Police charges do not give an automatic right to dismiss

The Case

Paul O’Connell v Catholic Education Office, Archdiocese of Sydney (2016)

Mr O’Connell was employed as a teacher in an all-girls high school. He was charged with indecently assaulting a 16-year-old girl.

The charges meant that Mr O’Connell was not able to work with children as he was now considered to be a ‘disqualified person’ under the Child Protection (Working with Children) Act 2012 (NSW) (the Act). The Catholic Education Office (CEO) argued it could no longer employ Mr O’Connell for this reason and terminated his employment.

The charges against Mr O’Connell were later dropped and he commenced unfair dismissal proceedings.

The Verdict

The Fair Work Commission (FWC) found that the CEO did not have the ability to terminate Mr O’Connell’s employment simply because he was a ‘disqualified person’. The FWC indicated that the school could have relocated Mr O’Connell to a non-child-related role pending the outcome of the criminal proceedings. Hence, the FWC held that the CEO had unfairly dismissed him.

The Lesson

This case demonstrates the dangers of dismissing an employee on the basis that they have been charged by the police. Until the outcome of the criminal proceedings is known, a cautious approach should be taken.

If it is necessary, given the risks involved, it may be appropriate to relocate or redeploy an employee into other duties or other areas of the business while awaiting the outcome of the criminal matter.

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.