A school cleaner who was dismissed for giving a teacher a shoulder and back massage has lost her unfair dismissal claim. An interesting aspect of this case is that the teacher actually asked the cleaner for the massage, in order to relieve pain – and gave evidence to that effect.

However, the employer regarded the cleaner’s conduct as inappropriate and threatening to its business (potential loss of contract).

The Fair Work Commission agreed with the employer and said that if the teacher did ask for a massage, the cleaner should have refused to provide it.

Facts of case

The employer found out about the incident when the school, a special needs school, reported it to them about five months later. The employer then dismissed the cleaner, claiming that her conduct breached the employer’s contract with the Northern Territory Department of Education and had “very serious repercussions”.

The teacher provided a statement that she had asked the cleaner to squeeze her shoulders to relieve some discomfort. She said that it only lasted about two minutes, only happened once, and that she was grateful for the cleaner’s help.

The FWC found that the cleaner strongly believed she had helped the teacher after being asked to do so. However, the teacher should not have made the request and the cleaner should not have agreed to it during work time and on work premises. The FWC drew a distinction between what happened and responding to an on-site life-threatening medical emergency.

Decision

The FWC based its decision that dismissal was not unfair on the following reasons:

  • The cleaner admitted to the conduct, so no investigation by the employer was necessary.
  • She was not qualified in massaging and could have injured the teacher.
  • The incident had the potential to threaten the contractual relationship between the employer and a major client (NT Education Department). The misconduct was serious, regardless of the teacher’s supportive statement, so no warning was necessary before dismissal.
  • The employer, which had only three employees, complied with the Small Business Fair Dismissal Code, and provided two weeks’ pay in lieu of notice when not strictly required to.

The bottom line: In this case, the FWC considered the actual event and its potential consequences ahead of the reasons why it occurred. The reasons were “consensual” – the teacher asked for the massage and the cleaner agreed to provide it. However, at-work physical contact between an employee and one of the client’s employees was still a serious breach of the cleaner’s employment contract and a threat to the employer’s business contract, both of which justified dismissal.

Read the judgment: Fauni v Bright Lightz Cleaning Service [2020] FWC 3874, 24 July 2020