Archive: Nov 1, 2019, 12:00 AM
Full Bench finds no appellable error was established
- Created: 01 November 2019
The Full Bench has unanimously dismissed three appeals by a teacher who was dismissed by the Department of Education. The Commission at first instance found that the teacher was not entitled to challenge three separate disciplinary actions against him. The learned Commissioner found that two applications ought to be dismissed because the teacher had excessively delayed bringing the proceedings. A third application was dismissed on the basis that the teacher had signed a Deed of Settlement (the Deed) that barred him from bringing any claim.
For an appeal against a discretionary decision to be established it must be shown that there was an error in the Commissioner's decision-making. The Full Bench dismissed all six of the grounds of appeal brought by the teacher. The grounds alleged that the learned Commissioner had erred by not having regard to considerations such as the hardship to the teacher; the public interest and interests of employees generally; the lack of prejudice to the Department; that the learned Commissioner had prejudged the teacher after the teacher had admitted to wrongdoing; that investigation reports had prejudiced the teacher's case or that the learned Commissioner was biased against the teacher.
The Full Bench commented that the learned Commissioner had considered the issue of hardship to the employee if the claim was dismissed and that the teacher had made a conscious decision at the material time to not challenge the historical claims. The Full Bench also noted that two of the grounds of appeal did not identify any error by the learned Commissioner, as is required for an appeal to be brought against a discretionary decision. Further, the Full Bench found that the learned Commissioner had not displayed bias or prejudice towards the teacher, that the Deed was conclusive of settlement and contained the teacher's promise that he would not commence further proceedings. It was also found that there was no evidence to suggest that the teacher had been misled by the Department when he signed the Deed.
The Full Bench determined that no appealable error in the learned Commissioner's discretionary decision had been established and dismissed all three appeals.
The decision can be read here.