Details 

Created: 17 October 2019

The Full Bench has dismissed an appeal against a decision of the Commission where it was found that the refusal of the Director General, Department of Education (the Director General) to employ a teacher was unfair (this decision can be read here).

The Director General summarily terminated the teacher's employment following an incident that involved a primary school student and that resulted in a criminal charge being brought against the teacher. This criminal charge caused the issuance of a notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) (the notice) and cancellation of the teacher's registration with the Teacher Registration Board (TRB). The notice was withdrawn, the registration reinstated and the criminal charge was discontinued. However, the Director General still refused to employ the teacher. It was at this stage that the Director General commenced disciplinary action into the teacher's conduct that had led to the criminal charge. This disciplinary investigation found the teacher's actions to be 'inconsistent with the Code of Conduct', that he had engaged in excessive physical contact with a student, that his employment file would remain marked 'not suitable for future employment with the Department of Education', imposed a reprimand and advised the teacher that he may appeal to the Commission.

At the first instance hearing of the matter, the learned Senior Commissioner made three orders. Firstly, a declaration that the Director General's refusal to employ the teacher was unfair (Order 1). Secondly, for the teacher to be offered a contract of employment as a primary school teacher at a level and salary equal to his qualifications and experience (Order 2). Thirdly, that the Director General pay the teacher for the limited payment of salary and benefits that he would have earned had he remained employed since 2 October 2017, being the date that the Director General's refusal to employ was no longer reasonable because the teacher's notice under the WWC Act was removed and TRB registration was renewed (Order 3).

The first ground of appeal considered by the Full Bench was whether the learned Senior Commissioner erred when he found that the Commission had jurisdiction to hear the application, given the exclusion set out in section 23(2a) of the Industrial Relations Act 1979 (WA) (the Act). This exclusion is that s 23(2a), which relates to the filling of a vacancy, ousts the Commissions jurisdiction to hear the matter. The Full Bench dismissed this ground on the basis that the Commission's jurisdiction is not excluded because the circumstances of this case did not relate to the filling of a vacancy. Rather the Director General refused to employ the teacher because she had wrongly concluded that the teacher was unsuitable for re-employment. The Full Bench also found that the learned Senior Commissioner's description of the claim before him did not conflate issues, namely, the fairness of the teacher's removal and the teacher's claim for re-employment.

The second ground of appeal alleged that the learned Senior Commissioner made an error of law when he did not find that a letter from The State School Teachers' Union of WA seeking the teacher's reemployment (the letter) was wholly covered by without prejudice privilege and could not be relied upon to evidence a request for employment. The majority of the Full Bench (Emmanuel C and Walkington C) found that the letter was in two parts, the first being an open communication that was on the record and the second being an offer made without prejudice and off the record. Scott CC (dissenting) agreed with the learned Senior Commissioner and found that the whole of the letter was covered by without prejudice privilege and that, even if this ground was upheld, it did not warrant the overturning of the first instance decision because the Director General still refused to employ the teacher.

Ground five was raised in the alternative to ground two and alleged that if the letter was not wholly covered by without prejudice privilege then the Senior Commissioner erred by failing to consider the relevant consideration that it was not a bare request for employment. The Full Bench dismissed this ground after it held that the request contained many conditions that were not put to the learned Senior Commissioner at first instance as having been considered by the Director General or was the reason for the Director General's refusal to employ the teacher.

A third ground alleged that the Senior Commissioner made an error of law when he found that the WWC Act did not prevent the teacher from obtaining relief in the proceedings at first instance. The Full Bench dismissed this ground after it found that the learned Senior Commissioner had not erred because the WWC Act only prevents a relief when the remedy sought is for a dismissal, and not for an unfair refusal to employ.

The fourth ground of appeal stated that the learned Senior Commissioner did not consider the relevant considerations when he found that the Director General unfairly refused to employ the teacher. The Director General said that the relevant considerations were that; the teacher sought to only be employed at his former position; the teacher's former position was permanently filled; the teacher had not followed the usual re-employment process, and, that this may cause unfairness to the other applicants. The Full Bench dismissed this ground of appeal and held that the Commission is not bound by the remedy sought by a party, that the Director General had no intention to re-employ the teacher and that the Director General could have found other work for the teacher until he was able to formally apply for another position, as it had done in other cases.

Ground six alleged that the learned Senior Commissioner considered irrelevant considerations. Namely, that the refusal to employ had ended the teacher's career and that the teacher's conduct did not warrant summary dismissal. The Full Bench found that the Director General's characterisation of these considerations as irrelevant took them out of context. It was relevant to the consideration of fairness in the refusal to employ the teacher that the Director General is the employer in all government schools and that the Director General's refusal to employ the teacher ended his career as a teacher in government schools. Also, as the Director General's actions must have a reasonable and rational basis, it was appropriate for the Commission to carry out an objective assessment of the teacher's conduct, especially because the SSTU sought orders for its member to return to child-related work.

The Full Bench dismissed ground seven as it was generally a reformulation of other grounds of appeal and that the question of fairness in the refusal to employ had always been a primary consideration.

Ground eight contended that the learned Senior Commissioner erred when he made Order 3 when the Commission has no power to make such an order. The majority of the Full Bench (Emmanuel C and Walkington C) dismissed ground eight and concluded that the learned Senior Commissioner had power to make this order. The majority found that the industrial dispute was not just about the alleged refusal to employ the teacher, but also about how to resolve the matter if the refusal was found to be unfair. This was addressed by the learned Senior Commissioner's Order 2, which was an order for prospective employment, and, Order 3, that imposed an obligation on the Director General to make payment to resolve part of an industrial matter and not for the payment of salary or work, respectively. In the alternative, the majority found that special circumstances existed that make it fair and right to give retrospective effect to Order 3, or alternatively again, that the learned Senior Commissioner did not err because it was fair and right to make Order 3 given the unique circumstances of the matter. Scott CC (dissenting) upheld this ground and would have quashed Order 3. Scott CC found that the Commission did not have the power to make Order 3 as an employment relationship did not exist for the period prior to the order for employment coming into effect, so there was no industrial matter. Further, Scott CC found that no entitlement to payment can arise where the employee was prevented from working by the wrongful act of the employer. In the alternative, the Chief Commissioner said that if the Commission had the power to order payment of the lost income, special circumstances existed that required the Director General to remedy the unfairness but that this unfairness had commenced prior to 2 October 2017.

Ground nine of the appeal alleged that the learned Senior Commissioner erred in fact and in law in finding that there was a refusal to employ within the meaning of s 7 of the Act, other than on 2 discrete occasions. The Full Bench dismissed this ground and found that the learned Senior Commissioner did not err as the evidence demonstrated that there were repeated requests and repeated refusals, with at least one of those refusals found by the learned Senior Commissioner as not unreasonable.

The final ground of appeal claimed that the Director General was denied a fair hearing and not put on fair notice of a claim arising from the learned Senior Commissioner's reasons for decision that the change of policy referred to in the letter was an alternative basis for the finding that there was an unfair refusal to employ. The Full Bench dismissed this ground saying that the Director General was represented by experienced and diligent counsel who made no request for time to consider the matter or make any reasonable suggestion that counsel was taken by surprise.

The Full Bench agreed with the comments made by the learned Senior Commissioner that the teacher had been treated harshly and unjustly. Emmanuel C and Walkington C further noted that the red flag on the teacher's employment record indicated the Director General's ongoing refusal to employ.

The decision can be read here.

Details 

Created: 10 October 2019

The Commission has dismissed an unfair dismissal application made by a podiatrist. The alleged unfair dismissal occurred following a workplace disagreement between the parties that resulted in the respondent advising the podiatrist that her services were no longer required.

A jurisdictional question was raised by the respondent that the podiatrist was an independent contractor, and not an employee, and as such the Commission is unable to hear the matter. Commissioner Walkington considered that various factors indicated that the podiatrist may be an independent contractor but was ultimately satisfied on the balance that the podiatrist was in fact an employee.

The next question considered was whether the podiatrist's termination was harsh, oppressive or unfair. Walkington C concluded that the podiatrist did not comply with a lawful direction from her employer and had also used abusive language to directly challenge her employer. The Commission found that the podiatrist's conduct caused a destruction in the necessary relationship of confidence between the parties and that because of this the respondent was entitled to summarily terminate their employment. The Commission dismissed the application.

The decision can be read here. 

Details 

Created: 02 October 2019

The Road Freight Transport Industry Tribunal has dismissed a claim by an owner-driver that alleged the respondent contravened an agreement where the applicant would deliver concrete as directed by the respondent ('Cartage Agreement') by summarily terminating it without payment of compensation. The respondent terminated the Cartage Agreement under clause 9.1(i) following the investigation of an incident where the applicant had drove his truck towards a person, which resulted in the truck contacting the person (the incident).

The Tribunal considered the meaning of cl 9.1(i) i, set out below:

"Holcim may terminate the cartage agreement of an Owner granted by this Agreement immediately and without compensation to the Owner:

…

(i) in the event of a fundamental breach by the Owner, or its Driver, of this Agreement, including, but not limited to:

1. Serious and wilful misconduct (including, theft, violence or violent threats and fraud);…"

The Tribunal determined that regardless of the type of conduct or behaviour, the conduct must be a fundamental breach.

The Tribunal then considered the evidence of the incident and concluded that the applicant's conduct, when he continued to drive towards a person who was moments before standing in his clear vision, was both serious and wilful misconduct. Further, that even if the applicant's conduct was not serious and wilful misconduct it would be a serious safety breach under cl 9.1(f) of the Cartage Agreement which would also justify the respondent to summarily terminate it without compensation.

In relation to the applicant's claim that they were denied procedural fairness in the course of the respondent's decision making, the Tribunal found that it does not have jurisdiction to consider general notions of industrial or procedural fairness and that no exception applied. In the alternative, the Tribunal considered that procedural fairness had not been denied to the applicant who had received ample opportunity to explain the incident, was given a copy of meeting notes from the investigation, was shown footage of the incident several times and was given the opportunity to, and did in fact, have a support person present at the incident investigation meetings.

Finally, the Tribunal considered whether the respondent's offer to the applicant of a further five-year contract if they agreed to do certain things induced the applicant to enter the contract. The Tribunal found that the respondent had not misrepresented the contract to the applicant because the applicant received independent advice and none of the evidence suggested that the applicant had felt misled. Also, any prior representations were overtaken by the fact that the parties had entered into a further Cartage Agreement that contained an “entire agreement” type of clause, ruling out any prior representations, which were not, in any event, fraudulent. Additionally, even if a misrepresentation was established, the Tribunal expressed doubt on what relief it could grant.

The decision can be read here.

Details 

Created: 18 September 2019

The Full Bench has unanimously dismissed an appeal against a discretionary decision of the Commission that found that the dismissal of a teacher for substandard performance was not unfair. For an appeal against a discretionary decision to be made out it must be shown that there was an error in the learned Commissioner's decision-making.

The Full Bench considered five grounds of appeal raised by the teacher and found that none of them had been made out.

The Full Bench first found that it was open to the learned Commissioner to conclude that the teacher's performance had been correctly assessed. The Full Bench reached this conclusion after it noted that:

1. the Teacher Registration Board levels of Provisional Registration and Full Registration were directly linked to the "Graduate" and "Proficient" performance measures administered by the Australian Institute for Teaching and School Leadership (AITSL).
2. it was open to the learned Commissioner to find that the teacher's performance was substandard.
3. the appellant complained that the respondent failed to call an important witness at first instance. The Full Bench said that the appellant knew that the witness was not going to be called and never raised an issue or requested to have this witness called.
4. the learned Commissioner did not need expertise or qualifications in the particular subject matter when he heard and considered the evidence.
5. a report into the particular school by an expert review group which was issued before the appellant taught at the school was not relevant.

Secondly, the Full Bench held that the learned Commissioner was correct to find that the teacher had had many opportunities to know and understand the issues about his performance and received a significant amount of support to improve. Any procedural unfairness in the performance management process occurred early on and had not been raised as an issue by the appellant. The Full Bench added that even if this ground was established, it would not be significant enough to uphold the appeal.

Any alleged inconsistency between the oral evidence and the data, when put into context and weighted by the learned Commissioner, was found by the Full Bench as not being significant enough to cause the decision to be overturned. The Full Bench added that the weight given to the evidence at first instance is a part of the discretion afforded to the learned Commissioner.

In a fourth ground, the Full Bench held that the learned Commissioner had considered the evidence of assistance given to the teacher and if there was any improvement in his classroom's behaviour and found that any change in the teacher's performance was not enough to bring him to a satisfactory level.

A final ground of appeal challenged the description of a witness as an expert. The Full Bench determined that the witness was an experienced maths teacher and qualified AITSL assessor who was an expert in assessing performance against the relevant performance measures, even though he had no training in substandard performance.

The Full Bench noted that further issues raised by the appellant at the hearing did not directly relate to the grounds of appeal and commented that for evidence of staff turnover to be considered, there needed to be a clear link between the issue of staff retention and the teacher's performance.

The decision can be read here. 

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.