee
  • Failure to do so will often give rise to an unfair dismissal
  • However, in certain cases, an employee’s misconduct may outweigh flaws in the dismissal process
  • Where an employer relies on evidence discovered post-dismissal, they may face difficulty in showing that they gave the employee an “opportunity to respond”

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