In this case, Fair Work Commissioner McKenna ("Commissioner") ruled that because GM was on suspension, at all relevant times, he was "not engaged in child-related work that involved direct contact by him with children" and accordingly, there was no legal impediment in the CEO continuing to employ GM, subject to him being either away from the workplace, or redeployed to other duties that did not involve contact with children. As a result GM was able to proceed with his unfair dismissal claim.
Sensibly, the CEO appealed that decision to the Full Bench of the Commission.*
The CEO ran the appeal on a different basis to that before the Commissioner, submitting that GM's continuing employment was not permissible because it was inconsistent with the operation of the Child Protection (Working With Children) Act 2012 (NSW) ("CP Act").
Vice President Catanzariti, Deputy President Booth and Commissioner Roberts agreed with the CEO's argument that the practical effect of certain sections of the CP Act, made it illegal for the CEO to continue to employ GM.
In a very succinct judgment, the Full Bench ruled that it could not be "fairly said" that GM's employment was terminated on the employer's initiative because his continuing employment was inconsistent with the CP Act and therefore not permissible.
The Commissioner's decision was overturned and the unfair dismissal claim was dismissed.
LESSONS FOR EMPLOYERS
Employers should always follow lawful and correct procedure when taking steps to terminate an employee.
However, in cases where an employee's ongoing employment cannot continue because of the operation of child protection legislation, employers, particularly in NSW, can be assured that employees have no right to pursue unfair dismissal remedies.
The Independent Education Union has flagged that they may appeal the Full Bench's decision and we will report on any further developments.
* Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v Mahony  FWCFB 4952 (22 July 2015).
David Thompson (Melbourne)
Shawn Skyring (North Ryde)
Emily Slaytor (North Ryde)
Martin Dunne (Sydney)
Sarah Sealy (Hobart)
The Hunt & Hunt national team advises on compliance with all workplace and industrial relations issues, modern awards, and workplace legislation including the Fair Work Act 2009; equal opportunity laws and discrimination; and workplace/occupational health and safety laws including critical incident management advice, policy implementation and defending prosecutions.
Disclaimer: The information contained in this update/case note is not advice and should not be relied upon as legal advice. Hunt & Hunt recommends that if you have a matter that is legal, or has legal implications, you consult with your legal adviser.