When a staff member is charged: does the law require a school to dismiss them?
When a teacher or other staff member is charged with a child-related offence, a school must act immediately to protect students. A common assumption is that working with children laws leave the school no choice but to end the person's employment. That assumption is wrong.
In O'Connell v Catholic Education Office, Archdiocese of Sydney [2016] FWCFB 1752, a Full Bench of the Fair Work Commission held that the NSW working with children legislation stops an employer from using a disqualified person in child-related work. It does not require the employer to dismiss them. If the school chooses to dismiss, that is its own decision, and the dismissal can be challenged as unfair.
The decision remains important guidance for school boards and principals handling one of the hardest situations they will face.
What happened
Mr O'Connell had taught in Sydney Catholic secondary schools since 1979, most recently at a girls' school. In December 2014, the employer placed him on leave while it investigated an allegation of inappropriate conduct with a person under 18.
On 17 February 2015, he was charged with one count of indecent assault on a person under 16. Under the Child Protection (Working with Children) Act 2012 (NSW), being charged made him a "disqualified person". A disqualified person cannot hold a working with children clearance.
Three days later, he attended a show cause meeting. He denied the allegation and said he would plead not guilty. He proposed alternatives to dismissal: other duties, suspension with or without pay, or leave. The employer terminated his employment at that meeting.
In August 2015, the charge was formally withdrawn. Mr O'Connell then applied to the Fair Work Commission for an unfair dismissal remedy.
What the Full Bench decided
The employer argued that the Commission had no jurisdiction. It said section 9 of the Act, which says an employer must not "continue to employ" a worker in child-related work without a clearance, forced it to end the employment. On that view, the employment ended by force of law rather than at the employer's initiative, so there was no "dismissal" to challenge.
The Full Bench rejected that argument and dismissed the jurisdictional objection. Its key findings:
"Employ" means "use", not "keep on the payroll". Section 9 stops an employer from using a disqualified person in child-related work. It does not stop the employer continuing the employment relationship in another way [56]–[57].
Employers have alternatives. The person could be suspended, placed on leave, or given duties that do not involve child-related work [58].
The purpose of the law is protecting children, not ending employment. Requiring dismissal where the person can be kept away from children does not advance that purpose [59].
The consequences matter. On the employer's reading, a long-serving employee would have to be dismissed immediately on being charged, or even on an interim bar, before any finding was made. Clear words would be needed for that result, and the Act has none [63], [68].
Dismissal is the employer's choice. An employer may decide to dismiss in these circumstances, but is not required to. If it does, the dismissal is at the employer's initiative and can be the subject of an unfair dismissal claim [74].
The Full Bench also found that an earlier ex tempore appeal decision, Mahony, which had reached the opposite view, was wrong [76].
What this means for your school
Child safety always comes first. The school must remove the person from child-related work straight away. The decision makes clear, though, that removing someone from contact with children and ending their employment are separate decisions. The second must be made fairly.
When a staff member is charged, or becomes subject to an interim bar, we recommend:
Remove the person from child-related work immediately. Direct them not to attend school or have contact with students, and record that direction.
Meet your other obligations. Check whether the matter must be notified under the reportable conduct scheme and to other bodies, and that any internal investigation does not interfere with the police process.
Consider the alternatives to dismissal. These include suspension with or without pay, leave, or duties with no child contact, depending on your contract, enterprise agreement and policies.
Do not treat dismissal as automatic. If you are considering termination, follow a fair process. Put the proposal to the employee, give them a genuine chance to respond, and consider what they say.
Base any decision on a valid reason. A charge is an allegation, not a finding. Charges can be withdrawn, as happened in this case. Consider whether there is an independent basis for dismissal, such as conduct the school has itself investigated and established.
Document your reasoning. If the decision is later challenged, records of what you considered and why will be essential.
Getting this wrong carries real risk. An unfair dismissal claim can follow, and a hurried decision can also damage trust in the school community, where these matters are often already very public.
How Wilding & Co can help
We advise non-government school boards, principals and business managers on staff misconduct, child protection and employment matters. These situations move quickly, and early advice helps the school protect students while keeping its decisions defensible.
We can help you:
Plan the immediate response when a staff member is charged or barred
Work through your notification and reporting obligations
Run or oversee an independent investigation
Decide between suspension, alternative duties and dismissal, and follow a fair process for each
Respond to unfair dismissal and general protections claims
If your school is facing this situation now, call us early. Call 02 9958 6603 or email ben@wildinglegal.com.au.
This article is general information only and is not legal advice. It discusses a 2016 decision. The legislation has been amended since, so please seek advice on how the current law applies to your school.