Unfair dismissal case involving ‘outstanding teacher’ remitted

The ACT Education Directorate has won an appeal in proceedings involving former Erindale College teacher, Jack Gibson, after the Fair Work Commission previously ruled in favour of the teacher.

On 20 May, a full bench of the Fair Work Commission allowed an appeal from the ACT Education Directorate (ACT) in proceedings against Gibson, a former teacher at Erindale College, who was dismissed for alleged inappropriate conduct towards students, to remit the case for redetermination by a single commission member.

In the initial unfair dismissal decision dated 16 January, deputy president Lyndall Dean found that Gibson had breached professional conduct in his interactions with his students, including when he “[took] a photo of [girls in his class] in an ice bath using the app BeReal which showed you were in the room with them,” engaging with his students in online group chats, and dropping them off to sporting events.

In her decision, Dean said: “[It is] common sense that the applicant’s behaviour was inappropriate regardless of what the Code of Conduct provides … and the importance of maintaining boundaries is vital.”

Despite this, Dean ruled the case in Gibson’s favour, ordering ACT to pay Gibson five months of base salary in compensation, for reasons that dismissal was a harsh and disproportionate consequence as he was an “outstanding teacher”.

In its appeal, ACT gave evidence that “no reference is made to a particular witness, any competing evidence, or to the basis of that finding.”

ACT submitted five grounds for appeal, one of which was the “failure to give appropriate consideration to the respondent’s evidence and submissions”. The full bench found that no parent who submitted evidence in favour of Gibson appeared as witnesses to the hearing, and thus “the deputy president erroneously relied on the written statement of [a mother],” ACT submitted.

“The decision reveals errors of law and significant errors of fact … Is the education institution then to wait until sexual harassment or conduct occurs before considering dismissal?” the department added.

“Sexual harassment or conduct ought not be the threshold by which an educational institution can terminate a teacher for crossing professional boundaries.”

The school’s code of conduct provides that teachers are prohibited from certain interactions with students, including: “live chat conversations on the internet”, “providing mobile and home telephone numbers to students”, “attendance at private social functions with students outside school hours” and “taking students to coffee, the movies or other social events”, and stressed the maintenance of professional boundaries.

In the full bench’s appeal decision, the commission determined that ACT’s submission that deputy president Dean “[failed] to give appropriate consideration to the respondent’s evidence and submissions” in her 16 January decision was made out, ruling the appeal in favour of ACT.

The full bench has ordered that the case be remitted for redetermination by a single member of the commission.

The case citation: Australian Capital Territory (represented by ACT Education Directorate) v Jack Gibson (C2026/802).

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Carlos Tse

Carlos Tse is a graduate journalist writing for Accountants Daily, HR Leader, Lawyers Weekly.