Legal: “Touchy feely” teacher’s dismissal was fair
Queensland Teachers' Journal, Vol 126 No 4, 28 May 2021, page no.27
A recent Fair Work decision (Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College  FWC 2341) reminds teachers of the dangers of even relatively innocent over-familiar conduct with students.
In this case, the dismissal of a senior teacher in Victoria was deemed fair, even though the disciplinary process in a certified agreement had not been followed by the school and the teacher had an exemplary record over almost three decades.
The teacher had worked at St Kevin’s since 25 January 2013, and taught maths and chemistry while also working as head of theatre production, running musicals for the school.
He was first warned about hugging a student in February 2019 by his principal after the student’s parents complained. In his evidence to the commission, the student described the teacher as being “touchy feely” and said he was “giving boys hugs after musical rehearsals, putting his arm around boys and being very hands on in the way he directed people around stage.”
Another incident with the same student occurred on 14 June 2019, when the teacher admitted to sitting close to the student on a couch, placing his arm across the student’s shoulders and saying: “What’s wrong sweetie?”
On the same day, the teacher posted a comment on his personal Twitter account about a television show which stated: “Fosse/Verdon is a Broadway dancer’s wet dream from which I hope we will all never wake up”. The student’s father became aware of this and reported it to the college.
The disciplinary process
The complaints resulted in a meeting with a then acting principal, who informed Mr Parris that “Student A” felt uncomfortable with his actions and language.
On 20 June 2019, the acting principal issued a letter to the teacher and recorded a breach of the staff code of conduct (the code). The letter warned that similar future conduct could result in termination.
On 19 August 2019, the student told a counsellor that the teacher had touched his inner thigh during the 14 June encounter. The counsellor informed the principal.
The next day, the principal put this new allegation to the teacher and he denied it. Despite this, on 21 October 2019, the teacher received a final written warning. Subsequently the teacher was asked to avoid the student and was removed from his theatre production role.
On 17 February 2020, the teacher attended another meeting with his principal and received a letter outlining “concerns”, which included the 14 June incident and the Twitter comment.
On 20 February 2020, a new acting principal was appointed and the teacher was then issued with a further show cause letter about the same events. The next day he was dismissed.
Following the dismissal, the college found a number of pornographic videos on the teacher’s work device.
Was the dismissal unfair?
Commissioner Lee held that the termination was not harsh, unjust or unreasonable. He identified factors that weighed in favour of the dismissal being unfair, being:
- the teacher was originally warned and not dismissed for the misconduct on 14 June
- the college gave him a good reference
- the college didn’t follow proper disciplinary process
- the teacher was not provided with notice for the meeting on 20 February 2020
- the college failed to give the teacher a number of valid reasons for dismissal on 21 February 2020
- the teacher was not given a chance to respond
- his length of service and prior performance.
But the Commissioner also held that the “significant gravity and extent” of the misconduct weighed against a finding in the teacher’s favour.
He noted the ongoing trauma and anxiety caused to the student and held that a number of factors worked against the teacher, notably:
- the warning he received about hugging students in February 2019, before the 14 June events
- according to the student, the teacher had hugged him twice and touched and rubbed his inner thigh
- the Tweet brought the school into disrepute with the father of the student
- the teacher stored and watched pornography on a school laptop
- the teacher was dishonest and misled the college during its investigation of the 14 June incident by downplaying and denying aspects of the events
- the teacher lacked insight and failed to take responsibility for his actions.
This case highlights the fact that even long-standing and relatively innocent “touchy feely” conduct will be viewed as sinister if a complaint is made.
Teachers must be careful not to be over-familiar with students, and if a complaint is made they should take it extremely seriously, even if they view themselves as completely innocent and meaning no harm.