Employers warned to make policies clear as teacher wins $17,000 of compensation in swearing case

A teacher sacked for delivering a lesson on the various ways the ‘f’ word can be used in a sentence has been awarded almost $17,000 after Fair Work Australia ruled that his sacking was harsh, unjust or unreasonable.

Mercury Colleges of Sydney has been ordered to pay Luke Webster $16,874.36 after failing to give him an opportunity to respond to the school’s conclusion that he had behaved inappropriately or engaged in gross misconduct, and the finding the teacher’s conduct did not justify summary termination.

FWA also found the sacking to be harsh given Webster was forced to leave the country when his employment was terminated.

Webster, a teacher of adult students whose first language was not English, was sacked in November 2009, and then had to leave Australia within 28 days of termination of his employment as a term of his s457 sponsorship. He returned to Great Britain and has since started a master’s degree.

Senior deputy president Lea Drake said she had concluded that there was “no matter of misconduct on Mr Webster’s account that would cause me to reduce the amount of compensation payable.”

“On the contrary the conduct of the Principal of the College in terminating Mr Webster’s employment with no notice, no investigation and no application of the principles of fairness would advocate for the opposite approach,” Drake said.

Industrial relations lawyer and adviser Peter Vitale says the way in which the company went about terminating Webster’s employment was the real issue.

“Because they were found to have not given him a reasonable opportunity to respond and explain why he thought it was appropriate as part of the curriculum,” Vitale says.

“I think the subtext here is that a warning in the view of the tribunal would have been a more appropriate measure. The other consideration was the whole situation with him being a visa holder contributed to it being harsh.”

“And I think part of the problem was the college hadn’t made it clear that that conduct wasn’t acceptable.”

One takeout, Vitale says, is making your policies clear to your employees if you intend to rely on them. “If you’re going to rely on a policy to take disciplinary measures, you need to make sure it’s well understood by employees.”

“Secondly, even though you might have a good reason for taking disciplinary action, that might not warrant termination.”

“Thirdly, you still have to follow procedural fairness.”

“And fourthly, you need to understand that an employee’s personal circumstances might entitle them to a remedy.”

Simon Dewberry, Allens Arthur Robinson workplace relations partner, warns a lack of procedural fairness can undo an otherwise fair termination.

“You’ve got to give the employee an opportunity to give their version of events and also argue for a lesser punishment, and consider those alternatives,” Dewberry says.

He also notes that the employer did not position itself well by not fronting up to the hearing.

In a letter from then director of studies Andrew Waters, Webster was dismissed without notice after Waters heard that students in the upper intermediate class had received worksheets containing usage in every sentence of the ‘f’ word and asking the students to discuss the word’s different meanings and whether it was being used as a verb or a noun.

“Firstly, this is most certainly not within the curriculum being taught at this college and secondly it was highly offensive,” Waters wrote to Webster.

“This type of the material is neither applicable nor desirable in a professional work environment and the implications of teaching this to students, unthinkable, in terms of the impact it could have, their inappropriate usage posing a threat to their safety, is one example.”

“You are therefore dismissed forthwith, without notice, as this act represents gross misconduct and is not acceptable in this college or any workplace in Australia.”

But Webster told the FWA that the worksheet was “not designed to offend anyone, but purely for educational purposes, and does not constitute gross misconduct in any reasonable definition.”

He added that he was “never given an opportunity to explain my alleged actions” and “was dismissed before any communication had taken place with Mr Waters.”

Drake said that Webster’s average weekly gross wage while working for the College was $708.00, and it was “more likely than not that Mr Webster would have retained his position for six months from the date on which his employment was terminated.”

“I have concluded that the remuneration that Mr Webster would have received had he not been dismissed was $18,408.00 gross.”

Ambi Thind, chairman of The Education Group that runs Mercury Colleges, said in a statement that although it is “not happy about the amount of compensation awarded to Luke Webster, we accept the decision for unfair dismissal.”

“We have been judged on a technicality because we did the right thing wrongly.”

“We do not in any way endorse the learning of profanity at any of our colleges.”

“Language such as this can easily be learnt at the local pub over a jug of beer. We have students from many cultures and must be mindful of cultural sensitivities.”