This document summarizes key points from a presentation on disciplinary action involving teachers. It discusses what amounts to poor performance or misconduct, options for disciplinary actions, and managing the disciplinary process. Poor performance is assessed against standards and with objective documentation and review. Misconduct can occur at or outside of work. All disciplinary actions require consistency, promptness, confidentiality, and documentation. Termination requires valid reasons, notification, an opportunity to respond, and potentially notice periods. The presentation stresses properly following procedures to minimize risks of unfair dismissal or other claims.

1. School Law Conference 2015
Disciplinary Action Involving Teachers
Brett Wilson
Partner
Nikolina Gaute
Senior Associate
10 March 2015

2. Disciplinary Action involving Teachers
• What amounts to Poor Performance?
• What amounts to misconduct?
• Disciplinary actions, what are the options?
• Managing the process …..
• Decision making …
• Minimising your risk profile …..

3. Disciplinary Action for …..
• Poor Performance
• Misconduct as an employee

4. Poor Performance …..
• Are teachers different?
• How is it measured?
• Subjective assessment?
• Does it reach the standard of a Breach of
Contract?

5. Poor Performance …..
Use a bench mark …..
• Australian Standards
• Queensland College of Teachers Standards

6. Poor Performance …..
• Rely on Practice Standards
• Knowledge
• Practice
• Engagement
• Assess and review
• Seek another opinion

7. Poor Performance …..
• Allow realistic time to improve
• Observe and report regularly
• Document observations and results

8. Misconduct …..
• At school
• Outside school, employees private life
• Reputation of employer damaged
• Negligence
• Breach of Contract
• Damages

9. Misconduct …..
• Can be at work, work related
• Out of work, private matter

10. Misconduct …..
• Don’t overreact
• Assess the misconduct in light of your duty of
care and the school’s duty of care
• Consider reputational damage to the school
• If it relates to a criminal offence, being charged
does not equate to guilt
• Is there a breach of the Contract of Employment

11. Always be Consistent …..
Apply Practice Standards consistently
• Personally; and
• Across the Organisation

12. Always be Prompt …..
• When an issue arises address it
• Promptly; and
• In compliance with ‘natural justice’

13. What is disciplinary action …..
• Counselling;
• Written warning;
• Demotion or reduction in role;
• New or additional training;
• Transfer; or
• Termination of employment.

14. Termination …..
• Summary, that is on the spot ….
• Serious; and
• Wilful.
• With Notice ….
• Worked notice; or
• Paid out notice.

15. Termination …..
You may confront a dilemma in:
• Protecting the interests of the School or
Students; and
• Protecting the teachers right to procedural
fairness

16. Termination …..
A judgement call, consider:
• The risk, is it real at present;
• The balance of convenience, what damage
is caused or may be caused to the parties;
• Alternatives, i.e. suspension.

17. Termination …..
In this situation:
• Document your consideration and the
reasons for your decision in detail.
• Seek advice.

18. More serious the disciplinary action …..
The more the process may be called into
question by the Courts, see Briginshaw v
Briginshaw (1938) 60 CLR 336 …
‘The more inherently unlikely or the more
serious the allegation; then it attracts more
careful scrutiny.’

19. Is there a relevant Award …..
Queensland State Schools – IR Act 1999:
• Teachers Award (State) 2012;
Non State Schools – FW Act 2009
• Educational Services (Teachers) Award 2010

20. Get it wrong …..
Queensland State Schools – IR Act 1999:
• Industrial Dispute Notification;
• Unfair Dismissal Application;
• Discrimination;
• Ombudsman; and/or
• CMC.

21. Get it wrong …..
Non State Schools – Fair Work Act 2009:
• Industrial Dispute Notification;
• Reinstatement Application;
• General Protections;
• Bullying Complaint to the FWC; and/or
• Human Rights Commission.

22. Manage the Process …..
• Be consistent
• Be prompt
• Be confidential
• Document the process
• Seek advice
• Use independent persons to assist

23. THE PERFORMANCE
MANAGEMENT PROCESS

24. Preventing Underperformance
• Position Descriptions
• Early identification and resolution
• Performance Appraisals
• Communication
• Performance Management Policy

25. What to do when an employee
underperforms
STEP 1: Identify the problem
STEP 2: Assess the gravity of the problem
STEP 3: Notify the Employee
STEP 4: Meet with the Employee
STEP 5: Follow up/Review

26. Step 1: Identify the problem
What is causing the problem?
• The employee does not know what is expected of them;
• The employee lacks the requisite knowledge or skill for the task/role;
• Interpersonal differences;
• Low morale or lack of motivation;
• Personal issues;
• Workplace bullying and harassment
What is the supporting evidence?

27. Step 2: Assess the gravity of the problem
• How serious is the problem?
• Are informal or formal methods of performance
management required?
• Verbal warnings; counselling; feedback;
• Formal Warnings/Show Cause process

28. Step 3: Notify the Employee
• Notify the Employee of the problem behaviour;
• Request attendance at a disciplinary meeting;
• Provide “sufficient notice” of the meeting;
• Inform the Employee of a right to a support
person

29. Step 4: Meet with the Employee
• What is the problem? Why is it a problem? How does the
conduct impact on the workplace?
• Provide the Employee with an opportunity to respond
• Identify and clarify performance expectations
• Establish meeting outcomes or an action plan
• Set a timeframe for improvement (what is the employee
expected to achieve and by when?)
What steps will the employer take to assist the employee?
(e.g. training; mentoring)
• Document the meeting.

30. Step 5: Follow up underperformance
discussions
• Provide feedback
• Monitor employee’s progress
• Meet to discuss results
• If no improvement, formal performance action
required

31. Written Warnings
• Be clear about the reason for the warning
• Provide sufficient details to enable the employee to
understand the reason;
• Set expectations; what needs to be done differently
and how;
• Ensure the warning is fair and reasonable;
• Document the meeting (meeting plan/copies of
written warning).

32. If there is no improvement
• First/Second Warning
• Show Cause Notice or Final Warning
• Termination
“Show Cause”
• Employee to show cause as to why their employment should not be
terminated
• Provide sufficient notification and particulars of the allegations
• Request response
• Meet with the Employee
• Consider responses
• Consider whether termination warranted.

33. MANAGEMENT OF SERIOUS
MISCONDUCT

34. What to do in event of ‘serious misconduct’
Serious misconduct may warrant summary dismissal. However, the Employee is
still entitled to natural justice/procedural fairness.
STEP 1: Identify the serious misconduct – what contract/policy or document has
been breached? What supporting evidence is there?
STEP 2: Notify the Employee
STEP 3: Meet with the Employee; provide an opportunity to respond/show cause
STEP 4: Be aware of the Employee’s legal rights (unfair dismissal; general
protections; discrimination).

35. Termination of Employment
• Private schools – section 387 Fair Work Act 2009
• State schools – section 77 Industrial Relations
Commission (Qld) 1999
To reduce the risk of an unfair dismissal application you
need to ensure:
• There is a “valid reason”; and
• The process in which the Employee’s position is
terminated is procedurally fair.

36. Criteria to satisfy
• There is a valid reason related to the Employee’s capacity
or conduct;
• The Employee is notified of that reason;
• The Employee has been given an opportunity to respond
to any valid reason related to their capacity or conduct;
• The Employee was permitted to have a support person
present to assist at any discussions relating to dismissal;
• If related to unsatisfactory performance, the Employee
has been warned about unsatisfactory performance
before the dismissal;

37. Criteria to satisfy
The Commission will also consider:
• The degree which the size of the employer’s enterprise would
be likely to impact on the procedures followed in effecting the
dismissal;
• The degree to which the absence of dedicated human
resource management specialists would be likely to impact on
the procedures followed in effecting the dismissal;
• Any other relevant consideration.
Note: eligibility criteria applies for unfair dismissal applications.

38. Even if there is a valid reason, the dismissal may still be
unfair
Reaching an overall determination of whether a given dismissal was “harsh, unjust or
unreasonable” notwithstanding the existence of a “valid reason” involves a weighing
process. The Commission is required to consider all of the circumstances of the case, having
particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal
not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to
account as weighing against a finding that dismissal was a fair and proportionate response
to the particular misconduct.”
(Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191
at parr. 58)

39. Case Examples: Where did they go wrong?
• King v Catholic Education Office Diocese of
Parramatta [2014] FWCFB 2914
• Webster v Mercury Colleges Ltd [2011] FWZ 1807
• Nguyen v Vietnamese Community in Australia
[2014] FWCFB 7198

40. How to draft disciplinary notices and
performance documents
1. Letter of Warning;
2. Letter of Final Warning;
3. Show Cause Notice;
4. Letter of Termination – with notice (for
unsatisfactory performance);
5. Letter of Termination – without notice (for
serious misconduct).

41. Letter of Warning
After meeting with the Employee to discuss unsatisfactory performance, put it in
writing.
The Letter of Warning must cover:
• The reason for the warning (including sufficient particulars);
• Recap matters discussed at the disciplinary meeting;
• The Employee’s response to the allegations;
• The support to be offered to the Employee (e.g. training; mentoring;
counselling);
• The agreed action plan – Performance Improvement Plan/next meeting;
agreed expectations;
• Specify “this is your First/Second Written Warning. If your performance does
not improve by XYZ further disciplinary action will be taken which may
involve the termination of your employment.”

42. Letter of Final Warning
If no improvement, meet with the Employee again and then put it
in writing.
It should cover:
• The reason for the warning with sufficient particulars;
• Recap of prior written warnings and disciplinary meetings;
• Employee’s response to the allegations;
• Reiterate performance expectations;
• Specify “this is your final warning. If your performance does
not improve further disciplinary action will be taken which may
include the termination of your employment.”

43. Show Cause Notice
• Similar to the earlier written warnings, outline the
allegation in question with sufficient particulars;
• Invite the Employee to respond and “show cause” as
to why their employment should not be terminated.
• Specify, “Serious consideration is being given to the
termination of your employment. You are invited to
show case as to why your employment should not be
terminated.”

44. Letter of Termination – underperformance (with
notice)
• Outline the decision (i.e. termination of employment);
• Recap previous disciplinary meetings and warnings provided;
• Outline the reasons for the decision relating to capacity or conduct;
• Specify the Employee’s Notice Period to be served (or paid in lieu)
• Section 117 Fair Work Act 2009; Section 84 of the Industrial Relations
Act (Qld);
• Contract of Employment
• Modern Award
• EBA
• Specify the Employee’s accrued statutory entitlements which will be
paid out

45. Letter of Termination – serious misconduct
(without notice)
• Outline decision that conduct constitutes serious misconduct warranting summary dismissal.
• Outline meeting had and nature of discussion. What was discussed during the meeting
• Wilful or deliberate behaviour that is inconsistent with the continuation of the employment
contract;
• Causing serious or imminent risk to health and safety of a person
• Causing serious or imminent risk to reputation, viability or profitability of the employer’s
business;
• Theft – making serving notice period unreasonable
• Assault
• Intoxication
• Refusal to carry out a reasonable and lawful direction and continued employment
unreasonable.
• Outline the reasons for the termination
• Specify when the employment will end and what statutory entitlements will be paid.

46. Current Risks …..
• General Protections
• Bullying jurisdiction of the Fair Work
Commission

47. General Protection Disputes ....
Cause of Action
-> Workplace Right,
Disability & Temporary
Absence
-> Adverse Action
-> Damage to employee

48. Meaning of Adverse Action …….
In relation to an employee by an employer:
• Dismisses the employee;
• Injures the employee in their employment;
• Alters the position of the employee adversely; or
• Discriminates between the employee and other
employees.

49. General Protection Disputes ....
If it is alleged that a person took, or is taking action
for a particular reason or with a particular intent,
and that would constitute a contravention, then it is
presumed that the action was, or is being, taken for
that reason or with that intent, unless the person
proves otherwise.
That’s a reversal of the onus of proof

50. An investigation may be adverse action
The initiation of an investigation that may lead to
dismissal can be considered adverse action in itself.
Must have cause and document it.
Jones v Queensland Tertiary Admissions Centre Ltd
[2010] FCA 399

51. An investigation may be bullying
The Fair Work Act 2009 section 789FC permits a
worker to make a complaint of bullying to the Fair
Work Commission, the Commission may issues
orders that the bullying stop.
A failure to stop the bullying may lead to penalties

52. An investigation may be bullying
There are cases where teachers have been
investigated and claimed that the actions of the
school and staff was bullying.
Some dismissed on jurisdictional grounds, but a real
risk if process not performed properly

53. Conclusion …..
Manage your risk profile

54. By being proactive and …..
• Consistent
• Prompt
• Confidential
• Document the process
• Seek advice HR etc
• Use independent persons to assist

55. DISCLAIMER
Please note that this Power Point and
Presentation is not legal advice and
the material has been altered to simplify
the presentation and should not be
relied upon in the provision of
legal advice or for any other purpose.