s.394 - Unfair dismissal

Unfair dismissal application - forceful slap of student - application dismissed

• [1] Jillian McLoghlin has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Ms McLoghlin was dismissed from her job as a science laboratory technician at St Columba's College Ltd (College) for misconduct that included forcefully slapping the hand of a student during class. Ms McLoghlin admits that she slapped the student's hand but says that dismissal was a disproportionate response to her conduct and that the process adopted by the College in relation to her dismissal was unfair. She seeks compensation.

• [2] Ms McLoghlin gave evidence that on 27 August 2024, towards the end of a biology dissection lesson, she slapped a student's hand. The student (Student A) was packing up a plastic board to which a scalpel, scissors and forceps were attached. Ms McLoghlin said that the slap was a reflex action that she took in order to prevent Student A from hurting herself on the scalpel. She said that contrary to what the College later alleged, she was not arguing with Student A at the time. Ms McLoghlin said that she was very upset about the incident and that after the class she went home. Later that day, she spoke with the principal, Rita Grima, who told her that she had received a report about the incident, as well as a video recording from a laptop, and that the video was damning. Ms Grima directed her to remain at home on full pay.

• [3] Ms McLoghlin said that on 28 August 2024, Ms Grima called her and confirmed that the incident was reportable conduct, and that the proper authorities would have to be informed. Ms Grima spoke to her again on 2 September 2024, and told her that the parents of Student A were unhappy, and that the matter was serious. She also said that the school was considering a further allegation against her in relation to verbal abuse of Student A.

• [4] On 11 September 2024, Ms Grima sent Ms McLoghlin a letter setting out 4 allegations about her conduct on 27 August 2024, namely: that she had been involved in a tense conversation with a group of students who were not following her instructions; that she had slapped Student A's hand; that she had continued to argue with Student A by getting close to her, in an aggressive manner; and that she had continued to raise her voice at and intimidate Student A. It was also alleged that this conduct had occurred in front of other students. The letter stated that the conduct was considered to be reportable, and that the College had notified the Commission for Children and Young People (CCYP). The letter further stated that the College would now follow the process set out in clause 13 of the Catholic Education Multi Enterprise Agreement 2022: Diocese of Ballarat, Diocese of Sandhurst, Archdiocese of Melbourne and Lavalla Catholic College Traralgon (Agreement), and that she was to attend a first meeting on 17 September 2024. Ms McLoghlin said that at this meeting, the acting principal, Ms McDonald, told her that the purpose of the meeting was to discuss the process, rather than the substance of the allegations against her, and that an investigator would be appointed. Ms McLoghlin said that she had wanted to ask questions about the allegations but was told by Ms McDonald that this was not the appropriate time to do so.

• [5] On 7 November 2024, Ms McLoghlin attended a meeting with the external investigator who had been appointed by the College. Ms McLoghlin said that it was only at this time that she was given an opportunity to respond to the allegations against her.

• [6] On 29 January 2025, Ms Grima wrote to Ms McLoghlin, stating that she considered the allegations to be substantiated, that she was proposing to terminate her employment, and that Ms McLoghlin was to attend a meeting to discuss her response. At a meeting on 4 February 2025, Ms McLoghlin raised various matters in her defence, including: that she had not received training on dealing with unruly behaviour; that if she had received such training, she would have been able to walk away from the situation on 27 August 2024; that the College had not considered her poor state of mind at the time of the incident, or her 16 years of good service; that the College had relied unfairly on a video of the incident that was taken without her permission; that the College had ulterior motives for wanting to dismiss her; and that the College had not followed the procedure in clause 13 of the Agreement, in particular by not discussing the allegations with her prior to the first meeting.

• [7] On 14 February 2025, Ms McLoghlin received a letter from Ms Grima stating that she had considered the matters that Ms McLoghlin had raised at the meeting on 4 February 2025, that she believed the College had complied with clause 13 of the Agreement and conducted a fair process, and that in light of the seriousness of the substantiated allegations, her employment was terminated with effect from 17 February 2025. She was paid 5 weeks in lieu of notice.

• [8] Ms McLoghlin said that the decision of the College to dismiss her was disproportionate to her conduct, and that the process adopted by the school was unfair, including because she was not informed of the allegations until 11 September 2024 even though they had been formulated a week earlier, and because the College had failed to comply with the requirement of the Child Wellbeing and Safety Act 2005 (Vic) (CWS Act) to report the conduct within 3 days. Ms McLoghlin said that it was also unfair that she had to wait until 7 November 2024 to have a chance to discuss the allegations, as clause 13.2 of the Agreement required any concerns to be discussed at the first meeting. In addition, Ms McLoghlin said that she had requested a copy of a report made by the teacher who had been conducting the biology lesson on the day of the incident, Liliana Condello, as well as copies of statements given to the College by students, but these documents were not provided to her. She said that it was inappropriate for Ms Grima to view a video recording of the incident, as this was contrary to school policy, which states that students cannot share images without the consent of those concerned, and that she had not consented to being videoed. She also said that it was only in late October that she was given access to the video.

• [9] Ms McLoghlin said that the video did not tell the whole story of what occurred on 27 August 2024, because the footage commenced only shortly before the slap and did not show what had happened beforehand. She said that a number of students had been misbehaving and had not paid attention to Ms Condello when she explained to them how to pack up. She said that Student A and another student had been flicking pieces of a bull's eye at each other and that she had told them to stop. She said that the students had ignored Ms Condello's instruction to respect the eyes that were being used in dissection, and that they did not know how to pack up properly because they had not been listening. Ms McLoghlin said that she was cross.

• [10] Ms McLoghlin maintained her view that the College had an ulterior motive for her dismissal which was to save money.

• [11] Ms Grima gave evidence that the College has in place a policy called the Child Safe Code of Conduct (Code) which specifically prohibits staff from using physical means or corporal punishment to discipline or control students. She said that Ms McLoghlin had been trained on the Code as recently as February 2024 and as an employee of the College she was required to comply with it. Ms Grima said that pursuant to the CWS Act, the College was obligated to notify the CCYP if there is an allegation of reportable conduct made against any of its employees, and that reportable conduct includes physical abuse. The Code is responsive to the College's obligations under the CWS Act.

• [12] Ms Grima's evidence was that on 27 August 2024, she was told that Ms McLoghlin had forcefully slapped the hand of a fifteen year old student during a year 9 science class. She was provided with video footage of the incident, in which Ms McLoghlin could be seen slapping the student and arguing with her. Ms Grima said that she sought external advice about what to do next. On 4 September 2024, she disclosed the incident to the CCYP, and advised Ms McLoghlin that she was suspended on pay pending the result of an investigation. On 17 September 2024, Ms McLoghlin attended a first meeting with the acting principal, as Ms Grima was away. An external investigator was appointed on 3 October 2024. Ms McLoghlin met with the investigator on 7 November 2024. The investigator's report was received on 20 January 2025. It concluded that Ms McLoghlin had been physically violent towards Student A, and that this had occurred in the presence of other students.

• [13] Ms Grima said that she believed Ms McLoghlin had crossed a line and that her conduct was completely unacceptable. At a meeting on 4 February 2025, she told Ms McLoghlin that the College was proposing to dismiss her. Ms McLoghlin raised a number of matters in her defence, including that it was unfair for the College to use the video against her, and that she believed the College had an ulterior motive for wanting to dismiss her. Ms Grima's evidence was that the College had no ulterior motive, and that Ms McLoghlin's role still exists. As to the use of the video, Ms Grima's evidence was that the school's Student Digital Citizenship Policy governs the use of electronic devices by students and allows the use of video recordings in class by students if it is an approved lesson. She said that Ms McLoghlin's concern about the use of the video was misplaced as the College would have made the same report to the CCYP even if there had been no video. Ms Grima also said that she did not believe that Ms McLoghlin understood the seriousness of her conduct or its potential consequences for Student A, as during the meeting with her on 4 February 2025 she had referred to the matter as 'one little incident' and something 'trivial'.

• [14] Ms Grima said that after the incident, Ms McLoghlin had initially suggested that she slapped Student A's hand because she was concerned that the plastic board she was holding might snap as she folded it, and that this could cause an injury; whereas later she said that her safety concern related to the scalpel attached to the board. Ms Grima said that in any event, she did not consider that there was any risk to the safety of the student that required Ms McLoghlin to intervene by slapping her.

• [15] Ms Grima said that due to the seriousness of Ms McLoghlin's conduct, she determined that the appropriate response was to terminate her employment on five weeks' notice, which would be paid out to her. She said that the College had clear and stringent child safety obligations which Ms McLoghlin had breached, and that she considered Ms McLoghlin's ongoing employment with the College to be untenable.

• [16] I make the following findings. First, it is clear from the video of the incident that Ms McLoghlin slapped the hand of Student A. The student can be seen folding some materials in two, and as she does so, Ms McLoghlin turns to her and slaps her hand. A loud smack can be heard. The student then recoils, and says, 'Oh my God'. The slap was forceful.

• [17] Secondly, I find that Ms McLoghlin did not slap the student with the intention of protecting her. It does not make sense that slapping the student's hand would prevent her from cutting herself on a scalpel. There is nothing in the video that is suggestive of there being any safety risk to the student, other than Ms McLoghlin's slap. Further, the notion that Ms McLoghlin was trying to protect Student A is inconsistent with Ms McLoghlin's statement that, if she had been trained on dealing with unruly behaviour, she would have been able to walk away from the situation. As Ms McLoghlin acknowledged in her oral evidence, she was cross with the students. They had not listened to the teacher's instructions about how to pack up. They had ignored her direction to be respectful. They had 'desecrated' a bull's eye. And then Student A began packing up incorrectly. I find that the reason for which Ms McLoghlin slapped Student A's hand was that she was cross with her. It had nothing to do with safety.

• [18] Thirdly, I find that the slap was entirely unwarranted. In this day and age, it is difficult to imagine situations in which it would be appropriate for a teacher or a school assistant to slap the hand of a student, but if there are any such situations, this was not one of them. Ms McLoghlin's conduct was contrary to the Code, on which Ms McLoghlin had been trained. Ms McLoghlin was bound by her contract of employment to comply with school policies, including the Code.

• [19] Fourthly, I find that the video is inconclusive as to whether Ms McLoghlin argued aggressively with Student A, or raised her voice or intimidated Student A. It is also not clear whether there was a 'tense conversation' with the group of students, or whether the conversation was inappropriate. Based on the evidence before the Commission, I find these other allegations to be unsubstantiated. However, the last allegation, that the slap occurred in front of other students, is substantiated.

• [20] Fifthly, I find that the College had no ulterior motive for the dismissal. The motivation for the dismissal was obvious. It was Ms McLoghlin's conduct on 27 August 2024. I accept Ms Grima's evidence that Ms McLoghlin's position is still required. It is fanciful to suggest that the College dismissed Ms McLoghlin in order to save money.

• [21] In my view there is no reason why the College should not have made use of the video recording in its investigation of Ms McLoghlin's conduct. Ms Grima said that she did not know who had made the video but it seems likely that it was a student. The school's policy that governs electronic devices in class applies to students. It does not prevent the College's use of video recordings for disciplinary purposes. I note that the recording was not prohibited by the Surveillance Devices Act 1999 (Vic) because the relevant circumstances were not private ones (see ss 11(1) and s 3). More generally, I consider that it was not inappropriate for the College to use the recording in this case because it constituted evidence of misconduct by a staff member towards a student. Similarly, it is appropriate for the Commission to have regard to the video in these proceedings because of its forensic value. I find that there is no prejudice to Ms McLoghlin associated with the use of the video; although she said that the video had not told the whole story, she was able to give evidence of that story, and in particular about what was occurring prior to the start of the recording.

• [22] I find that the College complied with clause 13 of the Agreement, including clause 13.2(a), which states that an employer that has a concern about an employee 'shall, in the first instance, hold discussions' about the concerns, 'or take every reasonable step to do so'. Ms McLoghlin said that clause 13.2(a) required her to be able to ask questions and put her side of the story at the meeting with Ms McDonald, because the 'concerns' in this case were the specific allegations that had been put to her in the letter of 14 September 2024. But 'concerns' is a more general concept than 'allegations'. As required by clause 13, the College held discussions with Ms McLoghlin about its concerns both when Ms Grima first spoke to her about the incident on the telephone, and at the meeting with Ms McDonald, during which there was a discussion about the process that would be adopted to investigate the concerns. But even if there had been some technical non-compliance with clause 13, this would not have altered my conclusion in this matter. Ms McLoghlin was ultimately able to ask her questions and raise her own concerns with the College, and to give her own full account of events.

• [23] Based on my findings above, I conclude that the College had a valid reason to dismiss Ms McLoghlin related to her conduct (s 387(a)). She was notified of this reason and had an opportunity to respond to it (s 387(b) and (c)). She was not unreasonably refused a support person at discussions relating to dismissal (s 387(d)). Her dismissal did not relate to performance, accordingly the consideration in s 387(e) (warnings for poor performance) is not relevant. The College is not a small employer, and therefore in my view the matters in ss 387(f) and (g) carry no weight.

• [24] As to s 387(h), I take into account the various personal and other considerations referred to by Ms McLoghlin. I note in particular that Ms McLoghlin had 16 years of service and had a good record, with no previous history of disciplinary issues. Nevertheless, the forceful slapping of a student is a serious matter. I note that Ms McLoghlin said that she was remorseful. But at the same time, she maintains that she was trying to protect Student A, when clearly this was not the case. I consider that she has not accepted full responsibility for her conduct. This is also evident from the fact that she seeks to ascribe some of the blame for her conduct to a lack of training from the College on how to deal with unruly students. But one does not need such training to know that it is impermissible to slap a student. And Ms McLoghlin had been trained on the Code. Further, I consider that Ms McLoghlin does not fully accept the seriousness of her conduct. She told Ms Grima that the incident had been something trivial, and 'one little incident'. And in her written materials to the Commission, she said that an extenuating circumstance was the 'scale of violence in relation to the significance of safety'. But in fact, the scale of the violence was a forceful slap, and the safety motive did not exist.

• [25] I note Ms McLoghlin's evidence that she was in a poor state of mind at the time of the incident because of the recent deaths of friends. I take account of the process adopted by the College to investigate Ms McLoghlin's conduct, which was ultimately a fair one in my view, even if it took a rather long time to complete. Ms McLoghlin did not receive all of the documents that she asked for. But Ms Condello's report was irrelevant: she did not witness the slap, and Ms Grima said that she did not rely on the report. Further, Ms McLoghlin later read the student statements. She does not contend that they assist her case. Finally, whether the College met the statutory timeframes to report relevant matters to the CCYP is not a matter that affected the fairness of the College's process vis-à-vis Ms McLoghlin. Moreover, it stands to reason that the College would want to make sure that there was a solid foundation for reporting her conduct to the CCYP, a point that was noted by the CCYP itself in correspondence to Ms McLoghlin.

• [26] I accept that Ms McLoghlin is sorry for what occurred, and note that she wanted to apologise to Student A but was told by the College not to contact her. But I also consider that Ms McLoghlin lacks insight into the seriousness of the incident and has not accepted full responsibility for it. In my assessment, the decision of the College to terminate Ms McLoghlin's employment by paying 5 weeks' salary in lieu of notice was proportionate.

• [27] Taking all of these matters into account, I conclude that the dismissal was not harsh, unjust or unreasonable, and was therefore not unfair. The application is dismissed.

• [28] Finally, had I found the dismissal to be unfair, I would have been required to assess compensation taking into account the matters in s 392, including Ms McLoghlin's failure to mitigate her loss (she has not applied for any jobs since her dismissal), and that compensation must be reduced by an appropriate amount on account of misconduct (ss 392(2)(d) and (3)). If any compensation had been ordered, it would likely have been minimal.

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