[2014] FWCFB 2194
The attached document has been amended to correct an error at paragraph [3], “16 January
2014” has been amended to “19 December 2013”.
Nathan Hill
Associate to Vice President Hatcher
Dated 10 April 2014
1
Fair Work Act 2009
s.604 - Appeal of decisions
Michael King
v
Catholic Education Office Diocese of Parramatta T/A Catholic Education
Diocese of Parramatta
(C2013/7604)
Catholic Education Office Diocese of Parramatta T/A Catholic Education
Diocese of Parramatta
v
Michael King
(C2013/7781)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER BULL SYDNEY, 10 APRIL 2014
Appeal against decision [2013] FWC 8914 of Deputy President Lawrence at Sydney on 20
November 2013 in matter number U2013/6381.
Introduction
[1] Michael King was employed as a teacher at Patrician Brothers’ College, Blacktown
(the College), on 27 January 1976. The College forms part of the Catholic Education Diocese
of Parramatta (the Diocese), which was Mr King’s employer. Mr King remained in that
employment for a period of 37 years until he was dismissed. The effective date of his
dismissal was somewhat unclear, but payment of his salary ceased from 28 January 2013. The
letter which informed Mr King of his dismissal, dated 18 December 2012, identified the
reasons for his dismissal as follows (emphasis added):
“I refer to the interview in relation to the allegation that you transported students from
Patrician Brothers’ College, Blacktown in your car on weekends contrary to the
direction provided to you and policy of the Catholic Education Diocese of Parramatta.
On the basis of the information obtained from a number of parents from the school,
your written response and your admissions that you transported students without
another adult present at all times.
[2014] FWCFB 2194
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 2194
2
As you are aware you were provided with child protection training from Mr John
Honan on 23 May 2012 and you also discussed the matter with Mr Paul Davis on 5
July 2012 and the President of the Balgowlah Surf Life Saving Club.
I understand that there are no allegations of any impropriety on your part, however, as
explained by Mrs Karen Wroughton these measures are put in place to protect both
students and staff from being placed in a vulnerable situation. I am extremely
concerned that after all your teaching experience, participation in child protection
training and most recently personally directed not to transport students from Patrician
Brothers’ College, Blacktown by your principal, Mr Santo Passarello and your
Director System Performance, Mrs Anna Dickinson you transported the students.
When the transcript from the interview on 5 December 2012 is available you will be
provided with a copy.
I understand that you transported students on a number of occasions since your return
to the College in May 2012.
As such I consider that your conduct constitutes misconduct and have no
alternative than to terminate your contract of employment with the Diocese of
Parramatta.
You will receive 4 weeks in lieu of notice in addition to your holiday pay.
I am prepared to meet and discuss my findings with you but will not be in a position to
[do] so until the week commencing 21 January 2013.
If you wish to meet during that week please contact .... and she will arrange a suitable
day and time.”
[2] On 6 February 2013 Mr King made an application to the Fair Work Commission for
an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). That
application was heard by Deputy President Lawrence in a hearing which extended over five
days on 11-13 September and 8 and 11 October 2013. The Deputy President issued his
decision (Decision) on 20 November 20131. In the Decision, the Deputy President found there
to be a valid reason for the dismissal, found the dismissal nonetheless to be harsh, unjust or
unreasonable, declined to order reinstatement as a remedy, and made an order2 (Order) that
the Diocese pay Mr King the amount of $41,816 as compensation.
[3] On 10 December 2013 Mr King filed an appeal against the Decision insofar as it
involved a refusal to make orders under s.391 of the Act for his reinstatement and for the
payment of remuneration which he had lost because of his dismissal. On 19 December 2013
the Diocese filed a cross-appeal against the Decision. Because the cross-appeal was filed after
the 21-day time period prescribed by rule 56(2)(a) of the Fair Work Commission Rules 2013,
the Diocese requires an extension of time to be granted under rule 56(2)(c). This decision
concerns these appeals. Permission to appeal under s.604 of the Act is required in respect of
each appeal.
1 [2013] FWC 8914
2 PR544735
[2014] FWCFB 2194
3
Factual background
[4] As demonstrated by the letter of dismissal, the termination of Mr King’s employment
arose out of his conduct in driving students of the College from Western Sydney to and from
Bilgola Beach to participate in the activities of the Bilgola Surf Life Saving Club (the Club) in
contravention of directions issued by the College. From about 2007 to early 2012, students at
the College participated in surf lifesaving training at or in connection with the Club. This
activity was initiated and organised by Mr King, initially with the condonation if not the
imprimatur of the College. From time to time Mr King drove students in his car to and from
lifesaving activities on weekdays out of school hours, and also on some weekends.
[5] The Deputy President made a finding at paragraph [47] of the Decision which was not
challenged in the appeals that Mr Santo Passarello, the Principal of the College, issued a
direction to Mr King at a meeting in early March 2012 that from then on he was not to have
students in his car, and that he should no longer be involved in surf lifesaving activities at the
Club with students of the College. The Deputy President found that “Any doubts as to the
operative direction was removed later in the week”, and that the directions were re-affirmed at
a meeting on 27 April 2012. These further findings were similarly not challenged in the
appeals.
[6] The context in which those directions to Mr King were made is important.
Notoriously, institutions associated with the Catholic Church in Australia have been the
subject of very serious and damaging allegations of child abuse, including sexual abuse, over
the last decade and more. The College itself has faced allegations that a number of its teachers
had engaged in child sexual abuse in the 1980s. In early 2012 the NSW Police Sex Crimes
Squad established Strike Force Avia to investigate these allegations as well as allegations
involving another Catholic Primary School. The Diocese was made aware of this.
Subsequently several of the teachers were charged with criminal offences, and one of them
has pleaded guilty. Information about those matters was provided to parents of students at the
College.
[7] Additionally, specific child protection issues had arisen in respect of Mr King. Firstly,
in late 2009 an allegation was made by a student that he had been inappropriately touched by
Mr King while they were alone at the College. This allegation was investigated by the
Diocese and found to be false. However, the incident led to Mr Passarello having to discuss
with Mr King the potential risks associated with being alone with students, even for short
periods of time. Secondly, in January 2012, the College was advised that a further allegation
that Mr King had assaulted and/or interfered with a person who had been a student at the
College was being investigated by Strike Force Avia. This caused the Diocese to make a
decision at a meeting on 29 February 2012 that the College was to sever any association it had
with surf lifesaving, and that Mr King was to be directed that he could not be involved any
longer in surf lifesaving activities and could not transport students to and from surf lifesaving
activities at the Club. It was this direction which Mr Passarello communicated to Mr King in
early March 2012.
[8] On 23 March 2012 Mr King was informed at a meeting about the latest allegation
which had been made against him, and instructed that he was stood down on full pay pending
the Police investigation of the allegation. At the meeting on 27 April 2012, to which we have
earlier referred, Mr King was told that he could return to his normal teaching duties at the
[2014] FWCFB 2194
4
College, and it was in that context that the direction concerning his non-involvement in surf
lifesaving activities at the Club and transporting students there was re-affirmed. At the
meeting Mr Passarello also suggested that Mr King should undergo further one-on-one child
protection training, which was subsequently organised. The Police took no further action in
relation to the allegation.
[9] The College subsequently became aware that Mr King had not complied with the
directions concerning his involvement in surf lifesaving and the transportation of students.
The Diocese had been contacted by Strike Force Avia on 20 November 2012 and informed
that it was investigating another allegation that Mr King had been witnessed indecently
assaulting two students in the late 1980s. Later that day Mr Passarello and Ms Karen
Wroughton, who had responsibility for employment relations functions in the Diocese, held a
meeting with Mr King to inform him as to what had occurred. Mr King was instructed that he
was again stood down on full pay. At a later stage in the meeting Mr King informed Mr
Passarello and Ms Wroughton that he had been transporting students to the Club for surf
lifesaving, and asked them to contact the parents of students named on a list which he
provided to tell them he would not be able to transport the students the next Sunday. The
Diocese made contact with parents of students on the list later that day, and at least three
parents confirmed that Mr King had been driving their sons to surf lifesaving activities.
[10] Mr King was interviewed at a disciplinary meeting about his continued participation in
surf lifesaving activities and transportation of students on 5 December 2012. At this interview
he admitted that he had been driving students to surf lifesaving activities, sometimes without
a parent present. His explanation for his conduct was that he thought the directions he had
been given no longer applied because the College no longer had any link to the surf lifesaving
activities. In a finding at paragraph [49] of the Decision which was not challenged in the
appeals, the Deputy President rejected this explanation as “disingenuous”. In a further finding
at paragraph [50] of the Decision not challenged in the appeals, the Deputy President accepted
evidence given by Mr Passarello (and by necessary implication rejected evidence given by Mr
King) that Mr Passarello had on 21 September 2012 not given approval for Mr King to
participate in further surf lifesaving activities.
[11] At the end of the disciplinary interview on 5 December 2012, Ms Wroughton indicated
to Mr King that it was likely that he would be dismissed, but that the decision was to be made
by Mr Greg Whitby, the Executive Director of the Diocese. Mr Whitby ultimately made the
decision to dismiss Mr King, and he signed the dismissal letter on 18 December 2012. Mr
King received the letter on Christmas Eve. Mr King received four week’s pay in lieu of notice
upon payment of his salary ceasing from 28 January 2013.
[12] On 5 February 2013 Detective Inspector Paul Jacob of the NSW Police Sex Crimes
Squad wrote to Mr King’s union representative to inform him that the investigation into the
most recent allegation against Mr King had been completed and was now closed, and no
further action was contemplated concerning the allegation. Mr King was never interviewed by
Police in relation to the allegation.
The Decision
[13] The Deputy President, after identifying the major facts, summarising the parties’
submissions and reviewing some of the authorities referred to by the parties (including the
[2014] FWCFB 2194
5
decision in Rose v Telstra Corporation Ltd3), considered the question of whether there was a
valid reason for Mr King’s dismissal relating to his capacity or conduct as required by
s.387(a) of the Act. The Deputy President found that the Diocese and the College had a
clearly stated written policy requirement that teachers not transport students in their vehicles
absent express permission to do so, that Mr King had breached directions consistent with the
policy, and that his explanation for that breach was disingenuous. He concluded on the basis
of those findings that Mr King “wilfully disobeyed a clear direction from the employer not to
transport students in his own car to surf lifesaving activities”.4
[14] The Deputy President then considered and rejected Mr King’s argument that there was
an insufficient connection between the direction and his disobedience thereof and his
employment at the College to justify dismissal. The Deputy President’s reasoning was as
follows:
“[52] It seems to me also that the conduct satisfies the test from Rose set out earlier in
paragraph 27. The requisite connection to the applicant’s employment are the students
of the College.
[53] In all the circumstances it was entirely appropriate for the Diocese to place the
utmost importance on the implementation of its child protection policies. I say more
about the specific events of 2012 which impacted on the College and Diocese below
but it is obvious that these general issues are central to the College and Diocese’s
reputation in the community and duty of care to students.
[54] I accept the submission that the direction was given so that the applicant
“maintained proper boundaries with students”. The Diocese was concerned that it may
have been exposed to liability for any harm to students which resulted from activities
organised and facilitated by a teacher.
[55] I further accept that an education authority has an overriding duty to ensure that
the privileged position of trust in which teachers are placed is not breached. It must
protect its students from potential harm and protect itself from any potential liability
for such harm.
[56] The surf lifesaving activities of the applicant arose directly out of the
student/teacher relationship and were therefore of legitimate interest to the Diocese.
[57] It is said, on behalf of the applicant, that there is insufficient connection between
the applicant’s employment and his involvement with Bilgola Surf Lifesaving because
it “was not a school activity”. The Diocese and College were seeking to regulate an
activity of the Bilgola Surf Lifesaving Club. (Paragraph 53 of 8 August submission).
“The applicant’s conduct cannot be reasonably regarded as a repudiation of the
employment contract. The conduct could not reasonably be said to damage the
employer’s interests in circumstances where it was not a school activity.” (Paragraph
55 of 8 August submission).
[58] It is further said that:
3 Print Q9292 [1998] AIRC 1592
4 Decision at [51]
[2014] FWCFB 2194
6
“A teacher, like the applicant, is entitled to do what he likes outside of his
employment, so long as what he does outside his employment does not
adversely affect his employer.” (Paragraph 8 Supplementary Submissions 30
September).”
[59] The applicant argues that because the Bilgola activities were no longer conducted
by the College, there could not be vicarious liability which would fall on the
respondent.
[60] These arguments, it seems to me, are not consistent with the approach in Rose
and other cases that deal with the school/teacher/student relationship. As I have said,
the relevant connection was with the students of the school, not the activities of the
Bilgola Surf Lifesaving Club. The fact that the College had made it clear that it did not
endorse the Bilgola Surf Lifesaving activities does not mean that it did not have an
interest in the relationship of its teacher and students in respect of those activities. The
activities of the teacher clearly had the potential to adversely impact the interests of
the Diocese and the College. The Diocese’s overriding responsibility to enforce
appropriate child protection policies and directions, which it had put in place,
remained.”
[15] The Deputy President concluded that there was a valid reason for the dismissal.5 He
then went on to consider the other matters required to be taken into account under s.387. In
relation to paragraphs (b) and (c) of s.387, the Deputy President was critical of the procedures
adopted by the Diocese to effect the dismissal, finding among other things that the allegations
against Mr King were not sufficiently particularised, the potential consequences for him were
not made clear and the meeting with Mr Whitby offered in the dismissal letter never took
place. For those reasons the Deputy President concluded that in all the circumstances Mr King
had not adequately been notified of the reason for his termination before the decision was
taken to dismiss6, and that Mr King had no real opportunity to respond to the reason for
dismissal.7
[16] Paragraphs (d), (e) and (f) of s.387 were found not to bear upon the fairness of the
dismissal. In relation to paragraph (g), the Deputy President dealt with two matters he
considered to be relevant. The first was the length and quality of Mr King’s employment with
the College:
“[80] The first issue is the applicant’s length of service and record. The applicant was a
teacher at the College for 37 years. There was no criticism of his competence or
dedication as a teacher. All the evidence pointed to his commitment to the College, the
students and broader school activities. He was proactive in suggesting and
implementing measures which would enhance the overall well being of students. As
he said in his witness statement he has seen teaching “as a vocation and not just a job”
(Exhibit P1 at paragraph 11). Clearly this is based on his deep religious faith. The
performance appraisal of 2 September 2008 shows that he did give up the role of
5 Decision at [61]
6 Decision at [71]
7 Decision at [73]
[2014] FWCFB 2194
7
Coordinator Languages Other than English at that time but no negative inference was
drawn by the respondent with respect to this.
[81] I find that insufficient weight was given by the respondent to the applicant’s
service and contribution to the Diocese and the College in deciding that dismissal was
the appropriate response to his failure to follow directions/policies.”
[17] The second issue concerned the “influence that events in the general community and
the public focus on the College appear to have had on the decision to dismiss”.8 After
describing the evidence concerning the extensive and negative media publicity which the
College had attracted because of the sexual abuse allegations against various teachers and the
allegations specifically made against Mr King, which we have earlier described, the Deputy
President said:
“[85] There are no proven allegations of inappropriate conduct with students against the
applicant. The termination letter said: “I understand there are no allegations of any
inappropriate conduct on your part”.
[86] It is understandable that the Diocese was influenced by the spotlight placed on it
but I find that the decision to dismiss was influenced by the allegations against the
applicant which were alive at the time of the dismissal. These allegations have not
been pursued by the New South Wales Police. Of course none of the Respondent’s
witnesses admitted that this was the case, but it is impossible to come to any other
conclusion having considered the totality of the evidence.
[87] Mr Passarello’s answers in cross examination, set out below, are illustrative of
what was surely in the minds of the Diocese and College representatives:
“I'm sorry. I mean, I meant prior to 5 December meeting. I beg your pardon.
Yes, sorry. So that in terms of your trust of Mr King, apart from this question
of the surf club stuff, which is the directions, you have no other reason to doubt
him, have you?---Apart from the fact that he has been formally investigated by
the police on two separate occasions and stood down, no.
No. Well, thank you for that, and exonerated, and the police have said "Case
closed"? ---They said that earlier in 2012 but then it resurfaced in - so you're
asking me a question about trust, it's in that climate of I have got a teacher who
has been formally stood down on two occasions pending a police investigation,
has been documented as Michael describes as naively in breach of protocols.
Yes, by the end of 2012, if you're asking me the question of trust, then I would
say that I would have less than full confidence in asking Michael to supervise
children.
Yes, because you're saying you have less than full confidence in that because
you're adding to it allegations which have been made against him, where the
police have taken it no further. Have you heard of the presumption of
innocence?---Certainly. However, we live in a different world in the terms of
the supervision of children and the vulnerability of children and the exposure
8 Decision at [82]
[2014] FWCFB 2194
8
of children to risk and there is not the same - I don't believe, your Honour, the
same definition of burden of proof in terms of that. If you asked me the
question has my trust been affected then the honest answer is yes.”
(Transcript PN2502 - 2504)
[88] I would not have found that the procedural deficiencies referred to were sufficient
by themselves to render the dismissal harsh, unjust or unreasonable. However, I do
find that insufficient attention was given to the applicant’s long and dedicated service.
I also find that the decision to dismiss, as opposed to other disciplinary action that
could have been taken, was influenced by unrelated allegations in respect of which no
Police action has been taken.”
[18] The Deputy President stated that it was for those reasons that he found that the
dismissal was harsh, unjust or unreasonable.9 He then went on to consider whether the remedy
of reinstatement should be ordered:
“[93] I am conscious of the financial and reputational damage suffered by the applicant
but I have decided that reinstatement is inappropriate in this case.
[94] The applicant says that he believed he had 10 more years of teaching and stresses
that he wishes to remain in the class room.
[95] The decision having been taken to dismiss, I do not think it is appropriate to now
reinstate. Ms Wroughton and Mr Passarello gave evidence that the Diocese and the
College have lost trust and confidence in the applicant. I consider this crucial in
school/teacher/student relationship which I referred to earlier. They argued that they
would not be confident that the applicant would follow directions to maintain
appropriate boundaries with students.
[96] Ms Wroughton outlined a range of precautionary measures that would need to be
put in place which would make reinstatement uneconomic and impractical. She also
referred to the difficulties for the Diocese and College in reassuring parents and
students given general publicity concerning the College in November 2012.
[97] The difficulties with reinstatement are best summarised in the evidence of
Mr Passarello (who I found a credible and balanced witness) contained in his witness
statement (Exhibit M12 at pages 13 and 14) as set out below:
‘91. Personally, I have lost trust and confidence in Mr King such that I do not
consider that I would be able to place the College’s students (or any other
children or young people) in his care.
92. Based on what I now know, I would not trust Mr King to follow directions
given to him, or College policy, regarding maintaining appropriate boundaries
between teachers and students.
93. Mr King’s actions over an extended period of time have demonstrated to
me that he is unwilling to follow child protection protocols. Based on what I
9 Decision at [89]
[2014] FWCFB 2194
9
now know, I consider it likely that he has deliberately failed to follow child
protection protocols to suit his own ends.
94. I would no longer want to place Mr King in charge of students at the
College as I would not consider that to be consistent with the College’s duty of
care towards the Students. That means, in practice, that he could not perform
the duties of a teacher at the College.
95. Relevant to any possible reinstatement of Mr King as a teacher of the
College is the fact that the College has recently had to deal with a series of
allegations of child sexual abuse arising from the conduct (or alleged conduct)
of a number of teachers at the College during the 1980s. Several of those
teachers have now been charged with criminal offences, and one of those
teachers has now pleaded guilty. By way of example, attachment 17 is a copy
of two letters and a statement from the Bishop (dated 13 November 2012, 25
February 2013 and 21 June 2013) which have been sent by the College to the
parents of all students. These charges arise from the investigations conducted
by the NSW Police, which I have referred to above, and which also involved
Mr King.
96. In my view the College Community would be likely to see Mr King as part
of this issue and part of this problem. That would make his reinstatement even
more difficult. It would also mean that any reinstatement of Mr King would
undermine the confidence of the College Community in the College’s ability to
exercise its duty of care towards its students’.”
[19] Having determined that it would not be appropriate to order reinstatement, the Deputy
President then considered the remedy of compensation. He identified Mr King’s loss in the
following way:
“[100] The applicant is almost 60 years old and he is unlikely to be employed as a
teacher again certainly not on a permanent basis. He has suffered financial injury and
reputational injury. Given his faith and close involvement with all aspects of the
College, I accept that he has lost more than a job.”
[20] The Deputy President then calculated compensation taking into account the matters
required under s.392 of the Act and in accordance with the principles stated in Bowden, G v
Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge10. The amount
of compensation ordered was $41,816, which essentially represented 26 weeks pay reduced
by the amount of $5,000 on account of Mr King’s misconduct pursuant to s.392(3).
Mr King’s appeal - submissions
[21] Although Mr King’s notice of appeal identified an extensive number of appeal
grounds, his written and oral submissions focused on two main propositions. The first was
that the directions issued by the Diocese to Mr King concerning his participation in the Club’s
lifesaving activities and transporting students to and from such activities were not lawful
directions with which Mr King was required to comply, with the consequence that any
10 [2013] FWCFB 431
[2014] FWCFB 2194
10
contravention of those directions could not have constituted a valid reason for dismissal. It
was submitted that once the College had divorced itself from any association with surf
lifesaving activities, it became a private activity beyond the control of the College. In
circumstances where the students who were involved in the surf lifesaving activities did so
with the approval of their parents, and there was no suggestion of any impropriety on the part
of Mr King, no relevant connection could be made between the subject matter of the
directions and Mr King’s employment. Mr King relied in particular on Rose v Telstra
Corporation Ltd11 in which the Australian Industrial Relations Commission (Ross VP) had
identified the circumstances in which out-of-hours conduct might justify dismissal, none of
which, Mr King submitted, were applicable in this case.
[22] The second proposition was that the Deputy President’s failure to make a
reinstatement order in favour of Mr King constituted a manifest injustice in that the penalty of
dismissal was out of proportion to Mr King’s conduct in breaching directions (assuming them
to be lawful), in circumstances where Mr King had been employed as a teacher for 37 years,
he had been a good, dedicated and loyal employee, there was no evidence of any impropriety
in his behaviour towards students, his dismissal had destroyed his prospects of ever obtaining
alternative employment as a teacher, and the financial consequences of dismissal had been
ruinous. There was no proper objective basis, Mr King submitted, for the conclusion that the
relationship of trust and confidence could not be re-established; the Deputy President had
relied upon a self-serving statement by Mr Passarello that was tainted by Mr Passarello’s
admission that his trust in Mr King had been diminished by reason of him being the subject of
a Police investigation, even though there was no finding of any wrongdoing. Mr King relied
on the majority judgment of a Full Bench of the Commission (Lawler VP and Roberts C) in
Lawrence v Coal & Allied Mining Services Pty Ltd t/a Mt Thorley Operations/Warkworth12
for the proposition that a decisional outcome so at odds with what may be considered to be a
proper outcome such as to be capable of being described as a “manifest injustice” constituted
an error in the exercise of the discretion as identified by the High Court in House v The
King.13 Mr King also submitted that the Deputy President erred in not considering an
alternative submission made by him at first instance, namely that if reinstatement to a
teaching position at the College was not practicable, he could under s.391 be reinstated to a
position in another school operated by the Diocese or to a position at the Diocese’s
administrative office.
[23] The Diocese submitted that the Deputy President’s determination that the directions
issued to Mr King were lawful was correct. Mr King’s involvement in transporting students to
and from surf lifesaving activities, and his co-ordination of those activities more generally,
including the promotion of the Club amongst students, had arisen directly from the teacher-
student relationship he had with them. The Diocese, it submitted, had a legitimate interest in
any dealings between its teachers and its students both inside and outside of the school, and
was entitled to make directions which established appropriate boundaries upon any such
dealings without having to wait for inappropriate conduct to occur before it did so. Secondly,
it submitted that the Deputy President’s decision not to reinstate Mr King was not attended by
any House v The King error. The Deputy President’s conclusion that the loss of trust and
confidence in Mr King prevented his reinstatement was properly based upon Mr Passarello’s
and Ms Wroughton’s evidence demonstrating their concern about Mr King’s wilful breach of
11 Print Q9292 [1998] AIRC 1592
12 [2010] FWAFB 10089
13 (1936) 55 CLR 499
[2014] FWCFB 2194
11
the directions given to him and his failure to maintain appropriate boundaries with students in
contravention of the Diocese’s child protection policies. The precautionary measures which
would need to be put in place were Mr King reinstated in order to ensure that students were
protected, parents re-assured and the College’s reputation protected were, as the Deputy
President found, impracticable, and there had been no challenge in the appeal to the Deputy
President’s conclusion in this respect.
Mr King’s appeal - consideration
[24] The import of Mr King’s challenge to the Deputy President’s conclusion that the
relevant directions given by the Diocese to Mr King were lawful, such that breach of those
directions constituted a valid reason for his dismissal, was not made entirely clear in his
submissions. The question of whether “there was a valid reason for the dismissal related to
the person's capacity or conduct” is a matter which the Commission is required by s.387(a) to
take into account in considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable. A finding of appellable error on the part of a first instance decision-maker on
the issue of “valid reason” would usually lead to the conclusion that the decision-maker’s
overall conclusion as to the unfairness of the dismissal was also in error and would have to be
quashed and re-determined. However in this case Mr King has the benefit of a conclusion by
the Deputy President that his dismissal was harsh, unjust or unreasonable. We are not asked
by Mr King to quash the Deputy President’s conclusion in that respect.
[25] When this difficulty was raised with Mr King’s counsel, he said that the challenge to
the lawfulness of the directions was at least relevant to the Diocese’s cross-appeal. That could
only be so if it was raised by way of a notice of contention or its equivalent, which it was not;
in any event that does not establish a requisite connection with Mr King’s appeal. We
consider, although it was not expressly put this way by Mr King, that the real import of the
challenge to the lawfulness of the relevant directions was that the Deputy President’s decision
not to order the remedy of reinstatement was to a substantial degree founded upon his finding
that Mr King had breached lawful directions. We will approach this aspect of Mr King’s
appeal this way, noting that the parties had fully joined issue concerning the lawfulness of the
directions in their submissions.
[26] It is well established that an employee has an obligation, implied by law, to comply
with the lawful and reasonable directions of his or her employer. The circumstances in which
an employer’s direction will be lawful were described by Dixon J in The King v Darling
Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan14 in the
following terms:
“If a command relates to the subject matter of the employment and involves no
illegality, the obligation of the servant to obey it depends at common law upon its
being reasonable. In other words, the lawful commands of an employer which an
employee must obey are those which fall within the scope of the contract of service
and are reasonable.”
[27] The expressions in the above passage “relates to the subject matter of the
employment” and “within the scope of the contract of service” have been regarded as
14 (1938) 60 CLR 601 at 621-2 per Dixon J
[2014] FWCFB 2194
12
synonymous in respect of the limitation expressed.15 The scope of employment is a somewhat
broader conception than just the course of the performance of duties under the employment
contract.16 Textbooks have described the scope of the employment of an employee as
determined by the nature of the work the employee is engaged to do, the terms of the contract,
and customary practices or the course of dealings between the parties.17 It does not extend to
private or personal activities of the employee not affecting his or her work. In Australian
Tramway Employees’ Association v Brisbane Tramways Company Limited18, Higgins J sitting
as President of the Court of Conciliation and Arbitration said:
“A servant has to obey lawful commands, not all commands. The servant does not
commit a breach of duty if he refuse to attend a particular church, or to wear a certain
maker’s singlets. The common law right of an employee is a right to wear what he
chooses, to act as he chooses, in matters not affecting his work.”
[28] The circumstances in which an employer may make lawful directions in respect of the
off-work activities of employees will therefore usually be very limited. In McManus v Scott-
Charlton19 the Federal Court (Finn J) said: “I am mindful of the caution that should be
exercised when any extension is made to the supervision allowed an employer over the
private activities of an employee. It needs to be carefully contained and fully justified”. In
Appellant v Respondent20 a Full Bench of the Australian Industrial Relations Commission said
that “it is only in exceptional circumstances that an employer has a right to extend any
supervision over the private activities of employees”. Statements of this nature suggest that
there must necessarily be a significant connection with or effect upon the employee’s
employment in order for an employer’s direction concerning the out-of-hours activity and
conduct of an employee to fall within the scope of the employment and thus be lawful.
[29] The nature of the employment in question, and the statutory, contractual and other
legal obligations applicable to such employment, affect the scope of the employment and the
capacity of the employer to issue lawful directions concerning out-of-hours conduct. Police
officers, for example, who in contemporary circumstances are engaged under contracts of
employment, have obligations (originating from the common law office of constable) to keep
and preserve the peace and comply with lawful orders from those with authority over them
even when they are off-duty.21 In respect of public servants, some of the powers given to the
Crown as employer exist for public interest and not just employment-related purposes, with
the result that the scope of supervision over public servants’ private activities may extend
beyond what is countenanced by an employee’s implied contractual duty of fidelity and good
faith.22
15 McManus v Scott-Charlton [1996] FCA 1820, 70 FCR 16 at 21E
16 See Moreton Bay College v Teys [2008] QCA 422 at [51]-[52]
17 Sappideen, O’Grady, Riley and Warburton, Macken’s Law of Employment. 7th ed. at 8.280 (the same passage in an earlier
edition having been quoted with approval in Van Tran v Calum Textiles Pty Ltd [1997] IRCA 78; Irving, The Contract of
Employment at 7.6 p.343
18 (1912) 6 CAR 35 at 42, quoted with approval in McManus v Scott-Charlton at 21F
19 [1996] FCA 1820, 70 FCR 16 at 29C
20 (1999) 89 IR 407 at 416
21 See e.g. Police Regulation 2008 (NSW), clauses 7 and 8.
22 McManus v Scott-Charlton [1996] FCA 1820; 70 FCR 16 at 25
[2014] FWCFB 2194
13
[30] In respect of teachers and the teaching authorities which employ them, legal duties
which apply to the teaching authority vis-a-vis students operate to give the scope of
employment a broader than usual scope. Firstly, a teaching authority has a non-delegable duty
to take reasonable care to protect students from the wrongful behaviour, including criminal
behaviour, of third parties such as teachers. Any breach of that duty which results in harm to
the student will result in the teaching authority being liable for damages for negligence.23 The
duty is not confined to school hours or teachers’ hours of duty at the school.24 Secondly, as in
any employment relationship, the teaching authority is vicariously liable for the conduct of a
teacher committed in the course of his or her employment. In State of New South Wales v
Lepore three of six members of the High Court (Gleeson CJ, Gaudron and Kirby J) who
considered the issue of the vicarious liability of a teaching authority in connection with the
intentional criminal conduct of teachers towards students (such as sexual abuse) held that
liability could arise if there was a close or sufficient connection between the conduct and the
teacher’s employment. Gleeson CJ said:25
“If there is sufficient connection between what a particular teacher is employed to do,
and sexual misconduct, for such misconduct fairly to be regarded as in the course of
the teacher's employment, it must be because the nature of the teacher's
responsibilities, and of the relationship with pupils created by those responsibilities,
justifies that conclusion. It is not enough to say that teaching involves care. So it does;
but it is necessary to be more precise about the nature and extent of care in question.
Teaching may simply involve care for the academic development and progress of a
student. In these circumstances, it may be that, as in John R, the school context
provides a mere opportunity for the commission of an assault. However, where the
teacher-student relationship is invested with a high degree of power and intimacy, the
use of that power and intimacy to commit sexual abuse may provide a sufficient
connection between the sexual assault and the employment to make it just to treat such
contact as occurring in the course of employment. The degree of power and intimacy
in a teacher-student relationship must be assessed by reference to factors such as the
age of students, their particular vulnerability if any, the tasks allocated to teachers, and
the number of adults concurrently responsible for the care of students. Furthermore,
the nature and circumstances of the sexual misconduct will usually be a material
consideration.”
[31] Kirby J held that vicarious liability formulated in this way “might extend to incidents
outside school premises occurring on sports days, vacations and other events involving
potential intimacy, made possible by the employment relationship”26. Gaudron J took a
narrower approach based on estoppel, but nonetheless contemplated circumstances in which
liability might arise:27
“In this case it seems there may have been a close connection between the acts of the
teacher and that which he was authorised to do, namely, chastise the plaintiff for his
misbehaviour. Moreover and more to the point, it may be that by acquiescing in the
teacher's use of the storeroom for the purposes of chastisement or, even, in having a
23 State of New South Wales v Lepore (2003) 212 CLR 511 at 522 per Gleeson CJ, 564-6 per McHugh J
24 Ibid at 564 [142] per McHugh J
25 Ibid at 546 [74]
26 Ibid at 619 [321]
27 Ibid at 561 [132]
[2014] FWCFB 2194
14
secluded room which might be so used the State of New South Wales is estopped from
contending that the teacher was not acting as its servant, agent or representative in
doing what he did in that room.”
[32] Gummow, Hayne and Callinan JJ took a contrary view, holding that unauthorised and
intentional criminal conduct on the part of an employee towards a student could not fall
within the scope of the teacher’s employment and could not therefore give rise to vicarious
liability on the part of the employing teaching authority.
[33] We consider that the Diocese’s non-delegable duty of care towards its students, and
the contestable possibility of it being vicariously liable for any criminal conduct of its
teachers towards students that was closely connected to the teacher’s employment, were
fundamental features of Mr King’s employment with the Diocese which operated to extend its
scope to any conduct by him in respect of a student which arose out of his relationship with
the College and its students, whether or not this conduct took place in school hours or during
his working hours. The consequence of this is that instructions by the Diocese to him
regulating such conduct for the purpose of discharging the Diocese’s duty of care and
avoiding liability were lawful.
[34] It also clear to us that any interaction between a teacher and a student which made the
teacher vulnerable to a serious complaint by a student, founded or unfounded, had such a
significant connection to the Diocese’s interests as to bring it within the scope of the
employment. The reputation of the College amongst parents, students and the community
generally had by 2012 seriously been damaged by allegations of sexual abuse. Mr King’s own
reputation as a teacher had also been damaged by unsubstantiated allegations against him. In
those circumstances we accept that it was of the utmost importance to the Diocese, as far as
possible, to prevent situations whereby teachers were alone with students in a non-teaching
situation and were thereby exposed to the possibility of such allegations being made against
them. We consider the position here to be analogous to that considered by the Industrial
Relations Court of Australia (von Doussa J) in Puccio v Catholic Education Office.28 In that
case, a teacher had been dismissed because of a breach of his school’s direction that there be
no physical contact at all with students except in emergency circumstances. The teacher
claimed that his dismissal was unfair. In relation to the teacher’s case that the breach of the
direction was justified in the circumstances, the Court said that “it fails to recognise the
importance of the direction to the protection of the teacher and his employer, the school, from
complaints harmful to their respective reputations”.29 The direction not to transport students
was consistent with the school’s established policy prohibiting this absent express permission.
The existence of that policy confirmed that the direction was within the scope of the
employment since, if it was not a term of Mr King’s employment contract, it was at least part
of the dealings between the parties.
[35] We do not accept Mr King’s submission that once the College had entirely divorced
itself of any connection with the Club’s surf lifesaving activities, Mr King’s transport of the
students in his car became an entirely private activity outside the scope of the employment in
relation to which only the approval of the students’ parents was required. Firstly, it was clear
that his relationship with the students involved in the lifesaving activities was not formed
independently of the College; it was a product of contact between Mr King and the students at
28 (1996) 68 IR 407
29 Ibid at 417
[2014] FWCFB 2194
15
or arising directly out of attendance at the College. Secondly, the reputational risks for the
College, which we have earlier identified, remained irrespective of the fact that the activities
were not authorised or condoned by the Diocese. Thirdly, the Diocese knew, unlike the
parents of the students, but was not in a position to disclose, that Mr King had been the
subject of allegations that were being investigated by the Police.
[36] Mr King’s submission that, because he had not engaged in any improper conduct
towards any student, there was no basis to dismiss him under the principles enunciated in
Rose v Telstra Corporation Ltd misses the point. Rose was concerned with the question of
whether engagement in criminal misconduct by an employee outside of the workplace
constituted a valid reason for dismissal. In the analysis in that decision, the question of
whether the employee’s conduct was in contravention of the implied duty of fidelity and good
faith as enunciated by Dixon and McTiernan JJ in Blyth Chemicals v Bushnell30 was of
principal importance. Drawing on the relevant authorities, the Commission stated the
proposition that out-of-hours conduct could not justify dismissal unless the conduct was “of
such gravity or importance as to indicate a rejection or repudiation of the employment
contract by the employee”. Here however, Mr King was not dismissed because of any alleged
criminal misconduct constituting a breach of the duty of fidelity and good faith. He was
dismissed because he failed to discharge his obligation to comply with lawful directions. That
he did not engage in any impropriety with any student did not bear upon the question of
whether the directions which he breached were lawful.
[37] Accordingly we consider that the direction to Mr King to cease transporting students
to and from lifesaving activities was a lawful direction with which he was required to comply.
It was Mr King’s wilful disobedience to that direction which caused the Deputy President to
conclude that there was a valid reason for the dismissal. We therefore reject the first aspect of
Mr King’s appeal.
[38] Consideration of the second aspect of the appeal, being Mr King’s challenge to the
Deputy President’s refusal to grant him the remedy of reinstatement, necessarily proceeds
(having regard to our conclusion as to the first aspect of the appeal) on the premise that Mr
King wilfully disobeyed a lawful direction to him by his employer. As earlier stated, Mr King
submitted that, even if that was the case, the Deputy President’s conclusion on the question of
reinstatement represented an error in the exercise of his discretion because it constituted a
“manifest injustice”.
[39] It would rarely be the case that House v The King discretionary error would be found
on the basis of a “manifest injustice” in respect of a decision accompanied by full reasons.
The well-known passage from the judgment of Dixon, Evatt and McTiernan JJ in House v The
King31 which identifies the circumstance in which appellate intervention in relation to a
discretionary decision is permissible firstly identifies a number of specific types of appellable
error:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters
to guide or affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the appellate
30 (1933) 49 CLR 66 at 81-82
31 (1936) 55 CLR 499 at 505
[2014] FWCFB 2194
16
court may exercise its own discretion in substitution for his if it has the materials for
doing so.”
[40] The judgment then went on to say (underlining added):
“It may not appear how the primary judge has reached the result embodied in his order,
but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer
that in some way there has been a failure properly to exercise the discretion which the
law reposes in the court of first instance. In such a case, although the nature of the
error may not be discoverable, the exercise of the discretion is reviewed on the ground
that a substantial wrong has in fact occurred.”
[41] It is this latter part of the judgment that Mr King relies upon to ground his argument
concerning “manifest injustice”. Where a decision is accompanied by full reasons, the basis
upon which the decision has been reached will usually be apparent, and any specific error in
the exercise of the discretion will be identifiable. In that circumstance, consideration of
whether the decision or outcome was “unreasonable or plainly unjust” will usually be
unnecessary.32 It is only where the outcome is demonstrated to be wholly outside the range of
outcomes reasonably available to the first instance decision-maker that the “manifest
injustice” ground of error will allow an appeal to be upheld without specific error being
identified.33 In the unfair dismissal context, if not generally, this will only occur in rare
cases.34
[42] We do not consider that this is one of those rare cases. The Deputy President found,
correctly, that there was a valid reason for the dismissal based upon Mr King’s wilful
disobedience of lawful directions concerning the maintenance of proper boundaries with
students. That necessarily gave rise to an important consideration in the context of remedy,
namely whether Mr King could in the future be trusted to comply with directions of that
nature if reinstated. Mr Passarello and Ms Wroughton gave evidence that they could have no
confidence in Mr King in this respect. We consider that it was open to the Deputy President to
accept this evidence, and to refuse to reinstate Mr King to his position as a classroom teacher
on that basis. Having regard to the deliberate nature of Mr King’s previous conduct and his
disingenuous explanation for it, we consider that this loss of confidence on the part of Mr
King’s former employer was “soundly and rationally based”.35 Mr King’s length of service
with the College and the damage done by the dismissal to his reputation and his future
employment prospects as a teacher were certainly matters weighing strongly in favour of his
reinstatement, but not so strongly that they necessarily outweighed the legitimate concerns
which the Diocese held about his past and potential future conduct and rendered reinstatement
the only just and reasonable outcome. We do not consider that the Deputy President’s
decision to refuse reinstatement and order instead a substantial amount of compensation was
manifestly unjust.
32 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, 165 FCR 560 at [76] per Graham J
33 Construction, Forestry, Mining & Energy Union v Cahill [2010] FCAFC 39, 269 ALR 1 at [51] per Middleton and Gordon
JJ, with whom Moore J relevantly agreed at [1]
34 Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28]
per Lawler VP and Roberts C
35 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191
[2014] FWCFB 2194
17
[43] Nor do we consider that Mr Passarello’s admission that his trust in Mr King had been
affected by the unfounded child abuse allegations made against him prevented the Deputy
President from accepting his evidence, together with that of Ms Wroughton, as demonstrative
of a loss of trust and confidence on the part of the employer that rendered the grant of
reinstatement inappropriate. The Decision at paragraph [95] makes it clear that the Deputy
President accepted their evidence on the basis of their contention that “they would not be
confident that the applicant would follow directions to maintain appropriate boundaries with
students”. As earlier stated, there was a sound and rational basis for that contention. For that
reason we do not consider that Mr Passarello’s admission vitiated the conclusion on the
remedy of reinstatement reached by the Deputy President.
[44] The final point made by Mr King was that the Deputy President erred in not giving
consideration to the alternative propositions that he be reinstated to another school in the
Diocese or to the Diocese’s head office. We accept this submission in part. Insofar as the
Deputy President accepted that there was a loss of trust and confidence based upon a lack of
confidence that Mr King would follow directions to maintain appropriate boundaries with
students, we consider that to be a conclusion which necessarily applied to reinstatement to any
teaching position in the Diocese, not just a teaching position at the College. The Deputy
President’s statement in paragraph [95] of the Decision that he considered such trust and
confidence to be “crucial in [the] school/teacher/student relationship” makes that clear.
However, to the extent that Mr King raised as an alternative the possibility of being reinstated
to another position in the Head Office or elsewhere in the Diocese that was not a teaching
position and did not involve unsupervised interaction with students, it is apparent that that
alternative was neither expressly nor implicitly considered by the Deputy President in the
Decision. There was some evidence that a number of such positions existed. The Deputy
President’s reliance upon the Diocese’s lack of confidence in Mr King’s capacity or
willingness to maintain appropriate boundaries with students as preventing reinstatement
could not have been of significance or relevance to that potential alternative. In failing to
consider and determine that aspect of Mr King’s case, the Deputy President fell into error.
[45] That error was one of significance, in that it caused Mr King an injustice by denying
him the possibility of obtaining what would have been for him a preferred and highly
beneficial outcome. We consider therefore that permission to appeal should be granted in the
public interest under s.400(1) of the Act. We uphold Mr King’s appeal in this respect. We will
order that this aspect of the matter be referred back to the Deputy President for consideration
and determination. We will do so on the basis that if the Deputy President determines that an
order for reinstatement should be made on the alternative basis identified (with or without any
ancillary compensation and/or continuity orders under s.391), then it will be necessary for him
to revoke the Order under s.603 of the Act; but that if the Deputy President determines to
refuse reinstatement, then the Order shall remain in effect as the outcome of Mr King’s unfair
dismissal application.
The Diocese’s cross-appeal - submissions
[46] The Diocese submitted that the Deputy President erred in finding that Mr King’s
dismissal was harsh, unjust or unreasonable, in that he:
(1) failed to have regard, or sufficient regard, to the nature and gravity of Mr
King’s breach of the directions given to him;
[2014] FWCFB 2194
18
(2) failed to have regard, or sufficient regard, to the importance of child protection
issues for the Diocese, and the importance of the directions given to Mr King;
(3) based his conclusions on two significant errors of fact - firstly, that in
determining to dismiss Mr King insufficient weight was given by the Diocese
to Mr King’s service and contribution and, secondly, that the Diocese’s
decision to dismiss Mr King was influenced by the unfounded child abuse
allegations against him;
(4) failed to have regard for the admitted further breach of a direction to promote
the activities of the Club to students;
(5) erred in finding that the dismissal was summary in nature and took effect from
the date of the sending of the dismissal letter; and
(6) erred in finding that Mr King was not adequately notified of the reason for his
termination before the decision was taken to dismiss him and in finding that Mr
King had no real opportunity to respond to the reason for his dismissal.
[47] The Diocese also made the more general submission that the Deputy President’s
finding that the dismissal was harsh, unjust or unreasonable was itself, in all the
circumstances, “unreasonable and plainly unjust” and not reasonably available.
[48] In respect of the extension of time application, the Diocese submitted that it had
initially decided not to appeal the Decision, and only decided to appeal when it was served
with Mr King’s appeal. Its cross-appeal had been filed only eight days outside of the
prescribed 21-day period, and this had not caused any prejudice to Mr King. In relation to
permission to appeal, the Diocese submitted that permission to appeal should be granted
because its appeal raised a question of importance and general application, namely the weight
that should be attributed to breaches of directions and other disciplinary matters which occur
in the context of a school authority’s child protection obligations, because the Decision was
attended by sufficient doubt to warrant its reconsideration, and because substantial injustice
may result if Mr King was granted permission to appeal and his appeal allowed without
granting the Diocese permission to appeal in order that the Full Bench could determine for
itself whether the dismissal was harsh, unjust or unreasonable.
[49] Mr King submitted firstly that the extension of time required by the Diocese for its
appeal should not be granted because it had given no acceptable explanation for its delay apart
from opportunism; however it was conceded that Mr King had not suffered any prejudice as a
result of the delay. As to the substance of the appeal, Mr King submitted that no House v The
King error had been demonstrated, that in the absence of any suggestion of impropriety the
gravity of the breach of the directions was overstated, and that the Deputy President was
correct in concluding that the Diocese had not taken into account the length and quality of Mr
King’s service and had not given him a proper opportunity to explain to them what the effect
of the dismissal upon him would be.
The Diocese’s cross-appeal - consideration
[50] We grant the Diocese an extension of time to appeal under rule 56(2)(c) of the Fair
Work Commission Rules 2013. In the particular circumstances of this case, we do not think it
[2014] FWCFB 2194
19
was unreasonable for the Diocese to reconsider its decision not to appeal upon being served
with Mr King’s notice of appeal. Mr King’s appeal was filed and served on 10 December
2013, 20 days after the Decision was issued. That meant that it was not practicable for the
cross-appeal to be filed within the prescribed 21-day time period. The cross-appeal was filed
nine days after the appeal, and eight days out of time. That is not very long, and in any event
the delay, as Mr King properly conceded, did not cause him any prejudice.
[51] We do not accept the Diocese’s submissions that the Deputy President failed to have
regard, or sufficient regard, to the nature and gravity of Mr King’s breach of the directions, or
the importance of those directions and child protection issues generally for the Diocese. The
Deputy President’s findings that the breach of the directions constituted a valid reason for Mr
King’s dismissal, that “In all the circumstances it was entirely appropriate for the Diocese to
place the utmost importance on the implementation of its child protection policies”36, that
“these general issues are central to the College and Diocese’s reputation in the community
and duty of care to students”37, that “an education authority has an overriding duty to ensure
that the privileged position of trust in which teachers are placed is not breached”38, and that it
“must protect its students from potential harm and protect itself from any potential liability for
such harm”39 demonstrate in the clearest possible terms that the Deputy President took these
matters into account and gave them very significant weight.
[52] We further do not accept that the Deputy President relied upon two significant errors
of fact as contended by the Diocese. The Deputy President’s conclusion that the Diocese gave
insufficient weight to Mr King’s service in deciding to dismiss him is best characterised not
as a finding of primary fact but rather as a secondary inference drawn from the evidence
concerning the dismissal process. That evidence may be summarised as follows: Mr King’s
service was not discussed at the disciplinary interview with Mr Passarello and Ms Wroughton
which occurred on 5 December 2012 (apart from the mere identification of his length of
service); Ms Wroughton’s evidence did not disclose that any consideration was given to Mr
King’s service when she recommended to Mr Whitby that he be dismissed; and the dismissal
letter drafted by Ms Wroughton and signed by Mr Whitby did not make any reference to Mr
King’s service. In those circumstances, we consider that the Deputy President’s conclusion
was reasonably available on the evidence.
[53] It was likewise reasonably open for the Deputy President to draw the inference that the
decision to dismiss Mr King was influenced by the allegations against him which were
investigated by the Police. Mr Whitby, the ultimate decision-maker, did not give evidence.
Ms Wroughton recommended dismissal to him, but the conversation between her and Mr
Whitby in which this was discussed was not described in her evidence except in the most
general terms. In her statement of evidence Ms Wroughton in describing the reasons for her
loss of trust and confidence in Mr King made express reference to the allegation being
investigated by the Police at the time of the dismissal. Mr Passarello did likewise, and further
admitted in cross-examination that his trust in Mr King had been diminished by the earlier
allegation made against him in 2012. We consider that that evidence made open the inference
that these matters were in the minds of the decision-makers when the decision to dismiss was
made.
36 Decision at [53]
37 Ibid
38 Decision at [55]
39 Ibid
[2014] FWCFB 2194
20
[54] We accept that the Deputy President did not make express reference in the Decision to
Mr King’s breach of the further direction not to promote the activities of the Club to students.
However, we consider that for all practical purposes the breach of that direction involved
essentially the same conduct as the breach of the direction not to transport students to and
from the Club’s activities. The Diocese effectively conceded as much in its written
submissions.40 It is unlikely therefore that this omission could have affected the Deputy
President’s conclusion that the dismissal was unfair. Further, while we consider that the
Deputy President’s conclusion that the dismissal was summary in nature and took effect from
the date the dismissal letter was sent is open to question, it does not appear to us to bear upon
the Deputy President’s conclusion that the dismissal was unfair. The Diocese acknowledged
this in its written submissions.41
[55] The Deputy President’s conclusions in relation to the matters required to be taken into
account under paragraphs (b) and (c) of s.387 were, we consider, reasonably available. The
essential flaw in the Diocese’s dismissal procedure was that it failed to put Mr King squarely
on notice that he was at risk of dismissal and give him a proper opportunity to provide a
response as to why he should not be dismissed. Mr King was never told in advance of the
disciplinary interview on 5 December 2012 that the matters to be discussed at the interview
were considered significant enough that they might warrant dismissal. Dismissal was not
mentioned during the interview. Nor, as the Diocese properly conceded in its submissions,
were all the matters relied on as reasons for dismissal discussed at the interview.42 It was only
after the interview had ended that dismissal was mentioned. There was a dispute in the
evidence of the participants as to what precisely was said, but the evidence of Mr Passarello is
instructive. His version in his statement of evidence was as follows:
“After the formal interview had concluded, I recall that there was a conversation
involving words to the following effect,
Mr King or Mr McKinney: What’s going to happen now?
Ms Wroughton: Based on what we know now, you will probably be dismissed.
Greg Whitby will make a decision about that. You will have an
opportunity to put your case to Greg.
I recall that the meeting finished amicably and we all shook hands.”
[56] Mr Whitby did not make any contact with Mr King to provide him with the proffered
opportunity to make a submission as to why he should not be dismissed. The next step was
that the dismissal letter was sent on 18 December 2012. The letter offered Mr King a meeting
with Mr Whitby to discuss the latter’s “findings”, but it was never suggested there was any
possibility that the decision to dismiss might be changed. As earlier stated, the meeting never
took place. All in all, this amounted to rather cavalier treatment of an employee with 37 years’
service.
40 Diocese’s submissions on the cross-appeal, paragraph 58
41 Ibid paragraph 53
42 Ibid paragraph 58
[2014] FWCFB 2194
21
[57] Having regard to the above matters, and because the decision as to whether the
dismissal was unfair was a discretionary one in relation to which the Deputy President had
some latitude as to the decision to be made43, we consider that the Deputy President’s
conclusion that Mr King’s dismissal was harsh, unjust or unreasonable was one that was
reasonably available to him to make. We do not consider that the Diocese has demonstrated
any error in the Decision which caused the exercise of the discretion to miscarry. For that
reason, the cross-appeal does not attract the public interest as required by s.400(1) of the Act,
and permission to appeal is refused.
Orders
[58] In relation to Mr King’s appeal, we order as follows under s.607(3) of the Act:
(1) Permission to appeal is granted.
(2) The appeal is upheld in respect of that part of the Decision concerning the
determination of the appropriate remedy.
(3) The matter is referred back to Deputy President Lawrence for him to consider
and determine whether an order may be made under s.392 of the Act
reinstating Mr King to a position in the Diocese’s Head Office or elsewhere in
the Diocese which is not a teaching position and does not involve unsupervised
interaction with students, and, if such an order is made, whether any ancillary
compensation and continuity orders should also be made under s.392.
(4) The Deputy President shall proceed on the basis of the existing evidence and
such further evidence as he may decide to admit.
(5) If the Deputy President decides to make an order for reinstatement under s.392,
then he shall revoke the Order under s.603 of the Act; but if the Deputy
President decides not to make such an order, then the Order shall remain in
effect as the outcome of Mr King’s unfair dismissal application.
[59] In relation to the Diocese’s cross-appeal, permission to appeal is refused.
VICE PRESIDENT
43 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19] per Gleeson
CJ and Guadron and Hayne JJ
OF THE FAIR WORK MISSION THE
[2014] FWCFB 2194
22
Appearances:
J. Phillips SC with A. Barwick solicitor for Michael King
P. Moorhouse of counsel with D. Lynch for the Catholic Education Office Diocese of
Parramatta t/a Catholic Education Diocese of Parramatta
Hearing details:
2014.
Sydney:
19 February.
Printed by authority of the Commonwealth Government Printer
Price code C, PR549249
