Western Australian Industrial Relations Commission

Claim of unfair refusal to employ teacher upheld

The Commission has upheld a claim of unfair refusal to employ by the State School Teachers' Union of W.A acting on behalf of a teacher who had been summarily terminated by the Department of Education.

The respondent disputed the claim on the following grounds:

  1. The application for a s44 conference under the Industrial Relations Act did not seek compensation or contend that the teacher's termination was unnecessary and unfair.
  2. Section 41(3) of the Working with Children (Criminal Record Checking) Act 2004 (WWC Act) prevents the applicant from arguing that the termination of employment was procedurally unfair.
  3. The Commission does not have jurisdiction to hear this matter under section 23(2a) of the Industrial Relation Act 1979 (IR Act).

Senior Commissioner Kenner rejected the respondent's first claim and found that the nature of a question, dispute or disagreement may change from the time a s 44 conference application is made to the point when the Commissioner refers the unresolved question, dispute or disagreement for determination under s 44(9). The Commission had ample jurisdiction and power to deal with the applicant’s refusal to employ claim.

Kenner SC then turned his mind to the second claim. Kenner SC determined that a "person" under s 41(3) of the WWC Act may be a union commencing proceedings before the Commission in a 'representative capacity'. Whilst the union is an applicant in this case, the relief sought is that the teacher be employed and receive compensation for his loss of income. Kenner SC went on to find that the applicant was not excluded from obtaining a remedy under the IR Act as all three of the requirements of the saving provision in the section were not met.

Kenner SC had previously rejected the respondent's third claim in his interim order decision. The respondent continued to argue this point through witness evidence which did not persuade Kenner SC to alter his decision.

On the merits, Kenner SC found the respondent’s refusal to employ the teacher to be unfair as the investigation into the allegation of misconduct was flawed and summary dismissal was not supported on the facts.

Kenner SC ordered that the teacher represented by the applicant be offered a contract of employment as a teacher and a payment of an amount representing the salary that would have been earned by the applicant from the date of the disciplinary investigation outcome to the date of his re-employment.

The decision can be read here.

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