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.

[2015] FWCFB 4952 [Note: refer to the Federal Court decision dated 29 November 2016 [2016] FCAFC 160 for result of appeal]

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

VICE PRESIDENT CATANZARITI DEPUTY PRESIDENT BOOTH COMMISSIONER ROBERTS

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.

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

M Gibian counsel for the Independent Education Union as Intervener.

[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.

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