The Case

Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v Mr Gerald Mahony (2015)

Since 1986, Mr Mahony had been an employee of the Catholic Education Office in Sydney. In September 2012, Mr Mahony was charged with sexual assault. He pleaded not guilty, was placed on bail and defended the charges. On 12 October 2012, the employer suspended Mr Mahony on full pay.

Mr Mahony was still suspended and awaiting trial when the Child Protection (Working with Children) Act 2012 (NSW) (the Act) commenced on 15 June 2013. Until the criminal charges were determined, Mr Mahony was a “disqualified person” under the Act and could not be engaged by his employer in child-related work.

On 20 November 2013, the criminal matters remained unresolved, so the employer requested that Mr Mahony voluntarily take leave without pay. The employer offered to back-pay Mr Mahony should he be acquitted, but Mr Mahony refused.

On 20 December 2013, the employer terminated Mr Mahony’s employment with a payment in lieu of notice, indicating it could no longer continue the employment relationship.

The Verdict

The FWC decided in the first instance that Mr Mahony had been dismissed at the employer’s initiative, as he could have been engaged in work that did not directly involve contact with children.

On appeal, the employer successfully argued that continuation of Mr Mahony’s employment was not permissible, as it would have been illegal under the Act. As such, the Full Bench of the FWC dismissed Mr Mahony’s unfair dismissal application.

The Lesson

It is important for employers who are engaged in child-related work to be familiar with their obligations under relevant legislation, such as:

• Child Protection (Working with Children) Act 2012 (NSW);
• Working with Children (Risk Management and Screening) Act 2000 (Qld);
• Education and Care Services (National Uniform Legislation) Act (NT);
• Working with Children Act 2005 (Vic); and
• Working With Children (Criminal Record Checking) Act 2004 (WA).

If you employ a disqualified person, you may be exposed to a number of different legal claims, including:

• prosecution for breaching the relevant act; and
• civil claims by parents or guardians on behalf of their children.

While this case appears to lend support to an employer’s ability to terminate an employee who is charged, but not yet convicted of child protection offences, it is important to seek legal advice prior to doing so.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.