Legal: Teacher’s right to payment reinstated during suspended registration
Queensland Teachers' Journal, Vol 127 No 7, 30 September 2022, page no. 29
The Supreme Court of Tasmania has allowed a teacher to be reinstated on suspension with full pay pending a criminal charge arising out of his employment.
Following a former student’s complaint against the teacher, the Tasmanian Department of Education suspended the teacher from employment, on full pay, pending a police investigation into the allegation.
The same day, the teacher’s “working with children” card was suspended, pending an “additional risk assessment”. Two weeks later, the Teachers Registration Board suspended his teacher registration on the ground that he posed a risk of harm to students, based on the suspension of his “working with children” card.
No registration, no pay
While originally suspended on full pay, the department stopped paying the teacher’s salary, citing a provision of the teachers’ award.
The Teaching Service (Tasmanian Public Sector) Award requires teachers to maintain a current registration with the Teachers Registration Board and provides: “Except in circumstances beyond the employee’s control, where a teacher employee is not currently registered as detailed above, the employee will not be paid salary until a current registration certificate is issued.”
The Secretary of the department interpreted this clause as meaning that the teacher was not entitled to take a salary while his registration was suspended.
Proceedings in the Tasmanian Industrial Commission
The teacher applied to the Tasmanian Industrial Commission for a review of the decision to cease his salary.
Deputy President Ellis found that the Secretary’s decision to cease the teacher’s suspension with full pay was made without affording the teacher procedural fairness.
This was because the teacher was not offered an opportunity to provide submissions on the possible outcome of the decision-making process.
The Deputy President quashed the Secretary’s decision to cease payment and directed the department to back-pay the teacher’s salary.
Registration suspension not within the employee’s control
The Secretary applied to the Supreme Court of Tasmania for a judicial review of whether the Deputy President had made her decision according to law.
The Secretary argued that the Deputy President failed to take into account that the teacher had been charged with a criminal offence relating to a former student, that the teacher was no longer entitled to a salary, and that the Commission did not have the power to reinstate the payment of the teacher’s salary.
The Supreme Court rejected this, finding that the teacher was entitled to his salary because the suspension of his teacher’s registration was a circumstance beyond his control.
The court considered that the words “Except in circumstances beyond the employee’s control” could not reasonably be interpreted as referring to circumstances that were no longer within the employee’s control, even if they had been in the past.
The only reasonable conclusion the Secretary could have made was that on the day the department ceased payment, and at all material times thereafter, the circumstances relating to the teacher’s registration were beyond the teacher’s control.
The fact that the teacher was later charged with an offence did not place him in a better position to influence or control the circumstances of his registration as a teacher. It was the Secretary’s role to make any finding as to the truth or otherwise of the allegations of misconduct.
The Chief Justice acknowledged that the teacher’s “working with children” card was suspended, preventing him from lawfully working as a teacher. However, this did not mean he was not entitled to the payment of any salary in the meantime.
The Chief Justice dismissed the Secretary’s application for judicial review, leaving the Commission’s reinstatement directions in place.
Different states will have separate rules and regulations regarding teachers’ registration and entitlements and procedures around suspensions during investigations.
QTU members are reminded of the option to seek legal assistance if faced with a disciplinary matter.