Dismissing disqualified persons under the Child Protection (Working with Children) Act 2012 (NSW) – guidance from the Fair Work Commission
Facts
Mr O’Connell was a teacher employed by the Catholic Education Office of the Archdiocese of Sydney. He became a ‘disqualified person’ under s 18 of the Act as a result of a conviction for indecent assault.
The Catholic Education Office took the view that it was required to terminate Mr O’Connell’s employment pursuant to s 9 of the Act.
S 9 of the Act
s 9 of the Act provides that an employer must not employ a person to undertake child-related work if the employer knows, or has reasonable cause to believe, that:
- the employee does not hold a current working with children check and there is no pending application for a current working with children check
- the NSW Office of the Children’s Guardian has imposed an ‘interim bar’ on the employee
The Full Bench of the Fair Work Commission held however that s 9 of the Act permits an employer to continue to employ an employee provided that the employee is not required to perform ‘child-related’ tasks and duties.
Lessons for employers
Employers should avoid immediately terminating the employment of disqualified or barred person. Rather, as The Hon. John Ajaka stated in the NSW Legislative Council in the Act’s second reading speech, employers may ‘suspend a barred worker or redeploy such a worker to a non child-related role’. The employee may also be asked to take leave.
It is important to note that the Full Bench did not state that such employees can never be dismissed. Such an employee may, for example, be summarily dismissed for serious misconduct after a proper workplace investigation.
Contact JFM Law on (02) 9199 8597 for assistance with all child-related employment matters. If you would rather get in contact through email, send your question through or by emailing us.
The information contained in this post is current at the date of editing – 04 September 2025.
