The FWC decision
O’Connell v Catholic Education Office is the case in question. O’Connell was a teacher who had been employed by the NSW Catholic Education Office (CEO) since 1979, in various teaching roles.
In December 2014, allegations arose that he had behaved inappropriately towards a child. He was put on leave by the CEO. In February 2015, he was formally charged with indecently assaulting a child under the age of 16 years.
O’Connell denied the allegation, and asked for alternative duties, suspension or leave until the charge was determined. The CEO instead terminated his employment.
In August 2015, the charge was withdrawn.
O’Connell claimed that he had been unfairly dismissed as the CEO could have arranged for him to work in an alternative role, pending the charges being determined.
The CEO claimed that once O’Connell had been charged, he became a “disqualified person” under the Child Protection (Working with Children) Act (the Act). It had no choice but to terminate, as the Act prohibited his continuing employment in child-related work.
The CEO used this as a jurisdictional argument – as there was no unfair dismissal, the FWC could not determine the matter.
The matter was heard by the full bench of the FWC.
Untangling the web of legislative language
It found that there was no barrier in continuing O’Connell’s employment – he could have been redeployed to other duties that involved no contact with children.
It also found that parliament was unlikely to have intended termination of employment whenever there needed to be further inquiries about a child protection matter. This could have disastrous consequences for many innocent workers.
The FWC looked to the second reading speech of the Act to determine parliament’s intention:
“Employers with the capacity to do so may suspend a barred worker or redeploy such a worker to a non child-related role.”
Inconsistency with other decisions
It found that the Mahony decision had been made without the benefit of extensive submissions that could be considered before reaching a conclusion. The FWC said it was not bound by Mahony.
It also considered the case of Fraser, in which it was found that employers have a choice about whether to comply with or ignore laws requiring termination of employment. It said that this decision was wrong.
What does it all mean?
The FWC has made it clear that its O’Connell decision is now the authority for similar matters.
But it seems at odds with NSW’s working with children police check requirements, which are considered some of the most rigorous in all of Australia. This was particularly evident in the case of BQY, who eventually won the right to become a registered teacher after a fairly minor encounter with a former student.
There is also anticipation that the Royal Commission will recommend that uniform child protection laws are established in Australia. This, along with the recent inquiry into how reportable conduct legislation has been operating in NSW over the past 16 years, now makes the law in this area very uncertain.
The FWC decision is unlikely to sit easily with the other anticipated child protection changes, but as a full bench decision, it carries great weight. It may be a case of parliament having to make changes to the wording of the legislation to ensure that the law falls into step with public expectations and is consistent with political response to this very important issue.