1
Fair Work Act 2009
s.394—Unfair dismissal
Michael King
v
Catholic Education Office Diocese of Parramatta T/A Catholic Education
Diocese of Parramatta
(U2013/6381)
DEPUTY PRESIDENT LAWRENCE SYDNEY, 20 NOVEMBER 2013
S.394 application for unfair dismissal remedy.
Introduction
[1] On 6 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the
Act) for a remedy for unfair dismissal was lodged by Michael King (the applicant).
[2] The application was filed by the Independent Education Union (IEU) but by the time
the matter came on for substantive argument, the IEU had ceased to represent the Applicant.
[3] The matter was the subject of conciliation on 5 March 2013, not resolved and
consequently listed for hearing.
[4] I conducted a programming hearing by teleconference on 3 September 2013.
[5] On 11 September 2013, at the request of the respective parties, I issued orders
requiring production of documents etc pursuant to s.590(2)(c) of the Act:
to the Bilgola Surf Lifesaving Club, in relation to its activities and policies for the
2012 -2013 season.
to the Catholic Education Office Diocese of Parramatta (the Diocese), seeking the
Applicant’s personnel file and various communications concerning him.
[6] The matter was heard on 11, 12 and 13 September 2013, the original dates of listing.
Further hearings took place on 8 and 11 October 2013.
[7] The applicant was represented at the hearing by Mr J Phillips, Senior Counsel and Mr
P Moorhouse represented the respondent, the Diocese. At the commencement of the hearing
on 11 September 2013 I granted both permission to appear pursuant to s.596 of the Act.
[2013] FWC 8914 [Note: Appeals pursuant to s.604 (C2013/7604 &
C2013/7781) were lodged against this decision - refer to Full Bench
decision dated 10 April 2014 [[2014] FWCFB 2194] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2194.htm
[2013] FWC 8914
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[8] The applicant relied on oral evidence and submissions and:
The witness statement of the applicant (Exhibit P1);
Written submissions filed on 8 August 2013;
Supplementary written submissions filed on 30 September 2013.
[9] The respondent relied on oral evidence and submissions and:
Written submissions filed on 5 September 2013;
Supplementary written submissions filed on 8 October 2013;
The witness statements of:
John Honan, Manager, Student Services of the Diocese (Exhibit M9)
Paul John Davis, Professional Standards Manager of the Diocese (Exhibit M7)
Karen Alicia Wroughton, Team Leader - Staff Services of the Diocese (Exhibit
M1, M15 and M16)
Santo Passarello, Principal of the College (Exhibit M12)
3 students.
It should be noted that at the 11 September 2013 hearing, based on the submissions of the
parties, I ruled that the names of students, former students and parents would be kept
confidential. Consequently they were not recorded in the transcript and will not be used in this
decision.
[10] This matter involved extensive evidence, legal argument and considerations of policy
which were not easy. Both counsel provided authorities to the Commission on which they
relied. I have taken into account all of that material even if not specifically referred to in this
decision.
Background
[11] The applicant was employed as a teacher at Patrician Brothers College (the College),
Blacktown from 27 January 1976. The employer was the Diocese. He was notified of his
dismissal on 18 December 2012. The dismissal took effect on 28 January 2013, according to
the F2 form.
[12] In the F2 form, the applicant stated that the reasons for dismissal were:
Transporting students from the College in his private vehicle on weekends to surf
lifesaving activities contrary to the directions of the Principal and Diocese and
contrary to policy of the Diocese.
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Transporting students to surf lifesaving activities in May 2012.
[13] The applicant claimed the dismissal was unfair because:
The activities were not part of “official school activities”.
The employer had no right to direct an employee in relation to “non school related
activities”.
The transportation was authorised by parents.
There were no allegations of any impropriety.
The action of the employer was disproportionate and there was no serious
misconduct which justified dismissal.
The applicant’s 37 years service at the school was not taken into account.
The applicant was denied a formal opportunity to respond to the decision to
terminate him.
[14] The F3 Employer’s Response was made by Karen Wroughton on behalf of the
Diocese. It attached the 18 December 2012 letter of dismissal which relied on “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”.
[15] It pointed out that although “there are no allegations of any impropriety on your part”
the conduct had taken place despite the applicant’s lengthy teaching experience, participation
in child protection training and personal directions from the principal, Mr Passarello and the
Diocese Director System Performance, Ms Dickinson.
[16] The letter went on “I consider your conduct constitutes misconduct and have no
alternative than to terminate your contract of employment with the Diocese of Parramatta”.
The applicant received 4 weeks pay in lieu of notice.
[17] Mr Whitby, the Executive Director of Schools, who signed the letter, said “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”.
[18] The F3 form said that the dismissal took effect on 18 December 2012.
Protection from Unfair Dismissal
[19] An order for reinstatement or compensation may only be issued where I am satisfied
the applicant was protected from unfair dismissal at the time of the dismissal.
[20] Section 382 sets out the circumstances that must exist for the applicant to be protected
from unfair dismissal:
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“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
[21] There is no dispute, and I am satisfied, the Applicant has completed the minimum
employment period, is below the high income threshold with an annual salary of some
$90,000 and is covered by an enterprise agreement. Consequently, I am satisfied the
Applicant was protected from unfair dismissal.
Was the dismissal unfair?
[22] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.
Was the Applicant dismissed?
[23] A person has been unfairly dismissed if the termination of their employment comes
within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the
Act provides that:
“386 Meaning of dismissed
(1) A person has been dismissed if:
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(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.”
[24] There is no dispute that the applicant was dismissed, the Diocese is a very large
employer and this is a case of summary dismissal.
Harsh, unjust or unreasonable
[25] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am
satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account
when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of
the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Approach of the Commission
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[26] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185
CLR 410 at 465 by McHugh and Gummow JJ as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[27] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998)
Q9292 (Rose) restated the above proposition and also stated:
“In my view whether there has been a `fair go all round’ is a matter which I think is
relevant and hence I am to have regard to it determining whether the termination was
harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be
taken into account.”
[28] This was a case referred to by the advocates in this case because, apart from his
Honour’s statements about the Commission’s general approach in unfair dismissal cases he
considered the extent to which an employee’s conduct out of their working hours can provide
a valid reason for their termination.
[29] He concluded, at page 12 of the print:
“It is clear that in certain circumstances an employee’s employment may be validly
terminated because of out of hours conduct. But such circumstances are limited:
· the conduct must be such that, viewed objectively, it is likely to cause serious damage
to the relationship between the employer and employee; or
· the conduct damages the employer’s interests; or
· the conduct is incompatible with the employee’s duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to
indicate a rejection or repudiation of the employment contract by the employee.30
Absent such considerations an employer has no right to control or regulate an
employee’s out of hours conduct.”
[30] His Honour analysed the facts of several cases and concluded that a valid reason for
termination for conduct outside work would require “requisite connection to his
employment”.
[31] In Anthony Farquharson and Qantas Airways Limited [PR971685], 10 August 2006, a
Full Bench, VP Lawler, SDP O’Callaghan, Raffaelli C dealt with “the peculiar circumstances
http://www.fwc.gov.au/FWAISYS/isysquery/44d94614-531d-4494-85a8-e8d8f0110ee2/4/doc/#P348_37818
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attending slip time in a foreign port that give Qantas a legitimate interest in the slip time
conduct of its flight crew that is far greater than the usual interest of an employer in the off
duty conduct of its employees.” In that case, Qantas had a legitimate interest in ensuring that
incidents did not occur which damaged its interests and reputation.
[32] The conduct for which the applicant was dismissed occurred outside school hours and
premises. It was argued, and I accept, that a teacher has a particular responsibility in
discharging his/her duties in relation to students. The “requisite connection” to the applicant’s
employment are the students of the college, applying the approach in Rose.
[33] The High Court in State of NSW v Lepore & Ors [2003] HCA 4; (2003) 221 CLR 511
considered at length the duty of care owed by a school to its students. A school is vicariously
liable for the actions of an employee, even if occurring away from the workplace or outside
normal working hours, if there is sufficient connection with authorised acts during the course
of employment.
[34] Gleeson CJ said at paragraph 142:
“The duty arises on the enrolment of the child. It is not confined to school hours or to
the commencement of the teacher’ hours of employment at the school.”
Overview of the Parties’ Arguments
[35] The applicant submits the dismissal was harsh, unjust or unreasonable because:
Up to late March 2012, the College had a practice of allowing teachers to transport
students in their own car, without restriction, to school authorised events.
Policies developed by the Diocese were not sufficiently clear or properly
communicated to the applicant or other teachers.
The directive given to the applicant by the Principal, Mr Passarello, in March 2012
that the applicant was not to transport students in his car to Bilgola for surf
lifesaving activities was not clearly understood by the applicant including in
relation to operative date.
The applicant took steps to clarify the policy between March and September 2012
by meeting with relevant Diocese staff.
Following a meeting with Mr Passarello on 21 September 2012, the applicant had a
reasonable belief that Bilgola Surf Lifesaving was not a school activity and
therefore not subject to the respondent’s policies and directives. Indeed the
applicant thought Mr Passarello had approved his conduct.
On 20 November 2012 the applicant was stood down in relation to an unrelated
allegation (see below). It was then that Ms Wroughton on behalf of the Diocese and
Mr Passarello became aware that the applicant was still transporting students in his
own car. He was called to a meeting with them both on 5 December 2012 to
discuss that matter and subsequently dismissed for that reason by the 18 December
2012 letter which was received by the applicant on 24 December 2012.
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The reason for dismissal did not relate to his performance as a teacher but rather a
non-school activity. The directions that were made were “outside the scope of the
official’s employment and as a consequence, were unlawful directions which did
not need to be obeyed.” (Supplementary submission pages 1-2, 30 September
2013).
The respondent’s actions were significantly influenced by the public and media
attention in late 2012 to the arrest of former College staff on child sex offences.
The applicant has never been charged or arrested. He was however stood down at
the time of dismissal for an unrelated allegation of which he has subsequently been
cleared.
The applicant’s 37 years record as a teacher at the College and his commitment to
the broad range of school activities was not taken into account.
The applicant has suffered significant reputational and financial damage.
The applicant was not afforded a procedurally fair or properly informed
opportunity to respond to the reason for dismissal.
Reinstatement, with continuity of employment and lost wages is sought.
[36] The respondent submits the dismissal was not harsh, unjust or unreasonable because:
Diocese policies with respect to the transporting students in teachers’ private cars
were clear and well known to teachers.
Bilgola Surf Lifesaving activities existed only because of the applicant’s efforts. In
late February 2012 the Diocese decided that the College should not be associated
with surf lifesaving in any way. In early March 2012 the applicant was told this by
Mr Passarello and told “this means no students in your car and the parents have to
do all the driving.” The applicant was also told that he should no longer be
involved with students in surf lifesaving. Given the school/teacher/student
relationship this was a direction that the employer was entitled to make. Soon
thereafter Mr Passarello clarified that the direction came into effect immediately.
The direction was repeated on 27 April 2012.
The applicant only disclosed his breach of policy and directions not to transport
students in his car and not to be involved in surf lifesaving activities with students
at the meeting on 20 November 2012. At least 3 parents confirmed that this was
occurring.
The applicant admitted during the 5 December 2012 interview that he had breached
the directions previously given to him.
The applicant’s refusal or failure to obey a lawful and reasonable direction
constituted misconduct. It was incompatible with the continuation of the
employment contract and provided a proper basis for summary dismissal.
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The directions related to matters of genuine concern to the Diocese even though
they related to activities outside school premises and hours. They were designed to
ensure proper boundaries between students and teachers. The importance of child
protection issues to the respondent cannot be overstated.
The applicant was accompanied by an IEU organiser at the 5 December 2012
meeting, provided a written submission prior to the meeting and was provided with
procedural fairness overall.
In the event that the Commission was to find the dismissal harsh, unjust or
unreasonable, reinstatement of the applicant would be totally inappropriate.
[37] I am under a duty to consider each of these criteria in reaching my conclusion, Sayer v
Melsteel [2011] FWAFB 7498.
[38] I will now consider each of the criteria contained in s.387 of the Act separately.
Valid Reason - s.387(a)
[39] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench
said ‘In our view, the consideration of whether there was a valid reason for termination is a
separate issue from the determination of whether a termination was harsh, unjust or
unreasonable’.
[40] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are each treated fairly ...”
[41] In Parmalat Food Products Pty Ltd v Wililo, (2011) FWAFB 1166, the Full Bench
held:
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[42] The applicant was dismissed because he transported students in his car to surf
lifesaving events contrary to the direction and policies of the College and the Diocese.
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[43] There was no dispute that the applicant drove students in the circumstances alleged.
The issues debated were:
Whether the policies and directions were clear and understood;
Whether they had sufficient link to the employment contract as to be grounds for
dismissal for serious misconduct;
[44] I find that the Diocese and College policies were clear enough for the applicant to be
very conscious of the child protection requirements of his position. The various policies and
staff handbooks were attached to the witness statements of Mr Honan, Mr Davis,
Ms Wroughton and Mr Passarello. The applicant had numerous discussions with each of them
on the issue during 2012 and earlier.
[45] All teaching staff at the College are required to complete child protection training each
year.
[46] Although the wording in the documents varies, I am satisfied that the clear intention is
that teachers not transport students in their vehicles. Any exception would require express
permission from a supervisor.
[47] The directions given to the applicant by Mr Passarello are therefore of crucial
importance. The evidence is not contested that at the meeting in early March 2012, Mr
Passarello made it clear that from then on “no students in your car” (Exhibit M12 at page 2).
He also made it clear that the applicant should no longer be involved in surf lifesaving
activities with students at Bilgola. Any doubt as to the operative date of the direction was
removed later in the week. These directions were reaffirmed at the 27 April 2012 meeting.
[48] Nothing that Mr Honan, Ms Dickinson or Mr Davis said to the applicant in meetings
in May to July 2012 can be taken to detract from these directions.
[49] The applicant’s explanation for resuming transport of students in spring 2012 was that
he thought the directive didn’t apply any longer because the College had no link to surf
lifesaving activities. I find that explanation disingenuous. The fact is that the March directions
stood. The applicant acknowledged at the meeting on 5 December 2012 and in his witness
statement that he had not told Mr Passarello that he had continued to transport students until
the meeting on 20 November 2012.
[50] I accept the evidence of Mr Passarello that he did not give approval to the Bilgola
Development Squad project at a meeting on 21 September 2012. His evidence from his
witness statement was:
“66. I refer to paragraph 51 of the King Statement. I did not have any meeting with
Mr King which occurred in the way he describes in that paragraph.
67. I have no recollection of any conversation with Mr King around that time
during which he informed me of his ongoing SLS activities, or of how he
proposed to structure those activities, or that he considered that those activities
would be completely separate from the College.
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68. I do not believe that Mr King ever showed me the documents which are
attachments 5 and 6 to the King statement.
69. I cannot categorically state that Mr King did not speak to me in the period
between July and September 2012 in relation to him continuing to be involved
in SLS activities. I say this because over the years Mr King would regularly
approach me to mention suggestions which he had or changes which he wanted
to discuss, even if the College had already decided against those suggestions or
changes.
70. However, I can say that Mr King did not make it clear to me at any time after
my return from overseas in July 2012 that he was intending to continue to
organise SLS activities for the College’s students, or that he was intending to
continue to organise the College’s students to undertake SLS training at
Bilgola SLS Club.
71. If Mr King had said to me the things that he has set out in paragraph 51 of the
King Statement, and shown me the documents which are attachments 5 and 6
to that statement, I would not have responded by saying words such as,
“Thanks for the update. It has my approval.” Rather, I would have told him
that he had already been told he could not be involved with SLS activities with
the College’s students, and I would have reported the matter to the CEO.
72. If Mr King had told me that he was proposing to transport the College’s
students in his own car to Bilgola Beach, I would have told him that he had
already been told that he could not do that, and, I would have reported the
matter to the CEO.”
This evidence was not shaken in cross examination.
[51] I find therefore that the applicant wilfully disobeyed a clear direction from the
employer not to transport students in his own car to surf lifesaving activities.
[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.
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[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:
“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.
[61] In all the circumstances of this case, I find that there was a valid reason for dismissal.
Notification of the Valid Reason - s.387(b)
[62] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas
Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR
137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services
Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the
Australian Industrial Relations Commission dealing with similar provision of the Workplace
Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to terminate
their employment in order to provide them with an opportunity to respond to the
reason identified. Section 170(3)(b) and (c) would have very little (if any) practical
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effect if it was sufficient to notify employees and give them an opportunity to respond
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.” Ibid at 151.
[63] The procedures adopted by the Diocese to effect the dismissal were less than perfect.
[64] Once the fact that the applicant had continued to drive students in his own car was
revealed at the 20 November 2012 meeting, Ms Wroughton wrote to the applicant inviting
him to a meeting on 5 December 2012 “to discuss your failure to follow the direction and
advice provided to you in relation to the transporting of students.”
[65] Part of the 5 December 2012 meeting was recorded but there is some dispute about
what was said off record. The applicant also sought to correct parts of what he said in his
witness statement. In any event, although the allegation was put to him prior to the meeting
and he provided a written submission prior to the meeting, it appears that it was not formally
put to him that his actions may lead to dismissal.
[66] Ms Wroughton’s evidence was that she said to the applicant ‘I think it is more than
likely you will be dismissed’ after the formal interview had concluded. She also suggested
that he could put something in writing to the CEO. (Exhibit M15 at paragraph 41)
[67] The applicant’s evidence was that he was told at the end of the 5 December 2012
meeting by Ms Wroughton, “You will be dismissed.” He also says she told him a letter of
termination was coming, on the telephone, on 17 December 2012. (Exhibit M1 at page 62) Ms
Wroughton denied this. On 17 December 2012 an email from Ms Wroughton to the IEU
Organiser says the applicant “may be dismissed”. (Attachment 10 of Exhibit M15),
(Transcript PN1139 - 1149)
[68] I find that, given the seriousness of the matter, the allegations should have been more
particularised and consequences should have been made clear to the applicant.
[69] Nevertheless he was only formally advised of dismissal by the 18 December 2012
letter which he received on Christmas Eve. The CEO says, in the letter, that “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.” These discussions never took place. The applicant was paid
up to 28 January 2013 and given 4 weeks pay in lieu of notice.
[70] Presumably the payment date is the reason the applicant described the dismissal is
“taking effect on 28 January 2013.” Nevertheless there is no evidence that the Diocese was
prepared to reconsider its position. I find that the dismissal took effect from the sending of the
letter.
[71] In the circumstances, I find that the applicant was not adequately notified of the reason
for his termination before the decision was taken to dismiss.
Opportunity to Respond - s.387(c)
[72] An employee protected from unfair dismissal must be provided with an opportunity to
respond to any reason for dismissal relating to the conduct or capacity of the person. This
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criterion is to be applied in a common sense way to ensure the employee is treated fairly and
should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.
[73] It follows from my conclusions above, that I also find that the applicant had no real
opportunity to respond to the reason for dismissal. The decision to dismiss was taken
following the 5 December 2012 meeting and there was no real process following the 18
December 2012 letter notwithstanding the suggestion in it that there might be.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[74] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present.
[75] The IEU Organiser was involved in the 5 December 2012 meeting and the applicant
had the benefit of his representation before and after that meeting. Therefore s.387(d) is not an
issue.
Warnings regarding unsatisfactory performance - s.387(e)
[76] This is not in issue as the dismissal was for breach of directions/policies.
Impact of the size of the Respondent on procedures followed - s.387(f)
[77] The Diocese is a large employer with 78 Catholic schools, 43,000 students and many
teaching and administrative staff. It has many detailed policies and procedures in place. It was
made clear that disciplinary matters were the responsibility of the Diocese, not the College,
specifically Ms Wroughton and the CEO. I find that the size of the respondent’s enterprise did
not impact on the procedures followed in effecting the dismissal.
Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
[78] There was no lack of human resources expertise available to the respondent. Given the
seriousness of the issues involved, the process, at the end, could have been better.
Any other matters that the FWC considers relevant
[79] The procedural flaws which I referred to above are not, in my view, sufficient on their
own to render the dismissal harsh, unjust or unreasonable. However, there are two further
matters which I believe need to be weighed in the balance in considering whether the
applicant has been unfairly dismissed.
[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
[2013] FWC 8914
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give up the role of 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.
[82] The second issue is the influence that events in the general community and the public
focus on the College appear to have had on the decision to dismiss. There is public notoriety
around the Catholic Church and child protection which do not need to be set out in detail in
this decision. As I have said, in this context, the Diocese and the College were understandably
vigilant on child protection issues.
[83] This was increased by the public focus on the College. Exhibit M14 was a large ring
binder of press/media references to the College mainly in November 2012. This consisted of
some 62 items arising from the charging of 2 former teachers of the College for events in the
1980’s. They include:
The ABC Lateline program - 12 and 13 November;
References on TV News - ABC, Channels 7, 9 and 10;
Articles in every major capital city newspaper.
The applicant had been the subject of a few social media references.
[84] The evidence was that the applicant had been the subject of an allegation in late 2009
which was investigated by the Diocese and found to be false. In March 2012, an allegation
was made against the applicant about events in the 1980’s. He was stood down but returned to
full duties on 27 April 2012. On 20 November 2012, at the meeting with Mr Passarello and
Ms Wroughton which has been referred to earlier, the applicant was advised of another
allegation arising from the 1980’s. He was stood down on full pay. This was the position
when he was called to the meeting of 5 December 2012 and until his dismissal. A copy of the
letter from the NSW Police dated 5 February 2013 was tendered. It said “that the investigation
has been completed and is now closed. No further action is contemplated by the Sex Crimes
Squad concerning this allegation.”
[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:
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“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 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.
[89] For these reasons, and having considered each of the matters specified in s.387
notwithstanding that there was a valid reason for dismissal, I find that the applicant’s
dismissal was harsh, unjust or unreasonable. Accordingly I find the applicant’s dismissal was
unfair.
[90] Section 390 of the Act sets out the circumstances in which I may make an order for
reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
[2013] FWC 8914
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(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.”
[91] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied the
applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant
was dismissed unfairly. Accordingly, I am required to determine whether to order the
reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an
order for compensation if I am satisfied such an order is appropriate in all the circumstances.
[92] The applicant seeks reinstatement, continuity of service and payment of lost wages.
Reinstatement to another school within the Diocese or to the head office were raised as
alternatives.
[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.
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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 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.”
Compensation
[98] Section 390(3)(b) provides that I may only issue an order for compensation to the
Applicant if it is appropriate in all the circumstances.
[99] I have found that the applicant has been unfairly dismissed and that reinstatement is
not appropriate in all the circumstances. I am satisfied that an order for compensation should
be made.
[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.
[101] Section 392 of the Act sets out the circumstances that must be taken into consideration
when determining an amount of compensation, the effect of any findings of misconduct on
that compensation amount and the upper limit of compensation that may be ordered provides:
“392 Remedy—compensation
Compensation
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(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in
lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would
otherwise order under subsection (1) by an appropriate amount on account of the
misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must
not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the
person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(a) the amount worked out under subsection (6); and
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(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer
during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[102] The method for calculating compensation under s.392 of the Act was recently dealt
with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District
Retirement Villages Inc. T/A Ottrey Lodge, [2013] FWCFB 431 (Bowden). In that decision the
Full Bench set out the order in which the criteria and other factors should be applied, taking
into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed
Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation,
Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining
the amount of a payment of compensation.
[103] I will now consider each of the criteria in s.392 of the Act.
Remuneration that would have been received: s.392(2)(c)
[104] The Applicant’s remuneration with the Respondent was approximately $93,632 per
annum on the evidence of the respondent. (Transcript PN3982)
[105] I now determine the period of time the Applicant would have remained employed by
the Respondent, or would have likely remained employed with the Respondent, had he not
been dismissed.
[106] The applicant stated that he wished to teach for another 10 years. Without his
dismissal, it is likely that would have been the case.
Remuneration earned - s.392(2)(e)
[107] The uncontested evidence was that the Applicant had not had employment since the
dismissal and therefore there has been no remuneration earned during the period since the
dismissal. He was in receipt of New Start Allowance and had been forced to access his
superannuation. I have taken this into account in assessing appropriate compensation.
[2013] FWC 8914
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Income likely to be earned
Based on the Applicant’s age and the allegations that have been made against him, I consider
it unlikely he will earn income during the period between the period of the order for
compensation and the actual compensation.
Other matters - s.392(2)(g)
[108] A broad discretion is given to the Commission to consider other matters. In the
circumstances, I consider this is a case in which the maximum compensation should be
awarded.
Viability - s.392(2)(a)
[109] Given the nature of the employer, an order for compensation will not affect the
viability of the business.
Length of Service - s.392(2)(b)
[110] The Applicant had over 37 years service with the Respondent.
[111] The Applicant’s length of service, in fact, reinforces the need for maximum
compensation.
Mitigating efforts: s.392(2)(b)
[112] In considering whether the Applicant has taken steps to mitigate the loss suffered as a
result of the dismissal I should take into account whether the Applicant acted reasonably in
the circumstances, (Ellawala).
[113] I find that the Applicant has made efforts to mitigate his loss suffered as a result of the
dismissal.
Misconduct: s.392(3)
[114] Given that I have found there was a valid reason for the applicant’s dismissal, it
follows that the applicant’s misconduct contributed to the dismissal. I must reduce the
compensation to take account of this factor. I have decided that the reduction should be a
small amount. I do so not because of the nature of the misconduct but rather that to do
otherwise would not give appropriate recognition of the applicant’s length of service,
dedication to the College, future career prospects and economic and personal effects,
including reputational damage, of the termination. I therefore reduce the compensation by
$5,000 on this count.
Shock, Distress: s.392(4)
[115] I note that the amount of compensation calculated does not include a component for
shock, humiliation or distress.
Compensation cap: s.392(5)
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[116] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the
total amount of remuneration received by the Applicant, or to which the Applicant was
entitled, for any period of employment with the employer during the 26 weeks immediately
before the dismissal, or half the amount of the high income threshold immediately prior to the
dismissal.
[117] The high income threshold component is $64,560.
[118] The amount the Applicant would have earned, or to which the Applicant was entitled,
for the 26 week period immediately prior to the dismissal was therefore approximately
$46,816.
[119] The amount of compensation I will order does not exceed the compensation cap.
[120] I will order the Respondent to pay to the Applicant an amount of $41,816.
Conclusion
[121] I am satisfied that the Applicant was protected from unfair dismissal, and that the
dismissal was unfair and a remedy of compensation is appropriate. In accordance with
s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all
round’.
[122] An order (PR544735) will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
P Moorhouse of counsel for the applicant.
J Phillips SC, for the respondent.
Hearing details:
2013
Sydney:
September 11, 12, 13;
October 8, 11.
[2013] FWC 8914
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Printed by authority of the Commonwealth Government Printer
Price code C, PR544488
