No breach of duty leads to teacher’s reinstatement No breach of duty leads to teacher’s reinstatement

No breach of duty leads to teacher’s reinstatement

11 September 2018 | Employer's Liability

The Fair Work Commission has reinstated a teacher after finding that she was unfairly dismissed for providing a chocolate bar to  a student with known food allergies during a class birthday celebration.     

In Issue

  • Was the teacher’s summary dismissal harsh, unjust or unreasonable?

The Background

Ms Catherine Kelly lodged an application seeking remedy for unfair dismissal against her former employer, the Hills Christian Community School (School), alleging she was unfairly dismissed after she provided a chocolate bar to a student with known food allergies during a class birthday celebration.

In late November 2017, Ms Kelly attended a meeting with the Principal and the student’s parents to discuss the student’s allergies and associated requirements. Ms Kelly made notes of the meeting which relevantly referred to the student’s history, his food allergies and risk mitigation strategies. This information was also reflected in a letter issued to families at the School by the student’s parents. The letter was dated 7 December 2017 and advised students and teachers to “always check the ingredients labels before giving anything to the student”. Ms Kelly provided evidence that nothing was said during the meeting to the effect that the student could only eat food supplied by the student’s parents.

In early April 2018, another student in Ms Kelly’s class was celebrating his birthday. It was customary for the students to have a treat on their birthday. Ms Kelly gave the student with allergies a chocolate bar after she had examined its contents and believed met the ingredient limitations specified by the student’s parents in their earlier letter.

The student ate the chocolate bar and subsequently suffered a mild allergic reaction.

The School dismissed Ms Kelly for serious misconduct, stating that she breached a procedure that the student in question only be given food supplied by the student’s parents and in doing so, breached the School’s Code of Conduct and her duty of care to the student.

The Decision at Hearing

When assessing the case, the Fair Work Commission (FWC) was not satisfied that Ms Kelly had been instructed by the School on the procedure of only supplying the student with food provided by the parents. The School was unable to prove that Ms Kelly was notified of the procedure in writing. Further, the FWC accepted Ms Kelly’s version of events that she had not been advised of the procedure verbally during a handover meeting.

In the circumstances, the Commissioner determined Ms Kelly had been instructed that the student could be given food that was not supplied by his parents provided the ingredients were checked, and found Ms Kelly had acted consistently with this procedure.

On this basis, the FWC determined that Ms Kelly had not breached the Code of Conduct or her duty of care to the student, and therefore, there was no valid reason for her dismissal. The absence of a valid reason resulted in the dismissal being harsh, unjust or unreasonable.

Ms Kelly sought reinstatement, and despite opposition from the School on the basis that it had lost trust and confidence in her ability to perform in a high risk environment involving the supervision of children, the Commissioner ordered her reinstatement.

Implications for you

Student allergies are a significant risk factor in the education sector. This is particularly for young students in primary schools with less capacity to self regulate their food consumption while under the supervision of school representatives.

The decision highlights the need for education sector employers to communicate student allergy plans and procedures clearly and in writing. Where staff are dismissed for failing to follow allergy plans and procedures, there is a real possibility of reinstatement if it cannot be proven that they were advised of the requirements to be followed. 

Employers should therefore ensure that:

  1. Student allergy plans and procedures are clearly communicated in writing and explained to responsible staff (including staff who take on responsibility for students during the course of an academic year and temporary staff members).
  2. These plans include any special requirements for particular students.
  3. If handover meetings occur, written notes are taken to confirm the nature of the student care requirements communicated to the incoming staff member.

Catherine Kelly v The Hills Christian Community School Inc T/A The Hills Christian Community School [2018] FWC 4134​​​​

Adi Kedar

Adi Kedar

Solicitor