In a recent decision, the Fair Work Commission has decided that a school has options other than to dismiss a teacher who has become a disqualified person under NSW child protection laws.

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

This case concerned a teacher charged in December 2014 with indecent assault on a person under the age of 16 years and who, as a consequence, became a disqualified person under the Child Protection Act 2012 (NSW) (the Act).  The charges were ultimately withdrawn, but not before the teacher was dismissed from his employment.  Mr O’Connell made an unfair dismissal claim. 

When dealing with an unfair dismissal claim, the Commission has to decide whether an individual’s dismissal at his or her employer’s initiative was “harsh, unjust or unreasonable”, taking into account the validity of the reason for the employee’s dismissal, and also the fairness of the process that was followed.

In this case, the employer denied that it had dismissed the teacher at its own initiative, and argued that section 9 of the Act expressly required it to terminate the teacher’s employment when he became a disqualified person.  If that view was correct, the teacher would not be entitled to pursue his unfair dismissal claim.  

The issue was sufficiently serious that it was referred to a Full Bench of five members of the Commission to determine.  

The Full Bench decided that while the Act prevents disqualified persons from engaging in child-related work, it does not prohibit them from remaining employed if they are not engaged in such work.  For that reason, the employer still had a choice as to whether it dismissed the teacher.  Accordingly, the jurisdictional objection was unsuccessful.

The Full Bench’s decision is not surprising.  Unless a law leaves an employer with no option but to dismiss an employee in the circumstances, the Commission is unlikely to accept that a dismissal is not at the initiative of the employer.

In O’Connell, the Commission was satisfied that there were a number of ways that the teacher could remain employed by the employer, but not be engaged in child-related work, without the employer contravening the precise language of the Act.  For example, while the teacher continued to be a disqualified person under the Act he could remain suspended with pay, take leave or be assigned to duties not involving child-related work.  While these alternatives may not be desirable or practical, they are available to the employer.

The effect of this decision is that the teacher is allowed to pursue his unfair dismissal claim.  It does not necessarily mean that he will be successful; the employer may still be able to satisfy the Commission that the dismissal was fair in all the circumstances. 

Lessons for employers

This kind of scenario is not confined to the education sector.  There are many roles in heavily regulated sectors such as aged care, health services, disability services, child care, local government, and professional services where an employee must meet certain statutory requirements to be able to perform their usual duties.  There is often a tension between a legislative requirement or a departmental direction on the one hand, and an employee’s rights on the other.

O’Connell does not change the fact that if an employer discovers that an employee may have committed an offence, or is otherwise prohibited from performing their usual work, it should consider standing the employee down on full pay.  Doing this allows an employer to manage its obligation to remove any ongoing risk, while also giving the employer time to deal with any  reporting or other obligations, take into account all of the relevant circumstances, consider its options and then make a decision about the employee’s future employment.  

This case also highlights the importance of employers documenting their expectations, usually in well-drafted policies, regarding employee behaviour at and outside of work.

O’Connell does not change the fact that where an employee has committed an  offence, or is otherwise prohibited from performing their usual duties, the employer will typically be justified in dismissing that employee.  The Full Bench in O’Connellalso appear to acknowledge that there may be occasions when an employer will be justified in dismissing an employee even if an allegation that an employee has committed an offence cannot be substantiated.  Accordingly, if an employer determines that it is appropriate to dismiss that person, it may still do so.

What O’Connell demonstrates is that employers need to ensure that any decision to terminate an employee is carefully considered.  The decision should take into account the possibility that any allegations about an employee’s conduct, or any concerns about the employee’s capacity to perform their duties, may ultimately not be correct.  The decision should also take into account whether the employee is protected from unfair dismissal, and if so whether the process that may result in the employee’s dismissal was harsh, unjust or unreasonable.  

These issues are complicated. Employers should therefore obtain legal advice when these issues arise to make the right decision.