Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application - cessation of employment by operation of law - application dismissed

• [1] Justin Whelan has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (FW Act). His former employer, the Department of Education (Department), objects to the application on the ground that Mr Whelan was not dismissed. It submits that his employment ceased by operation of law pursuant to s 2.4.59(5) of the Education and Training Reform Act 2006 (Vic) (ETR Act) because he had been unregistered for a period of 12 months.

• [2] Section 386 of the FW Act provides that a person has been 'dismissed' if the person's employment with his or her employer has been terminated 'on the employer's initiative', or the person resigns from employment but is forced to do so by the conduct of the employer.

• [3] Section 2.4.59(5) of the ETR Act operates in the context of Part 2.6 of that Act. The Victorian Institute of Teaching (VIT) is a statutory authority vested with power to grant, suspend or cancel the registration of public sector school teachers. Section 2.6.27(2)(a) of the ETR Act provides that the VIT must suspend a person's registration if the person is charged with a category A offence. Section 2.6.54K states that a teacher whose registration is suspended is deemed not to be registered for the period of the suspension. Section 2.4.59(5) states:

(a) is refused registration under Part 2.6 or has had his or her registration under that Part suspended or cancelled; and

(b) remains unregistered for a continuous period of 12 months -

the employment of that person ceases, by virtue of this subsection, at the end of that period of 12 months.

• [4] Mr Whelan was employed by the Department as a teacher at a public primary school. On 16 February 2024, the VIT notified the Department that Mr Whelan had been charged with category A offences. On 19 February 2024, the VIT informed the Department that it had suspended Mr Whelan's registration on an interim basis with immediate effect. By letter dated 22 February 2024, the Department wrote to Mr Whelan, stating that Victoria Police had confirmed that he had been charged, and that the Secretary considered that his presence at the school was inappropriate until the outcome of an inquiry was known. The letter advised Mr Whelan that he was suspended from duty with pay, and that the Department was proposing to suspend him without pay. He was invited to provide a written response. On 19 March 2024, the Department advised Mr Whelan that he was now suspended without pay.

• [5] On 20 March 2024, the VIT issued a notice of suspension of Mr Whelan's registration pursuant to Part 2.6 of the ETR Act. A copy of the notice was sent to the Department under cover of a letter explaining that the VIT had revoked the interim suspension of Mr Whelan's registration, and that his registration was now suspended on an ongoing basis.

• [6] On 31 March 2024, Mr Whelan's registration as a teacher expired. Mr Whelan's application to renew his registration has not yet been determined by the VIT.

• [7] On 22 August 2024, the charges against Mr Whelan were withdrawn. The next day, his sister contacted the principal of the school to ask about the next steps regarding Mr Whelan's employment. The principal replied that Mr Whelan's registration had been suspended, and that if he wanted to inquire about this, he should contact the VIT. Mr Whelan said that on 27 September 2024, 2 December 2024 and 21 January 2025, he sent emails to the Education Professional Conduct Department of the VIT to find out how to have his suspension lifted and resume teaching, but he received no reply. He said that on 3 February 2025, he spoke to a VIT officer called 'Christian', who said that he had made certain inquiries, but that the people who would usually respond were not doing so. Mr Whelan said that this indicated to him that the VIT was ignoring him in order to orchestrate his dismissal.

• [8] On 18 March 2025, the VIT revoked the suspension of Mr Whelan's registration, on the basis that the VIT had received information confirming that the charges against him had been withdrawn. On 19 March 2025, Mr Whelan received an email from the VIT noting that the charges had been withdrawn and advising that the suspension of his registration had been revoked. But the letter also noted that his registration was 'out of cycle', and that the VIT was yet to make a decision on his application to renew his registration. The letter also stated that the VIT's decision to revoke the suspension did not affect its ongoing investigation into the conduct that had led to the laying of the charges.

• [9] On 24 March 2025, the VIT wrote to the Department advising that it had revoked Mr Whelan's suspension because the charges had been dropped, but that during the period of suspension Mr Whelan's registration had expired. The message noted that Mr Whelan had made an application for renewal of his registration but that a decision in relation to the application was yet to be made by the VIT, and Mr Whelan therefore remained unable to undertake the duties of a teacher.

• [10] By letter dated 2 April 2025, the Acting Deputy Secretary of the Department wrote to Mr Whelan notifying him that his employment had ceased on 21 March 2025 by operation of s 2.4.59(5) of the ETR Act.

• [11] The Department submitted that Mr Whelan had not been dismissed because his employment was not terminated on its initiative, but had ended by operation of law. The Department said that it had taken no step to end the employment. Instead, it had ceased pursuant to s 2.4.59(5) of the ETR Act. The Department's primary contention was that the employment ended on 19 February 2025, because this was the date 12 months after the commencement of the interim suspension of Mr Whelan's registration on 19 February 2024. Alternatively, the Department said that, if one marked time only from the start of the ongoing suspension that commenced on 20 March 2024, the end of the 12 month period was 20 March 2025. Although the period of the ongoing suspension was two days short of 12 months, Mr Whelan's registration had expired on 31 March 2024, and his renewal application had not yet been determined by the VIT. When the ongoing suspension was revoked on 18 March 2025, he remained unregistered. Therefore, Mr Whelan had been unregistered from 20 March 2024 until 20 March 2025.

• [12] The Department said that s 2.6.54K of the ETR Act had the effect that Mr Whelan was deemed to be unregistered for the period of his suspension - from 19 February 2024 until 18 March 2025, or from 20 March 2024 to 18 March 2025 - and in the latter case, he had remained unregistered after 18 March 2025 because his registration had expired. Mr Whelan had been unregistered for 12 months. His employment had ceased pursuant to the ETR Act, not as a result of any step taken by the Department.

• [13] Mr Whelan submitted that his employment had been terminated on the initiative of the Department because it was the conduct of the Department that led to the end of the employment. Mr Whelan said that after the final charges against him were dropped, he tried to find out how to lift his suspension and resume teaching, but his efforts came to nothing. He said that the Department had not undertaken an investigation and did nothing to assist him or clarify the status of his registration, or to advise him that his employment was at risk. He said that if the Department or the VIT had contacted him in sufficient time, he could have re-registered and avoided the termination of his employment, but that after the charges against him were dropped in August 2024, the VIT took many months to acknowledge this and revoke the suspension of his registration. He said that both the VIT and the Department had chosen to do nothing and had allowed time to run out. Mr Whelan also said that the Department could have redeployed him to a non-teaching role that did not require registration, but did not consider this option.

• [14] Mr Whelan contended that the process in s 2.4.59(5) of the ETR Act was not intended to be a disciplinary mechanism and that in this case it had been 'weaponised' as a substitute for a fair process. He said that the Department failed to comply with s 2.4.63 of the ETR Act which states that once a conviction or finding of guilt is quashed or nullified, then the action taken by the Secretary must be set aside and the teacher must be reinstated. Mr Whelan said that the Department had failed to investigate his alleged conduct, despite having told him that they would do so, and that he assumed that this was because the Department was always going to terminate his employment.

• [15] Mr Whelan's employment ceased by operation of law pursuant to s 2.4.59(5) of the ETR Act. The section is perfectly clear. If an employee's registration is suspended or cancelled, and the employee remains unregistered for a continuous period of 12 months, the employment 'ceases, by virtue of this subsection, at the end of that period of 12 months'. I agree with the Department that the suspension of Mr Whelan's registration commenced on 19 February 2024. That this was an interim suspension is of no relevant consequence. On 19 February 2025, Mr Whelan had been suspended for 12 months. A teacher whose registration is suspended is deemed by s 2.6.54K not to be registered for the period of the suspension. But as the Department correctly points out, even if the 12 month period runs from the start of the ongoing suspension on 20 March 2024, the outcome is the same. The suspension ended on 18 March 2024, two days short of 12 months, but Mr Whelan's registration had already expired on 31 March 2024. The 12 month period of being unregistered was reached two days later.

• [16] The Secretary of the Department did not exercise any power to end Mr Whelan's employment. The only step taken by the Secretary in connection with the end of the employment was to advise him that it had occurred, by sending Mr Whelan a letter confirming this fact. This was a step that the Secretary was required to take pursuant to s 2.4.59(7). The letter stated that the employment had ended on 21 March 2025, whereas in my view it had already ended on 19 February 2025. But this is irrelevant. The ETR Act requires the Secretary to notify a person whose employment has ended under s 2.4.59(5) of that fact, not of the particular date on which it occurred. The Department did not take any action to end Mr Whelan's employment. Contrary to Mr Whelan's suggestion, the Department was under no duty to investigate his conduct or to advise him about the operation of the ETR Act or to take any other measure to prevent the cessation of his employment under s 2.4.59(5). Mr Whelan said that the Department was obligated or reasonably required to implement a 'fair process'. I reject this. The Department was not required to implement any process, whether under the ETR Act or otherwise.

• [17] The ETR Act draws a clear distinction between an employee whose employment has been terminated by the Secretary of the Department, and therefore on the employer's initiative, and an employee whose employment 'ceases, by virtue of this subsection'. This distinction is also evident in s 2.4.59(3)(b), which differentiates between an employee who has been 'dismissed' and one who has been 'removed from the teaching service'. The former includes, for example, the termination of temporary employment in certain circumstances (see s 2.4.59(4)). But under s 2.4.59(5), the Secretary does not exercise any power whatsoever. The employee's employment simply ceases by operation of law.

• [18] Mr Whelan said that if his application for re-registration had been rejected by the VIT in good time, he could have made a new application, but instead this application had been left pending and he was only told about the revocation of his suspension 2 days before the end of the 12 month period. But it was Mr Whelan's responsibility to ensure that his registration remained current. He applied for re-registration in September 2023. The onus was on him to follow up with the VIT about its decision. This was not something the Department was required to do. If Mr Whelan was not registered, he was unable to teach. And if he remained unregistered for 12 months, his employment ended automatically under the ETR Act. It might be asked how the suspension of his registration could be revoked if there was no current registration to speak of. But this does not assist Mr Whelan. It is a peculiarity of the framework of the ETR Act. The fact remains that he was unregistered for 12 months.

• [19] Mr Whelan said that there was a 'blurring' of his registration status, that this was a 'collaborative effort' between the Department and the VIT, and that it was the Department's initiative to allow the ambiguity to occur, knowing that this would have the probable result of an automatic termination. I reject this. There was no 'blurring' of Mr Whelan's status by the Department or the VIT. Mr Whelan said that the Department was under a positive obligation to verify his registration status prior to relying on the effect of s 2.4.59(5) of the ETR Act. But his registration status was not in any doubt: he was unregistered, and had been unregistered for more than 12 months.

• [20] Mr Whelan submitted that 'relying on silence or automated processes without appropriate human resource engagement and procedural rigour violated the fundamental right to natural justice and the Act.' He seems to suggest that s 2.4.59(5) of the ETR Act cannot apply unless the Department first arranges for its human resources personnel to engage with the employee in question about the termination. This is wrong. The ETR Act says nothing of the kind. Mr Whelan submitted that the rule in Jones v Dunkel applied because the Department had not led evidence about its reasons for dismissal, and had not led evidence to contradict Mr Whelan's statement that someone in the Department had promised that he would be reinstated if he was found innocent. This is misconceived. Before there can be any question of reasons for a dismissal, there must first be a dismissal. And quite clearly, the Department did not dismiss Mr Whelan. As to the statement of the unnamed person, it is irrelevant. It does not change the operation of the cession of employment provision in the ETR Act, and in any event Mr Whelan was not acquitted; the changes were dropped. Similarly, Mr Whelan's contention that s 2.4.63 required the Secretary to set aside his action and reinstate him following the quashing of his conviction is wrong: the Secretary took no action, Mr Whelan was not convicted of anything, nor was any conviction quashed. The section is inapplicable. Further, I reject Mr Whelan's contention that the Department somehow used s 2.4.59(5) as a 'disciplinary mechanism' or 'weaponised' it in some way, or that it 'orchestrated' his dismissal. These are empty florid assertions.

• [21] Mr Whelan said that the Department could have decided to redeploy him to a non-teaching role that did not require him to be registered, and that its decision not to do so was an action that led to his dismissal. I reject this. Whether a person can reasonably be redeployed is relevant to the consideration of whether a person's dismissal was a case of 'genuine redundancy' within the meaning of s 389. It is not an element of whether an employee has been 'dismissed' within the meaning of s 386. In any event, Mr Whelan was employed to be a teacher. It is not reasonable to expect the Department to redeploy unregistered teachers to do non-teaching work as a device to circumvent s 2.4.59(5) and procure their ongoing employment.

• [22] My factual finding in this case is that the Department did not take any step to end Mr Whelan's employment. The only factor that caused the employment to end was the operation of s 2.4.59(5) of the ETR Act. The employment of Mr Whelan ceased 'by virtue of this subsection' because he had been unregistered for more than 12 months. Is it possible that in a particular case where this section is engaged, the Department could nevertheless be found to have taken some action to terminate the employment on its initiative? I do not preclude such a possibility, remote though it may seem. But the present matter is not such a case. The Department did nothing to bring about the end of Mr Whelan's employment. Mr Whelan's theories of collusion between the Department and the VIT are entirely unsubstantiated. Mr Whelan complains about the action or inaction of the VIT concerning his suspension and reregistration, but overlooks the fact that the VIT is a different entity from the one that employed him. The VIT took many months to revoke the suspension of his registration after the charges were withdrawn, but Mr Whelan's registration had in any event already expired. It is also not surprising that the VIT's decision on Mr Whelan's renewal application might take some time in light of the fact that criminal charges had been laid against him. This was a serious matter. The withdrawal of the charges suggests that a conviction on the criminal standard of proof was considered unlikely, but a regulator such as the VIT will make decisions on the balance of probabilities. One would only expect that the VIT would undertake a careful, and perhaps even lengthy, investigation into the conduct that attracted the concern of the police. But all of this is ultimately irrelevant to the question at hand. It relates to the conduct of a third party, not the Department, which was Mr Whelan's employer.

• [23] The termination of Mr Whelan's employment was not on the Department's initiative. Mr Whelan was not dismissed within the meaning of s 386 of the FW Act. The application must therefore be dismissed.

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