| [2017] FWC 4722 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Toohey
v
Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney
(U2016/2687)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 26 SEPTEMBER 2017 |
Application for relief from unfair dismissal – loss of Working with Children Check Clearance – frustration of contract of employment
[1] Mr Michael Toohey was a teacher employed by the Executive Director of Catholic Schools in the Roman Catholic Archdiocese for Sydney t/a Sydney Catholic Schools (SCS) from 17 July 2006 until his employment ended on 30 May 2016. He has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act, 2009 (the Act) for an unfair dismissal remedy.
[2] During his time as a teacher with SCS Mr Toohey taught subjects including Commerce, English, History, Legal Studies, Mathematics, Religious Studies and Science. At the time Mr Toohey’s employment ended he was the Religious Education Co-ordinator (REC) at Freeman Catholic College, Bonnyrigg Heights (the College). Mr Toohey had been working in that position since 2012, having been in the role of Assistant Religious Education Coordinator since 2008.
[3] The NSW and ACT Catholic Systemic Schools Enterprise Agreement 2015 applied to his employment.
[4] On 24 March 2016 Mr Toohey attended a meeting at SCS Head Office in relation to allegations made against him by Ms Aleksandra Pavlovic, a fellow teacher at the College. The allegations related to two similar incidents, one in February 2015 and another on 21 March 2016. Ms Pavlovic alleged that on both occasions Mr Toohey had touched her on the upper chest without her consent.
[5] At that meeting Mr Toohey maintained that he did not remember the incident of February 2015. He conceded that that he had touched Ms Pavlovic immediately below the clavicle (collar bone) on 21 March 2016. His evidence was that the touch was in order to demonstrate an osteopathic technique used to alleviate neck pain.
[6] Mr Toohey subsequently accepted a finding of serious unprofessional and inappropriate conduct and a first and final warning arising from that conduct. This was confirmed in a letter to Mr Toohey dated 31 March 2016 from Mr David Eljiz, Assistant Director Human Resources at SCS. Also arising from the disciplinary process Mr Toohey attended coaching sessions with a clinical psychologist concerning the boundaries of interpersonal behaviour in the workplace.
[7] On 25 May 2016 Mr Toohey was charged with two counts of “Assault with act of indecency” pursuant to section 61L of the Crimes Act 1900 (NSW) (the Crimes Act), relating to the events which were alleged to have occurred involving Ms Pavlovic on 22 February 2015 and 21 March 2016.
[8] As a consequence of the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) Mr Toohey was required to hold or have the ability to hold a Working with Children Check Clearance (Clearance). Mr Toohey held a Clearance but on being charged with these offences he became a “disqualified person” under the Child Protection Act and could not hold, or be granted, a Clearance.
[9] On 30 May 2016 Mr Toohey attended a meeting at the SCS Head Office in relation to the charges that had been laid against him. At that meeting Mr Toohey was advised that in SCS’s view, his employment had terminated on 26 May 2016, being the day on which he had been summonsed to attend Court. I note that the Court Attendance Notice was dated 25 May 2017, but nothing turns on this.
[10] Mr Toohey raised a number of alternative courses of action to termination in response to the loss of his Clearance. However these were rejected by SCS. SCS considered that Mr Toohey’s employment contract had been frustrated as a result of the operation of the Child Protection Act.
[11] The charges against Mr Toohey were heard in the New South Wales Local Court, Fairfield on 30 November 2016. On 6 February 2017 A A Spence LCM issued a decision dismissing the charges against Mr Toohey.
[12] Mr Toohey asks the Commission to find that his contract of employment was not frustrated, and that the decision taken by SCS to dismiss him was without valid reason. In the alternative, in the event I do find a valid reason for Mr Toohey’s dismissal, Mr Toohey argues his dismissal was harsh. Either way he asks the Commission to find that his dismissal was unfair. He seeks reinstatement, continuity of employment and reimbursement of pay from 6 February 2017.
[13] SCS argues that Mr Toohey’s employment came to an end as a consequence of his contract being frustrated because he was charged, lost his Clearance and could no longer perform his role of REC. It is argued that as a consequence Mr Toohey was not dismissed in the terms of s.386 of the Act and the Commission does not have the power to determine his application. In the alternative, if I find Mr Toohey’s employment contract was not frustrated, SCS argue that there were valid reasons for Mr Toohey’s dismissal; namely, that he was no longer able to perform his role as REC as a result of not holding a Clearance and that he gave inconsistent versions of the incident of 21 March 2016 in an attempt to downplay the seriousness of the incident. SCS also maintain that I could find that certain admissions made by Mr Toohey in evidence before me constitute a further valid reason or reasons.
[14] The matter was heard before me over 4 days on 16, 17 and 23 May 2017 and 18 July 2017. By permission of the Commission pursuant to s.596 of the Act Mr Toohey was represented by Mr Gibian of counsel with Mr Bailey from the Independent Education Union of Australia (IEUA) and SCS was represented by Mr Rauf of counsel with Ms Seymour from SCS. I granted both parties permission to be legally represented because I considered that the matter would be dealt with more efficiently if the parties were legally represented. I decided that the legal arguments being advanced, in particular frustration of contract, gave the matter a degree of complexity that met the threshold of s.596(a) of the Act and that I should grant permission to appear.
[15] Evidence was given by Mr Toohey on his own behalf. Evidence was also given for Mr Toohey by Ms Lesley Parker, a teacher at the College for 22 years, including for the duration of Mr Toohey’s employment, Mr Igor Pletikosa a teacher at the College from the beginning of 2016 until after the date of Mr Toohey’s termination and Mr Greg McKinney, an Organiser with the IEUA since 2005.
[16] Evidence was given for SCS by Mr David Eljiz, Dr Jane Comensoli, Director of Human Resources at SCS since 2010, Ms Karla Grossi, teacher at the College from 2011 to the present, Ms Jade Lynch, teacher at the College from 2012 to the present, and Ms Pavlovic who left her position as a teacher at the College in May 2016 and now teaches at another Catholic school.
[17] I consider that the first issue I must address is whether Mr Toohey’s contract of employment was frustrated and he was not dismissed at the initiative of SCS. If I find that he was dismissed at the initiative of SCS I consider the key issues for determination to be whether the loss of his clearance gave rise to a valid reason for his dismissal; whether his account of the incident of 21 March 2016 was inconsistent so as to downplay the seriousness of the incident and if so, whether this gave rise to a valid reason for his dismissal and whether the dismissal was otherwise harsh, unjust and/or unreasonable.
[18] For the reasons set out below I have found that Mr Toohey’s employment was not frustrated and he was dismissed; I found that there was a valid reason for Mr Toohey’s dismissal, being the loss of his Clearance, however I found that SCS’s dismissal of Mr Toohey was harsh and unreasonable and accordingly the dismissal was unfair.
[19] I have ordered that SCS reinstate Mr Toohey with continuity of employment. I have also ordered that SCS reinstate Mr Toohey’s income from 6 February 2017, the date A A Spence LCM issued a decision dismissing the charges against Mr Toohey.
[20] Before I go any further there are some initial matters that I must address arising from s.396 of the Act.
[21] Section 396(a) requires me to determine whether the application was made within the period required by subsection 394(2), that is, within 21 days after the dismissal took effect. Mr Toohey’s application was made within the required timeframe.
[22] Section 396(b) requires me to determine whether Mr Toohey was protected from unfair dismissal. This requires me to consider s.382 of the Act.
[23] Mr Toohey was a person who was protected from unfair dismissal under s. 382 of the Act because:
● it is uncontroversial that he was an employee (s.382(a))
● he had completed a period of employment with SCS (nearly 10 years) that is longer than the minimum employment period. (The minimum employment period for an employer that is not a small business is 6 months) (s.382(a))
● he was covered by an enterprise agreement (NSW and ACT Catholic Systemic Schools Enterprise Agreement 2015) (s.382(b)(ii))
● his annual rate of earnings of $117,727.00 plus superannuation was less than the high income threshold (s.382(b)(iii))
[24] Section 396(c) requires me to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code. Although I note that SCS argues that Mr Toohey was not “dismissed” it is uncontroversial that SCS is not a small business employer as defined in s.23 of the Act. Therefore the Small Business Fair Dismissal Code does not apply.
[25] Section 396(d) requires me to determine whether the dismissal was a case of genuine redundancy. There is no contention from either side that Mr Toohey’s employment ended as a result of genuine redundancy.
[26] Mr Toohey commenced teaching in 1980 and he has worked in both government and Catholic schools during since that time. He took a break from teaching between 2001 and 2006 during which time he worked in the finance sector.
[27] In July 2006 Mr Toohey commenced teaching on a casual basis at Mary MacKillop College in Wakeley.
[28] In January 2007 Mr Toohey commenced at the College as a teacher, however within a short time he was asked to move to the role of acting REC. 1
[29] Between 2007 to the end of 2011 Mr Toohey worked as either the acting REC or the Assistant REC at the College. 2
[30] In November 2007 Mr Toohey applied for, and was successful in obtaining, the substantive role of REC at the College. He was employed on a contract from 27 January 2012 to the end of January 2014. 3
[31] In June 2013 Mr Toohey began participating in a review process to secure reappointment to the REC role. 4 He was successful in being reappointed to the role and a new contract was issued on 6 December 2013. This contract stated that Mr Toohey’s appointment would commence on 28 January 2014 and run until the end of the summer school holidays in January 2017.
[32] On 15 June 2013 the Child Protection Act commenced operation. Section 6 of that Act declares the circumstances in which a worker is engaged in ‘child-related work’ for the purposes of the Act.
[33] It is clear, and it is common ground between the parties, that Mr Toohey’s role involved undertaking ‘child-related work’ for the purposes of s. 6 of the Child Protection Act.
[34] Section 18 of the Child Protection Act stated as follows:
Determination of applications for clearances
(1) The Children’s Guardian must not grant a working with children check clearance to the following persons ("disqualified persons"):
(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
[35] It is not contentious that after Mr Toohey was charged he became a “disqualified person” for the purposes of s. 18 of the Child Protection Act. This is because the offence under the Crimes Act with which Mr Toohey was charged is listed in Schedule 2 to the Child Protection Act (Schedule 2, (1)(e)).
[36] Section 9 of the Child Protection Act provided relevantly as follows:
Employers must require clearance or current application
(1) An employer must not commence employing, or continue to employ, a worker in child-related work if the employer knows or has reasonable cause to believe that:
(a) the worker is not the holder of a working with children check clearance that authorises that work and that there is no current application by the worker to the Children’s Guardian for a clearance of a class applicable to that work, or
(b) the worker is subject to an interim bar.
[37] The parties agree that a number of SCS documents, including policies, applied to SCS and Mr Toohey in relation to his employment.
[38] Some documents pertained to the role of the REC. These are the Religious Education Coordinator Application Form 5 and Religious Education Co-ordinator Conditions of Appointment and Employment.6 Mr Toohey agreed in cross examination that he had read and understood these documents.
[39] Mr Toohey was also cross-examined on his Self-Review Statement, 7 and his Contract for the position of REC (Level 1) at the College, Bonnyrigg (the Contract).8
[40] Some documents pertained to conduct in the workplace generally. These were The Positive Workplace Relationships: Policy on the Prevention of Bullying and Harassment in the Workplace 9, and Code of Professional Conduct.10 Mr Toohey agreed in cross examination that, in relation to the content that was pointed out to him, these documents contained content he agreed with and understood the importance of, although they were not documents he was familiar with.
[41] Mr Toohey has no recollection of the allegation of touching Ms Pavlovic in February 2015.
In relation to the incident on 21 March 2016 he admits that he touched Ms Pavlovic. He demonstrated the manner in which he touched her on a number of occasions – on 21 March 2016 to Mr Wooby Principal of the College, on 23 March 2016 to Mr Eljiz, on 30 November 2016 in the criminal proceedings and on 16 May 2017 in the Commission in these proceedings.
[42] The manner in which he touched Ms Pavlovic is controversial in relation to the way it was verbally described by Mr Toohey over the course of time. I will deal with that below when I consider whether there was a valid reason for dismissal.
[43] It is uncontroversial that Mr Toohey:
● observed that Ms Pavlovic had a sore neck
● asked Ms Pavlovic if he could touch her
● placed his left hand on her upper back to brace her
● pushed his right thumb onto her left hand side at a point below the clavicle (collar bone) with his fingers raised and not in contact with her body
[44] Mr Toohey in evidence confirmed he was charged on 26 May 2016. 11
[45] The criminal trial took place on 30 November 2016 at Fairfield Local Court before A A Spence LCM.
[46] Magistrate Spence issued a decision dismissing the charges against Mr Toohey on 6 February 2017.
[47] He said:
“In my view, this whole matter involves an unfortunate set of circumstances where the defendant has acted very unwisely and very imprudently. But on no account on the evidence presented could he be held criminally liable. The charges are accordingly dismissed.” 12
[48] The acquittal of Mr Toohey in relation to the incidents means it can be confidently stated that the incidents did not amount to indecent or sexual assault.
Mr Toohey’s application for a Clearance
[49] Mr Toohey applied for a Working with Children Check in February 2017. 13 At the time of these proceedings the application had not been determined and pursuant to correspondence from the Children’s Guardian on 2 March 2017 the Office of the Children’s Guardian (OCG) will undertake a risk assessment prior to determining the application pursuant to ss.14 and 15 of the Child Protection Act. 14
[50] A risk assessment can take in excess of 12 months. 15
[51] It is uncontroversial that Mr Toohey is legally able to work with children during this process however it the policy of SCS is not to employ a person who is undergoing this process. 16
[52] Section 394(4) of the Act provides that a “person who has been dismissed” may apply to the Commission for an order granting a remedy.
[53] Section 385 of the Act states as follows:
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.
[54] Section 386 of the Act deals with the meaning of “dismissed”, as follows:
Meaning of dismissed
(1) A person has been dismissed if:
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
[55] SCS submits that Mr Toohey was not dismissed within the meaning of s. 386 of the Act because his contract of employment came to an end as a result of it being frustrated.
[56] They say:
“The fact of Mr Toohey being charged and no longer holding a Clearance and being able to undertake child-related work under the Child Protection Act rendered the performance of the contract something radically different from that which was contemplated at the time that the parties entered into the employment contract.
If an employment contract terminates by effect of the legal doctrine of frustration of contract, there is no termination within the meaning of s.386 of the Fair Work Act 2009 (FW Act) and therefore no jurisdiction of the Commission to entertain a claim pursuant to s. 394 of the FW Act.” 17
[57] Mr Toohey submits:
“...that the respondent’s jurisdictional objection could not be accepted. In short, Mr Toohey submits:
(a) The respondent’s jurisdictional objection is inconsistent with the outcome of the proceedings in the Full federal Court in Mahony v White (2016) 262 IR 221;
(b) The objection erroneously concentrates on Mr Toohey’s contract of employment and not upon the question of what brought the employment relationship to an end; and/or
(c) In any event, Mr Toohey’s contract of employment did not come to an end by operation of the doctrine of frustration merely by reason of him temporarily being unable of performing child-related work.” 18
Was the contract of employment frustrated?
[58] Mr Toohey’s contract of employment was with Dr Daniel J White Executive Director of SCS.
[59] SCS say that an essential and inherent term of the contract was that Mr Toohey hold or have the ability to hold or obtain a Clearance. As a result of being charged he lost his Clearance. He was no longer able to engage in child-related work and could not perform his role of REC and teacher at the College.
[60] SCS say:
“In effect, the contract could not be performed at all and had been frustrated.” 19
[61] Mr Toohey says in applying the principles of frustration to the employment context that temporary incapacity for work, even for a prolonged period, will not ordinarily be treated as automatically discharging the contract by frustration. This is because the parties will have contemplated that an employee may experience periods in which he or she is unable to perform the duties of the employment.
[62] Mr Gibian drew my attention to the decision of the Supreme Court of New South Wales in Finch v Sayers [1976] 2 NSWLR 540. Reliance on this case was not challenged by Mr Rauf. Mr Gibian quoted Wootten J in that case as follows:
“The review of the authorities show that, before one can answer the question whether a contract of employment is frustrated, one must look at the whole of the terms of the contract, express and implied, and at all the surrounding circumstances, including the provisions made for the sickness and retirement of the employee, and the general practice of the particular employer, or in similar employment. When one does this, it may well be that, in many areas of employment in contemporary society, particularly where one is dealing with an indefinitely continuing relationship, and not the performance of a specific task, there is relatively little room for the operation of the doctrine of frustration due to illness. It is notable that, irrespective of what their lawyers may have subsequently argued for them, the employers, not only in Simmons Ltd. v. Hay (80), and in this case, but in every reported case in the last seventy years, have in fact acted on the basis that it was for them to terminate the sick employee's employment when they were no longer willing to maintain the continuity of his employment.” 20
[63] In Marshall v Harland & Wolff Ltd [1972] 2 All ER 715 the court said that in determining whether an employment contract is frustrated by incapacity, the court or Commission must ask itself this question:
“was the employee’s incapacity, looked at before the purported dismissal of such a nature, or did it appear likely to continue for such a period, that further performance of his obligations in the future would either be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by the employer under the contract of employment”
[64] For the following reasons I consider that at the time of Mr Toohey’s dismissal his contract of employment with SCS was not frustrated.
[65] Although Mr Toohey was to be without his Clearance for an uncertain period he advised SCS on 30 May 2016 that he would plead not guilty to the criminal charge. SCS did not make inquiries about when the charges were likely to be heard or determined.
[66] At the time of his dismissal it was not the case that further performance of his obligations in the future would be impossible or would be a thing radically different from that undertaken by him and agreed to be accepted by SCS. This was unknown.
[67] Mr Toohey’s contract of employment 21 and the Agreement both contemplate periods of absence such as sick leave. The Agreement contemplates him performing duties as determined by the Principal22 and the contract contemplates him performing work at another school, campus, location or locations as determined by SCS.
Contract of employment or employment relationship?
[68] Mr Gibian says it is well established that, for the purposes of Part 3-2 of the Act, the concept of “dismissal” is constituted by the termination of the employment relationship rather than the contract of employment. 23 Mr Gibian cites a number of cases in support of that proposition. One of those cases is Siagian v Sanel Pty Ltd (1994) 54 IR 185 (Siagian v Sanel).
[69] Mr Rauf says Mr Gibian’s reliance on this case for the proposition advanced is misplaced. He says that the case was focused on the question of whether a distinction could be made such that termination of employment was confined only to the situation where there had been a termination of an employee’s contract. 24
[70] Siagian v Sanel was a case before Wilcox CJ in the Industrial Relations Court of Australia in 1994 during the currency of the Industrial Relations Act 1988 about when termination took effect, a matter the Commission is often called upon to determine in applications for extension of time in unfair dismissal applications. In this case the question required an answer because the unfair dismissal law had changed and it was necessary to establish whether the dismissal was before the commencement of the new law. It was determined that the termination took effect on the day the employee was told he was dismissed and handed his payment in lieu of notice notwithstanding a finding that the contract of employment was ended 2 days later when the employee accepted the repudiation of the contract by the employer. 25
[71] Mr Rauf says while Siagian v Sanel stands for the principle that the employment relationship may be ended but the contract of employment remain on foot the converse is not the case. He says “an act which terminates the contract of employment does not leave open the employment relationship”. 26
[72] He contends that Mr Toohey’s contract of employment is frustrated so it follows that the employment relationship is ended, other than at the initiative of the employer.
[73] I have found that Mr Toohey’s contract of employment was not frustrated so this does not arise. However I must say that I don’t agree that Mr Gibian’s reference to Siagian v Sanel was misplaced. The case clearly stands for the principle that the legislation (in that case the Industrial Relations Act 1988) is concerned with the termination of the employment relationship. In relation to the Act I agree that the concept of “dismissal” is constituted by the termination of the employment relationship rather than the contract of employment.
Was the employment relationship ended at the initiative of the employer?
[74] This is not the first matter in which the employment of an employee of SCS has ceased as a result of the employee being charged with a criminal offence resulting in them becoming a “disqualified person” within the meaning of the Child Protection Act.
[75] I note that the Child Protection Act has created a new set of considerations as it operates in respect of persons against whom charges have been laid, not only those who have been convicted of certain offences. As I understand it, this represents a departure from the previous legislation.
[76] In the matter of Mahony v Dr Daniel J White (Executive Direction of Schools of the Catholic Education Office Sydney) T/A Catholic Education Office Sydney [2015] FWC 1593 Commissioner McKenna, when considering a somewhat similar set of facts to the present matter, rejected the SCS’s argument that pursuant to section 386(1) of the Act Mr Mahony’s employment had not been terminated on the employer’s initiative but rather had come to an end by virtue of the operation of the doctrine of frustration.
[77] In that matter (also an application pursuant to s. 394 of the Act) Mr Mahony had been working as a teacher and a REC since 1986. On 23 September 2012 he was charged with a number of offences under the Crimes Act, with further charges laid on 28 May 2013. Mr Mahony was suspended with pay shortly after the first charges were laid. After the exchange of numerous further pieces of correspondence and a meeting on 13 December 2013 at which he was informed he would be dismissed unless he agreed to apply for leave without pay, Mr Mahony was advised by SCS that his employment was terminated effective 20 December 2013. At that stage the criminal charges against Mr Mahony had not been resolved and his criminal trial was scheduled for May 2014.
[78] It was not contentious that Mr Mahony’s employment had involved ‘child-related work’ for the purposes of s 6 of the Child Protection Act and that he had become a disqualified person for the purposes of that Act following its commencement.
[79] Commissioner McKenna considered that provided Mr Mahoney was not engaged in child-related work, there was nothing to prevent SCS from continuing to employ him after 15 June 2013.
[80] Accordingly the Commissioner rejected the SCS’s jurisdictional objection.
[81] The Commissioner’s decision was the subject of an appeal by SCS to a full bench of the Commission (Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office Sydney v Gerald Mahony [2015] FWCFB 4952 (Mahony)). The appeal was however not run on the basis of frustration, but rather on the basis that Mr Mahony’s continued employment would have been inconsistent with the Child Protection Act and thus illegal.
[82] The Full Bench held that in the circumstances, it could not be fairly said that Mr Mahony’s employment was terminated on the employer’s initiative. The requirement in
s. 386(1)(a) of the Act was therefore not met and Mr Mahony’s application was dismissed.
[83] Subsequent to this decision a five member full bench of the Commission considered another similar set of circumstances in O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752. The Full Bench convened pursuant to s. 615 of the Act to determine the Respondent’s jurisdictional objection, being that Mr O’Connell was not terminated at the initiative of the employer.
[84] The Applicant in that matter, Mr Paul O’Connell, had commenced employment as a teacher at Marist Brothers Penshurst from May 1979 and was employed by the Catholic Education Office until 20 February 2015.
[85] Following an investigation which commenced in December 2014, Mr O’Connell was charged with indecent assault of a person under the age of 16 years, pursuant to s. 61M(2) of the Crimes Act on 17 February 2015.
[86] As a result he attended a meeting with the Catholic Education Office on 20 February 2015 at which he was advised his employment was terminated. At that meeting Mr O’Connell had indicated he intended to plead not guilty to the charge and suggested a range of options short of termination of his employment including being assigned alternative duties, suspension (with or without pay) or leave (with or without pay).
[87] Mr O’Connell’s dismissal was confirmed by way of a letter dated 24 February 2015.
[88] In response to Mr O’Connell’s application to the Commission, SCS raised a jurisdictional objection on the basis that Mr O’Connell’s employment was not terminated at the initiative of the employer.
[89] Before the Full Bench of the Commission, SCS argued that the operation of the Child Protection Act meant that in the circumstances it had no choice but to terminate the Mr O’Connell’s employment. The Full Bench rejected that argument. It found that the Child Protection Act did not require the termination of an employee in the circumstance of Mr O’Connell. The Full Bench held that s. 9 of the Child Protection Act did not, on its proper construction, prevent an employer continuing to employ a person provided that the person was not employed in child related work. SCS’s jurisdictional objection was therefore dismissed.
[90] The Full Federal Court dealt with applications for judicial review of both of these the decisions. 27 Both Mr Mahoney’s and Mr O’Connell’s employment had ceased as a result of being charged with a criminal offence resulting in them becoming a “disqualified person” within the meaning of the Child Protection Act.
[91] The Full Federal Court found that both Mr Mahoney’s and Mr O’Connell’s employment with their employer had been terminated on the employer's initiative.
[92] Mr Gibian on behalf of Mr Toohey submits that the outcome now contended for by SCS is directly inconsistent with the outcome of these proceedings.
[93] He submits that it is not open to the Commission to determine Mr Toohey’s application in a manner that is directly inconsistent with the outcome of Full Federal Court proceedings.
[94] Mr Rauf on behalf of SCS submits that Mr Gibian incorrectly summarises the Respondent’s submissions by stating that “frustration of contract is said to arise from the operation of the Child Protection (Working with Children) Act 2012 NSW”. 28
[95] He says that the contention that SCS’s position is inconsistent with the Full Federal Court decision proceeds from this incorrect summary. He says that when the SCS position is correctly stated, that is, frustration arises from Mr Toohey losing his Clearance, there is no inconsistency. 29
[96] I have addressed Mr Rauf’s submissions in relation to frustration and found that the contract was not frustrated so it is not necessary for me to deal with this submission. But it is necessary for me to deal with the relevance of the Full Court decision to my consideration of whether Mr Toohey was dismissed. It seems to me that the factual circumstances of Mr Mahoney and Mr O’Connell in relation to the loss of their Clearances and subsequent cessation of employment are very similar to Mr Toohey.
[97] As Mr Gibian submits, both decisions concern the application of the unfair dismissal provisions of the Act in circumstances in which an employee had become a disqualified person for the purposes of the Child Protection Act. This is Mr Toohey’s circumstance. Mr Gibian submitted that the Full Federal Court found in both cases that there was a termination on the employer’s initiative for the purposes of s.386(1)(a) of the Act. I agree with this submission.
[98] I have considered Ms Comensoli’s evidence regarding the decision, the letter of 26 May 2016 inviting Mr Toohey to a meeting to “present to the employer a reason or reasons why SCS should not act to terminate your employment forthwith” and the options presented by Mr Toohey to SCS of redeployment, suspension with or without pay, leave with or without pay that were not agreed by SCS.
[99] In all the circumstances I believe that it is clear that SCS made the decision to end the employment relationship. In all the circumstances I consider that Mr Toohey’s termination was on the employer’s initiative for the purposes of s.386(1)(a) of the Act.
[100] Having found that the contract of employment was not frustrated and Mr Toohey was dismissed in terms of ss.385 and 386 of the Act it remains for me to consider whether Mr Toohey’s dismissal by was harsh, unjust or unreasonable, that is, unfair.
[101] In doing this I must take into account the factors contained in subsections 387(a) to (h) of the Act. These factors direct the Commission’s attention firstly to the substantive fairness of an employer’s decision to dismiss an employee, secondly to procedural fairness in the way in which the employer’s decision is made and carried out and, thirdly to any other matters that the Commission regards as relevant to its consideration.
[102] SCS maintain that there were at least two valid reasons for Mr Toohey’s dismissal. The first reason advanced by SCS is that Mr Toohey had lost his Clearance and was therefore prevented from undertaking child related work. The second reason is that there was attempt by Mr Toohey in his meeting with Mr Eljiz on 24 March 2016 to downplay the seriousness of the incident on 21 March 2016. SCS alleges the evidence Mr Toohey gave in the criminal proceedings against him brought to light an inconsistency between two accounts of the event and gave an indication that the incident was more serious than Mr Toohey had admitted to in the meeting on 24 March 2016. 30
[103] SCS also maintain, although it is not squarely pressed, that I could find that certain admissions made by Mr Toohey in evidence before me constitute a further valid reason or reasons for his dismissal. 31 I note that SCS also maintain that, should I find Mr Toohey’s dismissal unfair, these events should be considered in relation to remedy. SCS argue that these matters “go to the very heart of the relationship”32 and strongly militate against reinstatement.33
[104] Facts justifying dismissal can be considered even if the employer was unaware of those facts and did not rely on them at the time of dismissal. 34 Indeed, the Commission is obliged to consider whether there was a valid reason for the dismissal, and that consideration is not limited to the reason given by an employer.35
[105] A valid reason will be one that is sound, defensible and well founded ….in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. 36 A valid reason could be a relatively unimportant valid reason, or one which is of much greater importance.37 I will deal with each of the reasons in turn.
[106] Mr Toohey’s loss of Clearance relates to his capacity, or his ability to do the work he was employed to do.
[107] It is clear and agreed by the parties that after the criminal charges were laid against Mr Toohey the Child Protection Act made it unlawful for SCS to continue to employ him in “child related work”.
[108] SCS says that Mr Toohey did not meet a fundamental requirement of his employment in the roles of teacher and/or REC and SCS was prevented from engaging him in child-related work.
[109] No evidence was given concerning the practical difficulties that would flow from Mr Toohey not being able to carry out the role of REC. However my general knowledge and experience of workplaces is sufficient for me to conclude that operational difficulties are likely to arise when a person who is employed as a teacher is unable to work with children for an uncertain period of time.
[110] Mr Toohey submitted that this circumstance was temporary and, rather than being dismissed, he could have been permitted to take accrued leave, been suspended with or without pay or redeployed to undertake other duties.
[111] I consider that alternatives to dismissal including matters such as redeployment, suspension and leave are appropriately addressed when considering whether any other matters were relevant to the dismissal (that is, pursuant to s. 387(h) of the Act) rather than whether there was a valid reason for dismissal. 38
[112] I’ve formed the view that because Mr Toohey was not able to carry out a central part of his role (involving working with children) for an indeterminate period that this was likely to give rise to operational difficulty for SCS.
[113] Whilst the issue is finely balanced I have concluded that this operational difficulty was a sound, defensible and well-founded reason for his dismissal. Therefore I find that the loss of the Clearance was a valid reason for dismissal.
[114] Mr Toohey was cross examined on what SCS considered to be a downplaying of the incident. Mr Rauf put to Mr Toohey that although he told Mr Eljiz that he touched Ms Pavlovic “nowhere near” the chest, he did in fact touch her near or on the chest. SCS submitted that if it were found there had been “downplaying” on Mr Toohey’s behalf, that did bring in to question whether there was another basis on which there is a proper or valid reason for the dismissal. 39
[115] In oral closing submissions Mr Rauf said:
“we maintain the submission that there is a level of inconsistency in the explanation which Mr Toohey gave during the respondent’s investigation and has subsequently given now, whether in criminal proceedings or in the course of his statements in this matter, in terms of the level of detail and the precise location.” 40
[116] It is important here to set out the evidence given of the meeting held between Mr Toohey, Mr McKinney, Mr Eljiz and Ms Nancy Albatti, Human Resources Team Leader for the Southern Region, on 24 March 2016, as well as some of the events leading up to the meeting.
[117] As noted above, on the afternoon of 21 March 2016, the same day the incident with Ms Pavlovic occurred, Mr Toohey attended a meeting with the school principal, Mr Wooby to discuss what had occurred. Mr Toohey states that during this meeting he demonstrated how he had touched Ms Pavlovic “on myself by placing my right thumb immediately below the collarbone (clavicle) on my left side.” 41
[118] Mr Toohey did not recall whether he had told Mr Wooby that he had also had his other hand bracing Ms Pavlovic’s back. 42 Mr Toohey gave evidence that when he told Mr Wooby that he had touched Ms Pavlovic on her chest just below the clavicle, Mr Wooby said that Ms Pavlovic considered that it had been “more than that”.43 Mr Toohey says he did not ask Mr Wooby what he meant by that and does not think the word “breast” was used.44 I note that Mr Wooby did not give evidence. There was no evidence to suggest what, if any, of his conversation with Mr Toohey Mr Wooby passed on to others, including Mr Eljiz.
[119] Mr Toohey gave evidence that he met with Mr McKinney in a coffee shop on 24 March 2016, prior to the meeting with SCS on the same day. Mr Toohey says that Mr McKinney asked him to demonstrate the way in which he touched Ms Pavlovic.
[120] For his part, Mr McKinney gave evidence that he thought Mr Toohey had demonstrated the touching on him prior to the meeting with SCS.
[121] Mr Toohey says that when he wrote his witness statement in this matter (which I note was some considerable time after the events) he was unsure whether he had demonstrated the technique on himself or on Mr McKinney when he met with SCS. He attributes this to there being two demonstrations on the same day; one between himself and Mr McKinney and one during the meeting with SCS.
[122] In relation to what took place during the meeting with SCS, Mr Toohey stated in his witness statement that during the meeting he identified:
“with my thumb of my right hand the location on the left side of the body where I had touched Ms Pavlovic” 45
[123] Mr Toohey stated further that:
“it was abundantly clear that I placed my thumb on the spot immediately underneath the clavicle, and on the front of the body” 46
[124] Mr McKinney’s evidence at hearing in relation to the demonstration of the touching that Mr Toohey gave at the meeting with SCS was as follows:
“he was sitting down at the time, and he put his left arm out to show that this was behind the complainant's back or shoulder, and then he, on himself, in a position that I would describe here, very close to the clavicle or collar bone, just below – as per my statement, just below the shoulder, rather than the chest. I note there's a bit of conjecture around chest, shoulder, breast, but, yes, it was in this area here.” 47
[125] At the hearing, Mr Eljiz amended the witness statement he had filed. The amendment comprised the following paragraph in relation to the events that occurred at the meeting on 24 March 2016:
“Mr Toohey demonstrated the technique he used. He did so on Mr McKinney by placing one hand behind the chest and the other hand immediately under the clavicle.” 48
[126] I note that prior to this amendment the statement of Mr Eljiz contained no mention of the demonstration that Mr Toohey had given.
[127] At the hearing, Mr Eljiz gave evidence that he asked Mr Toohey for an explanation of what happened in relation to Ms Pavlovic on 21 March. What followed was elaborated on further by Mr Eljiz in the course of his evidence: 49
“MR ELJIZ: When I asked for an explanation about what happened, the technique was – Mr Toohey initially started to show me the technique with hand gestures, and then turned around and asked if he could demonstrate it on Mr McKinney. That consent was granted and then he proceeded to put one hand behind Mr McKinney's shoulder or chest, and with the other hand he pressed immediately below the clavicle or the collar bone.
THE DEPUTY PRESIDENT: Do you recall which hand he used to demonstrate the movement on the front of the body?
MR ELJIZ: I believe he would've had the left hand behind bracing, and the right hand would have come up to press with – immediately on the clavicle.
THE DEPUTY PRESIDENT: That's as you're demonstrating it to me now?
MR ELJIZ: Well, yes, but I'm trying to do it on myself not quite that dexterous.
THE DEPUTY PRESIDENT: Yes. Yes, I appreciate that, but, yes, it's just a question of where the thumb goes and where the fingers would be pointing?
MR ELJIZ: Yes. So he…
THE DEPUTY PRESIDENT: So, just for the record, as you've described it to me, your thumb is pressing into that part of the body described as you have done, as immediately under the clavicle?
MR ELJIZ: Yes.
THE DEPUTY PRESIDENT: And the fingers are splayed outwards pointing upwards?
MR ELJIZ: That's my recollection, Deputy President.”
[128] Mr Eljiz confirmed that Mr Toohey stood with Mr McKinney and carried out the demonstration on him.
[129] It is clear from the above evidence that the parties agree that at the meeting on 24 March 2016, Mr Toohey gave a demonstration in which he indicated that the touch to Ms Pavlovic had been with his right thumb immediately below the collarbone or clavicle.
[130] The outcome of this meeting was communicated to Mr Toohey in a letter dated 31 March 2016. The letter summarised the meeting and included Mr Toohey’s denial that he had touched Ms Pavlovic “anywhere near the chest”.
[131] Mr Toohey accepted the contents of the letter as an accurate reflection of the meeting by signing the warning. He maintained this in his witness statement in this proceeding. He was asked in cross examination whether he read the letter carefully and he replied “No.” He said he had “flicked through it” because he thought the letter was “the end of it” and did not pick up the distinction between the summary and the demonstration. 50
[132] Mr Toohey accepted that he had used words to the effect that the touching was “nowhere near her chest”. 51 However he maintained that he had used the word “chest” as a euphemism for the word “breast” because Ms Albatti was present and for her sake he did not wish to use the term breast.52
[133] It was Mr McKinney’s evidence that in relation to what was said during the meeting Mr Toohey had said that the location on which he touched Ms Pavlovic was “nowhere near her breast”. 53
[134] Further on in cross examination Mr Toohey said that he had no recollection of whether he used the terms “chest or breast”. He said:
“I have no notes of the actual meeting. So in a sense I am relying on what they have written. I have no recollection of whether in fact, I really did say chest or breast, but I know that I showed them exactly where I did touch.” 54
[135] I think this gets to the nub of the point. It was the demonstration, or more accurately the series of demonstrations, that best presented his “story”. There was no material difference able to be drawn to my attention about any of these demonstrations. I consider the demonstrations were a far more accurate indication of his actual conduct than the words he used to describe it.
[136] Mr Toohey was cross examined about his evidence in the criminal proceedings about the touch. The following exchange occurred in cross examination in the criminal proceedings: 55
“Q. Is it possible perhaps then that your thumb might have got near the upper part of her – the edge of her bra cup? She gave evidence about the edge of her bra cup at one point.
A. It’s – it’s possible, but I didn’t notice it and I didn’t notice that there was anything there. I just noticed it was at the top of this area here.
Q. Did you at any point –
A. It wasn’t my intention –
Q. Did you at any point put any part of your hand on her actual breast?
A. No
Q. Are you sure about that?
A. Yes I’m positive.”
[137] I dismiss this as a source of inconsistency because Mr Toohey was responding to a question about a possibility candidly, and against his own interests. It was not an admission that he had touched Ms Pavlovic on the breast and the finding of the magistrate in his decision was consistent with this. It may have contributed to his confusion when giving evidence in May 2017 about whether he used the word “chest” or ‘breast” on 24 March 2016 but it certainly could not ground a concern that he actually did touch Ms Pavlovic on the breast.
[138] For Mr Eljiz to construe, as he did in his evidence 56 before the Commission, that Mr Toohey touched Ms Pavlovic’s bra cup is a misrepresentation of the evidence.
[139] In addition to the demonstrations mentioned above I note that Mr Toohey demonstrated the touch in the criminal proceedings on 30 November 2016 and again before me on 16 May 2017 in these proceedings. I cannot detect any material inconsistency in the demonstrations, nor did SCS challenge the accuracy of Mr Toohey’s evidence of each demonstration. I consider the oral descriptions of less significance than the demonstrations.
[140] Mr Toohey gave demonstrations to both Mr Wooby and Mr Eljiz. There is no suggestion that in doing so he ‘downplayed’ his conduct, and indeed, considering the difficulty in defining the term ‘chest’ both in the events that occurred around investigating Mr Toohey’s conduct and in the proceedings themselves, this would have to be considered a far more accurate indication of his actual conduct.
[141] The extensive discussions in the hearing before me as to how to define “chest” and “breast” are evidence in themselves of the difficulties with these terms. The evidence was that Mr Eljiz was not present in the Local Court during the criminal proceedings. There was no suggestion that any other SCS representative observed the proceedings. In this circumstance it was inappropriate for SCS to have formed the view that Mr Toohey had given inconsistent evidence as between the meeting at on 24 March 2016 and in the Local Court proceedings.
[142] I note that the conduct itself was at no stage suggested to ground a valid reason. It had already been the subject of a first and final warning and SCS did not resile from that as an appropriate disciplinary response to the incident.
[143] Taking into account the demonstrations and the oral descriptions I do not consider that there was a material inconsistency in Mr Toohey’s portrayal of the incident or any “downplaying” of the incident. Consequently there is no sound, defensible or well-founded reason arising from his portrayal of the incident that could provide a valid reason for dismissal.
[144] In oral closing submissions Mr Rauf said:
“…given that it is now evidence of admissions …That provides…a further basis on which this Commission could determine that there was a valid reason in reliance on Mr Toohey’s admissions, which obviously were not known before.” 57
[145] These admissions are listed in SCS written closing submissions as follows:
(a) Conduct in relation to applying acupressure to Mr Pavlovic (PN 1199)
(b) Comments to Ms Pavlovic about her weight and dress (PN 1200)
(c) Possible comments which Mr Toohey may have made to Ms Pavlovic about her having a boyfriend (which he could not recall but accepted as being possible) (PN 1210 – 1213)
(d) He generally agreed on making comments to a female staff for instance relating to their dress and weight (PN 1233 – 1226)
(e) He offered to assist female staff by providing acupressure to them (PN 1227)
(f) He offered to assist Ms Grossi by massaging her back while she lay on his desk (PN Archer [sic] back which involved putting her on the desk outside his office (PN 1280 – 1289). Ms Grossi gave evidence that this made her feel awkward and she refused the offer; and
(g) He massages another female employee, Ms Alyssa Scheinflug, by sitting her she [sic] on the table and putting her knee up and applying pressure above her knee (PN 1319 – 1326)
[146] Mr Rauf says, in effect, that these admissions should be seen in the context of the seniority of Mr Toohey’s role as a leader in the College. I accept that submission and I have
considered the transcript in relation to each of these matters in this light.
[147] It is also important to note that conduct must be found to have occurred on the balance of probability before the conduct can be considered as a valid reason. 58
[148] The first matter is the incident of 21 March 2017 with Ms Pavlovic. This has been addressed extensively above and it is not relied on by SCS as a valid reason for dismissal. It is admitted. I agree with SCS and Mr Toohey that it was inappropriate but it does not provide a valid reason for dismissal. In any event, SCS had already issued Mr Toohey a disciplinary warning over the incident, and prior to receiving information about the criminal charges against Mr Toohey, had considered the matter closed.
[149] The second matter is comments by Mr Toohey to Ms Pavlovic about her weight and dress. Mr Toohey does not admit making comments to Ms Pavlovic about her dress but does admit making comments about her weight, in the context of both of them making an effort to lose weight. I do not consider the comments made to Ms Pavlovic about her weight were inappropriate. The workplace is comprised of human beings. There is room for personal exchanges, even between managers and subordinates that do not cross the boundary of reasonableness. In my view complimenting a colleague about their weight loss is not unreasonable. I do not consider that this provides a valid reason for dismissal.
[150] The third matter is possible comments which Mr Toohey may have made to Ms Pavlovic about her having a boyfriend. Mr Toohey has no recollection of making any remarks of the kind Ms Pavlovic recalls but under cross-examination he said it was possible. This is not an admission. It is an honest answer of the kind he gave when being cross examined in the criminal proceeding. I am not satisfied it occurred and consequently it does not provide a valid reason.
[151] The fourth matter is making comments to female staff about their dress and weight. This is another example of Mr Toohey agreeing under cross examination that he may have made comments of this nature to some unidentified people. I am not satisfied that conduct I could examine occurred and consequently it does not provide a valid reason.
[152] The fifth matter is offering to provide acupressure to female staff. Mr Toohey agreed under cross examination that he had made an offer of acupressure to some unidentified people. There is nothing in evidence except this general admission. I am not satisfied that conduct I could examine occurred and consequently it does not provide a valid reason.
[153] The sixth matter is offering to massage Ms Grossi’s back. I note that SCS written submissions are incorrect in so far as they state that the offer was for Mr Grossi to lay on Mr Toohey’s desk: there is no evidence that was the case, rather both Ms Grossi and Mr Toohey agreed the incident involved a desk outside Mr Toohey’s office. Mr Toohey gave evidence that he made the offer that she lie on a desk outside his office and he would push her back. Ms Grossi gave evidence that the offer was not accepted and the offer made her feel awkward. Mr Toohey gave evidence that he did not think that this was inappropriate at the time but does now. I consider that this conduct occurred and was inappropriate. However I do not think it meets the threshold of a valid reason for dismissal.
[154] The seventh matter concerns an occasion on which Mr Toohey applied pressure above her knee to Ms Scheinflug on an occasion that she was in pain after training on sports day. I note that Ms Scheinflug did not give evidence but Mr Toohey agreed in cross examination that he had done this. He described it as the Bowen technique, “a way in which you basically move over the muscles and it’s like a flick over the two points over the kneecap.” 59 This conduct occurred however there is no evidence that is was uninvited or unwanted. I don’t think is was wise but I don’t think it meets the threshold of a valid reason for dismissal.
[155] I consider that each incident constitutes a trivial, if in some cases unwise, interaction between colleagues. Taken in isolation or together these incidents do not provide a valid reason for dismissal.
[156] In summary I have found that the loss of the Clearance was a valid reason for Mr Toohey’s dismissal. I have found that “downplaying” of the incident did not occur. In relation to Mr Toohey’s further admissions I have found that some of the incidents he was cross examined about occurred but that they were trivial if unwise interactions between colleagues and taken in isolation or together did not provide a valid reason for dismissal. The upshot of this is that there was a valid reason for dismissal.
[157] SCS wrote to Mr Toohey on 26 May 2016 asking him to attend a meeting on 27 May 2016. In this correspondence SCS made it clear that they were considering terminating his employment.
[158] The letter stated (in part):
“1. On being charged with an offence that falls within Schedule 2(1) (Disqualifying Offences) of the CP Act, you are deemed to be a “disqualified person” under that Act. This means that you no longer have the capacity to hold a Working With Children Check Clearance (WWCC) as required, see s18(1)(b). The CP Act at s9 states that SCS, as the employer, cannot continue to employ you if it knows that you do not hold a WWCC. In the above circumstances, your employment contract to work as a Teacher and as Religious Education Coordinator at the school cannot validly operate on you being summonsed in regard to the above offences as a result of the requirements contained in the CP Act.
2. Further s8 of the CP Act states that a person who does not hold a WWCC (such as occurs on being charged and deemed to be a disqualified person) can no longer engage in child-related work. This means that you cannot perform your obligations under the contact of employment to work as a Teacher and as a Religious Education Coordinator in a school.
3. Further, and in the alternative, in circumstances where SCS cannot continue to employ you under your contract of employment (being a contract for child-related work in a school), and you can no longer perform the contact of employment, the contract of employment is frustrated by operation of the CP Act.
4. Further, and in the alternative, noting you cannot perform your obligations under your contract of employment, including meeting the inherent requirements of your contract of employment as a Teacher and Religious Educations Coordinator (noting this position which position is the third most senior in the school), working in a school to hold a WWC, you contract is also frustrated at common law.
5. In light of the above circumstances and noting your position as a senior person in the school with responsibility for managing staff, I invite you to present to the employer a reason or reasons why SCS should not act to terminate your employment forthwith.”
[159] The reasons given could be summarised as being threefold. The first was that the operation of the Child Protection Act required it to immediately terminate Mr Toohey’s employment, the second was that without a Clearance he could not engage in child-related work and so could not perform his obligations as a teacher and REC and the third was that the contract of employment was frustrated.
[160] SCS maintain the latter two contentions but not the first.
[161] They also raise the downplaying of the incident and the occurrence of other incidents. These were matters that came to light after the dismissal.
[162] I am satisfied that Mr Toohey was notified of the reasons for his dismissal as held by SCS at the time of his dismissal. In respect to this factor there was no lack of procedural fairness that would weigh in favour of the dismissal being considered unfair.
[163] Was Mr Toohey given an opportunity to respond to the reason/s given for dismissal? (s.387 (c ))
[164] Mr Toohey received the reasons for dismissal in the letter of 26 May 2017. The meeting to discuss the reasons was to have been held on 27 May 2017 but was postponed until 30 May 2016 to allow Mr Toohey to be represented by the IEUA. Mr Toohey was informed in this meeting that his employment was terminated. He received a letter confirming this on the same day.
[165] The evidence is that SCS made the decision to terminate Mr Toohey’s employment before the meeting on 30 May 2017. Dr Comensoli’s evidence under cross-examination was:
“MR GIBIAN: At the meeting on 30 May that Mr Corbishly had with Mr Toohey, you understand that at that meeting Mr Toohey was told that his employment was terminated, correct?
DR COMENSOLI: Yes.
MR GIBIAN: That is not something that Mr Corbishly had the authority on his own to decide, correct?
DR COMENSOLI: Correct.
MR GIBIAN: He had to at least have approval from you?
DR COMENSOLI: Correct.
MR GIBIAN: Are we correct in understanding from that that a decision had been made in relation to that matter prior to the meeting on 30 May?
DR COMENSOLI: Correct.
MR GIBIAN: And you were involved in that decision, I take it?
DR COMENSOLI: Yes, I was.
MR GIBIAN: Was Dr White involved in that decision?
DR COMENSOLI: Yes, he was.”
[166] It is agreed between the parties that Mr Toohey raised a number of alternative courses of action to termination in response to the loss of his Clearance. He raised paid or unpaid leave, paid or unpaid stand down, and redeployment. The evidence was that redeployment was considered by SCS prior to it being raised as an option by Mr Toohey but was considered impractical and was not taken any further with Mr Toohey.
[167] An opportunity to respond must be one that provides an opportunity that might result in the employer deciding not to terminate the employment. It is not enough for an employer to simply go through the motions if a firm decision to terminate has already been made. 60
[168] I consider that the decisions made prior to the meeting by SCS meant that Mr Toohey did not have a genuine opportunity to engage with SCS with a view to influencing their decision.
[169] Because SCS had already made the decision to dismiss Mr Toohey it is clear that they had no regard to any suggestions he made that would have allowed for the continuation of the employment relationship.
[170] I conclude that Mr Toohey was not given an opportunity to respond to the reasons for his dismissal.
[171] The lack of procedural fairness in relation to this factor weighs in favour of the dismissal being considered unfair.
[172] He was also not able to respond to the allegations concerning the downplaying of the incident and the other incidents because they were matters that came to light after the dismissal. It was not possible for SCS to cite them as reasons at the time of the dismissal and therefore not possible to give Mr Toohey an opportunity to respond to them. Therefore this factor is not relevant to those reasons.
[173] I find that SCS did not unreasonably refuse to allow Mr Toohey to have a support person present to assist at any discussion relating to his dismissal.
[174] The reason for Mr Toohey’s dismissal was not related to his performance.
[175] In the circumstances of this case I do not consider that this this factor is relevant.
[176] This factor is generally applied to a small employer. It allows the Commission to consider whether the size of the employer is a mitigating factor when there is a deficit in procedural fairness. SCS is a large employer. This factor is not relevant.
Did the absence of human resource management specialists or expertise impact on the procedures followed in effecting Mr Toohey’s dismissal? (s.387(g))
[177] This factor is generally applied to an employer without human resource management capability. It allows the Commission to consider whether the absence of such capability is a mitigating factor when there is a deficit in procedural fairness. SCS is an employer with a sophisticated human resources function. This factor is not relevant.
[178] I consider that Mr Toohey was not afforded procedural fairness throughout the process of dismissal. The failure to provide him an opportunity to respond to the reason/s given for dismissal weigh in favour of Mr Toohey’s dismissal being considered unfair.
[179] It is uncontroversial that Mr Toohey was prepared to be redeployed to an alternative position in non-child related work, be suspended (with or without pay), take accrued leave or leave without pay until the criminal charges were determined.
[180] SCS says that it considered redeployment but there were no suitable vacant positions. They did not agree to Mr Toohey being suspended (with or without pay) or taking take leave (with or without pay) until the criminal charges were determined.
[181] I consider that it was open to SCS to adopt one of these courses. To take up his proposal that he take leave without pay until the criminal charges were determined would not have been impractical or onerous for SCS. I note that Mr Toohey informed SCS in the meeting of 30 May 2017 that he denied the charges against him and would plead not guilty to the charges against him.
[182] From the perspective of SCS, the inappropriateness of the conduct to which Mr Toohey admitted in respect of Ms Pavlovic had been dealt with in a disciplinary sense by way of a final written warning.
[183] Given this, I consider it was particularly harsh and quite unreasonable that SCS did not adopt one of the alternatives to dismissal proposed by Mr Toohey.
[184] Mr Toohey is a teacher of long standing and his commitment to his calling was evident to me. There is no suggestion that his teaching career has been other than unblemished.
[185] Mr Toohey and his family have suffered materially and emotionally from the termination of his employment.
[186] He has not worked, other than in the role of occasional funeral celebrant since his termination.
[187] Mr Toohey was also suspended from participating in a Diaconate program run by the Archdiocese of Sydney and despite the dismissal of the criminal charges has not been permitted to resume.
[188] His two daughters were enrolled at the College at the time of his dismissal. After his dismissal one changed schools and the other left schooling altogether.
[189] Mr Toohey has had occasion to seek the assistance of a counsellor for depression.
[190] He was acquitted of the charges that instigated his dismissal in February 2017 and he has continued to suffer from the impact of the termination of his employment for the period after the acquittal to the present day.
[191] I consider that the impact on Mr Toohey of his dismissal has been harsh and that termination of employment in the circumstances of his case was harsh and unreasonable.
Conclusion
I have found that there was a valid reason for dismissal but that Mr Toohey was denied the opportunity to respond to the reasons for his dismissal and there were other relevant matters that rendered the dismissal harsh and unreasonable, in particular the other options available to SCS in circumstances where Mr Toohey had been only charged, not convicted, of a criminal offence. I find that the dismissal was unfair.
[192] Mr Toohey seeks reinstatement to the position in which he was employed immediately before his dismissal together with orders maintaining the continuity of his employment and with respect to remuneration lost. In relation to remuneration lost he seeks restoration of income from 6 February 2017, the date A A Spence LCM issued a decision dismissing the charges against him.
[193] Reinstatement is the primary remedy under the Act and only if I find that reinstatement is inappropriate may I order compensation instead (s.390 (3)).
[194] SCS advance a number of reasons why reinstatement of Mr Toohey as REC at the College is not appropriate.
[195] SCS say that Mr Toohey appreciated the senior nature of his role and the leadership and management responsibilities attached to this role. Yet he thought that his conduct in relation to Ms Pavlovic and the other admissions I have considered above was appropriate at the time of the incidents. SCS says, in effect, that this failure to appreciate the inappropriateness of the conduct at the time means that he should not be reinstated. In written closing submissions they say:
“The above conduct and explanation of Mr Toohey highlighted his fundamental failure to appreciate the significance of the role and responsibilities of a Religious Education Coordinator, indeed a teacher, in a school environment with responsibility for managing and supervising junior female staff.
This is a matter which goes to the very core of the employment relationship between Mr Toohey and Sydney Catholic Schools, particularly in connection with a senior role with managerial and pastoral responsibilities.” 61
[196] In response in Mr Toohey’s written closing submissions Mr Gibian says that the incident of 21 March could not provide the basis for finding that reinstatement is inappropriate because at the time SCS regarded a first and final warning and coaching as the appropriate course. He says none of the other matters were considered of sufficient seriousness at the time they occurred to warrant complaint and could not lead to a conclusion that reinstatement is inappropriate.
[197] Mr Gibian says that following the discussions with Mr Wooby and the sessions with the psychologist Mr Walker Mr Toohey has a clear understanding of appropriate comment and conduct in the workplace.
[198] In forming a view as to whether Mr Toohey’s conduct grounds a conclusion pursuant to s. 390 that reinstatement is inappropriate I consider that it is the present attitude of Mr Toohey concerning conduct in the workplace that is relevant.
[199] He was examined and cross examined on his attitude and I consider that he was resolute in his expression of his current attitude.
[200] While being examined by Mr Gibian:
“MR GIBIAN: In terms of the understanding of appropriate workplace conduct that you derived from those incidents, is that something that you think you'll be able to comply with going forward in your career?
MR TOOHEY: Yes. I think it's quite clear to me now.”
[201] In responding to me:
“THE DEPUTY PRESIDENT: Let's hear the hindsight?
MR TOOHEY: In hindsight, would I touch another person in a professional situation again - someone who wasn't - even outside, someone wasn't close to me, like a family member, the answer is no.”
[202] And when cross-examined by Mr Rauf:
“MR RAUF: For all the reasons that I've explained, even back when this incident occurred, you should have reasonably known that it was inappropriate?
MR TOOHEY: At the time I didn't think it was inappropriate. Otherwise I wouldn't have done it and he [sic] was a person in pain and I thought I could help them. Today, I wouldn't do it within the context of the professional working environment at the school.”
[203] I accept Mr Toohey’s evidence concerning his current attitude to conduct in the workplace.
[204] He acknowledges that his conduct with Ms Pavlovic on 21 March 2016 was unprofessional and inappropriate. I consider that it was unthinking and lacked empathy for Ms Pavlovic by ‘invading’ her personal space.
[205] I consider that he is remorseful and determined to hold himself to a high standard of conduct in the future.
[206] I believe that he is committed to upholding the SCS policies that he was cross- examined about when he agreed that these documents contained content he agreed with and understood the importance of.
[207] Overall I am not persuaded that the incident on 21 March 2016 or the other matters raised amount to circumstances that make reinstatement inappropriate.
[208] SCS says that these matters, and other allegations that were not relied upon, would provide them with the basis for further action if Mr Toohey was reinstated.
[209] That there may be actions that an employer may see fit to take in relation to an employee in the future is not a reason not to reinstate an employee.
[210] SCS also say that as Mr Toohey’s appointment as a REC would have expired on 31 January 2017 it would be inappropriate to reinstate him. They say that it would have been necessary for him to undertake a process of review and application to determine whether SCS would offer him a new contract and this would be unlikely.
[211] Ms Comensoli was cross examined by Mr Gibian extensively on the application of the policy that applied to the process of review. From this evidence I conclude that Mr Toohey would have been the subject of a performance review process in 2016 and would have been entitled to a further year in the role beyond January 2017 in circumstances that the Executive Director was not confident about his capacity to fulfil the role for another three years.
[212] Mr Rauf says this circumstance is an “obstacle” to reinstatement. 62
[213] I consider that this is something that SCS would need to deal with upon Mr Toohey’s return to work if he was reinstated. It may present some difficulty for SCS but that does not amount to circumstances that make reinstatement inappropriate.
[214] In the course of giving evidence, Mr Toohey explained the importance he placed on being reinstated. 63 He graduated from a Masters of Theology just after his employment was terminated. He explained that he had always felt a calling to teach. He had been a Catholic monk and he did that because he had a calling and a vocation to preach the gospel.
[215] Nothing I have read or heard in submissions or evidence in this matter leads me to any other conclusion than Mr Toohey genuinely yearns to return to the teaching of religion.
[216] I am not satisfied that reinstatement is inappropriate and therefore pursuant to s.391 (1)(a) of the Act I order that SCS reinstate Mr Toohey to the position of Religious Education Co-ordinator at Freeman Catholic College or to another position on terms and conditions not less favourable than those on which Mr Toohey was employed immediately before his dismissal.
[217] Mr Toohey has sought lost income only from the date that he was acquitted of criminal charges 6 February 2017. Mr Gibian explained that this was appropriate because it was consistent with his offer to take leave without pay in lieu of being dismissed. I am satisfied that this is appropriate.
[218] I consider that it is appropriate pursuant to s.391 (2) of the Act to maintain Mr Toohey’s continuity of employment. I consider that it is appropriate pursuant to s.391 (3) of the Act to make an order to cause SCS to pay to Mr Toohey an amount for remuneration lost from 6 February 2017. Between 6 February 2017 and 5 May 2017 Mr Toohey earned $7,010 from work as a Funeral Celebrant. This amount is to be deducted from the repayment of lost income.
[219] An order will issue with this decision.
DEPUTY PRESIDENT
Appearances:
M Gibian with I Bailey for the Applicant
B Rauf with C Seymour for the Respondent
Hearing details:
Sydney, 16, 17 and 23 May 2017, 18 July 2017
1 Transcript PN615 and PN 616
2 Transcript PN 619
3 Transcript PN 686
4 Transcript PN 687
5 Transcript PN 627; Exhibit R5, Witness statement of Jane Comensoli , Annexure R
6 Transcript PN 674; Exhibit R5, Witness statement of Jane Comensoli , Annexure S
7 Transcript PN 688; Exhibit R5, Witness statement of Jane Comensoli , Annexure V
8 Transcript PN 746; Exhibit R5, Witness statement of Jane Comensoli , Annexure AA
9 Transcript PN 774; Exhibit R1, Witness statement of David Eljiz, Annexure B
10 Transcript PN 797; Exhibit R1, Witness statement of David Eljiz, Annexure C
11 Transcript PN 1359
12 Exhibit R1, Witness statement of David Eljiz, Annexure N, paragraph 47.
13 Transcript PN 1365
14 Exhibit G3, Witness statement of Michael Toohey. Annexure 12
15 Exhibit G3, Witness statement of Michael Toohey. Annexure 12
16 Transcript PN 3607
17 Respondent’s Outline of Submissions, 13 April 2017, paragraphs 6 and 7
18 Applicants Outline of Submissions, 4 May 2017, paragraph 3
19 Respondent’s Outline of Submissions, 12 may 2017 paragraph 36
20 Finch v Sayers [1976] 2 NSWLR 540, at 558
21 Exhibit G3, Witness statement of Michael Toohey, Annexure 3
22 NSW and ACT Catholic Schools Enterprise Agreement 2015, Clause 20.1
23 Applicant’s Outline of Submissions, 4 may 2017, paragraph 13
24 Respondent’s Outline of Submissions, 12 May 2017, paragraph 16
25 Siagian v Sanel Pty Ltd (1994) 54 IR 185, 195.
26 Respondent’s Outline of Submissions, 12 may 2017, paragraph 18
27 Mahony v White [2016] FCAFC 160
28 Respondent’s Outline of Submissions, 12 May 2017, paragraph 6.
29 Respondent’s Outline of Submissions,12 May 2017, paragraph 9.
30 Transcript PN 4596-4597
31 Transcript PN 4714
32 Transcript PN 4704
33 Transcript PN 4713
34 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377‒378
35 MM Cables (A Division of Metal Manufacturers Limited) v Zammit Print S8106 (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000) at 42
36 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
37 Parmalat Food Products Pty Ltd v Christopher Tran [2016] FWCFB 1199
38 Parmalat Food Products Pty Ltd v Christopher Tran [2016] FWCFB 1199
39 Transcript PN 976
40 Transcript PN 1002
41 Exhibit G4, Witness statement of Michael Toohey, paragraph 11
42 Transcript PN 893
43 Transcript PN 901
44 Transcript PN 902
45 Exhibit G4, Witness statement of Michael Toohey, paragraph 15
46 Exhibit G4, Witness statement of Michael Toohey, paragraph 16
47 Transcript PN 570
48 Exhibit R1, Witness statement of David Eljiz,
49 Transcript PN 1951 – 1956
50 Transcript PN 909 – 926
51 Transcript PN 1068
52 Transcript PN927
53 Transcript PN 1577 – 1581
54 Transcript PN 930
55 Exhibit R1, Witness statement of David Eljiz, Annexure O: transcript of proceedings Local Court Fairfield 30 November 2016, page 72
56 Transcript PN2481to 2485, 2492
57 Transcript PN4714
58 Edwards v Giudice and Others (1999) 169 ALR 89
59 Transcript PN 1322
60 Wadey v YMCA Canberra [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85]
61 Respondent’s Submissions, 18 July 2017, paragraphs 106 and 107
62 Transcript PN 4719
63 Transcript PN 590
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