Western Australian Industrial Relations Commission

Full Bench must consider the practicability of a remedy

 

Full Bench must consider the practicability of a remedy

The Full Bench has unanimously upheld an appeal by the State School Teacher's Union of W.A. Incorporated (SSTU), acting on behalf of a teacher. The appeal was against a decision that awarded compensation to the teacher for having been unfairly dismissed by the Director General of the Department of Education (the Director General).

The teacher had worked for the Department of Education for 36 years and taken extended leave after being diagnosed with PTSD and an anxiety disorder. While on leave, the teacher received a letter advising that there would be a Standards and Integrity investigation into an incident that occurred just prior to him having taken leave. In December 2017, the Department's doctor stated that the prospect of a successful return to work appeared poor at that time and sought further medical information from the teacher's doctor and psychologist. In early 2018, the Department terminated the teacher's employment on the grounds of ill health.

The Commissioner at first instance concluded that if all the relevant information was available to the decision-maker they could not have determined that the teacher was unable to work due to ill health. The learned Commissioner considered the circumstances and decided that reinstatement or redeployment was impracticable and awarded compensation.

The SSTU argued in ground 1 that the learned Commissioner erred in fact and in law when determining why the teacher was not attending work. The Full Bench noted that there was conflict between and a lack of clarity in the medical opinions and that the decision-maker should have made further enquiries prior to terminating the teacher's employment. For this reason, the Full Bench determined that the learned Commissioner's conclusion that the teacher was not going to work for reasons unrelated to his health was premature and in error.

The SSTU argued in 2 further grounds that the learned Commissioner erred in law by considering irrelevant considerations when finding that reinstatement was impracticable. The learned Commissioner had concluded that reinstatement was impracticable because the teacher's response to the Standards and Integrity process was abnormal or extreme. However, the Full Bench concluded that the medical evidence was that the teacher's response to the Standards and Integrity Process was normal.

The Full Bench found that the SSTU's three grounds of appeal were made out and upheld their appeal.

The Full Bench then considered an appeal filed 12 days out of time from the Director General which argued that the learned Commissioner erred in his reasoning in the calculation of compensation to the sum of 20 weeks' salary. The Full Bench noted that this ground only applied if the appeal brought by the SSTU failed. The Full Bench granted the extension of time after considering the relevant principles and that the SSTU did not object to the appeal being received out of time. The Director General's ground of appeal was that the learned Commissioner erred in fact and in law by finding that the teacher suffered compensable loss or injury. The Full Bench found that the Director General's submission assumed that the teacher was fit to work.

The Full Bench dismissed the Director General's appeal as evidence indicated that the employee was not fit to work at the school at which he had been teaching and his suitability to work elsewhere was not assessed.

The Full Bench allowed the SSTU's appeal and ordered that the decision at first instance be suspended and the matter remitted to the Commission for further hearing and determination on the practicability of reinstatement or reemployment in consideration of the employee's current state of health and whether he ought to be reemployed at another school.

The decision can be read here. 

 

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