Terminated by frustration or dismissed by employer?

The Catholic Education Office, Sydney has failed in a bid to have an application for an unfair dismissal remedy thrown out on the basis that the employment had come to end through the common law doctrine of frustration. The employers’ argument was that with the coming into effect of Child Protection (Working with Children Act) 2012 the employee, who was then on leave, could not lawfully undertake his functions as a religious instruction coordinator because he had been charged with sexual assault and could not thus obtain the appropriate permit to work with children. The employee was vigorously defending the charges.
But the Commission held that although it was clear he could not lawfully engage in child-related work without a clearance, there was no reason why he could not continue to be employed on suspension or leave either with or without pay or being re-deployed other non-contact work.
“I accept the submissions for the CEO that the child protection laws in New South Wales plainly can operate to frustrate the contract of employment of an employer and employee coming within the purview of that legislation,” Commissioner McKenna said.
“The particular factual circumstances of this application lead me to the view, however, that the employee’s employment …….. was ….. within the meaning of s386 of the Fair Work Act, terminated on the employer’s initiative.”
Accordingly the employment came to an end by dismissal rather than frustration at common law.
Mahony v Dr Daniel J White, Executive Director of Catholic Schools, Sydney (2015) FWC 1593 delivered on1 May 2015.