Western Australian Industrial Relations Commission

Reinstatement requires consideration of viability of relationship

The Full Bench upheld an appeal by the Public Transport Authority (PTA) against a decision of the Commission to reinstate a Transit Officer, who was dismissed following an incident where the officer sprayed a member of the public with oleoresin capsicum spray. 

The Hon. Acting President, with whom the Chief Commissioner agreed, held that the Commission erred in its decision by failing to consider all of the relevant considerations before deciding to order that the officer be reinstated.  Given the unique relationship between the PTA and transit officers, there must be a high level of trust and confidence for the relationship to be viable.  That trust and confidence must exist to make reinstatement an appropriate option when considering the appropriate remedy in an unfair dismissal-type case.  Before coming to its decision, the Commission ought to have considered the employer's opinion regarding the viability of the employment relationship, and whether the employer's opinion was 'genuine, credible and rationally based' as well as the disciplinary history of the officer. 

The Full Bench remitted the matter back to the Commission for it to determine the appropriate penalty, because it has the advantage of having seen and heard the evidence and is therefore in a better position than the Full Bench to properly weigh and assess the evidence. 

The decision can be read here

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