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.

The Industrial Magistrate, in a supplementary Reasons for Decision, has ordered that a maintenance company pay a pecuniary penalty of $59,850 to an ex-employee for contravening civil remedy provisions of the Fair Work Act 2009 (Cth) (FWA) concerning a range of leave and record-keeping provisions.

In the first reasons, Industrial Magistrate Flynn upheld a claim for payments made under the FWA for accrued annual leave, public holidays, overtime and leave loading. A summary of those reasons can be read here.

The supplementary reasons are in relation to an application by the ex-employee for a pecuniary penalty pursuant to the FWA.

The ex-employee submitted that the appropriate total of penalties to be imposed should be $105,000. He claimed that the company engaged him as a sham contractor, applied illegitimate pressure to sign a waiver document and that its conduct could be described as a gross failure to comply with the FWA. The ex-employee also called for a substantial personal deterrent penalty as the company expressed no contrition and submitted that, as an unskilled older worker, is unlikely to work again.

The company submitted that the appropriate penalty should be $23,121. It submitted that it made an honest mistake in characterising the claimant’s arrangement and legal relationship, findings of ‘illegitimate pressure’ and ‘economic duress’ was isolated and occurred once and that it had taken adequate corrective action. The company rejected the ex-employee’s claims that it deliberately set out to evade the law or misrepresent the arrangement to the ex-employee.

Industrial Magistrate Scaddan found that her reading of the first reasons did not reveal that Flynn IM found, or inferred, that the company misrepresented the arrangement between the parties, engaged in deceitful conduct, or gave rise to the consideration of a sham arrangement. Her Honour also determined that the company did not attempt to ‘hide’ any contraventions and had taken further steps to ensure future compliance with the FWA. However, her Honour considered the fact that the ex-employee is an unskilled worker and suffered a loss (being the actual entitlements) that was reasonably significant.

Scaddan IM found that the appropriate penalty to be paid to the ex-employee was $59,850.

An order has been made accordingly.

The decision can be read here.

The Western Australian Industrial Appeal Court (IAC) has dismissed an appeal against the decision of the Full Bench of the Western Australian Industrial Relations Commission on the basis that the Full Bench made no error in the construction or interpretation of the Teacher Registration Act 2012 (WA) or the Public Sector Management Act 1984 (WA) (PSM Act).

The appellant, a teacher, was dismissed from his employment by the Director General of the Department of Education, on the ground that his performance as a teacher was substandard.

At first instance

The appellant applied to the Commission claiming that he had been harshly, oppressively or unfairly dismissed. He claimed that the process followed to determine that he was performing at a substandard level was flawed and that, in any event, he was not a substandard teacher.

Commissioner Matthews made several findings related to the appellant’s ineffective methods of teaching, poor communication with students, unwillingness to closely monitor the class and inflexibility in tackling problems.

Matthews C referred to the appellant’s complaint raised in his closing submissions that he was incorrectly assessed against the ‘proficient’ level rather than the lower ‘graduate’ level in the standards administered by the Australian Institute for Teaching and School Leadership (AITSL).

Matthews C found the applicant’s performance to be substandard regardless of whether he had considered him to be a ‘proficient’ or ‘graduate’ teacher in relation to the AITSL standards.

The application was dismissed.

Appeal to the Full Bench

On appeal, the Full Bench unanimously found that Matthews C identified the correct statutory requirements under s 79(2) PSM Act and had, in the application of the PSM Act, considered the appellant’s performance in terms of both standards.

Chief Commissioner Scott noted that the appellant had asserted that he was a proficient teacher and presented himself as being an experienced and competent teacher. She noted that during the process of his performance being assessed, the appellant did not complain that he was being assessed against the wrong standard. She found that there was sufficient evidence for Matthews C to conclude that the appellant’s performance was substandard, whether he was assessed at the ‘proficient’ or ‘graduate’ level.

The appeal was dismissed.

Appeal to the IAC

The appellant contended that the Full Bench erred in the construction or interpretation of s 79(2) PSM Act read with the Teacher Registration Act by finding that he could be assessed at the ‘proficient’ level, a career level he had not reached. The appellant argued that the respondent must assess him at the career level he attained for the purposes of registration under the Teacher Registration Act, that is, the lower ‘graduate’ level.

The IAC found that it was not necessary for the Full Bench to decide whether the s 79(2) PSM Act required the respondent to assess the appellant’s performance at the ‘graduate’ level. The IAC determined that this was because the Full Bench did not rule that the appellant could be assessed at the ‘proficient’ level, but instead that it was open to Matthews C to make findings based on the evidence and to conclude that the appellant’s performance was substandard.

The IAC concluded that the relevant finding of the Full Bench did not disclose an error in the construction or interpretation of the Teacher Registration Act or the PSM Act.

The appeal was dismissed.

The decision can be read here.

Details  Created: 22 October 2020

The Western Australian Industrial Relations Commission (WAIRC) has unanimously dismissed an appeal against the removal of a police officer over his conduct relating to secondary employment. The WAIRC found that the Commissioner of Police was entitled to have lost confidence in the integrity, honesty and conduct of the officer and that his removal was not harsh, oppressive or unfair.

During 2015 and 2016, the officer was criminally and managerially investigated in relation to matters associated with his secondary employment in which he operated a bakery.

The reasons the Commissioner lost confidence in the officer were that the officer:

• lied to detectives and was deceptive on a number of occasions about a number of issues when they questioned him in relation to the alleged theft of bakery equipment;
• removed bakery equipment from the premises he had previously rented without legal entitlement to do so;
• disobeyed a lawful order by continuing to perform secondary employment after his approval to do so had been rescinded and he was directed to immediately cease the secondary employment;
• conducted aspects of his secondary employment whilst on duty and in police uniform. This conduct included receiving money from a customer of the bakery, promoting his bakery products and making telephone calls;
• lied to internal investigators during a managerial interview about undertaking secondary employment after his permission to perform it had been rescinded; and
• associated with a known criminal. This included employing him, even though he suspected he was using drugs and dealing drugs from the bakery’s truck. The officer also contacted the prosecutor to have charges against the man withdrawn because he needed him to operate the business.

The officer appealed against his removal on the basis that it was harsh, oppressive, or unfair. He argued it was not reasonable open for the Commissioner:

1. to conclude that he was guilty of the wrongdoing alleged of him, and;
2. to have removed him for any alleged wrongdoing that is provable against him, and thus the removal was not justified to maintain the proper functioning of the Police Force.

The WAIRC dismissed both grounds of appeal. It found that, on the evidence, the Commissioner was entitled to conclude that the officer was guilty of the wrongdoing alleged of him in all but one minor aspect of those reasons. The WAIRC also found that the officer’s attitude towards his obligations and responsibilities as a police officer were subjugated to his secondary employment and commercial interests. It found that it led him to act contrary to his obligation, and that his removal was in accordance with the public interest.

The WAIRC concluded that there was there was good reason why the Commissioner would have ceased to have confidence in the officer and to take removal action. To do so was not harsh, oppressive, or unfair.

The WAIRC also expressed concern about police officers undertaking secondary employment given the real potential for conflict with the duties and obligations as police officers.

The appeal was dismissed.

The decision can be read here.

The Commission has issued an order to waive the observance of Rule 7 of the rules of the Health Services Union of Western Australia (Union), to enable the Union to hold its 2020 election of committee members later than the time required.

Rule 7 of the Union’s rules requires that nominations for positions of members of the Committee of Management are required to be posted to the Returning Officer so that the Returning Officer receives them no later than 5pm on 31 October 2020.

The Union’s Secretary sought an order to extend that time to no later than 5pm on 11 November 2020. By affidavit, she set out the circumstances in which she wrote to the Registrar of the Commission requesting the conduct of an election for the vacant positions in the committee. On 30 September 2020, the Registrar declared that the request had been duly made and that she would arrange with the Electoral Commissioner for an election.

However, on 12 October 2020, the Western Australian Electoral Commission informed the Union that it was not able to meet the deadline of nominations. On that basis, the Union would not be able to conduct the elections within the timeframe set out in the Rule.

Chief Commissioner Scott considered the evidence and was satisfied that it was appropriate to make the order sought. She noted that the issue was related to the practicability of the Electoral Commission to meet the timeframes required by the Rules, but determined that the elections must take place and in accordance with proper procedure.

Scott CC has issued an order waiving the requirement to observe Rule 7 of the Union’s rules and to enable the nominations to be posted to the Returning Officer so that they are received no later than 5pm on 11 November 2020.

The decision can be read here.