TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant was employed as a primary school teacher – dismissed on 17 January 2017 after multiple allegations of misconduct – respondent alleged applicant made inappropriate physical contact with students; informed students to not divulge certain stories to adults; had previously been spoken to of the importance of appropriate professional boundaries and had breached the Victorian Institute of Teachers Code of Conduct – applicant conceded to some of the allegations but submitted there was valid reason for physical contact with the students – Commission did not accept there was valid reason for applicant’s physical contact with students – Commission satisfied the gravity of applicant’s conduct constituted valid reason for dismissal – noted applicant had a choice and could have declined student’s physical contact – accepted some instances of misconduct occurred but did not accept some of the respondent’s allegations were substantiated – satisfied applicant breached professional obligations – satisfied respondent had previously spoken to applicant about the importance of maintaining appropriate professional boundaries, notified applicant of reasons for dismissal and gave an opportunity to respond before making decision to dismiss – Commission weighed the potential to put respondent’s students at risk from others against the gravity of applicant’s conduct – noted it was not apparent applicant accepted the seriousness of misconduct during the proceedings as the given conduct was not trivial or unimportant – found the termination of the applicant’s employment was not a disproportionate response to applicant’s misconduct – application dismissed. Adams v Department of Education and Training
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