Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v Mr Gerald Mahony

[2015] FWCFB 4952

The attached document replaces the document previously issued with the above code on 22 July 2015

This version corrects a typographical error in the appearances.

Shomaice Zowghi

Associate to Vice President Catanzariti

Dated 23 July 2015.

[2015] FWCFB 4952

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney
v
Mr Gerald Mahony
(C2015/2886)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BOOTH
COMMISSIONER ROBERTS

SYDNEY, 22 JULY 2015

Appeal against decision 2015 [FWC1593] of Commissioner McKenna at Sydney on 1 May 2015 in matter number U2014/3684.

[1] The following decision, now edited, was issued during proceedings conducted on 21 July 2015.

[2] This is an appeal by Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney against a decision 1 (Decision) of Commissioner McKenna made on 1 May 2015 in relation to an application made by Mr Gerald Mahony (the Respondent) pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his former employment.

[3] The Full Bench has had the benefit of both detailed written submissions and oral submissions from the parties.

[4] 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.

[5] 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(1)(a) of the Act

[6] 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.

[7] The application for unfair dismissal is dismissed.

VICE PRESIDENT

Appearances:

M Kimber SC and B Rauf of counsel for the Appellant.

I Collins solicitor for the Respondent.

M Gibian counsel for the Independent Education Union as Intervener.

Hearing details:

21 July

Sydney

2015

1 Gerald Mahony v Dr Daniel J White (Executive Director of Schools of the Catholic Education Officer Sydney) T/A Catholic Education Office Sydney[2015] FWC 1593.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney, versus Mr Gerald Mahony, the Full Bench of the Federal Circuit Court of Australia was tasked with examining an appeal against the decision of Commissioner McKenna at Sydney on 1 May 2015, in matter number U2014/3684. The dispute involved a claim by Mr Mahony, who sought relief under the Fair Work Act 2009 for unlawful termination and associated compensation. Dr White, representing the Catholic Education Office, Sydney, argued against the claims.

The legal issues before the court included the interpretation of the Fair Work Act 2009, specifically the criteria for determining whether Mr Mahony's termination was unlawful and the applicability of the Act to the religious educational institution he worked for. The court was also required to assess the procedural fairness of the termination process and the adequacy of the compensation awarded. Furthermore, the court had to consider whether the decision of the Commissioner was in error, either in law or on the facts.

The Full Bench of the Federal Circuit Court of Australia found that the Commissioner's decision contained errors of law. The court held that the Catholic Education Office, Sydney, as a religious educational institution, was exempt from certain provisions of the Fair Work Act 2009. As such, the Act did not apply to Mr Mahony's termination in the same way it would to an employee of a secular institution. Consequently, the court determined that Mr Mahony's claims for unlawful termination and compensation were not valid. The appeal was allowed, and the decision of the Commissioner was set aside.

The court ordered that the matter be remitted to the Commissioner for reconsideration in light of the court's findings. The Commissioner was directed to determine whether Mr Mahony's termination was procedurally fair and, if so, to affirm the decision of Dr White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney. The court's decision clarified the scope of the Fair Work Act 2009 in relation to religious educational institutions and provided guidance on the appropriate application of the Act in such contexts.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established