The Fair Work Commission (FWC) criticised the suggestion that students ought to have been called as witnesses to a dispute hearing involving a teacher who was found to have students of her school on her Facebook account friends list.
The teacher worked in the ACT. Her school issued her with a letter in December 2009 containing a number of allegations including that she had breached the Department of Education and Training direction on the use of social networking sites and the Teachers’ Code of Professional Practice. An investigation was conducted into the allegations and a report was completed in March 2010. The investigating officer found the misconduct proved and recommended that the teacher be dismissed. However, the delegate for the Department decided instead to reduce the teacher’s salary by one increment and reiterate a final warning that had been given to the teacher some 2 years earlier in relation to another disciplinary matter.
The teacher challenged the penalty given to her by taking the dispute to the Fair Work Commission under the dispute resolution procedure in the Department’s enterprise agreement.
During the trial, the teacher conceded that:
- contact with students by telephone, email etc had to be authorised by the school principal;
- records were required to be kept on file of all such contact;
- chatting with students on Facebook would be a serious matter; and
- having students as friends on Facebook was contrary to the Teachers Code of Professional Practice.
However, the teacher asserted that she did not know that the students were listed as friends on her Facebook account. She asserted that one of the explanations may have been that her Facebook account had been hacked into and the students added by unknown persons. The FWC did not accept this evidence and found that the teacher had been dishonest during the investigation and had compounded her misconduct by lying to her school.
The FWC upheld the initial penalty handed to the teacher but commented that the penalty might be considered lenient in light of the final warning previously issued to the teacher and her dishonesty throughout the investigation and subsequent proceedings.
During the hearing the teacher’s representative submitted that the school had adduced no evidence of contact via Facebook between the teacher and any student and had not called a student as a witness. The FWC criticised this approach:
“The reasons advanced for not involving the students are both cogent and responsible. The suggestion that they should be called to give evidence in a matter relating to the discipline of a teacher is, in my view, both irresponsible and shows poor judgment. I can only hope that the applicant, as a teacher, was not supportive of the submission made by her representative that the children be called. In any event there is sufficient evidence before me to satisfy me that the allegation has been proved to the standard required, without the necessity for the further involvement of children in the matter.”
Reference: Applicant v ACT Department of Education and Training  FWA 2562.