Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and... [2017] FWC 4722 | Case summary

Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and... [2017] FWC 4722 | Case summary | Zoe

[7]

[1] Mr Michael Toohey was a teacher employed by the Executive Director of Catholic Schools in the Roman Catholic Archdiocese for Sydney t/a Sydney Catholic Schools (SCS) from 17 July 2006 until his employment ended on 30 May 2016. He has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act, 2009 (the Act) for an unfair dismissal remedy.

[2] During his time as a teacher with SCS Mr Toohey taught subjects including Commerce, English, History, Legal Studies, Mathematics, Religious Studies and Science. At the time Mr Toohey's employment ended he was the Religious Education Co-ordinator (REC) at Freeman Catholic College, Bonnyrigg Heights (the College). Mr Toohey had been working in that position since 2012, having been in the role of Assistant Religious Education Coordinator since 2008.

[3] The NSW and ACT Catholic Systemic Schools Enterprise Agreement 2015 applied to his employment.

[4] On 24 March 2016 Mr Toohey attended a meeting at SCS Head Office in relation to allegations made against him by Ms Aleksandra Pavlovic, a fellow teacher at the College. The allegations related to two similar incidents, one in February 2015 and another on 21 March 2016. Ms Pavlovic alleged that on both occasions Mr Toohey had touched her on the upper chest without her consent.

[5] At that meeting Mr Toohey maintained that he did not remember the incident of February 2015. He conceded that that he had touched Ms Pavlovic immediately below the clavicle (collar bone) on 21 March 2016. His evidence was that the touch was in order to demonstrate an osteopathic technique used to alleviate neck pain.

[6] Mr Toohey subsequently accepted a finding of serious unprofessional and inappropriate conduct and a first and final warning arising from that conduct. This was confirmed in a letter to Mr Toohey dated 31 March 2016 from Mr David Eljiz, Assistant Director Human Resources at SCS. Also arising from the disciplinary process Mr Toohey attended coaching sessions with a clinical psychologist concerning the boundaries of interpersonal behaviour in the workplace.

[7] On 25 May 2016 Mr Toohey was charged with two counts of "Assault with act of indecency" pursuant to section 61L of the Crimes Act 1900 (NSW) _(_the Crimes Act), relating to the events which were alleged to have occurred involving Ms Pavlovic on 22 February 2015 and 21 March 2016.

[8] As a consequence of the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) Mr Toohey was required to hold or have the ability to hold a Working with Children Check Clearance (Clearance). Mr Toohey held a Clearance but on being charged with these offences he became a "disqualified person" under the Child Protection Act and could not hold, or be granted, a Clearance.

[9] On 30 May 2016 Mr Toohey attended a meeting at the SCS Head Office in relation to the charges that had been laid against him. At that meeting Mr Toohey was advised that in SCS's view, his employment had terminated on 26 May 2016, being the day on which he had been summonsed to attend Court. I note that the Court Attendance Notice was dated 25 May 2017, but nothing turns on this.

[10] Mr Toohey raised a number of alternative courses of action to termination in response to the loss of his Clearance. However these were rejected by SCS. SCS considered that Mr Toohey's employment contract had been frustrated as a result of the operation of the Child Protection Act_._

[11] The charges against Mr Toohey were heard in the New South Wales Local Court, Fairfield on 30 November 2016. On 6 February 2017 A A Spence LCM issued a decision dismissing the charges against Mr Toohey.

[12] Mr Toohey asks the Commission to find that his contract of employment was not frustrated, and that the decision taken by SCS to dismiss him was without valid reason. In the alternative, in the event I do find a valid reason for Mr Toohey's dismissal, Mr Toohey argues his dismissal was harsh. Either way he asks the Commission to find that his dismissal was unfair. He seeks reinstatement, continuity of employment and reimbursement of pay from 6 February 2017.

[13] SCS argues that Mr Toohey's employment came to an end as a consequence of his contract being frustrated because he was charged, lost his Clearance and could no longer perform his role of REC. It is argued that as a consequence Mr Toohey was not dismissed in the terms of s.386 of the Act and the Commission does not have the power to determine his application. In the alternative, if I find Mr Toohey's employment contract was not frustrated, SCS argue that there were valid reasons for Mr Toohey's dismissal; namely, that he was no longer able to perform his role as REC as a result of not holding a Clearance and that he gave inconsistent versions of the incident of 21 March 2016 in an attempt to downplay the seriousness of the incident. SCS also maintain that I could find that certain admissions made by Mr Toohey in evidence before me constitute a further valid reason or reasons.

[14] The matter was heard before me over 4 days on 16, 17 and 23 May 2017 and 18 July 2017. By permission of the Commission pursuant to s.596 of the Act Mr Toohey was represented by Mr Gibian of counsel with Mr Bailey from the Independent Education Union of Australia (IEUA) and SCS was represented by Mr Rauf of counsel with Ms Seymour from SCS. I granted both parties permission to be legally represented because I considered that the matter would be dealt with more efficiently if the parties were legally represented. I decided that the legal arguments being advanced, in particular frustration of contract, gave the matter a degree of complexity that met the threshold of s.596(a) of the Act and that I should grant permission to appear.

[15] Evidence was given by Mr Toohey on his own behalf. Evidence was also given for Mr Toohey by Ms Lesley Parker, a teacher at the College for 22 years, including for the duration of Mr Toohey's employment, Mr Igor Pletikosa a teacher at the College from the beginning of 2016 until after the date of Mr Toohey's termination and Mr Greg McKinney, an Organiser with the IEUA since 2005.

[16] Evidence was given for SCS by Mr David Eljiz, Dr Jane Comensoli, Director of Human Resources at SCS since 2010, Ms Karla Grossi, teacher at the College from 2011 to the present, Ms Jade Lynch, teacher at the College from 2012 to the present, and Ms Pavlovic who left her position as a teacher at the College in May 2016 and now teaches at another Catholic school.

[17] I consider that the first issue I must address is whether Mr Toohey's contract of employment was frustrated and he was not dismissed at the initiative of SCS. If I find that he was dismissed at the initiative of SCS I consider the key issues for determination to be whether the loss of his clearance gave rise to a valid reason for his dismissal; whether his account of the incident of 21 March 2016 was inconsistent so as to downplay the seriousness of the incident and if so, whether this gave rise to a valid reason for his dismissal and whether the dismissal was otherwise harsh, unjust and/or unreasonable.

[18] For the reasons set out below I have found that Mr Toohey's employment was not frustrated and he was dismissed; I found that there was a valid reason for Mr Toohey's dismissal, being the loss of his Clearance, however I found that SCS's dismissal of Mr Toohey was harsh and unreasonable and accordingly the dismissal was unfair.

[19] I have ordered that SCS reinstate Mr Toohey with continuity of employment. I have also ordered that SCS reinstate Mr Toohey's income from 6 February 2017, the date A A Spence LCM issued a decision dismissing the charges against Mr Toohey.

[51]

[68] Mr Gibian says it is well established that, for the purposes of Part 3-2 of the Act, the concept of "dismissal" is constituted by the termination of the employment relationship rather than the contract of employment.[23] Mr Gibian cites a number of cases in support of that proposition. One of those cases is Siagian v Sanel Pty Ltd [1994] IRCA 2; (1994) 54 IR 185 (Siagian v Sanel).

[69] Mr Rauf says Mr Gibian's reliance on this case for the proposition advanced is misplaced. He says that the case was focused on the question of whether a distinction could be made such that termination of employment was confined only to the situation where there had been a termination of an employee's contract.[24]

[70] Siagian v Sanel was a case before Wilcox CJ in the Industrial Relations Court of Australia in 1994 during the currency of the Industrial Relations Act 1988 about when termination took effect, a matter the Commission is often called upon to determine in applications for extension of time in unfair dismissal applications. In this case the question required an answer because the unfair dismissal law had changed and it was necessary to establish whether the dismissal was before the commencement of the new law. It was determined that the termination took effect on the day the employee was told he was dismissed and handed his payment in lieu of notice notwithstanding a finding that the contract of employment was ended 2 days later when the employee accepted the repudiation of the contract by the employer.[25]

[71] Mr Rauf says while Siagian v Sanel stands for the principle that the employment relationship may be ended but the contract of employment remain on foot the converse is not the case. He says "an act which terminates the contract of employment does not leave open the employment relationship".[26]

[72] He contends that Mr Toohey's contract of employment is frustrated so it follows that the employment relationship is ended, other than at the initiative of the employer.

[73] I have found that Mr Toohey's contract of employment was not frustrated so this does not arise. However I must say that I don't agree that Mr Gibian's reference to Siagian v Sanel was misplaced. The case clearly stands for the principle that the legislation (in that case the Industrial Relations Act 1988) is concerned with the termination of the employment relationship. In relation to the Act I agree that the concept of "dismissal" is constituted by the termination of the employment relationship rather than the contract of employment.

[53]

[74] This is not the first matter in which the employment of an employee of SCS has ceased as a result of the employee being charged with a criminal offence resulting in them becoming a "disqualified person" within the meaning of the Child Protection Act.

[75] I note that the Child Protection Act has created a new set of considerations as it operates in respect of persons against whom charges have been laid, not only those who have been convicted of certain offences. As I understand it, this represents a departure from the previous legislation.

[76] In the matter of Mahony v Dr Daniel J White (Executive Direction of Schools of the Catholic Education Office Sydney) T/A Catholic Education Office Sydney [2015] FWC 1593 Commissioner McKenna, when considering a somewhat similar set of facts to the present matter, rejected the SCS's argument that pursuant to section 386(1) of the Act Mr Mahony's employment had not been terminated on the employer's initiative but rather had come to an end by virtue of the operation of the doctrine of frustration.

[77] In that matter (also an application pursuant to s. 394 of the Act) Mr Mahony had been working as a teacher and a REC since 1986. On 23 September 2012 he was charged with a number of offences under the Crimes Act, with further charges laid on 28 May 2013. Mr Mahony was suspended with pay shortly after the first charges were laid. After the exchange of numerous further pieces of correspondence and a meeting on 13 December 2013 at which he was informed he would be dismissed unless he agreed to apply for leave without pay, Mr Mahony was advised by SCS that his employment was terminated effective 20 December 2013. At that stage the criminal charges against Mr Mahony had not been resolved and his criminal trial was scheduled for May 2014.

[78] It was not contentious that Mr Mahony's employment had involved 'child-related work' for the purposes of s 6 of the Child Protection Act and that he had become a disqualified person for the purposes of that Act following its commencement.

[79] Commissioner McKenna considered that provided Mr Mahoney was not engaged in child-related work, there was nothing to prevent SCS from continuing to employ him after 15 June 2013.

[80] Accordingly the Commissioner rejected the SCS's jurisdictional objection.

[81] The Commissioner's decision was the subject of an appeal by SCS to a full bench of the Commission (Dr Daniel White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office Sydney v Gerald Mahony [2015] FWCFB 4952 (Mahony)). The appeal was however not run on the basis of frustration, but rather on the basis that Mr Mahony's continued employment would have been inconsistent with the Child Protection Act and thus illegal.

[82] The Full Bench held that in the circumstances, it could not be fairly said that Mr Mahony's employment was terminated on the employer's initiative. The requirement in

[55]

[83] Subsequent to this decision a five member full bench of the Commission considered another similar set of circumstances in O'Connell v Catholic Education Office, Archdiocese of Sydney T/A Catholic Education Office, Sydney [2016] FWCFB 1752. The Full Bench convened pursuant to s. 615 of the Act to determine the Respondent's jurisdictional objection, being that Mr O'Connell was not terminated at the initiative of the employer.

[84] The Applicant in that matter, Mr Paul O'Connell, had commenced employment as a teacher at Marist Brothers Penshurst from May 1979 and was employed by the Catholic Education Office until 20 February 2015.

[85] Following an investigation which commenced in December 2014, Mr O'Connell was charged with indecent assault of a person under the age of 16 years, pursuant to s. 61M(2) of the Crimes Act on 17 February 2015.

[86] As a result he attended a meeting with the Catholic Education Office on 20 February 2015 at which he was advised his employment was terminated. At that meeting Mr O'Connell had indicated he intended to plead not guilty to the charge and suggested a range of options short of termination of his employment including being assigned alternative duties, suspension (with or without pay) or leave (with or without pay).

[87] Mr O'Connell's dismissal was confirmed by way of a letter dated 24 February 2015.

[88] In response to Mr O'Connell's application to the Commission, SCS raised a jurisdictional objection on the basis that Mr O'Connell's employment was not terminated at the initiative of the employer.

[89] Before the Full Bench of the Commission, SCS argued that the operation of the Child Protection Act meant that in the circumstances it had no choice but to terminate the Mr O'Connell's employment. The Full Bench rejected that argument. It found that the Child Protection Act did not require the termination of an employee in the circumstance of Mr O'Connell. The Full Bench held that s. 9 of the Child Protection Act did not, on its proper construction, prevent an employer continuing to employ a person provided that the person was not employed in child related work. SCS's jurisdictional objection was therefore dismissed.

[90] The Full Federal Court dealt with applications for judicial review of both of these the decisions.[27] Both Mr Mahoney's and Mr O'Connell's employment had ceased as a result of being charged with a criminal offence resulting in them becoming a "disqualified person" within the meaning of the Child Protection Act.

[91] The Full Federal Court found that both Mr Mahoney's and Mr O'Connell's employment with their employer had been terminated on the employer's initiative.

[92] Mr Gibian on behalf of Mr Toohey submits that the outcome now contended for by SCS is directly inconsistent with the outcome of these proceedings.

[93] He submits that it is not open to the Commission to determine Mr Toohey's application in a manner that is directly inconsistent with the outcome of Full Federal Court proceedings.

[94] Mr Rauf on behalf of SCS submits that Mr Gibian incorrectly summarises the Respondent's submissions by stating that "frustration of contract is said to arise from the operation of the Child Protection (Working with Children) Act 2012 NSW".[28]

[95] He says that the contention that SCS's position is inconsistent with the Full Federal Court decision proceeds from this incorrect summary. He says that when the SCS position is correctly stated, that is, frustration arises from Mr Toohey losing his Clearance, there is no inconsistency.[29]

[96] I have addressed Mr Rauf's submissions in relation to frustration and found that the contract was not frustrated so it is not necessary for me to deal with this submission. But it is necessary for me to deal with the relevance of the Full Court decision to my consideration of whether Mr Toohey was dismissed. It seems to me that the factual circumstances of Mr Mahoney and Mr O'Connell in relation to the loss of their Clearances and subsequent cessation of employment are very similar to Mr Toohey.

[97] As Mr Gibian submits, both decisions concern the application of the unfair dismissal provisions of the Act in circumstances in which an employee had become a disqualified person for the purposes of the Child Protection Act. This is Mr Toohey's circumstance. Mr Gibian submitted that the Full Federal Court found in both cases that there was a termination on the employer's initiative for the purposes of s.386(1)(a) of the Act. I agree with this submission.

[98] I have considered Ms Comensoli's evidence regarding the decision, the letter of 26 May 2016 inviting Mr Toohey to a meeting to "present to the employer a reason or reasons why SCS should not act to terminate your employment forthwith" and the options presented by Mr Toohey to SCS of redeployment, suspension with or without pay, leave with or without pay that were not agreed by SCS.

[99] In all the circumstances I believe that it is clear that SCS made the decision to end the employment relationship. In all the circumstances I consider that Mr Toohey's termination was on the employer's initiative for the purposes of s.386(1)(a) of the Act.

[100] Having found that the contract of employment was not frustrated and Mr Toohey was dismissed in terms of ss.385 and 386 of the Act it remains for me to consider whether Mr Toohey's dismissal by was harsh, unjust or unreasonable, that is, unfair.

[101] In doing this I must take into account the factors contained in subsections 387(a) to (h) of the Act. These factors direct the Commission's attention firstly to the substantive fairness of an employer's decision to dismiss an employee, secondly to procedural fairness in the way in which the employer's decision is made and carried out and, thirdly to any other matters that the Commission regards as relevant to its consideration.

[61]

[116] It is important here to set out the evidence given of the meeting held between Mr Toohey, Mr McKinney, Mr Eljiz and Ms Nancy Albatti, Human Resources Team Leader for the Southern Region, on 24 March 2016, as well as some of the events leading up to the meeting.

[117] As noted above, on the afternoon of 21 March 2016, the same day the incident with Ms Pavlovic occurred, Mr Toohey attended a meeting with the school principal, Mr Wooby to discuss what had occurred. Mr Toohey states that during this meeting he demonstrated how he had touched Ms Pavlovic "on myself by placing my right thumb immediately below the collarbone (clavicle) on my left side."[41]

[118] Mr Toohey did not recall whether he had told Mr Wooby that he had also had his other hand bracing Ms Pavlovic's back.[42] Mr Toohey gave evidence that when he told Mr Wooby that he had touched Ms Pavlovic on her chest just below the clavicle, Mr Wooby said that Ms Pavlovic considered that it had been "more than that".[43] Mr Toohey says he did not ask Mr Wooby what he meant by that and does not think the word "breast" was used.[44] I note that Mr Wooby did not give evidence. There was no evidence to suggest what, if any, of his conversation with Mr Toohey Mr Wooby passed on to others, including Mr Eljiz.

[119] Mr Toohey gave evidence that he met with Mr McKinney in a coffee shop on 24 March 2016, prior to the meeting with SCS on the same day. Mr Toohey says that Mr McKinney asked him to demonstrate the way in which he touched Ms Pavlovic.

[120] For his part, Mr McKinney gave evidence that he thought Mr Toohey had demonstrated the touching on him prior to the meeting with SCS.

[121] Mr Toohey says that when he wrote his witness statement in this matter (which I note was some considerable time after the events) he was unsure whether he had demonstrated the technique on himself or on Mr McKinney when he met with SCS. He attributes this to there being two demonstrations on the same day; one between himself and Mr McKinney and one during the meeting with SCS.

[122] In relation to what took place during the meeting with SCS, Mr Toohey stated in his witness statement that during the meeting he identified:

[85]

[137] I dismiss this as a source of inconsistency because Mr Toohey was responding to a question about a possibility candidly, and against his own interests. It was not an admission that he had touched Ms Pavlovic on the breast and the finding of the magistrate in his decision was consistent with this. It may have contributed to his confusion when giving evidence in May 2017 about whether he used the word "chest" or 'breast" on 24 March 2016 but it certainly could not ground a concern that he actually did touch Ms Pavlovic on the breast.

[138] For Mr Eljiz to construe, as he did in his evidence[56] before the Commission, that Mr Toohey touched Ms Pavlovic's bra cup is a misrepresentation of the evidence.

[139] In addition to the demonstrations mentioned above I note that Mr Toohey demonstrated the touch in the criminal proceedings on 30 November 2016 and again before me on 16 May 2017 in these proceedings. I cannot detect any material inconsistency in the demonstrations, nor did SCS challenge the accuracy of Mr Toohey's evidence of each demonstration. I consider the oral descriptions of less significance than the demonstrations.

[140] Mr Toohey gave demonstrations to both Mr Wooby and Mr Eljiz. There is no suggestion that in doing so he 'downplayed' his conduct, and indeed, considering the difficulty in defining the term 'chest' both in the events that occurred around investigating Mr Toohey's conduct and in the proceedings themselves, this would have to be considered a far more accurate indication of his actual conduct.

[141] The extensive discussions in the hearing before me as to how to define "chest" and "breast" are evidence in themselves of the difficulties with these terms. The evidence was that Mr Eljiz was not present in the Local Court during the criminal proceedings. There was no suggestion that any other SCS representative observed the proceedings. In this circumstance it was inappropriate for SCS to have formed the view that Mr Toohey had given inconsistent evidence as between the meeting at on 24 March 2016 and in the Local Court proceedings.

[142] I note that the conduct itself was at no stage suggested to ground a valid reason. It had already been the subject of a first and final warning and SCS did not resile from that as an appropriate disciplinary response to the incident.

[143] Taking into account the demonstrations and the oral descriptions I do not consider that there was a material inconsistency in Mr Toohey's portrayal of the incident or any "downplaying" of the incident. Consequently there is no sound, defensible or well-founded reason arising from his portrayal of the incident that could provide a valid reason for dismissal.

[90]

[147] It is also important to note that conduct must be found to have occurred on the balance of probability before the conduct can be considered as a valid reason.[58]

[148] The first matter is the incident of 21 March 2017 with Ms Pavlovic. This has been addressed extensively above and it is not relied on by SCS as a valid reason for dismissal. It is admitted. I agree with SCS and Mr Toohey that it was inappropriate but it does not provide a valid reason for dismissal. In any event, SCS had already issued Mr Toohey a disciplinary warning over the incident, and prior to receiving information about the criminal charges against Mr Toohey, had considered the matter closed.

[149] The second matter is comments by Mr Toohey to Ms Pavlovic about her weight and dress. Mr Toohey does not admit making comments to Ms Pavlovic about her dress but does admit making comments about her weight, in the context of both of them making an effort to lose weight. I do not consider the comments made to Ms Pavlovic about her weight were inappropriate. The workplace is comprised of human beings. There is room for personal exchanges, even between managers and subordinates that do not cross the boundary of reasonableness. In my view complimenting a colleague about their weight loss is not unreasonable. I do not consider that this provides a valid reason for dismissal.

[150] The third matter is possible comments which Mr Toohey may have made to Ms Pavlovic about her having a boyfriend. Mr Toohey has no recollection of making any remarks of the kind Ms Pavlovic recalls but under cross-examination he said it was possible. This is not an admission. It is an honest answer of the kind he gave when being cross examined in the criminal proceeding. I am not satisfied it occurred and consequently it does not provide a valid reason.

[151] The fourth matter is making comments to female staff about their dress and weight. This is another example of Mr Toohey agreeing under cross examination that he may have made comments of this nature to some unidentified people. I am not satisfied that conduct I could examine occurred and consequently it does not provide a valid reason.

[152] The fifth matter is offering to provide acupressure to female staff. Mr Toohey agreed under cross examination that he had made an offer of acupressure to some unidentified people. There is nothing in evidence except this general admission. I am not satisfied that conduct I could examine occurred and consequently it does not provide a valid reason.

[153] The sixth matter is offering to massage Ms Grossi's back. I note that SCS written submissions are incorrect in so far as they state that the offer was for Mr Grossi to lay on Mr Toohey's desk: there is no evidence that was the case, rather both Ms Grossi and Mr Toohey agreed the incident involved a desk outside Mr Toohey's office. Mr Toohey gave evidence that he made the offer that she lie on a desk outside his office and he would push her back. Ms Grossi gave evidence that the offer was not accepted and the offer made her feel awkward. Mr Toohey gave evidence that he did not think that this was inappropriate at the time but does now. I consider that this conduct occurred and was inappropriate. However I do not think it meets the threshold of a valid reason for dismissal.

[154] The seventh matter concerns an occasion on which Mr Toohey applied pressure above her knee to Ms Scheinflug on an occasion that she was in pain after training on sports day. I note that Ms Scheinflug did not give evidence but Mr Toohey agreed in cross examination that he had done this. He described it as the Bowen technique, "a way in which you basically move over the muscles and it's like a flick over the two points over the kneecap."[59] This conduct occurred however there is no evidence that is was uninvited or unwanted. I don't think is was wise but I don't think it meets the threshold of a valid reason for dismissal.

[155] I consider that each incident constitutes a trivial, if in some cases unwise, interaction between colleagues. Taken in isolation or together these incidents do not provide a valid reason for dismissal.

[116]

[179] It is uncontroversial that Mr Toohey was prepared to be redeployed to an alternative position in non-child related work, be suspended (with or without pay), take accrued leave or leave without pay until the criminal charges were determined.

[180] SCS says that it considered redeployment but there were no suitable vacant positions. They did not agree to Mr Toohey being suspended (with or without pay) or taking take leave (with or without pay) until the criminal charges were determined.

[181] I consider that it was open to SCS to adopt one of these courses. To take up his proposal that he take leave without pay until the criminal charges were determined would not have been impractical or onerous for SCS. I note that Mr Toohey informed SCS in the meeting of 30 May 2017 that he denied the charges against him and would plead not guilty to the charges against him.

[182] From the perspective of SCS, the inappropriateness of the conduct to which Mr Toohey admitted in respect of Ms Pavlovic had been dealt with in a disciplinary sense by way of a final written warning.

[183] Given this, I consider it was particularly harsh and quite unreasonable that SCS did not adopt one of the alternatives to dismissal proposed by Mr Toohey.

[184] Mr Toohey is a teacher of long standing and his commitment to his calling was evident to me. There is no suggestion that his teaching career has been other than unblemished.

[185] Mr Toohey and his family have suffered materially and emotionally from the termination of his employment.

[186] He has not worked, other than in the role of occasional funeral celebrant since his termination.

[187] Mr Toohey was also suspended from participating in a Diaconate program run by the Archdiocese of Sydney and despite the dismissal of the criminal charges has not been permitted to resume.

[188] His two daughters were enrolled at the College at the time of his dismissal. After his dismissal one changed schools and the other left schooling altogether.

[189] Mr Toohey has had occasion to seek the assistance of a counsellor for depression.

[190] He was acquitted of the charges that instigated his dismissal in February 2017 and he has continued to suffer from the impact of the termination of his employment for the period after the acquittal to the present day.

[191] I consider that the impact on Mr Toohey of his dismissal has been harsh and that termination of employment in the circumstances of his case was harsh and unreasonable.

[128]

[203] I accept Mr Toohey's evidence concerning his current attitude to conduct in the workplace.

[204] He acknowledges that his conduct with Ms Pavlovic on 21 March 2016 was unprofessional and inappropriate. I consider that it was unthinking and lacked empathy for Ms Pavlovic by 'invading' her personal space.

[205] I consider that he is remorseful and determined to hold himself to a high standard of conduct in the future.

[206] I believe that he is committed to upholding the SCS policies that he was cross- examined about when he agreed that these documents contained content he agreed with and understood the importance of.

[207] Overall I am not persuaded that the incident on 21 March 2016 or the other matters raised amount to circumstances that make reinstatement inappropriate.

[208] SCS says that these matters, and other allegations that were not relied upon, would provide them with the basis for further action if Mr Toohey was reinstated.

[209] That there may be actions that an employer may see fit to take in relation to an employee in the future is not a reason not to reinstate an employee.

[210] SCS also say that as Mr Toohey's appointment as a REC would have expired on 31 January 2017 it would be inappropriate to reinstate him. They say that it would have been necessary for him to undertake a process of review and application to determine whether SCS would offer him a new contract and this would be unlikely.

[211] Ms Comensoli was cross examined by Mr Gibian extensively on the application of the policy that applied to the process of review. From this evidence I conclude that Mr Toohey would have been the subject of a performance review process in 2016 and would have been entitled to a further year in the role beyond January 2017 in circumstances that the Executive Director was not confident about his capacity to fulfil the role for another three years.

[212] Mr Rauf says this circumstance is an "obstacle" to reinstatement.[62]

[213] I consider that this is something that SCS would need to deal with upon Mr Toohey's return to work if he was reinstated. It may present some difficulty for SCS but that does not amount to circumstances that make reinstatement inappropriate.

[214] In the course of giving evidence, Mr Toohey explained the importance he placed on being reinstated.[63] He graduated from a Masters of Theology just after his employment was terminated. He explained that he had always felt a calling to teach. He had been a Catholic monk and he did that because he had a calling and a vocation to preach the gospel.

[215] Nothing I have read or heard in submissions or evidence in this matter leads me to any other conclusion than Mr Toohey genuinely yearns to return to the teaching of religion.

[216] I am not satisfied that reinstatement is inappropriate and therefore pursuant to s.391 (1)(a) of the Act I order that SCS reinstate Mr Toohey to the position of Religious Education Co-ordinator at Freeman Catholic College or to another position on terms and conditions not less favourable than those on which Mr Toohey was employed immediately before his dismissal.

[217] Mr Toohey has sought lost income only from the date that he was acquitted of criminal charges 6 February 2017. Mr Gibian explained that this was appropriate because it was consistent with his offer to take leave without pay in lieu of being dismissed. I am satisfied that this is appropriate.

[218] I consider that it is appropriate pursuant to s.391 (2) of the Act to maintain Mr Toohey's continuity of employment. I consider that it is appropriate pursuant to s.391 (3) of the Act to make an order to cause SCS to pay to Mr Toohey an amount for remuneration lost from 6 February 2017. Between 6 February 2017 and 5 May 2017 Mr Toohey earned $7,010 from work as a Funeral Celebrant. This amount is to be deducted from the repayment of lost income.

[219] An order will issue with this decision.

Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney [2017] FWC 4722

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Judgment (165 paragraphs)

Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office, Sydney [2017] FWC 4722 (26 September 2017)

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Legislation Cited (4)

Cases Cited (6)