Teacher sacked for naming a farmer in class wins his job back

What happened

Mr Wakefield was a vocational education teacher at Sunraysia Institute of TAFE in Mildura, Victoria. He started in August 2017, came from many years in the industries he taught, and by December 2018 was earning $92,236 a year.

In October 2018 he was running a chemical-use course for a local Landcare group. To show that chemicals affect people differently, he told the class about something that had happened more than 20 years earlier: a farmer spraying herbicide next door while he and his workers were nearby, one of them feeling nauseous and another with a blood nose. He named the farmer, a well-known local, because he thought the students would see that even an experienced farmer could make mistakes.

A relative of the farmer was in the class. That evening the farmer rang Mr Wakefield, angry that his name had been used. Mr Wakefield apologised, promised to apologise to the class, and did so the next morning. The farmer took it no further.

The dismissal

Weeks later the Landcare group's contact raised several concerns with TAFE managers, including the naming of the farmer. After meetings with him in December 2018, TAFE dismissed Mr Wakefield on 12 December 2018 for serious misconduct, paying him four weeks' pay because of the closeness to Christmas.

The termination letter also mentioned lateness to some sessions and a warning from March 2018. Back then, his former employer had emailed his TAFE account asking about outstanding training work, and he had replied from that account that everything would be done when money he said he was owed was paid. But the letter called the naming of the farmer the "key issue".

Why: the legal test

Under s 385 of the Fair Work Act 2009 (Cth), a person is unfairly dismissed if, among other things, the dismissal was harsh, unjust or unreasonable. Section 387 lists what the Commission must weigh, starting with whether there was a valid reason related to the worker's conduct or capacity, whether the worker was told of that reason, and whether they had a chance to respond.

A valid reason must be "sound, defensible or well founded", and the Commission decides for itself whether the conduct happened. Commissioner Lee also used the High Court's explanation in Byrne v Australian Airlines Ltd (1995) 185 CLR 410: a dismissal can be unjust because the worker did not do what they were dismissed for, unreasonable because it rests on inferences that could not reasonably be drawn, and harsh because of its consequences for the worker's personal and economic situation, or because it is out of proportion to the misconduct.

What the Commission decided

Commissioner Lee found Mr Wakefield's account truthful and uncontradicted. He had retold a real event using the real name, and the Commissioner saw no reason why that was "misconduct at all, let alone serious misconduct". At worst it was ill advised, and there was no evidence of any risk to TAFE's reputation. It was not a valid reason. Nor was the lateness, which Mr Wakefield had explained.

The March 2018 email was different. Threatening to hold back his employer's services until he was paid personally was a misuse of his position, and that was a valid reason. But he had been warned, had done a refresher on the policy and had not repeated it. In the meetings before his dismissal he was never told the email was putting his job at risk.

Weighing everything, including his age of 55 and the small job market in Mildura, the Commissioner found the dismissal unjust, because he had not committed the main misconduct relied on, and harsh, because dismissal was out of proportion to one email already dealt with by a warning.

Getting his job back

Reinstatement is the primary remedy: under s 390(3), compensation can be ordered only if reinstatement is inappropriate. TAFE argued it had lost trust and confidence in him, but the Commissioner found no evidence of the reputational damage it relied on, and held that the loss of trust was not soundly and rationally based.

The Commissioner ordered that Mr Wakefield be reinstated from 24 July 2019, with an order keeping his continuity of service so that his service-based entitlements were not lost. For lost pay, the 32 weeks out of work were cut by 25% because of the email, leaving 24 weeks' pay, less what he had earned elsewhere and the four weeks' pay already received.

What this means for you

If you are dismissed for one main reason, the Commission will test that reason itself. An older matter you were never told was putting your job at risk carries less weight, and a past warning does not automatically make a later dismissal fair, and an honest mistake promptly fixed is not necessarily misconduct. Reinstatement is a real option if you want your job back. The time limit to apply is short: 21 days from the dismissal.