A teacher was employed by a college on 25 January 2013 to teach maths and chemistry and for some time, was also the head of the musical theatre productions for the school as part of his co-curricular work.
Parents complained about theatre teacher hugging students
On occasion, during theatrical productions, the teacher met and hugged students after each rehearsal. The students were not yet 18 years old.
In February 2019, the principal met with the theatre teacher to inform him that the parents of one of his students had spoken to him to express their unhappiness that the theatre teacher hugged their son during the previous school year as their son felt very uncomfortable with the theatre teacher hugging him.
The principal warned the theatre teacher not to hug students again. The teacher was not told which of his students complained.
Theatre teacher hugged again the student who had complained
On 14 June 2019, the theatre teacher went to the class of the very student who complained to get graphic designs from him. The theatre teacher asked the teacher-in-charge of the class where the student was if he could speak with him. The theatre teacher then took the student to sit on a couch in another area of the school.
After the student gave the theatre teacher the graphic design he had required, the theatre teacher reached over and put his arm across the student’s shoulders.
The theatre teacher then saw that the student was uneasy so he asked the student what was wrong. The theatre teacher asked, “What’s wrong, sweetie?”
Meeting with the new headmaster
On or around 19 June 2019, the theatre teacher was called to a meeting with the Acting Headmaster to inform the theatre teacher that the student had felt uneasy when the theatre teacher put his arm across his shoulders. During this meeting, the theatre teacher was informed that it had been the same student whose parents complained about their son feeling uncomfortable with the theatre teacher hugging him the year before.
The theatre teacher apologised to the Acting Headmaster but he was sent home for the rest of the day and was told to meet again with the Acting Headmaster the next day. The theatre teacher wrote a personal reflection where he took full responsibility for his behaviour and acknowledged that he had been warned the year previously not to hug students as one student had complained.
The teacher could not account for why he had to go and visit the student to obtain the graphic design file while the student was in another class. He promised to reflect on how he came across to students and excused his behaviour by saying that his father’s sudden death months before and the work pressure from being the head of the theatre productions made him act carelessly.
Notice of breach of the Code of Conduct
On or around 20 June 2019, during the theatre teacher’s meeting with the Acting Headmaster, she gave the theatre teacher a letter informing him that his actions on 14 June 2019 would be formally recorded as a breach of the Code of Conduct.
Particularly, the theatre teacher’s actions breached the rule on workers abiding by professional boundaries and avoiding placing themselves or a student in a compromising position so as to avoid actual and/or perceived breaches of the Code.
Reportable Conduct and investigation by the school
The letter also notified the theatre teacher that the school had asked for the advice of the Commission for Children and Young People and that the letter was a Reportable Conduct Notification on him. The letter advised the theatre teacher that the school will then investigate the incident.
Warning against further and similar breaches in future
The letter then warned the theatre teacher that further and similar breaches of the Code of Conduct will earn a heightened disciplinary response which might involve his dismissal. The theatre teacher was forbidden from engaging in any physical contact or informal dialogue with students.
Student, felt pressured, backed out of theatre productions
The student had a series of meetings with the Acting Headmaster where the Acting Headmaster proposed several options so that both the student and the theatre teacher could move forward. The student asserted that he had felt pressured during those meetings with the Acting Headmaster to choose the option of withdrawing from any involvement in the musical production. The student felt that he was being punished for having complained about the theatre teacher.
Restorative meeting with both student and theatre teacher present
On 24 July 2019, the theatre teacher and the student were both called to a restorative meeting with the Acting Headmaster and the Head of House for the student. At the meeting, the student felt confused because the theatre teacher offered excuses for his behaviour: that he was merely excited by the work the student had done on the graphic design; that he had been so proud of the work the student did.
Support and guidance from the school
The school’s Acting Headmaster met with the student every week for the rest of the school year to provide support and guidance to the student. The student claimed that he had seen the theatre teacher still engaging in the same behaviours with other students (hugging them and touching them on the arm) at a retreat and during other school activities.
Complaint to the school counsellor
On 19 August 2019, the student saw the school counsellor for his feelings of anxiety and paranoia at seeing the theatre teacher around the school. The student also said (for the first time) that during the incident on or around 14 June, the theatre teacher had touched him on the leg and placed his hand on the student’s knee. The school counsellor then reported the student’s consultation with her to the school principal.
Principal met with theatre teacher, warned to stay away from student
On 20 August 2019, the school principal called the theatre teacher to a meeting to inform him of the additional complaints made by the student. The principal also informed the theatre teacher that he had looked at the CCTV footage and the additional inappropriate behaviours that that student had complained of to the school counsellor could not have happened and could not be true. Just the same, the principal changed the theatre teacher’s yard duty and instructed him to use a particular set of stairs in the building to minimise crossing paths with the student.
Offered Long Service Leave of 9 weeks
In September 2019, the school principal met with the theatre teacher once more to inform him that the CCYP had not yet issued a response to the reported breach but the school had decided to remove the theatre teacher from his position as head of the theatre productions and that he will not be directing any productions in the next school year. The teacher was also to avoid any contact with the student and was to take 9 weeks of long service leave although he was entitled only to 7 weeks. The teacher declined the long service leave.
Commission on Children and Young People confirmed investigation and findings
On 21 October 2019, the school principal wrote to the theatre teacher to inform him that the Commission on Children and Young People (CCYP) had closed the investigation as they were satisfied with and confirmed the previous finding of the school that the theatre teacher had breached the school’s Code of Conduct. The CCYP further found that after the investigation conducted by the school, the allegations of sexual misconduct against a child were substantiated as per the descriptions and definitions of sexual misconduct by the CCYP. The CCYP will then forward their findings to the Secretary of the Department of Justice and Community Safety for the Working with Children Check reassessment and notify the Victorian Institute of Teaching.
Final warning against similar conduct in the future
The school principal wrote that the theatre teacher was to continue in the professional training in child safety, continue avoiding direct contact with the student, and that his removal as Head of Productions until 2020 was to be kept in place.
Action of Victorian Institute of Teaching
The Victorian Institute of Teaching found that, indeed the theatre teacher had engaged in reportable conduct but that the theatre teacher can still undertake the duties of a teacher. His registration card will not be updated to reflect the new expiry date of his teacher registration (30 June 2020).
New allegations in February 2020 and school’s “concerns”
The parents of the student requested a meeting with the school principal because the student was still nervous about seeing the theatre teacher in school. His conduct toward the student in 14 June 2019 caused the student to develop anxiety. Later, during the same month, the parents sought for a new report to be made to the CCYP against the theatre teacher.
The school principal then appointed an external investigator to conduct an enquiry anew. This time, the theatre teacher was requested to hand in his work laptop. He was informed that his school email account and access to the school’s portal will be disabled. The theatre teacher was directed not to report for teaching and that his class will be taken over by someone else.
A letter listed some “concerns” the school had about the theatre teacher’s conduct: he had posed a sexualised comment on his personal Twitter account that tended to bring the school into disrepute especially when on his personal website, the theatre teacher identified himself as teaching at the school and even named the school. Being a Catholic school, they had strict rules of conduct.
In response, the theatre teacher deleted his tweet and his comment on his personal website that named the school as his place of employment. The teacher also sent emails that used language that was inappropriate for student-teacher interactions. The teacher stored pornography in his work laptop.
Report on Four Corners television show
Sometime that same month of February 2020, the television show Four Corners aired a report that focused on the school. There was no mention of the theatre teacher or the June 14 incident but the Principal resigned and the Acting Headmaster was suspended by the school. The theatre teacher was called to a meeting with the new headmaster and the school’s lawyer.
At the meeting, the theatre teacher was alone. He was not given the opportunity to bring a support person. He was also given a letter where he was informed that the school will consider whether to take further action against the theatre teacher: to put him on an Employee Improvement Plan, to issue a final warning or to dismiss him from employment.
The day after the meeting, the theatre teacher receiving a termination letter. He was sacked for misconduct and he was to be paid in lieu of notice. In the letter, he was dismissed for his breach of the Code of Conduct by bringing the school into disrepute by his inappropriate behaviours involving his computer and social media; his breach of the implied duty of good faith toward the school; and his breach of his duty to conduct himself in a manner that is likely to seriously damage or destroy the trust and confidence between him and the school.
Teaching license suspended, other misconduct discovered later
The Victorian Institute of Teaching suspended the theatre teacher’s license pending investigation of his fitness to be a teacher. After his dismissal, the school later discovered that on his work laptop that was provided by the school, the theatre teacher accessed, viewed, and stored pornography. The school also found that the teacher had sent emails to students that breached professional boundaries with students.
Unfair dismissal application filed by theatre teacher
The theatre teacher filed an application for unfair dismissal. He argued that when the school had learned of his misconduct in 2019, and investigated it, but still continued to employ him as teacher, the school had in fact, condoned the theatre teacher’s behaviour such that it cannot use the same misconduct to sack him a year later.
FWC found that theatre teacher misled school investigators
At the trial, the Fair Work Commission found that during the investigation, the theatre teacher misled the headmaster. The alleged misconduct that the school had investigated involved only the “hugging” by the theatre teacher of his student—a behaviour that was inappropriate within the context of the school.
The school had not investigated the later allegations by the student that during that same hugging incident on 14 June, the theatre teacher also touched him on the leg. Further, the theatre teacher actively misled the school by asserting in his personal reflection that his behaviour was due to work pressure and the death of his father.
The truth was that the theatre teacher had been engaging in the same “hugging” of other students even before and after the 14 June incident. Thus, when he said that he was “accepting full responsibility” for his behaviour, he had not truly accepted full responsibility because he did not even own up to all that he had done. His behaviour after that incident involved giving varied excuses for his inappropriate behaviour.
In that context, the school could not have condoned the wrongdoing that it had not even been aware of. Thus, when it continued in employing the theatre teacher, it could not have been a condonation of his misconduct that the school had not even known about. The theatre teacher admitted that his behaviour in hugging and touching students on more than one occasion “crossed the line” of acceptable conduct. The school had warned the theatre teacher about further and similar misconduct in future.
Other misconduct by the theatre teacher
What prompted a re-investigation was the theatre teacher’s continued hugging of students. And, in fact, the teacher’s sexualised comment on twitter was what further enraged the parents of the student and certainly brought the school into disrepute. And even if the FWC were to believe that the teacher had accessed the pornography whilst on vacation overseas, he ought to have deleted it from his work laptop especially when he used that very laptop in school to teach students. Keeping pornography on his work laptop was reckless behaviour that risked students accidentally viewing the pornographic material. The teacher knew and should have known that it was serious misconduct to keep hardcore pornography on the school laptop but he did it anyway.
Failure of the school to adhere to proper dismissal procedures
The school failed to give the theatre teacher notice of all the reasons for which he might be dismissed. The school also failed to give the theatre teacher an opportunity to respond to the allegations against him and the school being in an uproar over the allegations cannot excuse the failure to provide him with the opportunity to respond. The teacher was covered by an enterprise agreement that provided for the proper procedure in dismissing erring employees and the school failed to adhere to the provisions of the enterprise agreement.
There were valid reasons for the dismissal: the persistent hugging of students despite warnings, the sexualised comments on social media, the keeping of pornography on the work laptop.
The manner by which his dismissal was done lean towards a finding of unfairness in the dismissal but the gravity of the substantiated allegations against the teacher and his overall lack of insight into his wrongdoing and his failure to take responsibility for his actions override the school’s lack of adherence to the proper dismissal procedures. The student was harmed.
Thus, the FWC found that the dismissal was not unfair.
In investigating sexual harassment, employers cannot focus only on the applicant’s feelings to the exclusion of the factual context of the allegations