Charged, dismissed, reinstated: what schools can learn from the Toohey decision
A school can have a valid reason to dismiss a teacher and still lose an unfair dismissal claim. That is the central lesson of Toohey v White [2017] FWC 4722.
A teacher was charged with a disqualifying offence and lost his working with children clearance. The Fair Work Commission accepted that this gave the employer a valid reason for dismissal. But the decision to dismiss had been made before he was given a genuine chance to respond, and reasonable alternatives had been rejected. The charges were later dismissed, and the Commission ordered that he be reinstated with back pay.
The case follows the Full Bench decision in O'Connell and the Full Federal Court's decision in Mahony v White [2016] FCAFC 160. Together they set the framework for every non-government school dealing with a staff member who has been charged.
What happened
The teacher had taught for decades and was the Religious Education Coordinator at a Catholic secondary school in Sydney. In March 2016, a colleague complained that he had touched her on the upper chest without consent. He said he had been demonstrating a technique to relieve her neck pain. The school dealt with the matter through its disciplinary process: he accepted a first and final warning and attended coaching on workplace boundaries. The school regarded the matter as closed.
Two months later, police charged him with two counts of assault with an act of indecency over the same events. Under the Child Protection (Working with Children) Act 2012 (NSW), the charges made him a "disqualified person", and he lost his clearance.
The employer invited him to a meeting to show cause why his employment should not be terminated. He denied the charges and proposed alternatives: redeployment, suspension with or without pay, or leave with or without pay. At the meeting he was told his employment had already ended. The employer said his contract had been frustrated by the loss of his clearance.
In February 2017, the Local Court dismissed the charges. The magistrate found that, although he had acted unwisely, he could not be held criminally liable.
Was he dismissed at all?
After O'Connell, the employer could no longer argue that the working with children laws required it to terminate. Instead, it argued that the contract had been frustrated: without a clearance, the teacher could not do the job he was employed for, so the contract ended automatically and there was no "dismissal" for the Commission to review.
Deputy President Booth rejected this argument:
The incapacity was temporary and uncertain. The teacher had said he would plead not guilty, and the employer had not asked when the charges were likely to be decided. At the time of the dismissal, it was not known that he could never return to the role [65]–[66].
The contract anticipated absences. His contract and the enterprise agreement provided for leave such as sick leave, duties set by the principal, and work at other locations [67].
Dismissal is about the employment relationship, not just the contract. The question is who ended the relationship [73].
The employer made the decision. The facts were very similar to O'Connell and Mahony, where the Full Federal Court held that the employment ended on the employer's initiative. Here the employer had decided to end the relationship and had rejected his alternatives [96]–[99].
A valid reason, but still unfair
The loss of the clearance was a valid reason. The Commission accepted that a teacher who cannot work with children for an indefinite period is likely to cause real operational difficulty for a school. It described the question as "finely balanced", but found that the reason was sound, defensible and well founded [112]–[113]. This is important for schools: losing a clearance can justify dismissal.
The dismissal was nonetheless harsh and unreasonable, for three reasons.
1. No genuine opportunity to respond. The evidence showed that senior management had decided to terminate before the show cause meeting took place. An opportunity to respond must be one that could actually change the outcome. Going through the motions after the decision is made is not enough [165]–[170].
2. Reasonable alternatives were rejected. The teacher offered to take leave without pay until the charges were decided. The Commission found this "would not have been impractical or onerous" for the employer. It also noted that the underlying conduct had already been dealt with by a final warning, and found it "particularly harsh and quite unreasonable" not to adopt one of the alternatives [181]–[183].
3. Reasons found after the event did not help. At the hearing, the employer argued the teacher had downplayed the incident and pointed to other conduct he admitted under cross-examination. An employer can rely on facts discovered after a dismissal. Here, though, the Commission found there had been no downplaying, and that some of the employer's evidence misrepresented what had been said in the criminal proceedings. The other incidents were trivial, if in some cases unwise, and did not amount to a valid reason [138]–[155].
The Commission also took into account the teacher's long, unblemished career and the serious financial and personal effect of the dismissal on him and his family [184]–[191].
The remedy: reinstatement
Reinstatement is the primary remedy for unfair dismissal. The employer argued it was inappropriate because of the teacher's conduct and because his fixed-term coordinator appointment had since expired. The Commission disagreed. It found he was genuinely remorseful and understood the standards now expected of him, and that the appointment issue was something the employer could deal with after his return [198]–[213].
The Commission ordered:
reinstatement to his coordinator role, or another position on terms no less favourable
continuity of employment
lost pay from the date the charges were dismissed, less what he had earned elsewhere
Back pay ran only from the dismissal of the charges because that matched his own offer to take unpaid leave while the charges were pending [217]–[218]. In other words, the outcome was essentially what the employer would have faced if it had accepted his proposal in the first place.
Lessons for schools
Remove the person from child-related work at once. That is non-negotiable. Ending the employment is a separate decision.
Don't rely on frustration or "automatic" termination. After O'Connell, Mahony and Toohey, the Commission will treat the decision to end the employment as yours.
Losing a clearance can be a valid reason, but it is not the end of the inquiry. You still need a fair process and a proportionate response.
Keep an open mind until you have heard from the employee. If the decision is made before the meeting, the process is defective, however carefully the letter is drafted.
Take the alternatives seriously. Unpaid leave or suspension until the charges are decided costs the school little. Dismissal exposes it to reinstatement and back pay if the charges fail.
Find out the timing. Ask when the charges are likely to be heard. An indefinite absence is different from one with a likely end date.
Don't bring back conduct you have already dealt with. If you have already imposed a warning, relying on the same conduct later is unlikely to succeed.
Be careful with evidence. Arguments built on second-hand or mischaracterised accounts of what was said in court can damage your credibility before the Commission.
How Wilding & Co can help
We advise non-government school boards, principals and business managers when staff are charged, barred or under investigation. We help schools protect students immediately while making employment decisions that will stand up if challenged.
We can help you:
Plan the immediate response and your reporting obligations
Run a show cause process that is genuine and properly documented
Weigh suspension, leave, redeployment and dismissal
Respond to unfair dismissal and general protections claims
If a staff member at your school has been charged, call us before you decide anything. Call 02 9958 6603 or email ben@wildinglegal.com.au.
This article is general information only and is not legal advice. It discusses decisions from 2016 and 2017. The legislation has been amended since, so please seek advice on how the current law applies to your school.
Sources
O'Connell v Catholic Education Office, Archdiocese of Sydney [2016] FWCFB 1752
Mahony v White [2016] FCAFC 160