//
[167]
[2026] FWC 1117
General information, not legal advice.
Fair Work Commission
2026-04-01
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Edmund Rice Education Australia New South Wales Colleges Ltd trading as St Pius X College, Chatswood
[1] Mr Patrick Cogan was dismissed by Edmund Rice Education Australia NSW Colleges Ltd trading as St Pius X College Chatswood (the College) after more than 27 years' service. At the time of his dismissal, he was a full-time teacher. He was dismissed for conduct that the College considered amounted to disregard for lawful and reasonable directions, breaches of trust, and failures to meet professional standards. The conduct related to his support of his partner Keli Lane and the provision of medical certificates.
[2] He has applied pursuant to s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The College contends that the dismissal was not unfair.
[3] The parties were granted permission under s. 596 of the Act to be legally represented. Mr Cogan relied on his own witness statements. The College relied on witness statements of Elizabeth Watson Deputy Principal, Wayne Wheatley, Human Resources and Compliance Manager, and Phoebe Netto Managing Director of Pure Public Relations.
[4] Mr Cogan seeks an order that he be reinstated, an order that he be paid lost wages and an order that his service be recognised despite the dismissal. The Act provides that a person protected from unfair dismissal may be awarded a remedy of reinstatement or, if appropriate, compensation in lieu of reinstatement if they have been unfairly dismissed. The College accepts that Mr Cogan was a person protected from unfair dismissal. Unfair dismissal is defined in s 385 of the Act. The only issue arising under that section is whether Mr Cogan's dismissal was harsh, unjust or unreasonable.
[5] Mr Cogan was dismissed by letter dated 24 October 2025. The letter explained that he was dismissed due to his conduct in three regards. First, Mr Cogan failed to comply with a lawful and reasonable direction to notify the College in advance of engagement with the media about Ms Lane when he had contact with 60 Minutes about an investigative report in May of 2025. Second, despite being directed in February 2024 to refrain from using his College email account for personal matters, Mr Cogan continued to use the College email system for personal correspondence related to Ms Lane. This was in breach of College policies and a verbal direction not to do so. Third, Mr Cogan failed to comply with directions to provide sufficient medical information to assess his fitness for work. The College determined that Mr Cogan's conduct in regard to these three matters demonstrated a pattern of disregard for lawful and reasonable directions, breaches of trust, and failure to meet professional standards. The letter stated that these actions were inconsistent with Mr Cogan's continuing employment and he was dismissed.
[6] In the proceedings Mr Cogan contested that his conduct amounted to misconduct. He denies that the directions regarding his media involvement or email use were reasonable and lawful directions. He also submits that he complied with all directions associated with his fitness for work. On that basis, he contends his dismissal was harsh, unjust or unreasonable. Alternatively, he contends that if his conduct was in any way misconduct it did not justify dismissal.
[7] Mr Cogan is 50 years old. He has been working at the College since 1997 when he was employed in a temporary teaching role. He commenced in a permanent full-time teaching role in 1999. He was employed as a Personal Development, Health and Physical Education (PDHPE) teacher. He was also involved in extracurricular coaching activities including stints as the coach of the College's first XV rugby team and performing other coaching duties on weekends and during school holidays.
[8] Mr Cogan stated that he was not otherwise subject to disciplinary action during his employment, nor could he recall being the subject of any substantiated complaints in relation to his personal or professional activities. The College pointed to a number of complaints during his tenure and provided supporting documents. Mr Wheatley also referred to discussions with Mr Cogan's line-managers and to discussions he had with Mr Cogan from time to time to reinforce expectations, such as actively supervising students and not leaving the workplace early on days when he was not teaching. Mr Wheatley also referred to an ongoing investigation arising from a complaint in 2025. My reading of this material is that Mr Cogan's claim is correct. While a number of complaints had been made over the years, all but one was resolved and none resulted in disciplinary action. I also do not regard Mr Wheatley's periodic discussions with Mr Cogan as amounting to anything more than routine management or oversight of Mr Cogan's work. They do not reflect poorly on his work performance.
[9] Mr Cogan's partner is Keli Lane. Ms Lane's circumstances are complex. In 2010 Ms Lane was convicted of the murder of her infant daughter. She was sentenced to 18 year's imprisonment with a non-parole period of 13 years and 5 months. At the time she was sentenced she was eligible for parole on 13 May 2024. She appealed the conviction unsuccessfully and has always maintained that she did not kill her daughter. The Crimes (Administration of Sentences) Act 1999 (NSW) was amended from 18 October 2022 such that parole is not available to an offender convicted of murder where the offender has not co-operated in locating the victim's body or remains. The NSW State Parole Authority considered whether Ms Lane should be granted parole order in March 2024. As Ms Lane has always denied that she killed her daughter, the Parole Authority could not grant her parole as she had not co-operated in locating her daughter's body.
[10] Further, in 2023 a senior corrective services officer was convicted of sexually assaulting prisoners under his care. Ms Lane was amongst those and Ms Lane's involvement in the case was widely reported. Ms Lane is also in the process of suing the NSW Government over the assaults.
[11] Mr Cogan has been a strong supporter of Ms Lane. The need for that support became greater from around 2023 when the sexual assault issue arose and again in 2024 when the parole issue arose. Controversy about those matters continued into 2025. In addition to emotional support, Mr Cogan has assisted Ms Lane by dealings with her lawyers, co-ordinating support from various quarters including the media, academia and politics, and facilitating communications between outside parties and Ms Lane.
[12] Mr Cogan did not deny that he used his College email account when assisting Ms Lane. His use of the College email was raised by an employee of Corrective Services NSW with the College in February 2024. The query was sent to the College's general administration email address. It was in the following terms:
I would like to enquire about the St Pius X College staff policy on acceptable use of IT please. Specifically, the use of a college email account to request confidential information regarding inmates in NSW correctional centres. I have managed to locate the student policy outlining that emails must relate to school work but that's obviously not relevant to my question.
I ask because I'm aware that most organisations limit personal use of business email accounts, and I am receiving emails from a St Pius account including the full phone, address and banner of the college. This is something that the schools within my diocese would most certainly not condone. Your advice would be most appreciated.
[13] This was an odd enquiry. It did not seem to arise from any concern by the Department about the content of the requests made in the emails received but rather from curiosity about the email account used to make them. The reference to "schools in my diocese" suggests Ms Mizzi's email arose from her own private curiosity rather than any professional concern. In any event, the inquiry was referred to Mr Wheatley who had further communications with Ms Mizzi and ascertained that it was Mr Cogan who had used his work email address when communicating with Corrective Services in matters related to Ms Lane. The communications with Corrective Services around this time included a complaint Ms Lane had made about being victimised by Corrective Services.
[14] Mr Wheatley raised the matter with Mr Cogan. Mr Cogan's recollection of this was that Mr Wheatley mentioned the emails in a general conversation in the school playground and that he asked Mr Cogan to stop using his work email for correspondence related to Ms Lane. Mr Cogan recalls saying that personal use of emails was common practice but that he agreed to stop, subject to continuing to use it for correspondence in an ongoing legal matter as a number of parties were contacting him on that address. Mr Wheatley's account is that they met in his office, that he reminded Mr Cogan of the College's Email and Internet Usage Policy and that he directed him to not use his personal email account for any correspondence relating to Ms Lane. Mr Wheatley said he did not agree to any ongoing use.
[15] Mr Wheatley provided a file note of the conversation. It read:
[16] Mr Cogan and Mr Wheatley were cross examined about this meeting. Mr Cogan changed his account, stating that the request to continue using the email for a legal matter was made at a further meeting a couple of weeks later. Mr Cogan claims that he was given an exception to use his school email for legal issues related to Ms Lane. Mr Wheatley denied there was another meeting. Mr Wheatley also said that he explained that the College had the right to access all staff emails and provided examples of his experience with having to comply with court-ordered subpoenas in legal matters when staff email content was requested. He explained that he was concerned that the emails relating to Ms Lane included sensitive, personal and private information that the College would rather not have on its email server.
[17] Mr Wheatley's file note does not assist in resolving the conflict in the evidence. It suggests that there was a meeting in which Mr Cogan was simply reminded to follow policies about emails and the tone he used in emails. It records a direction to use personal emails for "this type of correspondence". Context suggests that "this type of correspondence" may have been limited to the correspondence with Corrective Services as it was Ms Mizzi's emails that gave rise to the meeting. It also records Mr Cogan giving an undertaking to use his personal email for "this type of correspondence". The same ambiguity arises about the undertaking. Mr Wheatley confirmed that no written direction was given. He accepted that it was preferable that any directions given in employment should be in writing.
[18] The file note also refers to a reminder about following policies. The College's Email and Internet Usage Policy relevantly states:
Personal messages may be sent/received provided the incidence of such use is limited. Such personal use of email is a privilege, not a right. This does not include social networking sites for personal use.
[19] I do not consider it necessary to resolve the differences in the evidence about the meeting or meetings over the email use. I regard those differences as arising due to failures to recall the detail of a discussion held two years ago. They no doubt arise due to imperfections in memory. What is clear from the evidence is that Mr Wheatley raised the use of the College email account for issues surrounding Ms Lane. Mr Cogan was instructed not use the emails for that purpose. Mr Cogan believed that it was agreed that he could continue to do so for correspondence associated with legal proceedings. The College's expectations of him were not committed to writing such that there was a clear direction, however I find that Mr Cogan understood that he was to limit his use of the College email account. Despite this understanding Mr Cogan continued to use his school email account for communications for a broad range of topics regarding Ms Lane. Those communications went beyond the understanding Mr Cogan said he had of an exception related to legal matters.
[20] In providing Ms Lane support, Mr Cogan was aware of the potential for the College to be mentioned in media reporting. He was concerned that this may be to the detriment of the school and conscious that the school would prefer not to be associated, however remotely, with public controversy. To this end, Mr Cogan took steps to inform the College of what was happening with Ms Lane. He recounts meetings with the principal of the College in 2018 to discuss media interest in Ms Lane and his involvement in providing journalists with information. He maintained that he refused to provide interviews or statements. An example was provided that in a three-part series broadcast on the ABC in 2018, no mention was made of Mr Cogan or the College. At all times Mr Cogan endeavoured to inform the College of media interest in Ms Lane.
[21] Mr Cogan met with the newly appointed principal of the College, Mr Ronchetti, in early 2023 to discuss his support of Ms Lane and his approach to avoiding mention of himself and the College in media reports. Mr Cogan said he would keep Mr Ronchetti informed of media interest in Ms Lane. I was provided with an example of Mr Cogan doing in a text message to Mr Ronchetti on 18 June 2024 which read:
[22] The article was about the changes to the rules governing parole. It referred to the impact on Ms Lane.
[23] In a similar vein Mr Cogan sent Mr Roncetti a message on 18 September 2024 as follows:
[24] On 19 March 2025, an article was published in The Australian newspaper about the sexual abuse suffered by Ms Lane in prison. The article referred to Mr Cogan and his connection to Ms Lane. The article described Mr Cogan as a "PE teacher in the Catholic education system" and mentioned his presence in the public gallery of the NSW Legislative Council during a motion by a member of the Legislative Council. The motion called on the government to reconsider Ms Lane's application for parole and referred to her involvement in the sexual abuse trial which resulted in convictions of multiple offenses against female inmates. The article included direct quotes from Mr Cogan calling for Ms Lane's release.
[25] Ms Watson was the acting principal at the time. She said she was alerted of the article on 20 March 2025. She spoke with Mr Wheatley and Mr Isbester, Director of Safeguarding at Edmund Rice Education Australia NSW Colleges Ltd, to discuss the article, potential reputational damage to the College, and concerns about Mr Cogan's use of leave. The article said Mr Cogan was at Parliament House at a time that he had requested leave to care for his sick daughter. In the call it was decided to direct Mr Cogan to notify the College before engaging with the media or taking urgent leave, and to prepare a communication statement for parents in case of inquiries.
[26] Mr Wheatley met with Mr Cogan on the same day to discuss the article. He raised Mr Cogan's direct quotes in the article. His evidence is that he directed Mr Cogan to notify the College before engaging or making statements to the media. He said the direction included notifying when he was photographed or filmed by the media. Mr Wheatley's account of the conversation was that he explained that it would be beneficial if the College was forewarned of any possible media attention due to reputational risk. Mr Wheatley said Mr Cogan responded that he understood and would comply with the direction. He responded with words to the effect of "I would not want the College to be blindsided. I'll let you know if I'm contacted or if I see media filming me or taking my photo".
[27] Mr Cogan's account of the conversation is that he met with Mr Wheatley to discuss handling media inquiries. During the meeting, he volunteered to inform the College if he anticipated media attention linked to him or the College. Mr Wheatley agreed to consult with a colleague about managing publicity and later relayed advice that Mr Cogan should refrain from providing further comments to the media. Mr Cogan accepted that Mr Wheatley verbally directed him to inform the College in advance of any media statements or engagements, and he agreed to comply with this direction. Mr Cogan also agreed that he said to Mr Wheatley words to the effect that he did not want the College to be blindsided a would provide a heads up contacted or he saw the media filming him or taking his photo. Mr Cogan said he volunteered to do this and was not directed to do so.
[28] Mr Wheatly created a file note of the conversation. It was in the following terms:
Following the publication of this article the following occurred:
[29] Again, so far as a direction was given it was a verbal direction and it was not later provided to Mr Cogan in writing. Mr Wheatley again accepted that it would have been good practice to provide the direction in writing.
[30] On 10 April 2025, Mr Cogan approached Mr Wheatley to raise concerns about increasing media attention over Ms Lane and his concern about potential reputational impact on the College. Mr Wheatley's account of this meeting was that he repeated that Mr Cogan must notify the College before engaging with or making statements to the media. This included photographs or filming by media. Following the meeting Mr Cogan sent an email to Mr Wheatley in the following terms:
Thankyou for meeting with me today at short notice. As discussed, I request a meeting facilitated by you, with The Principal. Thie meeting would address the same points we discussed today, namely:
[31] On 23 April 2025, the Daily Mail Australia published an article featuring photographs of Mr Cogan and Ms Lane during an authorised weekend release from prison. The article highlighted Ms Lane's day release and included details about her relationship with Mr Cogan. Mr Cogan said he was unaware that he had been photographed at the time and was not contacted by the Daily Mail regarding the article. The article did not mention St Pius X College.
[32] On 30 April 2025, there was an email exchange between Mr Wheatly and Mr Isbsester. Mr Isbester wrote about the recent media coverage:
Given no parents have raised a concern, I don't recommend proactively communicating anything re this matter.
You have taken sufficient risk mitigation, which needs to continue, including.
I am waiting on a return email from re ascertaining information from [redacted]
Once I have finalised my enquiries with [redacted] we can move to putting allegations to Mr Cogan.
Happy to discuss if you have any questions or concerns.
[33] Mr Wheatly explained that the allegations mentioned were regarding Mr Cogan's absence on 19 March 2025 when he was at Parliament House and the College thought he was on carer's leave but that it was later decided not to proceed with that matter.
[34] On 6 May 2025, Mr Cogan was contacted by email by a producer at 60 Minutes. He replied providing his phone number.
[35] On 15 May 2025, Mr Wheatley and Mr Ronchetti met with Mr Cogan in accordance with his request of 10 April 2025. According to Mr Wheatley's file note of the meeting, Mr Cogan commenced the meeting by asking that it be off the record. He then read a prepared statement from his phone, stating that there might be forthcoming media attention regarding him and Ms Lane, including a possible investigative report by 60 Minutes in which he might be named. He acknowledged that the report could have a negative impact on the reputation of the College. Mr Cogan expressed his desire to "quietly step away" from his position at the College to protect its reputation. He said he wanted to protect the College and work together to minimize any damage caused by the media attention. He also requested a voluntary redundancy or other payout, citing financial concerns. Mr Ronchetti declined Mr Cogan's request for a redundancy payment, stating that it would be inappropriate. He suggested that Mr Cogan could finish his employment at the end of the term and receive his accrued entitlements then. Mr Cogan concluded by saying that he would not "step away" but would take long service leave instead and stated he would protect the college.
[36] On 16 May 2025, Mr Wheatley made enquiries about the capacity for making payment to Mr Cogan in addition to his entitlements and was advised that to do so may be contrary to law, as not-for profit colleges cannot make ex-gratia payments. Mr Wheatley provided a file note of his discussions on that day, it included the following account of a conversation with a Ms Ramchurn from Catholic Employment Relations:
[37] The reference to the serious misconduct matter was not explained. No disciplinary action had been notified to Mr Cogan at that stage. It may have been a reference to the College's preparation of the show cause process that commenced with the events on 22 May 2025.
[38] By May 2025 the College had engaged the services of a public relations consultant, Ms Netto. Ms Netto said she was asked to undertake inquiries and provide advice on the management of the media in respect Mr Cogan's advocacy on behalf of Ms Lane. Ms Netto provided the college with a report on 20 May 2025. The report refers to an upcoming report on the program A Current Affair. Ms Nettle gave evidence that this was an incorrect reference. It should have been to 60 Minutes. The report was that Ms Netto had spoken to a producer for A Current Affair who confirmed they were developing a story on Ms Lane which may include negative elements. The producer indicated that the story was not finalised, and the date the story would air was uncertain, but they would notify her in advance of screening. Ms Netto gave advice on the steps the College should take. She recommended that Mr Cogan "go to ground" during the airing to avoid media attention and protect his privacy and that he should be cautious about his social media presence, as public responses could be hostile or damaging. Ms Netto advised that the college should be prepared with communications ready for the school community to respond to the story's content and any public response. Ms Netto said she would maintain contact with the media producer and continue to track the story's development and air date.
[39] Mr Cogan was on leave from 19 to 21 May 2025.
[40] On 19 May 2025, Mr Cogan had further contact from the 60 Minutes producer. She contacted him to arrange a time to talk about the story. Mr Cogan responded saying that he had not forgotten about the earlier request but had been preoccupied. He indicated that he would be in touch soon. He spoke with the producer at 60 Minutes around 22 May 2025. An account of the conversation was provided in a follow up email sent at 11.43 AM on that day. It outlined 60 Minutes interest in interviewing him for an investigative report as Ms Lane's spokesperson. The email detailed the topics they wished to discuss, including Ms Lane's campaign for parole, her experiences in prison, and her relationship with Mr Cogan. It also suggested that Mr Cogan would be interviewed by a senior reporter for 60 Minutes. The email made clear that Mr Cogan would be a key contributor to the story, and that he would be presented as a strong supporter of Ms Lane. It also noted that 60 Minutes had already spoken to others involved in Ms Lane's case. The email suggested that Mr Cogan's participation would be significant and that he would receive meaningful airtime in the report.
[41] On the same day that Mr Cogan received the 60 Minutes email about the details of the proposed story, he was handed a show cause letter from Mr Ronchetti. The letter outlined concerns regarding Mr Cogan's conduct and directed him to attend a disciplinary meeting on 27 May 2025 to explain why his employment should not be terminated. The letter referred to the meeting on 20 March 2025 and said that Mr Cogan had been directed to inform the College in advance of any statements made to journalists or media. It also referred to the meeting on 15 May 2025, where Mr Cogan disclosed potential media attention regarding an upcoming 60 Minutes investigative report on Ms Lane. The letter alleged that Mr Cogan was dishonest in his communications during the 15 May meeting, as he failed to disclose the full extent of his engagement with 60 Minutes. While he had stated he may be named in the report, the College had learned that he had actively participated in the investigation as an advocate for Ms Lane. The College claimed that Mr Cogan's actions constituted a refusal to follow lawful and reasonable instructions, specifically the direction from 20 March 2025 to inform the College of any media engagements. The letter stated that Mr Cogan's conduct had the potential to cause serious and imminent risk to the College's reputation, viability, and profitability. The letter said Mr Cogan was suspended with immediate effect and directed him to surrender all property of the College, not attend the College except for the 27 May 2025 meeting, not discuss the matter with anyone in the College or with any journalist or media publication, not participate in conversations or media interviews with journalists without getting the College's permission to do so, and not attempt to take any action that would cause serious or imminent risk to the College's reputation.
[42] Mr Ronchetti did not give evidence. It appears that the only new information Mr Ronchetti received following the meeting on 15 May 2025 was the report from Ms Netto on 20 May 2025. It appears that by 16 May 2025 the College was planning to take disciplinary action against Mr Cogan. The letter of 22 May 2025 started that process.
[43] After receiving the letter, Mr Cogan was taken to his desk in the staff room asked to clean it off, had his College laptop taken from him, and was required to take his things off College premises. This occurred during the lunch break in full view of other staff and students.
[44] What followed was flurry of correspondence.
[45] Mr Ronchetti sent a further letter to Mr Cogan on 26 May 2025. The purpose of the letter was to inform Mr Cogan that the College had additional concerns about his conduct. It said the College had reviewed Mr Cogan's College email account and discovered that he had continued to use his College email for personal matters related to Ms Lane, despite being directed on 26 February 2025 by Mr Wheatley to use his personal email for such correspondence. The letter identified multiple emails sent after February 2025 to various recipients, including lawyers, psychologists, politicians, journalists, and Corrective Services NSW. These emails were said to be in breach of the direction and amounted to serious misconduct under the College's Code of Conduct. The letter said this additional concern would also be discussed during the disciplinary meeting where Mr Cogan was required to show cause why his employment should not be terminated. The meeting was changed from 27 May 2025 to 29 May 2025
[46] On 28 May 2025, Mr Cogan wrote to Mr Ronchetti through his solicitors. The letter raised concerns about the lack of clarity in the allegations, particularly regarding the directions he was accused of breaching and the alleged dishonesty. The letter stated that Mr Cogan could not reasonably be expected to "show cause" without understanding the precise nature of the allegations against him. The letter requested full particulars of the allegations, including the exact wording, timing, and context of the directions allegedly given to Mr Cogan. The letter alleged that the College's actions, including suspending Mr Cogan and initiating the show cause process, constituted adverse action in response to Mr Cogan exercising his workplace rights under the Act. It claimed that the disciplinary actions were a reaction to Mr Cogan's inquiry on 15 May 2025 about a possible voluntary redundancy, which was a workplace right. The letter demanded that the College withdraw the suspension, withdraw the requirement for Mr Cogan to show cause why his employment should not be terminated, withdraw the requirement for Mr Cogan to attend the show cause meeting scheduled for 29 May 2025, and withdraw the threat of termination of Mr Cogan's employment. It also asked that Mr Cogan be permitted to return to the workplace. The letter invoked the dispute resolution procedures under Clause 18 of the NSW Catholic Independent Schools (Teachers-Model B) Multi-Enterprise Agreement 2023 (MEA). It stated that if the College did not agree to the demands by 5:00 PM on 28 May 2025, Mr Cogan's legal representatives would notify a dispute to the Fair Work Commission.
[47] The College responded to the letter through its solicitor on the same day. The College repeated its concerns regarding Mr Cogan's conduct outlined in the letters dated 22 May 2025 and 26 May 2025 including his failure to comply with lawful and reasonable directions and dishonesty in his communications with the College. The College clarified that the disciplinary process was not initiated in response to Mr Cogan's inquiry on 15 May 2025 about a possible voluntary redundancy. Instead, it was based on separate concerns about his conduct. The College rejected the demands made by Mr Cogan's solicitor and stated that Mr Cogan's suspension would remain in place, the show cause process would proceed, and the scheduled disciplinary meeting on 29 May 2025 would take place as planned.
[48] Mr Cogan's solicitors responded to the College's solicitors on 29 May 2025. The letter repeated that Mr Cogan could not reasonably be expected to "show cause" without understanding the precise nature of the allegations against him. It again requested full particulars of the allegations, including the specific directions Mr Cogan was accused of breaching and the alleged dishonesty. The letter informed the College that Mr Cogan would notify a dispute to the Fair Work Commission under the dispute resolution procedures in the MEA. The letter confirmed that Mr Cogan would attend the Show Cause Meeting scheduled for 29 May 2025, accompanied by his solicitor.
[49] The College's solicitor responded to Mr Cogan's solicitor providing further particulars of the allegations. It said that the media allegation was that Mr Cogan failed to comply with a verbal direction given by Mr Wheatley on 20 March 2025 to inform the College in advance of any statements made to journalists. The College claimed to have information indicating that Mr Cogan engaged with 60 Minutes for a filmed interview about Ms Lane, which he did not disclose to the College. It was said this contradicted his earlier statement on 15 May 2025, where he claimed he may be named in the report. On the email usage allegation, the letter stated that Mr Cogan had been verbally directed on 26 February 2025 to use his personal email account for all personal correspondence. Despite this, the College identified emails sent from Mr Cogan's College email account to various recipients which were said to be in breach of the direction. The letter said that the College maintained that while both directions were verbal, they were lawful, reasonable, clear, and unambiguous. It alleged that Mr Cogan's conduct demonstrated a refusal to comply with these directions, which constituted serious misconduct under the EREA Code of Conduct. The letter acknowledged that the meeting was to occur that day and stated that Mr Cogan could also provide a written response to the allegations by 2 June 2025. The meeting went ahead and Mr Cogan was told he could respond in writing by 5 June 2025.
[50] Mr Ronchetti also wrote directly to Mr Cogan on 29 May 2025. The letter was titled "Letter of Notification - Allegations of Reportable Conduct" and informed Mr Cogan of a new allegation of reportable conduct. The letter notified Mr Cogan that an allegation had been made against him concerning his conduct toward a child in 2024. The allegation was described as a "serious safeguarding issue" and fell under the Reportable Conduct Scheme governed by the Children's Guardian Act 2019 (NSW). The letter clarified that the matter was deemed "exempt" under section 31(5) of the Act, meaning it was exempt from the obligation to provide an Entity Report to the Office of the Children's Guardian but that it still required investigation. Mr Cogan was informed that the investigation would proceed while he remained on suspension. Mr Ronchetti stated that further details of the allegation would be provided once preliminary inquiries were completed. This was said to be separate from the ongoing disciplinary process.
[51] On 30 May 2025, Mr Cogan lodged an application to the Commission to resolve a dispute under the MEA, seeking that his suspension be lifted so that he could return to work. He alleged that the College had acted contrary to terms of the MEA. He claimed that the suspension and disciplinary actions were based on contrived allegations and were a reaction to anticipated media coverage concerning Ms Lane. He also claimed the College engaged in adverse action in contravention of section 340 of the Act by suspending him and initiating disciplinary proceedings in response to his workplace inquiry about a voluntary redundancy.
[52] On 2 June 2025, the College's solicitors wrote to the Commission responding to the matter raised in the notification of dispute. It denied the suspension was unlawful, maintained that it had provided procedural fairness and reiterated the allegations about Mr Cogan's failure to follow the media and email directions and said he had been dishonest about the 60 Minutes investigation.
[53] On 5 June 2025, Mr Cogan wrote to Mr Ronchetti providing his response to the show cause letters. In relation to the media allegation, Mr Cogan noted that he was asked on 20 March 2025 by Mr Wheatley to inform the College in advance of any statements made to journalists or media. He described this as a request, not a formal direction, and that he had not breached it as he had not provided any statements to the media since that date. He denied actively participating in the 60 Minutes investigation, stating that while he had limited correspondence with 60 Minutes via text and email, he had not given an interview or made any statement for publication. He also denied being dishonest during the 15 May 2025 meeting. He said that he had been transparent about the potential media attention and had informed the College of his limited correspondence with 60 Minutes at that time.
[54] On the email usage allegation, Mr Cogan admitted to using his College email account for personal matters related to Ms Lane but said that Mr Wheatley had given him an informal exception to use his College email for significant issues related to Ms Lane. He said that his email usage was not a breach of the College's policies, as he believed he had permission for specific matters. Mr Cogan also raised concerns about the timing and nature of the allegations, particularly the lack of clarity and specificity in the directions he was accused of breaching. He stated that the College had failed to provide sufficient details to ensure procedural fairness and requested further clarification of the allegations. Mr Cogan pointed to his long-standing service to the College and his commitment to its reputation. He denied engaging in any serious misconduct and restated his willingness to cooperate with the College to address its concerns.
[55] Mr Cogan also expressed concern about the timing of the reportable conduct allegations, which dated back to 2024 but were only raised in conjunction with the show cause process in May 2025. He questioned why the allegations were being addressed now and suggested that they might be linked to his complaints about a student who had made false allegations against him.
[56] The dispute before the Commission was listed for 25 June 2025. The dispute was not resolved at the first conference and was relisted for 10 July 2025. On 27 June 2025, an article was published in the Daily Telegraph entitled, "Baby Killer Keli Lane's longtime boyfriend loses his job_._" The article referred to Mr Cogan being suspended by the College and claimed he had been dismissed. The article did not contain any quote from Mr Cogan and said his lawyers refused to comment on his behalf. The College's solicitors wrote to Mr Cogan's solicitors on 26 June 2025 alleging that Mr Cogan had breached the confidentiality associated with the conference. Mr Cogan's solicitors responded on 27 June 2025 denying the allegation.
[57] An article also appeared in the Daily Mail on 29 June 2025 with the lengthy headline, "Exclusive For decades Patrick stood by childhood sweetheart and convicted baby killer, Keli Lane. Suddenly, out of the blue, it's cost him his job. Now he wants to know why he's been DUMPED after 30 years as a school's PE teacher." The College was mentioned in the article. There were no quotes from Mr Cogan. The article mentioned 'sources close to the couple' as having spoken to the journalist. Unattributed quotes were included. A school insider was also mentioned and quoted.
[58] On 10 July 2025, a further conference was held before the Commission and the application to resolve the dispute was withdrawn. A Channel 9 News report aired that evening reporting that Mr Cogan claims he was wrongly suspended due to his relationship with Ms Lane. It named the College, stating that Mr Cogan was suspended in late May without explanation, shortly after publicly discussing his relationship with Ms Lane and stating that Mr Cogan had launched a legal challenge at the Fair Work Commission, arguing he was unfairly stood down, that the case was heard privately and future hearings may be made public if no agreement was reached.
[59] On 15 July 2025, Mr Cogan commenced personal leave due to illness. He submitted a medical certificate from Dr Daniel Lee, his treating general practitioner, which stated that Mr Cogan had a medical complaint and was unfit to attend work from 15 July 2025 to 12 August 2025. On 12 August 2025, Mr Cogan provided a further medical certificate from Dr Lee. The certificate extended his period of absence from work due to a medical complaint and stated that he remained unfit for work.
[60] The initial medical certificate did not provide specific details about Mr Cogan's condition or prognosis, which later became a point of contention between Mr Cogan and the College. It led to further correspondence between Mr Cogan, his solicitors, the College, and its solicitors. The correspondence was to the following effect:
a) On 14 August 2025, Mr Ronchetti wrote to Mr Cogan requesting a meeting to discuss his health condition, capacity to perform duties, and expected duration of absence. The meeting was scheduled for 18 August 2025. The letter expressed concerns about the lack of clarity in the medical certificates provided and referred to the College's entitlement under clause 13.5 of the MEA to seek further information about the nature of his illness and the likely length of absence.
b) On 19 August 2025, Mr Cogan's solicitor wrote to the college's solicitor declining the meeting invitation as the medical certificates provided sufficient clarity. The letter said that Mr Cogan's condition included diagnoses of heightened anxiety, depression, and adjustment disorder, and he was being treated under a Mental Health Plan. The letter proposed that if more information was required the College provide written questions for Dr Lee to answer.
d) On 26 August 2025, Mr Cogan's solicitor wrote to the College's solicitor proposing an alternative arrangement, being the College provide written questions for Dr Lee to answer in a report, which Mr Cogan would then forward to the College.
e) On 28 August 2025, the College's solicitor's responded accommodating Mr Cogan's request and issued a formal letter of instruction to Dr Lee, outlining specific questions to be answered in a medical report. Mr Cogan was directed to deliver the letter to Dr Lee and ensure the report was completed by 5 September 2025. The specific questions were:
(a) If yes, please outline any risks of aggravating his condition if he were to return to work, including the likelihood and severity of those risks.
(b) If no, please specify which requirements he cannot currently meet, the reasons why, and whether any temporary or permanent accommodations would enable him to perform those requirements either fully or in part.
f) On 4 September 2025, Mr Cogan's solicitor wrote to the College's solicitor informing the College that Mr Cogan had an appointment with Dr Lee on 9 September 2025 and would request Dr Lee to prepare a letter providing further evidence of his illness and likely period of absence.
g) Mr Cogan saw Dr Lee on 9 September 2025 and provided him with the letter. On 9 September 2025, Mr Cogan submitted another medical certificate from Dr Lee, it stated:
This is to certify that Mr Patrick Cogan was reviewed on 09/09/2025. He has an acute psychological injury and is unable to attend his work from 09/09/2025 to 09/10/2025 inclusive. The injury was a result of a workplace incident from 22/05/2025. There were no symptoms prior to this date.
Patrick will be assessed monthly for fitness to return to the workplace. At this time, it is likely he will be unfit to return to teaching for another three months. There is no certainty whether he will be fit at three months.
h) 18 September 2025 the College's solicitor's wrote to Mr Cogan's solicitor on behalf of the College issuing a further written direction requiring Mr Cogan to provide Dr Lee's report by 19 September 2025. Mr Cogan's solicitor then the informed the College that he no longer represented Mr Cogan but had forwarded the correspondence to him.
j) On 15 October 2025, Mr Cogan wrote to Mr Ronchetti and resubmitted the medical report dated 9 September 2025. He said that he did so because that was the report provided by Dr Lee in response to the College's letter.
[61] On 20 October 2025, Mr Ronchetti wrote to Mr Cogan asking him to show cause why he should not be dismissed for failing to provide a medical report. The letter outlined the College's concerns regarding Mr Cogan's failure to comply with repeated lawful and reasonable directions from his employer. The letter referred to the multiple written directions to Mr Cogan to provide further medical information, including the letters on 22 August 2025, 28 August 2025, 18 September 2025, and 8 October 2025. The letter stated that despite repeated opportunities, Mr Cogan had failed to comply with each of the directions but repeatedly submitted the same medical certificate dated 9 September 2025, which the College deemed insufficient. The letter said that the requested medical report was necessary to assess Mr Cogan's fitness for work, determine reasonable adjustments, and meet workplace health and safety obligations. The lack of compliance had caused administrative disruption and impaired the College's ability to manage his employment. The College said that it was considering terminating of Mr Cogan's employment due to his conduct, which represented a breach of his contractual duty to follow lawful and reasonable directions. Mr Cogan was required to provide a written response to the letter by 22 October 2025. He was informed that failure to respond would result in the College making a determination based on the information available. As Mr Cogan's accrued personal leave had been exhausted, he was placed on unpaid personal leave effective 20 October 2025. The letter also noted that the workplace investigation into reportable conduct was ongoing and would be addressed separately.
[62] On 23 October 2025, Mr Cogan's new solicitor responded to Mr Ronchetti. The letter explained that Mr Cogan had provided his consent for the College to contact his medical providers to obtain the information it required through a workers' compensation claim. The letter referred to s. 248 of the Workers Compensation Act 1987 (NSW), which prohibits the termination of an injured worker. The letter warned that if Mr Cogan's employment was terminated, an immediate application for reinstatement would be filed with the Industrial Relations Commission of NSW under s. 241 of that Act.
[63] Mr Ronchetti responded to Mr Cogan's solicitor on 24 October 2025 informing him that Mr Cogan was dismissed immediately, citing serious misconduct and repeated failures to comply with lawful and reasonable directions. The College identified three concerns which gave rise to the dismissal:
a) Mr Cogan failed to disclose his active participation in the 60 Minutes program, despite being directed on 20 March 2025 to inform the College in advance of any media engagements. The College deemed this a breach of the direction and a breach of trust and a refusal to comply with lawful instructions.
b) Mr Cogan continued to use his College email account for personal matters related to Ms Keli Lane, contravening a directive issued on 26 February 2025. The College considered this a deliberate refusal to follow instructions.
[64] The letter stated that given the seriousness of the issues raised, the College had considered whether Mr Cogan's continued employment could be sustained. It said the concerns collectively indicated a pattern of conduct inconsistent with the standards expected of a professional employee and potentially amounting to serious breaches of Mr Cogan's contractual and statutory obligations. The College concluded that Mr Cogan's conduct demonstrated a pattern of disregard for lawful and reasonable directions, breaches of trust, and failures to meet the professional standards expected of his position and that these matters were inconsistent with the continuation of his employment with the College. Mr Cogan was dismissed and paid all statutory entitlements and five weeks' payment in lieu of notice. He was directed to return all College property and reminded of his ongoing confidentiality obligations.
[65] Mr Cogan seeks an unfair dismissal remedy. He seeks reinstatement, an order he be paid lost wages and an order his service be recognised despite the dismissal. The College accepts that Mr Cogan was a person protected from unfair dismissal for the purposes of s. 382. Unfair dismissal is defined in s. 385. The only issue arising under s. 385 is whether the Commission can be satisfied that the dismissal harsh, unjust or unreasonable and consequently was unfair.
[66] In determining whether a dismissal is harsh, unjust or unreasonable the Commission is required to take into account the matters listed in s. 387. Section 387 reads:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[67] It is well established that a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced. Where the dismissal is related to conduct, a reason would be valid because the conduct occurred and it justified dismissal. The nature of the conduct is to be assessed on the evidence before the Commission and not what the employer thought at the time of the dismissal. A termination of employment for conduct that does not justify dismissal because, for example, it involved a trivial misdemeanour, would not be for a valid reason. Similarly, conduct that did not occur or did not constitute the misconduct alleged, would not be for a valid reason. Assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal will be a relevant matter under s. 387(h). Under s. 387(h), the issue is whether dismissal was a proportionate response to the conduct in question. Matters raised in mitigation of misconduct which has been found to have occurred are to be taken into account under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable. So much is clear from the Full Bench decision in Sydney Trains v Gary Hilder [2020] FWCFB 1373 and the cases discussed therein.
[68] The first matter for consideration is whether there was a valid reason for the dismissal related to Mr Cogan's conduct. The College relied upon the three concerns about failures to follow lawful and reasonable directions and concluded that those failures collectively indicated a pattern of conduct inconsistent with the standards expected of a professional employee and amounted to serious breaches of Mr Cogan's contractual and statutory obligations. It was also concerned that Mr Cogan had been dishonest.
[69] Mr Cogan submits that the concerns that led to his dismissal were not well founded, they were based on directions that were not lawful or reasonable as they related to non-work-related conduct and, in any event, his conduct did not amount to conduct that justified dismissal. The College submits that there was a valid reason for the dismissal based on Mr Cogan's repeated non-compliance with lawful and reasonable directions, dishonesty, and failure to provide adequate medical information. The College submits that it was entitled to issue reasonable directions to Mr Cogan and a valid reason for the dismissal arises if he did not follow such directions. This includes directions reasonably necessary to protect the College's reputation, directions about the use of the College's email account, and directions necessary to ensure that an employer has reasonable information regarding an employee's medical condition.
[70] The consideration of whether there was a valid reason for Mr Cogan's dismissal starts with the three concerns outlined in the letter of termination.
[71] The first concern was the failure to comply with a direction said to have been given on 20 March 2025 concerning media contact. There was a contest in the evidence about the nature of that direction. The contest arises because it was not committed to writing. I consider that if the College had formed a view that it had become necessary to give Mr Cogan directions about his engagement with the media it should have committed such direction to writing. Instead, it relies on the content of a conversation between Mr Cogan and Mr Wheatley. The best evidence of what was said on 20 March 2025 is found in Mr Wheatley's file note of that conversation. What Mr Wheatley said to Mr Cogan on that day fell well short of a direction going to his employment. Mr Wheatley described it in his note as an "Are you OK?" conversation. During the conversation, he brought up the article in the Australian. He records that he explained to Mr Cogan that he was surprised to read the story in the newspaper at 5.30 that morning and that he and Ms Watson, who was acting Principal, would have appreciated an advanced warning that his photo was taken and that he had made statements to a journalist. I note that the version of the article in the evidence has no photo of Mr Cogan. The comment recorded in the file note is as near as the conversation goes to giving Mr Cogan a direction about his employment. But it falls short. It is nothing more than an observation and expression of a preference that the College be forewarned.
[72] However, Mr Cogan and Mr Wheatley give their recollection of the conversation and describe it as including a direction that Mr Cogan inform the College in advance of any media statements or engagements. They both state that Mr Cogan agreed to comply. Despite my doubt about this being the type of lawful and reasonable direction that may lead to termination of employment, I will take the evidence at its highest and consider the 20 March 2025 direction as requiring Mr Cogan to inform the College in advance of any media statements or engagements.
[73] The breach of this direction was said to be Mr Cogan's failure to disclose his involvement in the story proposed by 60 Minutes. The College submits that by 15 May 2025 Mr Cogan engaged with 60 Minutes about the story and that he was dishonest about that engagement.
[74] The evidence is that Mr Cogan requested to meet and met with Mr Wheatley about the increased media attention on Ms Lane on 10 April 2025. He followed the meeting with an email requesting a further meeting this time involving Mr Wheatley and Mr Ronchetti to discuss recent and continuing media coverage. Mr Wheatley said it took some time to arrange that meeting. It occurred on 15 May 2025. In the meantime, Mr Cogan was contacted by 60 Minutes on 6 May 2025. He told Mr Wheatley and Mr Ronchetti about the contact from 60 Minutes at the meeting. He had further email contact from 60 Minutes on 19 May 2025. He responded but only in so much as to say he would be in further contact. Ms Netto contacted 60 Minutes on behalf of the College on 20 May 2025. She was told more about the story than it appears Mr Cogan knew at the time. Mr Cogan spoke to 60 Minutes on or around 22 May 2025. The content of that discussion was described in a longer email from 60 Minutes dated 22 May 2025.
[75] On 22 May 2025, Mr Cogan was stood down. This was done by Mr Ronchetti summonsing him to a meeting then simply handing him a show cause letter and having him removed from the College premises. This was within a short time of Mr Cogan receiving the 60 Minutes email. The show cause letter included the allegation that Mr Cogan had not informed the College about his involvement in the 60 Minutes story. Mr Ronchetti did not give evidence but it seems he acted on the report from Ms Netto to conclude that Mr Cogan had been engaging with 60 Minutes in a substantive way and not informed the college about that involvement. Mr Cogan had been on leave from 19 to 21 May 2025. He had had further contact with 60 Minutes during that leave, but he did not have the opportunity to inform the College of that contact by the time he was suspended on 22 May 2025. Regardless of that contact, he certainly had not committed to making any media statements or other engagement. The contact had gone no further than the 60 Minutes reporter requesting that he be involved in the story and be interviewed.
[76] I do not consider this conduct to be a breach of the direction. Mr Cogan had complied with the direction and informed the College of the 60 Minutes interest on 15 May 2025. There was nothing further to report before 22 May 2025. He did not get a chance to make that report because the College, which had been planning disciplinary action since at least 16 May 2025, suspended him. Further, Mr Cogan in his response to the show cause letter provided the College with a copy the full email exchange 60 Minutes from 6 May 2025 onwards thereby rectifying any perceived failure to meet the direction.
[77] I find that, so far as the conversation on 20 March 2025 can be characterised as a direction, Mr Cogan complied with it by giving notice in advance of any substantive dealings with 60 Minutes. I also find that, so far as he failed to inform the College fully of the contact around 22 May 2025, he did not have the opportunity to do so in the timeframes described. Third, and in any event, he did provide the information shortly thereafter in his response to the show cause letter. That information was more than sufficient to meet the direction from 20 March 2025. The first concern of a breach of the 20 March 2025 direction is therefore not made out. It cannot be regarded as a valid reason for dismissal. This matter weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.
[78] The second concern relates to the 26 February 2024 email direction. Again, the direction relied upon was not committed to writing. The best account of it is in Mr Wheatley's contemporaneous note. It was that Mr Cogan was reminded to follow the College's policies around emails and was directed to use his personal email for "this type of correspondence". I will read, "this type of correspondence," as a reference to correspondence regarding Ms Lane but note that the reminder arose from a query from a person at Corrective Services NSW, and may well be considered as a direction specifically about emails with the Corrective Service NSW.
[79] There was conflicting evidence about whether there was an exception for legal matters associated with Ms Lane. It is not necessary to resolve this conflict because Mr Cogan continued to use his College email extensively in matters relating to Ms Lane including in emails with Corrective Service NSW. He did not comply with the direction, and his use was in breach of the policy which permits personal use of the College account provided the incidence of such use is limited. I was provided with the emails from Mr Cogan's College account and they were not limited in the way required by the policy.
[80] Not every breach of an employment policy will justify dismissal. In this case, Mr Cogan's evidence was that he used the College email account because it was convenient to do so and that those he was dealing with about Ms Lane's case had been contacting him using that email account for some time. In the period after February 2024, there were a number of developments associated with Ms Lane's circumstance that gave rise to the increased flow of email communications. They included the sexual abuse she had suffered, legal proceedings associated with that abuse and the issue of her parole. This explains the increased use of the College email address but does not change the fact that the policy was breached in circumstances where Mr Cogan had been directed to use his personal email address. I find that the breach of the email policy was a valid reason for dismissal and this weighs in favour against a finding that the dismissal was harsh, unjust or unreasonable. Any explanation about that use is a matter relevant under s. 387(h). I consider the explanation as a mitigating factor and find it favours a finding that the dismissal was harsh, unjust or unreasonable.
[81] The third concern was that Mr Cogan failed to follow a direction to provide information about his medical condition. Mr Cogan provided brief medical certificates on 15 July 2025 and 12 August 2025. Mr Ronchetti wrote to Mr Cogan on 14 August 2025 invoking the College's entitlement under clause 13.5 of the MEA to meet with him about the absence and seek further information about the nature of the illness and likely length of absence. That clause reads:
(a) Where a Teacher is absent from employment, with the exception of the first three days in each year, due to personal illness or personal injury or an unexpected emergency affecting the Teacher, the Teacher shall, at the Employer's request, provide a certificate from a medical practitioner or other evidence from a registered health practitioner, or such other evidence of personal illness or personal injury or unexpected emergency or family and domestic violence which would satisfy a reasonable person.
(b) Where a Teacher has taken frequent single days of personal/carers leave; or taken extended Personal/Carer's Leave such that the Employer requires additional information in relation to the Teacher's illness or injury and likely length of absence from work then the Employer may take action in accordance with this subclause.
(i) The Employer may arrange a meeting in order to clarify the position with the Teacher. The Employer shall invite the Teacher to respond verbally to the issues raised by the Employer. If the Teacher is a Union member, then the Teacher may seek Union advice and assistance.
(ii) After consideration of the Teacher 's response, the Employer may
- (A) require further evidence of illness; and/or
- (B) request the Teacher to obtain a second opinion from another doctor at the Employer's cost; and/or
- (C) request a more detailed estimation of the likely length of the absence; and/or
- (D) require the Teacher to obtain a medical report (at the Employer's cost) in relation to the likely period of absence; and/or
- (E) discuss with the Teacher any other action.
(iii) The Teacher may, if a member of the Union, request that this matter be discussed at any stage between the Union and the Employer.
(iv) Action shall only be taken pursuant to paragraph 13.5(b) when authorised by the Principal of the school.
[82] Mr Ronchetti's letter was consistent with the College's entitlement under cl 13.5. The exchange of correspondence that followed, involving at various times Mr Cogan, his solicitors, Mr Ronchetti, and the College's solicitors, ended with the College seeking that Mr Cogan provide a medical report. The request was consistent with clause 13.5(ii)(D) of the MEA. In correspondence dated 28 August 2025, the College instructed Mr Cogan to obtain a report that addressed 8 issues. Mr Cogan attended his doctor on 9 September 2025. He provided his doctor with the request. The doctor provided a report. On its face, while the report did not directly address each of the 8 matters in terms, but it did provide information relevant to 6 of them. It failed to provide the details requested in the letter on matters such as details of the clinical basis for the doctor's medical opinion, diagnostic criteria upon which the opinion was based, identifying any risks of aggravating his condition if he were to return to work, and the treatment, therapy, or interventions Mr Cogan was currently undertaking, including any medication, their frequency, and further treatment considered necessary. Mr Cogan provided the report to the College.
[83] The College considered the report to be inadequate and issued a further written direction that Dr Lee's report be provided. He was warned that if he failed to do so he would be subject to disciplinary action. Mr Cogan having only received the 9 September 2025 report provided the report again. This was considered by the College to be in breach of a lawful and reasonable direction to provide a medical report from Dr Lee. But Mr Cogan had provided the report he was given. At best, Mr Cogan did fail to provide a report from Dr Lee that included the level of detail the letter required.
[84] I make the following observations about the circumstances surrounding this concern. First, returning to the source of the request, clause 13.5 of the MEA, the College had sought evidence associated with the illness. Under clause 13.5(ii)(D) it was entitled to require Mr Cogan to obtain a medical report (at its cost) in relation to the likely period of absence. The request for the report in the 28 August 2025 letter went well beyond "seeking a report in relation to the likely period of absence". Second, the report that was submitted included the information required by clause 13.5(ii)(D). It stated that it was likely that Mr Cogan would be unfit to return to teaching for another 3 months. Third, there was no basis for requiring the extensive report sought by the College under the MEA. Fourth, the failure of Dr Lee to provide the detail in his report that the College requested was conduct of Dr Lee not Mr Cogan. Fifth, if there was some concern about Dr Lee's diagnosis or prognosis, it was open to the College under clause 13.5(ii)(C) to request Mr Cogan to obtain a second opinion from another doctor.
[85] Given those circumstances, it was not reasonable for the College, after receiving Dr Lee's report, to make the direction that Mr Cogan provide a report addressing the detail it sought in its 28 August 2025 letter. Having sought a report from Dr Lee, receiving a report albeit not in the detail sought, the College could then have sought another report. It didn't instead it commenced disciplinary proceedings and dismissed Mr Cogan for not providing the report. The failure to provide a report giving the detail sought was neither sound, defensible nor well-founded and as such did not amount to a valid reason for dismissal. This matter weighs in favour of a finding of the dismissal being harsh, unjust or unreasonable.
[86] I note that, in the reason for the dismissal in the termination letter, the three concerns about failures to follow lawful and reasonable directions led the College to conclude that Mr Cogan had engaged in a pattern of conduct inconsistent with the standards expected of a professional employee and amounted to serious breaches of Mr Cogan's contractual and statutory obligations. These matters were said to be inconsistent with the continuation of employment. I have found that two of those three concerns, the concerns about breaching directions about media engagement and providing medical information, did not constitute valid reasons for termination. I consider that those matters did not amount to serious breaches of Mr Cogan's contractual and statutory obligations. Consequently, the reason for dismissal which relied on the three concerns was not itself a valid reason for dismissing Mr Cogan. This also weighs in favour of a finding that the dismissal was harsh, unjust, or unreasonable.
[87] The next matter is whether Mr Cogan was notified of the valid reason for termination. The circumstances were unusual. There were three show cause letters notifying Mr Cogan that the College was considering terminating his employment. The last, dated 20 October 2025, dealt only with the failure to provide medical information. The earlier letters were dated 22 and 26 May 2025. They dealt with the media notification and email use directions. The College did not notify him before the dismissal that it was considering terminating his employment for the cumulative effect of the matters raised in all three letters.
[88] I consider that it should have. There was no need for the College to act with the alacrity it did. Mr Cogan was on unpaid personal leave. There was no imperative to dismiss him. It would have been a simple matter, after receiving his response to the third show cause letter, to raise with him the College's ongoing concerns about the three matters and ask for his response to them, taken together, as justifying his dismissal. Its failure to do so amounted to a failure to notify him of the reason for his dismissal. This matter weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
[89] I note that I have found that Mr Cogan was notified of the breach of the email direction which was particularised in the show cause letter of 26 May 2025. I have found that this was a valid reason albeit not on its own the reason for the dismissal. I have taken this into account. It weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[90] The third matter under s. 387 is whether Mr Cogan was given an opportunity to respond to the reason for dismissal. For the reasons just discussed, I do not consider that Mr Cogan was given an opportunity to respond to the College's multifaceted reason for dismissal. At no time was he told the three matters would be considered together to justify dismissal. I note that he was given an opportunity to respond to each of them at different times. On balance, taking into account the way the College split the show cause process, did not indicate it was considering dismissing Mr Cogan for all three matters, and the delay the first two matters being raised and the dismissal this matter weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.
[91] The fourth matter is whether Mr Cogan was unreasonably refused the opportunity to have a support person present to assist at any discussions relating to dismissal. Mr Cogan was given the opportunity to be represented in the various discussions concerning his dismissal. The inadequacies of those discussions and the failure to provide a clear opportunity to discuss the cumulative effect of the conduct are matters that have already been considered. The opportunity afforded in the discussions that did occur however weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
[92] Section 387(e) is not relevant because the dismissal was not performance related.
[93] The College is a large employer and its size did not impact on the procedures followed in effecting the dismissal. This matter is neutral.
[94] The College had a dedicated human resource manager in Mr Wheatley, he was involved in the steps towards dismissal. This matter weighs in favour of a finding that the dismissal was not harsh, unjust or unreasonable.
[95] Turning to other matters relevant under s. 387(h), Mr Cogan submits that his personal circumstances are a relevant factor. Those circumstances include that he worked as a teacher at the College since August 1997. He had a clean disciplinary record. He engaged in extra-curricular activities such as coaching in his own time. These factors are relevant and weigh in favour of a finding that his dismissal was harsh, unjust or unreasonable.
[96] A further factor that is unique to Mr Cogan's case is his devotion to his partner Ms Lane and the impact that had on his dismissal. It is apparent that he had a similar devotion to his career and to the College. From 2010, with the conviction of Ms Lane, and no doubt earlier, Mr Cogan was conscious of the need to balance the support he gave to his partner with the potential reputational impact that support may have on the College. He worked with the school as best he could over the years and managed to find a balance. Despite the media attention on Ms Lane, Mr Cogan said that the College was not mentioned in any media report until the reports associated with his suspension and then dismissal. There was also evidence that the school community accepted Mr Cogan's position and worked with him both by way of providing support and avoiding adverse publicity. There was no evidence in the proceedings of anyone in the school community, students, teachers or parents raising an issue with Mr Cogan's support for Ms Lane. In those circumstances, his media engagement and his email use, while having the potential to affect the College's reputation, had not done so. It seems Mr Cogan, to his credit, got the balance right. These factors weigh in favour of a finding that Mr Cogan's dismissal was harsh, unjust or unreasonable.
[97] The statutory task is to reach a state of satisfaction as to whether the dismissal was unfair under s. 385 of the Act. Specifically, whether it was harsh, unjust or unreasonable for the purposes s. 386(b). In reaching that conclusion I must take into account the matters in s. 387.
[98] The matters in favour of a finding that the dismissal was harsh, unjust, or unreasonable include that two of the three concerns cited by the College, breaching directions about media engagement and failing to provide medical information did not constitute valid reasons for dismissal as they were not sound, defensible, or well-founded. The third matter concerning the use of emails was explained by Mr Cogan's unique circumstances and it did not justify dismissal. The College also failed to notify Mr Cogan that the three concerns would be considered collectively as the reason for his dismissal and so Mr Cogan was not given an opportunity to respond to the College's cumulative reason for dismissal. Mr Cogans's long tenure at the College, a clean disciplinary record, and his devotion to the College and his students also fall in favour of an unfairness finding. His devotion to his partner, Ms Lane, and his demonstrated ability to balance his support for her with his professional responsibilities over a long period are also relevant factors suggesting the dismissal was harsh. Other matters such as there being no evidence of reputational harm to the college arising from his relationship with Ms Lane, despite the potential for his actions to affect the College's reputation, tell in favour of the dismissal grounded in part, as it was, on concerns about media engagement and using College emails to support Ms Lane, was harsh.
[99] The matters against a finding that the dismissal was unfair are that Mr Cogan breached the College's email policy by using his work email extensively for personal matters related to Ms Lane, despite being directed to use his personal email for such correspondence. That matter was raised with Mr Cogan before dismissal and he was given an opportunity to respond. Mr Cogan was also given the opportunity to have a support person present during discussions related to his dismissal albeit those discussions.
[100] Weighing these factors, I find that the matters in favour of a finding that Mr Cogan's dismissal was harsh, unjust or unreasonable outweigh the matters against. I find that Mr Cogan's dismissal was harsh, unjust and unreasonable.
[101] In all the circumstances, dismissing Mr Cogan was unfair and I find that Mr Cogan was unfairly dismissed.
[102] Mr Cogan seeks orders for reinstatement, continuity of service, and lost pay under s. 391 of the Act.
[103] The Full Bench of the Commission in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 said:
[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is 'inappropriate'. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is "to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement". We would observe that to describe reinstatement as the 'primary remedy', is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been 'unfair' is whether reinstatement is appropriate in the particular case.
[104] The College submits that reinstatement is not appropriate because there have been ongoing issues with respect to his behaviour, he has not been open with the College regarding his advocacy on behalf of Ms Lane, including his involvement with the media, and he is reluctant to follow reasonable directions from the College. It contends that his ongoing involvement in advocating for Ms Lane is also likely to result in further media attention and reputational risk for the College and that it cannot have any confidence that he would co-operate with the College in managing any reputational risk should he be reinstated. The College points to Mr Cogan's recognition of the problems associated with his ongoing employment and sought to negotiate a voluntary redundancy as a reason to deny him the remedy of reinstatement.
[105] I have addressed Mr Cogan's behaviour above. The College directs my attention particularly to the incomplete investigation into a complaint against Mr Cogan arising from conduct in 2024. I am not willing to make any conclusion as to whether the complaint has any substance. The College provided evidence of earlier complaints none of which resulted in disciplinary action. I do not consider these matters tell against awarding reinstatement.
[106] I have made a number of findings about Mr Cogan's approach to following directions. The only adverse finding is associated with his use of his College email account. I am confident that Mr Cogan will not use his College email account in future other than in accordance with the College's policies and reasonable directions. I do not consider this matter to tell against an order for reinstatement.
[107] As to Mr Cogan's ongoing advocacy on behalf of Ms Lane and its impact on the College's reputation, I have already observed that Mr Cogan is aware of the need to balance his devotion to his partner with his desire that in doing so there is no adverse impact on the College. I have also considered Mr Cogan's request that the College consider retrenching him so that there is no longer a risk to reputational damage. The College refused this request. When the proposal was put on 15 May 2025 it was willing to have him stay. Neither the College nor Mr Cogan can be criticised in those circumstances. It is not a factor that tells for or against the appropriateness of reinstatement.
Printed by authority of the Commonwealth Government Printer
Mr Patrick Cogan
Edmund Rice Education Australia New South Wales Colleges Ltd trading as St Pius X College, Chatswood [2026] FWC 1117