DISPUTE RE ALLEGED UNFAIR DISCIPLINARY PROCESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The State School Teachers’ Union of Western Australia (Incorporated)

APPLICANT

-v-

The Governing Council of Kimberley Training Institute

RESPONDENT

CORAM Acting Senior Commissioner P E Scott

DATE Friday, 21 November 2014

FILE NO/S C 34 OF 2014

CITATION NO. 2014 WAIRC 01273

Result Application for interim order dismissed

Representation

Applicant Mr M Amati

Respondent Mr D Anderson of counsel and with him Ms G Husk

Order

WHEREAS this is an application pursuant to s 44 of the Industrial Relations Act 1979 (the Act), filed on 17 November 2014, by which the applicant sought an urgent conference to deal with the dismissal of Mr James (Alex) Petticrew; and

WHEREAS on Wednesday the 19th day of November 2014 the Commission convened a conference pursuant to s 44 of the Act for the purpose of conciliating between the parties; and

WHEREAS the parties reached agreement in respect of a number of interim orders sought by the applicant in respect of Mr Petticrew remaining in his Government Regional Officer Housing until the matter had been heard and determined by the Commission and in respect of discovery of documents; and

WHEREAS the parties were unable to reach agreement as to the matter of Mr Petticrew’s reinstatement; and

WHEREAS the applicant sought that the Commission issue an order pursuant to s 44(6)(ba)(ii) of the Act that Mr Petticrew be reinstated on full salary until the matter is heard and determined by the Commission; and

WHEREAS the applicant says that such an order would enable arbitration to resolve the matter: 

1. That the maintenance of the status quo would allow the parties to participate in arbitration;

2. That if Mr Petticrew is not reinstated pending the hearing and determination of the matter then he will face significant disadvantage;

3. That if the applicant is successful in the matter then Mr Petticrew would receive payment for the interim period due to the application seeking orders that the respondent’s decision to dismiss Mr Petticrew be quashed and that he be reinstated to his position without any break in service; and

4. That there may be delays in the hearing of the matter due to witness scheduling and other logistical matters; and

WHEREAS the respondent says that the interim order sought, if granted, would not have the effect required by s 44(6)(ba)(ii) of the Act in that such an order would not enable arbitration to resolve the matter in question.  The respondent also says that the preservation of the status quo is not necessary to facilitate arbitration.  The respondent says that should the applicant be successful in the application then Mr Petticrew will be entitled to payment for the intervening period, however if the applicant is not successful there would be no capacity for the respondent to recoup the wages paid in the interim.  On this basis the respondent says the balance of convenience is against the issuing of interim orders; and

WHEREAS the Commission took account of the parties’ submissions and noted that the power contained within s 44(6)(ba)(ii) is a facilitative and machinery provision for the purpose of assisting in the process of preparation for and the conduct of the arbitration; and

WHEREAS the Commission was of the view that it had not been demonstrated what the failure to grant the order sought would mean in terms of disadvantage to Mr Petticrew other than to be without salary; or that Mr Petticrew’s loss of wages may impinge on the applicant’s or Mr Petticrew’s capacity to participate in the hearing or prepare for arbitration and that the applicant, rather than Mr Petticrew, will be a party to that arbitration.  The Commission also noted that should it be a consideration, then the balance of convenience is against the issuing of an interim order because if the applicant is not successful then the respondent would not have any capacity to recover lost wages, whereas if the applicant is successful then Mr Petticrew will receive payment for the intervening period.  The Commission also noted that an expeditious hearing of the matter and in particular a preliminary point, will alleviate some of the applicant’s inconvenience; and

WHEREAS on these bases the Commission determined that the application for an interim order that Mr Petticrew be reinstated pending the hearing and determination of the matter not be granted;

NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders:

THAT the application for an interim order that Mr Petticrew be reinstated on full salary until the hearing and determination of the matter be, and is hereby dismissed. 

Acting Senior Commissioner P E Scott