A recent Queensland Industrial Relations Commission (QIRC) overturned a Teacher transfer decision on appeal due to failure to give proper weight to domestic violence matters. Read here: KB v State of Queensland (Department of Education) [2024 QIRC 143]

On 6 June 2024, the QIRC delivered a decision setting aside the Education Department’s September 2023 decision to transfer South East Region teacher “KB” to another school within the region. Commissioner Dwyer found this decision was unfair and unreasonable particularly in light of the ongoing risk of domestic violence to her and her children. Commissioner Dwyer made some observations important for our School clients to consider

Commissioner Dwyer’s observations:

It is a regrettable feature of our society that we are increasingly compelled to be aware of the diverse and complex nature of domestic violence.

Domestic violence can be easy to dismiss or diminish by those who are inexperienced in dealing with it, or who still do not appreciate what a pervasive and serious problem it is.

But, with recent media and other awareness campaigns highlighting the tragic consequences of domestic and family violence that unfold every week in Australia, there is no longer an excuse for decision makers to make such errors.

In my view, to the extent it is not occurring already, the Department ought to ensure that its decision makers are properly trained and able to more competently evaluate the relevance of domestic violence concerns when they arise in transfer refusals.

Background  – transfer decision review sought by teacher KB

KB had applied to the Commission to have the transfer decision overturned on compassionate grounds, after an internal review of the decision was dismissed.

Those grounds included being the sole parent of two children without access to family or other support to care for them; and serious concerns of potential exposure to danger to the children from their estranged father, who is a habitual alcohol and drug user. She submitted her employer owed a duty of care to her children, aged 11 and 13, who would be at risk if they had to be left unattended for any period either before or after school.

She also submitted that her family had suffered significant emotional turmoil and had mental health conditions; that her children had strong community and sporting ties and a transfer would preclude her from transporting her children to events; and that the commute to the transfer school, along a chronically congested highway, would be longer and a financial burden she could not meet.

The department contended the decision was fair and reasonable, and that KB did not establish exceptional and compelling circumstances as to why she should not be transferred.

It argued she did not have a current Domestic Violence Order in place; that she was not the only sole parent working for the department; and that the commute travel time of 40 minutes was considered reasonable under the department’s Teacher Transfer Guidelines.

QIRC overturns Education Department decision

Commissioner Dwyer said there were two clear errors in the department’s reasoning that rendered the decision unfair and unreasonable: failure to give proper weight to domestic violence issues, and failure to properly consider the question of reasonable travel time.

KB had particularised a long history of interventions necessary to protect her and her children. Commissioner Dwyer said the department’s response showed the department “grossly underestimated the significance of the (uncontested) history of domestic violence particularised by KB and further, have demonstrated a significant lack of understanding of the relevance of lapsed Domestic Violence Orders as an indicator of the future risk of violence”.

It takes no imagination at all to appreciate that an individual against whom a court has issued an order restraining him from contacting or approaching his former partner (and his children) for a total period of seven years is, in all likelihood, the type of individual who will continue to pose a risk of violence to those people, or others.

On the history provided, KB and her children have plainly been living with the threat of violence (since at least 2015) from a person who has demonstrated a propensity to breach orders and engage in further acts endangering the safety of other children.

Commissioner Dwyer said the fact that no further orders had been made did not mean that there was no risk.

In my view, the extensive seven-year history of domestic violence orders culminating in the granting of a Sole Parental Responsibility order are much more than mere antecedents or ‘ongoing actions associated with Domestic Violence’. They are indicators that this particular individual will likely continue to pose a risk to KB and her children indefinitely, regardless of whether he is the subject of a domestic violence order.

Commissioner Dwyer said in relation to the other error, the distance between the current school and the transfer school was not significant at 37 kilometres, but would involve using the M1, which was notorious for worsening delays.

In my view, the extensive seven-year history of domestic violence orders culminating in the granting of a Sole Parental Responsibility order are much more than mere antecedents or ‘ongoing actions associated with Domestic Violence’. They are indicators that this particular individual will likely continue to pose a risk to KB and her children indefinitely, regardless of whether he is the subject of a domestic violence order.

Commissioner Dwyer said in relation to the other error, the distance between the current school and the transfer school was not significant at 37 kilometres, but would involve using the M1, which was notorious for worsening delays.

The absence of any reference in the decision to consideration of road and traffic conditions, even if it occurred, renders the decision unfair and unreasonable simply by virtue of the absence of such evidence and intelligible justification,” he said.

Between the interminable road widening projects, accidents, and outdated infrastructure that is incapable of coping with a rapidly increasing population, there is almost no journey on the M1 that will not be subject to delay.

The estimate of the Department of a 40-minute journey, most of which is on the M1, is even more precarious having regard to these common experiences.

Lessons for Schools to consider

Schools need to be mindful of the importance of considering the reasonableness of transfer requests against background of family violence and increased travel time particularly when the teacher is a sole parent caring for children. Ignorance is no excuse given recent media and other awareness campaigns highlighting the tragic consequences of domestic and family violence that unfold every week in Australia.

Please reach out to our lawyers with any questions or specific advice affecting your Schools. Contact us.

This article was written by Fran Keyes.