FEDERAL COURT OF AUSTRALIA
Table of Corrections
In para 10, the word “her” has been substituted for “his”.
FAIR WORK COMMISSION
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Writs of certiorari issue to bring into this court there to be quashed the decision of the Full Bench of the Fair Work Commission made on 21 July 2015 to give the first respondent permission to appeal, to allow the appeal and to dismiss the applicant’s application under s 394 of the Fair Work Act 2009 (Cth).
2. A writ of mandamus issue commanding the Full Bench of the Fair Work Commission, subject to the grant by it of permission to appeal, to hear and determine the first respondent’s said appeal according to law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NSD 609 of 2016
DR DANIEL J WHITE
JESSUP, TRACEY AND BARKER JJ
DATE OF ORDER:
29 November 2016
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 In the first of two associated proceedings now before the court (“the Mahony proceeding”), the applicant, Gerald Mahony, seeks certiorari, mandamus and a declaration in relation to a decision of a Full Bench of the second respondent, the Fair Work Commission (“the Commission”), made on 21 July 2015, to grant the first respondent, Dr Daniel White, permission to appeal, and to allow his appeal, from an earlier decision of a single member of the Commission (“the Commissioner”) rejecting Dr White’s jurisdictional objection to Mr Mahony’s application under s 394 of the Fair Work Act 2009 (Cth) (“the FW Act”). In the second proceeding (“the O’Connell proceeding”), the applicant, Dr White, seeks a declaration in relation to a decision of a Full Bench of the Commission, made on 24 March 2016, to reject his jurisdictional objection to the application of the respondent, Paul O’Connell, under s 394 of the FW Act.
2 The O’Connell proceeding is before the Full Court pursuant to s 20(2) of the Federal Court of Australia Act 1976 (Cth), and the Mahony proceeding is before the Full Court pursuant to a direction given under subs (1A) of that section.
3 Each proceeding relates to the jurisdiction of the Commission to deal, under Pt 3-2 of the FW Act, with the circumstances under which the employment of a teacher by the Catholic Education Office (“the CEO”) in New South Wales was brought to an end. Specifically, the proceedings raise the question whether those circumstances, in each case, amounted to a dismissal within the meaning of s 386(1)(a) of the FW Act. If they did, the applications under s 394 were competent. Otherwise, those applications were incompetent. In the matter in which Mr Mahony was the applicant, the Commissioner had held that the relevant circumstances did amount to a dismissal, but that holding was reversed by the Full Bench. In the matter in which Mr O’Connell was the applicant, which was heard at first instance by the Full Bench, it was held that the relevant circumstances did amount to a dismissal.
THE FACTS OF THE MAHONY PROCEEDING
4 According to findings made by the Commissioner, Mr Mahony commenced employment with the CEO in 1986. In the succeeding years, he worked as a teacher, and then as a religious education coordinator, in a number of secondary schools. On 23 September 2012, he was arrested and charged with a number of offences under the Crimes Act 1900 (NSW) (“the Crimes Act”). He pleaded not guilty, and was released on bail. At a meeting on 4 October 2012, Mr Mahony was informed that he would be suspended with pay until the determination of his criminal trial. He was informed, by telephone on 10 October 2012 and by letter on 12 October 2012, that he was not to engage in tutoring during the period of his suspension.
5 In May 2013, correspondence passed between the CEO and Mr Mahony as to the former’s proposal that his suspension be converted to suspension without pay. In his response to the CEO’s correspondence, Mr Mahony was represented by his solicitors. Then, on 28 May 2013, Mr Mahony became the subject of further charges.
6 On 15 June 2013, the Child Protection (Working with Children) Act 2012 (NSW) (“the Child Protection Act”) commenced. Further reference will be made to that legislation below.
7 Correspondence passed between Mr Mahony and the CEO in November 2013. The essence of Mr Mahony’s correspondence was to complain that the CEO had, without his consent, discontinued the salary sacrifice arrangements to which the payment of his remuneration had been subject. The CEO’s correspondence involved a proposal that there be a meeting on 28 November 2013 to discuss “the current situation relating to your stand down.” The CEO wanted to move Mr Mahony to “leave without pay”, with the proviso that, if he were acquitted in the forthcoming criminal proceedings, and subject to certain other matters, the back pay owing to him would be made good. Through his solicitors, Mr Mahony rejected both proposals: that for the meeting, and that for him to move to leave without pay. By letter dated 28 November 2013, the CEO then required Mr Mahony to attend a meeting on 12 December 2013. As things happened, that meeting took place on 13 December 2013.
8 By letter dated 17 December 2013, the CEO required Mr Mahony to attend at a meeting on 20 December 2013, when he would show cause why his employment should not be terminated. Under cover of a medical certificate provided to the CEO by his solicitors, Mr Mahony did not meet with the CEO on that day.
9 On 20 December 2013, the CEO wrote to Mr Mahony in the following terms (which are taken, verbatim, from the decision of the Commissioner):
I write to you following our meeting on the 13 December 2013 at the Catholic Education Office, Leichhardt where I was accompanied by [name] and you were accompanied by [your solicitor]. The purpose of the meeting was to discuss with you the issues identified in my letter of 10th May 2013 and the later letter in [sic] 20 November 2013. In particular raising the question of whether you would cooperate to move in a voluntary basis to a leave without pay for the balance of the period of the suspension from work until further notice.
In the meeting I set out the rationale of the employer and you were invited to respond. You did not provide a response but sought though your legal representative a further period of time in which to seek advice on the issues raised by me both as to the terms of the clause 18 in the Teachers (Archdiocese of Sydney and Diocese of Broken Bay and Parramatta) Enterprise Agreement, and other matters identified including the operation of the Child Protection (Working with Children) Act 2012. Your representative further suggested that procedural fairness had not been afforded to you if I sought an immediate response from you in the meeting. I agreed to an extension of time until Wednesday December 18 2013 [sic; 4.45pm on 20 December 2013]. [Your solicitor] rang on your behalf on Wednesday 18 December 2013 and sought a further extension of time until December 20 2013 to make a written submission.
I wrote to you by letter dated 18 [sic; 17] December 2013 requesting you to attend a meeting on 20 December 2013 to show cause why your employment should not be terminated. I note to date I have received nothing from you or your lawyer addressing the issued [sic] or arguments raised in my correspondence or in our meetings. I confirm that [your solicitor] advised on 18 December 2013 that he understood the employer was considering it would proceed to termination he advised [sic] the CEO in the circumstances that he did not consider it necessary for you to attend the meeting on December 20 2013 and your lack of attendance would not be an issue raised in any contested hearing of these issues if such action was commenced in the relevant jurisdiction.
On 19 December 2013 the CEO received a letter sent by email from [your solicitors] dated 18 [sic; 19] December 2013 enclosing medical certificate and requesting an adjournment. No date was suggested in your letter as to the date of a meeting. The employer is not prepared to postpone the matter indefinitely.
Taking account of all the circumstances, in particular the significant nature of the charges you face which touch on the key responsibilities of the CEO Sydney as manager of system of catholic [sic] schools, our obligations in regards to the nature and impact of the laws and policies relating to child protection, the issue of the need for the employer to have the highest level of trust and confidence in its employees in regards to ensuring the welfare and best interests of children and our responsibility to the wider catholic [sic] and public community as to the integrity of our processes in meeting our obligations as a system of catholic [sic] education. I have taken into account the matters and submissions raised by you and/ or your legal representatives whether in the meetings or in correspondence in determining that the CEO no longer will continue the employment relationship. I hereby advise that your employment is terminated effective 20 December 2013.
I advise that your termination will be processed in accordance with the relevant Teachers (Archdiocese of Sydney and Diocese of Broken Bay and Parramatta) Enterprise Agreement 2013, specifically clause 18 on Termination. The weeks paid in lieu of notice is based on your period of employment. As you have completed more than 5 years continuous service with the employer; [sic] and you are over 45 years of age you are entitled to 5 weeks payment on termination of employment. All your statutory and employee entitlements shall be paid into your nominated bank account no later than 1 January 2014. Details of these amounts are listed in the attached Schedule of Payments.
If you have any personal belongings remaining in the schools [sic] please advise my office and arrangements will be made to have these despatched to you.
I recognize [sic] that this is a difficult matter for you and I would like to extend an offer of confidential counselling services to you. I note this has been offered before and you have not taken it up. Please contact ACCESS Programs on [telephone number] to make an appointment if you wish to take up the offer of counseling [sic].
(all [sic] in original)
10 In her decision of 1 May 2015, the Commissioner expressed the argument of the CEO as follows:
The CEO submits that the applicant’s employment has not been terminated on the CEO’s initiative within the meaning of s 386(1) of the Fair Work Act because the applicant’s employment came to an end by operation of the doctrine of frustration. The written outline of submissions for the CEO put matters this way:
26. Frustration of the Applicant’s contract occurred on the commencement of the [Child Protection (Working with Children) Act 2012 (NSW)] – it became unlawful for the Applicant to perform the work he was employed to do and unlawful for the employer to employ or continue employing the Applicant to perform the work he was employed to do.
Rejecting that submission, the Commissioner held that Mr Mahony’s employment had been terminated by the conscious decision of the CEO, rather than coming to an end automatically as would be the case if the contract had been frustrated.
11 Dr White appealed against the Commissioner’s decision, and secured the permission of the Full Bench to do so (FW Act, s 604(1)). In allowing the appeal and dismissing Mr Mahony’s application under s 394, the Full Bench said:
 As was previously alluded to, notwithstanding the case below was run on the basis of frustration, the Full Bench notes that the case before it has been run on the basis that the continuation of employment is not permissible and is inconsistent with the Child Protection (Working with Children) Act 2012. To do so would be illegal on the part of the employer.
 Therefore in our view it cannot be fairly said that Mr Mahony’s employment was terminated on the employer’s initiative pursuant to s 386(l)(a) of the Act[.]
 In those circumstances, permission to appeal is granted. Upon a re-hearing of the appeal, the appeal is allowed on the basis that the employment could not have continued as this would have amounted to illegality.
THE FACTS OF THE O’CONNELL PROCEEDING
12 According to the findings of the Full Bench, Mr O’Connell commenced employment as a secondary school teacher at Marist Brothers Penshurst on or around 21 May 1979, and was employed by the Executive Director of Catholic Schools in the Roman Catholic Archdiocese of Sydney (who may be referred to as the CEO) until 20 February 2015. During his employment, Mr O’Connell performed work as a classroom teacher in secondary schools operated by the CEO. From 1993 to 2003, he worked as a Professional Officer in the Information Technology Unit and performed non-teaching work in schools. From August 2003, he resumed in his role as a classroom teacher. Most recently, he had been teaching at Mount St Joseph Milperra, a secondary school for girls.
13 On 11 December 2014, the CEO placed Mr O’Connell on leave pending an investigation into alleged “inappropriate conduct with a person under the age of 18 years of age”. On 15 December 2014, the CEO wrote to him, confirming the basis of that leave. On 17 February 2015, Mr O’Connell was charged with one count of indecent assault on a person under the age of 16 years, pursuant to s 61M(2) of the Crimes Act.
14 On 18 February 2015, the CEO requested Mr O’Connell’s attendance at a meeting on 20 February 2015, where he would be invited to show cause why his employment should not be terminated forthwith. He did attend that meeting, at which time he informed the CEO that he denied the allegation forming the basis of the charge, he intended to enter a plea of not guilty and he would make application to have his bail conditions varied. He proposed various alternative courses of action to the foreshadowed termination of his employment, including that, pending determination of the criminal charge, he be assigned alternative duties; or be suspended (with or without pay) or be placed on leave (with or without pay); and requested that he be permitted to apply for external work while on leave. But, at the meeting, Mr O’Connell was informed that his employment was terminated with effect from that day. That termination was confirmed by letter dated 24 February 2015.
15 On this occasion, the CEO’s submission was not that its contract with Mr O’Connell had been frustrated. Rather, it submitted that, by reason of the provisions of the Child Protection Act, it had no lawful choice but to terminate his employment. The Full Bench rejected that submission, and it did so because, it held, that Act did not require the termination of the employment of a teacher who was the subject of a charge of the kind laid against Mr O’Connell. The relevant provision was s 9(1), which provided as follows:
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.
The Full Bench noted that it was common ground that the CEO knew that Mr O’Connell was not the holder of a clearance and that, at the relevant time, he had not applied for one. It construed “employing” and “employ” in s 9(1) as involving the sense, “make use of or … utilise”, with the result that the subsection did not require the employer to terminate the employment (in the sense of the engagement) of the worker referred to. Thus, without deciding whether the termination of the employment of an employee in circumstances where the employer had no lawful choice but to do so was a dismissal within the meaning of the FW Act, the Full Bench found that, on the facts of the case, the CEO did have such a choice.
THE RELEVANT PROVISIONS OF THE FW ACT
16 Section 394(1) of the FW Act provides as follows:
A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
17 In s 386(1), the FW Act provides its own definition of the word “dismissed”:
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.
“THE EMPLOYER’S INITIATIVE”
18 In a written outline filed in respect of each proceeding, it was submitted on behalf of Mr Mahony and Mr O’Connell as follows:
In circumstances where the employer decides to terminate an employee’s employment and puts that decision into effect by giving notice of termination, the employee has been “terminated on the employer’s initiative”. Whether or not the employer was required to dismiss the employee by some legislative, contractual or other obligation, if the employer did not take that step the employment would have continued. The motivation of the employer or the degree of discretion it possessed in deciding to terminate the employment is irrelevant. In other words, if the employer had not dismissed the employee, the employment would not have come to an end. That is so, irrespective of whether the employer was, or believed itself to be, obliged to take that step.
We accept that submission.
19 The concept of the termination of employment having been at the “initiative” of the employer has its genesis in the Convention Concerning Termination of Employment at the Initiative of the Employer adopted by the International Labour Organisation (“the Convention”) on 22 June 1982. Legislative effect was given to that Convention when the Industrial Relations Act 1988 (Cth) (“the IR Act”) was amended by the Industrial Relations Reform Act 1993 (Cth). The Convention then became Sched 10 to the IR Act. Articles 3 and 4 of the Convention provided as follows:
For the purpose of this Convention the terms termination and termination of employment mean termination of employment at the initiative of the employer.
The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
It will be noted that Art 4 was expressed in the passive voice. Absent the terms of Art 3, Art 4 would have applied to termination by either party in the employment relationship. But, as the title of the Convention made clear, that was not the intent. The Convention applied only to a termination at the employer’s initiative, that is to say, to a termination which, in Anglo-Australian systems of law, would be described as a dismissal.
20 In the provisions of the IR Act which implemented the Convention, the passive voice was not used. In every case, a direct legislative prohibition, enforceable by court proceedings, was established by use of the formula, “an employer must not terminate an employee’s employment” (see ss 170DB, 170DC, 170DE, 170DF and 170DG). Nonetheless, it was provided by s 170CB that an expression in the relevant Division of Pt VIA of the IR Act had the same meaning as in the Convention.
21 It was in this state of the law that the Full Court of the Industrial Relations Court of Australia decided Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. There the question was whether the termination of the employment of the employee concerned had been at the initiative of the employer. The employee had signed a letter of resignation, but that had been done in circumstances where he had been given a choice by his employer either to resign or to have the police called in to investigate what, according to the employer, was the theft of an item of stock. The Full Court held that the employee’s resignation had been at the initiative of the employer and had, therefore, been a termination within the meaning of the Convention and the legislation. The effect of this judgment was that, notwithstanding the use of the active voice in the legislation, a termination that had not been done by the employer might nonetheless have been, and in that case it had been, done at the initiative of the employer and thus covered by the statutory prohibitions.
22 The Full Court said (62 IR at 205):
These definitions reflect the ordinary meaning of the word “initiative”. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression “termination at the initiative of the employer” as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
And (62 IR at 205-206):
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.
23 Although their Honours were concerned, as they had to be, with meanings conveyed by the terms of the Convention, the formula “at the initiative of the employer” has been retained in the FW Act (albeit not in that precise grammatical arrangement). This judgment remains good authority as to the connotation of that formula.
24 In each of the cases now before the Full Court, the termination of the employment of the employee concerned was the deliberate, considered, act of the CEO. Even if the CEO were under a statutory obligation of the kind which, on its submission, arose under s 9(1) of the Child Protection Act, compliance with that obligation required it, rather than Mr Mahony or Mr O’Connell, to take the initiative in bringing the relevant employment to an end. It was, in the words of the Full Court in Mohazab, “the act of the employer [which resulted] … in the termination of the employment.”
THE CHILD PROTECTION ACT
25 Although the correctness of the Full Bench’s conclusion, in the proceeding brought in the Commission by Mr O’Connell, about the connotation of the words “employing” and “employ” in the Child Protection Act was fully argued before us, for reasons which follow we do not propose to decide that point.
26 The conclusion that each of the applications made in the Commission under s 394 of the FW Act was competent, regardless of the construction of s 9(1) of the Child Protection Act, will be sufficient to dispose of the two proceedings before us. Furthermore, in each of the proceedings in the Commission, there are specific reasons for not dealing with the point arising under s 9(1). In the Mahony proceeding, the Full Bench never considered the point. Now that it has been held that that proceeding had been properly commenced, it would be for the Full Bench itself to consider the merits of the appeal from the Commissioner. The potential, if any, for the operation of s 9(1) to make a contribution in that context will be a matter for the Full Bench. It would be inappropriate for this court to give what would be no more than an advisory opinion on that subject. In the O’Connell proceeding, no relief under s 39B of the Judiciary Act 2003 (Cth), or analogous provisions elsewhere, is sought by Dr White. He seeks only a declaration, in effect, that the Full Bench was wrong to have decided the s 9(1) point as it did. That too would be no more than an advisory opinion, and it would be one that might well intrude upon the Full Bench’s disposition of the merits of Mr O’Connell’s application.
27 In each of these cases, it seems strongly in prospect that the CEO will rely upon the operation of s 9(1) of the Child Protection Act at the point where the Commission comes to consider the matter arising under s 387 of the FW Act, particularly under paras (a) and (h) of that section. It would be to introduce an unnecessary and inappropriate element if one of the parties came to the argument on that matter already charged with a favourable judicial opinion which went beyond what had been necessary to determine the actual controversy which had been before the court, namely, whether applications had been competently made under s 394 of the FW Act.
DISPOSITION OF THE PROCEEDING
28 For the reasons given, in the Mahony proceeding we propose to grant mandamus directing the Full Bench to hear and determine the appeal from the Commissioner according to law, and to grant certiorari to quash its decisions of 21 July 2015. In the O’Connell proceeding, we shall dismiss the Application.