WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00320

DELIVERED : Tuesday, 29 May 2018

FILE NO. : U 93 OF 2016

Applicant

AND

Ms Sharyn O'Neill

Director General,

Department of Education

Respondent

CatchWords : Industrial law (WA) – Unfair dismissal – Remitted by the Full Bench for further hearing and determination – Dismissal of a teacher for physical contact with student – Applicant's state of mind when he had physical contact with a student – Whether circumstances of provocation were exculpatory – Dangers of compressed air – Teacher provoked by dangerous act by student – Subsequent conduct mitigated by context of conduct and the employee's personal circumstances – Dismissal was harsh – Reinstatement – Teacher reinstated – Loss of trust and confidence not credibly or rationally based – Deduction of income earned subsequent to dismissal

Legislation : Industrial Relations Act 1979 (WA)  s 23A(3), s 23A(5)

Result : Claim upheld

Representation:

Counsel:

Applicant : Mr M Cox of counsel and with him Ms R Collins of counsel

Respondent : Mr J Carroll of counsel

Solicitors:

Applicant : MDC Legal

Respondent : State Solicitor's Office

Reasons for Decision

1         This matter was remitted for further hearing and determination by the Full Bench (Landwehr v Sharyn O'Neill, Director General, Department of Education [2017] WAIRC 00866; (2017) 97 WAIG 1671 (Landwehr); order [2017] WAIRC 00879; (2017) 97 WAIG 1689). 

2         The issues concern what is referred to as 'the second incident' on 13 August 2015, in which Mr Landwehr grabbed and pushed a student.  There is also reference to 'the first incident', which is when Mr Landwehr pushed a student on 29 October 2014.

The Full Bench decision

3         In the decision of the Full Bench, the Hon. Acting President, with whom Acting Senior Commissioner Kenner and Commissioner Emmanuel generally agreed in this regard, said that the matters requiring consideration relate to the dangers of the misuse of compressed air and whether Mr Landwehr's response to being sprayed by compressed air was impulsive and instinctive, that is, that his response was to provocation by the student.  This involves an examination of Mr Landwehr's state of mind.

4         Her Honour noted that these matters were raised in the material put by Mr Landwehr at first instance but not in arguments put by his then-counsel on his behalf.  Her Honour said provocation was not expressly pleaded as a general plea.  She noted that 'Mr Landwehr's case at its highest that he now seeks to raise in this appeal is that he used force which would usually be regarded as excessive and inappropriate force against a student because he lost control' [53].

5         The Full Bench found that although Mr Landwehr did not raise directly in his response to the Director General or before me at first instance that he lost self-control as an exculpatory or mitigatory circumstance, that he ought to now be able to raise that matter.

6         The Full Bench said that the circumstances where Mr Landwehr did not seek to bring further evidence on those matters was 'one of the exceptional matters where the interests of justice would allow these issues to be put on behalf of Mr Landwehr' [74].

7         The Acting President also commented that 'if these points are pursued, the Director General should be afforded an opportunity to cross-examine Mr Landwehr about his state of mind when the incident occurred and his consequent actions and to adduce any further evidence' [74].

8         In the subsequent hearing before me, Mr Landwehr gave evidence, however, the Director General chose not to cross-examine Mr Landwehr on his state of mind, nor did she seek to call any further evidence.  In those circumstances, I intend to treat the material which supports Mr Landwehr's contention as being uncontested.  The material which contains those matters is Mr Landwehr's interview with the investigator and his correspondence to the Director General.  In addition, the records of the interviews with students present at the incident provide useful insight.

9         Therefore, the issues for consideration relate to the danger involved and whether Mr Landwehr was responding instinctively and impulsively in a state of fear and shock to a provocation which placed his life at risk.  Mr Landwehr's state of mind and response to being assaulted by the student are then to be considered as to whether it was exculpatory or at least an extenuating and mitigating circumstance. 

10      The remainder of the matters flow from what I decide in those first aspects set out above:

1. If I find that the circumstances were not exculpatory, was the provocation mitigatory to his conduct, rendering summary dismissal disproportionately harsh?

2. The weight to be attributed to the disciplinary findings in the first incident and possible reconsideration of whether, even though the conduct in both cases was similar, the circumstances were materially different. 

3. Whether the circumstances of the second incident mean that Mr Landwehr should have learnt from the training, counselling and reprimand he received as a result of the first incident.  This is because in the second incident his loss of control was said to be impulsive and instinctive and that a controlled response was not to be expected in spite of his having learned from the previous incident.  In these circumstances, it is said that summary dismissal was not proportionate to the conduct.

4. Mr Landwehr's personal circumstances at the time and whether they mitigate against dismissal. 

11      In a dismissal, the conduct complained of must be judged on its merits.  Issues such as provocation, and whether any response to it was reasonably proportionate or not, will be relevant considerations (per Smith AP at [41] by reference to The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch v Inghams Enterprises Pty Ltd [2005] WAIRC 02347; (2005) 85 WAIG 3385 and Mt Newman Mining Co Pty Ltd v The Australian Workers Union, West Australian Branch, Industrial Union of Workers (1983) 63 WAIG 2397). 

12      In a case of summary dismissal, the employer has an evidentiary burden to show that there is sufficient evidence to raise the factual matters upon which the employer relies as the reason to dismiss an employee.  Once the employer establishes those matters, the onus moves to the employee to show that the dismissal for that reason was harsh, oppressive or unfair (The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 [65] – [67] (Smith AP and Beech CC)).

The danger and Mr Landwehr's response

13      In this case, there is no dispute that Mr Landwehr grabbed and pushed the student.  It is now for the applicant to demonstrate that the dismissal was harsh, oppressive or unfair.  The first issue to be considered is the danger of the misuse of compressed air. 

14      I have considered Dr Lai's report and the case study attached to it (Investigation Report, Attachment 4).  It provides information to enable the conclusion that the application of compressed air close to the anus or 'through clothes at a distance from the anus' can cause life‑threatening internal injuries.  The respondent does not challenge this information.  I draw that conclusion. 

15      Mr Landwehr was well versed in those dangers and he had instructed his students on them (Letter from Mr Landwehr to Director General (8 April 2016) [4] – [7]).  Mr Landwehr expressed to the Director General his 'trepidation and concern' about being sprayed with compressed air (Letter from Mr Landwehr to Director General (8 April 2016)).  Therefore, Mr Landwehr was entitled to be in fear for his safety if compressed air was directed towards him as he bent over. 

16      Mr Landwehr says that provocation is to be viewed in the broad sense, that it can be construed as an impulsive, instinctive response consistent with a loss of composure and a loss of control in response to a threat to life.

Was the provocation exculpatory or mitigatory?

17      Were the actions of the student, which caused Mr Landwehr's loss of control, exculpatory or mitigatory? 

18      Mr Landwehr referred to a number of authorities dealing with fighting in the workplace, although he acknowledges there is a difference in these circumstances. 

19      I would distinguish between circumstances where fellow employees engage in a fight, one of them in response to the provocation by the other employee, and the circumstances of a teacher engaging in physical contact with or restraint of a student where the student has provoked the teacher.  I do so for a number of reasons. 

20      Firstly, a teacher has a particular duty of care towards a student.  Secondly, the teacher is under direction from policies as to the appropriate circumstances in which to have physical contact with or restrain a student (Department of Education, Behaviour Management in Schools).  The policy says the degree of physical contact must be proportionate 'to the seriousness of the behaviour or the circumstances it is intended to prevent or manage'.  The teacher will have been trained in the application of such a policy.  A teacher is also a mentor and exemplar to the students of appropriate behaviour and self-control.  In his interview with the investigator, Mr Landwehr said, 'I am there as a role model to try and teach them' (Investigation Report, 11).

21      Mr Landwehr appears to accept that there is a difference in how students under the care of a teacher ought to be treated compared with a workplace situation.  He said in the interview with the investigator '[i]n a work situation, I tell you now, if he did that to another person, he wouldn't have been standing probably.  I'll be honest; they would have just turned around and thumped him' (Investigation Report, 10).

22      Therefore, the issue of provocation of a teacher by a student is not, in my view, to be seen in the same way as provocation between fellow employees. 

23      I need to consider whether Mr Landwehr's use of force as a teacher against a student, normally regarded as excessive and inappropriate, and accepted by him as such, can be excused because he is said to have been in a state of extreme fear for his physical safety.

24      In his interview with the investigator and his letter to the Director General, Mr Landwehr described his response to being sprayed with compressed air by the student.  It was to:

1. think that the student's actions 'could kill me, or has killed me';

2. grab and push the student backwards until the student hit the wall a couple of metres behind him during which time the student dropped the hose; and

3. yell at the student that the student could have killed him.

25      In Mr Landwehr's interview with the investigator, he makes clear that his reaction to feeling the compressed air was that it could have killed him.  He grabbed the student and pushed him backwards.  The student dropped the hose.  Mr Landwehr continued to push the student, for a total distance of about two metres.  He let him go when the student hit the wall or the side of the roller door.  He says that he does not know why he grabbed the student.  He went on to say that having been educated in the industry for many years, he was aware that compressed air is dangerous and can kill you and 'not to put [it] near your anus.  And then something like that happens and I don't know, maybe something takes over' (Investigation Report, 10).

26      Mr Landwehr then says he settled down, that it did shake him up for a while, at least three or four minutes.  He says, 'I started to get my composure back. … At the beginning, when it first happened, I thought I was going to be killed' (Investigation Report, 10).

27      Mr Landwehr said later in the interview, 'I thought I was in danger and I just grabbed the student. … I believe that in this situation when I grabbed [the student] that I was removing the risk. … When I grabbed [the student], he dropped the air hose.'

● By grabbing [the student], he dropped the hose.  With the hose gone, it was now safe.

● [The student] dropped the hose as soon as I grabbed him.

● I can't answer why I continued to hold [the student] and push him into the wall after he dropped the air compressor hose.

● I believe that my actions were to re-establish order in the classroom.

● I'll be honest; my mind wasn't really as clear as it could have been at the time.  Lots of things were going through my mind at the time of the incident.

...

● As I said to the kids later, maybe I might have pushed it a bit too much, it definitely didn't kill me of course, but at the time I thought my life was under threat and I thought [the student] could have killed me. 

(Investigation Report, 13)

28      In this interview, Mr Landwehr responded to the particulars of the allegations that were made against him (Investigation Report, 13).  Those particulars were set out in the letter to Mr Landwehr dated 1 September 2015 that:

1. On 13 August 2015, at Western Australian College of Agriculture – Harvey, you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994 in that you committed an act of misconduct.

Particulars

a. You are employed by the Department of Education as a Teacher at the Western Australian College of Agriculture – Harvey.

b. On the afternoon of 13 August 2015, you were teaching Building and Construction.

c. [The student], Year 11 Student, Western Australian College of Agriculture – Harvey, using the compressed air hose, sprayed a shot of air in the vicinity of your buttocks.

d. You grabbed [the student] and pushed him backwards into a wall.

e. You then grabbed [the student] on the top of his shoulder whilst yelling at him.

f. The physical contact you made with [the student] was not reasonable or necessary to manage the student.

(Letter from Mr Cullen to
Mr Landwehr, 15 September 2015)

29      Mr Landwehr agreed with particular 'c'.  He said that at the time he thought his life was under threat and he thought the student could have killed him.

30      He agreed with particular 'd', that he grabbed hold of the student's arms and did yell at him and say he had put his life at risk.

31      Mr Landwehr did not agree with particular 'e'.  He said he never changed his hold on the student.  In respect of particular 'f', he said that he 'thought in the scheme of things, [it] was not excessive force', that if 'people understood the background of compressed air', they would see it in a different context, that '[i]t can be fatal'.

32      Mr Landwehr's response to particular 'e' suggests that he did not see this particular as relating to a second and separate grabbing of the student.  That is, after Mr Landwehr grabbed and pushed the student, and after the student hit the wall, Mr Landwehr released the student.  Then Mr Landwehr started back towards the class.  The student made a comment.  Mr Landwehr turned back again and grabbed the student and pushed downwards.  It appears that Mr Landwehr assumed that the reference to grabbing the student at the top of his shoulder whilst yelling at him is part of the first occasion upon which he grabbed the student and pushed him back against the wall, as opposed to that second occasion.

33      In their interviews with the investigator, the students present during the incident recorded that while in class:

1. Mr Landwehr was sprayed by compressed air as he bent over.  His first response was to verbally direct that it stop because it was dangerous (Investigation Report, 3, 5).

2. The student or another student sprayed him a second time (Investigation Report 3, 5).

3. Mr Landwehr 'turned around and said not to do it.  He said it was dangerous and could kill you.' '[H]e turned around and went crazy' (Investigation Report, 3).

This student also recorded that after Mr Landwehr grabbed him and pushed him against the wall, Mr Landwehr then started to walk away.  The student made a comment, protesting that he had not squirted Mr Landwehr a second time.  At this, Mr Landwehr 'turned around, grabbed me again and pushed me back down … saying, 'You could have killed me'.'

 The student described Mr Landwehr as being 'really angry' (Investigation Report, 3).

4. Another student, S, said Mr Landwehr was sprayed once.  He said Mr Landwehr grabbed and pushed the student against the wall, held him there for about 15 seconds, released him, then starting to walk back to class.   Mr Landwehr then grabbed the student around the neck and yelled at him (Investigation Report, 4).

5. Another student, D, described the initial incident that Mr Landwehr 'got mad and pushed [the student] up against the wall and said, 'You put my life at risk, I could have died from that'.'  He described how Mr Landwehr then 'started to walk away and got halfway back to our group. … [The student] said something', and student D described that 'Mr Landwehr asked [the student] what he said however he never repeated himself …  It was something smartarse.  Mr Landwehr walked back to [the student] and grabbed him between the shoulder and the neck … [and] gave [the student] a little bit of a push downwards and held him there for about 5 to 6 seconds.'

34      Therefore, the students' recitations of the incident confirm Mr Landwehr's assertions about his fear for his safety and even his life.  They confirm that he told the student 'you could have killed me', 'you put my life at risk', and 'I could have died from that'.

35      I find that Mr Landwehr's state of mind arose from a genuine fear of the danger of what had just been done to him by the student.  I find too that his response to that fear was impulsive.  He lost self-control, as the student said in the interviews that 'he turned around and went crazy', he was 'really angry'. 

36      This was not merely a loss of temper due to students being rude, inattentive or cheeky.

What was the severity of the response?

37      Mr Landwehr's actions were to grab and push the student twice.  Although the student was pushed up against a wall, Mr Landwehr did not strike the student.  The student said in the interview that 'the right side of [his] head hit the brick wall and [he] got a graze just below [his] eye.'  He said his back along his spine near his lungs hurt for about a week.  He was in shock and 'was really freaked out' (Investigation Report, 3).

38      This is to be seen in the context of a potentially life-threatening injury to Mr Landwehr.

Can provocation ever be exculpatory?

39      In the appeal in this matter, the Acting President found that:

In my opinion, in circumstances where:

(a) it is agreed by Mr Landwehr that the student dropped the hose as soon as Mr Landwehr grabbed him; and

(b) yet Mr Landwehr's loss of control continued as he continued to push the student and grabbed him a second time after desisting;

it is not open to argue (objectively) that the physical contact Mr Landwehr had with the student was reasonable to prevent or restrain the student from placing at risk the safety of Mr Landwehr as the risk to Mr Landwehr had ceased when the student dropped the hose.

(Landwehr [53])

40      The respondent questions whether provocation can ever be exculpatory for the physical contact by a teacher with a student.  That is, can it ever be a complete excuse, freeing the teacher from blame?

41      I conclude that in circumstances where the actions of a student are likely to cause harm and potentially catastrophic injury to another person, whether intentionally or not, a teacher may be excused from that physical contact in the circumstances.  However, because a teacher has been provoked, it does not mean that any particular level of force is excusable.  Rather, it depends on the circumstances.

42      There were two instances in which Mr Landwehr had unauthorised physical contact with the student.  The first was when he grabbed and pushed the student into the wall.  The respondent accepts that, given the student's actions, it was unreasonable to expect Mr Landwehr to act with composure.  However, the respondent says the extent of Mr Landwehr's use of force means that the provocation by the student provides little by way of mitigation, that is, the extent of his use of force was excessive in the circumstances and dismissal is still appropriate.

43      As to the second grab and push, the respondent says there was no further conduct by the student after Mr Landwehr had released him that could be relied on to support an argument of provocation for the second grab.  This is because Mr Landwehr had released the student and started to walk away.  In this circumstance, Mr Landwehr had sufficiently regained his self-control so the loss of self-control in response to the threat to his safety cannot constitute provocation justifying the second grab.

44      Taking account of all of the circumstances, I find that in grabbing and pushing the student until the student hit the wall, Mr Landwehr acted in fear, possibly fear for his life.  His response to the student's action towards him was instinctive and impulsive.  He was unable to explain it except that he was in fear. 

45      Had the provocation been cheekiness, taunting or some other similar conduct by the student, the conduct would not have been excusable.  However, being sprayed towards the buttocks with compressed air was a reasonable cause for fear and panic.  It is also arguable, and I find, that it would take longer than a few seconds or even a minute for someone in fear and panic to accept that the threat had passed, immediately release the student and not continue to push until the student hit the wall.  In those circumstances, it is reasonable to conclude that this response and conduct is exculpatory – it is excused.

The second contact not exculpatory?

46      The applicant says the grabbing of the student a second time can be explained by Mr Landwehr's lack of composure very quickly after the first assault on him, in the circumstances where Mr Landwehr was genuinely in fear for his life.  The respondent says that even if one accepts that grabbing the student and pushing him against the wall constitutes one act of grabbing the student, and that this might have been undertaken in exculpatory or mitigatory circumstances, the second occasion of grabbing the student is not able to be excused.  

47      Did Mr Landwehr have an opportunity to regain his composure before the student protested that he did not spray Mr Landwehr with compressed air a second time or made some clever comment, which provoked Mr Landwehr to grab the student a second time? 

48      Grabbing the student the second time would appear to have occurred within a matter of seconds after grabbing the student the first time.  Is it fair to assess Mr Landwehr's response to the student by reference to his state of fear and agitation that led to his explosive conduct only seconds before, or was it to be viewed as a separate incident?  On one hand, it is arguable that the two occasions of grabbing the student are part of the one course of conduct under extreme provocation and that Mr Landwehr had not fully recovered from being in a state of panic and fear.

49      Mr Landwehr said that he calmed down or composed himself after the incident but he says it took him three or four minutes to do so. 

50      I find that the second instance was in the circumstances of Mr Landwehr having initially grabbed and pushed the student, instinctively and impulsively, in genuine fear for his life.  He was not in sufficient control to release the student when the student dropped the hose.  The second impermissible physical contact must be seen in this context.  It was only a matter of an extremely short time before that Mr Landwehr had been in fear and panic.  He was still in the process of calming down and it could, in those circumstances, hardly be expected that he would be anywhere near in full control of his emotions or reaction.  I find that the second grab was part of the same contact and was mitigated by the circumstances.

51      I also conclude that, while with the benefit of hindsight, it is possible to say Mr Landwehr's conduct ought to have been composed and calm, human emotions are not so easily controlled. 

52      Quite apart from the actual provocation, it needs to be borne in mind that Mr Landwehr was under the stress of his father's ill health and imminent death.  In his letter to the Director General of 8 April 2016 at [8], Mr Landwehr said he had a number of family matters occurring at the time that put him on edge.  They involved his father's illness and eventual death.  He said he was very stressed.

53      I have taken account of the decision of von Doussa J in Puccio v Catholic Education Office (1996) 68 IR 407 (at 417), in which his Honour said:

It cannot be doubted that to dismiss a school teacher with 13 years experience on the ground of serious misconduct is a matter likely to cause considerable hardship to him and indirectly to his family, and to impair, if not destroy, his future prospects for employment as a teacher.  Those are matters appropriately to be weighed, and they were, in my view, given serious consideration by the respondents.  On the other hand the care, safety and well-being of students is a matter also entitled to great weight.  Where a teacher commits a clear breach of a direction squarely related to safety and welfare issues after due warning, the school, generally speaking, will be left with no option but to terminate the services of the teacher.  To allow the teacher to continue would be to allow a foreseeable risk of further transgression by the teacher to occur.  The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school.  So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee's capacity or conduct within the meaning of s 170DE(1) of the [Industrial Relation Act 1988 (Cth)] to dismiss an employee even where reported misconduct is disputed by the employee …

54      This authority is supported by the decision of the Fair Work Commission Full Bench in King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2014] FWCFB 2194 [34]. 

55      However, neither of these cases relates to a threat to the teacher's safety or life.  They relate to entirely different circumstances. 

Training and education

56      It is reasonably arguable that training and education, unless it is intensive, will not prevent the overflow of fear that a threat to health or life will engender, resulting in loss of self-control.  

Loss of trust and confidence

57      The respondent also says she has lost trust and confidence in Mr Landwehr, and that alone justifies dismissal.  The reasons for her loss of trust and confidence is because this is the second incident of Mr Landwehr having inappropriate physical contact with a student.  This is said to justify genuinely and reasonably held fears about his future conduct.

58      A loss of trust and confidence must be arrived at objectively.  In The Australian Rail, Tram and Bus Industry Union of Employees, West Australia Branch v Public Transport Authority of Western Australia [2017] WASCA 86; (2017) 97 WAIG 431, the Industrial Appeal Court approved of the approach taken by the plurality of the Full Bench in the matter below.  In the Full Bench's consideration of the issue of the employer's opinion about whether there was the necessary level of trust and confidence in an employee to allow reinstatement to be practicable, Smith AP and I found that the employer's opinion about that matter must be 'genuine, credible and rationally based'.  It also requires consideration of whether the attitudes expressed have a reliable foundation and the nature of the functions and duties of the employee.

59      With respect, the respondent's views on Mr Landwehr's actions and whether she can have the necessary level of trust and confidence in him are based on an investigation report which has now been demonstrated to have attributed matters and behaviour to Mr Landwehr that further inquiry has demonstrated to not be as portrayed. 

60      The Director General is entitled to require a high level of trust and confidence in the behaviour of a teacher.  This is reflected in Puccio and in King.  However, a proper examination of Mr Landwehr's conduct in the second incident has demonstrated that his behaviour was in circumstances where his safety was put at risk.  He was also vulnerable due to the stress of his personal circumstances.  His behaviour is either excused or mitigated due to those factors.

61      In those circumstances, the respondent's concerns about trust and confidence in Mr Landwehr, while they may have been genuine, are no longer credibly and rationally based.  The situation is now that Mr Landwehr has a finding of one breach of discipline in relation to the first incident, and he has been penalised for that conduct.  He otherwise has over nine years of uncontroversial service with the respondent, and over a decade as a teacher. 

62      The second reason is that the respondent says Mr Landwehr was unable to accept the inappropriateness of his conduct.  This was based on Mr Landwehr saying during the disciplinary process to the effect that he either thought the conduct was appropriate or that he did not know what is appropriate physical contact with a student.

63      In respect of the first of those two objections, Mr Landwehr said he did not think grabbing the student was pertinent, rather the student's act was pertinent.  In the context of his actions being in response to potentially life-threatening provocation by the student, Mr Landwehr was correct, although his response is also relevant. 

64      Mr Landwehr said he did not believe he used excessive force, and that he could not answer what excessive force is, and that it depends on the way you are looking at it.   If what he meant was that what constitutes excessive force must be viewed from all of the circumstances, he is also correct.  However, his response that 'pushing somebody back is not really excessive force' is clearly problematic.

65      However, I note that Mr Landwehr acknowledged through his counsel that he used unreasonable force in the second incident and that the use of force by a teacher against a student is not acceptable.  Absent the particular provocation, it was culpable and inexcusable, and would justify dismissal.  If Mr Landwehr did not know this at the time of the second incident, he knows it now.

66      Therefore, I find that Mr Landwehr had physical contact with a student that was not reasonable but which was in exceptional and exculpatory circumstances.  In those circumstances, the dismissal was harsh. 

Remedy

67      The only argument against reinstatement has been the issue of the loss of trust and confidence which I have dealt with as a second ground for the dismissal.  Otherwise, there is no reason to not reinstate Mr Landwehr.  In accordance with s 23A(3) of the Industrial Relations Act 1979, I intend to order that Mr Landwehr be reinstated.  In accordance with s 23A(5), I intend to order that his service be deemed continuous and that he be paid the remuneration lost subject to the deduction of the income he has earned since the dismissal.