Employee unfairly terminated after suspension of WWC Check – schools must take a cautious approach

Schools should tread carefully when considering whether to terminate the employment of a teacher or other employee whose Working with Children Check has been suspended because of pending criminal charges.

A recent case before the Fair Work Commission, following a series of similar cases in New South Wales, concerned a teacher whose employment was terminated after being charged with two counts of assault with act of indecency against another staff member. As a result of the charges, the employee could not continue to engage in child-related work because he became a “disqualified person” under the relevant NSW legislation, the Child Protection (Working with Children) Act. As a consequence, he did not hold a WWC Check and it would have been unlawful for his employer to continue to employ him in child-related work.

The employee informed his employer that he would plead not guilty to the criminal charges. He also raised a number of alternative courses of action that the employer could take instead of terminating his employment, while the criminal process was completed. The employee was prepared to be redeployed to an alternative position in non-child related work, be suspended (with or without pay), take accrued leave or leave without pay until the criminal charges were determined.

However, the employer proceeded to terminate his employment on the basis that he was a “disqualified person” and that he could not undertake child-related work.

The employee was subsequently acquitted of the charges and brought an unfair dismissal application seeking reinstatement of his employment.

Valid reason – but termination unfair

In an earlier Federal Court proceeding, the court held that a termination by an employer was a deliberate, considered act of the employer, and therefore subject to the unfair dismissal laws, even if the employer felt obliged under statute to make that decision. Therefore, the decision to terminate an employee whose criminal charges were pending, was a decision that could be challenged in an unfair dismissal claim.

The FWC formed the view that because the teacher was not able to carry out the central part of his role, being working with children, for an indeterminate time that this would create an operational difficulty for the school. This lead the FWC to conclude, while the issue was finely balanced, that the school has a sound and valid reason for terminating the teacher’s employment.

However, the FWC also found that it was not reasonable for the school to have refused to adopt one of the alternative options to dismissal that was suggested by the employee. It found that the employee’s proposal of taking leave without pay until the criminal charges were determined would not have been onerous or impracticable for the school.

As a result, the FWC considered the school’s decision not to adopt one of the employee’s alternatives to dismissal to be particularly harsh and quite unreasonable and as a consequence the termination of his employment was harsh, unjust and unreasonable.

The FWC ordered the teacher’s reinstatement and lost income from the date of his acquittal. The teacher was not awarded compensation for loss of income prior to his acquittal because of his offer and preparedness to go on leave without pay pending the outcome of the criminal charges.

Caution advised

The Victorian Working with Children Act does not precisely replicate the NSW legislation. It has a broader definition of what constitutes “direct contact” with a child for the purpose of ascertaining whether a WWC Check is required. However, the Victorian Act does provide for the suspension of a person’s WWC Check if they have been charged with a relevant offence. Further, a teacher’s registration may be suspended by VIT if the teacher is charged with a sexual offence.

The decision to terminate the employment of an employee whose WWC Check or teaching registration has been suspended can result in an unfair dismissal claim. When considering what action to take in respect of an employee in this situation, and while waiting for the outcome of criminal charges, schools should carefully consider:

• the impact on the school of the employee not being able to undertake their substantive position involving child related work, particularly if the employee is a teacher
• whether the employee could be directed into a temporary alternative role that involves non-child related work
• whether other alternative options exist, such as the employee taking leave or unpaid leave or being suspended with or without out pay
• other relevant circumstances, such as the teacher’s length of service, any previous bad record and the impact on the employee of losing their employment while waiting for criminal charges to be determined
• any relevant terms and conditions of the employee’s contract of employment and policies of the school.

As each case will differ, we recommend that schools seek legal advice before making a final decision when dealing with staff whose WWC Checks have been suspended pending determination of criminal charges against them.

Reference:

Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney [2017] FWC 4722 (27 September 2017).