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 The notice was withdrawn, the registration reinstated and the criminal charge was discontinued.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.