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Mahony v White

Mahony v White

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FEDERAL COURT OF AUSTRALIA
Mahony v White [2016] FCAFC 160

Review of:
Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v Mr Gerald Mahony [2015] FWCFB 4952

Paul O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752

File numbers: NSD 253 of 2016
NSD 609 of 2016

Judges: JESSUP, TRACEY AND BARKER JJ

Date of judgment: 29 November 2016

Catchwords: INDUSTRIAL LAW – where applicants’ employment terminated by employer following criminal charges and introduction of child protection legislation – where applicants lodged separate applications to Fair Work Commission for ‘unfair dismissal’ – where Commission issued differing decisions on similar but separate applications – whether employer’s termination amounted to ‘dismissal’ to enliven Commission’s jurisdiction – consideration of concept of dismissal at ‘employer’s initiative’ – termination held to be at employer’s initiative – applications determined on jurisdictional question and remitted to Commission for further determination

Legislation:
Child Protection (Working with Children) Act 2012 (NSW) s 9

Crimes Act 1900 (NSW) s 61M

Fair Work Act 2009 (Cth) ss 386, 387, 394, 604

Federal Court of Australia Act 1976 (Cth) s 20

Industrial Relations Act 1988 (Cth) ss 170CB, 170DB, 170DC, 170DE, 170DF, 170DG

Industrial Relations Reform Act 1993 (Cth)

Judiciary Act 2003 (Cth) s 39B

Cases cited: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Date of hearing: 22 & 23 August 2016

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 28

Counsel for Mr Mahony and Mr O’Connell: Mr M Gibian

Solicitor for Mr Mahony and Mr O’Connell: Maurice Blackburn

Counsel for Dr White: Mr M Kimber SC with Mr B Rauf

Solicitor for Dr White: Makinson d’Apice Lawyers

Counsel for Fair Work Commission The Commission filed a submitting notice

Table of Corrections

1 December 2016 In para 10, the word “her” has been substituted for “his”.

ORDERS

NSD 253 of 2016

BETWEEN:
GERALD MAHONY

Applicant

AND:
DR DANIEL J WHITE

First Respondent

FAIR WORK COMMISSION

Second Respondent

JUDGES:

JESSUP, TRACEY AND BARKER JJ

DATE OF ORDER:

29 NOVEMBER 2016

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.

ORDERS

NSD 609 of 2016

BETWEEN:
DR DANIEL J WHITE

Applicant

AND:
PAUL O’CONNELL

Respondent

JUDGES:

JESSUP, TRACEY AND BARKER JJ

DATE OF ORDER:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCAFC 160
Decision Date: 29 November 2016

CaseChat Overview and Summary

The applicants, Mr Mahony and Mr O’Connell, challenged the termination of their employment with the Catholic Education Office (CEO) in New South Wales, asserting it amounted to an unfair dismissal under the Fair Work Act 2009 (Cth). Both cases were initially heard by the Fair Work Commission, which issued differing decisions on their respective applications. Mr Mahony’s application was dismissed by the Full Bench, while Mr O’Connell’s application was upheld. The applicants appealed to the Federal Court, seeking a review of the Commission’s decisions. The central legal issue before the court was whether the termination of the applicants' employment constituted a 'dismissal' as defined by section 386(1)(a) of the Fair Work Act, which would establish the Commission’s jurisdiction over the matter.

The court examined the concept of dismissal within the context of employer-initiated terminations. It noted that a dismissal occurs when an employer terminates an employee's employment at their initiative, excluding cases where the termination is due to the employee's own actions or refusal to accept a change in employment conditions. In Mr Mahony's case, the court held that the CEO's decision to terminate his employment was indeed initiated by the employer, despite the introduction of the Child Protection (Working with Children) Act 2012 (NSW) and the ongoing criminal proceedings against Mr Mahony. The court found that the CEO had the power to terminate the employment, and the decision to do so was made unilaterally by the CEO. Consequently, the court found the termination to be a dismissal under the Fair Work Act, thus affirming the Commission's jurisdiction over Mr Mahony's application.

Given the findings, the court remitted Mr Mahony's case back to the Commission for further determination on the merits of the unfair dismissal claim. The court also dismissed Mr O’Connell's application, affirming the Full Bench’s original decision that his employment termination was a dismissal. The court concluded that the Commission's jurisdiction was properly engaged in both cases, but the merits of the dismissals were to be assessed on remand.

Orders

Orders of the court

1. The Application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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 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. 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Review of:	Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney v Mr Gerald Mahony [2015] FWCFB 4952 Paul O’Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752
File numbers:	NSD 253 of 2016 NSD 609 of 2016
Judges:	JESSUP, TRACEY AND BARKER JJ
Date of judgment:	29 November 2016
Catchwords:	INDUSTRIAL LAW – where applicants’ employment terminated by employer following criminal charges and introduction of child protection legislation – where applicants lodged separate applications to Fair Work Commission for ‘unfair dismissal’ – where Commission issued differing decisions on similar but separate applications – whether employer’s termination amounted to ‘dismissal’ to enliven Commission’s jurisdiction – consideration of concept of dismissal at ‘employer’s initiative’ – termination held to be at employer’s initiative – applications determined on jurisdictional question and remitted to Commission for further determination
Legislation:	Child Protection (Working with Children) Act 2012 (NSW) s 9 Crimes Act 1900 (NSW) s 61M Fair Work Act 2009 (Cth) ss 386, 387, 394, 604 Federal Court of Australia Act 1976 (Cth) s 20 Industrial Relations Act 1988 (Cth) ss 170CB, 170DB, 170DC, 170DE, 170DF, 170DG Industrial Relations Reform Act 1993 (Cth) Judiciary Act 2003 (Cth) s 39B
Cases cited:	Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Date of hearing:	22 & 23 August 2016
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	28
Counsel for Mr Mahony and Mr O’Connell:	Mr M Gibian
Solicitor for Mr Mahony and Mr O’Connell:	Maurice Blackburn
Counsel for Dr White:	Mr M Kimber SC with Mr B Rauf
Solicitor for Dr White:	Makinson d’Apice Lawyers
Counsel for Fair Work Commission	The Commission filed a submitting notice

Table of Corrections
1 December 2016	In para 10, the word “her” has been substituted for “his”.

JUDGES:	JESSUP, TRACEY AND BARKER JJ
DATE OF ORDER:	29 NOVEMBER 2016