A recent decision of the Fair Work Commission (FWC) has criticised the role a solicitor played in a school dispute.

Dispute

The NSW Board of Studies (BOS) inspected the Sydney Montessori School (the School) in May 2013. After its inspection the BOS wrote to the School requesting a response and documentation in relation to 69 items identified as deficient in the registration and accreditation process for the School. The Acting Principal did not provide the BOS’ request to the Board on the basis that, in her opinion, the Board did not have the educational experience or formal qualifications to understand the BOS’ concerns. The FWC found that the Acting Principal’s decision was based on a “spurious foundation”.

On 6 June 2013 the Board’s president became aware of the BOS’ request to the School through his own investigations. On 14 June 2014 the employees were suspended. The FWC noted that the BOS’ correspondence reflected “very poorly” on the Acting Principal and the Secondary School Head and that the non-issuing to the Board was an attempt to undermine the Board.

As the School investigated the employee’s conduct it found that on the day she was suspected the Acting Principal had made an application to register a company “Australian Montessori Education Ltd” (AME). The two (2) directors of AME were listed as the Acting Principal and the Secondary School Head.

As a condition of their suspensions, the employees were advised to keep the information  leading to their suspensions strictly confidential. The Secondary School Head disregarded this condition and spoke to students at the School who in turn lobbied the Board’s president for her reinstatement and the deposing of the Board. At the time of the employees’ conduct, the School was experiencing severe financial distress and members of the School’s staff and community were actively campaigning for the Board’s removal.

On 7 August 2013 the School terminated the employment of the Acting Principal and Secondary School Head, citing their failure to bring the BOS’ request to the Board’s attention and the unacceptable conduct in establishing a company (being AME) to, in its opinion, take over the School.

The employees brought an unfair dismissal application against the School.

Role of Lawyer

On 21 June 2013 the employees attended a community information meeting [in relation to the School’s financial position and future] at the School; the employees were accompanied by their solicitor. The Fair Work Commission

(FWC) stated that this act was a “regrettable incident”. During the meeting, the solicitor stood on a chair and backed the campaign to depose the Board.

In relation to the solicitor’s involvement, the FWC stated:

  • The attendance of the employees and their solicitor at a community engagement meeting introduced a “level of tension and controversy” to the matter.
  • The attendance and address from the solicitor create the impression that the solicitor was “an active participant in the [School] community contest and not a legal representative of [the employees]”.
  • The conduct entrenched the divisions between the position of the Board and the employees, to a degree that the employment dispute could not be untangled from the School’s community contest.

Decision on Unfair Dismissal Application

Ultimately the FWC found in favour of the School declaring that the employees had undertaken a course of conduct (in concealing the BOS’ request and establishing AME) which was incompatible with their duties as employees of the School. The FWC found that their conduct was particularly in breach of the levels of trust and confidence expected of senior employees.

Lessons for Schools

Employees involved in an employment dispute are entitled to seek counsel, advice and support. In this case, the FWC held that the actions of the solicitor, in conjunction with the actions of his clients (the employees), was so great as to unnecessarily escalate the matter, misrepresent his involvement in the School’s community contest and irretrievably drew a connection between the employment dispute and the School’s financial distress and/or the continuing role of the Board.

Parties to an employment dispute should carefully consider the involvement of their lawyers, and ensure that legal representation does not diminish the fundamental duties to the school, either as the educational provider or employee.