[2015] FWC 1593

The attached document replaces the document previously issued with the above code on 1 May 2015.

To correct minor typographical errors.

Myles Vincent

Associate to Commissioner McKenna

Dated 4 May 2015

[2015] FWC 1593 [Note: An appeal pursuant to s.604 (C2015/2886) was lodged against this decision - refer to Full Bench decision dated 22 July 2015 [[2015] FWCFB 4952] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Gerald Mahony
v
Dr Daniel J White (Executive Director of Schools of the Catholic Education Office Sydney) T/A Catholic Education Office Sydney
(U2014/3684)

COMMISSIONER MCKENNA

SYDNEY, 1 MAY 2015

Application for relief from unfair dismissal.

[1] This decision considers a discrete jurisdictional issue concerning an application for an unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 by Gerald Mahony (“the applicant”) in relation to the termination of his former employment. The respondent to the application is Dr Daniel J White (Executive Director of Schools of the Catholic Education Office Sydney) T/A Catholic Education Office Sydney (“the CEO”). The CEO is an agency of the Roman Catholic Archdiocese of Sydney and Dr White is the nominated employer for CEO employees.

[2] The CEO submits that the applicant’s employment has not been terminated on the CEO’s initiative within the meaning of s.386(1) of the Fair Work Act because the applicant’s employment came to an end by operation of the doctrine of frustration. The written outline of submissions for the CEO put matters this way:

[3] The applicant, while conceding he could not, by operation of the Child Protection (Working with Children) Act 2012 (NSW), engage in child-related work as he could not obtain a working with children check clearance at the time (or presently), submits the contract of employment was not frustrated.

[4] As to the threshold issue, frustration automatically ends the contract. In this regard, it is, however, a condition-precedent to jurisdiction in relation to an application for an unfair dismissal remedy for there to have been a dismissal. That is, the Fair Work Act provides at s.385(a) a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed. In this regard, the Fair Work Act also relevantly describes the meaning of “dismissed” in the following terms:

[5] In the proceedings to consider the threshold issue, the parties tendered an agreed statement of facts and documents. Among other documents, witness statements prepared by the applicant and the CEO’s Human Resources Director were also tendered without objection and without cross-examination.

Background

[6] The applicant commenced employment with the CEO in 1986. In the succeeding years, the applicant worked as a teacher and then as a religious education coordinator in a number of secondary schools.

[7] Following a number of developments from in or about April 2012, which are unnecessary to detail for the purposes of this decision, the applicant was, on 23 September 2012, arrested and charged with a number of offences. Those charges related to alleged offences under certain sections of the Crimes Act 1900 (NSW). The applicant has pleaded not guilty, is defending the charges, and has been bailed.

[8] Further to correspondence from the CEO to the applicant dated 26 September 2012, a meeting was held on 4 October 2012. The applicant attended the meeting with a union official and a barrister. At that meeting, the CEO’s representative informed the applicant he would be suspended with pay until the determination of the criminal trial. The reasons for the decision and the considerations that arose in suspending the applicant from his employment were set out in a statement made by the CEO’s Human Resources Director. Aspects of what was said in the meeting were recounted in a statement made by the applicant’s barrister. The CEO later also separately first informed the applicant by telephone on 10 October 2012 and then confirmed by letter dated 12 October 2012 as follows: “You are directed at this stage not to engage in tutoring with student [sic] or children from any school system during the period of your suspension from duties”. It is not clear, but it appears this direction may have referred to private tutoring outside the applicant’s employment with the CEO.

[9] The industrial instrument applicable to the applicant and the CEO, namely the Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) Enterprise Agreement 2011, contained a provision dealing with suspension which provided:

The successor enterprise agreement, namely the Teachers (Archdiocese of Sydney and Dioceses of Broken Bay and Parramatta) Enterprise Agreement 2013, was approved by the Commission on 16 May 2013. The successor enterprise agreement contains, also in a clause numbered 18.6, an identically-worded provision dealing with suspension.

[10] By letter dated 10 May 2013, the CEO wrote to the applicant outlining certain matters and advising the applicant it was moving to suspend him without pay until “the matter is resolved”. The CEO requested that the applicant provide written reasons within five working days why his salary should be maintained in circumstances where he was the subject of charges concerning sexual assault. The CEO also advised that a failure to respond in writing within five days would lead to suspension from employment without pay.

[11] The applicant, through his solicitors, responded by letter dated 21 May 2013. The letter addressed matters including the following:

[12] The response from the applicant’s solicitors then set out a number of other matters, which I do not recount in this decision, before concluding:

[13] On 28 May 2013, the applicant was the subject of further charges resulting from allegations made by the same complainant but the prosecution is proceeding only with certain charges.

[14] On 15 June 2013, the Child Protection (Working with Children) Act commenced. From the commencement of that statute and associated regulations, the applicant would not have been able to obtain a working with children check clearance and could not, thereby, engage (or be engaged by the CEO) in child-related work because he was - given the pending determination of the criminal charges in question - a “disqualified” person within the meaning of that legislation.

[15] On 19 November 2013, the applicant learned his salary sacrificing for superannuation had ceased in May 2013. On 20 November 2013, the applicant sent an emailed communication to an employee of the CEO’s payroll office noting that the salary sacrifice arrangements had ceased in May 2013 without his knowledge or consent. He also noted that when he had requested the signed consent form he would have had to complete to stop salary sacrificing he had been informed it was not available and that the name of the payroll officer who had stopped the salary sacrificing could not be provided. The applicant further wrote in his email he had never made any verbal or written request that his income no longer be salary sacrificed and requested that all salary sacrifice payments be backdated immediately; and requested that he be contacted in writing in relation to the matter. A short time later that same day, the applicant sent a further email to another CEO employee with a request concerning the percentage of his salary sacrificing to be operative from 6 December 2013. The applicant requested that printed copies of all future payslips be posted to him in circumstances where he did not have access to “self service” and also requested that copies of certain past payslips be posted to him given he had not received payslips since a particular pay run.

[16] There was no evidence of any response from the CEO’s payroll office to the matters raised in the applicant’s two emails of 20 December 2013. However, by letter dated 20 November 2013, the CEO wrote to the applicant in the following terms requesting a meeting to propose that the applicant voluntarily move to leave without pay:

[17] By letter dated 27 November 2013, the applicant’s solicitors requested that all future correspondence be sent to them rather than to the applicant directly. The applicant’s solicitors advised that the applicant was not, for the reasons set out in their earlier letter of 21 May 2013, prepared to voluntarily move to leave without pay and further advised that, in those circumstances, the applicant would not attend the meeting to discuss the CEO’s proposal. The letter read:

[18] As a result of delay attributed as being caused by the applicant’s solicitors, the above letter of 27 November 2013 from the applicant’s solicitors to the CEO was not received by the CEO until after the scheduled commencement time of the proposed meeting of 28 November 2013.

[19] By letter dated 28 November 2013, the CEO wrote directly to the applicant, advising he was required to attend a meeting on 12 December 2013. That letter read:

[20] By letter dated 5 December 2013, responding to the CEO’s letter of 28 November 2013, the applicant’s solicitors explained the reasons for the delay; again requested that CEO correspondence be directed to them rather than to the applicant directly; nominated the applicant’s solicitor as his support person for the meeting; and requested that the meeting be rescheduled for either the day before or the day after the date specified by the CEO. The letter from the applicant’s solicitors read:

[21] The applicant and his solicitor attended a meeting with representatives of the CEO on 13 December 2013, being a date which was agreed in lieu of 12 December 2013. A 10-page transcript of what was said at that meeting on 13 December 2013 was in evidence.

[22] Among other matters, the CEO’s representative requested that the applicant voluntarily seek leave without pay. The CEO’s representative advised that if the applicant was acquitted or all the charges were dismissed or withdrawn, and he were regarded as fit to return to work following an independent investigation, the CEO would be willing to back-pay the applicant for the relevant period. The CEO’s representative stated that the CEO was of the view the applicant was not in a position to teach even if he were acquitted and the alternative was that if the applicant did not wish to agree to leave without pay his employment would be terminated that day with five weeks notice in accordance with the enterprise agreement. The applicant’s solicitor stated he would not advise his client to make any decision that day.

[23] A broad-ranging discussion then ensued in the meeting on 13 December 2013, which traversed various matters including what had been said when the applicant was initially suspended with pay; the operation of the enterprise agreement; the operation of the child protection legislation; the expenses or economic burden of suspension with pay and without pay; the length of time that had elapsed since the commencement of the suspension; the “interplay” of the legislation and the enterprise agreement; and the amounts the applicant would receive in termination payments. The following exchange was recorded in the transcript of the meeting, among other things that were said during that meeting:

[24] Further discussion ensued during the meeting of 13 December 2013 about process, including investigation processes consequent upon any acquittal under the supervision of the NSW Ombudsman; standards of proof; trust and confidence; time estimates; and other matters. At one point in the meeting, the applicant’s solicitor provided a medical certificate concerning the applicant to the CEO’s representative.

[25] Towards the end of the meeting, the applicant’s solicitor stated, among other matters, that his “imperative will be getting advice from an employment barrister, so if I can, I will.” In such respects, it was agreed the applicant’s solicitor would “get back” to the CEO’s representative by 4.45pm on Friday, 20 December 2013 or otherwise as soon as he could.

[26] On 16 December 2013, and although there was only hearsay in the applicant’s evidence as to this matter, the applicant’s union representative is said to have discussed matters concerning the applicant with the CEO’s representative, including with reference to the Child Protection (Working with Children) Act.

[27] Although it had been agreed at the meeting on 13 December 2013 that the applicant’s solicitor would respond to the CEO’s representative by 4.45pm on Friday, 20 December 2013, the CEO, in the interim, wrote directly to the applicant in the following terms in a letter dated 16 December 2013:

[28] In a letter dated 17 December 2013, the CEO next wrote, again directly, to the applicant as follows:

[29] By letter dated 19 December 2013, the applicant’s solicitors wrote to the CEO in the following terms:

[30] The letter signed by the applicant personally to which reference was made in the letter dated 19 December 2013 from the applicant’s solicitors to the CEO read as follows:

[31] Although the applicant’s solicitors had initially confirmed on 19 December 2013 that they and their client would attend the show cause meeting at 8.00am on 20 December 2013, the applicant’s solicitors later that same day sent a second letter dated 19 December 2013 to the CEO. The second letter sought a medical certificate-supported adjournment of the meeting scheduled for 8.00am the following day, Friday 20 December 2013. The letter from the applicant’s solicitors to the CEO read:

[32] For its part, the CEO did not respond to the second letter from the applicant’s solicitor of 19 December 2013 which requested an adjournment of the meeting scheduled for 8.00am on 20 December 2013. For his part, the applicant did not attend the meeting at 8.00am on 20 December 2013.

[33] By letter dated 20 December 2013, the CEO dismissed the applicant with a payment in lieu of notice. The letter advising of the dismissal read:

[34] There was evidence of various communications from the applicant to the CEO that followed the termination of employment, about matters including incomplete or incorrect documentation concerning the termination of employment (such as the failure to provide the “Schedule of Payments” referred to in the letter of termination of employment and incorrect and incomplete Employment Separation Certificates), as well as further requests for payslips.

Consideration

[35] I accept the submissions for the CEO that the child protection laws in New South Wales plainly can operate to frustrate the contract of employment of an employer and employee coming within the purview of that legislation.

[36] The particular factual circumstances of this application lead me to the view, however, that the applicant’s employment with the CEO was, within the meaning of s.386 of the Fair Work Act, terminated on the employer’s initiative.

[37] Consequent upon matters including, but not limited to, its consideration of the criminal charges, the CEO on 4 October 2012 decided to suspend the applicant pending the determination of those charges and, later in October 2012, also directed the applicant not to engage in tutoring of any students or children from any school system during his suspension from duties.

[38] The Child Protection (Working with Children) Act came into operation in June 2013. The CEO continued to employ the applicant after the commencement of the child protection legislation, during which time the applicant remained suspended from his employment and under direction not to engage in tutoring.

[39] Following the commencement of the Child Protection (Working with Children) Act - and irrespective of the CEO-initiated suspension then already in place - the applicant would not have been able to obtain a working with children check clearance because s.18 of the Child Protection (Working with Children) Act provides the Children’s Guardian must not grant a working with children check clearance to “disqualified persons”. Disqualified persons include a person convicted of certain offences set out in a Schedule to that Act and (relevantly in the case of the applicant) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

[40] A worker is engaged in child-related work for the purposes of the Child Protection (Working with Children) Act if the worker is engaged in work that involves direct contact by the worker with children. Direct contact with children is defined to mean physical contact or face-to-face contact. The applicant was not engaged in child-related work that involved direct contact by him with children following the commencement of the Child Protection (Working with Children) Act on 15 June 2013 or as at 20 December 2013 when the CEO effected the dismissal with a payment in lieu of notice. That is, the applicant was, at all relevant times following the commencement of the Child Protection (Working with Children) Act in June 2013 - being the statute principally relied on by the CEO in relation to its submissions concerning frustration - suspended by the CEO and, thereby, not engaged in work that involved direct contact by him with children.

[41] Given the extant charges, it is clear the applicant could not lawfully engage in child-related work following the commencement of the Child Protection (Working with Children) Act because he could not obtain a working with children check clearance. Equally, it seems to me, provided the applicant was not engaged in child-related work that involved direct contact with children, there would appear to have been no legal impediment to the CEO continuing to employ the applicant from on or after 15 June 2013 (when the legislation commenced) or from on or after 20 December 2013 (when the CEO dismissed the applicant) - subject to the applicant being, for example:

[42] The CEO determined not to accede to the applicant’s request of 19 December 2013 that he proceed onto his paid leave entitlements while suspended, instead of, as had been put to him at the meeting of 13 December 2013, that he agree to apply for leave without pay while suspended or be dismissed. At the date of dismissal, the applicant had an entitlement to accrued leave entitlements which, but for the termination of his employment, could have been accessed as the applicant had proposed in his “compromise”. In this regard, the amended (fourth) Employment Separation Certificate issued by the CEO records the applicant was paid-out 16 days of annual leave and 143.18 days of long service leave in connection with the termination of employment.

[43] If the CEO had agreed to the applicant’s proposal that - instead of the applicant pressing for a continuation of a paid suspension - he consent to the ongoing suspension and immediately access his paid leave entitlements so as to take him “well into the next year”, acceptance of that proposal would have allowed the applicant’s employment with the CEO to continue for a period of time and, otherwise, would not have raised any issue concerning the applicant engaging in child-related work that involved direct contact by him with children.

[44] As an aside - and I put it no higher than an observation - I doubt the applicant had any proper basis to assert entitlement to a continuation of payment of wages consequent upon the enactment of the Child Protection (Working with Children) Act in June 2013, whether under the terms of the enterprise agreement or otherwise. That is, the CEO initially had unilaterally determined to suspend the applicant from his employment in October 2012. In those circumstances, and given the nature of clause 18.6 of the enterprise agreement, the suspension provisions were thereby likely engaged. From the commencement of the Child Protection (Working with Children) Act, however, the legislative circumstances were such that the applicant was then legally ineligible to be involved in child-related work in his employment with the CEO and he could not - at least pending completion of the processes arising from the operation of the then newly-enacted Child Protection (Working with Children) Act - have been able to discharge his part of the contractual bargain in the employment relationship such as to properly assert an entitlement to payment of wages. In noting that the applicant could not from the commencement of the Child Protection (Working with Children) Act discharge his part of the contractual bargain does not lead me to conclude the contract of employment was then frustrated. Looked at another way, nothing should be payable to an employee who cannot perform his or her work (absent, of course, matters including acquiescence by the employer to payment, or payments to which the employee would otherwise have a properly-supported entitlement such as paid leave entitlements). To that extent, I am unable to accept the submissions for the applicant that clause 18.6 of the enterprise agreement was designed to provide for ongoing payment of wages in circumstances such as those encountered by the applicant in having extant charges and being, consequent upon the commencement of the Child Protection (Working with Children) Act, legislatively incapable of performance of work which would involve direct contact with children.

[45] The applicant’s inability to obtain a relevant clearance is a matter which may prove to be a temporary period - although, on the facts of this case, admittedly an unexpectedly extended period (depending what may unfold in relation to the criminal charges). As at the date of the dismissal, the trial was set to commence on 15 May 2014 but, as at the day of the hearing of this matter, had been again adjourned to commence in August 2015 because the police prosecution case was not ready to proceed. In this regard, I am cognisant of the matters outlined in the agreed statement of facts and documents that, even if the applicant were acquitted of the charges against him, the applicant will be subject to, among other considerations, an investigation under the Ombudsman Act 1974 (NSW) and a risk assessment under the Child Protection (Working with Children) Act to determine if the applicant poses a risk to the safety of children.

[46] Among other matters, the CEO’s representative advised the applicant at the meeting on 13 December 2013 he would be dismissed that day unless he consented to applying for leave without pay (i.e. making an application for leave without pay as opposed to, apparently, consenting within the meaning of cl.18.6 of the enterprise agreement to an unpaid suspension). The applicant’s solicitor sought - and there was agreement to this by the CEO’s representative - that time be allowed until 4.45pm on Friday 20 December 2013 for the applicant’s solicitor to seek advice from an employment barrister about matters canvassed in the meeting of 13 December 2013.

[47] Although the transcript of the meeting of 13 December 2013 records that the meeting adjourned on the basis the applicant’s solicitor would have until 4.45pm on 20 December 2013 to obtain advice and get back to the CEO’s representative, the CEO subsequently sent two items of correspondence directly to the applicant. By letter dated 16 December 2013, the CEO directed the applicant to attend that meeting at 8.00am on 20 December 2013. By letter dated 17 December 2013, the CEO wrote to the applicant next advising that the meeting was for the applicant to show cause why his employment should not be terminated.

[48] As the applicant’s solicitors noted in their correspondence of 19 December 2013, the decision of the CEO to write to the applicant requiring attendance at a meeting, which was later advised to be a show cause meeting, was a “different proposition” to the course that had been agreed in the meeting of 13 December 2013. As things transpired, the applicant’s solicitors confirmed to the CEO by letter dated 19 December 2013 the applicant consented to the ongoing suspension, and otherwise further sought that the applicant immediately proceed onto his paid leave entitlements. The applicant’s solicitors then subsequently also sought in a second letter dated 19 December 2013 a medical certificate-supported adjournment of the show cause meeting scheduled for 8.00am on the following morning of 20 December 2013. There was neither reply to the adjournment request nor attendance at the meeting.

[49] The CEO proceeded to issue a letter of dismissal, effective 20 December 2013, with advice as to a payment in lieu of notice.

[50] How the contentions about the doctrine of frustration as against what was, in form and in substance, a dismissal for cause - with the reasons thereto described in fifth paragraph of the CEO’s letter of 20 December 2013 advising of the termination of employment - are to be reconciled is not immediately apparent.

[51] The factual circumstances described in the evidence and submissions concerning the threshold issue suggest there was a dismissal at the initiative of the employer, rather than the termination of employment by frustration of the contract of employment. There was little or nothing to suggest that any specific reliance was placed on the doctrine of frustration of the contract of employment at or around the time of the dismissal, although that would not, in and of itself, necessarily be determinative of the threshold issue. Nonetheless, in this regard, I would note what was said in Walsh v Police Association [2000] VSC 292; (2000) 140 IR 58 by Gillard J in a case concerning (as so many of the cases concerning frustration of the contract of employment) incapacity to perform some or all duties due to long-term illness or injury:

[52] For the CEO, cases relied upon included Nelson v Moorcraft [2014] WASCA 212 and Finch v Sayers [1976] 2 NSWLR 540, and the authorities cited therein. Other cases were referred to in certain text extracts submitted or relied upon by the applicant, some of which I have read for the purposes of this decision (including the interesting legal and factual circumstances described in F C Shepherd & Co Ltd v Jerrom [1987] 1 QB 301, an imprisonment-type case). I have considered those cases and materials. Unfortunately, the cases directly referred to in the proceedings and others I have read in connection with frustration have provided little assistance; and none is directly in point. As counsel for the CEO noted in the proceedings, the Child Protection (Working with Children) Act appears to create a “new paradigm” which, although I was not taken to the predecessor legislation, was submitted by the CEO to differ in its operation and effect to what had gone before - given it operates in relation to persons against whom charges have been laid as well as against persons convicted of certain offences.

[53] It also may be noted that, on the evidence before me as to the policy concerning persons such as the applicant (albeit the policy does not appear to have been updated since the commencement of the Child Protection (Working with Children) Act), the NSW Government, itself an employer of teachers, does not treat the existence of extant criminal charges of the type brought against the applicant as automatically frustrating the contracts of employment of the teachers it employs in State schools. The applicant’s solicitor referred to this policy in the proceedings, but the policy approach of an employer other than the CEO would not, of course, be determinative in relation to the matters raised in this application. In circumstances where the applicant tendered the existing policy of the NSW Government, leave was granted to the CEO to provide any more current policy following the hearing - but none has been filed.

[54] On what was before me at this stage, it is difficult to distil what occurred as matters began accelerating in relation to the sequence of events following the meeting of 13 December 2013, the correspondence that was exchanged following that meeting, and the letter of dismissal of 20 December 2013. While it is difficult to distil what occurred, it is also unnecessary, not relevant or inappropriate at this stage to make any findings about some such matters given the narrowness of the jurisdictional issue arising for determination at this point of the proceedings.

[55] I do not accept the CEO’s contention, as set out in its written outline of submissions, that frustration of the applicant’s contract occurred on the commencement of the Child Protection (Working with Children) Act. In this regard, I would also observe that if the CEO’s submissions were accepted, the contract of employment automatically terminated at the point of alleged frustration - that is, on the date coinciding with the commencement of that statute on 15 June 2013. A contract of employment cannot, however, be terminated twice: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 at 112. Here, termination of the applicant’s employment by operation of the doctrine of frustration cannot have occurred on the commencement of the child protection legislation on 15 June 2013 and then also have terminated on that same basis on 20 December 2013.

[56] The applicant was dismissed, with a payment in lieu of notice, when his employment with the CEO was terminated on the CEO’s initiative on 20 December 2013. The background to the reasons for the decision to dismiss were set out in the witness statement of the CEO’s Human Resources Director, and it was principally in the fifth paragraph of the CEO’s letter of 20 December 2013 that the CEO advised the applicant why the dismissal had been effected.

[57] The respondent’s jurisdictional objection is dismissed.

[58] The matter may be relisted on the application of either party for further directions. It would seem appropriate, given the circumstances of this case, that the parties should confer about any directions and the timing thereto that may be proposed prior to making any such relisting application.

COMMISSIONER

Appearances:

I Collins, solicitor, for the applicant.

J Fernon SC for the respondent.

Hearing details:

2015.

Sydney

March, 4.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561756>