WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2009 WAIRC 00283

DELIVERED : FRIDAY, 15 MAY 2009

FILE NO. : FBA 2 OF 2009

Appellant

AND

The State School Teachers' Union of W.A. (Incorporated)

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner J L Harrison

Citation : 2009 WAIRC 00128

File No : C8 of 2009

CatchWords:

Industrial Law (WA) - Appeal against interim order reinstating teacher to full duties - Public interest  in considering the weight to be accorded to the loss of confidence of Director General in a teacher - Leave to appeal granted - Exercise of discretion - Whether there was an appealable error - Principles to be applied - Commission considered Director General's loss of confidence in employee - Whether adequate weight given to the Director General's loss of confidence in employee - Weight to be accorded dependent on facts and circumstances before the Commission - No identifiable error in the reasons - Appeal dismissed.

Legislation:

Industrial Relations Act 1979 (WA), s7, s44, s44(6)(ba), s44(6)(bb), s44(6)(bb)(ii), s49(2), s49(2a)

Public Sector Management Act 1994 (WA), Part 5, Division 3

Result:

Leave to appeal granted.

Application dismissed.

Representation:

Counsel/Advocate:

Appellant : Mr R J Andretich (of Counsel), by leave

Respondent : Mr M Amati, Industrial Advocate

Case(s) referred to in reasons:

Brown v President, State School Teachers Union of WA (Inc) (1989) 69 WAIG 1390

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Jago v District Court (NSW) (1989) 168 CLR 23

Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79

Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247

Norbis v Norbis (1986) 161 CLR 513

State School Teachers’ Union of WA (Inc) v Director-General of the Department of Education and Training (2008) 88 WAIG 2049

The State School Teachers’ Union of WA (Inc) v Director-General of the Department of Education and Training (2008) 88 WAIG 698

Case(s) also cited:

Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union, Western Australian Branch (2003) 83 WAIG 3556

G & M Partacini T/as Bayswater Powder Coaters v The Shop Distributive and Allied Employees’ Association of WA (2005) 85 WAIG 51

Miles & Ors T/as The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch (1985) 65 WAIG 385

Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of WA and Ors (1989) 69 WAIG 990

State School Teachers Union of WA (Inc) v Honourable Minister for Education (1990) 70 WAIG 21

Reasons for Decision

RITTER AP:

Introduction

1         The appellant, whom I will call the Director General, seeks to appeal against a decision of the Commission, to the Full Bench pursuant to s49(2) and s49(2a) of the Industrial Relations Act 1979 (WA) (the Act).  It is accepted by the Director General that the decision appealed against is a “finding” as defined in s7 of the Act.  This is because the order made did not “finally decide, determine or dispose of the matter to which the proceedings relate”.  Accordingly, pursuant to s49(2a) of the Act, an appeal does not lie “unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie”.  This issue will be later considered.

2         The order which is sought to be appealed was made by the Commission on 23 March 2009.  Essentially, the order required the Director General to reinstate Ms Catherine Motteram to her former employment as a state school teacher.  Other orders made at the same time, about the discovery of documents, are not sought to be impugned.

Background

3         The relevant background is that the present respondent, whom I will call the SSTU, applied to the Commission for a compulsory conference under s44 of the Act.  That application was made on 27 February 2009.  The application sought an order to quash a decision made by the Director General to dismiss Ms Motteram from her employment.  The dismissal had taken effect on the date on which the application was filed.

4         Prior to her dismissal, Ms Motteram had been a state school teacher employed at Atwell College.  The grounds of the application were that the disciplinary process against Ms Motteram was “unfair, oppressive and unduly prejudiced; as well as unlawful”.  A schedule attached to the application amplified these grounds in detail.

5         Amongst other things the application sought an interim order that Ms Motteram be reinstated to her position until the application was “fully heard and determined by the Commission”. 

6         The dismissal of Ms Motteram occurred after an inquiry and investigation had occurred under the auspices of the Public Sector Management Act 1994 (WA) (the PSMA).  The inquiry was into a charge that “between March 2007 and August 2007 at Albany, Ms Motteram established and maintained an inappropriate relationship with [a student at the] North Albany Senior High School”.  At that time, Ms Motteram was the head of the music department at North Albany Senior High School and the student was taking music as a TEE (Tertiary Entrance Examination) subject.  In summary, Ms Motteram’s dismissal occurred because the Director General had lost confidence in her ability to properly carry out the duties of a state school teacher.  In particular, this was because of the nature and extent of the contact which Ms Motteram had with the student during the relevant period.  It is appropriate to note however that it was not alleged there was any inappropriate physical contact or romantic relationship between Ms Motteram and the student.

7         The inquiry which was conducted under the auspices of the PSMA found that Ms Motteram’s contact with the student constituted a serious breach of discipline.  After receiving submissions from the SSTU on the penalty which should be imposed, the Director General informed Ms Motteram that her employment was terminated as her actions were “totally inappropriate and inconsistent with community expectations of what constitutes an acceptable professional relationship between a teacher and a student”.

The Conference

8         Following the filing of the application under s44 of the Act, the Commission convened a conference on 3 March 2009.  The conference did not resolve the dispute.  No agreement was reached as to either the interim or final orders sought by the SSTU.  Accordingly, the Commission required the parties to file written submissions about the application for interim orders.  These were duly filed by the SSTU and the Director General on 5 March 2009 and 9 March 2009 respectively.  As mentioned, the Commission made its order on 23 March 2009. 

Jurisdiction to Make the Order

9         The order was made under the power provided in s44(6)(bb) of the Act.  In particular s44(6)(bb)(ii) provides that “in the case of a claim of harsh, oppressive or unfair dismissal of an employee, [the Commission may] make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim”.  The Director General did not submit that the terms of the order made were outside the scope of this power.

The Reasons for Decision

10      The order took the common form of setting out the reasons for decision in a lengthy preamble and recitals. 

11      The order commenced by setting out the background to the seeking of interim orders and the orders which were sought.  The reasons then summarised the submissions in support of the application for interim orders made by the SSTU.  This was by way of 10 dot points including numerous sub‑dot points.  The following is a summary of what is there recorded.  The SSTU submitted the test to be applied in deciding whether the interim orders should be made was as set out in Brown v President, State School Teachers Union of WA (Inc) (1989) 69 WAIG 1390.  The SSTU argued that in dismissing Ms Motteram the Director General had failed to take into account relevant facts and circumstances.  These included that Ms Motteram had been employed by the Director General as a teacher for 14 years and not been the subject of any alleged misconduct prior to the present allegation.  It was submitted that Ms Motteram’s interaction with the student was not inappropriate and that the findings made in the inquiry were not sustainable on the balance of probabilities.  It was also argued that the inquirer did not recommend the termination of Ms Motteram’s employment and that she had been teaching since the allegation was raised, without any issues arising about her behaviour or performance. 

12      It was contended the dismissal of Ms Motteram was unlawful for reasons including a failure to provide procedural fairness or properly apply the provisions of Part 5, Division 3 of the PSMA. 

13      The SSTU also submitted the respondent would not suffer any detriment if the interim order for reinstatement was issued, however Ms Motteram would suffer “substantial detriment”.  This was because of her “extensive financial commitments” and that she would have difficulty finding a teaching position until the final determination of the application, as the Director General is the largest employer of teachers in Western Australia. 

14      It was also argued that if interim orders were made they were not irreversible and the present application had been promptly made. 

15      The Commissioner next summarised the submissions of the Director General against the interim reinstatement order being issued.  This was in the same dot point format.  The submissions included that Ms Motteram had “frequent and inappropriate out of hours contact with the student despite being advised by her Principal in March 2007 to stay within the professional boundaries between student and teacher …”.  It was also asserted that despite being advised of these concerns Ms Motteram “made no apparent attempt to reduce the level of out of hours contact with the student”.  It was also submitted that “teachers occupy a position of trust and as their ongoing employment is dependent upon public confidence they should therefore not put themselves in a position where suspicions arise as to the propriety of their dealings with students”.  The decision of State School Teachers Union of WA (Inc) v Director General of the Department of Education and Training (2008) 88 WAIG 2049 at 2060 was cited in support of this contention.  Of particular relevance to the appeal is the following submission which was made by the Director General and set out by the Commissioner:

“… the Director General has lost confidence in Ms Motteram's ongoing suitability for employment as a teacher as she did not demonstrate the requisite judgement and appreciation that a teacher must have with respect to his or her conduct with students and where an employer has lost confidence in an employee occupying a position of trust it would not be a proper exercise of the power granted under s 44 of the Act to order re-employment; …”

16      The Commissioner said the matter before her was an “industrial matter” and the Commission had jurisdiction to make the interim order sought.  The Commissioner then said that she had formed the view that “an interim order should be considered in this instance pending arbitration of the issues in dispute; …”.

17      The Commissioner quoted from the Brown decision and said this was the relevant test to apply in deciding whether to make the interim order.

18      The Commissioner then said that the “issuance of interim orders needs to take into account the interests of both parties without reaching any concluded view about the merits of such an application …”.  The Commissioner said she had formed the view that it was “just that an interim reinstatement order” should issue.  The Commissioner expressly recorded that this view was formed “after considering the arguments put by both parties”.  With respect to the interim reinstatement order the Commissioner said her decision was supported by forming “preliminary views” which were set out in four numbered points as follows:

“1. On the information currently before me it is my view that the applicant has demonstrated that there may be substantial issues to be tried in relation to Ms Motteram’s termination with respect to the merits of this case and the manner of the investigation and inquiry and there is a prima facie case for relief if the applicant can demonstrate its case at hearing;

2. In issuing an interim reinstatement order I also take into account the applicant’s submissions that prior to the respondent’s investigation and inquiry into Ms Motteram’s actions she has not been subject to any other disciplinary proceedings and since leaving North Albany Senior High School no other issues have been raised about her behaviour or performance.  Additionally, Ms Motteram has been highly regarded as a music teacher at schools where she has previously worked;

3. I find that the balance of convenience in relation to whether or not the interim orders sought should issue lies with the applicant in this instance as I accept that Ms Motteram will have difficulty obtaining alternative employment and I accept that Ms Motteram will continue to suffer a financial detriment if an interim reinstatement order does not issue;

4. I find that the issuance of a reinstatement order pending the issue of Ms Motteram’s ongoing employment with the respondent being dealt with is not irreversible and I accept that this application was lodged expeditiously as it was lodged on the same day Ms Motteram received her letter of termination; …”

19      A fifth numbered point was set out in support of the making of the discovery orders.

20      The relevant order was that Ms Motteram “be reinstated on full salary, without any loss of pay, entitlements and/or continuity of service, to a teaching position undertaking her normal duties at a school to be agreed between the parties until this application has been heard and determined by the Commission”.  It was also ordered that there be liberty to apply in relation to this and the other orders made.

Facts Subsequent to the Order

21      It is appropriate to record that the order made by the Commission has been acted upon.  Ms Motteram has been reinstated to her position as a school teacher at Atwell College and has proceeded to perform her duties as such.  An application to stay the operation of the interim reinstatement order was dismissed by me on 21 April 2009.  The substantive application is to proceed to an arbitral hearing although a date has not as yet been set. 

The Notice of Appeal

22      The notice of appeal contained three grounds.  The first pleaded that the Commissioner erred in law by “giving no or insufficient weight to the conclusion that the Appellant had lost confidence in Ms Motteram as a teacher …”.  The second ground was that, essentially for the same reason as the first, it was “inappropriate” to have made the order.  The second ground was not independently argued and its contents were wrapped up in the submissions made in support of the first ground.

23      The third ground was that to the extent that the order was made under s44(6)(ba) of the Act, there was no finding or evidence that the order was necessary to prevent, enable or encourage those matters set out in that subparagraph.  This ground was not argued by counsel for the Director General.  He quite properly conceded that the orders did not purport to be made under s44(6)(ba) of the Act.  Ground 3 need not therefore be further considered.

24      The notice of appeal also set out the reason why it was contended that leave to appeal under s49(2a) of the Act should be granted.  In summary this was because it was in the public interest for the Full Bench to decide the significance “required to be given to the loss of confidence by an employer in an employee holding a special position of trust, such as a teacher,” when an order for interim reinstatement is sought.

Leave to Appeal

25      The first issue to decide is whether leave to appeal should be granted.  In my opinion it should.  This is because the subject matter of the proposed appeal is of sufficient importance so that an appeal should lie.  The subject matter of the appeal meets the tests described in Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 at [13]-[15] and the cases there referred to.  This is for the following reasons.  State school teachers are public sector employees.  There are a large number of them throughout the state.  They occupy an important position in the community in educating school children.  If a state school teacher is terminated because the Director General loses confidence in them, then that in itself is a matter of community or public interest.  So too is whether the Commission, following an application to it, reinstates the teacher pending the determination of a challenge to the dismissal on the basis that it was unlawful or unfair.  In determining such an application, the question of the significance to be given to the loss of confidence by the Director General is important.  It is important to the Director General, state school teachers and the public who will be affected by the decisions made by the Commission.  Accordingly, as I have said, leave to appeal should be granted.

Principles to be Applied

26      The Director General accepted that the order made by the Commission was a discretionary decision.  As such, the decision is accorded significant deference by the Full Bench and there are limited circumstances in which such an order should be set aside.  In my opinion those limitations are of particular significance in determining the appeal.

27      The relevant principles were set out in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 as follows:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

28      As there stated an appeal against a discretionary decision cannot be allowed simply because the appellate court would not have made the same decision.  The reason why this is so was explained in the joint reasons of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]‑[21].  At [19] their Honours explained by reference to the reasons of Gaudron J in Jago v District Court (NSW) (1989) 168 CLR 23 at 76, that a discretionary decision results from a “decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’”.  Instead “the decision-maker is allowed some latitude as to the choice of the decision to be made”.  At [21] their Honours said that because “a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process”.  Their Honours then quoted part of the passage of House v King which I have quoted above. 

29      Similarly, Kirby J in Coal and Allied at [72] said that in considering appeals against discretionary decisions, the appellate body is to proceed with “caution and restraint”.  His Honour said this is “because of the primary assignment of decision-making to a specific repository of the power and the fact that minds can so readily differ over most discretionary or similar questions.  It is rare that there will only be one admissible point of view”.  (See also Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518 and Wilson and Dawson JJ at 535).

30      These principles are especially apt in deciding appeals against interim orders made after a s44 conference.  This is because the Commissioner is best placed to understand the industrial “state of play” and decide what, if any, interim orders should be made.  (See Murdoch University at [120] and The State School Teachers’ Union of WA (Inc) v Director-General of the Department of Education and Training (2008) 88 WAIG 698 at [51]).

31      These principles of appellate restraint also have particular significance when it is argued that a court at first instance placed insufficient weight on a particular consideration.  This was considered by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519.  There, his Honour explained that although “error in the proper weight to be given to particular matters may justify reversal on appeal, … disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge”.  This is because, in considering an appeal against a discretionary decision it is “well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion”, and that when “no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight”.  (See also Aickin J at 534 and 537 and Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36]).

Determination of the Appeal

32      I will first consider the assertion that in making the interim reinstatement order, no weight was given to the Director General’s loss of confidence in Ms Motteram as a teacher.  As I have said, the scheme of the reasons of the Commissioner was to set out the competing submissions of the SSTU and the Director General.  In doing so the Director General does not submit that there was any error of fact or misdescription of the submissions made on her behalf.  In particular it is not suggested that the Commissioner misdescribed the submission based upon loss of confidence.

33      After satisfying herself that the Commission had the jurisdiction to make the order sought, the Commissioner said she was to apply the tests set out in Brown.  Neither party contended that this was an incorrect approach and therefore whether it was so does not fall for consideration in the present appeal. 

34      In coming to her conclusion, the Commissioner said she had formed the view that it was “just” to make the interim reinstatement order.  Critically, she said that this was so “after considering the arguments put by both parties”.  The Commissioner then set out the “preliminary views” which tipped the scales in favour of the granting of the order.  In setting out those factors which did tip the scales, it was not necessary for the Commissioner to again refer to the loss of confidence point for it to be established that she had taken it into account.  In my opinion the reasons as a whole establish the Commissioner did so.  This is because of the earlier reference to that factor and the statement that she had considered the arguments put by both parties. 

35      This leaves for consideration the submission that insufficient weight was placed upon this factor.  That argument brings into sharp focus the principles I earlier described.  From the structure and content of the reasons it is not possible to see the precise weight which was placed upon the loss of confidence factor by the Commissioner; other than that she did not regard it as a factor so weighty as to preclude the making of the order.  Counsel for the Director General accepted this and submitted the making of the order in itself showed that insufficient weight was placed upon the Director General’s loss of confidence.

36      In my opinion the Full Bench cannot be too prescriptive in setting out the weight which should be applied to the Director General losing confidence in a state school teacher to properly perform their duties as a teacher, in deciding whether to make an interim reinstatement order.  This is because whether an order should be made must depend upon the particular facts and circumstances which are before the Commission.  Those facts and circumstances will inevitably vary from case to case.  They will include the reasons for the loss of confidence occurring and the teacher’s prior performance.  Despite this, it is in my opinion a factor of considerable importance.  In part this is because of the duties of care which the Director General has to school children and the public to ensure that only properly performing teachers are working in state schools.  The importance of the factor is also enhanced because the Director General will have formed her opinion after an investigation and inquiry of the alleged misconduct under the PSMA. 

37      In the present case, the factor of loss of confidence had a particular significance because of the basis upon which the opinion was formed.  This was that Ms Motteram had engaged in an inappropriate relationship with a student with whom she was teaching, over a considerable period of time and despite, at the very least, strong advice from her school principal to limit the contact between her and the student.  Furthermore, there was before the Director General the opinions of the deputy principal at the school, other teachers, the school psychologist and school chaplain which supported the conclusion that the nature and extent of the relationship between Ms Motteram and the student was inappropriate.  There was also information before the Director General that there had been some concern about the level of contact between Ms Motteram and the student, by the student’s grandmother, with whom he had been living.

38      For these reasons in the present case the loss of confidence which the Director General had in Ms Motteram to properly perform her duties as a teacher had substantial weight in deciding whether to make the interim reinstatement order. 

39      Given the weight of the loss of confidence factor, I have serious doubts as to whether I would have made the same decision as the Commissioner.  However as I have been at pains to set out, this is not the test of whether the appeal should be allowed.  As there is no identifiable error in the reasons which the Commissioner expressed to support her decision, the appeal can only be allowed if the decision was not open.  This would only be so if the order could not properly have been made if the loss of confidence factor was accorded adequate weight.

40      On that point, after giving the matter anxious consideration, I am not satisfied that it was not open to the Commissioner to make the decision she did.  It was a decision which was open given the factors set out in paragraphs 1-4, quoted above at [18], despite the substantial weight which had to be accorded to the Director General’s loss of confidence.  Of these factors, in my opinion the following in combination were weighty:

(a) The SSTU had demonstrated a prima facie case for relief.

(b) Prior to the present matter, Ms Motteram had been employed as a state school teacher for 14 years without being the subject of any alleged misconduct.

(c) Prior to the present matter, Ms Motteram was highly regarded as a music teacher at the schools where she had worked.

(d) No issue had been raised about Ms Motteram’s behaviour or performance since leaving North Albany Senior High School.

41      I would add to this the significance of Ms Motteram no longer teaching the relevant student and that it was not suggested there had been any inappropriate physical contact or romantic involvement or that the student had suffered because of his interaction with Ms Motteram.  Also, the recommended penalty by the inquirer was not dismissal but a reprimand and transfer to a school away from Albany.

42      For these reasons I am not satisfied that the Commissioner erred in making the interim reinstatement order.  That is, it was open to her to make such an order despite the fact that the Director General’s loss of confidence in Ms Motteram as a teacher was a factor which should have been given substantial weight.

Limits of the Decision

43      I emphasise however that my decision on the present appeal does not in any way cast doubt upon the decision of the Director General to dismiss Ms Motteram.  The fairness and legality of that decision remains to be determined by the Commission.  I would also add that it is in the interests of both parties and the public that the substantive application be determined as expeditiously as practicable.

Minute of Proposed Order

44      In my opinion a minute of proposed order should be published in terms that:

1. Leave to appeal is granted.

2. The appeal is dismissed.

SMITH SC:

45      I have had the benefit of reading the reasons to be published by the Acting President.  For the reasons given by the Acting President I agree that leave to appeal should be granted and the appeal be dismissed.

MAYMAN C:

46      I have had the benefit of reading the reasons for decision of his Honour, the Acting President.  I agree with those reasons and have nothing further to add.