Is it considered unfair dismissal in Western Australia if a teacher is dismissed automatically once a complaint for child abuse has been lodged against the teacher?
The State School Teachers’ Union of Western Australia sought a ruling from the Fair Work Commission on whether it may be considered an instance of “unfair dismissal” when a principal was deemed automatically dismissed from employment once a complaint for child abuse had been lodged against the principal.
In March 2018, the Child Protection Department of Western Australia issued an interim notice that sexual abuse charges will be lodged against the principal for sexually abusing a child 10 years before. Two days after receiving the notice, the Executive Director of the Department of Education of Western Australia wrote to the principal informing him that his employment was terminated because under Section 22 of the Child Protection (Working With Children) Act, the Department of Education cannot continue to employ the principal in a child-related work after it was made aware of the issuance of a negative notice. The letter of the Director General stated that the interim notice is a repudiation of the contract of employment and as such, no notice need be given or paid to him.
It must be noted that while the principal has been formally charged in court, the matter has yet to be tried and decided by the court. The principal and his union seek payment of notice. Section 22 of the Working With Children Act only forbids the principal from working with children. It does not force the Department of Education to dismiss or summarily dismiss the principal. At its option the Department of Education may suspend the principal or even assign the principal to other work not related to working directly with children.
The Director General of Western Australia’s Department of Education has denied that she has terminated the employment of the principal or that she has summarily dismissed him. What happened was that the filing of the negative notice against the principal amounts to a repudiation by the principal of the contract of employment. Thus, the Department of Education is not liable to pay the principal any notice.
This line of argument has been used in a similar case before. In 2017, a Catholic school sacked a teacher who had been charged by a student with indecent assault. The Catholic school said that with the filing of the criminal charges against the teacher, she had automatically lost her clearance to work with children and this frustrated her employment. When the criminal charges against her were dismissed, she immediately filed an unfair dismissal charge against the Catholic school. She was reinstated and compensated for lost pay.