The Full Bench has unanimously dismissed an appeal against the decision of the Commission on remittal of a teacher who dismissed on grounds of ill health.

Background

The State School Teachers’ Union of WA (SSTU) alleged that its member, a teacher, was unfairly dismissed from his employment with the Department of Education on grounds of ill health. The SSTU sought an order that the teacher be reinstated or re-employed at a school other than Busselton Senior High School (BSHS).

At first instance, the Commission found that the dismissal of the teacher was unfair but declined to reinstate him or order he be re-employed. An order for the payment of compensation was made.

The first appeal

On appeal to the Full Bench, the Full Bench suspended the Commission’s decision and remitted the matter back to the Commission for further hearing. The matter to be considered by the Commission was the teacher’s capacity to return to work and the practicability of being reinstated or alternatively re-employed at a school other than BSHS.

Remittal

On remittal, the Commissioner concluded on the evidence, including medical evidence obtained by the SSTU, that as at the time of the remittal, the teacher was fit for work at a school other than BSHS.

The Commission also dismissed an application under s 27(1) of the Industrial Relations Act 1979 (WA) brought by the Director-General of the Department of Education, that the proceedings should be dismissed because the SSTU failed to disclose a medical certificate and report at the first instance hearing. The Commission reduced the amount of compensation awarded to the teacher by 50% because of his failure to mitigate loss and disclose documents at the first hearing.

A summary of the matters leading up to this appeal can be found here.

Second appeal

The Director-General appealed, setting out three main issues in the appeal grounds, being the dismissal of the s 27(1) application; the fitness for work reinstatement issue; and the lack of trust and confidence reinstatement issue.

Section 27(1) application

Section 27(1)(a) is a power to dismiss an application or refrain from further hearing or determination.

Senior Commissioner Kenner, with whom Chief Commissioner Scott and Commissioner Emmanuel agreed, noted that underlying the Director General’s grounds on this issue, was an assertion of improper conduct by the SSTU in failing to alert the Director-General and the Commission at the first hearing of a further medical certificate that related to the teacher’s fitness for work.

The Director-General made several submissions in relation to the s 27(1) application, including that the Commissioner erred in law by mistaking the facts relating to the teacher’s fitness for work, failing to consider the prejudice to the Director-General by reason of the failure to disclose the second medical certificate, and failing to identify and consider several important factors relevant to the public interest.

The Full Bench found that the Commissioner made no factual error as asserted by the Director-General, had adequately assessed the impact of the failure to disclose the second medical certificate, and correctly considered that it was impossible to know, in retrospect, the impact of the SSTU’s possession of the second certificate.

The Full Bench found that the Director General’s assertion that the teacher was complicit in failing to disclose the second certificate was a ‘long bow to draw’ and that there was no direct evidence to prove the assertion. It noted that, to warrant the summary dismissal of proceedings to the great prejudice of the teacher, serious misconduct must have been demonstrated.

The grounds relating to the s 27(1) application were dismissed.

Reinstatement – fitness for work

The Director-General argued that the Commissioner erred in law in applying the wrong test as to whether the teacher was ‘fit for work’ and met the inherent requirements of a Senior Teacher position, including the ability to perform the work safely without risk to themselves or to others. The crux of the Director General’s contentions was directed at the prospect of a relapse of the teacher’s prior adjustment disorder and the Commissioner’s failure to consider the risk of this.

The Full Bench found that it was open for the Commissioner to accept the evidence of the expert witness, a professor, conclude that the teacher was fit for work, and find that the possibility of a relapse at another school was only speculative.

The grounds relating to fitness for work were dismissed.

Reinstatement – trust and confidence

On remittal, the Commissioner had concluded that the documents and communications between the teacher and others did not establish such a loss of trust and confidence to make a return to work a difficulty.

The Director-General made several submissions in relation to the trust and confidence issue. It was alleged that it was not feasible for the employment relationship to be re-established in light of the teacher’s lack of trust and confidence in the Director-General and the Department, which was expressed through the tone and words used in his correspondence.

The Full Bench found that none of the material relied upon by the Director-General established a case of a loss of trust and confidence in his workplace of a schoolteacher in a classroom setting, or in the interaction between with other teachers or principals with whom he may work with.

Instead, the Full Bench found that the teacher had legitimate concerns as to the difficulties experienced at BSHS. It found that it was open for the Commissioner to conclude that the teacher was well-intended, to improve not only BSHS but also the work environment for teachers generally.

Chief Commissioner Scott also noted that the teacher’s correspondence with the Director-General was expressed in a manner that was not disrespectful or discourteous, and there was nothing to suggest a breakdown of trust and confidence in the parties’ communications.

The grounds relating to trust and confidence were dismissed.

Adequacy of reasons

The Full Bench also found that whilst overly brief, the Commissioner’s reasons on remittal were adequate. Scott CC also noted that the reasons would have been enhanced for the purposes of a better understanding of them if they were more detailed.  

The decision can be read here.