Teacher warned and kept on, then sacked: was it unfair?

What happened

Simon Parris began teaching maths and chemistry at St Kevin's College, a Catholic school in Toorak, Melbourne, on 25 January 2013. He also ran the school's theatre productions, which is how he came to know a student the decision calls Student A.

In February 2019 the principal told Mr Parris that a student's parents were unhappy that he had hugged their son the year before, and warned him not to hug students. On 14 June 2019 he took Student A out of another teacher's class to collect a graphic design file, sat with him on a couch and hugged him. Mr Parris wrote a reflection in which he said he took full responsibility.

The school formally recorded a breach of its code of conduct, reported the matter to the Commission for Children and Young People, and directed that there be no physical contact or informal dialogue with students. In August 2019 Student A told a school counsellor that Mr Parris had also touched his leg that day. Mr Parris denied it, and the principal accepted his denial. In October 2019 the school gave him a final warning, removed him from running productions and kept him on.

The dismissal

In February 2020 Student A's parents pressed for a fresh report to the Children's Commission. The school sent Mr Parris home on paid leave and raised a second concern: a sexualised comment, referring to a Broadway dancer, that he had posted on his personal Twitter account in June 2019 and that could be traced to the school through his website.

That week the school was the subject of a Four Corners episode, the principal resigned and an acting principal was appointed. On his first day in the role, 20 February 2020, Mr Parris was called at 3:35pm to a meeting at 5:00pm. He attended alone and was dismissed for misconduct, with pay in lieu of notice. After the dismissal the school found pornography he had copied onto his school laptop and emails to students that crossed professional boundaries.

Mr Parris applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth), seeking reinstatement. His central argument was that the school had warned him and kept him on, so it could not dismiss him for the same conduct later.

The legal test

A dismissal is unfair if it is "harsh, unjust or unreasonable". Under s 387 the Commission weighs whether there was a valid reason related to the worker's conduct, whether the worker was told of the reason and given a chance to respond, whether a support person was unreasonably refused, and any other relevant matter. A valid reason is one that is "sound, defensible or well founded", and the Commission decides for itself, on the evidence, whether the misconduct happened.

On the warning point, Commissioner Lee accepted the established principle: when an employer, with full knowledge of misconduct, decides to keep a worker on, that earlier misconduct cannot on its own be a valid reason for a later dismissal. This is called condonation. But it only applies where the employer had full knowledge. An employer who believed a worker's denial, and later learns the truth, has not condoned anything.

What the Commission decided

The Commissioner found Mr Parris an unsatisfactory witness and preferred Student A's evidence. The Commissioner found that he had touched the student's upper leg on 14 June 2019 and had misled the school when he denied it. Because the school never had full knowledge of what happened, it had not condoned the conduct. That conduct, which caused harm to Student A, was serious misconduct and a valid reason for dismissal.

The Commission also found other valid reasons: the tweet (at the lower end of seriousness), the pornography on the school laptop, the emails to students, and his dishonesty in the investigation.

The process, though, was poor. Mr Parris was told of only some of the reasons, the opportunity to respond was "going through the motions", the short notice made it very hard to bring a support person, and the school, with its lawyer in the room, did not follow the disciplinary steps in its enterprise agreement. That failure weighed strongly towards unfairness, as did his long, clean record. Against that stood the seriousness of the misconduct and his "extremely low" insight into it. The Commissioner held the dismissal was inevitable, found it was not harsh, unjust or unreasonable, and dismissed the application.

What this means for you

If you have been warned and kept on, the employer generally cannot later dismiss you for that same conduct alone. But the protection depends on the employer having known the whole story. If you held something back, the warning may not protect you.

For employers, the decision is a reminder that agreed disciplinary steps matter. Here the misconduct was serious enough to outweigh a flawed process, but in a less serious case a rushed meeting and skipped steps can make a dismissal unfair. Anyone who wants to challenge a dismissal in the Fair Work Commission has 21 days to apply.