Beyond a principal’s multifaceted role of leading the management of the school, engaging with the community, and driving improvement in teaching and learning, they must also navigate the intricate waters of employment and industrial relations. This added dimension to their role further complicates an already demanding job, as they balance educational objectives with the nuanced demands of workforce management.
Mastery in this area is not just about effective human resource management, but a safeguard against potential legal pitfalls that can arise from missteps. Indeed, one minor oversight can potentially snowball into a major legal headache, putting yet another pressing task on a principal’s ‘to do’ list.
Below, The Educator speaks to Paul O'Halloran, Partner and Head of Office at Dentons Law Firm to unravel the complexities of employment and industrial relations in schools, highlighting how a slip in this area can lead to serious legal issues, and what can be done to mitigate the risks.
TE: Drawing from your experience, what are the most common legal pitfalls that Australian schools face in employment contracts, and how can they be avoided?
The main issue I see with employment contracts in schools is a complete failure to update them as staff are promoted over the years. In some cases, when a teacher is dismissed, the employment contract I am sent from the school dates from the 1980s! The employment relationship is fluid. If an employee’s duties, position or level of responsibility has changed profoundly over time, the original contract may have been replaced by subsequent changes. This means notice of termination provisions in the old contract may be unenforceable giving rise to reasonable notice contractual claims by dismissed staff. Schools should issue new contracts if there have been profound changes to an employee’s terms and conditions of employment to avoid these sorts of legal risks.
TE: How should school leaders effectively handle cases of employee misconduct or performance issues while adhering to IR laws?
Most schools will have enterprise agreements which contain disciplinary clauses. These clauses should be followed if a disciplinary process is being conducted. Having said that, I won a case a few years ago for a school where there was a complete failure by the school to provide the necessary procedural fairness under the enterprise agreement, because the gravity of the sexual misconduct of the teacher towards a student outweighed the importance of procedural fairness (see, Parris v St Kevin’s College [2021] FWC 2341). Sometimes, getting a staff member out of the school swiftly on the grounds of child safety is more important than anything else, but these cases will be rare and any departure from the terms of an enterprise agreement will involve risk.
In most other cases, I strongly encourage schools to seek legal advice and use carefully crafted “without prejudice” strategies to negotiate the efficient exit of staff who are underperforming or engaging in repeated misconduct. I’ve had a 90% success rate in using these strategies with schools. While somewhat robust in nature, they avoid disputation and litigation, but legal advice is essential to ensure schools are acting lawfully in such circumstances.
TE: In terms of compliance, what key aspects of IR law do schools often overlook or misunderstand?
The absence of consultation with staff and the avoidance of difficult conversations, in my experience, leads to the compounding of underperformance or misconduct in schools until ultimately an IR issue reaches boiling point. Principals and HR professionals in schools must be ready, willing and able to have challenging conversations with staff with sensitivity and back them up with industrial consequences. Schools, particularly those with a faith overlay, sometimes prioritise pastoral approaches to employee relations issues over a more robust industrial solution. This rarely solves the underlying problem.
I think the other area where we see a lot of disputation in schools is adverse action. The failure of schools, and employers in general, to record the lawful and objective reasons, contemporaneously, relating to why they are taking some form of action against an employee, continues to come up as a blind spot when attempting to defend adverse action claims made against schools.
TE: Could you provide some insight on how principals can foster a legally compliant, yet supportive and inclusive workplace culture as the new school year approaches?
A high performance culture in any school requires an engaged workforce willing to go on the strategic journey with the Principal and executive and an acceptance of a student focussed outlook. Schools are full of highly intelligent, industrially informed and opinionated staff. Managing a large workforce in a school is one of the most difficult jobs that exists. Ultimately however, Principals needs to plot the journey and take staff to the destination. There will be staff who are either not suitable, or not willing, to go on that journey. I would encourage Principals to identify the small minority of negative and disobedient employees and in conjunction with appropriate advice, devise an industrial strategy for those individuals whose aspirations don’t lie with the ongoing success of the school.