Teacher reinstated after flawed student allergy dismissal

The Fair Work Commission (FWC) has reinstated a teacher at the Hills Christian Community School (Hills School), after finding that she was unfairly dismissed for providing a student with known food allergies with a chocolate bar during a class birthday celebration.

The decision highlights the need for education sector employers to clearly communicate student allergy plans and procedures in writing and provides a timely reminder of the real prospect of reinstatement orders in unfair dismissal cases, even in high risk environments involving child supervision.

No valid reason for dismissal

In Catherine Kelly v The Hills Christian Community School Inc T/A The Hills Christian Community School [2018] FWC 4134, the Hills School dismissed Ms Kelly for serious misconduct, stating that she breached a procedure that the student in question only be given food supplied by the student’s parents and in so doing, breached the Hills School’s Code of Conduct and her duty of care to the student. The student suffered a mild allergic reaction after consuming the chocolate bar.

When assessing the case, Commissioner Platt was not satisfied that Ms Kelly had been instructed by the Hills School on the procedure of only supplying the student with food provided by his parents. The Hills School was unable to prove to the satisfaction of Commissioner Platt that Ms Kelly was notified of the procedure in writing. Further, Commissioner Platt accepted Ms Kelly’s version of events that she had not been advised of the procedure verbally during a handover meeting.

In the circumstances, Commissioner Platt determined Ms Kelly had been instructed that the student could be given food that was not supplied by his parents provided the ingredients were checked, and that she had acted consistently with this procedure. On this basis, he found that Ms Kelly had not breached the Code of Conduct or her duty of care to the student, and therefore there was no valid reason for her dismissal. The absence of a valid reason resulted in the dismissal being harsh, unjust or unreasonable, notwithstanding the “considerable duty of care” of the Hills School, its staff and the school community in relation to student food allergies.

Reinstatement and back pay

Ms Kelly sought for her employment to be reinstated and this was opposed by the Hills 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.

Commissioner Platt applied the following principles when determining the appropriateness of reinstatement, given the alleged loss of trust and confidence:

1. An employer’s loss of trust and confidence will often be an important consideration in determining the appropriateness of reinstatement, but it is not the sole consideration or even a necessary one in this context;
2. There may be some limited circumstances where “any ripple on the surface of the employment relationship will destroy its viability”, but usually the employment relationship is capable of overcoming friction and doubts;
3. An employer must have a sound and rational basis for asserting that trust and confidence has been lost. This will not exist where a tribunal finds that the employee was not guilty of serious wrongdoing or conduct and the employer is merely reluctant to change its view;
4. Where raised by the employer, the employer has the onus of establishing the loss of trust and confidence;
5. The fact that reinstatement may be difficult or embarrassing does not necessarily render it inappropriate; and
6. The FWC will consider whether a sufficient level of trust and confidence can be restored to make the employment relationship viable and productive.

Commissioner Platt considered that reinstatement was appropriate because he saw no evidence to suggest that Ms Kelly had been dishonest or evasive during the incident investigation, she had not in his view breached the Code of Conduct or her duty of care and there was at least one basis upon which reinstatement could succeed (i.e. it was feasible she could perform non-teaching duties for the remainder of 2018 and teach a new class in 2019).

Commissioner Platt also ordered the Hills School to pay Ms Kelly the earnings she would otherwise have received from the date of her dismissal to the proposed date of her return.

Implications for education sector employers

Student allergies are a significant risk factor in the education sector, particularly amongst younger students with less capacity to self regulate what they consume whilst under the care of school representatives. Student safety and wellbeing is paramount and employers in the education sector can understandably have little tolerance for anything less than strict compliance with student allergy plans and procedures.

As a means of protecting students and in order to ensure that any disciplinary action taken in this context is fair and defensible, employers should ensure that:

1. Written student allergy plans and procedures are distributed and clearly explained to responsible staff (including staff who take on responsibility for students during the course of an academic year and temporary staff members);
2. These plans and procedures highlight any special requirements for particular students and are regularly revisited; and
3. Where handover meetings occur, written notes are taken to confirm the nature of the student care requirements communicated to the incoming staff member. These handover notes should also be reviewed to ensure that handover meetings are being conducted in a best practice fashion.

Where staff are dismissed for failing to follow allergy plans and procedures, there is a real possibility of reinstatement if it cannot be proven that they were advised of the requirements to be followed. Reinstatement remains the primary remedy for unfair dismissal and, as made clear by section 390 of the Fair Work Act 2009 (Cth), will only be departed from where the FWC is satisfied that reinstatement is inappropriate and compensation is appropriate in all of the circumstances.

This article was written by Steven Penning, Partner, Laura Gavan, Associate and Jessica Lim, Graduate-at-Law.