SPOTLIGHT: Case Study – Unfair Dismissal

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Is children escaping the service reason enough to terminate the staff member who was in charge of supervising?

The answer may surprise you.

Last year, a teacher was dismissed after children escaped from a kindergarten near Geelong.

The incident which prompted the dismissal occurred three days prior when two young children escaped from the kindergarten without detection and walked down the street to a nearby primary school. The 4-year olds managed to escape by opening two doors with the aid of chairs and then by climbing a fence to unlock a “child-proof” gate.

The teacher in question was a nominated supervisor at the time and was dismissed from her employment for:


  • demonstrating a lack of adequate supervision;
  • breaching the duty of care and responsibilities of an early childhood educator and nominated supervisor;
  • failing to show remorse and accept responsibility.


The teacher made an unfair dismissal application.

The Fair Work Commission found that the failure of the teacher to properly supervise the children and allow them to not only escape the kindergarten, but to also allow the disappearance to go unnoticed, was a valid reason for dismissal.

However, the Fair Work Commission also found that the dismissal was harsh, as the company had failed to consider the teacher’s 39-year employment in the role in which time her record was unblemished. The Fair Work Commission stated that the financial consequences to the teacher far outweighed the valid reason for the breach and that the kindergarten had shown some clear deficiencies in their investigation process with regard to the issue.

Together, these two conclusions resulted in the Fair Work Commission finding in favour of the teacher and stressed the importance of employers taking into account their employees career history and also the need for a careful investigation process.


To find out more about managing poor performance and termination check out our Hiring, Firing and Everything in Between workshops.