Cooper Grace Ward Partner Annie Smeaton and Lawyer Samantha Ramsay discuss the Fair Work Commission decision in Catherine Kelly v The Hills Christian Community School, which resulted in the rare reinstatement of a dismissed teacher and provided a useful reminder of the importance of comprehensive handover notes.
Annie will be among the Cooper Grace Ward lawyers who will deliver presentations in March at these Legalwise events relevant to schools and other educational institutions: School Law Summit 2019, 11th Annual Workplace Symposium 2019 and 14th Annual Personal Injury Conference.
Ms Kelly, a teacher at the school, had some time off due to illness. When she returned to work, Ms Kelly job shared with the teacher who had been covering for her, a Ms Romaldi. Ms Kelly and Ms Romaldi had a planning meeting during which they discussed ‘handover issues’.
Subsequently, a student in Ms Kelly’s class, who was known to have a number of allergies, had a birthday. Ms Kelly gave the student a chocolate bar, as it was customary for students to have a treat on their birthday. Ms Kelly examined the chocolate bar and believed the ingredients met the requirements specified by the student’s parents. The student ate the chocolate bar and suffered a mild allergic reaction.
Ms Kelly denied she had ever been told that the student could only be supplied with food provided by the parents. Ms Romaldi gave evidence that, during the handover meeting, she had provided this information to Ms Kelly. However, this was not reflected in the notes that were taken at that meeting or in the materials Ms Romaldi had given to Ms Kelly.
The School suspended Ms Kelly and conducted an investigation. The board of the school eventually dismissed Ms Kelly for serious misconduct on the basis that she could not be trusted with the health and safety of students.
The Fair Work Commission rejected the school’s argument that Ms Kelly had failed to comply with the instruction that the student only be given food supplied by the parents. It found that instruction was not reflected in the document prepared by the school and provided to Ms Kelly in the handover. The Commission noted:
Considering the seriousness of the student’s allergy I am surprised as to why such an important piece of information was omitted, and it tends towards a conclusion that the requirement was not in place and/or not discussed.
The Commission found that:
- the school appeared to target the actions of Ms Kelly in its investigation without taking the time to consider the potential contributions of Ms Romaldi
- the School should have more closely examined the handover documentation, as it may have changed the outcome, particularly given, when taking an objective view, it was clear that Ms Kelly’s evidence was more impressive than Ms Romaldi’s
- there was no reason for Ms Kelly’s dismissal, as she had been complying with instructions provided to her and there was no breach of her duty of care.
The Commission also rejected the School’s argument that Ms Kelly should not be reinstated because there had been a breakdown in trust and confidence in the relationship between them. It found Ms Kelly had ‘appropriately conceded that there would be some difficulties to overcome’ and the School Principal had conceded in cross examination that her reinstatement into a non-teaching role for the balance of the year with a return to the classroom in the new year was viable.
Lessons for schools
Student allergies are becoming an increasingly significant risk factor in the education sector. They are a particularly important consideration when dealing with students in lower primary.
To this end, schools should:
- ensure that written allergy management plans are clear and reflect the current and most up to date information about a student’s allergies
- ensure that temporary staff are properly informed about allergy management plans
- keep detailed notes during handover process to ensure that all essential information about a student has been communicated and handover notes regularly audited to ensure teachers are complying with best practices.
If you would like to discuss your student management plans or disciplinary processes, please contact partner Annie Smeaton or lawyer Samantha Ramsay in our Workplace Relations and Safety team.
Annie Smeaton has many years’ experience as an advocate with a strong background in employment, industrial, safety, education (including pre-enrolment and enrolment) and anti-discrimination law, Annie provides her employer clients with strong representation and practical commercial advice. Annie acts for large corporations and institutions as well as employers in the SMEs market and education and training, resources and energy, transport and logistics, manufacturing and professional services industries. Annie acts for a range of independent schools, training institutions and institutions in the pre-university market. Annie also undertakes employment and regulatory law work in the health sector. Annie has extensive experience undertaking complex workplace investigations concerning harassment, bullying and safety breaches. Contact Annie at Annie.Smeaton@cgw.com.au or connect via LinkedIn.
Samantha Ramsay is a Lawyer in Cooper Grace Ward’s workplace relations and safety team and provides clients with outstanding service and advice in relation to all areas of employment. Prior to joining the team at Cooper Grace Ward, Samantha worked in industrial relations consulting and the education sector, gaining invaluable experience representing and advising both individuals and corporate clients on a broad range of matters as well as experience in enterprise bargaining negotiations. Samantha is experienced in conducting workplace investigations, preparing onboarding documents and policies, defending unfair and unlawful dismissal, general protections, workers’ compensation, workplace, health and safety, discrimination and harassment matters. Contact Samantha at Samantha.Ramsay@cgw.com.au or connect via LinkedIn.