A series of decisions arising from that claim ([2016] FWC 1504, [2015] FWC 6857, [2015] FWC 4921) illustrate the consequences of making mistakes during the dismissal process, and also when responding to an unfair dismissal claim.

The unfair dismissal claim

The school dismissed the teacher after finding that the teacher engaged in “disgraceful, improper or unbecoming conduct” when she read out a statement of grievances at an all-of-school meeting, and made comments about staff in an email sent to the entire school distribution list (which she continued to use despite being told not to).

The Department defended the teacher’s unfair dismissal claim. However, during the course of the hearing, the Department changed its position and conceded that the dismissal was harsh, while still maintaining that there was a valid reason for the dismissal.

The Commission concluded that there was nothing to justify the finding that the teacher had engaged in “disgraceful, improper or unbecoming” conduct. Her only “critical failure” was sending emails via the entire school distribution list. The Commission found that although there were better ways for the teacher to have communicated her concerns, her conduct was not a valid reason for dismissal, and the sacking was a “grossly disproportionate response” to her “reasonable” conduct.

The Commission also took issue with the school’s decision to allege that the teacher engaged in three alternative types of behaviour (“disgraceful”, “improper” or “unbecoming” conduct) without making a finding as to exactly which of these were substantiated.

Despite the above findings, the Department still sought to argue that the teacher was not entitled to reinstatement or compensation. It therefore required the teacher to prove she was entitled to a remedy despite being unfairly dismissed, and in a subsequent decision the Commission ordered that the teacher be reinstated and reimbursed her lost remuneration.

The Department was also eventually ordered to pay the teacher’s legal costs of more than $87,000 despite the fact that the Commission is ordinarily a costs-free jurisdiction. The Commission made this unusual order after deciding that the Department exposed the teacher to unnecessary costs through the arguments it ran.

Lessons for employers

These decisions provide a rare example about how unfair dismissal laws can apply in a school context, but they also apply equally to all organisations with employees protected from unfair dismissal.

When dealing with an employee’s misconduct or poor performance, employers must ensure that any response is lawful and proportionate, and that any disciplinary or dismissal process is fair and reasonable.

Employers should also be mindful that there are a number of decisions that need to be made when responding to an unfair dismissal claim. These include decisions as to whether to:

  • make a jurisdictional objection;
  • maintain that there was a valid reason for the dismissal;
  • maintain that any flaws in the termination procedure did not result in an unfair dismissal; and/or
  • oppose reinstatement.

These decisions should be made as soon as possible upon receiving an unfair dismissal claim, and with full knowledge of the facts resulting in the dismissal. For this reason, employers should obtain legal advice as soon as possible before deciding on how best to respond to the claim.