She had already succeeded at unfair dismissal - the second case went differently
An employer can want a worker gone and still report misconduct to police without it becoming malicious prosecution, a New South Wales court found.
The District Court of New South Wales, in a decision handed down on July 10, 2026, dismissed a former childcare teacher's civil claim against her old employer - a Sydney childcare provider - and two of its senior staff. She had sued for malicious prosecution and a related claim after the criminal case against her collapsed.
The background reaches back to 2020. The worker, an early childhood teacher, was charged with two counts of assaulting a child at the centre under the Crimes Act 1900 (NSW). Three colleagues signed statements alleging two incidents involving the child's hands being bound. The centre's chief executive passed those statements to police, and she was sacked. A local court dismissed the charges in April 2022.
She then went after the company and two individuals - the chief executive and the centre director - rather than the authorities who brought the prosecution. Her case was that the abuse allegations had been "fabricated" to force her out, and that the employer acted with malice.
The court did not accept it. The judge found she had not proved the allegations were fabricated, and stressed that this was not a finding that she had harmed the child. The malice claim failed as well - even setting fabrication aside, the judge was not persuaded either individual had acted for an improper purpose. He also found the employer had reasonable and probable cause to report.
Here is the part HR leaders should sit with. The judge accepted the chief executive held professional ill will toward the worker. Months earlier she had lodged seven grievances against him, one of which an external investigator substantiated, and he had pushed for her to leave. The judge even found it "probable" he had urged the employer's outside HR advisers to handle her file in a way that would reduce her chances of working in childcare again.
Yet ill will was not enough. The judge held the report to police was driven by a genuine belief in a legal duty to report, citing mandatory reporting obligations under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Wanting someone gone and reporting a safety concern were treated as separate things - the dismissal never needed a police report to happen.
The court also found none of the defendants were "prosecutors" for the purpose of the tort. They handed information to police in good faith; police investigated independently and decided to charge.
The worker had already succeeded in her unfair dismissal case, collecting six months' pay from the Fair Work Commission. That did not carry over. Had she succeeded here, the judge said he would have assessed damages at $329,261 - but she recovered nothing and was ordered to pay the defendants' costs.
The takeaway for HR: documenting a genuine safety concern and reporting it does not turn unlawful just because you also want the employee out. The same contemporaneous emails that showed animosity also showed a genuine belief in a reporting duty - and that record decided the case.
