The Union recently won a significant victory in confirming that non government school employers are not required to sack members who find themselves the subject of unproven criminal charges, and in restoring unfair dismissal rights for those members.
The NSW Child Protection (Working with Children) Act 2012 prevents employees from actively engaging in child related work where they are charged with a prescribed criminal offence. Sydney Catholic Education Office spent over a year arguing before the Fair Work Commission (FWC) that it was obliged to dismiss two such employees (both IEU members) and that they should be denied unfair dismissal rights.
A tale of two members
The circumstances relating to the charges against each member are unrelated. Both members deny the charges. Both members reasonably expected the presumption of innocence. Both members were long serving employees of the CEO. Member A, with over 25 years of service with the CEO, is the subject of charges arising against the backdrop of an acrimonious marriage breakup and custody dispute, and has still not had the opportunity to defend the charges in court.
Member B, with over 35 years of service with the CEO, was the subject of a single charge following an accusation by a student. Member B was dismissed within a week of the charge being laid despite protesting his innocence and there having been no investigation conducted by the CEO.
In the letter of dismissal Member B was told that if the charges were dismissed, or he was found not guilty, he could then request “permission to apply to be Registered to Teach or Work with Sydney CEO”. That charge has since been dropped by the DPP yet the CEO continues to oppose his right to seek reinstatement.
Two different decisions
In 2015 Sydney CEO convinced a Full Bench of the FWC that the continued employment of Member A was rendered impermissible by the CP(WWC) Act. In a single page decision that Full Bench held that the termination was not a dismissal for the purposes of the Fair Work Act, and therefore Member A could not bring an application for relief from unfair dismissal, and the application was dismissed. This decision, if left to stand, effectively denied unfair dismissal rights to every employee engaged in child related work in NSW who might find themselves the subject of an unproven criminal charge prescribed by the CP(WWC) Act.
The Union is presently challenging that particular decision in the Federal Court of Australia, which will hear the matter later this year.
What the 2015 decision suggests is that employers had no alternative but to dismiss employees immediately upon being charged, and prior to the prescribed charge being determined by a court. It also meant that employers would not be required to consider redeploying a member to non child related work, or otherwise managing the situation. It also meant that an employee could not make an application for reinstatement, even if the charge was subsequently disproven or withdrawn.
If the 2015 decision were left to stand, it’s no stretch to see how false accusations can be used as weapons, with accusers knowing that certain types of criminal charge will result in a person’s dismissal without any right of recourse.
In the case of Member B, the Union applied to have the CEO’s jurisdictional objection heard by a five member Full Bench of the FWC, this time headed by the FWC President. Having been heard late last year, the decision was handed down in 2016. This Full Bench unanimously determined that the 2015 decision was wrong, which had the effect of restoring unfair dismissal rights to employees. It means that NSW non government school employers cannot simply dismiss employees without considering other ways of managing compliance with the requirements of the CP(WWC) Act, or recognising the employee’s right to clear their name and resume child related work.
Two sets of rules
Responding to the restoration of members’ unfair dismissal rights, Sydney CEO Executive Director of Schools Dan White described the 2016 decision as “extremely disappointing”. At the time of writing the Union has been advised that the CEO is proposing to bring its own Federal Court challenge to the 2016 decision.
In the same media report, Dr White is quoted as saying that, had the case arisen in a government school it “never would have even made it to appeal”, because a government school teacher charged with a prescribed offence is automatically dismissed by operation of the Teaching Services Act. He went on to say “what this means now is that we have one set of child protection rules for government schools and another set of rules for non government schools”.
Dr White, however, commits a significant error of omission. Where the government school teacher is automatically dismissed, that same teacher has an automatic right of reinstatement once the charge is disposed of, and they obtain their Working with Children Check clearance. Sydney CEO is actually pursuing a vastly different set of rules to that which applies in government schools. It wants to dismiss without consequence, but be free to pick and choose who it might wish to re-employ.
The CEO’s media comments also betray a significant change in tone since the issues came to light. Initially the CEO claimed it simply had no choice but to dismiss. Having been disabused of this misconception, the CEO now complains it is “impractical”, or inconvenient, for employees to remain employed while defending charges. Innocent until proven guilty their employees might be, but Sydney CEO still wants them sacked without any right to reinstatement.