In addition to the multi-faceted role of a headteacher in leading the management of the school, engaging with the community and driving improvements in teaching and learning, they must also navigate the complex waters of employment and industrial relations. This added dimension to their role further complicates an already challenging job, as they balance educational objectives with the nuanced demands of workforce management.
Mastery in this area is not only about effective people management, but also a safeguard against the potential legal pitfalls that can result from missteps. Indeed, a minor oversight can potentially snowball into a major legal headache, adding yet another pressing task to a director’s to-do list.
Below, The Educator speaks to Paul O’Halloran, partner and head of office at law firm Dentons, to unravel the complexities of employment and industrial relations in schools, highlighting how a slip in this area can lead to serious legal problems and what can be done to mitigate the risks.
The main problem 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 made redundant, the contract sent to me by the school is from the 1980s! Employment relationships are fluid. If an employee’s duties, position or level of responsibility has changed significantly over time, the original contract may have been superseded by subsequent changes. This means that notice provisions in the old contract may be unenforceable, giving rise to contractual claims for reasonable notice by dismissed staff. Schools should issue new contracts where there have been substantial changes to an employee’s terms and conditions to avoid this type of legal risk.
Most schools will have enterprise agreements containing disciplinary clauses. These clauses should be followed if disciplinary action is taken. Having said that, I won a case for a school a few years ago where the school had completely failed to provide the necessary procedural fairness under the enterprise agreement because the seriousness of the teacher’s sexual misconduct with a pupil outweighed the importance of procedural fairness (see Parris v St Kevin’s College [2021] FWC 2341). Sometimes it is more important to get a member of staff out of the school quickly for the safety of the children, but these cases will be rare and any departure from the terms of an enterprise agreement will be risky.
In most other cases, I strongly encourage schools to seek legal advice and to use carefully crafted ‘no prejudice’ strategies to negotiate the effective exit of staff who are underperforming or who have repeatedly misbehaved. I’ve had a 90% success rate in using these strategies with schools. Although they are somewhat robust in nature, they avoid disputes and litigation, but legal advice is essential to ensure that schools act lawfully in such circumstances.
The lack of consultation with staff and the avoidance of difficult conversations, in my experience, tends to exacerbate underperformance or misconduct in schools until an IR issue reaches boiling point. Headteachers and HR professionals in schools need to be ready, willing and able to have difficult conversations with staff with sensitivity and back them up with industrial action. 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 contention in schools is around adverse action. The failure of schools, and employers in general, to contemporaneously record the lawful and objective reasons why they are taking some form of action against an employee continues to emerge as a blind spot when trying to defend adverse action claims against schools.
A high performance culture in any school requires an engaged workforce that is willing to share the strategic journey with the headteacher and senior management, and an acceptance of a pupil-focused perspective. 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 there is. Ultimately, however, the headteacher has to plan the journey and get the staff to the destination. There will be staff who are either unfit or unwilling to make the journey. I would encourage headteachers to identify the small minority of negative and recalcitrant staff and, in conjunction with appropriate counselling, to develop an industrial strategy for those individuals whose aspirations don’t lie in the continued success of the school.