A teacher who was fired after being charged with the indecent assault of a person under the age of 16 was unlawfully dismissed, as the Fair Work Commission (FWC) found that his employer misapplied the Child Protection (Working with Children) Act 2012 (NSW) (the Act). The teacher, Mr O, was employed by the Roman Catholic Archdiocese of Sydney (the School) for over 25 years in both a teaching and a non-teaching role. The decision by the FWC contrasts with an earlier decision it handed down in 2015, in which a teacher was held to have been lawfully dismissed based on similar facts.

The dismissal

Mr O was hired by the School in 1979, and worked both as a teacher and as a professional officer in the School’s Information Technology Unit. His most recent role was as a teacher at a secondary school for girls. In December 2014 Mr O was placed on ‘Director Approved Leave’ while he was under investigation for alleged ‘inappropriate conduct with a person under 18′. He was charged in February 2015 with indecent assault under the Crimes Act 1900 (NSW). After he was charged he became a ‘disqualified person’ under the Act, meaning that he could not receive a Working with Children Check Clearance (WWCCC) under the Act. Mr O attended a meeting within a week after the charge with the School and was asked to “show cause why his employment should not be terminated forthwith”.

At the meeting, Mr O proposed that he should be assigned alternative duties, be suspended or placed on leave, with or without pay. He advised the School that he intended to plead not guilty to the charge. At the meeting, Mr O was informed that his employment was terminated. This was confirmed in writing four days later.

In August 2015, the charges against Mr O were dropped.

Working With Children Check Clearance

Mr O worked in Sydney and the Act applied to his circumstances. The Act requires all workers who are employed in ‘child-related work’ to have a WWCCC. Mr O, as a long term teacher, was exempt from obtaining a clearance until 31 March 2017 as there was a staggered roll-out amongst workers already engaged in child-related work.

Section 9 of the Act prohibits employers from ‘commencing to employ, or continuing to employ’ a worker if the employer knows, or has reasonable cause to believe that the worker does not have a WWCCC or if the person is subject to an ‘interim bar’ – preventing them from holding a WWCCC.

Mr O ceased to be exempt when the investigation commenced, as he became a ‘disqualified person’. He was unable to obtain a clearance due to the pending charges, and so from the beginning of the investigation, the School would have been in breach of section 9 of the Act if it had continued to employ Mr O in child-related work. The School argued that due to the operation of section 9 of the Act, it was legally required to terminate Mr O’s employment.

Unfairly dismissed?

The case against the School involves the interpretation of two key pieces of legislation governing two different topics being:

• child protection: the Child Protection (Working with Children) Act 2012 (NSW); and
• employment law: the Fair Work Act 2009 (Cth).

The School’s argument relied upon its child protection obligations under the Act as justification for its decision to terminate Mr O’s employment. However, the FWC held that the School did not have to terminate the employment in order to meet its child protection obligations. Instead, the School only had to ensure Mr O was not employed in ‘child-related work’ – it could have assigned him duties not involving child-related work while continuing to employ him or placed him on suspension or leave.

It was not consistent with other provisions of the Act or with the overall purpose of the Act that a worker must be automatically terminated as soon as they become a disqualified person.

Lessons for schools

This case demonstrates the difficulty schools, like all employers, can face when interpreting and applying the various laws that apply to their organisation. This case is an important reminder of the following points:

• decisions made to ensure the safety of students can also trigger other legal consequences;
• child protection legislation must be balanced with requirements under employment law in non-government schools; and
• when a school is dealing with an allegation of misconduct involving an employee, it must ensure that it considers the various options available to it under employment law before taking any action – paid suspension is the recommended alternative while investigating options.

The FWC’s decision also demonstrates the complex balance that schools must strike between protecting students from harm and complying with the law. It does not help schools that the FWC’s decision overturned a previous FWC decision which the School tried to rely upon in its defence. The potential for different interpretations of the law by the FWC means that schools can’t necessarily rely on previous cases as a benchmark of how to act as those decisions are not concrete.

Although this case took place in New South Wales, similar provisions apply to teachers and schools across Australia. The below table summarises the applicable laws.