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The appeal decision in full here.
The employee was a schoolteacher who was dismissed for taking a group of students kayaking in what were to become dangerous conditions. He has been a schoolteacher since 1992 and had taught kayaking at the College for 12 years without incident or complaint.
In the original decision, the applicant was reinstated and was to be paid all lost wages due to the dismissal.
The Archdiocese’s appeal contained 11 substantive appeal grounds, which may be divided into two parts: grounds 1-7 challenge the Deputy President’s finding that the Archdiocese had not established that there was a valid reason for [the employee’s] dismissal, and grounds 8-11 concern the Deputy President’s award of the remedy of reinstatement:
“The order of reinstatement in circumstances of prior misconduct [that] was a threat to the health and safety of children, prior underperformance and lack of contrition is inconsistent and disharmonious with the reasoning and outcomes in earlier decisions of the Fair Work Commission dealing with the appropriateness of reinstatement”.
Full Bench Consideration
The Full Bench allowed the first part of the appeal (relating to valid reason), stating:
“…we consider that the grant of permission would be in the public interest. This aspect of the decision involves important issues of child/student safety, and we consider that public confidence in the decision will be enhanced if it is subject to full appellate review in this respect…”
However, the Full Bench was critical of the “scatter gun” approach taken by the Archdiocese’s appeal reasoning; deciding that the real issue is to get to the “root cause” of the incident.
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Full Bench Finding
“We are not satisfied that there was any error in the Deputy President’s conclusion that the Archdiocese had failed to demonstrate a valid reason for [the employee’s] dismissal.
“We agree with the Deputy President’s observation that, with the benefit of hindsight, the kayaking class might have been conducted in a more organised and effective manner. It is doubtful however that this would have avoided the occurrence of the incident in the face of the preparedness of a number of students not to comply with clear and unambiguous instructions”
Whilst allowing half of the appeal, the Full Bench re-examined the actions of the employee and his assistant. Having done so, the Full Bench determined that placing all the blame on the teacher was not fair; effectively quashing the appeal in total.