The Full Bench of the Fair Work Commission has recently set out the importance of considering whether a person’s employment is inconsistent with relevant legislation, in this instance, the Child Protection (Working With Children) Act 2012 (NSW). Where there is inconsistency, the employee is automatically dismissed and cannot pursue an unfair dismissal claim.
Brief History of the Case:
The respondent, Mr. Mahony, began working with Catholic Education in 1986 initially as a teacher and then as a religious coordinator in a number of secondary schools.
On 23 September 2012 the respondent was arrested and charged with several offences including allegations of sexual assault. The respondent pleaded not guilty to the charges and was released on bail.
On 4 October 2012, the applicant suspended the respondent with pay pending the determination of the trial. The trial was initially set to commence on 14 May 2014, but was then adjourned to August 2015. In the interim, the Child Protection (Working With Children) Act 2012 came into force on 15 June 2013 which made it illegal for the respondent to be employed in a position having direct contact with children as his charges meant he was no longer eligible to obtain a working with children check clearance. This also meant that the respondent could not fulfil the duties of his employment.
On 20 December 2013, the applicant summarily dismissed the respondent on the basis of:
- The significant nature of the criminal allegations against the respondent;
- The conflict those allegations had with the key responsibilities of Catholic Education;
- Catholic Educations’ obligations regarding child protection policy;
- The need for Catholic Education to have the highest level of trust and confidence in its employees, particularly concerning the welfare and best interests of the children under their care; and,
- The responsibility Catholic Education had to the wider catholic and public community.
The termination letter did not specifically refer to the Child Protection (Working With Children) Act 2012 and the restrictions it placed on the respondents’ employment.
Upon termination, the respondent sought to bring proceedings for unfair dismissal with the Fair Work Commission, however, a jurisdictional issue arose regarding the grounds for which the employment contract between the applicant and the respondent had ceased.
The First Issue – On what Basis did the Employment Contract End?
The main issue that arose was whether the respondent was dismissed according to s386 of the Fair Work Act 2009 (Cth), which is a prerequisite to being able to bring an action against an employer for unfair dismissal. S386 sets out the meaning of dismissed in the following terms:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. …”
What the applicant initially contended was that upon the commencement of the Child Protection (Working With Children) Act 2012, the respondent could no longer obtain a working with children check clearance. This meant it was impossible for the respondent to fulfil his contractual obligations under his employment contract giving rise to the doctrine of frustration, which automatically ended the contract without requiring an actual dismissal.
However, a question arose as to whether this necessarily frustrated the employment contract because, assuming there was a finding of not guilty at trial, there was the possibility that the respondent would be able to resume his duties of employment. If this was the case, could the contractual obligations actually be deemed impossible to satisfy?
Conversely, the respondent submitted that the employment contract was not frustrated and that the applicant had initiated the dismissal as per s 396 of the Fair Work Act.
The Second Issue – Did the Child Protection (Working With Children) Act 2012 make the Respondents’ Employment Illegal?
Another issue that became apparent was whether the Child Protection (Working With Children) Act 2012 even applied to make the respondents employment illegal as, at the time it came into force, the respondent was suspended with pay, and was consequently not engaged in any work that involved direct contact with children. While the respondent could not lawfully obtain a working with children check clearance because of s 18 of the Child Protection (Working With Children) Act 2012, it was questioned whether this caused a real legal impediment to the applicant employing the respondent where the respondent remained suspended and not engaged in child-related work involving direct contact with children.
The Initial Decision
In the initial decision, the applicants’ argument of contractual frustration was rejected by Commissioner McKenna of the FWC because of the nature by which the applicant ended the employment relationship. The Commissioner considered that the applicant had sent a termination letter to the respondent setting out reasons for the dismissal, on a date several months after the beginning of the Child Protection (Working With Children) Act 2012. The Commissioner deemed these actions as supporting dismissal on the “employer’s initiative” according to s 386(1)(a), rather than the automatic cessation of the employment contract due to frustration, which, if it applied, would have ordinarily occurred at the time the child protection legislation came into force. This meant that the respondents claim for unfair dismissal could proceed.
The Appeal Decision
On appeal, the Full Bench took the view that continuation of employment of the respondent by the applicant was inconsistent with the Child Protection (Working With Children) Act 2012 and would have been illegal on the part of the applicant. To this end, the Full Bench stated it could not fairly be said that the respondents employment was terminated on the employer’s initiative pursuant to s 386(1)(a) of the Fair Work Act.
The Full Bench did not shed light on how this finding should be reconciled with the fact that the applicant continued to employ the respondent for several months after the Child Protection (Working With Children) Act 2012 made his employment illegal.
The appeal was allowed and the respondents’ application for unfair dismissal was dismissed.
Implications for Schools
This case highlights the importance for employers whose business involves child-related work, particularly schools, to be familiar with child protection policy in their state or territory, and in knowing what disqualifies an employee from working with children. A failure to implement such legislation in the workplace could lead to illegality on the part of the employer.
It is also clear from this case that it is acceptable for schools to treat the employment contract as terminated without needing to wait for a conviction where the employee has pending charges relating to child protection, and where this renders the employees employment as unsuitable under relevant child protection legislation.
In terms of NSW legislation, employment will automatically cease where an employee working with children has been charged (but not yet convicted) with offences relating to children. There will also be no right to pursue unfair dismissal.
Whichever state or territory jurisdiction an employer is in, they need to be aware of this important implication and consider how it might apply to their organisation.
It is yet to be determined whether the reasoning of the Full Bench will be extended to other criminal charges in the same way.