The Tribunal stated that it has jurisdiction under the Occupational Safety and Health Act 1984 (WA) regarding any dispute arising from employee’s rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during such period.

Background

The applicant was employed by the respondent as a stevedore at the Port of Fremantle, Western Australia. On 27 July 2020, the applicant, along with several other stevedores, ceased working on a crane due to concerns for their safety because of a crack that had been found in the crane railing. Later that day, the respondent advised the applicant that he would be stood down and four hours of pay would be deducted from his salary.

Contention

The applicant contended that he refused to work in accordance with s 26 of the Occupational Safety and Health Act 1984 (WA). Thus, pursuant to s 28(1), he was entitled to be paid and applied to the Tribunal for an order pursuant to s 28(2), for the deducted salary.

Opposing the applicant, the respondent said the application should be dismissed on the basis that the Tribunal lacked jurisdiction to determine it.

The respondent is a ‘national system employer’ within the meaning of the Fair Work Act 2009 (Cth) and has been an employer of ‘waterside workers’ at all material times within the meaning of the FW Act and the Workplace Relations Act 1996 (Cth). The applicant’s employment with the respondent was covered by the Patrick Terminals Enterprise Agreement 2016, which was made and approved under the FW Act.

The respondent submitted that the applicant’s refusal to work on the crane was ‘industrial action’ as described in s 19(1)(b) of the FW Act. Therefore, under s 474(1) of the FW Act, this requires a reduction in pay. Thus, sections 26(1), 28(1) and (2) of the OSH Act were inoperative because they were directly inconsistent with a Commonwealth law, namely Part 3-3, Division 9 of the FW Act.

The applicant disputed that the Tribunal lacked jurisdiction, submitting that ss 26 and 28 of the OSH Act were not directly inconsistent with the FW Act.

The respondent contended that the FW Act intends to 'cover the field’ and regulate exclusively and, this being the case, s 109 of the Australian Constitution (Constitution) renders s 28(1) of the OSH Act inoperative.

The applicant contended that the FW Act does not purport to legislate against an employee being entitled to refuse to work in circumstances set out in s 26 of the OSH Act and in particular does not prohibit payment by an employer to an employee in the circumstances covered by s 26 and s 28 of the OSH Act nor preclude an employee referring a dispute to the Tribunal under s 28(2) of the OSH Act.

The Commonwealth Attorney General (intervening) submitted there was no direct inconsistency. Sections 26(1), 28(1) and (2) of the OSH Act do not ‘alter, impair or detract from’ Part 3-3, Division 9 of the FW Act. No ‘real conflict’ arose from the mere co-existence of these laws. The FW Act does not cover the field as contended by the respondent.

The Attorney General also submitted that if there was s 109 inconsistency between these laws, it was more likely an operational inconsistency. However, it was not yet possible to determine whether such inconsistency exists. Absent findings of fact, the issue was hypothetical and may not need to be decided.

Findings

The Tribunal found that it had jurisdiction to hear and determine the application. This was because the OSH Act provides for application to the Tribunal regarding any dispute arising from employees’ rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during this period.

Where an employee refuses to perform work in accordance with s 26 of the OSH Act, the exception to the meaning of industrial action contained in s 19(2)(c) of the FW Act applies. Thus, the State law is complementary to the Commonwealth law and there is no inconsistency. However, adopting the Attorney General’s approach, the Tribunal refrained from findings concerning whether the applicant’s conduct fell within s 26, because findings of fact or fact and law had not been made.

The decision can be read here.

The Tribunal found that the applicant did not meet the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA) because he provided limited evidence of his work and experience with non-friable asbestos-containing material, which was not satisfactory or verified by a referee.

Background

On 27 May 2021, the applicant applied to WorkSafe for a restricted asbestos removal licence, which was subsequently refused on the basis that his training and experience did not satisfy the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA).

The licence application required that the applicant nominate a person “to provide a detailed description of at least 12 months of verifiable (via referees) experience in asbestos removal that occurred within the last five years from the date of the application”.

The applicant provided four examples of experience. Two examples occurred in March and July 2016. A restricted licence number was not provided for the remaining two examples.

On 2 July 2021, the respondent wrote to the applicant stating that it could only consider one of the examples provided because the others did not meet the application requirements.

In February 2022, a letter sent by the respondent to the applicant stated that his licence application was refused because the applicant had:

1. not provided verifiable evidence and the respondent could not be satisfied that he is able to do asbestos work involving non-friable asbestos-containing materials in a safe and proper manner, or that he has the experience to properly supervise and manage asbestos work done under the licence; and
2. not addressed the respondent’s concerns that his referees did not corroborate the experience he provided.

Contention

The applicant’s grounds of appeal were:

1. the respondent took too long to make its decision;
2. the respondent should have considered all of the applicant’s experience;
3. there is a shortage of people with such licences; and
4. the applicant has organised training with a training service provider so that more people can become qualified to remove asbestos.

The respondent submitted that its decision to refuse the applicant’s licence should be affirmed under s 61A(3)(a) of the OSH Act.  Such decision was made on the basis that the applicant had not provided sufficient evidence of relevant and varied industry experience to demonstrate that he had the skills necessary to supervise and manage asbestos work in a safe and proper manner.

Findings

The Tribunal dismissed the application and affirmed the respondent’s decision because, as contended by the respondent, the applicant had not produced satisfactory evidence.

The applicant provided limited experience, which could only result in a finding that the experience the applicant pointed to in his Licence Application (including the supplementary evidence/example) was not verified by a referee.

The decision can be read here.

The Public Service Appeal Board dismissed the appeal of the respondent’s decision to dismiss the appellant based on the substantiated allegations of excessive use of resources and use of out of service equipment.

While the Board allowed the appeal out of time because the delay was caused by representative error and the appellant presented an arguable case, it found that the appellant's lack of insight into the seriousness of his actions and his refusal to acknowledge the validity of the out of service tag supported the decision for dismissal.

Background

The appellant was employed by the TAFE respondent as a Technical Support Officer – Fabrication, at its Midland campus from 1 September 2007 to 13 April 2022.

On 9 March 2022, the respondent notified the appellant that it was terminating his employment, providing five weeks’ notice, for:

1. contravening the respondent’s Staff Code of Conduct, the Public Sector Code of Ethics, and the respondent’s Information Services Acceptable Use Policy for Staff by using excessive work time and resources on non-work-related matters; and
2. breaching the Code of Conduct, the PS Code, the Occupational Safety and Health Act 1984 (WA), and the respondent’s Occupational Health and Safety Policy by removing an out of service tag from a forklift without authorisation and using the forklift.

The forklift, which was the subject of point 2 above, had been experiencing mechanical issues, including problems with the brakes, emitting a squeaking noise, and other wear and tear. On August 25, 2021, a technician serviced the forklift, identified brake issues, and tagged the forklift as "out of service" due to metal-on-metal brakes and other necessary repairs.

On September 15, 2021, the Senior Supervising Technician observed the appellant driving the tagged-out forklift. The technician informed the appellant that the forklift was tagged out due to brake issues and instructed him to park it. The appellant reportedly dismissed the issue, claiming there was nothing wrong with the brakes and continued to operate the forklift.

The Technician immediately reported the incident to his superior detailing the appellant’s actions and comments. The Technician noted that the appellant claimed the issues with the brakes were "rubbish" and ignored the screeching noise from the brakes during the demonstration. The forklift was retagged and secured to prevent further use.

The Technician also received guidance from a safety consultant regarding the proper procedures for tagging out equipment. The consultant emphasized that tagged-out equipment must not be operated until authorised personnel have removed the tag and ensured safety.

Contentions

The appellant contested his dismissal and appealed to the Board, arguing that he should not have been dismissed.

The appellant's appeal was filed late, on 30 March 2022, approximately four months after it was due on 27 July 2022. He claimed that this delay was due to confusion and representative error. He had sought legal advice but had difficulty securing representation due to financial constraints.

The respondent acknowledged that the appellant's appeal presented an arguable case and did not object to his out-of-time application. They also stated that, aside from defending the appeal, they would not face any specific prejudice if an extension was granted.

 The appellant concedes that he used his work email for personal matters, including sending and receiving personal emails concerning his daughter's legal issue, tenancy matters, the Speedway Commission, movie streaming, cryptocurrency trading, and contesting an infringement. He admits that these emails were not endorsed or approved by the respondent and he should not have utilised his work email for personal matters, instead, he should have refrained from working on personal tasks during work hours.

 The respondent argued that the appellant's use of work hours for personal matters and sending personal emails from his work account were serious actions. The respondent described the allegation against the appellant as "using excessive work time and resources on non-work-related matters," which they equated to time theft, a serious allegation.

 The respondent contended that these actions could undermine the public's confidence in the respondent's responsible use of taxpayer-funded resources and might give the impression that such actions were. It was argued that the appellant's use of the respondent's resources, including his work email, for personal purposes could potentially tarnish the respondent's reputation. External parties might interpret these actions as being carried out on behalf of the respondent, which could negatively affect its image.

 However, the appellant contends that his extensive work conducted from home over 14 years far outweighed the time he spent on personal matters while at work during six months of unauthorised email use. His arguments centre on his belief that his extensive work dedication and personal situation mitigated the alleged misuse of resources.

 Regarding the forklift incident, the appellant contended that he had a deep mechanical understanding and could accurately determine the safety of the forklift. He alleged that the decision to tag out the forklift was influenced by others within the organization, and he claims that the reported issues with the brakes were exaggerated or manipulated to justify servicing. He disputes the notion that the forklift was unsafe and argues that the whole incident was a charade to validate the service of the forklift.

 The respondent contended that the appellant's lack of understanding about the seriousness of his actions demonstrated an absence of insight. It was suggested that this lack of insight was relevant when determining the appropriate penalty for his actions. The appellant argues that he had valid reasons for his behaviour, particularly related to his daughter's situation and that his actions were not as detrimental as portrayed.

 Finding

The Board held that the appellant was blameless for the delay in filing the appeal and found the  representative error was a sufficient reason to extend the time to file the appeal. Further, the Board acknowledged that the appellant had an arguable case in the circumstances. Thus, the appeal was allowed out of time.

The Board found that the appellant did indeed remove an "out of service" tag from a forklift and operated it while knowing it had been tagged out. This conduct was against the respondent's guidelines and procedures. While The appellant contended that the tagging was a façade, the Board did not accept this explanation. It concluded that the tagging was due to genuine concerns about the forklift's safety.

The Board noted that the appellant lacked insight into the seriousness of his conduct. He failed to acknowledge the validity of the out-of-service tag and the potential risks associated with operating a tagged-out forklift. The Board considered this lack of insight as relevant when determining an appropriate penalty.

Despite mitigating factors such as the appellant's age, length of service, and financial situation, the Board found that these factors did not warrant altering the respondent's decision to dismiss him. The Board concluded that the appellant's conduct in both the excessive use of the respondent resources and the out-of-service incident justified his dismissal. The Board ordered that the appeal be dismissed, thereby upholding the respondent's decision to terminate the appellant's employment.

The decision can be read here.

The Commission, under s 40B of the Industrial Relations Act 1979 (WA), implemented several variations to the Farm Employees Award 1985 to align it with contemporary standards, improve clarity, and ensure fairness for farm employees in Western Australia.

 Key changes included adjustments to wages, leave entitlements, and definitions, as well as the inclusion of provisions related to parental leave and domestic violence leave.

Background

The Commission provided notice of its intention to vary the Award to Unions WA, the Chamber of Commerce and Industry, the Australian Resources and Energy Employer Association, the Minister for Industrial Relations, the Western Australian Farmers’ Federation (Inc) and each of the parties to the Award being the Australian Workers’ Union and all named individual employers.

 The commission subsequently convened a conference to seek input from interested parties about the issues with the Award, and the appropriate drafting revisions to address them. Representatives for the Minister and AWU attended the conference.

 The Commission then published notice of the proposed variations to the Award, pursuant to s 40B(2). The Commission also gave notice to the parties named in s 40B(2) and to the Pastoralists and Graziers Association of Western Australia of a hearing to afford them an opportunity to be heard in relation to the proposed variations.

WA Farmers and PGA applied for and were granted permission to intervene on the basis they each had a sufficient interest in the matter.

Contentions

PGA raised concerns about some of the new requirements in the proposed clause 5 'Hours of Work,' particularly the impact on employers, especially concerning minimum hours for part-time workers and written agreements to vary part-time hours. PGA requested a 12-month transitional period to educate its members and allow employers to make necessary changes.

 WA Farmers, representing the Dairy Council, acknowledged that the Award did not currently cover the dairy farming industry. However, they raised concerns about the potential future coverage of dairy farms and the suitability of the proposed 'Hours of Work' provisions for dairy farming activities like milking and calf rearing.

Findings

The Commission implemented several variations to the Award.

 The Award had not been reviewed or substantively varied in over 25 years, with the most recent substantial variation occurring in 1998. Several clauses of the Award referred to laws and industrial instruments that have since been repealed, superseded or have become obsolete. The Award also referred to persons and organisations no longer in existence and contained gendered language. The variations rectified these issues.

 The Commission made the following specific variations to modernise and align the Award with current legislation and industrial practices while ensuring clarity and consistency in its provisions.

1. Title of the Award: The title of the Award was updated to remove the year of the Award, following current naming practices for awards. Additionally, the reference to the Award replacing a 1946 Award was removed for brevity since it no longer served a useful purpose.
2. Term Clause: The term clause, which defined the duration of the Award, was deleted as it was no longer relevant.
3. Definitions Clause: A new definitions clause was inserted, and definitions from other parts of the Award were moved here for clarity.
4. September 1989 State Wage Principles: Clause 2A of the Award, which dealt with the application of the September 1989 State Wage Principles, was deleted because these principles are no longer in effect.
5. Employment Relationship: Clause 5, previously titled 'Contract of Service,' was renamed 'Employment Relationship.' It was modified to align with the provisions of the Pastoral Industry Award 2020 and includes information about types of employment, employment status, and employment conditions.
6. Wages Records (Clause 10): Clause 10, which dealt with wages records, was modified to align with the requirements of the Act. Additionally, Clause 10(2) was made consistent with the provisions of s 49J of the Act concerning entry to investigate breaches.
7. Farm Tradesman Definition: The definition of 'farm tradesman' has been updated to refer more generally to a person who holds a qualification under the Vocational Education and Training Act 1996 (Cth) since there are no specific prescribed vocational education training qualifications for 'farming' under this Act.
8. Trainee Rates of Pay: A new clause was inserted to include trainee rates of pay and conditions of employment derived from the AWU National Training Wage (Agriculture) Award 1994, consolidating conditions for trainees in one place.
9. Parental Leave: The parental leave provisions of the Award were updated to align with the National Employment Standards under the Fair Work Act 2009 (Cth), which apply to all employers and employees in Australia.
10. Long Service Leave: The Long Service Leave Provisions were varied to refer to the provisions of the Long Service Leave Act 1958 (WA).
11. Superannuation (Clause 19): Clause 19, which dealt with superannuation, was updated to remove references to defunct and deregistered superannuation schemes and to address potentially discriminatory clauses. The variations aim to align the superannuation provisions of the Award with the requirements of the Act.
12. Arrangement of the Award: The arrangement of the Award was updated for clarity, logic, and consistency with contemporary industrial instruments.
13. Other Variations: Various substitutions and variations have been made throughout the Award to improve clarity without altering the substantive operation of the clauses.

The Commission made the further variations to ensure compliance with the Minimum Conditions of Employment Act 1993 (WA).

1. Family and Domestic Violence Leave: A new clause was added to address Family and Domestic Violence Leave.
2. Hours of Work (Clause 7): The existing Clause 7 of the Award dealt with hours of work and required that working hours be agreed upon between the employer and the employee, with the condition that all employees should be allowed one full day off each week while also ensuring necessary attention to stock. However, this provision was considered potentially less favourable than s 9A of the MCEA, which restricts employees from being required or requested to work more than 38 hours per week, with reasonable additional hours determined under s 9B. As a result, Clause 7 was modified to align with s 9A of the MCEA.
3. Holidays and Annual Leave (Clause 8): The original Clause 8 of the Award covered both public holidays and annual leave. It had omitted Easter Sunday as a public holiday and referred to Foundation Day instead of Western Australia Day as a public holiday. The clause has been split into two separate sections: one dealing with public holidays and the other with annual leave. The public holiday provisions were updated to reflect current gazetted public holidays, and special public holidays proclaimed under the Public and Bank Holidays Act 1972 (WA) are recognized as public holidays for Award purposes. Additionally, Clause 8(3)(a) was removed because it was found to be inconsistent with the MCEA.
4. Annual Leave (Clause 8 Continued): The provisions regarding annual leave were updated to align with the MCEA. Under the original Award, annual leave accrued after 12 months of continuous service, whereas the MCEA allows for weekly accrual. The Award did not provide for the payment of annual leave in advance, unlike the MCEA, which allows for such payments under s 44. The Award also did not permit annual leave to be taken in one or two periods unless there were special circumstances and mutual consent from the employer, employee, and relevant union. A new clause was inserted to address these differences while preserving other conditions associated with annual leave, including leave loading.
5. Personal Leave (Clause 9): Clause 9, previously titled "Sick Pay," was updated to refer to personal leave rather than sick pay. The changes aligned this clause with the MCEA. Personal leave under the Award was limited to reasons related to personal health or injury, whereas the MCEA allows for personal leave to be taken for illness or injuries affecting a household member of the employee as well as for unexpected emergencies. The Award also accrued personal leave monthly, unlike the MCEA's weekly accrual. Additionally, the Award provided only five days of sick leave in the first year of service, whereas the MCEA allows for two weeks of leave or 76 hours in the first year of service. The Award had restrictions on taking periods exceeding 10 weeks in a year of service as sick leave and did not provide for unpaid personal leave. The modifications aimed to align the Award with the MCEA while retaining more favourable conditions from the Award.
6. Bereavement Leave (Clause 11): Clause 11, which pertained to bereavement leave, was found to be less favourable than s 27 of the MCEA. The changes incorporated the provisions of the MCEA related to bereavement leave.
7. Junior Rates of Pay: The rates of pay for junior employees aged 19 years, 18 years, and 17 years as specified in the Award were found to be 5% less than the junior rates of pay outlined in s 13 of the MCEA. As a result, the junior rates of pay in the Award were increased to align with the legislated minimum rates of pay in the MCEA.

The decision can be read here.

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.

Background

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:

1. 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
2. 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).

Contentions

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.

Allegation 1

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.

Contentions

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.

Finding

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.

Allegation 2

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.

Contentions

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.

Finding

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.

Conclusion

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.