WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00779

DELIVERED : Thursday, 29 August 2013

FILE NO. : U 29 OF 2013

Applicant

AND

The Director General, Department of Education

Respondent

CatchWords : Industrial Law - Harsh oppressive unfair dismissal - Substandard performance issues - Procedural fairness considered - Principles applied - Applicant unfairly dismissed

Legislation : Industrial Relations Act 1979 (WA) s 29 1(b)(i),

  Public Sector Management Act 1994 (WA) s 79(3), s 79(5)

Result : Reasons for decision issued

Representation:

Applicant : Mr S Millman (of counsel)

Respondent : Mr J O’Brien

Case(s) referred to in reasons:

Amalgamated Metal Workers’ and Shipwrights Union of Western Australia v Robe River Iron Associates (1989) 69 WAIG 985

Bi-Lo and R v Ltd; Blizzard; ex parte Downs [1993] 1 Qd R 151

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635

Department of Education and Training v Weygers (2009) WAIRC 00041; (2009) 89 WAIG 267

Fastidia Pty Ltd v Goodwin (2000) 102 IR 131

Garbett v Midland Brick Company Pty Ltd (2003) WASCA 36; (2003) 83 WAIG 893

Johnston v Acting Director General of Department of Education (2002) WAIRC 06155; (2002) 83 WAIG 1553

Jones v Dunkel (1959) 101 CLR 298

Kioa v West (1985) 159 CLR 550

Miles t/as Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Minister for Health v Drake-Brockman (2012) WAIRC 00150; (2012) 92 WAIG 203

Minister for Immigration & Multicultural Affairs, ex parte Lam (2003) 214 CLR 1

Minister for Police v Western Australian Police Union of Workers (2000) WAIRC 01174; (2000) 81 WAIG 356

Public Employment Industrial Relations Authority v Public Service Association of New South Wales (re-Scorzelli) (1993) 49 IR 169

Sanzana v Director General, Disability Services Commission (2011) WAIRC 00088; (2011) 91 WAIG 2106

Shire of Esperance v Mouritz (1991) 71 WAIG 891

Case(s) also cited:

Bromley v Offenders’ Review Board (1990) 51 ACrimR 249

Health Services Union of Western Australia (Union of Workers) v Director General of Health (2008) WAIRC 00215; (2008) 88 WAIG 543

McGovern v Ku-ring-gai Council [2008] NSWCA 209

Mijatovic v Legal Practitioners Complaint Committee [2008] WASCA 115

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Reasons for Decision

1         This application was made under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (the Act) on 22 February 2013.  Mr Patrick Guretti (the applicant) considers the penalty of dismissal was harsh, unjust and unreasonable.  Mr Guretti seeks reinstatement in his employment as a science teacher with the Director General, Department of Education (the respondent) of some eight years standing.  Mr Guretti was first employed by the respondent in January 2005 and dismissed on 31 January 2013.

2         The respondent denies that the applicant was unfairly terminated.  The respondent considers the applicant to have been terminated for substandard performance, following a process that commenced on 11 June 2012.  Further the respondent, pursuant to s 79(3) of the Public Sector Management Act 1994 (WA) (the PSMA), suggests a range of penalties were considered before determining termination to be appropriate.  The respondent seeks an order that the application be dismissed.

3         A statement of agreed facts was tendered by the applicant and the respondent at the hearing and is as follows:

1. The Applicant was employed by the Respondent as a science teacher at Kalgoorlie Boulder Community High School (“KBCHS”) from 31 January 2005 to 31 January 2013.

2. The Applicant was permanently appointed as a teacher at KBCHS on 11 August 2006.

3. The Applicant’s period of employment at KBCHS was not continuous.  The Applicant made an application in October 2007 for compassionate transfer back to Perth for family reasons. This application was granted and the Applicant held various fixed term placements in the Perth Metro area.

4. The Applicant returned to KBCHS in January 2011.

5. On 11 June 2012 Ms Kylie Cattaway, Deputy Principal KBCHS wrote to the Applicant and notified the Applicant that his performance was alleged to be substandard.

6. The Respondent placed the Applicant on a substandard performance process on 11 June 2012.

7. KBCHS referred the allegations of substandard performance of the Applicant to the Respondent on 6 July 2012.

8. The Respondent developed a performance management plan (PMP) and the Applicant was required to focus on two areas for improvement:
   1. Curriculum; and
   2. Learning Environment.

9.      The PMP was signed by the Applicant in September 2011.

10. The PMP stated that the Curriculum Leader and the Associate Principal will conduct classroom observations on alternate weeks.

11. The Respondent did not contact or invite the Applicant to participate in an interview as part of the alleged substandard process.

12. Via letter dated 13 August 2012, the Respondent notified the Applicant that an investigator was appointed to undertake an investigation into the Applicant’s alleged substandard performance process.

 13. During the alleged substandard performance process, in term 3 of 2012, the Applicant took a period of sick leave for a knee operation.

Applicant’s Evidence

4         Mr Max Douglas McFarlane gave evidence as a science teacher of some 37 years standing currently employed at Shenton College.  The witness was appointed as head of department to middle school at Kalgoorlie in 2005 and 2006 when Mr Guretti was first appointed as a science teacher by the respondent.  During this time the witness supervised Mr Guretti as his line manager and observed he had issues with student control, similar to the issues the witness had had when he had first started teaching.  The witness gave evidence he did not recall Mr Guretti being tardy, and in fact Mr Guretti had a good rapport with the students, and had an effectiveness of delivery.  The witness described the Kalgoorlie students as being much more difficult than those students in the metropolitan area.  The witness described the students as a law unto themselves.

5         The witness gave evidence that he was a little surprised Mr Guretti was being made permanent in 2006 as he felt he needed more mentoring.  The witness understood the applicant and himself were similar in that they were both quiet and reserved and at times struggled with ‘outgoing attitudes as far as teachers are needed to have’ (ts 22).  The witness confirmed that Mr Guretti was on the right track.

6         In cross-examination the witness was asked whether he recalled the applicant and his teaching to which he replied in the affirmative.  The witness also indicated that as a head of department you do not normally enter a first year teacher’s classroom however in Kalgoorlie the situation was different as classroom management was vital, much more so than for example at Shenton College.  The witness indicated that classroom management at Kalgoorlie Boulder Community High School (KBCHS) was very difficult compared to most other schools.

… because of the nature of the school and the difficulty with the students and the fact that we were very isolated, we were encouraged to make observations and assist teachers wherever necessary.

(ts 28)

7         Mr Stephen Bradley Holyoake gave evidence, having been line manager for the applicant during 2009 at Rossmoyne College.  He is currently head of department for physical sciences.  The witness gave evidence he first commenced teaching in 1981 and at the time he met the applicant was acting head of department at Rossmoyne College.  The applicant at the time was employed as a science teacher on a short-term contract.  The witness had not experienced any difficulties with respect to the applicant in classroom management at Rossmoyne.  He did recall giving the applicant advice on class content at one stage, advice he recalls the applicant having taken up.  The witness provided a reference for the applicant (exhibit Guretti 1) acknowledging the document had been requested by the applicant.  As part of the reference the witness confirmed of the applicant:

He demonstrated a capacity to develop a rapport with the students he taught and he endeavoured to cater to their different learning styles.

(exhibit Guretti 1)

8         The witness confirmed that Mr Guretti had no difficulty with classroom management.  There were a few aspects of teaching where he responded in the way that he had been asked by the witness to do so.

9         Mr Patrick Michael Guretti gave evidence.  The witness commenced studying for a degree in 1997 and concluded his qualifications in 2004.  Application was made to the respondent as a prospective employer, in particular to the scholarship program that was advertised at the university.  The witness gave evidence that his application was successful.  The witness gave evidence that the scholarship was worth $20,000 and the conditions attached to the scholarship were that Mr Guretti needed to undertake a country position for a period of three years upon completion of the teaching qualification in either maths or physical science.  The scholarship commenced at the start of the 2005 academic year in Kalgoorlie at the Eastern Goldfields Senior High School, the school’s name was subsequently changed to KBCHS.

10       The witness continued at KBCHS, obtaining permanency in 2007 (exhibit Guretti 3).  Shortly afterwards the applicant gave evidence he made application for a compassionate transfer back to Perth.  The application was successful and between 2008 and 2010 the applicant was employed in a series of metropolitan schools.  While the witness was working in Perth he applied to transfer his substantive position from Kalgoorlie back to Perth, his motivation stemming from the medical issues his mother in particular was suffering from and the difficulty with the students in Kalgoorlie.  In response to Mr 

11       Guretti’s request he received a document from the respondent advising that the application had been refused.  Mr Guretti's relinquishment of his position as a science teacher at school was reversed and he returned to Kalgoorlie at the start of 2011.

12       Mr Guretti recalled receiving feedback from the head of english regarding the class he took for relief.  The feedback came in the form of an email:

Pat,

I took your year nine science class for relief period for today. Nice group. Thanks for taking the kids literacy levels into account in differentiating tasks for them. It's great to see a science teacher doing this, especially for relief - for a relief lesson.

Cheers

(exhibit Guretti 14)

13       Mr Guretti confirmed he was placed on a performance management action plan (PMAP) dated 30 September 2011.  The PMAP identified two areas for improvement in ‘curriculum’ and ‘learning environment’.

14       Mr Guretti gave evidence that he undertook professional development with respect to classroom management and instructional strategies in 2006, a course CMIS level I, over the period of a year.  The witness gave evidence that Ms Brown (the person managing the course) gave feedback into the way he managed his teaching.  The next stage of professional development was tactical teaching, an extension of strategies in which to implement the curriculum, an area he was keen to learn.

15       Mr Guretti gave evidence in relation to his PMAP that there were a number of points he met in terms of his success indicators.  For example every five weeks the witness was required to design and issue a formal assessment.  Profiles had to be completed for each class and that was also undertaken.  Mr Guretti gave evidence that he considered himself effective in the use of case management strategies (CMS) and low-key responses and he received positive indicators from both Ms de Grace and Ms Cattaway.

16       The witness confirmed he had met his indicators.  Mr Guretti received positive feedback in the form of classroom observations that were documented and carried out by the curriculum leader Ms de Grace and the associate principal Ms Cattaway, positive comments such as:

Teacher predicts, intervenes and responds appropriately to student behaviour.

Effective use of CMS low key responses.

Teacher spends increasingly less time gaining student's attention.

Teacher continually moving round the room observing and offering help.

Teacher demonstrates continuous knowledge and student movements and actions in the class

(ie: with-it-ness)

Student behaviour is managed such that disruptions to other classes is minimised.

Effectively following up on student behaviour to maximise teacher’s authority in the classroom.

Select, use and modify a reward system to elicit positive student behaviour

(exhibit Guretti 15)

17       According to the witness an issue that was commented on by both Ms de Grace and Ms Cattaway was the witness’ ability to maintain calm.  By June 2012 all the issues that had been raised had either been met or had been well developed.  The witness gave evidence that he was particularly interested in the tactical teaching professional development course however it was not available until 2012.  He commenced the course in term three of 2012 but unfortunately sustained a knee injury which required him to be off work for the remainder of the term.  In terms of observations the witness recalled there was a total of four in all in 2012.

18       When asked what feedback the witness received from his colleagues his response was that it varied depending on the particular teacher.  Feedback from the curriculum leader Ms de Grace was negative, feedback from Ms Hansen varied between negative and positive and feedback from Anita and Miranda was positive.  The only written feedback the witness received was from Ms de Grace which tended to be all negative.  From Ms Cattaway the feedback varied between positive and negative.

19       During the period Mr Guretti was off work with his knee injury he gave evidence that Ms Hansen contacted him and asked whether he would undertake the marking of formal assessments.  The witness agreed and subsequently marked five classes, some 100 exams. 

20       Mr Guretti gave evidence (exhibit Education 6) in respect of positive observations made by Ms Cattaway in the witness’ classroom.  A series of positive observations were made including:

I was pleased to see you positioned yourself well to observe the class at work whilst also being able to observe and assess the students performing the bunsen burner test.  I observed that you give positive and encouraging comments if the student made an error with the bunsen.  Clinton was so proud of himself after passing the test. His smile said it all.

(exhibit Education 6)

21       The witness gave evidence that such comments indicated an improvement in his performance consequent upon his PMAP.  The witness regarded the improvements overall as a positive reflection on himself and his teaching ability.

22       Mr Guretti then gave evidence that he was the subject of a substandard performance investigation by the respondent commencing 11 June 2012.  Mr Guretti considered that the investigation was flawed in that the investigator did not appear to consider the witness' written response in that she did not comment on it.  Furthermore, he was not interviewed by the investigator.  People such as Mr Ronnie Naidoo and Ms Ruth Kane were not contacted.  Nothing prior to 2011 and 2012 was taken into consideration in the investigation.  For example, none of Mr Guretti’s employment history whilst in Perth was taken into consideration.  None of the people Mr Guretti worked with in Perth were interviewed by the investigator.

23       On 11 June 2012 the witness confirmed he received correspondence from Ms Cattaway (exhibit Education 13) advising he was not performing to a satisfactory standard at KBCHS.  The witness confirmed that the document outlined areas he had been focusing on even though Mr Guretti understood that he had improved on his performance management.  The written correspondence invited the witness to respond within 10 days and Mr Guretti submitted on 2 July 2012 a lengthy response (exhibit Guretti 17).

24       The witness advised when Ms Cattaway responded (exhibit Education 14) there was no mention of any of the issues that had been raised by Mr Guretti (exhibit Guretti 17).  Mr Guretti was unsure as to whether his response had been considered at all.  At the conclusion of Mr Guretti’s correspondence the witness requested the following of the respondent:

I request that my response be carefully considered and I propose that I'm provided with an opportunity to engage in the performance management process that is reasonably resourced and adequately supported.

(extract from exhibit Guretti 17)

25       Mr Guretti gave evidence that he returned to work following his knee injury in term four of 2012.  Mr Guretti was asked whether he was ever advised his performance was unsatisfactory between 2005 and 2007.  The witness answered in the negative.  This was a period the witness confirmed was his first eighteen months of teaching working with difficult students from a tough socio-economic background.  The witness confirmed it was also the period in which he was granted his permanency which was a relatively short period compared to most other teachers.

26       In 2011 Mr Guretti confirmed that when he arrived at KBCHS he was allocated Ms de Grace as a line manager.  She was the head of the department of science and maths.  Ms Hansen was not a line manager.  Mr Guretti gave evidence that he had concerns with Ms de Grace because she was a difficult person to deal with and conversations were not easy.  He described her as:

… gruff and closed; not very forthcoming with positive comments; to such an extent that it – it became an ordeal to have a conversation with Ms de Grace.

(ts 185)

27       Mr Guretti gave evidence he did request a change in line management.  At that stage Mr Guretti requested Ms Hansen however a decision was made that was not possible.  Mr Guretti indicated that the request was declined on the basis that performance management must be undertaken by someone in a level III position.  Mr Guretti indicated he then proposed Mr John Foeken would be able to provide a fair and balanced assessment of where he was at, however, unfortunately that did not occur.

28       Mr Guretti gave evidence about his time at Governor Stirling, where he was employed for 12 months on fixed term contract.  Mr Guretti’s line manager at the school was the head of department.  There were no performance related concerns nor was the witness placed on any performance improvement processes.  At the end of the fixed term contract the witness gave evidence he applied to have his compassionate transfer extended.  It was agreed and at the start of 2009 another fixed term contract with the respondent was obtained.

29       Mr Guretti moved to Rossmoyne and there were no performance related concerns raised with the witness.  At no stage was he ever placed on a PMAP and in addition the witness found Rossmoyne to be a very good environment to work in.

30       At Kalamunda Senior High School the witness was on two fixed term contracts.  Mr Guretti taught science specifically to lower school chemistry and TEE chemistry.  During the classes the witness was required to teach in Perth the whole spectrum from year eight through to year 12.  There were no performance concerns raised, no one ever wrote to the witness saying they were concerned about his performance and no one ever placed Mr Guretti on a PMAP.

31       Mr Guretti gave evidence he was employed at Mirrabooka High School in a number of roles including as a science teacher, as a physical education teacher and also as an ITAS teacher dealing with numeracy and literacy.  Mr Guretti was not advised his performance was substandard nor was he placed on a PMAP.  The witness was there throughout the entire year and was required to develop lesson plans in accordance with the curriculum, to develop assessments, and to mark the assessments.  The witness indicated that the school had students from a diverse range of ethnic backgrounds and Mr Guretti was given the position of the lower school soccer coach.  Mr Guretti gave evidence he was commended on the role given the school performed well in that the soccer team reached the finals of the competition.

32       Mr Guretti gave evidence that he was terminated in February 2013.  Since that day as the respondent is the main employer in this state and as the witness does not have an E number that has made it very difficult to go to the employer to seek further work.  An E number is the identification number that is received by teachers that places the teacher on the respondent's system.  Mr Guretti confirmed with the Commission that he is seeking reinstatement or re-employment from the proceedings.

33       In cross-examination the respondent tabled exhibit Education two (139 – 146) dated 23 March 2011.  The front page was titled performance management and the remaining pages were titled self reflection plan.

34       Mr Guretti confirmed in cross-examination (exhibit Guretti 15) that at that time Ms de Grace was his line manager that ‘curriculum’ was one of the areas that had been identified as problematic.  Mr Guretti was then asked whether under the column ‘Success Indicators’ he was able to understand what the words ‘Deadlines for common assessment tasks not met’ meant.  In response Mr Guretti said:

… , I'm not entirely sure what that's referring to, whether that’s directed toward me or the students, I'm not sure.

(ts 155)

35       Mr Guretti was asked whether behaviour management was another area that needed to improve.  In response the witness indicated it was something he was willing to work on.  Mr Guretti agreed there were concerns raised about his performance based on an assessment over a six month period from March to September 2011.

36       In the context of exhibit Education 12 Mr Guretti was asked whether he recalled meeting with Ms Cattaway on 29 March 2012 to which he responded – ‘Vaguely’ (ts 171).  He was then asked whether he recalled receiving a copy of the employee performance policy (exhibit Education 11) to which he responded in the affirmative.  The relevant document is dated 21 July 2010 a document received by Mr Guretti.  It did not have the flow chart that appears on the current document.

37       Mr Guretti was then taken to exhibit Education 13, formal advice from Ms Cattaway dated 11 June 2012 that alleged Mr Guretti was not performing to a satisfactory standard as a teacher, level II.  Mr Guretti agreed that the private and confidential correspondence invited him to respond to the allegations made in the letter.  The correspondence detailed the process whereby if Mr Guretti's process was determined inappropriate then the matter would be referred to the director general in accordance with the respondent's policy.  The witness agreed that was his understanding of the policy.

38       Mr Guretti gave evidence that he responded in some detail to a response from Ms Cattaway.  Subsequently exhibit Education 15 advises Mr Guretti in accordance with s 79(5) of the PSMA that Ms Sherina Bhar was to be appointed as an investigator by the director general of the respondent.  Mr Guretti agrees that this correspondence was received and noted that the investigator may conduct an interview with Mr Guretti.

39       Mr Guretti confirmed in evidence that he received exhibit Education 17 from the director general advising that she intended to terminate his employment as a teacher with the respondent effective as of 22 February 2013.  Mr Guretti advised he did not respond to the director general’s initial correspondence based on legal advice.

40       In re-examination the witness was taken to a performance evaluation held on 2 May 2012.  Mr Guretti confirmed that he was concerned about what occurred in the particular lesson critique in that it was the last of the observations of 2012 before Ms Cattaway’s letter of 11 June 2012.  It was written without consultation with himself and was quite critical of Mr Guretti.  Mr Guretti gave evidence he was therefore worried as to the comments contained in exhibit Education 9.  This was the final observation prior to the matter being referred to the respondent for a substandard performance investigation.  The witness also confirmed that the idea for this lesson was proposed by Ms Hansen.  It was a lesson in matter, solids, liquids and gases.  The idea was to demonstrate to the students and require them to write down their prediction as to what they thought might happen, to write down their observations and determine whether they could explain what had occurred.  Mr Guretti confirmed he had no opportunity to explain to Ms de Grace or Ms Cattaway prior to the lesson what the teaching objective was that day.

41       Mr Guretti gave evidence that he was surprised to receive a response so quickly after writing his letter in response to the letter received from Ms Cattaway.  Mr Guretti's letter was sent on 2 July 2012 and the response was received from Ms Cattaway on 6 July 2012 some four days later suggesting:

Having considered your response, the – the reasons you presented failed to persuade me that I should not progress this matter.

(ts 201)

42       Mr Guretti said he was disappointed in receiving the correspondence.  It did not appear that his own response had been considered.  Mr Guretti indicated he was not interviewed by the investigator nor were his union representatives.

43       Mr Ronnie Naidoo gave evidence on the behalf of the applicant.  Mr Naidoo has been employed at the KBCHS for the last seven years including at the campus behaviour centre.  It is also known as the Goldfields Transition Centre, an off-site facility for children with behaviour issues.  The witness explained Kalgoorlie was a town with a transient population.  Many children come to the school for a year to two years and then move on.  Many of the children at the school have behavioural issues.  In the last year and a half the witness had been at the school he had been involved in a special scheme for aboriginal children with specialist literacy and numeracy needs.  During his time at the school he had observed Mr Guretti’s classes, on occasion with people in management, and on a number of other occasions with students that were in Mr Guretti’s science classes.

44       The witness sat in with Ms de Grace on one occasion and Ms Cattaway on another occasion.  It would have been in 2011.  He was not aware that he was on a PMAP he simply thought it was part of his yearly management process.

45       Mr Guretti felt uncomfortable as too many were people sitting in his class and he asked the union representative at the school to sit in on his class which the witness complied with.  On another occasion the witness heard Ms Hansen criticise Mr Guretti at staff drinks.  The witness heard Ms Hansen express her displeasure at the concept of Mr Guretti returning to KBCHS on several occasions in 2011.  The witness confirmed he would have observed Mr Guretti in his classroom on 20 to 30 occasions.

46       Mr Naidoo confirmed that he had been a teacher for 31 years in South Africa, New Zealand and Australia.  As part of that experience the witness had had experience as head of a department.

47       Ms Ruth Kane gave evidence for the applicant.  She is currently employed at KBCHS as head of department and has been there since 2006.  The witness met Mr Guretti when he came to KBCHS in 2006 and although she and Mr Guretti work in separate departments they are fellow union colleagues.  On one occasion she gave evidence she had sat in on one of Mr Guretti’s classes at his request towards the end of 2011.  The witness gave evidence that Mr Guretti did all that he was supposed to do including a seating plan, introducing a body of the lesson and a conclusion.  The witness indicated that the children listened well and generally were well behaved.

48       Ms Kane gave evidence that Mr Guretti was off work in term three of 2012 and she picked up his relief lessons.  The witness indicated the lesson plan and the content of the lesson were left in the office by Mr Guretti.  The witness described his year eight class as:

… it was a solid lesson.  There was a seating plan, the kids knew what they were doing, I understood the lesson, I understood the content that he needed delivered, there was no problem.

(ts 119)

49       In cross-examination Ms Kane gave evidence that most students were well-behaved.  In general, it was the five percent of students who were most difficult to handle at KBCHS.

Respondent

50       The respondent submitted that Mr Guretti’s performance was substandard based on an assessment undertaken as part of the performance management process outlined in s 79 of the PSMA and the public sector standards. As at 11 June 2012 when the applicant was formally advised of the substandard process it was appropriate for the school to refer to the director general the issue of Mr Guretti's performance in accordance with the PSMA.  The respondent considers that the applicant was given a fair opportunity to provide responses at all times.  The director general required an independent investigation into the substandard performance of Mr Guretti.  The respondent considered the decision to dismiss the applicant based on substandard performance was appropriate and fair in the circumstances.

51       Ms Kylie Cattaway in her capacity as deputy principal at KBCHS for the last eight years was called to give evidence.  Ms Cattaway gave evidence that she had had 18 years of teaching, in the main as a maths teacher.  All of it had been at KBCHS or its predecessor school. Ms Cattaway described her relationship with Mr Guretti as amicable.

52       When Mr Guretti returned to KBCHS in 2011 Ms de Grace was line managing Mr Guretti and Ms Cattaway was line managing Ms de Grace.  The witness indicated that her understanding was Mr Guretti did not have an interest in returning to Kalgoorlie and that his intention was to remain in Perth.

53       The witness described the performance management process which used to be quite separate:

But then they created the employee performance document which blended the whole lot together.  So the performance management starts at stage 1 which is self-review. Stage 1 is self-review. Then you meet with your line manager, you discuss, you come up with a plan. That plan is then implemented, reviewed, modified along the way.

(ts 220)

54       The witness gave evidence that teachers may keep their plan or write a new plan or in circumstances where there are behaviour concerns and substandard performance occurs the  line manager refers it to their superordinate. The witness indicated she was not involved with Mr Guretti because she was not his line manager.  Ms de Grace was having difficulties getting the plan developed so Ms Cattaway got involved because it was not happening promptly enough and there were delays by Ms de Grace.

55       The witness gave evidence Mr Guretti requested in 2012 to change line manager.  This request was put at a meeting with the witness in his classroom:

He had mentioned to me that he was finding Adele quite negative in her responses and he had requested that I be his line manager. In that discussion and I said that I wasn't sure whether Terry would be happy with a level 4 for engaging in line management at that level and that I would get back to him. I spoke to Terry and teaching the that he didn't want a level 4 doing that role and that another level 3 may be suitable that he would have to determine whether their workload would be able to take it on and so I went back to Patrick with that feedback. And he indicated to me that he would get back and as - it must be close to when he was taking leave because I remember getting an email from him. He was supposed to meet with me on a Friday or give me his answer on a Friday and the email had been sent, “I can't meet that deadline”. He was on leave. It might have been a long period when he had his knee reconstruction.

(ts 233)

56       On 29 March 2012 the witness indicated she informed Mr Guretti of the possibility of a substandard performance process (exhibit Education 12).  In addition the witness provided him with a copy of the employee performance policy.

57       The witness was referred to exhibit Education 19 in response to Ms Cattaway’s correspondence advising of Mr Guretti’s substandard performance.  The witness agreed that Mr Guretti had written a comprehensive letter however the witness was not convinced by the contents.

58       In cross-examination the witness was asked whether she was aware Mr Guretti sought to have Mr Foeken as his line manager as well.  Ms Cattaway was not aware of Mr Guretti’s request.

59       Ms Cattaway was asked to reconsider exhibit Education 14 the letter addressed to Mr Guretti advising him that his substandard performance had been referred to the director general in accordance with s 79 of the PSMA.  The witness agreed the letter was short however she had followed a sample letter and had not considered whether it was fair or not fair to advise Mr Guretti why it was that the matter was being referred to the director general:

You said, “I don't - it wasn't concerned with fairness. It was concerned with following the policy”? --- I didn't say that I wasn’t concerned, I said it I wouldn’t consider it.

60       Ms Cattaway was advised there were four performance observations for the 2012 academic year.  The witness was asked whether on the basis of those observations she was confident that there had been no improvement in Mr Guretti’s performance.  The witness indicated that it was not just based on classroom observations.  Mr Guretti was also meeting with Ms Hansen in relation to curriculum.

61       The witness was then asked why following the observation on 2 May 2012 which was the last observation of Mr Guretti was he not spoken to by either Ms de Grace or herself.  The witness indicated this was when Mr Guretti had raised the issue of Ms de Grace being his line manager. 

62       Ms Adele de Grace gave evidence for the respondent as head of department in quantitative science at KBCHS, a position held since 2007.  In total Ms de Grace has taught for 12 to 13 years in Western Australia and Canada.  The witness described her relationship with Mr Guretti as mostly professional, centred around performance management.

63       In 2011 the witness had the opportunity to observe some of Mr Guretti’s classes and felt he needed more support particularly in the area of curriculum and learning environment.  The witness offered Mr Guretti informal chats, providing feedback through formal feedback and observations in the classroom.

64       The witness indicated there would always be a feedback sessions either written or verbal.  Ms Hansen was a colleague in 2011 and in 2012 she became the teacher in charge.  In that role it is important for Ms Hansen to learn the process of performance managing.  So the decision was made to use Ms Hansen in that role as part of the performance management process with Mr Guretti.

65       The witness gave evidence that she was very direct in her feedback to Mr Guretti for him to realise that it was part of the PMAP and he needed to act on it.  The witness was not aware that Mr Guretti had requested a change in line manager.

66       The witness advised that she was aware of the decision in 2012 to proceed with Mr Guretti through a substandard performance process:

We were working very closely together, I definitely was aware.

(ts 288)

67       The witness was asked if she could confirm whether there was anything remarkable about the number of students that passed Mr Guretti science classes at the end of 2011.  The witness was unable to comment.  The witness recalled there was improvement overall in the area of organising groups of children into small groups to get ‘glasses and lab coats’.

68       Ms Melinda Hansen gave evidence for the respondent that for the past eight years she had been employed as a science teacher at KBCHS.  In 2012 the witness indicated she became teacher in charge.

69       The witness recalled she first became aware that Mr Guretti was returning to KBSHS on the first professional development day at the beginning of 2011.

70       At the beginning of the year the witness created a document delegating the responsibilities of common assessment and exam writing and forward planning for all teachers who taught that particular year group.  The document was emailed to all staff, was open to feedback, and all staff were aware of their responsibilities.  On two occasions the witness was aware that Mr Guretti requested her as his line manager. 

71       As the teacher in charge some of the things the witness undertook were a lead role in curriculum development, assessment moderation, behaviour management and dealing with difficult students.  The development of these common assessment tasks were not specific to Mr Guretti.

72       The witness was asked whether when Mr Guretti was off on sick leave in term 3 of 2012 she delivered to his house some science exams for him to mark.  The witness recalled delivering common assessments and exams.  When the witness found out Mr Guretti was returning to KBCHS she could not recall commenting ‘why is he coming back’ (ts 306).

73       Mr Keith Dodd gave evidence on behalf of the respondent.  His role is as director of labour relations on behalf of the department a position he has held since 2009.  The witness gave evidence that his role involving Mr Guretti’s substandard performance commenced once the school determined that Mr Guretti was substandard then the matter was referred through the regional executive director then through the labour relations directorate for their involvement.

74       The witness indicated it was at this stage the department put a recommendation to the director general that she appoint an investigator under the provisions of the PSMA.  The process is that the investigator is independent.  The PSMA requires the judgement of the investigator as to how they conduct that investigation.  There is no requirement that the person be interviewed.  The investigator appointed to investigate Mr Guretti was Ms Sherina Bhar, and she was accepted and endorsed by the director general.

75       The witness gave evidence that from the respondent's point of view there needs to be procedural fairness in terms of arriving at the decision.  On occasion there have been times where as a directorate matters have been referred back to the relevant school for consideration because the directorate has not been satisfied that a person has been afforded that fairness.  Before anything proceeds to the director general the directorate needs to be comfortable that procedural fairness has been afforded the employee.

76       The witness confirmed that exhibit Education 20 was the formal appointment correspondence of the investigator.  Furthermore, the report provided by the investigator was to be found in the folder page 304 to 308 and was forwarded to Mr Guretti by the director general. 

77       Counsel for Mr Guretti objected to the report being tendered in evidence as the investigator was not called to give evidence.  The witness indicated that he considered the report and other documentation that had been provided to the respondent.  Based on that information the witness prepared a briefing note and made recommendations to the director general which outlined the investigation and made recommendations in terms of the issue of penalty.  These matters were for the director general to consider.

78       Normally the department does not provide anything other than the investigator’s report to Mr Guretti.  The witness indicated Mr Guretti was given an opportunity to comment on the issue of penalty.  The witness indicated that the recommendation of termination was made on the basis that the process had determined Mr Guretti to be substandard with the terms of his contract as a teacher.  The other two penalties under the PSMA would still mean the end of the day Mr Guretti would be teaching students and having found that it was substandard it really was not considered to be an option that was considered practical.  The responsibility of the department towards students is that we had a duty of care to ensure they are receiving an appropriate education.

79       In cross-examination the witness was directed to exhibit Education 21 a briefing note from the witness to the director general in particular to the second paragraph which states:

The subsequent response in writing from Mr Guretti was given due consideration by his line manager.

The witness agreed that there was an error in the letter and on reflection Mr Guretti’s response to Ms Cattaway’s correspondence advising of substandard performance was not given due consideration.  The witness did indicate that he had read the response from Mr Guretti although when pushed the witness could not recall the length of the letter or anything specific that had been read.

80       The witness was asked whether he was surprised Mr Guretti was not interviewed.  In response it was suggested that it was up to the investigator to determine as to whether on the information they are able to make that determination.  The witness declared the investigator was independent on the basis that she was not given any instruction as to how to undertake the investigation.

81       It was put to the witness that Mr Guretti was told there were areas for improvement in his teaching and there were areas where he was satisfactory but he was not told that his performance was substandard until the correspondence was said to him by Ms Cattaway in June 2012.  The witness responded that's not my understanding.  Mr Guretti had been advised through a series of meetings and discussions with his line manager and others that there were issues around his performance. 

82       Mr Guretti was advised that it might lead to a substandard process but he was not advised that his performance was substandard.  Mr Dodd was asked when did Mr Guretti get an opportunity to demonstrate an improvement in performance after he was advised that he was substandard.  In response the witness indicated:

I think the way the Act is structured, it contemplates as I say, that process happening up to a point where the person is deemed to be substandard, and then the Act comes into play and an investigator is appointed to review that process up to the point where the person is deemed to be substandard.

(ts 321)

Applicant’s Closing Submissions

83       Counsel submitted that Mr Guretti was not afforded procedural fairness and accordingly, the lack of procedural fairness constituted an unfairness in the dismissal as per Bogunovich v Bayside Western Australia Pty Ltd (1988) 78 WAIG 3635.

84       The respondent:

failed to carry out an extensive inquiry into all relevant matters surrounding the alleged substandard performance as was reasonable in the situation; and

failed to have reasonable grounds, on the information was available at that time, believing that Mr Guretti’s performance was adequately substandard so as to justify dismissal.

As per Bi-Lo Pty Ltd v Hooper (1992) 53 Perth 224.

85       The respondent abused the legal right to dismiss the applicant and did so in a manner that was exercised harshly and oppressively against the applicant, in the Industrial Appeal Court decision in Miles t/as Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385.

86       In particular, the lack of procedural fairness in this case arose due to the:

Respondent not properly adhering to the higher standard of procedural fairness applied to it as a public sector employer;

Applicant not being afforded a proper opportunity to respond to the allegations and be properly heard in the investigation;

lack of relative fairness in the treatment of witnesses, resulting in prejudice to the Applicant;

investigator being biased and influenced by irrelevant and prejudicial matters;

investigator drawing improbable conclusions that were not reasonably open to her based on the evidence available at the time and failed to properly weigh the evidence;

lack of transparency in the making of findings and decision to take action and the Applicant not being afforded a proper opportunity to respond to the findings and proposed action;

the decision-maker being improperly informed and taking action (ie dismissal).

([4] of applicant’s closing submissions)

87       The applicant submitted there were strict necessities in the context of procedural fairness that arose from the respondent's role as a public sector employer at the relevant disciplinary instruments that applied at the time of the applicant's employment namely:

the PSMA;

the Public Sector Standard – Discipline; and

the respondent's own policy.

88       In addition to the usual requirements of procedural fairness, applying the disciplinary instruments required the respondent to ensure that its decisions were based:

on a proper assessment of the facts;

procedural fairness was applied;

decisions were to be impartial and importantly capable of review.

89       The document referred to as The Discipline Policy, Procedures and Guidelines reflect that an employee should be provided with ‘a hearing appropriate to the circumstances’.  ‘All of the information required to answer the allegations’ and ‘an opportunity to respond to the allegations and is all decision affecting them.’

90       Similarly, the Discipline Procedure ensures the employee ‘is told the nature and particulars of the discipline issue’, is provided ‘with the opportunities to provide explanations’ and ‘copies of documentation’ and has ‘a right of response’.  The applicant outlined that the respondent failed to adhere to the specific issues to which it was subject.

91       In the absence of a fair procedure and one that fails to incorporate the principles of natural justice the applicant submits the respondent is not entitled to subject the applicant's penalty of termination.  The respondent refused to allow the applicant the opportunity to be heard in writing and in so doing denied Mr Guretti a full and proper opportunity to respond to the allegations.  The seriousness of the allegation and potential action being taken by the respondent demanded that as full an investigation as possible be conducted – Bi-Lo and R v Ltd; Blizzard; Ex parte Downs [1993] 1 Qd R 151.

92       The respondent could have allowed an interview with Mr Guretti.  Although such an interview might not have accorded with the respondent’s policy, the absence of such an approach in the view of Mr Guretti counts against the respondent affording Mr Guretti procedural fairness.  Even so the respondent was obliged to provide to Mr Guretti evidence provided by other witnesses including documentation (copies of the signage alleged to have been removed by Mr Guretti).

93       In all the circumstances it is the view of Mr Guretti that the investigator failed to conduct as extensive an investigation as was reasonable.

94       Furthermore, the basis of which the decision maker for the respondent made her findings regarding the proposed action was in the view of Mr Guretti not documented, transparent nor was it capable of review.  There is no documented description or clarification as to the weight that was attached to the materials that were provided by the employees of the respondent employed at KBCHS.  Nor is there any documented justification as to why the respondent failed to consider the applicant's employment at any other location other than KBCHS.  Those schools included:

Governor Stirling Senior High School;

Rossmoyne Senior High School;

Mirrabooka Senior High School;

Swan View Senior High School; and

Kalamunda Senior High School.

95       There was no evidence that Mr Guretti’s performance while teaching at the aforementioned schools was substandard.  The limited evidence called in the proceedings relating to the Perth metropolitan area appointments was that the performance by Mr Guretti was satisfactory.

96       The Commission was invited in the applicant’s closing submissions [31] to draw an adverse inference based on:

the length of appointment at each school;

the failure to call witnesses from the most recent schools.

97       Mr Guretti submits that such a contrary implication is not open to be drawn given Mr Guretti gave positive evidence about his attempts to contact more recent employers at the metropolitan schools and conversely the respondent called no evidence at all.

98       The adverse implication invited by the respondent was the similar inference the respondent drew in respect of the service of Mr Guretti’s appointments to metropolitan schools.

99       Mr Guretti requested a copy of the investigation report and the materials the investigator relied upon in the investigation which enabled her to make a proper response.  It is said provision of such documents can form part of the right to be heard in complex cases, Forbes, JS. (2002) Justice in Tribunals, The Federation Press: Annandale, NSW, 167–8.

100    The required provision of the material facts depends on the seriousness of the issue and the subsequent consequences as per Public Employment Industrial Relations Authority v Public Service Association of New South Wales (re-Scorzelli) (1993) 49 IR 169.

101    Mr Guretti had a legitimate belief that all relevant materials would be provided before the respondent would take any contrary action against him.  Mr Guretti had an entitlement to know what the case was against him, what the documentation was in support of that case and also be given an opportunity to fully respond to the case, Kioa v West (1985) 159 CLR 550.

102    The respondent failed to provide a full copy of the investigation report thereby denying Mr Guretti a proper opportunity to respond to the findings and proposed action to be undertaken by the respondent.  Thereafter having regard to the jurisdiction of the WAIRC in following the principles outlined in Johnston v Acting Director General of Department of Education (2002) WAIRC 06155; (2002) 83 WAIG 1553) Mr Guretti’s counsel submits that participation in the investigation and subsequently penalty process is pointless.

103    There is no evidence that the ultimate decision maker reviewed the evidence against that provided by Mr Guretti.  To the contrary, the person making the decision was informed by a memorandum prepared by the respondent’s industrial relations consultant. The findings against Mr Guretti that his performance was substandard were harsh and unreasonable in the circumstances including:

lack of a comprehensive inquiry;

insufficient and paucity of evidence;

a failure to consider the length of service of the applicant;

the demonstrated ability and commitment by the applicant; and

the dismissive effect on the applicant's prospects for future employment given the position of the respondent as the major employer of school teachers in Western Australia.

104    Further, and as an alternative to the aforementioned matters raised by Mr Guretti he submits the mass of evidence invites an inference that Mr Guretti’s performance was not substandard.  Within 18 months of commencing employment at KBCHS Mr Guretti was granted permanency.  He continued to work at KBCHS until the end of this academic year at which time he applied for and was granted a compassionate transfer to a series of metropolitan schools in the Perth area.  At no stage is any evidence before the Commission that Mr Guretti was not there during any substandard performance processes during this period.

105    Mr Guretti called two witnesses from as well as providing evidence himself as to his teaching at KBCHS following his return from Perth schools in 2011.  In response the respondent called three witnesses, only one of whom was a science teacher.

106    On balance, Mr Guretti submits it is open to find when considering the written and oral evidence that Mr Guretti’s performance was not substandard:

Further and in the alternative, the applicant submits that, to the extent that his performance was substandard, (which is denied) it was not sufficiently below standard such as to justify termination of the employment relationship.

Further and in the alternative, the Applicant submits that, to the extent that his performance was substandard, (which is denied) the applicant was not afforded a proper opportunity to participate in professional development such as to enable him to improve his performance and therefore the Respondent had no proper basis on which to justify the termination of the employment relationship;

Further and in the alternative, the Applicant submits that, to the extent that his performance was substandard, (which is denied) the applicant was not advised that his performance was sufficiently and in fact that the employment was in jeopardy, and was therefore never given a proper opportunity to improve its performance and therefore the Respondent had no proper basis on which to justify termination of the employment relationship (cf: Fastidia Pty Ltd v Goodwin (2000) 102 IR 131 at [43]) (Note - this decision is in respect of the Section 170 CG (3) (d) of the C’th Workplace Relations Act as it then was, and is therefore persuasive bot(sic) not binding on the WAIRC);

(applicant’s closing submissions [37], [38] and [39])

107    Particulars raised by the applicant as relevant to the proceedings are that in September 2011 Mr Guretti was placed on a PMAP.  It remains unclear where such a plan lies in the normal process of performance management with the respondent.  At this stage Mr Guretti was not advised his employment was in trouble.

108    On 29 March 2012 meeting was held between Mr Guretti and his ‘superordinate’.  Again Mr Guretti was not informed his employment was in trouble.  In June 2012 Mr Guretti was advised that he was going to be placed on a substandard performance process (exhibit Education 13).  It was on this occasion that Mr Guretti was formally advised his employment was in jeopardy.  Thereafter Mr Guretti provided a detailed response on why it was he considered his employment was not substandard (refer exhibit Guretti 17).

109    After he had provided his response Mr Guretti was advised that the respondent still considered his employment to be substandard.  This response was provided to Mr Guretti on the last day of Term 2, 2012.  Mr Guretti had a significant proportion of Term 3 off on sick leave.  The applicant asserts there to be no evidence of any formal documentation or steps taken by the respondent to assist Mr Guretti to improve his performance.

110    Further and in the alternative, (which the Mr Guretti denies), if Mr Guretti was formally advised at the meeting at 29 March 2012, then he was given an insufficient chance to improve his performance between that date and the date that his performance was alleged to be substandard in June 2012.  Between those two dates there is evidence of only one official classroom surveillance.  This is entirely insufficient to determine that Mr Guretti’s performance as a teacher was unsatisfactory.

111    In failing to call the investigator to give evidence Mr Guretti was denied the opportunity to cross examine the investigator.  Accordingly the Commission is invited to draw an adverse inference in respect of such failure. 

112    On the question of the remedy the applicant submits the primary remedy available under the Act is reinstatement.  The applicant requests that legal submissions on the question of remedy be postponed pending the publication of the Commission reasons for decision.

113    Counsel for Mr Guretti in a his right of reply referred to Sanzana v Director General, Disability Services Commission (2011) WAIRC 0088; (2011) 91 WAIG 2106 at [34]:

If the performance meets the required standard, then the dismissal based on alleged substandard performance would not be sustainable.

114    If, in the case of an employee performance is substandard in matters and the employee refuses to act as is so prospects of improvement to the required standard and thereby reduced.  This point is picked up at [170]:

Given Mr Sanzana’s refusal or failure to accept that his performance was substandard, to maintain that it was excellent, that he met the required timeframes and had never disregarded a mealtime management plan amongst other things in the face of overwhelming evidence to the contrary and given his behaviour towards others, retraining would not resolve the issues.  Rather, the problems would continue.

Respondent’s Closing Submissions

115    The respondent submitted that Mr Guretti’s performance was substandard based on a fair assessment.  Following the referral of Mr Guretti’s substandard performance to the director general by KBCHS the matter was dealt with little time in accordance with the provisions of s 79 of the PSMA and the associated policy.  Relevant considerations were taken into account and the respondent submits it was appropriate to terminate the applicant for substandard performance.

116    The respondent submitted the decision could be reviewed by the Commission as a hearing de novo having regard for the decision of Commission Kenner in Johnston v Acting Director General of Department of Education where it was stated at [29]:

… matters referred to the Commission pursuant to s 78(2) of the PSMA are restricted to consideration by the Commission of the reasonableness of the employer's conduct, but the Commission may review the employer's decision de novo, as the circumstances warrant and determine the matter afresh and substitute its own decision for the employer's decision if that is appropriate.

117    The procedure followed by the respondent was, in all the circumstances, fair.  In the alternative if the Commission finds that this was not the case the Commission can cure any procedural defect by substituting a fresh decision to that of the respondent’s decision.  The respondent submitted it was the task of the Commission to:

determine whether the applicant's dismissal was unfair in all of the circumstances;

determine who bears the burden of proof in the circumstances and whether the burden has been met; and

determine whether the applicant has been offered procedural fairness throughout the performance management process and subsequent substandard performance process.

118    The test in determining whether a dismissal is unfair or not is well settled in this Commission.  Whether an employer acted unfairly so as to amount to an abuse of that right is a test to be found in the decision of the Industrial Appeal Court of Undercliffe.  In such circumstances the onus lies on the applicant to prove that the dismissal was, in all the circumstances, unfair.

119    One of the principal issues raised by the applicant is that Mr Guretti did not receive procedural fairness and in this regard the respondent referred the Commission to the decision of the Full Bench in the Department of Education and Training v Weygers (2009) WAIRC 00041; (2009) 89 WAIG 267.  In that decision Ritter AP refers to a statement by Aronson and others:

Regardless of how ‘fairness’ is assessed, it is clear that the onus of establishing that the standard has not been met will lie upon the party who seeks to prove breach of natural justice. It must be shown that the procedures proposed or adopted by the decision maker were ‘unfair in the circumstances.’

And [31]:

It is important to emphasise at the outset that it is insufficient for the applicants to prove that better or fairer procedures could have been adopted by Mr Bridges. They must show that those proposed were unfair in the circumstances.

120    The respondent submitted that the employee performance of the department (exhibit Education 11) in consultation with the relevant unions including the State School Teachers’ Union.  Section 79(1) of the PSMA defines 'substandard performance’ to be:

… the performance of an employee is substandard if and only if the employee does not, in the performance of the functions and he or she is required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions.

121    Section 79(5) requires the respondent, before it forms the opinion that the employee’s performance is substandard to investigate whether or not performance of the employee is in fact substandard.  Following such an investigation s79(3) provides for the employing authority to form an opinion in circumstances where the employee’s performance is considered to be substandard then and only then will can the employing authority impose one of three penalties, namely:

Withhold for such a period as the employing authority thinks fit an increment of remuneration otherwise payable to that employee; and

reduce the level of classification of that employee; or

terminate the employment of that Public Sector employee.

122    The respondent prior to taking any action under s 79 of the PSMA establishes a preliminary view that it is the employee’s performance that is substandard.  It is that preliminary view which is formed when the employee’s line manager or managers conclude the ordinary performance management process and allegations of substandard performance are put to the employee.  The respondent submits it is then the s 79 provisions which are activated.

123    There are two distinct processes which govern an employee’s performance; a performance management process consistent with the public standards on performance management and the respondent’s policy.  This process is set out in clause 4.2 of the policy (exhibit Education 11) in particular at 4, 5, 6 and 7.  The respondent asserts that KBCHS complied with its overall requirements in meeting Mr Guretti’s performance management process.  There was a performance management plan complying with the policy (exhibit Education 2) and regular classroom observations were undertaken.

124    After the delivery of Ms Cattaway’s letter on 11 June 2012 the respondent submits it is entirely appropriate that no further classroom observations of Mr Guretti’s teaching occur.  Once a substandard performance process has been undertaken for the respondent to introduce any further issues constitutes a contamination of the evidence proceeding forwards.

125    Professional learning was identified and the respondent concedes that the tactical teaching training referred to earlier was not available to Mr Guretti in 2011 when it was first discussed.  The respondent did ask the Commission to consider that KBCHS was 600 kilometres from the metropolitan area and therefore professional development was not as readily available.  Further it was unfortunate that Mr Guretti was on sick leave in 2012 and seemingly declined to attend a number of programs that were available and identified as relevant to the issues identified with his performance.

126    The respondent addressed the Commission on exhibit Education 11, in particular the substandard performance as part of the respondent's policy at 4.3.  When a line manager is of the view that an employee’s performance is substandard, the manager may conclude ordinary performance management and commence substandard performance.  Although the policy states that substandard performance will not normally commence it does not prohibit such action occurring and unless an employee has previously been advised that their performance is considered unsatisfactory and given a reasonable opportunity and assistance to improve to a satisfactory standard the respondent submitted the policy is a sufficiently flexible to allow for some latitude in the manner in which the aspects take place.  In the case of Mr Guretti there was a considerable delay in finalising the applicant's performance management plan (PMP).  These matters (that is the commencement of the PMP) was started in March 2011 (exhibit Guretti 15) and the respondent understood Mr Guretti was formally advised that his performance was considered unsatisfactory in a formal meeting on 29 March 2012 (exhibit Education 12).  That was actually a meeting which took place some 10 weeks prior to the actual receipt of Ms Cattaway’s letter of 11 June 2012.

127    The respondent submits there was no noticeable improvement in key factors of Mr Guretti's role as a teacher.  Demonstrating a fair process overall in accordance with the policy the school then provided written notification of the areas in which Mr Guretti’s performance was considered to be substandard (exhibit Education 13).

128    Once Ms Cattaway’s letter was sent on 11 June 2012 Mr Guretti was invited to provide a written response and he did so, a response that was quite lengthy and was responded to by Ms Cattaway within a five day period.  The applicant was informed that he did not provide an adequate explanation and the alleged substandard performance was referred to the director general of the respondent (exhibit Education 14).

129    The director general notified Mr Guretti that an investigation was being conducted and an investigator was appointed who had no previous involvement in the process.  Following the completion of the investigation and the provision of the report to the director general a copy of the report of the investigation is provided to the applicant.  He was provided with an opportunity to respond in writing and Mr Guretti did so (exhibit Education 16).  The director general notified the applicant of the outcome of the proposed action to Mr Guretti and gave him the opportunity to respond in writing to the proposed sanction.  On the latter matter, that is the proposed penalty of termination Mr Guretti chose not to respond.

130    In Kioa v West the respondent referred at [23] to Mason J description of procedural fairness as:

… the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interest and purposes, whether public or private, which the statue seeks to advance or protect or permits to be taken into account as legitimate considerations.

131    The respondent suggested there was no established principle of procedural fairness that required an employer when investigating substandard performance to interview people or provide an employee with an opportunity for an interview.  Whether such steps are required in a certain cases will depend on the case.  The language used by the director general in her letter made it quite clear that there was no statement that demonstrated an intent to interview (exhibit Education 15).

132    Even if the Commission construes otherwise and decides that the applicant had a legitimate expectation that he would be interviewed in Minister for Immigration and Multicultural Affairs, ex parte Lam (2003) 214 CLR 1 Gleeson J states that:

… If, by stating an intention to take a certain course, a decision-maker becomes bound to take that course, regardless of whether any disadvantage to a person affected results from a failure to take the course, then an expectation appears to become a right.

133    The respondent suggests there was no detriment suffered by the applicant. There was no practical injustice suffered.  Mr Guretti also raises any issue that he was denied procedural fairness in that he was not provided with all of the documents.  Throughout the process neither Mr Guretti or his counsel requested to be provided with further documentation.  The respondent submitted had that occurred and they had been denied such documentation then the Commission may have been in a position to determine whether there had at that point been a breach of procedural fairness.

134    The respondent submitted that the applicant bears the responsibility of discharging the onus that Mr Guretti was denied procedural fairness.  In Sanzana v Director General, Disability Services Commission it was held at [33] and [34]:

To determine whether performance is substandard it is necessary to compare the actual performance with the standard to be achieved. That standard can be gathered from the evidence of standard practice, from documents such as job description forms, procedures and policies. It can also be determined by reference to training and directions given to staff, and, of course, to common sense.

If performance is substandard, it does not automatically follow that dismissal is appropriate or fair. However, in the case of an employee whose performance is substandard in significant matters or to a significant degree and the employee refuses to accept that this is so, the prospects of improvement to the required standard are reduced. Accordingly dismissal may not be unfair in those circumstances. It would depend on a number of factors including the nature and degree of performance deficiency, the prospects for the performance being raised to the required standard and the practicability of an opportunity for training and correction.

135    Mr Guretti attested in his evidence that it was his opinion that he had achieved a broad range of the requirements set out in his PMAP.  The respondent was left with no choice but to terminate Mr Guretti.  The respondent submitted for Mr Guretti to continue teaching would have compromised the education of the students he was teaching at the time.  The process undertaken to respond, review and effect Mr Guretti’s termination conformed with the required statutory requirements.  There were no fundamental omissions in the process used.

136    The test in determining whether a dismissal is a fair or not is well settled in this Commission. The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant so as to amount to an abuse of the right is outlined by the Industrial Appeal Court in Undercliffe.  The onus is on the applicant in such matters to establish that the dismissal was unfair.

137    The respondent submitted terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair referring to Shire of Esperance v Mouritz (1991) 71 WAIG 891.

138    The respondent submits the director general considered dismissal was the most appropriate penalty in the circumstance and requests the Commission consider dismissing the application.

The Commission’s Findings and Conclusions

Credibility

139    The Commission has listened carefully to the evidence given by each witness and closely observed each witness.  In my view Mr Guretti gave his evidence in a considered and confident manner and his detailed evidence was supported by some documentation.  There is nothing in the evidence of Mr Guretti which I consider to be untruthful or improbable.  I have listened carefully to the evidence given by Mr MacFarlane, Mr Holyoake, Mr Naidoo and Ms Kane on behalf of the applicant and Ms Cattaway, Ms de Grace, Ms Hansen and Mr Dodd on behalf of the respondent and in addition, closely observed each witness both in the giving of their evidence and also their manner.  It is the Commission’s view that each witness gave their evidence clearly and to the best of their ability.  The Commission prefers Mr Naidoo’s evidence over Ms Hansen’s evidence with respect to the criticism of Mr Guretti returning to Kalgoorlie overheard in the staffroom.  All other evidence given by Ms Hansen is accepted.  In my view all of the other witnesses who gave evidence in these proceedings gave their evidence honestly and to the best of their recollection and I therefore accept the evidence they gave.

140    Mr Guretti considers he has been unfairly terminated, that he suffered a lack of procedural fairness in terms of the procedure adopted by the respondent in applying the substandard performance process.  The respondent failed to give consideration to alternative penalties when dismissal was selected as the appropriate s 79 consequence under the PSMA.  Further, the respondent failed to take into account Mr Guretti’s conduct.  It is Mr Guretti’s view that the penalty of dismissal was harsh, oppressive and unjust and Mr Guretti seeks reinstatement.

141    The respondent’s submission is that having reached the view that Mr Guretti was guilty of substandard performance and in accordance with the PSMA consideration was given to a range of penalties.  The respondent applied the correct procedures in accordance with s 79 of the PSMA and at all stages the principles of procedural fairness were applied. The respondent considers the Commission should issue an order dismissing the application.

142    The rights, duties and obligations between employees and employers in the public sector are governed by statute in this particular case s 79 of the PSMA which is contained in Part 5 of the PSMA, headed up ‘Part 5 - Substandard Performance and disciplinary matters’, which outline the application and scope of the section including the rights of appeal to the Commission for relevant employees.  In respect of these proceedings there was no dispute regarding the referral and the Commission finds that Mr Guretti is a relevant employee for the purposes of these proceedings.  In Johnston v Mance where Kenner C discusses the purpose of proceedings as earlier referred to the Commission agrees with the reasoning of Kenner C and finds in relation to this matter, given the nature of this application, the Commission can review the respondent's decision to terminate Mr Guretti as a hearing de novo.

143    The relevant provision of the PSMA is as follows:

79. Substandard performance, definition of and powers as to

(1) For the purposes of this section, the performance of an employee is substandard if and only if the employee does not, in the performance of the functions that he or she is required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions.

(2) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether or not the performance of an employee is substandard, regard — 

(a) shall be had — 

(i) to any written selection criteria or job specifications applicable to; and

(ii) to any duty statement describing; and

(iii) to any written work standards or instructions relating to the manner of performance of,

   the functions the employee is required to perform; and

(b) may be had — 

(i) to any written selection criteria or job specifications applicable to; and

(ii) to any duty statement describing; and

(iii) to any written work standards or instructions relating to the manner of performance of,

functions similar to those functions.

(3) Subject to subsections (4), (5) and (6), an employing authority may, in respect of ``              one of its employees whose performance is in the opinion of the employing authority substandard for the purposes of this section — 

(a) withhold for such period as the employing authority thinks fit an increment of remuneration otherwise payable to that employee; or

(b) reduce the level of classification of that employee; or

(c) terminate the employment in the Public Sector of that employee.

…

(5) If an employee does not admit to his or her employing authority that his or her performance is substandard for the purposes of this section, that employing authority shall, before forming the opinion that the performance of the employee is substandard for those purposes, cause an investigation to be held into whether or not the performance of the employee is substandard.

144    The Commission considers that Mr Guretti was aware that the respondent had concerns about his performance.  What the Commission does not accept is that Mr Guretti knew the degree of concern the respondent had regarding his employment.  It was said by Ms Cattaway in evidence that she discussed with Mr Guretti on 29 March 2012 the possibility of a substandard performance process.  Exhibit Education 12 is a handwritten note by Ms Cattaway written sometime after meeting with Mr Guretti indicating she had presented the employee performance policy to Mr Guretti.  When Mr Guretti was asked whether he recalled the meeting his words were 'Yes, vaguely’ (ts 171).  The Commission considers that Ms Cattaway did warn Mr Guretti of the substandard performance process in March 2012.  I believe Ms Cattaway thought she had undertaken the task however she was a person involved in administration and most familiar with the policy and the words ‘substandard process’.  In the Commission’s view however Ms Cattaway was unsuccessful in transmitting the seriousness of the situation to Mr Guretti in so far as there being a consequence for Mr Guretti’s employment.

145    The Commission accepts that Mr Guretti received an employee performance policy (exhibit Education 11) on that same day however the copy received by Mr Guretti did not include the flowchart (21 July 2010) that copies currently have.  The document is a 16 page policy statement addressing a number of procedures of which substandard performance comprises only part of the document.  For example, a reader would have to be aware as to whether he/she is a s 79 employee or non s 79 employee.  In addition, a reader would have to be aware of the ‘jargon’ of the respondent e.g. ‘superordinate’, ‘substandard’.  These are but a couple of examples.  Importantly to be fully understood the document has to be read in conjunction with relevant legislation, departmental policies, awards, enterprise bargaining agreements and public sector standards.

146    The Commission considers that by the end of the meeting between Ms Cattaway and Mr Guretti even if Mr Guretti read exhibit Education 11 in its entirety he would not be aware that his employment was in jeopardy therefore the Commission does not accept that Mr Guretti was warned on 29 March 2013.  The Commission accepts that Ms Cattaway may have understood that she warned Mr Guretti but based on Mr Guretti’s own evidence which was he understood he was making good progress, clearly that was not the case.  In making my findings I refer also to exhibit Guretti 17 (70, [2]):

I have been an active participant in my Performance Management Action Plan and was aware it could lead to substandard performance process, but at no time was it explained to me what the Substandard Performance process meant nor was there any indication from my line manager that recent efforts being made had reached their end and that things are now progressing to Substandard Performance.

147    The Commission finds with respect to the (exhibit Education 11) policy that Ms Cattaway as the superordinate gave direct evidence that she failed to consider Mr Guretti’s written response contrary to the respondent’s own policy.  Ms Cattaway agreed in evidence her response to Mr Guretti’s letter was short.  The Commission understands Ms Cattaway had been anxious to follow the correct procedure and in so doing had followed a ‘sample’ letter.  Counsel for Mr Guretti asked Ms Cattaway:

I don’t – I wasn't concerned with fairness.  I was concerned with following the policy?

Ms Cattaway in response said:

---I didn't say that I wasn’t concerned, I said I wouldn’t consider it.

(ts 257)

148    The Commission has been asked by counsel for Mr Guretti to draw an adverse inference as a result of the respondent not calling the investigator to give evidence.  The rule in Jones v Dunkel (1959) 101 CLR 298 is a common rule practice that a tribunal is entitled to apply.  It may be concluded that the failure to call a significant witness, such as the investigator, by the respondent, indicates that the missing evidence would not have assisted the respondent, Forbes J R S, Justice in Tribunals, (3rd ed, 2010) [12.48].

149    The Commission would like to examine the work of the investigator to ensure that before the director general determined the action she did against Mr Guretti, the respondent conducted as full and as extensive an investigation as was possible into all of the relevant matters surrounding the alleged substandard performance as was reasonable in the circumstances.  The respondent must be able to demonstrate that it afforded Mr Guretti natural justice and procedural fairness in the investigative process.  In examining all the notes made by the investigator during the investigation, the questions asked during the investigative process, the persons the investigator addressed and questions put in addition to her final report the Commission finds that at no stage did the investigator put any question, email, interview, nor did she phone Mr Guretti.  Similarly, there was no contact with Mr Guretti’s union representatives or those persons who had attended observations in his classrooms at his request.  In addition the Commission finds there was no correspondence sent to Mr Guretti or his union representatives.  The Commission accepts that seemingly, the investigator did consider Mr Guretti’s correspondence (exhibit Guretti 17) of 2 July 2012.

150    Conversely, there are numerous pages of notes outlining questions from the investigator to Ms Cattaway.  Many of the questions would have been better answered by Mr Guretti as they were questions as to how Mr Guretti felt, not how Ms Cattaway considered he felt.  On the basis of the information sought by the investigator the Commission finds that Mr Guretti (with the exception of his letter of 12 July 2012 seemingly having been read by the investigator) almost appears to have been excluded from the investigation.  Having made that finding I do not consider it necessary for every employee to be interviewed in such circumstances but clearly for the scope of the information being sought in this investigation including Mr Guretti’s requests to change his line manager there were some significant requests being made by Mr Guretti.  An interview, courtesy correspondence, an email or certainly communication by telephone at the very least would have been useful and would have allowed Mr Guretti to feel as if he had been part of the investigative process.

151    One of the identified areas of concern relating to Mr Guretti in the investigation was ‘the learning environment’.  The Commission finds the investigation failed to identify that KBCHS drew specific behavioural issues with children.  Evidence was given by number of witnesses including Mr McFarlane, Mr Holyoake, Mr Naidoo and Ms Kane that there were problems amongst the children:

What was the student behaviour that made the students difficult?‑‑‑Right.  They - generally lack of - seeing a lack of desire to actually learn anything.  They were there because the law said they had to be there a lot.

Yes?‑‑‑They would run in any out of the classrooms.  Wouldn’t - wouldn’t attack the teacher as much as just feel they had the right to leave and come whenever they wanted to and - and damage things if they wanted to.

(ts 14)

152    In the section Performance Issues of the investigation report written by the investigator and forwarded by the director general to Mr Guretti on 14 November 2012 the investigator states the evidence indicates:

Ms Hansen has compiled comprehensive notes about her interaction with Mr Guretti relating to identified performance issues.

Mr Guretti notes in his correspondence written on behalf of his counsel written on 7 December 2012 that:

Up until reading this report, I have not been made aware that Ms Hansen was involved in my performance management.  I have not been involved in any discussions with her about her alleged concerns, nor have I seen any evidence of her concerns.  As this is new information which has come to light and never been raised in any previous meetings, conversations or correspondence, I feel that I am disadvantaged in my ability to defend these.

(Department of Education document 294)

The Commission finds the circumstances relating to Ms Hansen’s involvement in Mr Guretti’s performance management without his understanding to be somewhat alarming.

153    The Commission considers critical in an investigation such as the one overseen by the investigator is that the process is fair both substantively, and by perception.  The perception was that the investigation was one sided, made more so by excluding the investigator from the giving of evidence.

154    The respondent's policy (exhibit Education 11) on employee performance requires under 4.3 substandard performance for superordinates and line managers to:

•         base their opinion that an employee's performance is substandard on evidence and the reasonable expectations of the role;
• not normally commence substandard performance management unless an employee has been:

previously formally advised what aspects of their performance are considered unsatisfactory; and

given a reasonable opportunity and assistance to improve to a satisfactory standard.

In managing substandard performance, line managers will:

• employ and demonstrate a proper and fair process; and
• treat staff with courtesy, sensitivity and consideration.

The Commission is of the view that in the circumstances Mr Guretti was not given a reasonable opportunity to improve because he did not know what ‘substandard’ meant until such time as he received the letter from Ms Cattaway on 11 June 2012 (exhibit Education 13).  While he responded to Ms Cattaway's letter in comprehensive form he was shortly thereafter advised by the director general that an investigator was to be appointed and accordingly in the Commission’s view, there was no opportunity for Mr Guretti from 11 June 2012 to improve his performance, even though he remained employed by the respondent through to February 2013.

155    In the Full Bench Decision in the Minister for Health v Drake-Brockman (2012) WAIRC 00150; (2012) 92 WAIg 203.  the criteria that governs the evidentiary onus on an employer was considered by the Industrial Commission of South Australia in Bi Lo wherein the Commission observed at 229 – 230:

An employee is entitled to both substantive and procedural fairness in respect of a dismissal.  Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds.  Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.

156    In the same Full Bench Drake-Brockman decision once findings are made by the Commission as to the circumstances of the conduct which is said to warrant the dismissal, the next step is to make an assessment of whether a dismissal is harsh, oppressive or unfair.  Heenan J in Garbett v Midland Brick Company Pty Ltd (2003) WASCA 36; (2003) 83 WAIG 893 relevantly observed [72 – 73]:

Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given.  Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other…

In this State a test which has been adopted by the Commission, and approved by this Court, is to consider whether the dismissal amounted to an abuse of an employer's right to dismiss thus rendering the dismissal harsh or oppressive - Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635, Undercliffe  and Amalgamated Metal Workers’ and Shipwrights Union of Western Australia v Robe River Iron Associates (1989) 69 WAIG 985, 987.  In cases where the alleged harsh, oppressive or unfair nature of the dismissal relates to the procedure followed by the employer in effecting the termination of employment it has been held in this State that a failure to adopt a fair procedure by the employee can lead to a finding that the dismissal was harsh, oppressive or unfair – Bogunovich v Bayside Western Australia Pty Ltd, but a lack of procedural fairness may not automatically have this result - Shire of Esperance v Mouritz.

157    The Commission finds that there were there were delays caused by Ms de Grace in getting Mr Guretti’s performance plan implemented in an appropriate amount of time.  Further, the Commission finds that the evidence demonstrates the exchange between Ms Cattaway and Mr Guretti on 29 March 2012 failed to transmit that Mr Guretti understood there was a consequence for his employment associated with moving onto substandard employment.

158    The Commission finds that Mr Guretti had a legitimate expectation to be provided with all the details associated with the investigation before the report was actually concluded.  In other words Mr Guretti had a right to know what the case was against him, Kioa v West .  As an example Ms Hansen appears to have made a significant contribution in a negative sense about which Mr Guretti knew nothing which was, in my opinion, a denial of natural justice.

159    When taking all the issues into account the procedure followed by the employer in seeking to  terminate Mr Guretti for substandard performance it is the view of the Commission that the respondent failed to follow procedural fairness in that:

• Mr Guretti was given no opportunity to improve his performance once advised he may be moved onto the substandard process;
• Ms Cattaway did not consider Mr Guretti’s detailed response of 2 July 2012 (exhibit Guretti 17) contrary to the respondent’s policy;
• the investigative process gave the impression it was one sided as apart from the investigator advising in writing (respondent’s discovery documents 306) she had read Mr Guretti’s letter of 2 July 2012 (exhibit Guretti 17) the investigator had no contact with any persons associated with Mr Guretti;
• the investigation was limited in the evidence it considered;
• Ms de Grace failed to treat Mr Guretti with sensitivity and consideration in her observations as a line manager, contrary to the respondent’s policy;
• there was a failure by the school to assist Mr Guretti to understand his role and responsibilities in relation to the performance management process;
• the investigator relied on details which were never presented to Mr Guretti which is fundamentally unfair;
• Mr Guretti asked on more than one occasion to change his line manager, a request that was overlooked; and
• it appears that the respondent based its view on Mr Guretti’s substandard performance on only four observations (contrary to its own policy), the last one undertaken on 2 May 2012, some 4 weeks prior to the correspondence of 11 June 2012, an observation whereby no feedback was sought from Mr Guretti.

160    It appears to the Commission that little regard was had to the several years that Mr Guretti spent as a teacher in metropolitan schools with no issues being raised regarding his performance.  One of the criticisms raised in the report was the lack of professional development Mr Guretti had undertaken yet the school was aware he had signed up to the second stage of tactical training in term three, 2012.  Mr Guretti had to withdraw because of knee replacement surgery which meant that he was absent from school.  The fact that Mr Guretti marked five classes of exams while on sick leave at the request of one of the teachers (some 100 exams) was simply overlooked in the investigation report.  In addition the Commission finds it passing strange that Ms Hansen gave the investigator a notable amount of information yet Mr Guretti was unaware of Ms Hansen’s role until he read the investigator’s report.  In the Commission's mind the respondent has had no regard for the length of Mr Guretti’s service as a teacher and the promptness with which Mr Guretti gained his permanency following commencing his employment at KBCHS.

161    The director general forwarded correspondence to Mr Guretti advising him that in accordance with s 72(1) of the PSMA Mr Guretti’s performance was considered substandard and in accordance with s 79(3) of the PSMA termination of this employment was considered to be appropriate.  The director general under the particular section had the option of reduction in salary, transfer or termination.  The director general chose termination but gave Mr Guretti 10 working days to respond to the proposed sanction.  Mr Guretti chose not to respond:

PRIVATE AND CONFIDENTIAL

Mr Patrick Guretti

C/- Mr Simon Millman

Slater & Gordon Lawyers

GPO Box 2557

PERTH WA 6001

Dear Mr Guretti

In my letter to you dated 20 December 2012, I notified you that I had formed the opinion that your performance is substandard within the meaning of section 79(1) of the Public Sector Management Act 1994 (WA) (“Act”). I also informed you that I intended to terminate your employment as a teacher with the Department of Education (the Department).

You were given a reasonable opportunity to provide written submissions concerning the action I proposed to take, however I have not received any submissions from you or on your behalf. Accordingly, I maintain the view that termination of your employment, pursuant to section 79(3) of the Act, is the most appropriate action in this case.

The Department expects its employees to perform their duties with diligence to the required standard. In imposing this sanction I have considered the impact of your performance on public school students and the important position of trust held by Departmental employees and the expectations of them by the wider community.

In order to finalise your employment with the Department I have instructed the Personnel and Payroll Branch to calculate your pay up to 22 February 2013 as payment in lieu of notice in accordance with the Teachers (Public Sector Primary and Secondary Education) Award 1993 as well as any outstanding entitlements that may be owed to you. Payment will be made to your usual nominated bank account. If monies are owed to the Department, these will be deducted from your final payment where the Department is properly authorised to do so.

In accordance with section 78(2) of the Public Sector Management Act, 1994 you may refer this matter to the Western Australian Industrial Commission should you wish to appeal this decision.

Again, please be advised the Department of Education provides a free and confidential counselling service, PRIMEXL, should you wish to use it. PRIMEXL may be contacted on 9492 8900 or 1800 674 188 for regional areas.

If you have any questions arising from this correspondence, please contact Mr Keith Dodd, Director, Labour Relations, on 9264 4921.

Yours sincerely

SHARYN O'NEILL

DIRECTOR GENERAL

162    In all of the circumstances I find that the applicant was not given a fair go all round and was unfairly terminated (see Undercliffe).  The onus in terms of proving whether a dismissal is harsh, oppressive or unfair rests with the applicant.  The Commission finds, on the balance of probabilities that Mr Guretti has demonstrated the dismissal was unfair in that the respondent failed to adopt a fair procedure when seeking to place Mr Guretti on a substandard performance procedure pursuant to s 79 of the PSMA.  The Commission finds Mr Guretti has discharged the onus in proving that the dismissal was unfair. 

Remedy

163    Turning to the question of remedy, the Commission has yet to receive submissions from either Mr Guretti or the respondent in respect of this matter.  The question was left dependent on the outcome of the hearing at first instance.  It was determined that should the outcome favour Mr Guretti the Commission would leave submissions on the question of remedy until further submissions are heard.  Should the outcome favour the respondent then the need for further submissions would no longer be required.

164    The Commission declares that Mr Guretti has been unfairly dismissed.  At all times, the decision of the Commission is to be in the form of an order or a declaration as per s 34(1) of the Act.  Given the view of the applicant and the respondent regarding the deferral of submissions on the issue of reinstatement or re-employment the Commission might be best placed by reflecting in a declaration that Mr Guretti was unfairly dismissed.  There is some hesitation whether the Commission can issue a declaration without an associated order, Minister for Police v Western Australian Police Union of Workers (2000) WAIRC 01174; (2000) 81 WAIG 356.  Due to the parties’ preference that at this stage the Commission decide only the issue of unfair dismissal the Commission will therefore issue a ‘finding’ as defined in the Act.

165    The Commission therefore considers it appropriate to issue a declaration that Mr Guretti was unfairly dismissed by the respondent and also order that the application be relisted to hear submissions on the question of reinstatement and or re-employment.  A minute reflecting this view now issues.  The form of the order to issue is not an issue that has been addressed by either party and therefore, if requested, the matter may be addressed at a speaking to the minutes.