[2014] FWC 6413

The attached document replaces the document previously issued with the above code on 3 October 2014.

The references to the two decisions in paragraph [1] have been amended.

Bronwyn Brown


Dated: 7 October 2014

[2014] FWC 6413


Fair Work Act 2009

s.394—Unfair dismissal

Michael King
Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta



Application for unfair dismissal remedy.


[1] This decision deals with the issue remitted to me by the Full Bench in its Decision of 10 April 2014 [2014] FWCFB 2194. The Full Bench considered an appeal by the original applicant Mr Michael King (the Applicant) against my decision at first instance of 20 November 2013 [2013] FWC 8914. The Catholic Education Office Diocese of Parramatta (the Respondent) also cross appealed.

[2] The Applicant’s application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged on 6 February 2013.

[3] The matter was argued before me for five days in September/October 2013, concluding on 11 October 2013. The Applicant was represented by Mr J. Phillips, Senior Counsel and the Respondent by Mr P. Moorhouse, Counsel.

[4] In my decision I found that there was a valid reason for the Applicant’s dismissal because he had “wilfully disobeyed a clear direction from the employer not to transport students in his own car to surf lifesaving activities”.(paragraph [51]) I found that even though the activities took place in the Applicant’s own time there was a relevant connection to the school and the interests of the Respondent.

[5] However, I found that, notwithstanding there was a valid reason, the dismissal was harsh, unjust and unreasonable because:

[6] I decided that reinstatement was not appropriate. Essentially that was because of the loss of trust and confidence of the Respondent in the Applicant. I awarded $41,816 in compensation.

The Appeal Decision

[7] I will summarise the key aspects of the Full Bench Decision.

[8] The Full Bench upheld my decision that the direction to the Applicant not to transport students in his own time and car to and from lifesaving activities, was lawful. They agreed therefore that there was a valid reason for the dismissal. (paragraphs [36] and [37])

[9] My decision to refuse reinstatement was also upheld. The Full Bench agreed that the loss of trust and confidence by the employer rendered reinstatement inappropriate. (paragraph [43])

[10] Crucially, the Full Bench found that I had erred in not giving consideration to the propositions that the Applicant be reinstated to another school in the Diocese or to the Diocese’s head office. The relevant findings are set out below:

[11] The Full Bench dismissed the Respondent’s cross appeal. It held that my decision that the dismissal was harsh, unjust or unreasonable was reasonably available to me.

[12] The Full Bench’s Order was as follows:

Proceedings after Appeal Decision

[13] I conducted a telephone conference of the parties on 17 April 2014 to discuss the future conduct of the matter in view of the Full Bench Decision. The matter was adjourned to allow discussions between the parties.

[14] Directions were issued as follows:


[15] The matter was set down for hearing on 30 May 2014.

[16] At the request of the Applicant, the hearing was postponed to allow investigations and discussions to continue.

[17] Ultimately, as a result of a further programming telephone conference on 29 May, it became apparent that discussions had not produced agreement on an alternative position and the matter was set down for hearing.

[18] At the 19 August hearing Mr J. Pearce of Counsel represented the Applicant and Mr P. Moorhouse of Counsel represented the Respondent.

[19] The Applicant relied on oral evidence and submissions and:

[20] The Respondent relied on oral evidence and submissions and:

The Correct Legal Entity which was Employer

[21] One aspect which I need to clarify is the legal entity which was the employer of the Applicant. This was not a matter which was argued or in contest before me in the original proceedings or, it would seem, before the Full Bench.

[22] However, the nature of the Full Bench’s Order means that the matter needs to be considered in more detail.

[23] The original F2 form lodged by the Applicant described the employer as “Catholic Education Office Diocese of Parramatta trading as Catholic Education Office”.

[24] The F3 form lodged by the Respondent described the employer as “Trustees of the Roman Catholic Church for the Diocese of Parramatta trading as Catholic Education, Diocese of Parramatta”.

[25] It is now agreed by the parties, and I accept, that the F3 description is correct.

[26] The Commission’s file and notices of listing reflect the description used by the Applicant. In the proceedings, including documents tendered for the 19 August hearing, the terms “Catholic Education Office” and “Catholic Education” are used interchangeably.

[27] In my 20 November 2013 decision I described the employer as “the Diocese”. (paragraph [11])

[28] The Full Bench described the employer as the “Catholic Education Diocese of Parramatta (the Diocese)”. (paragraph [1])

[29] The Catholic Education Office is an administrative/operational entity established by the Trustees for the purpose of conducting its educational activities, including the employment of teachers. For practical purposes, the Catholic Education Office/Catholic Education whichever term is used, was the employer. The Respondent’s position is that “the practical and real position is that the Catholic Education Office acts for all purposes as the employer”. (Mr Moorehouse, Transcript PN[3548])

[30] It seems clear that the Full Bench’s Order was intended to relate to positions within the control of the Catholic Education Office. However, given the technically broader legal entity of the employer, it may be that there are other positions employed by the Trustees, within the Diocese, but outside the Catholic Education Office’s area of responsibility which could be considered, consistent with the Full Bench’s Order. I will discuss whether this is a theoretical rather than a practical issue below.

Legislative Provisions

[31] The relevant legislative provisions dealing with unfair dismissal were set out in full and discussed in my original decision and the Appeal Decision. They do not need be repeated.

[32] However, it is appropriate to set out the relevant section dealing with reinstatement in full.

Applicant’s Submissions

[33] The Applicant submits that the Full Bench remitted the matter to me to consider reinstatement to an alternative position within the Trustee’s employment at the Catholic Education Office, Head Office or elsewhere in the Diocese that was not a teaching position. It accepted that the position cannot involve unsupervised interaction with students.

[34] The Applicant submits that the Commission should take a broad and practical approach. The fact that there is not a job vacancy is “simply one factor to be taken into account” Rio Tinto Coal Australia Pty Ltd v Smith and others (PR957290 at [19]) (Rio Tinto).

[35] The Applicant’s statement Exhibit A1, summarised the steps he had taken to search for positions within the Diocese that were consistent with the Full Bench’s Decision. He stated he was willing to perform any work that falls within the orders and undertake any necessary training. The discussions and correspondence between the parties has been extensive and is attached to his statement. The Applicant himself has been searching online, on a daily basis, for relevant positions.

[36] In July the Applicant applied for two vacant positions working with Catholic Care Social Services, Diocese of Parramatta in the position of Disability Work - Community Service Worker and House Co-ordinator. The Applicant understood that the Respondent’s response to these applications was that they did not fall within the Full Bench’s Orders because they were not within the Catholic Education Office. (paragraph [15])

[37] The Applicant concedes that finding “suitable available positions that do not involve teaching and that do not involve unsupervised interaction with students” given his 37 year commitment to teaching, presents some challenges. However, he expresses enthusiasm for a new role within the Diocese. (paragraphs [17] and [18])

[38] The Applicant’s commitment to the Catholic Church and to continuing to work for the Diocese is clear. In correspondence to the Respondent, on 30 April, the Applicant’s lawyers nominated a range of key personnel in various positions within the Diocese who could be consulted about possible positions.

[39] The Applicant submits that s.391(1A) requires the Catholic Education Office to investigate options within the Diocese, including any other associated entity. Exhibit A2 and A3 were recent advertisements/job descriptions within the Diocese. Some of them appeared suitable to the Applicant’s skills and experience, for example Volunteer Co-ordinator at St. John of God Hospital, Richmond. Others less so, such as Domestic Laundry and Ironing Services.

[40] The Applicant testified that he had not had paid employment since the dismissal (PN[3593])

Respondent’s Submissions

[41] The Respondent submits that there is no suitable position presently available for the Applicant consistent with the Full Bench’s Order and that reinstatement consistent with the order is inappropriate.

[42] The Full Bench’s Order should be taken as a reference to positions within the Catholic Education Office Parramatta. It is not appropriate to order reinstatement to a position in the Diocese outside the Catholic Education Office. The Catholic Education Office acts as the employer for all practical purposes and is an autonomous unit. The only evidence, at first instance, related to non-teaching positions within the Catholic Education Office Parramatta Head Office. The evidence does not disclose any position within the Diocese, but outside the Catholic Education Office, that would be suitable for the Applicant. All positions in schools involve unsupervised contact with children.

[43] Ms Hendricks’ statement listed positions within the Catholic Education Office Parramatta vacant as at 5 August 2014. It is submitted that none of these positions is suitable for the Applicant or if they are, they are not consistent with Order 3. (paragraph [15] and Attachment F) Administrative staff are paid less than the salary received by the Applicant.

[44] In the event reinstatement was ordered, the Respondent opposes orders for lost wages and continuity of service.

[45] The responses from the contacts within the Diocese identified by the Applicant did not disclose any position suitable to the Applicant (Exhibit R2, paragraph [19]). Attachment J to Exhibit R2 contains the correspondence from the Respondent to them.

[46] The Respondent’s letter to the Applicant’s solicitor dated 2 May 2014, (Attachment F to Exhibit R2) summarised available positions within the Catholic Education Office and the reasons why they were not suitable for the Applicant. It attaches flow charts of all positions. There are many of them. Some, such as financial roles would clearly not be suitable to the Applicant, others in the “educational policy” area would appear to be suitable and within the Full Bench’s Order but there are no vacancies.

[47] Ms Walsh’s statement (Exhibit R1) deals with her area of responsibility - teaching and the professional development of teachers within the Diocese. One “Team Leader, Learning Frameworks” position is likely to come up in early 2015. Ms Walsh asserts that the Applicant does not have the skills or experience to fill that position. Its salary is in the $130,000/$140,000 range. Other positions are either not vacant or would involve some unsupervised contact with students. Clerical and administrative roles are not at the Applicant’s salary level.

[48] In cross-examination Ms Walsh testified as to the possible availability of two team leader positions. (PN[3701] - [3715]) These were in schools with some contact with children. The “professional learning team” appeared to comply with the Full Bench’s Order (PN[3750] - [3762]) and a teaching background was common. Similarly those in the “leadership program” appeared to comply. These are programs run at Head Office. However, Ms Walsh asserted that the Applicant did not have sufficient leadership experience as, for example, a principal. (PN[3790 - [3791])


[49] In my original decision I decided not to reinstate the Applicant. I came to this decision exercising the discretion given to the Commission pursuant to s.390(3). I came to the judgment that reinstatement was inappropriate but that payment of compensation was appropriate. I will not repeat the reasons that I gave, which I believe are still valid.

[50] However, as the Full Bench said I did not give consideration to reinstatement to an alternative non-teaching position. This possibility was raised by counsel for the Applicant as an alternative possible course of action at the end of his submissions. There was no substantial evidence about it.

[51] The Full Bench Decision requires me to again exercise the Commission’s discretion pursuant to s.390(3) but constrained by the terms of the Full Bench’s Order. Because of the exact legal personality of the employer, which I have dealt with above, there was some debate about the reach of the Order. There was ultimately no contest however, that any position in schools, whether teaching or non-teaching, was excluded from consideration, because of the possibility that it would involve unsupervised interaction with students.

[52] I am of the view that the intent of the Full Bench’s Order was for me to give consideration to the appropriateness of reinstatement in the broadest practical sense consistent with the Order. I have therefore given consideration to positions within the Diocese but, outside the responsibility of the Catholic Education Office. Of course, this requires balancing the particular circumstances relating to these positions within the overall judgment as to appropriateness.

[53] As the Applicant himself concedes, reinstatement is difficult because I am unable to consider those positions to which his 37 years experience and skills make him suitable - teaching and any role that involves unsupervised contact with students. The Applicant saw teaching as a vocation. I accept, however, that he is committed to the Church and its activities in the broadest sense. He has had experience in a range of educational, church and community roles. I do not doubt that he wants to continue to contribute to the Diocese.

[54] The issue is whether I consider it appropriate to reinstate the Applicant to another position on terms and conditions no less favourable than those in which he was employed immediately before the dismissal. Of course, the position must be consistent with the Full Bench Order.

[55] The terminology in industrial legislation has changed but the test has remained essentially the same. In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. The Full Bench of the Industrial Relations Court (the IR Court) dealt with the test of “impracticality”. It took the view that it involved a discretionary weighing of all relevant factors. The IR Court emphasised that each case must be decided on its merits (page 191). The same approach was taken by the Full Bench in Regional Express Holdings Ltd v Richards (2010) 206 IR17 in dealing with the Fair Work Act. In Lambley v DP World Sydney Ltd [2012] FWA 1250 Deputy President Sams accepted that “impracticality” found in earlier statutes is interchangeable with “inappropriateness” under the Fair Work Act (paragraph [162]).

[56] The unavailability of a position or the fact that it has been filled is not of itself fatal to an application but it is a relevant factor.

[57] The Full Bench in Rio Tinto stated:

[58] Some reliance was placed by Counsel for the Applicant on cases relating to redeployment in a redundancy situation. I find this argument of limited use.

[59] The Full Bench in Technical and Further Education Commission T/A TAFE NSW v L. Pykett [2014] FWCFB 714 (Pykett) dealt with the redeployment issue and the nature of the reinstatement order. It held:

[60] The reinstatement order in Pykett identified a position and specified that the terms and conditions must be no less favourable than those on which the Applicant was employed immediately before the dismissal. The Full Bench dismissed the challenge to the nature of the Order. It stated:

[61] The Full Bench in Pykett commented on the evidentiary difficulties in a redeployment case where the facts “will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee” (paragraph [36]). I expanded upon this difficulty in my decision in Teterin v Resource Pacific Pty Limited ([2014] FWC 1578) (Teterin) especially in dealing with the displacement of contractors (see especially paragraphs [111] - [115]).

[62] This difficulty is increased when dealing with an application for reinstatement pursuant to s.391(1)(b). A position which is appropriate/practical needs to be identified. Evidence as to an employer’s broad operations will be limited and it may not be appropriate for the Commission to take on a role which is so interventionist without very clear and persuasive evidence. I cannot find that there is such evidence in this case.

[63] Notwithstanding my view that positions within the Diocese, but outside the control of the Catholic Education Office should be considered, I do not think it appropriate to order reinstatement to any such positions because:

[64] This leaves for consideration possible positions within the Catholic Education Office Head Office. I find that there is insufficient evidence to support reinstatement to an appropriate position in this area because:


[65] In all the circumstances, I am satisfied that it is inappropriate to reinstate the Applicant by appointing him to another position in accordance with s.391(1)(b).

[66] In accordance with paragraph [5] of the Full Bench’s Order, my Order of 20 November 2013 (PR544735) shall remain in effect.



J. Pearce of counsel with A. Dorahy, solicitor for the Applicant.

P. Moorhouse of counsel with D. Lynch for the Catholic Education Office Diocese of Parramatta, for the Respondent.

Hearing details:



August, 19.

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