The school also questioned the teacher's going to Bali while on sick leave
The Federal Court has ordered to proceed to trial the case of a teacher who was terminated for sending an inappropriate email about a colleague and for taking a trip to Bali while on sick leave.
In Kosiek v Marist School Australia Ltd [2023] FCA 1049, Stanislaw Kosiek was employed by Marist School as a secondary school science teacher. He held the position for approximately 22 years until the school terminated his employment in August. A dispute between Kosiek and the school arose from an email that Kosiek intended to send only to his union representative. Instead, Kosiek inadvertently selected the "reply all" email function, resulting in many recipients.
In this email, Kosiek made inappropriate comments about the head of information technology at the school. The school's head of college, Michael Newman, said the email may have amounted to bullying and breached the school's code of conduct and employee privacy. Furthermore, Newman believed that the email inferred that the IT staff were doing well, but management was not.
Following this incident, Kosiek withdrew his offending comments in a subsequent email and met with Newman. During this meeting, Kosiek was informed that he was being stood down from his position and was given a deadline to respond to a letter from his employer regarding the incident.
In response, Kosiek sent an email to the human resource director at the college, offering an apology to the IT head subject of his earlier inappropriate comments. However, his apology was not forwarded to the IT head.
Subsequently, there were multiple exchanges of correspondence involving Kosiek, his lawyers, and the school's representatives. The applicant strongly contested the allegations against him, particularly the accusation that he had breached obligations related to child safety, which he deemed highly improper and inflammatory.
A college representative conveyed that they did not consider Newman's actions as adverse action or bullying under the Fair Work Act. The college asserted that Kosiek's actions had violated the school's code of conduct but did not constitute bullying. They were primarily concerned with the tone of his email.
Marist school eventually proposed issuing a first and final warning to Kosiek, outlining conditions for his return to work. This was discussed in a meeting with Kosiek and his wife, attended by the regional director of Marist Schools and the deputy head of the college.
After the meeting, Kosiek wrote to the school's regional director, stating that he remained concerned that the allegation by Michael Newman relating to child protection and safety would sit on Kosiek's record, with no justification for that allegation being included.
In the correspondence, Kosiek wrote, "I note that you both advised that the allegation relating to Child Protection and Safety 'was a mistake'. I am not sure how Michael Newman could 'mistakenly' make such a serious allegation, but I will leave that for him to explain.
Ultimately, the applicant announced his intention to return to work and initiate proceedings in the Fair Work Commission against Newman and the college. This led to further emails and meetings between the parties.
Finally, in August, the applicant's employment was terminated due to a series of concerns, including his trip to Bali during a sick leave period, failure to comply with a lawful and reasonable direction regarding an apology to the IT head, and a pattern of conduct that did not align with the college's policies and values. The termination letter cited breaches of the employment contract, which required the applicant to participate in performance and conduct reviews or investigations conducted by the employer.
Throughout this timeline, the applicant consistently contested the allegations against him and sought legal and union advice. At the same time, the college and its representatives maintained that their actions followed their policies and obligations. The termination marked the culmination of a protracted dispute between the parties.
The case reached the Federal Court, which ultimately ordered the case to proceed to trial with Kosiek seeking re-employment, compensation and penalties.
The court noted that s. 340 of the Fair Work Act provides protection against adverse actions taken by a person against another person who has a workplace right, exercises a workplace right, or proposes to do so. It also covers adverse actions aimed at preventing the exercise of a workplace right.
The term "workplace right" is defined in s. 341 of the Fair Work Act, encompassing various situations where a person is entitled to benefits, roles, or responsibilities under workplace laws, instruments, or orders.
The focus of Kosiek's action is the termination of his employment. He argued that the reason for the adverse action was that he validly exercised a workplace right, namely, that he took a sick leave.
The court noted that the evidence demonstrated that at all times, Kosiek had been completely honest concerning the basis on which he wished to travel to Bali during his sick leave, including that his attending medical practitioner had endorsed that travel as a benefit to his health. The court found a serious question to be tried regarding this issue.
Furthermore, the court did not accept the school's argument that his employment contract circumscribes Kosiek's right to make a complaint or inquiry. The court was satisfied that there was a serious question to be tried that the termination of his employment was because he exercised a right to complain about his supervisor, Michael Newman.
Ultimately, the court ordered the dismissal of Kosiek's claim for declaratory relief and further ordered that the substantive issues be heard in a trial.
