In a significant case for employers and staff who work with children, a Full Bench of the Fair Work Commission has found that the termination of employment of a teacher facing charges of child assault could trigger the unfair dismissal provisions in the Fair Work Act.

In New South Wales, child protection laws require that an employer ‘must not…continue to employ a worker in child-related work’ if the employee does not hold a working with children clearance or is subject to an interim bar preventing their engagement in child-related work. “Child-related work” is relevantly defined to include direct contact (ie physical contact or face to face contact) with children in schools or other educational institutions (excluding universities), and private coaching and tuition of children.

In the case before the Full Bench, a teacher with more than 35 years’ experience had been charged (but not convicted) of an offence of indecent assault on a child. Under the relevant child protection laws, a person charged with this type of offence is not able to obtain or hold a clearance to work with children.

The employee denied any guilt and indicated his intention to contest the charge. However, the employer determined that it could not lawfully continue to employ him as a teacher, a role which necessarily involved ‘child-related work’ and dismissed the teacher from his employment. At the time of the dismissal, the employee had 945.83 hours (24.89 weeks) of accrued but untaken long service leave and 42.18 hours (1.11 weeks) of accrued but untaken annual and pupil free leave.

The criminal charge against the teacher was withdrawn some 6 months after the dismissal took effect.

Following the termination, the teacher commenced unfair dismissal proceedings in the Commission. The employer raised a jurisdictional objection to the teacher’s claim on the basis that the employee had not been dismissed from his employment but rather the employment had ended by operation of law (ie not at the employer’s initiative).

In a decision that departs from previous Commission rulings (see for example Mahony v Catholic Education Office Sydney), a 5 member Full Bench of the Commission in this case determined that the teacher’s unfair dismissal claim could proceed for the following reasons:

[The relevant child protection law] provides that an employer must not commence employing, or continue to employ, a worker “in” child-related work. The ordinary meaning of the words used does not suggest an absolute bar to the continuation of employment. The section does not provide that an employer must not continue to employ a worker at all. If an employer continues to employ a worker other than “in” child related work, no contravention of the section would arise … An employer could, for example, continue to employ the person on suspension, on leave or assigned to duties not involving child-related work”.

The Full Bench decision gives rise to a number of interesting questions relating to the on-going employment of teachers facing criminal charges such as:

  • is an employer obligated to redeploy teachers into roles with no child contact while criminal proceedings are on foot?
  • what happens if there are no suitable alternative roles into which the teacher can be redeployed?
  • can the employer suspend the teacher (with or without pay) until the criminal proceedings are resolved?
  • what if the teacher does not have sufficient accrued leave or refuses to utilise their accrued leave while the criminal proceedings are on-going?

In addition, the Decision also arguably raises an interesting point of difference between private and public sector employers in New South Wales by virtue of the Teaching Services Act 1980 (NSW), which provides for the immediate dismissal of an “unauthorised person” who does not hold a working with children clearance.

We anticipate that this decision may in due course be the subject of an appeal to the Federal Court of Australia. However, for now, employers should take advice before moving to dismiss or redeploy any employee who has failed to obtain, or loses his or her clearance to work with children.

O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752