Legal: Naming and shaming in a classroom anecdote is not a valid reason for dismissal
Queensland Teachers' Journal, Vol 124 No 6, 16 August 2019, page no. 29
The Fair Work Commission has ordered TAFE Victoria to reinstate a vocational education teacher terminated for naming a prominent local farmer when providing students with an educational anecdote.
On day one of his training course at Landcare Australia, a teacher told his students that chemicals affect people differently.
To provide a “real-life example”, the teacher described his personal experience with a local farmer who was spraying an herbicide (24D) on an adjacent property 20 years ago. The spray affected employees in various ways, inducing a bleeding nose, headaches, and nausea. After realising these effects, the farmer relocated the spray.
During the anecdote, the teacher named the farmer, who was a prominent figure in the Mildura community.
By chance, one of the students attending the course was a relative of the farmer, and at the end of the day, told him about the teacher’s lesson.
Later that evening, the farmer called the teacher, angry that he was identified in the class. After a discussion which confirmed the accuracy of the teacher’s anecdote, the teacher apologised for using his name in the class. He promised that he would apologise to the class the following day and confirm that the farmer had done nothing wrong.
The next day, the teacher followed through with his promises. However, despite saying that “nothing would go further” with the incident, the Landcare Australia course facilitator complained to the TAFE several weeks later.
Four days after the complaint, the teacher was summarily dismissed for the serious misconduct of “using the name of an individual in a training environment”, which demonstrated “poor judgement and lack of professionalism”, and in turn, had “a serious implication” for the TAFE’s reputation. While there was an additional allegation about breaching the TAFE’s email policy, it was clear that naming the farmer was the TAFE’s central concern.
The teacher explained that the “prime reason” for identifying the well-experienced farmer was that some of his students would know him and identify with the story.
Although the teacher later conceded that it was unprofessional to name the farmer, it was “not apparent” to Commissioner Lee why the teacher should not have mentioned the farmer’s name in the first place, or why using someone’s name when retelling a factual story is misconduct: “Put simply, the [teacher] has retold to his class an actual event that occurred in order to underline the importance of following procedure when handling chemicals.”
The respondent contended that, because of the farmer’s respected status in the community and the industry, the teacher’s comments presented a “real risk of reputational damage” to the TAFE.
However, Commissioner Lee could not identify any evidence substantiating a risk of reputational damage, and found that, in any case, the matter was “satisfactorily resolved” with the teacher’s apology.
For these reasons, Commissioner Lee was not satisfied that the incident constituted a valid reason for dismissal, and “at worst”, was an “ill advised” reason for terminating the teacher’s employment.
Finding that the teacher was unfairly dismissed, Commissioner Lee ordered the teacher’s employment to be reinstated, as the incident was not enough to lead to the conclusion that their employment relationship was broken beyond repair.
Additionally, the teacher was awarded 32 weeks’ lost pay for his dismissal, reduced by 25 per cent for his actual misconduct in relation to the TAFE’s email policy.