Should an employee follow professional boundaries after termination?
The Western Australian Industrial Relations Commission (WAIRC) recently dealt with a case involving a teacher who was dismissed during her probationary period and subsequently filed an unfair dismissal claim.
The teacher argued that she was unfairly dismissed after just over four months on the job, denying allegations of inappropriate conduct with students. She claimed that the school had failed to properly investigate the incidents and that her termination was harsh and unjust.
However, the case took a turn when evidence emerged of the teacher's communications with a former student after her dismissal. This led to a heated debate about professional boundaries, the nature of these communications, and their potential impact on the unfair dismissal claim.
The worker, a teacher at Kalgoorlie-Boulder Community High School, was dismissed after just over four months on the job, during her probationary period. Her job started on 30 January 2023 and ended on 8 June 2023.
The employer said they were worried about her suitability for the role of a teacher, because of several incidents involving claims of inappropriate physical contact with students, misuse of social media, and failure to maintain proper boundaries with students.
These incidents happened between 1 February 2023 and 3 March 2023. The employer had talked to the worker about these issues at the school. In a letter dated 17 May 2023, the employer told the worker that she wasn't suitable for the role of a teacher, hadn't successfully finished her probationary period, and would be dismissed with four weeks' notice.
After she was dismissed, on 13 June 2023, the worker filed an unfair dismissal claim with the WAIRC. The latter then received evidence showing text messages between the worker and a former student after the dismissal.
On 15 December 2023, the employer asked the WAIRC to dismiss the worker's unfair dismissal claim. They said the worker had "acted improperly towards at least one potential witness, and possibly other potential witnesses, all of whom are children and former students."
The evidence shown to the WAIRC included text messages between the worker and a 13-year-old former student, called Student SD. These messages were sent on 15 and 16 September 2023, several months after the worker was dismissed.
In these text messages, the worker said several concerning things, including:
The WAIRC found these messages to be "intimidatory and harassing".
The worker tried to defend her actions, saying that the communication with the former student was positive and not intimidating. She said:
"And it was like a good communication between two people. And, ah, in the end of the day I was the one who feel sad about the whole situation and she gave me comfort. I didn't expect that, miss. And she apologising. She acknowledging the harassment and for me it's enough. And there is no intimidation."
The worker also claimed that Student SD was "an intelligent young adult and brave so she could not be intimidated." She argued that the communication went smoothly and was respectful on both sides, and that Student SD was comfortable talking with her.
However, the WAIRC found that this defence showed the worker didn't understand the seriousness of her actions. The WAIRC stressed that the worker's personal view of whether her messages were intimidating didn't matter when looking at their actual impact.
The WAIRC looked at several policy documents that explain the proper boundaries between teachers and students, including guidelines on using social media. These policies clearly say that teachers should not communicate with students using social media or electronic communication for personal reasons.
For example, the Department of Education's policy on managing social media and electronic communication states:
"You must not communicate with students using social media or electronic communication in a personal context."
The Teacher Registration Board of Western Australia's guidelines on teacher-student professional boundaries also say:
"If teachers do receive requests on social media from students to be a 'friend' on their personal accounts, they must reject them. This is the case whether the students attend their school or any other school."
In the end, the WAIRC decided to dismiss the worker's unfair dismissal claim. The Commissioner said:
"I am satisfied that the text messages [the worker] sent to [Student SD] on 15 and 16 September 2023 had the capacity, tendency or potential to interfere with the administration of justice and therefore [the worker] engaged in misconduct in relation to her unfair dismissal application."
The WAIRC further explained its reasoning:
"Considering [the worker] was stood down after five weeks in the job and dismissed within the probationary period, I do not consider it consistent with equity, good conscience or the substantial merits of the case, nor the interests of the parties and of the community as a whole in seeking redress through the Commission, to allow [the worker] to proceed with her unfair dismissal application."
