WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00105

DELIVERED : Wednesday, 14 February 2018

FILE NO. : U 93 OF 2016

Applicant

AND

Ms Sharyn O'Neill

Director General,

Department of Education

Respondent

CatchWords : Industrial law (WA) – Claim of unfair dismissal – Remitted by Full Bench for further hearing and determination – Scope of remittal – Process for further hearing – New evidence relating to mitigation of loss since first hearing – Alternative issues for further hearing to be heard concurrently – Avoidance of delay – Minimum legal form

Legislation : Industrial Relations Act 1979 (WA)  s 6(c)

  School Education Regulations 2000 (WA)  reg 38 

Result : Decision issued

Representation:

Counsel:

Applicant : Mr M D Cox of counsel

Respondent : Mr J Carroll of counsel

Solicitors:

Applicant : MDC Legal

Respondent : State Solicitor's Office

Reasons for Decision

1         The Full Bench suspended the order of 26 April 2017 ([2017] WAIRC 00234; (2017) 97 WAIG 551) and remitted this matter for further hearing and determination ([2017] WAIRC 00879; (2017) 97 WAIG 1689).  The Honourable Acting President wrote the main reasons for decision.  Acting Senior Commissioner Kenner agreed and Commissioner Emmanuel agreed with all but one aspect of her Honour's reasons.  

2         The parties disagree on the scope of the issues and the evidence to be called for further hearing and determination.  I have examined the Full Bench's decision and heard from the parties.  For the following reasons, I conclude that there is to be a single-stage hearing.  It will deal with all matters including those that may require consideration if I take a different view of Mr Landwehr's use of force, referred to in ground 1(b) of the appeal and commented on by Smith AP at [83] and also the matters at [88].  The further hearing and determination is to provide for:

(a) any application by Mr Landwehr to call new evidence regarding:

(i)  mitigation of loss since the decision at first instance;

(ii) any consideration of the issues relating to the Teacher Registration Board of Western Australia (Teacher Registration Board);

(b) cross-examination and re-examination of Mr Landwehr as to his state of mind regarding provocation in the second incident; and

(c) submissions as to:

(i)   the matters set out in (a) and (b) above; 

(ii)  exculpation and mitigation relating to the conduct; 

(iii) should they arise:

• mitigating factors referred in ground 1(b) of the appeal;
• any material differences as to the circumstances of the first and second incidents; and
• mitigation of loss since the decision at first instance.

Mitigation

3         To avoid confusion, I should point out that the term 'mitigation' arises in a number of separate contexts in this case.  The first is in relation to Mr Landwehr's conduct, whether, amongst other things, the student's conduct was provocation which is exculpatory or mitigatory of that conduct.

4         Secondly, it relates to whether Mr Landwehr's circumstances at the time, being the matters set out in ground 1(b) of the appeal, mitigate against dismissal. 

5         The third use of the term 'mitigation' is what Mr Landwehr has done to mitigate his loss arising from the dismissal.

Provocation

6         In respect of ground 1(a), it was argued before the Full Bench that the issue of Mr Landwehr's loss of self-control was a consequence of the student's conduct.  It is said that this provocation resulted in Mr Landwehr responding in an impulsive and instinctive way to the genuine threat to his health by the student's conduct.  As the Full Bench noted, this issue, while not expressly and clearly articulated in the hearing of first instance, was the subject of evidence contained within the documents ([63] and following). 

7         As the Acting President noted at [64]:

The learned Chief Commissioner found Mr Landwehr lost his self-control, but she did not examine whether the actions of the student caused the loss of control as an exculpatory or mitigatory circumstance.  Nor was she invited by the parties to turn her mind to this issue.

8         Therefore, the appeal in respect of ground 1(a) particulars (i) and (v) was upheld.  Smith AP expressed the opinion that 'this matter requires further hearing and determination which will require a reassessment of whether Mr Landwehr's concern for his life was questionable and an assessment of the severity of the incident' and that it necessarily encompassed the particulars in (ii), (iii), (iv) and (vi) of ground 1(a) [73].

9         My understanding is that the Full Bench said that, in his written response to the Director General, Mr Landwehr expressed his state of mind regarding the loss of self-control due to provocation.  Should she wish to do so, the respondent should now have an opportunity to cross-examine him on these matters.  For the purposes of the remittal, that is all the evidence that is required.  Other evidence may be required depending on my conclusion, that is whether the issues of mitigation referred to in ground 1(b) arise.

10      Smith AP, while dismissing ground 1(b) found that if I take a different view in relation to Mr Landwehr's state of mind, provocation and use of force in the second incident, then it is open to the parties to put to me that I should reconsider those matters of mitigation [83].

11      Therefore, the parties may put submissions on that matter.

12      Grounds 2 and 3 of the appeal relate to the distinction between the circumstances relating to the first and second incidents, that they were each fundamentally different [85].  This had consequences for whether Mr Landwehr should have learned from the training, counselling and reprimand he received from the first incident [87].

13      Her Honour said at [88] that in light of her reasons for upholding ground 1(a), in so far as particularised in (i) and (v):

[I]t is my opinion it is not necessary to decide whether grounds 2 and 3 of the appeal have merit.  In a further hearing before the learned Chief Commissioner it would be open to Mr Landwehr to put a submission that if the learned Chief Commissioner forms the view that whilst the conduct of Mr Landwehr in both incidents was similar she should find that in some respects the circumstances of the second incident were materially different. 

14      The remainder of the task, then, requires scrutiny of the evidence already received.  There is no requirement or need for further evidence.  Rather, it is for me to scrutinise what is in the documents as part of the evidence before me at first instance but which was not referred to in any significant way by the parties at the time.  Part of my scrutiny will involve hearing the parties' submissions about that material.

15      The following issues then arise for consideration:

(a) Regarding provocation:

(i) whether the actions of the student in the second incident and all the circumstances caused the applicant's loss of control;

(ii) whether the applicant's use of force occurred in a state of his loss of control;

(iii) whether it was unreasonable to expect the applicant to act with composure in the circumstances;

(iv) whether the circumstance of provocation was exculpatory, that is a complete excuse.  In that case, there is no further question; Mr Landwehr should not have been dismissed;

(v) alternatively, if the provocation was not exculpatory, was it mitigatory; and

(vi) the extent of force used weighed against the extent of any provocation.

(b) The difference between the circumstances relating to the first and second incidents.  Smith AP and Kenner ASC expressed the view that the issue of horseplay was not a relevant factor and was not a matter taken into account by the Director General ([95] and [102]).  Therefore, that is a matter which I should not take into account in the further determination of this matter.

16      I may then need to consider whether, in all of the circumstances, the dismissal was proportionate to the conduct.  In that respect, grounds 3, 4(a) and 4(b) of the appeal need to be considered in respect of the proportionality of dismissal.

17      If dismissal was disproportionate and unfair then remedy is to be considered.  If reinstatement is impracticable, then compensation is a consideration.  That raises the question of what Mr Landwehr has done to mitigate his loss since the first instance decision.  I have not at this stage considered the significance or otherwise to the question of the Teacher Registration Board and will address it later.

Cross-examination of the investigator

18      The applicant wishes to cross-examine the investigator.   

19      As I understand it, this issue arises from the investigator's analysis of all of the material in the investigation report.  That material included Dr Lai's report and the statements made by students.  The investigator found that 'Mr Landwehr's concern for life is questionable' (Investigation Report, Agreed document 8, [3.19]) and the actions of the student 'were not to the severity that Mr Landwehr later claims'.  The Full Bench held that those findings by the investigator ought to have been scrutinised by me before they were accepted [71].

20      Therefore, what is required is that I examine those findings in light of the other material.  That scrutiny may be assisted by the parties' submissions.  However, further evidence by way of cross-examination of the investigator is not required by the Full Bench's decision.  In any event, the respondent does not propose to call the investigator so if the applicant sought to call the investigator himself, his questioning would be by examination-in-chief, not cross-examination.

Regulation 38

21      The issue regarding regulation 38 of the School Education Regulations 2000 is not for consideration as it was not a matter that the Full Bench concluded was live [53].  The issues that arise are consequential upon Mr Landwehr's acceptance that his use of force was excessive and inappropriate.  The question that follows from that is if the applicant was provoked, was it exculpatory or mitigatory?

Mitigation of loss

22      Any further evidence in relation to Mr Landwehr's mitigation of his loss is to be limited to what Mr Landwehr has done since the first hearing.  I note that there was very little before me at the first hearing.  It seems that, having inadequately argued that matter at first instance through his previous counsel, he is not entitled to seek to rectify these inadequacies under the current circumstances.  Therefore, any evidence about mitigation of loss can relate only to what has occurred since I dealt with the matter on the first occasion.

Teacher Registration Board

23      The decision of the Teacher Registration Board is said to be a matter which would be consequential upon the conclusions that I might reach.  In the circumstances, it seems that this is a matter which may require evidence depending upon my conclusions.  If so, then as with the matter of mitigation, it is appropriate that that evidence be dealt with as part of a one-stage process.

Two-stage process

24      It is clear from Smith AP's reasons that if I now take a different view of Mr Landwehr's conduct in the second incident, it is open to the parties to put that I should reconsider certain matters put in mitigation in light of the findings about the seriousness of the second incident.  Those issues were set out in ground 1(b) of the appeal.

25      If the course suggested by her Honour in [83] is followed, then a two-stage process would be required, the second stage occurring only after the hearing and determination of the first and subject to a particular conclusion.

26      The Commission is required to act expeditiously and with the minimum of legal form and technicality (Industrial Relations Act 1979 s 6(c)).  In those circumstances and for the sake of convenience to the parties and the Commission, and to avoid further delay, a single hearing will now be convened.  It will deal with all matters including any application to bring fresh evidence referred to above and the parties' submissions on all matters including those in anticipation of my taking a different view of Mr Landwehr's conduct in light of provocation and Mr Landwehr's mitigating circumstances.