Child protection offences nullify employment contract

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Child protection offences nullify employment contract

A FWC full bench has ruled that a contract of employment comes to an end if an employee is charged with offences under child protection legislation.

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A FWC full bench has ruled a contract of employment comes to an end if an employee is charged with offences under child protection legislation – without the need for employer intervention or action.

[Full text of this case: Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v M [2015] FWCFB 4952 (22 July 2015)]

This means there is no dismissal in the legal sense, so there is no action available under unfair dismissal laws.

Charges had been laid against the unfair dismissal applicant. The full bench stated:

“ … 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 M’s employment was terminated on the employer’s initiative pursuant to s386(1)(a) of the Act.”

The bottom line: An actual dismissal has to be demonstrated in order to bring an unfair dismissal or unlawful dismissal action before a court or tribunal.

Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v M [2015] FWCFB 4952 (22 July 2015)

See also: Frustration of contract of employment

 
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