“Everyone supports just investigation of complaints but the relentless character attacks on Cardinal Pell, by some, stand the principle of innocent until proven guilty on its head. Australians have a right to expect better from their legal systems and the media. Even churchmen have a right to a ‘fair go’.”
With cruel coincidence, the Archbishop of Sydney issued the statement containing these passages on the second day of IEU member Michael Toohey’s unfair dismissal hearing. Michael had been dismissed by the Archdiocese of Sydney’s Catholic Education Office, Sydney Catholic Schools (SCS), almost 12 months earlier. The reason he was dismissed was because of pending criminal charges.
SCS dismissed Michael notwithstanding that he protested his innocence and would fully defend the charges. SCS had even investigated those exact same incidents and previously determined that the complaints had warranted nothing more serious than a warning.
In February 2017 the local court magistrate dismissed both charges, saying “on no account on the evidence presented could he be held criminally liable”. The magistrate considered the decision by SCS to dismiss the member as “not only extraordinarily harsh but manifestly unjust”.
SCS also refused the request that it voluntarily reinstate Michael as the charges had been dismissed. As reported previously in Newsmonth, when SCS was confronted with the magistrate’s observations in regard to the unfairness of the dismissal it responded that “it is a matter for the Fair Work Commission and not the Local Court to decide whether the dismissal of Mr Toohey was unfair … and whether or not reinstatement … is appropriate in the circumstances”.
And so it was. On 26 September 2017, following a hearing that ran to four days in total, a Deputy President of the Fair Work Commission (FWC) found that Michael “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”.
The FWC ordered that Michael be reinstated within 14 days, that the continuity of his employment be maintained from the date of his dismissal, and that he be paid compensation equivalent to his lost earnings since the date the charges were dismissed.
Trampled on principle
So why did the Archdiocese trample on the principle of innocent until proven guilty in Michael’s case? Only SCS can truly answer that, but the Union knows that Michael’s dismissal occurred during a series of cases throughout which SCS tried to argue that:
The Child Protection (Working with Children) Act 2012 (‘CP(WWC)Act’) prohibits the continued employment of a teacher charged with a prescribed offence.
In such circumstances, the continued employment is ‘illegal’ and therefore there was no dismissal by SCS; or
Alternatively, the teacher’s contract of employment is frustrated and there was no dismissal by SCS.
Variously the FWC and the Full Court of the Federal Court of Australia have determined that SCS was wrong in each of these arguments, following a series of cases commencing in early 2015. It seems that SCS wants to immediately wash their hands of any employee who becomes disqualified from engaging in child related work pending the determination of court proceedings (or, to use words similar to those of Archbishop Fisher, while ‘justice is left to run its course’).
SCS wanted to argue that it had no choice but to dismiss, or alternatively, that it did not dismiss such employees, because it wanted to to avoid or prevent employees from bringing unfair dismissal applications before the FWC.
Unfair dismissal applications brought before the FWC are dealt with in two stages, conciliation and then, if no settlement is reached, by way of arbitration. In some senses it’s a bit like the matters in dispute presently in relation to the EA negotiations. The approach of SCS to conciliation in Michael’s matter was disengaged, at best. While it’s not permitted to report on what is disclosed during conciliation, the fact is that no settlement was reached.
From this point the matter was listed for arbitration, but SCS spent much of its time arguing that the FWC was not allowed to arbitrate because there was no dismissal. What members can take from this is that if it had been open to SCS to simply withhold consent to the matter proceeding to arbitration, it most definitely would have. Had that occurred, there is no court that had the capacity to order reinstatement. In other words, if it had been up to SCS, Michael would have stayed unfairly sacked.
This is much the same as the present EA dispute – there are certain EA and Work Practice matters that employers could ignore or avoid by simply withholding consent to arbitration.
But sadly that’s not the end of the story. While SCS claim to have reinstated Michael, they say he must remain on leave until he obtains his full Working With Children Check (WWCC) clearance. Michael’s clearance was cancelled when he was charged, but he immediately re-applied for it once the charges were dismissed. By law, a person can engage in child related work as long as they have an application pending; which he does.
However, SCS claims it has a policy that states that it will not employ someone unless they hold a full WWCC clearance. This policy was never produced during the four days of hearing, but it is now relied upon by SCS as the reason why it refuses to put Michael back to work, and has instead placed him on paid leave. The Union has never seen this policy, and while an employer could make such a choice in relation to new employees, the Union does not believe it is reasonable in respect of existing employees. That is especially the case in a situation such as this, where the complainant was an adult work colleague; there is no suggestion of any risk to children.
The High Court has previously indicated (in the wonderfully titled 2005 case of Blackadder) that what SCS is now doing to Michael is in plain contravention of the reinstatement order. The High Court made clear that reinstatement is “meant to be real and practical, not illusory and theoretical”, and that mere payment without being given actual work to do is insufficient.
SCS proposes to remain in contravention of the order pending the outcome of Michael’s application for a WWCC clearance or until 1 January 2018. Their nomination of 1 January 2018 is significant; SCS had previously noted that, as a pre 2004 teacher, Michael is required to be accredited with NESA by that date.
Due to an amendment to the Teacher Accreditation Act 2004, a teacher cannot be initially accredited unless they hold a full WWCC clearance (even though they can lawfully engage in child related work). And so it could appear that SCS is refusing to actually reinstate Michael in the ‘hope’ that he may be unable to obtain accreditation by 1 January 2018.
Harsh and unreasonable
All of this, of course, is just a cursory summary of Michael’s ordeal. That SCS refused to allow him to remain employed while he successfully defended the charges was, in the words of the FWC Deputy president, “particularly harsh and quite unreasonable”, and that Michael “and his family have suffered materially and emotionally” as a consequence. Michael’s enrolment in a Diaconate program conducted by the Archdiocese (leading to ordination as a Deacon) was suspended and has not been reinstated. A controversial letter was sent (against Michael’s wishes) to school parents disclosing the fact of charges. That letter directly resulted in Michael’s daughters being bullied to the point where both were forced to leave the college.
SCS has never once expressed any care or concern as to how Michael and his family were affected by its treatment of him. Instead it continues to act in contravention of the order for reinstatement, apparently waiting to see whether a one-off accreditation loophole might prevent him from obtaining teacher accreditation by the deadline.
So, where do the ‘churchmen’ really stand on the issues such as justice running its course, innocent until proven guilty’, and ‘a fair go’? Is it only for the shepherds, not the flock?
The decision in this case is available at: https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4722.htm
The full statement of Archbishop Fisher is available at: