A recent Federal Court decision highlights the risks for school principals when disciplining staff who have made bullying complaints against them, and the importance of getting advice before commencing any disciplinary process.
The Fair Work Act 2009 (Cth) effectively prohibits schools and their principals from disciplining school employees because they have made a bullying complaint (whether against the school principal or someone else).
A school employee who alleges they have been victimised by his or her employer for making a bullying complaint can apply to the Fair Work Commission or Federal Courts of Australia for relief. The burden will then be on the school (and typically its principal) to prove the disciplinary action was not motivated by the employee’s complaints.
Regardless of the outcome of the application, the school and principal are likely to incur considerable cost and inconvenience. If the claim is successful, however, both the school and its principal may face orders for compensation and pecuniary penalties, and incur significant reputational damage.
The case involved a teacher at a Victorian secondary school who in May 2015 sought a temporary injunction from the Federal Court of Australia preventing his school and its principal from taking any further disciplinary action against him.
The teacher sought the injunction after being stood down with pay pending the principal’s investigation into allegations that the teacher had engaged in serious misconduct by sending emails to undisclosed recipients which allegedly incited others to engage in a “coordinated campaign” against the school and the principal.
The teacher alleged he was being disciplined, and threatened with dismissal, because he was making bullying complaints against the principal on behalf of himself and others, and he sought the injunction after the principal refused him further time to respond to the allegations.
The Court was not in a position to fully determine the teacher’s request for an injunction because the school and its principal had not yet had an opportunity to respond to the allegations against them. However, the Court noted that the school and the principal will ultimately have to disprove the teacher’s allegations, and they will have to do so against the background of serious allegations of long-term bullying, harassment and victimisation by the principal.
Further, the Court observed that the teacher’s emails were likely sent to disaffected staff at the school, and on one view demonstrated a campaign by the teacher on behalf of himself and disaffected staff to persuade the school board that teaching staff were bullied, harassed and victimised by the principal. That campaign itself might form the basis of a protected bullying complaint.
In those circumstances, the Court was satisfied it should order a temporary injunction to preserve the teacher’s employment status for the time being.
Lessons for school principals
The teacher’s allegations were ultimately not determined by the Court as the teacher discontinued his claim on 1 June 2015. But regardless of the terms of that discontinuance, including any agreement the teacher reached with the school, the initial injunction exposed the school and principal to reputational damage, and no doubt considerable financial cost and inconvenience. It also impeded the school’s prerogative to manage its staff as it saw fit.
Employees who make bullying complaints are not a protected species, but school principals must be especially cautious before embarking on any disciplinary process for an employee who has made a complaint.
The risk the employee will allege he or she is being disciplined because of that complaint is particularly great when:
- the complaint is about the principal personally, or has not been resolved (whether at all, or to the employee’s satisfaction); or
- the employee is being disciplined because the employee’s complaint was vexatious, or because the way in which the complaint was made amounted to misconduct.
When dealing with these situations, school principals must obtain appropriate advice before commencing any disciplinary process to ensure that the school can demonstrate that the employee’s complaint did not prompt the disciplinary process. Often, this will require an employer taking careful steps to demonstrate that:
- the substance of the employee’s complaint was properly dealt with prior to the commencement of any disciplinary process; and
- any disciplinary action process is objectively fair and reasonable.
Please contact Ben Tallboys or another member of the Russell Kennedy Workplace Relations, Employment and Safety team if you would like to discuss how your school can improve its approach to dealing with unacceptable conduct or performance by staff members who have made bullying complaints.
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