Details 

Created: 18 September 2019

The Full Bench has unanimously dismissed an appeal against a discretionary decision of the Commission that found that the dismissal of a teacher for substandard performance was not unfair. For an appeal against a discretionary decision to be made out it must be shown that there was an error in the learned Commissioner's decision-making.

The Full Bench considered five grounds of appeal raised by the teacher and found that none of them had been made out.

The Full Bench first found that it was open to the learned Commissioner to conclude that the teacher's performance had been correctly assessed. The Full Bench reached this conclusion after it noted that:

1. the Teacher Registration Board levels of Provisional Registration and Full Registration were directly linked to the "Graduate" and "Proficient" performance measures administered by the Australian Institute for Teaching and School Leadership (AITSL).
2. it was open to the learned Commissioner to find that the teacher's performance was substandard.
3. the appellant complained that the respondent failed to call an important witness at first instance. The Full Bench said that the appellant knew that the witness was not going to be called and never raised an issue or requested to have this witness called.
4. the learned Commissioner did not need expertise or qualifications in the particular subject matter when he heard and considered the evidence.
5. a report into the particular school by an expert review group which was issued before the appellant taught at the school was not relevant.

Secondly, the Full Bench held that the learned Commissioner was correct to find that the teacher had had many opportunities to know and understand the issues about his performance and received a significant amount of support to improve. Any procedural unfairness in the performance management process occurred early on and had not been raised as an issue by the appellant. The Full Bench added that even if this ground was established, it would not be significant enough to uphold the appeal.

Any alleged inconsistency between the oral evidence and the data, when put into context and weighted by the learned Commissioner, was found by the Full Bench as not being significant enough to cause the decision to be overturned. The Full Bench added that the weight given to the evidence at first instance is a part of the discretion afforded to the learned Commissioner.

In a fourth ground, the Full Bench held that the learned Commissioner had considered the evidence of assistance given to the teacher and if there was any improvement in his classroom's behaviour and found that any change in the teacher's performance was not enough to bring him to a satisfactory level.

A final ground of appeal challenged the description of a witness as an expert. The Full Bench determined that the witness was an experienced maths teacher and qualified AITSL assessor who was an expert in assessing performance against the relevant performance measures, even though he had no training in substandard performance.

The Full Bench noted that further issues raised by the appellant at the hearing did not directly relate to the grounds of appeal and commented that for evidence of staff turnover to be considered, there needed to be a clear link between the issue of staff retention and the teacher's performance.

The decision can be read here. 

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

Tuesday, 26 March 2019

The Occupational Safety and Health Tribunal (the Tribunal) has dismissed an application for payment of an unspecified amount for continued pay and benefits entitlements and a loss of earnings arising from alleged discrimination against a safety and health representative in relation to employment.

The Tribunal was comprised of Commissioner Walkington who considered the entitlements claim and noted that there is a mandatory process in place for resolving health and safety issues in the workplace, which include circumstances where a worker may cease work without loss of wages and entitlements. The Tribunal further considered that it is necessary for any employee wishing to make a claim to demonstrate that they have refused to work on particular tasks, have notified the employer of their belief of the risk to their safety and health and have made themselves available for alternate duties if it is safe to do so. The Tribunal found that the applicant’s actions were not consistent with the provisions of the legislation and regulations.

The Tribunal then considered that persons who are safety and health representatives or are performing or have performed any function as a safety and health representative can make a claim for discrimination against a safety and health representative in relation to employment. The Tribunal found that the applicant was not eligible to bring this application because the applicant had not demonstrated that he was a validly elected safety and health representative.

The Tribunal dismissed the referral for lack of jurisdiction.

The decision can be read here.

Wednesday, 27 February 2019

The Road Freight Transport Industry Tribunal has dismissed two claims made by the applicant arising from an owner-driver contract between the applicant and the respondent.

The Tribunal considered the first of the two issues raised by the applicant and found that they had not brought any evidence to show that the respondent had engaged in unconscionable conduct in relation to the acquisition of the applicant's services. The Tribunal found that the applicant did not provide any information on the circumstances leading to him entering an unfair owner-driver contract or that the owner-driver contract was uncommercial or unfair in any way.

The Tribunal considered the second of the two issues raised by the applicant and found that there was no evidence or argument brought which suggested that the price that the applicant was paying for fuel, a discount of 11%, was not substantially cheaper than bowser price and contrary to the owner-driver contract.

The Tribunal dismissed the applicant's claims.

The decision can be read here.

Thursday, 11 October 2018

The Occupational Safety and Health Tribunal has decided on the number of Safety and Health Representatives (SHRs) and the manner of electing such representatives for a bus depot that services primarily CAT buses.

Senior Commissioner Kenner found that there is no standard formula to determine the appropriate number of SHRs for a workplace and it will instead depend on the circumstances of that workplace. In making such a determination it is necessary to look at the number of employees, working arrangements and hazards, the need for communication between SHRs and employees, the need for SHRs to be available to communicate with the employer on health and safety issues and for the SHRs to be visible and available to respond promptly to incidents and accidents.

The Senior Commissioner noted that the 'workplace', as defined in the Occupational Health and Safety Act, in this circumstance includes the depot and the buses – even when in transit. Evidence was given on the nature of health and safety hazards faced by CAT bus drivers and the limitations to communication during a shift with other employees and the control centre. The Senior Commissioner accepted that the level of hazards in relation to CBD driving was high and that CAT bus drivers face additional hazards in the city environment.

The Senior Commissioner determined that there will be 2 SHRs for each shift, 4 in total, and that a 'first past the post' method of voting following the Electoral Commission's preferred system of voting for only one candidate. The Transport Workers Union and the respondent will jointly conduct elections for any casual vacancies.

The decision can be read here.