Facing discipline as a WA teacher or lecturer? Count the 28 days from the decision.

A teacher who had worked in early childhood teaching at a regional primary school since 2007 was dismissed on the ground that her performance was substandard ([1], [10]). Part 5 of the Public Sector Management Act 1994 (WA) applies to teachers and defines substandard performance ([3]). Teachers do not have a job description form, so the Australian Professional Standards for Teachers are the measure, and a teacher must meet them at the Proficient level for full registration ([6], [8], [84]).

From 2012 the principal raised concerns about classroom management, programs, planning and assessment, and arranged a long list of support: specialists, mentors, work shadowing and professional learning ([12]-[14], [23], [30]). In 2014 the teacher was taken out of her own classroom and placed in relief and support roles, where she was coached and mentored ([24]). After the principal formed a preliminary view that performance was substandard, the Department ran a formal Improvement Action Plan for a term in 2015, with an investigation alongside it ([31], [33], [38]-[40]). An accredited assessor visited twice and found that performance had improved slightly but did not meet the Proficient level against any of the seven Standards ([47]).

The Chief Commissioner found the performance substandard as alleged, after a significant period of attempts to improve it ([83]-[84]). She rejected each complaint about the process: (a) bias by the principal: there was no basis for a reasonable apprehension of bias; the principal was having difficult conversations to manage and improve performance ([123]); (b) refusal of a new line manager and of a transfer: there were valid reasons, and no evidence that either would have changed the outcome ([147], [150], [152]); (c) the mentor moving to another school: the mentor kept offering support by email, phone and in person, and the onus was on the teacher to use it ([160], [165]-[166], [171], [176]-[177]); (d) assessment against all seven Standards when only two were alleged: the Standards are interrelated, and the decision to dismiss rested only on the two alleged ([180], [183]-[184]); (e) personal circumstances: there was no evidence that they affected her performance in 2015 ([199]).

Most of the teacher's own witnesses were not teachers or were not qualified to assess her against the Standards, while the employer's witnesses were experienced teachers, assessors and managers whose evidence was not undermined ([65], [76], [82]). The application was dismissed ([207]-[208]).

In the decision's words: "The provision of a support person or mentor does not place the onus on the mentor to follow up or pursue contact to further the mentoring or support. The onus is on the person being provided with support." ([176]).

Outcome: Won by the employer. The Commission found the teacher's performance was substandard and the dismissal was not harsh, oppressive or unfair; the application was dismissed.

A deputy principal was found to have committed two breaches of discipline under s 80(c) of the Public Sector Management Act 1994 (WA), for using physical force on two students in the room where students were sent after misbehaving in class that was "not reasonable or necessary to manage the student", and was reprimanded and fined one day's pay for each ([1]-[2], [28]). The union referred the matter to the Commission under s 44 of the Industrial Relations Act 1979 (WA), and the parties agreed it should be decided on the papers that were before the Director General ([2], [9]-[11]).

The Commissioner held that reasonableness is a comparative standard: it is decided objectively by asking what the "reasonable teacher" would have done ([16]-[18]). So the record had to show that the decision-maker considered what a reasonable teacher would have done, explained why the teacher's conduct departed from that to a culpable degree, and gave the teacher a chance to comment ([19]). He found that consideration and opportunity "substantially absent" ([21]), despite a comprehensive investigation ([23]).

On the first incident, the deputy was blocking the doorway after refusing a student permission to leave, and pushed the student back when the student advanced ([31], [33], [49]). The material did not say where the deputy went wrong or what should have been done instead ([50], [56]), and the Commissioner listed the questions that needed answering, such as whether to block the door at all, or whether to step aside and deal with it later ([57]-[60]). The second incident was treated the same way: the investigator's report offered "conversation starters" rather than an analysis of reasonableness ([92], [95]).

The Commissioner did not criticise the investigators, whose job was to gather evidence ([62]). What was missing was a step in the process: someone experienced in discipline and order in schools had to say what a reasonable teacher could and should have done, and the teacher then had to be able to respond ([63]-[64]). The Department's later written submissions set out what the deputy ought to have done, but that analysis was not in the material before the Director General ([99]-[100]). The findings were quashed, and the penalties with them ([101]).

In the decision's words: "Someone experienced in matters of discipline and order in schools needed to look at the material gathered by investigators and express a view on what could have and should have been done by a reasonable teacher." ([64]).

Outcome: Won by the union. Both findings of breach of discipline, and the reprimands and fines of one day's pay, were quashed.

In March 2008 a teacher was charged by police with a criminal offence, and on 4 April 2008 the Director General sent two letters: one saying she suspected a breach of discipline under s 80 of the Public Sector Management Act 1994 (WA), and one ordering the teacher under s 240 of the School Education Act 1999 (WA) to leave the school, remain away until further notice and report to a district education office ([2]). Section 240 lets the chief executive officer make that order if he or she suspects a breach of discipline and that the person's continued presence at the school is a risk to the safety or welfare of students; written reasons must come with the order, and not complying carries a penalty of $5,000 ([6]). The union applied to the Commission on 21 April 2008 ([1]).

The union first argued that the alleged conduct, outside work hours and away from the school, could not be a breach of discipline at all ([13]-[14]). The Commissioner disagreed: because teachers hold a position of trust and are subject to higher public expectations, the charge, if proven, "could amount to misconduct" and so a breach of discipline, and she refused to declare the notice void ([36]). Further details the Department later gave about the other adult involved added weight to that view ([37]).

On the second issue, the Department argued that the written reasons required by s 240(2) were enough fairness, and that s 240 is meant to let the Director General act quickly ([22]). The Commissioner found:

(a) a s 240 order is an administrative decision that "directly affects the rights, interests and status" of the teacher, and forced removal has a significant impact on a teacher's standing at work and in the community ([42]);

(b) giving the teacher a chance to respond need not slow the Director General down, because timeframes can be set to suit each case, and written reasons under s 240(2) are in addition to, not instead of, a hearing ([42]);

(c) there may be exceptional cases where no hearing is required, but this was not one: the charge did not involve students at the teacher's workplace, the incident did not happen there, and the teacher was not at work while the order was being considered ([43]).

The Department had, in the weeks before the hearing, let the teacher respond, but it did not concede that it had to, so the question was still live ([5], [28]). The Commission issued the declaration the union sought ([45]). It did not order the s 240 order revoked, because the teacher had since been given the opportunity to respond ([46]).

In the decision's words: "I find that a teacher should normally be given the opportunity to respond to the respondent’s view that he or she should be excluded from their workplace prior to a s 240 exclusion order issuing." ([42]).

Outcome: Split. The union won a declaration that a decision under s 240 of the School Education Act 1999 (WA) attracts common law duties of fairness, so that its member ought to have been given an opportunity to be heard before the order was made (The State School Teachers' Union of W.A. (Incorporated) v Director-General of the Department of Education and Training [2008] WAIRC 01438, order 1); the reasons say a teacher should normally be heard first, outside exceptional circumstances ([42]-[43]). The Commission refused to treat the Department's notice of suspected breach of discipline as void, and did not order the s 240 order revoked because the teacher had since been given a chance to respond.

By letter of 21 May 2018 the Department told a teacher that because she had not maintained her registration with the Teacher Registration Board of Western Australia, she had repudiated her contract of employment and her contract "has ceased" ([1]). The Teacher Registration Act 2012 (WA) bars an unregistered person from teaching, and bars anyone from employing an unregistered person to teach ([4]). But those provisions do not, as a matter of law, make keeping registration a term of the contract, and no one argued that it was ([3]-[5]). So the reason given was not a good reason ([6]).

What made the dismissal unfair was that the Department acted as if she had repudiated the contract "when she clearly had not" ([8]). It knew she wanted to stay: on 8 May 2018 she asked for help to become re-registered, and the union was working to preserve her job ([9]-[11], [13]). She had worked for the Department for over 15 years and was teaching at one of its schools ([14]). Three other things were unfair ([16]-[18]):

(a) she was not warned that her employment would end if she did not act;

(b) she was not given a clear opportunity to explain herself to the decision-maker;

(c) other teachers in 2016 to 2018 who had not paid their fees on time were "saved" when their principals applied for limited registration, and no credible reason was given for not doing the same for her.

The Commissioner was clear that an unregistered teacher who stays unregistered will probably lose their job, but a fair dismissal would come from "a different process" ([19]). He ordered reinstatement, with her service treated as unbroken ([20], [22]; The State School Teachers' Union of W.A. (Incorporated) v Director General, Department of Education [2019] WAIRC 00597, orders 1 and 2). He made no order for lost pay: she "only had to pay a modest registration fee", the primary duty to stay registered was hers, and she did not act quickly once she knew ([23]-[27]).

In the decision's words: "What makes the termination unfair in this case is that the respondent represented in her letter, and acted, as if the applicant's member had repudiated her contract, in one or both of the above ways, when she clearly had not." ([8]).

Outcome: Won by the union, in part. The teacher was reinstated with her service treated as unbroken, but no order was made for lost pay.

In May 2012 a teacher in child-related employment was charged with two offences relating to his former de facto partner, and on 16 May an interim negative notice was issued to him under the Working With Children (Criminal Record Checking) Act 2004 (WA) ([1]). An employer must not employ a person in child-related employment if it knows such a notice is current ([1], [8]). By letter of 22 May 2012 the Department said his employment was at an end ([1]). He was acquitted on 24 January 2013, the notice was cancelled, and he was re-employed ([2]). His claim then continued for the pay he lost while out of work ([4]).

Section 41(2) of that Act protects an employer from liability when, to comply with the Act, it stops employing someone in child-related employment ([9]). Section 41(3) keeps a person's rights under the Industrial Relations Act 1979 (WA), except where the remedy is for a dismissal, "the reason the employer dismissed the person was to comply with this Act", and the claim relates to that reason ([3], [9]). Only the second element was in dispute ([10]).

The teacher argued that the Department did not have to dismiss him: it could have moved him to work away from children, ordered him to stay away from school under s 240 of the School Education Act 1999 (WA), or suspended him ([11], [29]). The Court held:

(a) the test is whether, as a matter of fact, the reason for the dismissal was to comply with the Act, not whether the Act required dismissal ([12], [21]);

(b) "the reason" is the operative and immediate reason of the actual decision-maker, found on all the facts and available inferences, applying the High Court's approach to the Fair Work Act in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 ([23]-[25]);

(c) the Full Bench majority made no error in applying that test ([27]).

Because the appeal failed on construction, the alternatives did not need deciding, but the Court addressed them ([28]). A transfer was not practicable, because the evidence was that there was no other work to give him ([31]). But suspension, or an order to stay away from school premises, would not have breached the Act, because the Act is concerned with a person carrying out child-related work, not with ending the contract ([37], [40]). The appeal was dismissed ([41]).

In the decision's words: "An employer may be found to have dismissed a person to comply with the WWC Act notwithstanding that the employer could have complied with the WWC Act by taking some other course of action." ([21]).

Outcome: Lost by the teacher: appeal dismissed. The Full Bench majority's decision that the claim was excluded stood. Also: WAIRC copy Charles Brett v Sharyn O'Neill, Director General, Department of Education [2015] WAIRC 00286.

The parties agreed that while registered, the teacher had engaged in serious misconduct that made him unfit to be registered, and proposed a 3-year disqualification backdated to 3 May 2017, when his registration expired ([1], [3], [78]). The Tribunal was concerned that such an order would have no forward effect, and asked for submissions ([3]-[4]). This appeared to be the first time it had published reasons on penalty under the Teacher Registration Act 2012 (WA) ([8]).

It set out principles for penalties ([33]-[36]):

(a) the purpose is to protect children taught in educational venues, not to punish the teacher ([33]);

(b) protection can mean preventing an unfit person from teaching, bringing home the seriousness of the conduct, deterring the teacher, and showing the profession and the public what is unacceptable ([34]);

(c) the effect of a penalty on the teacher, and any hardship, are secondary considerations ([35]);

(d) where conduct shows a teacher is permanently or indefinitely unfit, cancellation rather than suspension will ordinarily be the right response ([36]).

The conduct was serious: it crossed the professional boundary a teacher must keep with students, both in class and in private messages after his employment ended ([46]-[50]). In mitigation the Tribunal accepted his remorse, insight, lack of any other disciplinary history, and the personal pressures he was under ([60]-[63], [68], [70]). It would have imposed 3 years ([84]).

The Board was notified in November 2016 and he made admissions at interview on 15 November 2017, but proceedings did not start until 15 April 2020, a delay of about 2 years and 5 months with no satisfactory explanation ([88]-[90], [96]). He had not renewed his registration largely because he understood he would not be re-registered until the matter ended, and the Board accepted that link, though the Tribunal found that his new full-time job outside teaching also played a part ([93]-[95], [97]). The Tribunal doubted it had power to backdate a disqualification and did not decide the point ([101]-[107]). Instead it allowed 2 years and 6 months for the period of non-registration and ordered a further 6 months from the date of its order ([97], [108]; order 2).

In the decision's words: "First, the purpose of disciplinary proceedings under the Act is to protect the children who are taught by teachers in educational venues, rather than to punish the teacher in the sense in which punishment is imposed under the criminal law." ([33]).

Outcome: Serious misconduct found on agreed facts. The Tribunal declined the parties' agreed order (3 years backdated to 3 May 2017, which would have had no forward effect) and disqualified him from applying for registration for 6 months from its order, after allowing 2 years and 6 months of his time unregistered against the 3 years it would otherwise have imposed.

A permanent primary school teacher was dismissed in April 1995 on the grounds of inefficiency, under reg 86A of the regulations made under the Education Act 1969 (WA) (part 2). Reg 86A let the Minister dismiss a teacher after at least two reports of inefficiency, each sent to the teacher for a written explanation (part 5). The Department received three reports and the steps of the regulation were followed, so the dismissal was "legal in the sense of complying with Regulation 86A" (part 5). She was told by her principal on the second last day of term that she had been dismissed and had to leave the school that day (part 2). This was a federal claim under the Industrial Relations Act 1988 (Cth), a route no longer open to a Department teacher (see the takeaway).

The Judicial Registrar found that the Minister had a valid reason: by the end of 1994 the teacher was inefficient by the standards of the panel that assessed her (part 14). But he held that this was "too simplistic", because the way the process was run "directly contributed" to that inefficiency by undermining her status and capacity as a teacher, so that she spent her energy defending the process instead of showing she could teach well (part 15). He found the dismissal harsh, unjust or unreasonable on the combined effect of many factors (part 15, and precis findings 1 and 2). The ones a member can use are these: (a) The first report should not have been sent. The principal's real concern was communication with parents and staff (part 8(2)). The Department had agreed with the State School Teachers' Union to follow its inefficiency guidelines, which allowed three to six months to improve, but the report went in about a month after the formal meeting, with no time set for review, and after the teacher had told the principal of her counselling appointment (part 8(3); part 15, factors (3) to (5)). The process was "essentially off the rails from the outset" (part 15, factor (3)). (b) The teacher's 96-page reply to the first report, with references from parents and colleagues, got a two-sentence acknowledgment and no answer on the substance, and the references were not read (part 8(4); part 8(5)(a) and (f); part 15, factors (6) to (8)). The Judicial Registrar said that if this was normal practice, it "represents unreasonable management practice" (part 8(5)(e)). (c) When she moved schools, nobody told the new principal what the original concern was, no support was put in place for it, and a broad appraisal of her whole teaching replaced it (part 8(7); part 15, factors (10) and (21)). (d) The principal chairing the assessment panel stayed on after admitting she had said the teacher "has got to go". There was no actual bias, but there was a reasonable apprehension of it, and a superintendent should have chaired the panel instead (part 8(17); part 15, factors (11) and (12)). (e) The panel had only about nine school weeks to assess her, short of the time the guidelines contemplated (part 8(14); part 15, factor (13)). (f) The recommendation to dismiss rested on her alleged "recalcitrance", which was never put to her to answer; that was a separate breach of s 170DC (part 8(19); part 15, factor (17)).

The Judicial Registrar also found that the principal had no authority to direct the teacher to attend outside counselling, only to suggest it (part 12; part 15, factor (1)). He weighed that a dismissal for inefficiency would in practice end her career as a teacher (part 15). He described the manner of the dismissal as "almost tantamount to cruelty" (part 8(19)).

Reinstatement was ordered because it was the primary remedy, and he rejected the Department's argument that no position could be found for her (part 16). She was to be reinstated to another position, with continuity of employment and compensation for lost pay, and the choice of school was left for further submissions (orders 2 to 6).

In the decision's words: "the implementation of the Regulation 86A process directly contributed to [the teacher's] inefficiency by undermining her status and capacity as a teacher" ((part 15)).

Outcome: Won by the teacher. The Court found the Minister had a valid reason (inefficiency), but held the termination harsh, unjust or unreasonable, so it contravened s 170DE of the Industrial Relations Act 1988 (Cth). Orders: a declaration that the termination was unlawful, reinstatement to another position on terms no less favourable, continuity of employment, and compensation under s 170EE(2), the amount to be fixed later (orders 1 to 3 and 5).

Each lecturer had worked at TAFE as a "temporary" lecturer for successive periods; at the end of 1994 the Department decided to advertise all temporary lecturer positions, each lecturer won a position, and each turned down a three-year workplace agreement and took a one-year contract under the award (heading "Background"). In December 1995 the positions were advertised again and each lecturer was unsuccessful (heading "Background"). The Department "has never had any dissatisfaction with the conduct or performance" of any of them; it said others had shown greater merit (heading "Background").

The evidence was that temporary lecturers had for years been "rolled over" from year to year, received their timetable for the next year before the paperwork, and were paid through the holidays (heading "The evidence"). A Department memorandum of November 1994 spoke of abandoning "the previous practice of 'rolling over' each year approximately 700 temporary lecturers" (heading "The evidence").

The Judicial Registrar found:

(a) the lecturers were employed on the understanding that, whatever the written "contracts" said, they would continue unless their performance was lacking or there were not enough student enrolments (heading "Was there a termination at the initiative of the employer?");

(b) the "contracts" did not accurately represent what was agreed, and the lecturers signed them because they had no say and were told it was a formality (heading "Was there a termination at the initiative of the employer?");

(c) for five of them the employment relationship was continuous from first appointment to 31 December 1995, and the Department's move to enforce the written contracts was a termination at the employer's initiative (heading "Was there a termination at the initiative of the employer?").

The sixth lecturer was in a different position: he had chosen to stay casual for the higher pay, and when he signed his one contract he understood there would be another selection round at the end of 1995 (reasons unnumbered, section on the sixth applicant). There was no valid reason for the other five terminations: the Department had acted "on the mistaken assumption" that the Public Sector Management Act 1994 (WA) required a fresh selection, and finding someone somewhat better qualified was not a valid reason (heading "Was there a valid reason for the termination of the employment of the applicants?"). No breach of the requirement to let an employee answer allegations was found, because there were none (heading "Has there been a breach of section 170DC?"). The constitutional argument put by the State and three Attorneys-General did not arise on those findings (heading "The constitutional question"). Reinstatement was not impracticable: the employer was very large and had "considerable flexibility and scope" to absorb five lecturers (heading "The appropriate remedy"; orders 1 to 4).

In the decision's words: "The fact that there might be somebody else who may be somewhat better qualified to fill the position is not, in my view, a valid reason for terminating the employment of the applicants in all of the circumstances in this case." (heading "Was there a valid reason for the termination of the employment of the applicants?" ()).

Outcome: Five of the six lecturers won. The Court declared a breach of s 170DE(1) (no valid reason for the termination) and ordered the Minister to reinstate the five within 21 days on terms no less favourable, and to pay their lost remuneration, with liberty to apply. The sixth lecturer's application was dismissed.