Published 5 October 2017
In a recent case, Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney  FWC 4722, the Fair Work Commission ordered a teacher be reinstated after he was dismissed for losing his Working with Children Check Clearance because he was charged with indecent assault.
On 24 March 2016, Mr Toohey attended a meeting at the Head Office of his employer regarding allegations of an incident where he reportedly touched the upper chest of a co-worker without consent on two occasions. Although Mr Toohey had no recollection of one of the incidents, the latter incident he claimed was to show his co-worker a method of alleviating neck pain, which she had mentioned.
Mr Toohey attended coaching sessions after this meeting, where interpersonal boundaries in the workplace were explained to him.
On 25 May 2016, Mr Toohey was charged with two counts of indecent assault under the Crimes Act 1900 (NSW) in relation to the incidents. As a consequence of this finding, Mr Toohey attended another meeting at the Head Office where he was advised that his employment was terminated because the charges meant he was unable to obtain a Working with Children Check Clearance, and this prevented him from performing his role. Mr Toohey suggested alternatives to dismissal, such as taking leave without pay or being redeployed, however his employer rejected them.
Fairfield Local Court acquitted Mr Toohey of the incidents on 6 February 2017 and he applied for a Working with Children Check that month.
Mr Toohey claimed he was dismissed and the dismissal was unfair.
His employer claimed Mr Toohey was not dismissed as his employment was frustrated by virtue of his losing the ability to hold a Working with Children Check Clearance, or, if he was dismissed, they had a valid reason as he was unable to perform his role.
The Fair Work Commission found the employment contract was not frustrated due to findings in the similar cases of Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office Sydney v Gerald Mahony  FWCFB 4952 and O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney  FWCFB 1752, and because Mr Toohey provided alternate options to dismissal, such as redeployment, leave or suspension.
There was a valid reason for dismissal because the loss of Clearance prevented Mr Toohey from undertaking child related work. This would have created operational difficulties, which the Commission believed was a “sound, defensible and well-founded reason for his dismissal.”
However, the Commission found the dismissal was harsh because Mr Toohey was not given an opportunity to respond as the employer had already determined to dismiss him at the time of the meeting. Further, the alternate courses of actions suggested by Mr Toohey such as leave without pay until his criminal charges were determined, “would not have been impractical or onerous”. Finally, Mr Toohey was “a teacher of long standing and his commitment to his calling was evident”. He suffered greatly from the termination and had an unblemished record prior to these incidents.
Consequently, the Commission found the dismissal was unfair. The Commission believed Mr Toohey now understood his conduct was unprofessional and inappropriate and would thus be unlikely to engage in similar behaviour in the future. As a result, the Commission ordered he be reinstated.
Key issues for employers
This case reaffirms that although the employer may have a valid reason for dismissal, it may still be unfair because it is “harsh, unjust or unreasonable”. The Fair Work Commission will find a dismissal is harsh where employers “simply go through the motions” when “a firm decision to terminate has already been made”. Employees are entitled to procedural fairness and should be given a real opportunity to respond.