The Fair Work Commission has ordered the reinstatement of a teacher terminated by her employer, after the teacher gave a child with allergies a chocolate.
A student at the Hills Christian Community School was known to suffer from a number of allergies. The teacher provided the student with a chocolate treat. The school maintained that the teacher’s actions were in conflict with the procedure adopted for the student, a breach of her duty of care and the Code of Conduct; accordingly, the teacher had her employment terminated. The teacher on the other hand, argued that she was not instructed that the child could only be given food provided by his parents and that her termination was harsh, unjust and unreasonable.
The Commissioner sided with the teacher, not being satisfied that the teacher had been instructed by the school on the procedure of only supplying the student with food provided by his parents. The teacher had been instructed that the student could be given food that was not supplied by his parents provided the ingredients were checked, and stated that she had acted consistently with this procedure. On this basis there was no breach of the Code of Conduct or her duty of care to the student, and therefore there was no valid reason for her dismissal. In turn the dismissal was considered harsh, unjust or unreasonable, notwithstanding the “considerable duty of care” of the School, its staff and the school community in relation to student food allergies.
The teacher sought for her employment to be reinstated and this was opposed by the School, on the basis that it had lost trust and confidence in her ability to perform in a high-risk environment involving the supervision of children. The Commissioner considered that reinstatement was appropriate because he saw no evidence to suggest that the teacher had been dishonest or evasive during the incident investigation.
The Commissioner’s decision is a useful reminder that compensation is only to ordered by the Commissioner under the Fair Work Act when reinstatement is inappropriate and compensation is appropriate all the circumstances. In this case, the reinstatement decision was made on basis that there was no reason why reinstatement could not succeed. The school was also ordered to backpay the teacher the earnings she would have otherwise received between the date of the dismissal and the date of reinstatement.
There are a number of take home messages from this case for employers, including:
- the Fair Work Commission will consider the appropriateness of reinstatement before awarding any monetary compensation for unfair dismissal;
- employers have the onus of establishing the ‘loss of trust and confidence’ as a reason for avoiding reinstatement; and
- employers should have written policies and procedures in place, and should also ensure that employees are made aware and acknowledge these policies and procedures.
You can read more about this decision here