Western Australian Industrial Relations Commission

Alleged unfair disciplinary process

The Commission has dismissed an application by The State School Teachers' Union of W.A. (the SSTU) alleging that the disciplinary process conducted against one of its members was unfair.

The SSTU argued that the allegation made against the teacher was not properly particularised because the date that the alleged misconduct occurred was not precise enough. Commissioner Matthews found that sufficient particulars were given and the lack of precision in the date did not unfairly affect the applicant's member's ability to respond to the allegation.

The SSTU also argued that the alleged conduct was inappropriately cast by the investigator as establishing a "propensity". Commissioner Matthews considered that the investigation was not reliant on propensity evidence and the evidence was not a key issue in the analyses of the investigator. Commissioner Matthews determined that the effect of the relevant paragraphs of the investigation's report could not be considered so great as to render the process unfair.

In two grounds of appeal, the SSTU argued that the respondent failed to give proper weight to matters, one relating to students allegedly colluding in the statements provided and another relating to the applicant's member's physical abilities and limitations. Commissioner Matthews considered that there was no evidence provided to support the assertion that the students colluded or explanation for how students may both collude effectively and give inconsistent versions. Commissioner Matthews found that the respondent had addressed the issue of collusion maturely and professionally and could have easily dismissed the allegation as preposterous, especially, because the applicant's member did not provide any evidence to support this contention. Commissioner Matthews further found that the respondent never alleged the superhuman feats of strength the applicant's member says she is physically incapable of performing and any belief of this was not caused by the respondent.

The SSTU also argued that the respondent did not properly assess or act upon inconsistencies in the evidence of witnesses. Commissioner Matthews concluded that the respondent's conclusions were made on the balance of probabilities but in consideration of the serious nature of the allegations.  Commissioner Matthews commented that it is not for him to prescribe a certain approach to addressing inconstancies. Commissioner Matthews determined that the respondent relied on a body of evidence which comprised of multiple recollections and that the inconsistencies raised did not make the respondent's ultimate decision unsafe or unfair.

The SSTU argued two further grounds of appeal that the respondent failed to obtain evidence or source further and better evidence. Commissioner Matthews considered that the evidence brought by the applicant at the hearing, that they alleged the respondent ought to have obtained, contributed almost nothing to the relevant body of evidence and consequently rejected this submission.  

The SSTU's allegations were not made out and the Commission dismissed the application.

The decision can be read here.

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