Stalker of Radio Star Jackie 'O' Wins Unfair Dismissal Case Over Mental Health
David Gourlay, the man sentenced to prison for stalking former radio queen Jackie 'O' Henderson, has secured a significant legal victory in an unrelated employment case. The Fair Work Commission this week overturned a previous decision, ruling that Gourlay's employer, Hutchison Ports, unfairly dismissed him by accepting a resignation email sent while he was in a state of mental confusion.
The Early Morning Resignation and Swift Reversal
Gourlay, a 38-year-old employee at Hutchison Ports' Sydney container terminal, sent a resignation email to the company's human resources department at 4:31 AM on September 26, 2024. The company formally accepted his resignation later that morning at 11:02 AM. However, Gourlay subsequently sent a follow-up email retracting his resignation, stating he had changed his mind about leaving his position.
According to reports, Gourlay later argued before the Fair Work Commission that he never intended to resign and was suffering from paranoid delusions at the time he sent the initial email. While he did not explicitly inform his employer about his mental health struggles that morning, colleagues reportedly expressed concerns to management later that same afternoon.
A Lengthy Legal Battle Through the Fair Work Commission
The Maritime Union of Australia escalated the matter, formally requesting that Gourlay be allowed to rescind his resignation, a request that Hutchison Ports rejected. Gourlay then applied to the Fair Work Commission seeking reinstatement to his former role.
In March of last year, FWC Commissioner Damian Sloan initially rejected Gourlay's application, ruling that there had been no dismissal because the resignation had been accepted. Commissioner Sloan did acknowledge that Gourlay was in a state of mental confusion when he sent the email but maintained the company's acceptance was valid.
The case was then appealed to a Full Bench hearing, which in December found that Commissioner Sloan had made an appealable error by failing to consider events after the resignation email was accepted. The Full Bench did not issue a final ruling but instead referred the matter back to Commissioner Sloan for reconsideration.
Commissioner Reverses Decision Citing Employer's Failure
This week, Commissioner Sloan reversed his original decision. He ruled that Hutchison Ports did not make appropriate enquiries into Gourlay's condition before accepting his resignation.
Mr Gourlay had nearly eight years' service, Commissioner Sloan stated. I accept that it was not without its issues, but it was harsh for Hutchison Ports to purport to treat Mr Gourlay's resignation as legally effective and accept it.
Despite this reversal in finding an unfair dismissal, Commissioner Sloan expressed concerns about Gourlay's current fitness to return to work. He stated he had insufficient evidence to rule on reinstatement and instead ordered a further hearing to determine the appropriate remedy, which could include compensation.
Background: The Stalking Conviction and Mental Health Context
This employment case unfolds against the backdrop of Gourlay's serious criminal conviction. In December, he was sentenced to 16 months in prison for stalking radio personality Jackie 'O' Henderson.
Sydney's Downing Centre Local Court heard that over a five-month period, Gourlay sent Henderson up to 2,000 Instagram direct messages, many arriving in rapid succession and referencing private details of her life. In a delusional narrative, he even claimed the pair shared a child.
The court was told Gourlay has been diagnosed with schizoaffective disorder with bipolar features. His belief that he was in a relationship with Henderson arose from severe delusions. His lawyer, Trudie Cameron, informed the court that her client had been struggling significantly and had not been taking his prescribed medication at the time, reporting hallucinations and paranoia.
An expert report directly linked his stalking conduct to his mental health condition, with the court hearing the offending occurred entirely within the context of his delusion. Cameron argued that when stabilised on medication, Gourlay functions well within the community.
Sentencing and Ongoing Legal Restrictions
Deputy Chief Magistrate Theo Tsavdaridis noted the extremely concerning content of the messages and that Henderson's fear for her family's safety was justified, particularly when Gourlay appeared near her home. The magistrate also highlighted Gourlay's existing lengthy criminal history and that he was serving two community-based orders at the time of the stalking offences.
Gourlay was ultimately sentenced to 16 months in prison, with a non-parole period of eight months. Taking into account time already served, he will be eligible for parole in March. A five-year apprehended violence order was also imposed, expiring in 2030. This order prohibits him from contacting Henderson in any way except through legal representation and bars him from assaulting, threatening, stalking, or harassing the radio presenter or anyone with a domestic relationship to her.
The Fair Work Commission's decision this week represents a separate legal acknowledgment of the impact of Gourlay's mental health condition, this time within the sphere of employment law, while his criminal sentence for stalking remains in effect.
