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WAIRC: Kilner
Legal services WAIRC decision: Kilner
By John Theodorsen Legal services consultant
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The Full Bench of the Western Australian Industrial Relations Commission (WAIRC) has dismissed an appeal against a decision to reinstate and compensate teacher and SSTUWA member Bill Kilner.
The decision brought a successful end to two-and-a-half-years of legal proceedings that the SSTUWA pursued to get a fair outcome for Mr Kilner, who was dismissed for reasons of medical incapacity in February 2018.
The union argued from the start that any medical problems suffered by Mr Kilner were linked to Busselton Senior High School and that he was fit to work at another school (or would soon become fit after an appropriate return to work program).
The union considered that the medical evidence relied upon by the Director General of the Department of Education (DoE) was not sufficient to justify the drastic decision to terminate Mr Kilner’s employment.
Commissioner Matthews heard the union’s application at first instance and decided that Mr Kilner had been unfairly dismissed. However, Commissioner Matthews declined to grant the union’s request that Mr Kilner should be reinstated, although a substantial amount of compensation was awarded.
While happy to have established that the dismissal was unfair, the union considered that reinstatement was the more appropriate remedy. The union appealed the decision to the Full Bench, which upheld the appeal and remitted the matter to Commissioner Matthews for further consideration of the question of reinstatement.
At a further hearing, which included receiving expert medical evidence, Commissioner Matthews determined that Mr Kilner should be reinstated with continuity of service in addition to compensation in respect of lost income. The Director General appealed the decision. The grounds of appeal included whether the Commission had given sufficient reasons for the decision, whether Mr Kilner had lost trust and confidence in his employer by expressing concerns about his employment, and whether the union had acted improperly at an earlier stage of the process by omitting a medical certificate from a bundle of documents provided to the Director General.
The Full Bench dismissed the appeal. It found that the Commission’s reasons were not so lacking in detail as to result in an injustice to the Director General. The Full Bench found that Mr Kilner had not lost trust and confidence in his employer. Furthermore, the Full Bench did not accept that the union’s omission of the medical certificate involved impropriety or an abuse of process.
Although the union should have disclosed the document earlier (which the union has acknowledged), there was no reason to doubt that this was an inadvertent admission and earlier production of the medical certificate would not have been likely to affect the outcome.
There are two key aspects of Commissioner Matthews’ decisions in this matter that are of most importance for teachers.
The first was the decision that the dismissal was unfair, which was not challenged on appeal. In his reasons for decision, Commissioner Matthews emphasised some key principles that apply in cases of dismissal on medical grounds, most importantly that the medical evidence relied on by the employer must be sufficiently clear to justify dismissal.
The second was the Commissioner’s decision on reinstatement, which was affirmed by the Full Bench on appeal. The fact Mr Kilner was unable to work at Busselton Senior High School did not prevent him being reinstated, on the proviso that he be placed at a school other than Busselton.
The union believes that these decisions support two very important propositions.
The first is that a decision to dismiss a teacher for medical reasons will need to be supported by medical evidence of a high standard.
The second is that it will be unfair to dismiss a teacher on the basis they are unfit for work at a particular school, if they can safely and effectively work at another school.
Notwithstanding the legal disputes in this case, the DoE and the SSTUWA have continued to consult about improvements to the medical retirement process.
Soon after Commissioner Matthews’ first decision that held Mr Kilner’s dismissal was unfair, representatives of the union and the department engaged in discussions about the fitness for work process.
These discussions have been quite cooperative and while there will doubtless be disagreements in future around particular cases, the union believes that the Director General has taken positive steps to improve this process.
It will hopefully be a rare case where a teacher is unfairly dismissed for medical reasons. But the SSTUWA stands ready to support teachers who are unfairly dismissed and will continue to support members who find themselves in this unfortunate position.
In its reasons for dismissing the appeal against Mr Kilner’s reinstatement, the Full Bench also observed that a person who expresses concerns about their employment (as Mr Kilner had done) is not thereby demonstrating a lack of trust and confidence in their employer.
This is not a new or controversial principle, but it is certainly a helpful reminder that employees are entitled to raise concerns and present their views about workplace matters to their employer in an appropriate way.
Ultimately, though, the dispute concerned the quality of medical evidence and whether it is unfair to dismiss a teacher who is unfit to work at one school but fit to work at another.
The decisions of Commissioner Matthews and the Full Bench of the WAIRC in Mr Kilner’s matter will assist the union in challenging unfair decisions to dismiss teachers for medical incapacity and, importantly, obtaining orders for reinstatement of their employment.
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