In this Justitia communication, we continue our round-up of recent cases, so as to share noteworthy developments, or indeed cautionary tales, designed to help your organisation navigate staffing matters.

The first is a recent unfair dismissal case at a school that involved outside hours misconduct, and a finding that the termination was harsh considering its potential “catastrophic consequence” – namely the cancellation of the employee’s teaching registration. The employee, a secondary school teacher who was described by his former principal as carrying “an outstanding attitude to his teaching”, was dismissed after admitting to six instances of misconduct, including communicating with students on Instagram, providing lifts to (non-school) sporting events and being photographed standing next to a group of female students taking an ice bath in their sports uniforms. Whilst the Fair Work Commission concluded that the employer had a valid reason for the dismissal and had adhered to procedural fairness requirements, in considering a range of factors it nonetheless found the dismissal unfair and awarded him compensation of five months’ base salary.

Key takeaways:

  • Employers should ensure that their policies clearly set out required standards of conduct and prohibited activities – particularly where out of hours conduct is concerned. For educational institutions, it is particularly important to comprehensively deal with grey or nuanced standards, such as maintaining professional boundaries.
  • Whilst in the case in question, the Commission ultimately held that there was a valid reason for the dismissal, it expressed concern about a code of conduct which only mentioned the requirement to maintain professional boundaries in a section headed “Sexual harassment or sexual misconduct” – neither of which were alleged. This was a case where a poorly drafted Code of Conduct nearly tripped up the employer.
  • When an organisation is considering dismissing an employee and assessing the risk of a (successful) unfair dismissal claim, it is important to remember that the Commission has a broad scope to consider any other matters it considers relevant. Whilst in the context of a school or other educational setting, the paramountcy of child safety may trump the legal risks involved, the risk assessment may impact on any settlement offers made during conciliation.

Case: Jack Gibson v Australian Capital Territory (Represented by ACT Education Directorate) [2026] FWC 137

The second case demonstrates the risks of relying on ChatGPT and the importance of in-person communication. The small business employer drafted an email with the aid of “Chat GPT”, and then did not conduct a face-to-face discussion. The failure to communicate the redundancy in person (and consult) resulted in a finding that the dismissal was unfair and a ‘failure to adhere to basic standards of decency’.

The operator of a Quest serviced apartment complex in Geelong emailed the Housekeeping Supervisor a formal redundancy notice one evening (after the employee had been working onsite that day). Notwithstanding the notice offered the opportunity to meet and discuss alternative roles, the Fair Work Commission found:

  • consultation obligations had not been complied with (as the decision was final when communicated) and this negated the genuineness of the redundancy;
  • the dismissal was unfair due to:
    • the employer’s omission to speak about the redundancy in person rather than via email (especially when a meeting could have occurred on the day the notice was issued); and
    • consultation failures.

Key takeaways:

  • Communicating something as significant as a redundancy should be done in person rather than via text or email – even in the case of small businesses.
  • Effective consultation involves discussing a proposed redundancy with an employee before a final decision is made, requesting feedback from the impacted employee, carefully considering feedback, then making a final decision.
  • The Small Business Fair Dismissal Code is not applicable to a dismissal arising from a redundancy.
  • Use of AI tools, such as Chat GPT, can be risky and should not replace meaningful, in person, communications with staff.
  • For a redundancy to be ‘genuine’, all three limbs must be satisfied:
    • The impacted role is no longer required due to operational requirements.
    • The employer has complied with any modern award consultation obligations.
    • There are no reasonable redeployment opportunities within the employer’s enterprise or within any associated entities.

Case: Hayley Lord v Millet Hospitality Geelong Pty Ltd [2025] FWC 2740