Navigating the overlap between child safety and procedural fairness

Conducting investigations in relation to employee conduct always requires careful consideration and compliance with requirements of procedural fairness. However, when the conduct being investigated involves children, this raises several additional complexities which must be considered by employers.

The case of Gulliver v. Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2023] FCA 823 highlights the need for a sensitive approach to these types of allegations, balanced with compliance with any processes set out in an enterprise agreement. This case resulted in an employer being required to pay over $50,000 in penalties as a result of failure to comply with a direction from the Fair Work Commission (FWC), in accordance with its obligations under the applicable enterprise agreement.

While this case drives home the need for employers to properly consider requests for further information in accordance with relevant industrial instruments, it also highlights the complex child safety and privacy obligations that must be carefully considered, which vary between jurisdictions.

Background of employee investigation

The applicant was a teacher employed at a school managed by the respondent, who traded as Brisbane Catholic Education, for over 15 years. The employment relationship between the teacher and Brisbane Catholic Education was governed by the Catholic Employing Authorities Single Enterprise Collective Agreement — Diocesan Schools of Queensland 2019–2023 Agreement (Enterprise Agreement). The Enterprise Agreement was a workplace instrument and an Enterprise Agreement for the purposes of the Fair Work Act 2009 (Cth) (FWA).

By letter dated 7 February 2023, the teacher was advised by Brisbane Catholic Education that an investigation had been commenced in relation to the teacher’s conduct in the course of her employment. The alleged conduct involved the teacher tugging the earlobes of two students when demonstrating the appropriate sleeper earrings to be worn in accordance with the school’s policy. In further correspondence, the teacher was informed that the allegations had been substantiated.

The teacher subsequently sought details of the evidence being relied upon in the investigation, but was only provided with select, paraphrased information in relation to the allegations being investigated. The teacher then applied to the FWC seeking a range of remedies, including an injunction preventing Brisbane Catholic Education from terminating her employment until completion of the dispute resolution procedures set out in the Enterprise Agreement. Notably, the Enterprise Agreement contained status quo provisions which stated:

“2.4.8 Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.

2.4.9 The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.”

The FWC, in its reasons, found that the Enterprise Agreement’s guidelines surrounding complaints against employees did not “compel” Brisbane Catholic Education to provide the teacher with the material sought. However, the FWC recommended in the particular circumstances of this case, that “the sensible course is for [Brisbane Catholic Education] to provide to the [teacher] to the full extent that is permissible, any material that will be put before the decision maker before a final decision is made.”

Brisbane Catholic Education failed to provide any further details in relation to the conduct and subsequently terminated the teacher on the basis of the alleged conduct on 31 May 2023.

The teacher therefore claimed that Brisbane Catholic Education contravened s. 50 of the FWA by contravening the status quo maintenance provisions contained in her Enterprise Agreement.

Findings by the Federal Court

The Federal Court held that there was a contravention of s. 50 of the FWA on the basis of the contravention of the Enterprise Agreement requiring the status quo to be upheld during the dispute resolution process set out in the Enterprise Agreement.

The court found that the teacher was “left in a position of not knowing, prior to her dismissal, whether or not [Brisbane Catholic Education] would act on the recommendation” made by the FWC.

“Had [Brisbane Catholic Education] chosen to act on the recommendation by communication to her, even if only to the extent of stating, ‘You already have, by correspondence of particular dates, the following material and this is the only material which will be placed before the decision-maker,’ she would then have had the choice of whether or not to accept that this was in fulfilment of the recommendation or, had she chosen to want more, to press for an arbitrated outcome,” said the court.

Instead, the court found that Brisbane Catholic Education, by the termination of the teacher’s employment without providing any indication of its position in relation to the recommendation, was to interrupt the status quo.

Consequently, the court was satisfied that the contravention had been made out, being a violation of a status quo required by clause 2.4.9 of the Enterprise Agreement.

As a result of this contravention and having found liability, the court awarded $28,832.76 compensation for economic loss and a further $25,000 penalty for the breach of s. 50 of the FWA.

Key takeaways and considerations for employers

• Employers need to carefully consider and balance their child safety and privacy obligations against their obligations to comply with the processes contained in their industrial instruments, and may face penalties for non-compliance.
• Employers may at times be prevented from disclosing details relevant to an investigation having regard to confidentiality, privacy and other obligations not to disclose reports made about abuse by children. For example, legislation in Victoria prohibits publishing information that would enable the identity of the student or the person who notified the regulator of a reportable allegation.
• Employers may be able to provide information about an investigation subject to undertakings of confidentiality and no further use.
• While Queensland does not yet have a reportable conduct scheme, it is important to note that the alleged conduct may fall within the parameters of reportable conduct under reportable conduct schemes in other jurisdictions.
• Laws relating to publishing and disclosure of reportable allegations also vary between jurisdictions, so it is therefore important for employers to consider how any reporting obligations they may have, interact with processes in enterprise agreements and under laws regulating the publishing and disclosure of information regarding reportable allegations.

Abbey Dalton is a lawyer in the Corporate Advisory team at Moores in Melbourne. Skye Rose is a practice leader in the Corporate Advisory team and head of the Workplace Relations Team at Moores in Melbourne.