Teacher investigated for misconduct alleges unfair dismissal

A Victorian secondary school teacher who was investigated for misconduct accuses the Department of Education of unfairly terminating her.

Former Mullauna College teacher Teresa Lennie said the department had no grounds to terminate her employment in November 2023 because she was on authorised leave without pay at the time.

Lennie was the subject of a misconduct investigation in the 18 months prior to the termination letter, which caused some confusion for both herself and college principal Harry Ruff.

However, the Fair Work Commission found her employment had ended months earlier because she had not worked at the Mitcham school for months without approved leave or explanation, as required under the Education and Training Reform Act 2006 (ETRA).

“I have concluded Lennie’s employment ended by operation of the ETRA and not from any conduct of the department,” Fair Work Commission’s deputy president Bernadette O’Neill said.

“Because she was not dismissed, she is not able to make an unfair dismissal application, and the commission cannot deal with the merits or otherwise of the application.”

Lennie, a teacher of more than two decades, took leave without pay from October 2021 to January 2023 on compassionate grounds.

During this time, Lennie began work with a company that provided services to schools, which triggered the misconduct investigation.

When the investigation was completed in November 2023, the department informed Lennie the outcome was termination.

Just over one year earlier, Ruff emailed Lennie and notified her the leave without pay was ending in January 2023 and asked what her plans were for the next school year.

In response, Lennie said there was “uncertainty around the consequences” of the investigation so she was unable to make plans.

Lennie did not return to work when the leave ended and the commission found that she had not applied for further leave without pay.

Neither Lennie nor Ruff considered ETRA during this time, and both assumed the employment remained in place.

When Lennie requested leave without pay in July until the start of 2025, Ruff granted this without “turning his mind to the issue that her employment may have ceased because of her extended absence”.

Lennie told the Fair Work Commission the department “implicitly approved her absence from duties” until the conclusion of the investigation. Alternatively, she submitted the email from Ruff about the extended leave meant she had been reinstated under ETRA.

O’Neill said Lennie was not on “any form of approved or authorised leave” from April 2023, which meant she had been absent from duty for the three months since her leave without pay expired.

“I find Lennie’s employment with the department ceased by operation of the ETRA and was not brought about by the employer: there was no action on the part of the department which directly or consequentially resulted in the termination,” O’Neill said.

The Department of Education was criticised for its failure to comply with its own policies while investigating Lennie.

Up until Lennie filed the unfair dismissal application, it had assumed she was terminated by letter in November 2023. It did not consider the ETRA until it was before the commission.

O’Neill said this would be “galling” for Lennie.

“The department’s failure to comply with its own policies meant that she was deprived of the opportunity … to either seek a further period of leave or otherwise respond to the notification she was entitled to receive [about the ETRA],” O’Neill said.

“The department is entitled to rely on this technical objection; however, in the unique circumstances involved here, I consider that its decision to do so does not reflect particularly well upon it.”