DISPUTE RE DISMISSAL OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

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

APPLICANT

-v-

The Director General, Department of Education and Training

RESPONDENT

CORAM Commissioner J L Harrison

DATE MONday, 23 March 2009

FILE NO/S C 8 OF 2009

CITATION NO. 2009 WAIRC 00128

Result Order issued

Representation

Applicant Mr M Amati

Respondent Mr R Andretich (of counsel)

Order

WHEREAS on 27 February 2009 the State School Teachers’ Union of W.A. (Incorporated) (“the applicant”) applied to the Commission for an urgent conference pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) in relation to the termination of one of its members Ms Catherine Motteram by the Director General, Department of Education and Training (“the respondent”); and

WHEREAS the Commission convened an urgent conference on 3 March 2009 for the purpose of conciliating between the parties, however no agreement was reached; and

WHEREAS as the applicant was seeking interim orders with respect to Ms Motteram’s termination the parties were required to file and serve submissions in respect to this application; and

WHEREAS on 5 March 2009 the applicant filed written submissions in the Commission seeking the following interim orders:

1. That Ms Motteram be reinstated on full salary, without loss of entitlements and/or continuity of service, to her teaching position at Atwell College until this application has been fully heard and determined by the Commission.

2. That a (sic) discovery of all documents relied upon and generated by the employer in this matter – be it at the school, District or Departmental level – including but not limited to any statements, letters, minutes, electronic and/or handwritten and/or recorded, including the Respondent’s recommendations to dismiss Ms Motteram as presented to the Director General.

3. An interim order for the discovery of all documents relied upon by the employer in this matter, including:

(a) A complete, unedited copy of the investigation report; including written copies of all statements made by each person interviewed and relied upon by the employer;

(b) Such statements are to be provided in a written form, verbatim, in an (sic) “question-answer” (sic) format, without any editing or any alteration whatsoever, including the electronic compact-disks from which these have been transcribed.

(c) A full, unedited copy of the entire file – whether it be hard-copy or electronically stored – held in the Standard and Integrity Directorate of the Respondent relating to Ms Motteram.

(d) A complete copy of Ms Motteram (sic) personal file; and

WHEREAS on 5 March 2009 the applicant made the following submissions in support of its application for the interim orders it was seeking:

• the applicant relies on the tests to be applied as to whether an interim order should issue as set down in Thomas James Brown v President, State School Teachers Union of WA (Inc) and Others [1989] 69 WAIG 1390;

• the applicant argues that the Commission has the power to issue the interim orders the applicant is seeking pursuant to s 44 of the Act, in particular, s 44(6)(ba)(i) and s 44(6)(bb)(i) and (ii);

• the applicant maintains that Ms Motteram was harshly, oppressively and unfairly dismissed by the respondent;

• the applicant argues that the respondent failed to take into account the following when deciding to terminate Ms Motteram:

              Ms Motteram has been employed by the respondent as a teacher for 14 years, she has not been the subject of any alleged misconduct during this period until the current allegation and her talents as a music teacher have been recognised by various school communities during her career with the respondent;

              Ms Motteram disputed that she had interacted inappropriately with the student the subject of the allegation against her and maintains that her interactions with this student have been consistent with her responsibilities and duties as a teacher;

              Ms Motteram did not breach any of the respondent’s policies or the public sector Code of Conduct or Code of Ethics with respect to her interactions with this student and Ms Motteram’s actions therefore did not warrant the respondent losing confidence in her as an employee;

              Ms Motteram was never directed to stop all of her interactions with the student and she was transparent and open about her interactions with this student;

              both the investigation and the inquiry reports fail to meet the necessary test of proof on the balance of probabilities and the reports fail to take into account relevant considerations;

              as the investigation and inquiry conducted by the respondent took 16 months this excessive timeframe has disadvantaged Ms Motteram as the evidence relied upon by the respondent to terminate Ms Motteram has become contaminated and is unreliable;

              the applicant disputes that the results of the inquiry substantiates the charge against Ms Motteram;

              the inquirer did not recommend that Ms Motteram’s employment be terminated;

              even if Ms Motteram acted inappropriately towards the student the severity of the respondent’s actions towards Ms Motteram is inconsistent with Ms Motteram’s actions and alternatives to termination were available to the respondent under Public Sector Management Act 1994 (“the PSM Act”);

              as the respondent relied on hearsay information and malicious comments to form the view that Ms Motteram should be terminated the respondent’s actions are inconsistent with its mandatory responsibilities under s 8(1)(c) of the PSM Act;

              Ms Motteram has been teaching since the allegations were raised without any issues arising about her behaviour or performance;

• the applicant argues that the respondent’s dismissal of Ms Motteram was unlawful in that:

              the respondent failed to afford her natural justice and procedural fairness and/or to properly and diligently apply the provisions of Part 5, Division 3 of the PSM Act;

              the respondent did not provide Ms Motteram with a timely and unabridged copy of the investigator’s report;

              the respondent failed to disclose details about the grounds on which it relied to terminate Ms Motteram;

              the respondent failed to identify the policy or legal basis for terminating Ms Motteram;

              the inquirer informed himself of matters dealt with by the investigator thereby tainting his inquiry;

• the respondent will not suffer any detriment if the interim orders being sought issue however Ms Motteram will suffer a substantial detriment if the interim orders do not issue as she has extensive financial commitments and she will have difficulty finding a teaching position until the final determination of this matter as the respondent is the largest employer of teachers in Western Australia;

• if the interim orders issue they are not irreversible;

• the application was lodged promptly as it was lodged on the same day that Ms Motteram received the dismissal letter.

• the issuance of the orders is consistent with s 26(1)(a) and (b) and the objects of the Act;

• the orders with respect to discovery are necessary as the investigator’s report provided to the applicant does not contain all of the information used to reach the decision to proceed to the charge against Ms Motteram and the applicant is unaware of the nature of the original complaint made against Ms Motteram; and

WHEREAS on 9 March 2009 the respondent made the following submissions in support of its claim that interim orders should not issue:

• Ms Motteram had frequent and inappropriate out of hours contact with the student despite being advised by her Principal in March 2007 to stay within the professional boundaries between a student and teacher with respect to inappropriate contact;

• notwithstanding these concerns being raised with Ms Motteram she made no apparent attempt to reduce the level of her out of hours contact with the student;

• teachers occupy a position of trust and as their ongoing employment is dependent upon public confidence they should therefore not put themselves in a position where suspicions arise as to the propriety of their dealings with students (see The State School Teachers’ Union of W.A. (Incorporated) v Director-General of the Department of Education and Training (2008) 88 WAIG 2049 at 2060);

• Ms Motteram acted in a way which raised concerns about her relationship with the student not only in the community but amongst her colleagues over a significant period of time;

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

• the Director General gave Ms Motteram sufficient reasons for her termination in her letter dated 8 January 2009;

• the interim orders sought are unnecessary to prevent the deterioration of industrial relations between the parties nor are they necessary to enable conciliation or arbitration to determine the dispute as this can occur independently of interim orders being made;

• Ms Motteram’s behaviour is incompatible with her ongoing employment as a teacher and as such constitutes misconduct under s 80 of the PSM Act; and

WHEREAS the Commission is of the view that the matter before it is an industrial matter as it relates to Ms Motteram’s rights as an employee; and

WHEREAS the Commission is of the view that it has jurisdiction to issue an interim order to reinstate Ms Motteram pursuant to s 44(6) of the Act in particular under s44(6)(ba)(ii) and s 44(6)(bb)(i) and (ii) which enables the Commission to issue orders which the Commission is otherwise authorised to make under this Act in relation to an industrial matter and in the case of a claim of harsh, oppressive or unfair dismissal make any interim order the Commission thinks appropriate pending resolution of the claim; and

WHEREAS taking into account the terms of the Act and in particular s 44(6) of the Act whereby the Commission has the power to give such directions and make such orders the Commission considers appropriate in the circumstances the Commission has formed the view that an interim order should be considered in this instance pending arbitration of the issues in dispute; and

WHEREAS the tests relevant to whether or not an interim order should issue are as follows (see Thomas James Brown v President, State School Teachers Union of WA (Inc) and Others [op cit]):

“It seems to me that the principles which apply to the granting of interim injunction proceedings are most applicable here, with such modifications as this jurisdiction requires.

The applicant must therefore establish: –

(a) That as a matter of discretion, it is just and correct for me to make the order in all the circumstances.

(b) That, in fact, there is a substantial matter to be tried.

(c) That the plaintiff has a prima facie case for relief if the evidence on which the order is made is accepted at trial.

In addition, the Commission must consider: –

(a) The damage which may be done to the respondent by granting the order as against the damage to the applicant if it is not granted.

(b) Any irreversible consequences of the granting of the order.

(c) The promptness or otherwise of the application.

(d) Any other relevant consideration.”; and

WHEREAS the issuance of interim orders needs to take into account the interests of both parties without reaching any concluded view about the merits of such an application; and

WHEREAS after considering the arguments put by both parties the Commission has formed the view that it is just that an interim reinstatement order and orders for discovery should issue based on the following preliminary views:

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

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

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

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

5. In my view the discovery orders being sought should issue, in part, as the applicant and Ms Motteram have not had the benefit of all of the information used by the respondent to form the view that Ms Motteram be terminated; and

WHEREAS in the circumstances I will issue an interim order reinstating Ms Motteram to her former position with the respondent as a teacher on an interim basis to undertake the same duties as those that she was undertaking prior to her termination pending the issue of her termination being heard and determined and I will issue orders with respect to discovery;

NOW THEREFORE having heard Mr M Amati by way of written submissions on behalf of the applicant and Mr R Andretich of counsel by way of written submissions on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders:

1. THAT Ms Catherine Motteram be reinstated on full salary, without any loss of pay, entitlements and/or continuity of service, to a teaching position undertaking her normal duties at a school to be agreed between the parties until this application has been heard and determined by the Commission.

2. THAT discovery of all documents relied upon and generated by the respondent with respect to this matter, including but not limited to any statements, letters, minutes, electronic and/or handwritten and/or recorded information which have not already been provided to the applicant and Ms Motteram, be made by the respondent to the applicant within 14 days of the date of this order.

3. THAT a complete unedited copy of the investigation report including written copies of all statements made by persons interviewed, and the electronic compact-disks from which these statements have been transcribed, be discovered by the respondent to the applicant within 14 days of the date of this order.

4. THAT liberty to apply be granted to the parties in relation to Orders 1 to 3.

Commissioner J L Harrison