A Paper presented to Christian Schools Australia (Queensland) Industrial Relations Conference on 20 February 2009 regarding managing workplace relations.
Managing workplace relations has become increasingly complex for employers. Particularly with the rise of litigation and increasing statutory burdens imposed on employers by Anti-Discrimination legislation, the management of employee relations and responding to concerns about employee conduct has become a legal minefield for employers.
Perhaps some of you might prefer the days of 1697, when it comes to managing employees. The Chief Justice of an English Court gave employers a much wider ambit than Courts do now, when he commented as follows:8 May 2014;
“If a master give correction to his servant, it ought to be with a proper instrument, as a cudgel, and then if by accident a blow gives death, this would be but manslaughter. The same law of a school master. But a sword is not a proper instrument for correction, and the cruelty of the cut will make a malice implied.”
Of course, adopting this approach may see your school, and you personally, in serious trouble, and we do not recommend it.
This morning, I want to discuss a number of tactics for managing workplace relations and matters of employee misconduct, which I have drawn from some recent case examples. Whilst adopting these tactics will not guarantee your school immunity from litigation, complaint or adverse public comment, they will at least go some way to protecting your school from such concerns.
TACTIC ONE: CONSISTENCY IS CRUCIAL
It may go without saying, but it is vital that you show consistency in your dealings with employees. Trying to implement new standards or requirements upon your employees mid-way through the term of their employment can be fraught with danger.
A recent decision of the Queensland Anti-Discrimination Tribunal highlights the importance of consistency in decision making (Walsh v St Vincent De Paul Society Queensland  QADT 32). In this matter, Ms Walsh was the Volunteer President of a Conference of the St Vincent de Paul Society. She was a Christian, but not a Catholic. She had been a volunteer worker with the Society for a number of years, and the Society was well aware that she was not a Catholic.
A number of months after she was appointed as a President, the Society attempted to implement a policy whereby a President of a Conference needed to be a Catholic. Ms Walsh was given 3 choices, become a Catholic, resign her position as President (but remain a member of the Society), or leave the Society.
Ms Walsh alleged that she was being discriminated against on the basis of her religious belief. The Society responded by arguing that it was a “genuine occupational requirement” that the President be a Catholic. Being a Catholic was essential and indispensable to carrying out the duties of President. The Society made reference to the fact that “President” was a leadership role which carried with it spiritual duties, which made it essential that the person fulfilling the role was a Catholic.
The Rules of the Society were not clear regarding the requirement that the President be a Catholic. Whilst there were some provisions that supported such an interpretation, others provisions mitigated against it. In addition, there was uncertainty as to when particular provisions became a part of the Rules, and whether those provisions were in place when Ms Walsh commence work with the Society and/or became a President of the Conference.
This meant that the Tribunal needed to consider whether it was really a genuine occupational requirement that the President be a Catholic, taking into account all of the relevant circumstances, including the actual practices within the Society,
The Tribunal paid particular attention to the inconsistencies in how she had been treated by the Society. Importantly, the Society had been aware that she was not a Catholic when they allowed her to become President of the Conference (in fact, Ms Walsh had been elected as President of three separate Conferences, and at one of these elections the Regional President and a Priest was present). Given all of these inconsistencies, the Tribunal was not satisfied that it was a “genuine occupational requirement” that the President be a Catholic. The Tribunal upheld Ms Walsh’s complaint, and ordered the Society pay $27,500 as compensation to her for her hurt and suffering.
It follows from this that, in dealing with employees, you should ensure that you:
o are consistent in your dealings with them;
o that there is consistency “across the board” (i.e. all staff are treated in a similar manner); and
o your constituent documents (including the expression of your values and beliefs in your constitutions and contracts of employment) are consistent with the manner in which you actually deal with staff.
TACTIC TWO: ENSURE YOUR CONSTITUENT DOCUMENTS AND CONTRACTS OF EMPLOYMENT SUPPORT YOUR VALUES AND BELIEFS
This final point follows on to the second tactic, which is to ensure that your constituent documents and contracts of employment actually support your school’s values and beliefs. These documents become important evidence in any court proceedings, and the Court will place significant weight on these documents when deciding what your school’s values and beliefs actually are. A failure to clearly and completely define your values and beliefs can create significant difficulties for your school later.
Two recent court decisions support this conclusion.
OV v QZ (No 2) NSW ADT 115
Whilst not strictly in the employment arena, this decision highlights the importance of ensuring that your constituent documents clearly support your school’s values and beliefs.
In 2002, a same-sex couple contacted the Wesley Mission to make inquiries about becoming foster-carers. They were told that, as a matter of policy, applications from same-sex couple were never accepted. They lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of homosexuality.
There was no dispute that the applicants were rejected on the basis of their homosexuality. The Wesley Mission contended, however, that this policy did not constitute unlawful discrimination, and relied upon the defence for religious bodies, as provided in section 56 of the Anti-Discrimination Act 1977.
Section 56 of that Act provided as follows:
Nothing in this Act affects:
(c) the appointment of any other person in any capacity by a body established to propagate religion, or
(d) any … act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.
It is important to note that the Anti-Discrimination Act 1991 (QLD) has similar, although not identical, provisions.
What does “religion” mean?
The Tribunal considered the meaning of “religion”. In particular, they considered whether “religion” was the “religion of the Wesley Mission”, the “religion of the Uniting Church (which the Wesley Mission falls within)” or the “religion of Christianity”.
“Religion” is not defined in the Act. The Tribunal therefore needed to consider what the “common” or “everyday” meaning of religion is. In considering this, the Tribunal considered the definition of “religion” in various dictionaries, all of which pointed to the conclusion that “religion” was not church or denomination based.
In conducting this analysis, the Tribunal commented that “religion” was not a “church or a denomination itself, much less one of a number of churches which espouses and propagates the same fundamental belief system, but the “complex of faith and conduct” to which adherents of the religion subscribe and commit themselves to practice.”
The Tribunal continued, by stating that “it is common knowledge that within Christianity there are a number of streams all springing from the same source ….. That there are various streams within Christianity does not however turn each into a separate religion.”
The Tribunal concluded that the relevant “religion” was “Christianity”, and not the religion of the “Uniting Church”. It therefore rejected an argument that “religion” could be “denomination based”.
The Tribunal noted that this may not have been the intention of the Parliament when section 56 was first drafted. Nevertheless, the Tribunal concluded that any other reading would require a warping of the plain language of the statute where it uses the word “religion”.
What does “Doctrine” mean?
The next issue for the Tribunal to consider was the meaning of “doctrine”. “Doctrine was also not defined in the Act, and again the Tribunal needed to consider what the “common” or “everyday” meaning was.
The Tribunal noted that “the essence of the concept of a religious doctrine is that it is a principle or set of principles taught by the religion in question, in relation to some issue of real significance to the faithful … it must have a source in some religious text or oral tradition regarded as authority within the religion itself, or come from a person or group recognised as having authority within the religion to interpret the religious text or tradition in the light of new circumstances.”
Did the act of the Wesley Mission conform to the doctrines of the Christian religion?
The Wesley Mission argued that the relevant doctrine of the Church was the belief that “monogamous heterosexual partnership within marriage is both the norm and ideal”, and that the act of preventing homosexual persons from being foster-carers conformed to this doctrine.
However, the Tribunal was unable to accept that this was a “doctrine” of Christianity. In this regard, the Tribunal noted that there was a diversity of views and beliefs within the Christian religion on the issue of homosexuality (the Tribunal also commented that this diversity was also present in the Uniting Church).
Was the act of the Wesley Mission necessary to avoid injury to the religious susceptibilities of the adherents of the Christian religion?
The Tribunal also considered whether the decision to prevent same-sex couples from becoming foster carers was necessary to avoid injury to the religious susceptibilities of the adherents of the religion.
The Tribunal noted that “injury” requires more than mere offence. This “injury” must be caused to “the adherents”, and not just “some or an unknown proportion of the adherents”.
Again, the Tribunal noted that there was a diversity of views among adherents of the Christian religion about homosexuality. Indeed, the Tribunal received evidence that another agency of the Uniting Church had allowed homosexual persons to be foster-carers. Even if actual injury could be proven, this injury would only be to “some or an unknown proportion” of the adherents of the Christian religion, and not to all adherents.
The Tribunal upheld the claim of discrimination and ordered the Wesley Mission to pay compensation to the same-sex couple. The Wesley Mission was also ordered to amend its policies to remove the discrimination.
So, what implications does this decision have for claims under the Queensland legislation?
Whilst the decision may not carry significant legal weight, in that it is a decision of a Tribunal, and not a superior court, the reasoning of the Tribunal is clearly well considered, and is instructive of how a superior court may determine this type of issue. For example, a Queensland court would, in our view, have reference to the same reference sources when considering the meaning of “religion” and “doctrine”. Therefore, this decision should not be dismissed out-of-hand.
There are two relevant provisions in the Queensland Anti-Discrimination Act 1991. Section 25 provides an exemption for religious bodies or schools in the work and work-related areas. Section 109 is a general exemption for religious bodies, and is similar to section 56 of the NSW Act.
Section 25 requires the person’s act to be contrary to the “employer’s religious beliefs”. In contrast, section 109 requires the discriminatory act of the religious body to be in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion.
The principal difficulty for religious bodies is the wider interpretation of “religion” (i.e. the Christian religion). Because of the diversity of views within the Christian community, it would be very difficult for a respondent to a discrimination complaint to ever prove that their act of discrimination is exempt under the Act (whether pursuant to section 25 or 109).
However, section 25 may provide an employer with greater scope than section 109. In this regard, the reference to “religious belief” may not require the higher standard for demonstrating a “doctrine of the religion concerned”. Additionally, section 25 makes specific reference to the “employer’s religious beliefs”. This may support a broader interpretation of religion as being employer, church or denomination specific.
However, section 25 is not an ideal provision. For example:
- The discrimination must not be unreasonable, taking into account whether the action taken is harsh, unjust or disproportionate, and the consequences of the discrimination; and
- The person must openly act in a way that he or she knows or ought reasonably to know is contrary to the employer’s religious belief (i.e. it is essentially a “don’t ask, don’t tell” provision).
A second, and more recent Queensland Court of Appeal decision, further highlights the importance of clear and complete constituent documents (Teys v Moreton Bay College  QCA 422).
Many of you may be aware of this decision. Mr Teys was the principal of Moreton Bay College. He had an extra-marital affair with a mother of a student at the school. Rumours about the affair started to circulate throughout the school.
On a number of separate occasions, Mr Teys misled the Chair of the School Board, by using language to create the impression that he was not having an affair with the mother, and by failing to correct this “misleading impression that he had earlier created” when the Chair of the School Board later defended him to the Board.
When the School Board subsequently discovered that Mr Teys was having an affair, his employment was summarily terminated. Mr Teys subsequently alleged that the School had unlawfully terminated his contract of employment, and sought damages for this unlawful termination.
Whilst the Court of Appeal accepted that Mr Teys had misled the Chair of the School Board (which would ordinarily represent serious misconduct), they also needed to be satisfied that this “misleading” occurred in the course of the performance, or the purported course of the performance, of Mr Teys duties under the Contract of Employment. Put simply, did Mr Teys mislead the Chair of the School Board in the course of his duties under the Contract?
The College argued that the Contract of Employment obliged Mr Teys to faithfully and diligently inform the Board about his relationship with the mother. However, after careful examination of the Contract of Employment, the Court of Appeal rejected this argument. The Court did not consider that Mr Teys was under such a specific obligation.
The College also argued that Mr Teys conduct in engaging in the extra-marital affair constituted serious misconduct. Again, the Court rejected this argument. Justice Fryberg commented:
“Adultery, whether clandestine or not, is not unlawful. It was never a criminal offence at common law (although it was an ecclesiastical offence) and it ceased to be actionable with the repeal of the Matrimonial Causes Act 1959 (Cth). It is regarded by some in our society as immoral or unchristian but there was no evidence that at the time the contract was formed it was contemplated as constituting misconduct under it. On the contrary, the contract omitted provisions contained in the earlier contract of employment which recited the mission statement of the college as “providing education in a caring and Christian environment”; which recorded the philosophy and aims of the college as including “to provide a caring environment for girls based on Christian principles” and “to provide opportunities for each student to grow in a real relationship with Christ, and gain an understanding of the tenets of the Christian faith”; and which required that the principal be “willing to participate in the life of the [Uniting] Church and maintain the Christian characteristics and values of MBC”.
In this particular instance, the Contract of Employment used by the College was similar to a Contract of Employment used by a secular organisation. The College had moved away from reciting “religious values and beliefs” within the Contract of Employment. As a result, it was difficult for the Court to conclude that the College considered such “religious values and beliefs” to be an important element of the employment relationship.
Given the implications of both these decisions, you should ensure that your School has outlined (in writing and preferably formally adopted by the Leadership) your religious beliefs and doctrines in sufficient detail within both constituent documents and contracts of employment. For example, if your school considers that “monogamous heterosexual partnership within marriage is both the norm and ideal”, this should be clearly documented.
TACTIC THREE: BE FAIR – GIVE NATURAL JUSTICE TO YOUR EMPLOYEES
As a third tactic for consideration, I would urge your schools to be fair in their dealings with employees, and in particular, to provide appropriate natural justice to employees.
Natural justice effectively requires four key elements:
1) Providing the employee with full details of the allegation against him or her, including full particulars and any evidence upon which the employer intends to rely upon;
2) Providing the employee with an opportunity to respond to those allegations;
3) Taking that response into account when determining whether the allegation is substantiated; and
4) Providing the employee with an unbiased decision maker.
A decision of the Federal Court, McAleer v The University of Western Australia (2007) FCA 52 demonstrates the importance of giving your employees natural justice. In that decision, the employee was a professor at the University of Western Australia. The university commenced proceedings against him in relation to serious misconduct regarding sexual harassment. The university intended to review the employee’s conduct, and suspended the employee without pay pending that review.
The solicitors representing the employee wrote to the university, seeking further and better particulars regarding the allegations. The particulars provided to the employee were deficient, and the employee was unable to properly respond to the review panel until the particulars were elaborated upon.
Despite ongoing protestations from the solicitor representing the employee, the employer proceeded with the investigation and review. The employee then instituted proceedings in the Federal Court, claiming that the university had breached the Workplace Agreement that he was employed under. He sought a penalty in relation to that breach.
The Court concluded that the university had breached the Workplace Agreement by failing to provide appropriate particulars to allow the employee to know the nature of the allegations against him. This was effectively a breach of the employee’s right to natural justice. Without knowing the full allegation that was made against him, he could not be expected to properly respond to that allegation.
The Court concluded that the breach was serious, and that a penalty was warranted in the circumstances. It ordered the university to pay $20,000 to the employee and restrained the university from taking any further action against the employee in the matter.
It needs to be remembered that where an employee is alleged to have engaged in some form of misconduct, that employee should be provided with an opportunity to respond to the allegations leveled against him or her. That response relates to the guilt or otherwise of the employee.
However, the response may not address the appropriate penalty that should be imposed upon the employee, particularly where the employee is denying the allegation. For this reason, natural justice should also be provided to an employee during the “sentencing” phase. This will provide the employee with an opportunity to respond separately to the appropriate penalty.
We have reviewed many discipline policies for schools. A common problem we find in such policies is a failure to differentiate between the “guilt” phase and the “sentencing” phase. In our experience, it is also good practice to seek to separate the two phases by at least a short passage of time.
TACTIC FOUR: SHOW LEADERSHIP – DON’T BE AFRAID TO MAKE THE HARD DECISIONS
Whether it be because of fear or because it is just too difficult, we can often choose to avoid making the hard decisions.
However, as a final tactic, I suggest that you not be afraid to make the hard decisions. Sometimes you need to be prepared to make the difficult decisions. Obviously, before making the “hard decision”, it is wise to take advice from various quarters, such as your solicitor, human resource adviser and leadership team. However, after taking the advice and carefully considering all of the possible ramifications, you should still be willing to demonstrate leadership and make the hard decision, if you genuinely believe that such a decision is appropriate.
For more information regarding the Managing Workplace Relations
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Please Note: This is not legal advice but it may help you understand the law. Read more...