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What if Archbishop Wilson fronted the Fair Work Commission?

In May this year Catholic Archbishop Philip Wilson became the most senior Catholic official world-wide to be charged with concealing child sexual abuse. Archbishop Wilson was convicted of covering up abuse by Priest Jim Fletcher in the Hunter region back in the 1970s.

One would think the Catholic Church is an organisation that will be particularly sensitive to matters of child sexual abuse, and would be keen to ensure that any perception that the Church was “soft” on abusers was quickly repudiated.

Certainly, the Magistrate that heard the Archbishop’s matter did not take his offences lightly and earlier this month he was sentenced to 12 months detention. The matter has been adjourned till 14 August while the Archbishop is assessed for suitability to have him serve that sentence at home.

It is puzzling therefore that the Archbishop has so far refused all calls to resign, including from both the Prime Minister and the opposition leader. Both have called for church superiors to take action.

Although the Pope is beyond the reach of the Fair Work Commission, Archbishop Wilson’s case did give me cause to wonder what would happen to an ordinary employee in a similar situation to the Archbishop.

The mere fact that an employee has committed a criminal offence is not, of itself, justification for terminating their employment. As we have discussed in this column previously, there are remedies available to employees where their dismissal was “harsh, unjust or unreasonable”.

As you can imagine, there is a great deal of case law around what “harsh, unjust or unreasonable” means.

In considering this, it would be relevant to know when the criminal conduct occurred. For example, if it occurred in the course of the employee’s employment, that would arguably be sufficient grounds for termination. However, it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of their employees. The out of hours conduct must be connected to the employment relationship.

If we consider a hypothetical case where the Archbishop’s conduct came before the Fair Work Commission after he claimed he had been unfairly dismissed by the Pope, it could be argued that the offences were of such a nature that were directly relevant to the Archbishop’s work with the Church. Church officials are placed in the position of great trust, moral authority, and often work closely with children.

It is easy to see other examples where a criminal conviction would not be relevant. For example, that a receptionist has a conviction on her record for drink driving would appear to have no effect on her ability to carry out her role.

It is also important to remember that the general protections provisions of the Fair Work Act means that potential employees are protected in the application process (ie even before they are employed). It is illegal to discriminate against someone merely because of the fact that they have a criminal record.

Again, the test is whether or not that record has any effect on their ability to carry out the fundamental requirements of the role. So, the receptionist with a drink-driving conviction should not be discriminated against on the grounds of that conviction, however what about someone applying to be a zookeeper who had a conviction for animal cruelty, or a schoolteacher with child sex offences?

Once someone with a criminal conviction has served a sentence they are entitled to have a second shot. After all, where is the incentive to rehabilitate themselves if they are simply to be punished over and over again? The nature of some convictions however mean that an alternative career path is sometimes appropriate. Obviously, we have no sway with the Pope, however perhaps this is a course of action that Archbishop Wilson should consider.