Says student's 'disrespectful' behaviour provoked response
The Fair Work Commission (FWC) recently dealt with a case involving a worker who was dismissed for allegedly hitting a client with a racquet and threatening them.
The worker, who was a tennis coach, disputed these claims, arguing that the club's investigation was unfair and he had been provoked by the student's disrespectful behaviour.
He also claimed that the club had failed to support him despite previous reports of student misbehaviour.
The worker, a senior tennis coach, had been employed by the Royal South Yarra Lawn Tennis Club since April 2020 on a casual basis. The club, a not-for-profit organisation, provides tennis coaching for people of all ages and employs around 110 staff members.
On 19 February 2024, an incident occurred during a junior squad coaching session. The coach was alleged to have hit a student with his racquet and threatened them in an aggressive manner after the student spat water in the coach's face. This incident led to an investigation and ultimately resulted in the coach's dismissal on 14 March 2024.
The coach denied the allegations and claimed that the club did not conduct a fair or impartial investigation. He applied to the FWC for an unfair dismissal remedy on 21 March 2024.
The FWC heard evidence from multiple witnesses, including three students under the age of 18, another coach present during the incident, and several club officials. The Commission examined the events of 19 February, where a playful water-spitting incident escalated into a more serious confrontation.
The Commission found that while the coach may not have intentionally hit the student, he did make contact with the student's side/hip using his racquet.
The FWC said: "I find that, while he may not have intentionally hit [the student], [the worker] did hit [the student] with his racquet on the side/hip."
The Commission also determined that the coach had threatened the student in an aggressive manner following the incident. This conclusion was based on the consistent testimonies of the young witnesses and the other coach present.
The coach argued that the student's behaviour had been disrespectful and that he had previously reported such issues to club management without receiving support.
He said that the student's behaviour provoked his response. The FWC accepted that the student likely was disrespectful, used bad language, and misbehaved during training sessions.
However, the FWC said that as an experienced coach working with minors, he should have been aware of his obligations regarding children's welfare and safety.
The FWC said: "I am of the view that, even if [the worker] was not specifically trained on the Code, he would have or should have as a senior coach working with children been aware of his obligations around children's welfare and safety, and should have conducted himself appropriately, even when provoked."
The club's investigation process was examined during the hearing. The FWC noted that while overall the procedure was fair, the initial notification of the investigation could have been more formal given the seriousness of the allegations.
The coach also challenged the fairness of the club's investigation, particularly the fact that he was not allowed to face his accusers directly.
The FWC clarified that there is no procedural fairness requirement for an employer to allow an employee to question or cross-examine witnesses during its own investigation.
Ultimately, the FWC dismissed the coach's application, finding that his dismissal was not harsh, unjust, or unreasonable.
The Commission said:
"Despite the harshness to [the worker] personally and professionally, I am not satisfied that [the employer's] dismissal of [the worker] was harsh, unjust or unreasonable when considering each of the matters in section 387 of the Act."
The FWC also said: "I have found the misconduct occurred and was serious enough that when all of the relevant factors are weighed against the others and taken into account, the dismissal was warranted and not harsh, unjust or unreasonable within the meaning of the Act."`
The case also points out that even if an employee is provoked, they are still expected to behave professionally, especially when working with children.
As the FWC said: "Ultimately, [the worker] is the adult and is required to behave better than the young people around him, irrespective of the degree of provocation."
This case emphasises the importance of proper training for staff working with children and the need for clear communication channels for reporting and addressing behavioural issues.
