Great escape sacking harsh on experienced teacher

Wednesday 13 January, 2016 | By: Darrell Giles | Tags: unfair dismissal, Fair Work Commission;

A serious workplace incident can leave an employer angry and frustrated and tempted to fire first and ask questions later.

But the Fair Work Commission has warned businesses to go through the proper process or risk an unfair dismissal decision.

The commission said employers need to establish a valid reason for termination, following a thorough investigation, and careful consideration of all background employment material.

In a recent case, the commission heard about a woman who had been employed as a kindergarten teacher for over 39 years at the same kindergarten in Victoria.

The Case:

On 11 June 2015, two of the children in her care, both aged 4 years, made a “great escape”.

One of the two boys got a chair from a nearby play table and placed it beside the playroom door, opening the door inwards. The other child then held the door open while the first child put the chair back at the nearby table. 

The boys then exited the foyer of the kindergarten using the same method they had used inside their playroom, replacing the chairs once the door was open.

The boys were then in an enclosed front yard. One child climbed the security fence and lifted the safety latch as the other child grabbed the gate, opening it further. 

The children then left the kindergarten and went down the street to a nearby, associated primary school. The children were located later that day.

Following an investigation of the incident, the teacher was issued with a termination letter from her employer on 14 July 2015.

The letter stated the kindergarten determined that a lack of ‘adequate supervision’ and a ‘breach of duty of care and responsibilities as an early childhood education teacher and nominated supervisor’ was a serious incident, resulting in her immediate termination.

The employer also claimed that the educator’s failure to show remorse and accept fault for the incident rather than blaming others was another contributing factor that led to her dismissal.

When determining if a dismissal is unfair, the commission will ask if there was a valid reason for the termination; and, if the decision to terminate based on that valid reason was a harsh, unjust or unreasonable decision.

The Verdict:

Commissioner John Ryan stated that a valid reason existed in this case; simply because for the two four-year-olds to escape meant that they were not being supervised.

How they got from a position where they were last seen, playing in a group of six looking for lizards at the back of the property, to a position where they got out of the kindergarten was completely unknown.

Although there were other adults present in the playroom, the teacher was the nominated supervisor, and the non-supervision of the children to such an extent that they were able to leave the kindergarten clearly provides a valid reason for the termination of employment.

Commissioner Ryan further agreed with the kindergarten that the teacher was constantly and consistently denying responsibility for the children’s escape. He stated that her ‘concepts of what are the requirements of adequate supervision may not be as well founded as they should be’.

However, despite finding a valid reason, Commissioner Ryan determined that the decision to terminate the woman was harsh considering the employee’s age, long length of service and unblemished employment history.

Commissioner Ryan stated that while the valid reason is a strong valid reason, he was also of the view that the harshness of the consequences for the personal economic situation of the teacher flowing from the termination is also a strong matter.

Together with some deficiencies in the investigatory process which were pointed out in the case, those factors which favour a finding of harshness outweigh the strength of the valid reason. Commissioner Ryan ruled in favour of the employee.

However, the commissioner exercised his right not to grant any remedy to the woman, given the finding that she had engaged in conduct which was a valid reason to terminate for serious misconduct.

Additionally, she was originally paid for a period of notice, which would not normally have been required for a termination of that nature.

Nilson v Geelong Kindergarten Association (GKA) [2015] FWC 7936 (15 December 2015)

CCIQ Viewpoint:

Making the decision to terminate an employee can be a really difficult one. Not only do you have to establish a valid reason through a sound investigation process, but the commission will also look at a wide range of factors when deciding if you have been harsh, unjust or unreasonable.

As seen in this case, the employee’s age, length of service, economic position, and employment history can be considered.

It is important that you align the valid reason for termination with the individual it applies to.

The CCIQ Employer Assistance Team can help you to conduct a fair process and determine if the crime fits the penalty. Contact us on 1300 731 988 or


DISCLAIMER: This document is an information source only. Despite our best efforts, CCIQ makes no statements, representations or warranties about the accuracy or completeness of the information and disclaims responsibility for all liability for all loss or damage you might incur as a result of the information being inaccurate or incomplete in any way, and for any reason. The information contained in this document is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.


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