Nothing new in fair warnings memo

Joan Lemaire
Senior Vice President

The Fair warnings for minor, repeated misconduct memorandum issued by the Department of Education and Communities on September 17 does not give principals any new or additional powers.

Principals have always had the authority to give lawful directions. Similarly the Director-General or nominee has always had the power to give principals lawful directions. The ability of an employer to issue lawful directions applies to the public and private sector and has existed for many years.

For decades the salaries award has included a clause “Duties as Directed” which states that the “Director-General or delegate, nominee or representative may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training” and that any directions under this clause “shall be consistent with the Director General’s responsibility to provide a safe and healthy working environment”.

There have been many cases pursued in industrial jurisdictions as to whether directions are lawful. These cases have demonstrated that an employee cannot be directed to act unlawfully or to act in a way which exposes the employee to a high risk of injury or illness.

The Department’s Code of Conduct also defines lawful direction in similar terms as “a direction which falls within the scope of the job description, involves no illegality and which is reasonable”. The issue of whether the direction is reasonable is important. Rather than being misconduct, the teacher may have reasons on particular occasions for arriving late to class, being unable to do playground duty or failing to submit work. These reasons could include the teacher being ill or injured, having sick children, or other family responsibilities and concerns. This is acknowledged in the “Fair warnings for minor, repeated conduct” memorandum where it states that principals should meet with the teacher “as sometimes there may be a reasonable contributing factor”.

The memorandum also describes a three step process where a principal may issue written directions. At each step of this process the reasonableness of the direction would have to be considered, and the employee should expect procedural fairness. If the matter is referred to Employee Performance and Conduct Directorate, it would have to be investigated. The outcome of the investigation could result in a range of disciplinary actions and again the teacher would be able to make a case for his or her actions.

Any teacher or principal issued with a direction or warning should seek advice from their Federation Organiser prior to responding. The provisions set out in the memorandum are not new, nor do they provide additional powers.