A TAFE teacher who was sacked for kissing a mature aged student on a field trip has won his job back, after an employment tribunal found that he had been unfairly dismissed.
Tasmania’s Industrial Commission ordered TasTAFE to re-instate the teacher, describing his behaviour as “foolish” but not “wilful”.
Shane Pinner had worked for TasTAFE since 1999 as a tourism guide teacher working with mature aged students in Devonport.
In July 2018, he was sacked after nine students collectively lodged a complaint with TasTAFE management.
The students claimed that Mr Pinner acted inappropriately towards a female mature-aged student on a field trip to Cradle Mountain in October 2017.
During the trip, Mr Pinner was accused of tucking the student’s hair from either side of her face into her raincoat, standing behind her and resting his hands on her shoulders, and kissing her on the lips for about three seconds, holding her face to do so.
After an investigation, TasTAFE’s chief executive Jenny Dodd determined that Mr Pinner had abused the teacher-student relationship in addition to breaching the training organisation’s Code of Conduct by failing to treat an individual student and a group of students with respect and without harassment, victimisation or discrimination.
Teacher claimed it was a ‘stupid moment’
Mr Pinner took his case to the Tasmanian Industrial Commission, claiming he had been unfairly dismissed.
While he admitted that he kissed the student when a photograph was being taken, he argued that he was “hamming it up” in what he described as a “brain fade” and a “stupid, stupid, stupid moment.”
Deputy President Neroli Ellis found that all three incidents took place, but was not satisfied that the hair-tucking or shoulder touching incidents constituted a breach of the Code of Conduct.
She concluded that Mr Pinner did not intend to disrespect, harass or victimise any of the students when he tucked the student’s hair into her hood, and found there was no suggestion the shoulder contact was unwanted.
Kissing breached Code of Conduct
With regard to the kiss, Commissioner Ellis found it was a breach of the Code of Conduct, and a breach of TasTAFE guidelines that state that under no circumstances should a teacher kiss a student.
However, she accepted Mr Pinner’s evidence that there had been no sexual intent nor harassment, victimisation or discrimination.
“There is a lack of evidence from the respondent to demonstrate that Mr Pinner intended the kiss to be sexual in nature,” she said.
“I accept Mr Pinner’s sworn evidence that this was not of a sexual nature.
“The conduct was not deliberate or wilful, rather foolish and stupid.”
Commissioner Ellis found that while Mr Pinner’s behaviour was inappropriate for a teacher on a field trip, the lack of any past performance issues indicated it was not a pattern of behaviour, and rather a one-off mistake and the likelihood of reoccurrence would be negligible.
She also took into account Mr Pinner’s remorse, apologies, “unblemished work record” for more than 17 years, and determined that Mr Pinner’s dismissal was unfair and disproportionate in relation to the context of the conduct.
Ms Ellis ordered Mr Pinner be reinstated to the role he held prior to his termination, and to begin being paid his salary from the date of the decision.
Teacher lucky to get job back
Miles Heffernan, Litigation Director at Industrial Relations Claims, says Mr Pinner was lucky to get his job back.
“Once you start kissing work colleagues without their consent, and especially in the context of a teacher-student relationship, you are risking your job, your career, and possibly even criminal charges,” he said.
“Sexual harassment is serious, and can cost organisations tens of thousands of dollars – so workers and teachers should never ever touch a colleague or student – especially with their lips.”
If you have been unfairly dismissed from employment, you may be eligible for compensation or reinstatement.
But you only have 21 days to file a claim, so don’t delay!
Call our team at Industrial Relations Claims today on
1300 045 466