CR 33/2021 – The State School Teachers’ Union of W.A. (Inc.) -v- Director General, Department of Education
The Commission dismissed the applicant union’s claim that an employee’s dismissal was harsh oppressive or unfair because two serious allegations of misconduct were found to be substantiated and justified dismissal.
The Commission found that the basis for the dismissal, the findings resulting from the allegation investigations, was consistent with the evidence, offered a largely accurate summary of the witness evidence, and the analysis and conclusions could reasonably be drawn from the entirety of the evidence. Further, the employee was not prejudiced by delay, provided with a fair opportunity to respond and received procedural fairness.
The employee was a Design and Technology Teacher at Harvey Agricultural College from July 2006 to 10 May 2016, when he was dismissed for making physical contact with a student on 13 August 2015. Such dismissal followed an investigation by the respondent’s Standards and Integrity Directorate.
On 29 May 2018, the Commission found that the dismissal was unfair and ordered the employee’s reinstatement, which occurred in June 2018.
From 30 January 2020 until his dismissal on 7 October 2021, the employee taught at Ellenbrook Secondary College. This dismissal was the result of serious misconduct under clause 11(4) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 for:
- negligence or carelessness amounting to a breach of discipline pursuant to s 80(d) of the Public Sector Management Act 1994 (WA) for an incident on 24 June 2020 involving a Year 10 student injuring his thumb and requiring reconstructive surgery (Allegation 1); and
- misconduct amounting to a breach of discipline pursuant to s 80(c) of the PSM Act for an incident on 25 September 2020 involving physical contact with a Year 11 student in breach of Regulation 38 of the School Education Regulations 2000 (WA) (Allegation 2).
The applicant union applied to the Commission under s 44 of the Industrial Relations Act 1979 (WA).
The Commission was required to decide whether, on the evidence, following a proper inquiry, the respondent had reasonable grounds for holding a genuine belief that the misconduct occurred, and whether the dismissal was harsh, oppressive or unfair in the circumstances.
On 24 June 2020, the employee showed a Year 10 Student how to measure and cut wood using a cut off saw during class. The employee subsequently left the student unsupervised, in contravention of Ellenbrook Secondary College’s 2019 Power Tool & Machine Usage Document. The student’s thumb was injured and required reconstructive surgery.
By letter dated 22 February 2021, the employer informed the employee of Allegation 1. On 15 March 2021, the employee responded to the allegation, stating what he alleged to have occurred, denying the student was left unsupervised, and stating that the student failed to follow his instruction ‘and without my knowledge continued working.’ Further, he stated he was not aware of any documentation and was never informed about the requirements surrounding machinery and the workshops.
On 6 August 2021, the respondent informed the employee that Allegation 1 was substantiated and the proposed action was dismissal. Following the employee’s further response on 20 August 2021, the respondent informed the employee on or about 7 October 2021 that:
- he had committed a breach of discipline;
- it no longer had trust or confidence in him to perform his teaching duties to the required standard;
- his actions are inconsistent with the Department of Education’s values and standards; and
- accordingly, he will be summarily dismissed for serious misconduct pursuant to clause 11(4) of the Award.
The applicant stated that the employee was not guilty of Allegation 1. However, if he was, it did not justify dismissal in the circumstances.
The applicant stated that the Document referred to in the allegation applied to cut off saws and did not apply to the machinery involved in the incident, a compound mitre saw. Thus, the basis for the Allegation 1 investigation is misconceived and there could be no proper basis for a finding of negligence or carelessness. As such, the result was an accident caused by the student using machinery, despite being told not to.
The applicant also contended that the Investigation Report dated 30 July 2021
Further, dismissal is unjustifiable because the employee continued teaching at the school for almost a year and a half, while the disciplinary process was completed, without further incident.
The respondent contended that:
- there is no material difference between a cut off saw and a compound mitre saw;
- even without the existence of the Document, it is reasonable to expect the employee to know to supervise year 10 students when using such machinery;
- there was sufficient evidence for the finding that the employee did not properly supervise the student;
- the employee’s claim that he told the student not to use the machinery is implausible given his evidence that he was unaware of the requirement for supervision of such machinery; and
- the employee continued teaching during the disciplinary process because the alternative was to suspend him without pay.
The Commission found that the Document applies to the saw in use at the time of the incident and to Allegation 1 and it was reasonable for the respondent to proceed on this basis. Further, the Commission found that the employee’s contentions, that he was not aware of the Document and he instructed the student to stop cutting, were unsustainable.
These findings were based on consistent evidence from the investigation given by the student, other students, school officers and other teachers, including another Design and Technology teacher, and contemporaneous documents from the time of the incident. The employee’s evidence was inconsistent with such evidence and contemporaneous documents.
While there were delays during the disciplinary process, these did not prejudice the employee and the respondent discharged its onus of establishing that the employee was guilty of Allegation 1 and the misconduct justified dismissal. The quantity and seriousness of allegations warranted a thorough investigation and the employee was given reasonable time to respond.
On 25 September 2020, the employee was demonstrating brick paving to a class. The employee bent over to work on the paving, when a Year 11 Student put a small rock down the back of his pants. The employee grabbed the shoulder of the student’s clothing, tugged him forward and shouted words to the effect “if you were at a work site it would be more than a pull by a teacher, you could possibly get hit”.
This conduct contravened the School Education Regulations 2000 and the Department’s Code of Conduct. In his first response letter, the employee admitted to making physical conduct with the student but that it was ‘minimal’ and ‘appropriate’. In this letter, the employee stated that the student ran away after putting the putting the rock in his pants, he got up to stop the student and put his hand on the student’s shoulder to calm him.
The Proposed Outcome Letter notified the employee that the investigation was completed, Allegation 2 was substantiated, and the proposed action was dismissal.
The applicant stated that the employee was not guilty of Allegation 2. However, if he was, it did not justify dismissal in the circumstances.
In support of this claim, the applicant contended:
- the conduct did not contravene the Regulations or the Code of Conduct;
- the conduct was reasonable and excused by the Regulations;
- the conduct should be considered within context (ie that the employee was frustrated and alleged safety concerns and that the incident occurred quickly);
- the employee acted with reasonable restraint;
- the employee continued teaching at the school for over a year without further incident;
- the investigation needed to objectively evaluate if a potential risk to the student’s safety existed, which was justifiable under the Regulations, and no such investigation was conducted;
- there was a conflict in the evidence regarding whether the student walked or ran away from the employee after putting the rock in his pants, the investigation report failed to resolve this conflict and there should be a finding in favour of the employee, that the student ran away; and
- the employee was not afforded procedural fairness because the investigation was marred by apprehended bias because a person involved in the investigation of Allegation 1 was also involved in this investigation and the employee was denied the opportunity to address two investigation outcome briefing notes.
The respondent contended:
- there is no credible evidence that the employee made contact with the student to manage him or in the interests of safety;
- the decision to dismiss the employee was fair on a finding that Allegation 2 was made out;
- a single loss of control due to student behaviour is sufficient to warrant the dismissal of a teacher;
- where there are reasonable grounds for the respondent to suspect that a loss of control may occur again, dismissal in the interests of student safety should be inevitable; and
- the rules concerning apprehended bias do not apply to investigations unless the perceived bias reaches a certain level.
The Commission found that it was more likely that the student walked away, based on consistencies between witness evidence and the student’s evidence, despite evidence from the employee and another witness to the contrary. Thus, the employee’s claim that he made physical contact with the student because there was a possibility of danger is unsustainable. Absent a valid reason for making physical contact with a student, physically moving a student by grabbing their clothing is not considered to be minimal or restrained contact.
It was inferred from the report that the investigation did consider the Regulations but ultimately found that the conduct was in contravention. Further, it was reasonable for the report to conclude that, consistent with the Guidelines, the employee should have initially attempted a non-physical intervention, which he did not do. Thus, the report’s conclusions were reasonable in light of all the circumstances.
As with Allegation 1, a disciplinary period of 7 – 8 months between the Allegations Letter and the Dismissal Letter was not prejudicial to the employee. The Commission found that the respondent discharged its onus of establishing that the employee was guilty of Allegation 2 and the misconduct justified dismissal.
Further, the Commission found that the report offered a largely accurate summary of the witness evidence, and the analysis and conclusions could reasonably be drawn from the entirety of the evidence. There were no grounds to suggest that a fair-minded lay observer might reasonably apprehend that the persons involved might not approach the investigation of Allegation 1 and Allegation 2 with an impartial mind.
Finally, the employee was provided with a fair opportunity to respond, including time to reflect and obtain legal advice. The employee was provided with procedural fairness, as part of the obligation on the respondent on instituting disciplinary action, to ensure he received a fair go. Thus, he was afforded substantive and procedural fairness in relation to the dismissal.
The Commission dismissed the applicant union’s application based on the above findings. The Commission was satisfied that the applicant had not discharged the onus to establish that the employee’s dismissal was harsh, oppressive or unfair.
The decision can be read here.