A school’s desire to avoid teachers being placed in potentially compromising positions out of school hours has been supported by the Fair Work Commission.  

The school’s direction to a teacher that he not have students in his car and no longer be involved in activities at a surf lifesaving club with students of the school, including during weekends and after school, has been held to constitute a lawful and reasonable direction.  

Background

The NSW school was in the midst of dealing with allegations of child sexual abuse going back to the 1980s.  Several allegations had also been made against the teacher, who had been at the school for 37 years, but they were unfounded.  The school therefore considered that it had a legitimate interest in the dealings between its teachers and students both inside and outside of the school.

For a number of years students from the school attended a surf lifesaving club for training and other activities.  The teacher was involved in organising the activities and often drove students to the club in his own car after school hours during the week and on weekends.  This was often done without a parent present but with their consent.  The school had a long standing relationship with the lifesaving club but this was formally severed in 2012 as a result of the allegations the school was facing.

The school terminated the teacher’s employment when it subsequently became aware that he had not complied with the direction concerning his involvement in surf lifesaving and the transportation of students.

Direction to teacher was lawful

The Full Bench of the FWC accepted that the circumstances in which an employer may make lawful directions in respect of the off-work activities of employees are very limited and that only in exceptional circumstances does an employer have the right to extend any supervision over the private activities of employees.  The FWC held that there must be a significant connection with the employee’s employment in order for an employer’s direction concerning the out-of-hours activity and conduct of an employee to fall within the scope of the employee’s employment and therefore be lawful.

In respect of teachers and the schools that employ them, the FWC said that legal duties which apply to a school in respect of its students broaden the scope of employment:

“Firstly, a teaching authority has a non-delegable duty to take reasonable care to protect students from the wrongful behaviour, including criminal behaviour, of third parties such as teachers.  Any breach of that duty which results in harm to the student will result in the teaching authority being liable for damages for negligence.  The duty is not confined to school hours or teachers’ hours of duty at the school.  Secondly, as in any employment relationship, the teaching authority is vicariously liable for the conduct of a teacher committed in the course of his or her employment.” 

The FWC held that the school’s non-delegable duty of care towards its students, and the possibility of it being vicariously liable for any criminal conduct of its teachers towards students that was closely connected to the teacher’s employment, were fundamental features of the teacher’s employment.  These features operated to extend the scope of the teacher’s employment to any conduct by him in respect of a student which arose out of his relationship with the school and its students, whether or not this conduct took place in school hours or during the teacher’s working hours.

This resulted in the directions by the school to regulate the teacher’s conduct for the purpose of discharging its duty of care and avoiding potential liability being lawful:

“… any interaction between a teacher and a student which made the teacher vulnerable to a serious complaint by a student, founded or unfounded, had such a significant connection to the [school’s] interests as to bring it within the scope of the employment.  The reputation of the College amongst parents, students and the community generally had by 2012 seriously been damaged by allegations of sexual abuse.  [The teacher’s] own reputation as a teacher had also been damaged by unsubstantiated allegations against him.  In those circumstances we accept that it was of the utmost importance to the [school], as far as possible, to prevent situations whereby teachers were alone with students in a non-teaching situation and were thereby exposed to the possibility of such allegations being made against them.” 

Outcome of proceeding

The FWC found that the school had a valid reason to terminate the teacher’s employment but nevertheless found that the termination was unfair because of procedural errors and the teacher’s length of service, being 37 years, had not been taken into account as a significant factor.  The FWC refused to reinstate the teacher and instead awarded compensation.  

On appeal, the FWC agreed that the school had a valid reason to terminate the teacher’s employment but found that other options for reinstatement, such as available non-teaching positions elsewhere, had not properly been considered.  The matter has been referred back to the Commission member who heard the matter to consider and determine whether an order for reinstatement into a non-teaching position could be made.

References:  King v Catholic Education Diocese of Parramatta [2014] FWCFB 2194