In brief - In some circumstances, schools will have a duty of care to protect students from the wrongful behaviours of teachers engaging in activities that occur outside school hours
In a recent decision of Mr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College  FWC 7620, the Fair Work Commission (Commission) has upheld a school’s decision to summarily dismiss a teacher for inappropriate conduct towards a student which occurred both during and outside of school hours. In doing so the Commission has confirmed that a teacher’s conduct outside of school hours may be a valid reason for summary dismissal.
Teacher’s conduct found to be inappropriate, unprofessional, a breach of duty and a valid reason for summary dismissal
The Commission found that a 50-year-old teacher unreasonably intruded upon a female Year 11 student's personal life by seeking her out at the Woolworths supermarket at which she worked, in order to be served by her and engaging her in conversation. The Commission was satisfied that the teacher regularly asked the student about her weekend working commitments in advance and that he would usually always wait at the checkout staffed by the student, even when other checkouts had shorter queues.
In relation to the misconduct which occurred during the student's schooling, the student alleged that at the school's sports carnival the teacher told her that her boyfriend was not nice enough for her. Further, she alleged that the teacher said words to the effect of:
I can treat you better. I can be your sugar daddy. I can pay you small allowances. We can drink red wine. You can give me neck massages.
The Commission accepted the student's evidence in each respect and described the teacher's conduct as “recklessly indifferent to the legitimate rights of the student to not be subject to inappropriate and intrusive conversation about her private life.” The Deputy President found that each individual element of the teacher’s conduct was inappropriate, unprofessional, a breach of duty and a valid reason for summary dismissal.
What the decision means for schools
This decision confirms the legal position established in several other cases that schools can take into account teachers' out-of-hours behaviours when making decisions in relation to their ongoing employment.
As always, legal advice is recommended on a case-by-case basis to minimise legal risk and deal promptly with issues that arise.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.