Brett v SHARYN O'NEILL, Director General, Department of Education
[2015] WASCA 66
•7 APRIL 2015
BRETT -v- SHARYN O'NEILL, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2015] WASCA 66
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2015] WASCA 66 | |
| Case No: | IAC:3/2014 | 1 DECEMBER 2014 | |
| Coram: | BUSS J MURPHY J LE MIERE J | 7/04/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHARLES BRETT SHARYN O'NEILL, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION |
Catchwords: | Industrial relations Working with Children (Criminal Record Checking) Act 2004 (WA) Principle of legality Statutory construction Restricting rights under the Industrial Relations Act 1979 (WA) Defining 'reason' |
Legislation: | Education Act 1928 (WA) Fair Work Act 2009 (Cth) Industrial Relations Act 1979 (WA) Public Sector Management Act 1994 (WA) Safety, Rehabilitation and Compensation Act 1988 (Cth) School Education Act 1999 (WA) Working with Children (Criminal Record Checking) Act 2004 (WA) |
Case References: | Al-Ketab v Godwin (2004) 219 CLR 562 Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Buck v Comcare (1966) 66 FCR 359 Coco v The Queen (1994) 179 CLR 427 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980 Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 Lacey v Attorney General for Queensland (2011) 242 CLR 573 Lee v New South Wales Crime Commission (2013) 251 CLR 196 Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 March v M H Stramare Pty Ltd (1991) 171 CLR 506 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Raymond v Honey [1983] 1 AC 1 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : BRETT -v- SHARYN O'NEILL, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2015] WASCA 66 CORAM : BUSS J
- LE MIERE J
MURPHY J
- Appellant
AND
SHARYN O'NEILL, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : J H SMITH (ACTING PRESIDENT)
- A R BEECH (CHIEF COMMISSIONER)
J L HARRISON (COMMISSIONER)
Citation : [2014] WAIRC 352
File No : FBA 19 of 2013
Catchwords:
Industrial relations - Working with Children (Criminal Record Checking) Act 2004 (WA) - Principle of legality - Statutory construction - Restricting rights under the Industrial Relations Act 1979 (WA) - Defining 'reason'
Legislation:
Education Act 1928 (WA)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Public Sector Management Act 1994 (WA)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
School Education Act 1999 (WA)
Working with Children (Criminal Record Checking) Act 2004 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J R Birman
Respondent : Mr G T W Tannin SC & Ms R Young
Solicitors:
Appellant : Birman & Ride
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Al-Ketab v Godwin (2004) 219 CLR 562
Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Buck v Comcare (1966) 66 FCR 359
Coco v The Queen (1994) 179 CLR 427
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
Lacey v Attorney General for Queensland (2011) 242 CLR 573
Lee v New South Wales Crime Commission (2013) 251 CLR 196
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
March v M H Stramare Pty Ltd (1991) 171 CLR 506
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Raymond v Honey [1983] 1 AC 1
1 JUDGMENT OF THE COURT: The appellant, Mr Brett, was employed by the respondent, the Director General of the Department of Education, as a teacher in child-related employment as that phrase is defined in the Working With Children (Criminal Record Checking) Act 2004 (WA) (WWC Act). In May 2012 Mr Brett was charged with two offences under the Criminal Code (WA). The charges related to Mr Brett's former de facto partner. On 16 May, as a result of the charges being made, the chief executive officer of the Department for Child Protection (CEO) issued an interim negative notice to Mr Brett pursuant to the WWC Act. Section 22(3) of the WWC Act provides that an employer must not employ a person in child-related employment if the employer is aware that an interim negative notice has been issued to the person. The respondent terminated Mr Brett's employment by a letter dated 22 May 2012 in which the respondent stated that Mr Brett's employment was at an end as he had repudiated his contract by reason of the interim negative notice and his inability to fulfil his duties as a teacher.
2 On 24 January 2013 Mr Brett was acquitted of the charges by the District Court of Western Australia. On 3 April 2013 the CEO cancelled the interim negative notice and reissued Mr Brett with an assessment notice. Mr Brett notified the respondent that the interim negative notice had been cancelled and that his assessment notice had been reissued. The appellant subsequently applied for employment and was re-employed by the respondent.
Application to Commission
3 On 20 June 2012, that is prior to being acquitted of the charges, Mr Brett applied to the West Australian Industrial Relations Commission for an order for reinstatement or compensation in respect of a harsh, oppressive or unfair dismissal. The grounds of his application were that the decision by the respondent to terminate his employment in reliance on the interim negative notice was premature, that the respondent had abdicated her responsibility and that the decision to terminate his employment was harsh, unjust and unreasonable in all the circumstances. In her notice of answer and counterproposal the respondent relied on s 41(2) and (3) of the WWC Act. Section 41(1) provides that if it would be a contravention of a provision of the Act for an employer to employ another person in child related employment, the employer must comply with the provision despite another Act or law or any industrial award, order or agreement. Section 41(2) provides protection from liability for employers by providing that the employer does not incur any liability because, in complying with the provision, the employer does not continue to employ the person in child related employment. Section 41(3) is a saving provision; it provides that nothing in s 41 operates to affect a person's right to seek or obtain a remedy under the Industrial Relations Act 1979 (WA) unless the remedy is for the dismissal of the person by the employer, the reason the employer dismissed the person was to comply with the Act, and the grounds on which the person seeks the remedy relate to the fact that the person was dismissed for that reason.
4 Mr Brett's application was heard by the acting Senior Commissioner in August 2013. By that time Mr Brett had been acquitted of the charges, the CEO had cancelled the interim negative notice and Mr Brett had been re-employed by the respondent. Mr Brett's application continued as an application for compensation for wages and benefits lost during the period he had been unemployed. The acting Senior Commissioner found that the provisions of WWC s 41(3) had been met and therefore Mr Brett's application must be dismissed.
Appeal to Full Bench
5 Mr Brett appealed to the Full Bench of the Western Australian Industrial Relations Commission. The Full Bench dismissed the appeal by majority. The majority, consisting of the acting President and Commissioner Harrison, found that WWC Act s 41(3) operated to preclude Mr Brett seeking a remedy for unfair dismissal under the Industrial Relations Act 1979 (WA). The Chief Commissioner, in dissent, found that the respondent did not dismiss Mr Brett in order to comply with the WWC Act and hence he was not precluded by WWC Act s 41(3) from seeking relief.
This appeal
6 Mr Brett now appeals to this court. There were initially three grounds of appeal but Mr Brett abandoned grounds 2 and 3. The remaining sole ground of appeal is:
1. The majority of the Full Bench … erred in its interpretation of s 41(3) of the [WWC Act]. Specifically, the Full Bench held:
1.1 'to determine the reason of a dismissal referred to in s 41(3) of the WWC Act requires an assessment of the acts and the state of mind of the employer' [52];
1.2 'in an assessment of the real purpose of the dismissal what was in truth in the mind of the employer must be ascertained' [59];
1.3 'the objective approach to the construction of s 41(3)(b) of the WWC Act … must be rejected …' [55];
1.4 if the employer was genuinely of the view that Mr Brett's dismissal was necessary so as to comply with the WWC Act then 'whether Mr Brett should have been offered alternatives to dismissal to remove him from child-related work is not a matter than can operate to characterise the reason for the dismissal as a reason of a different character' [63]; and
1.5 whether a dismissal was reasonable or 'the only course of action open [by which the employer could comply with the WWC Act] … is immaterial' [66].
2. On a correct interpretation of s 41(3), the word 'reason' in s 41(3)(b) is not concerned solely with the subjective state of mind of the employer. Rather; it also requires an objective consideration of whether the Respondent could practicably have complied with the WWC Act by means other than the dismissal of the Appellant. If the Respondent could practicably have complied with the WWC Act by means other than dismissal then compliance with the WWC Act cannot be the 'reason' for dismissal for the purpose of s 41(3).
7 There are two aspects to this ground of appeal. The first aspect concerns the interpretation of the phrase 'the reason … was to comply with this Act' in s 41(3)(b). The appellant says that an employer only dismisses a person to comply with the Act if the employer was required to dismiss the person to ensure compliance with the Act. The appellant further says that the WWC Act did not require the respondent to dismiss Mr Brett when he was issued with the interim negative notice and hence the reason the respondent dismissed Mr Brett was not to comply with the Act. The second aspect of the appeal concerns the proper interpretation of the word 'reason' in WWC Act s 41(3)(b). The appellant says that the Full Bench wrongly interpreted 'reason' to refer to the subjective reason the employer dismissed the person whereas it should have considered the objective reason for the dismissal as well. Before considering those matters it is convenient to outline some relevant provisions of the WWC Act.
Working With Children Act
8 The long title of the Act is that it is an Act, amongst other things, to prohibit people who have been charged with or convicted of certain offences from carrying out child-related work. Section 3 provides that in performing a function under the Act, the CEO or the State Administrative Tribunal is to regard the best interests of children as the paramount consideration. Part 2 of the Act provides for assessment notices and negative notices. The CEO may issue an assessment notice to a person which allows the person to engage in child-related work. A negative notice or interim negative notice prohibits a person from engaging in child-related work. Section 22 prohibits employers employing certain people in child-related employment. In particular, s 22(3) provides that an employer must not employ a person in child-related employment if the employer is aware that a negative notice or an interim negative notice has been issued to the person and is current.
9 Section 41(1) provides that an employer must comply with a provision of the Act prohibiting the employer from employing another person in child-related employment despite another Act or law, industrial award, order or agreement. Section 41(2) provides that the employer does not incur any liability because in complying with the provision the employer does not continue to employ the person in child-related employment. Section 41(3), as we have said, is a saving provision. It narrows the effect of s 41(2) so as to preserve a person's right to seek or obtain a remedy under the Industrial Relations Act 1979 (WA) from the operation of s 41(2). However, s 41(3) contains an exception. The saving provision does not apply if the elements of pars (a), (b) and (c) of s 41(3) are met. Those elements are:
(a) the remedy is for the dismissal of the person by the employer; and
(b) the reason the employer dismissed the person was to comply with the Act; and
(c) the grounds on which the person seeks the remedy relate to the fact that the person was dismissed for that reason.
If those elements are met then the employer does not incur any liability because in complying with the relevant provision of the Act the employer does not continue to employ the person in child-related employment.
10 In this case it was common ground before the Full Bench that s 41(3)(a) and (c) were met. The issue before the Full Bench was whether s 41(3)(b) was met. The respondent asserted, and the appellant denied, that the reason the respondent dismissed the appellant was to comply with the WWC Act.
Reason was to comply with the Act
11 The first step of the appellant's argument on appeal is the contention that s 41(3)(b) can only be satisfied if a provision of the Act required the employer to dismiss the person. Mr Brett argues that the respondent could practicably have complied with the WWC Act by means other than dismissing him. Mr Brett argues that if the respondent could practicably have complied with the WWC Act by means other than dismissing him then compliance with the WWC Act cannot be the reason for dismissal. In framing his ground of appeal in that way the appellant states the result of the construction for which he contends, rather than what he says is the proper interpretation of s 41(3). In effect, the meaning of s 41(3)(b) advanced by the appellant is: 'the reason the employer dismissed the person was to comply with a requirement of the Act that the employer dismiss the person' or 'the employer was required to dismiss the person to ensure compliance with the Act' or words to that effect.
12 The appellant's argument misconstrues WWC Act s 41(3). The test whether the reason the employer dismissed the person was to comply with the Act is not whether the employer was required to dismiss the person to ensure compliance with the Act. The test is whether, as a matter of fact, the reason the employer dismissed the person was to comply with the Act. That is so for the following reasons.
The proper test
13 The objective of statutory construction is to give to the words of a statutory provision the meaning which the legislature is taken to have intended them to have: Lacey v Attorney General for Queensland (2011) 242 CLR 573 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). Ordinarily the meaning which the legislature is taken to have intended the language of legislation to have will correspond with the grammatical meaning, but that is not always the case. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [78].
14 The ordinary grammatical meaning of 'to comply' with a statutory provision is to act in accordance with the provision. What a person must do, or refrain from doing, to comply with a statutory provision depends upon the nature and content of the provision. The respondent's case is that she dismissed Mr Brett to comply with WWC Act s 22(3), which provides that an employer must not employ a person in child-related employment if the employer is aware that a negative notice or an interim negative notice has been issued to the person and is current. Where an employer is aware that an interim negative notice has been issued to an employee employed to carry out child-related work, there may be more than one way the employer may comply with the statutory provision. The employer may dismiss the employee or the employer may continue to employ the person to carry out duties that do not involve child-related work. There may be other ways in which the employer may comply with the statutory provision.
15 The ordinary grammatical meaning of 'the reason the employer dismissed the person' is the cause, ground or motive for the employer dismissing the person. It has a similar meaning to 'by reason of', 'because of' and similar phrases. To determine whether the reason an employer dismissed a person was to comply with the Act requires a practical application of ordinary causation principles. In Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202, 213 the Full Federal Court held that the words 'by reason of' require the practical application of the causation principles explained in March v M H Stramare Pty Ltd (1991) 171 CLR 506. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 Lockhart J at 321, in discussing the meaning of the words 'by reason of' in the definition of discrimination in the Sex Discrimination Act 1984 (Cth), said the phrase implies a relationship of cause and effect.
16 There is nothing in the context of s 41 that requires s 41(3)(b) be given a meaning other than its ordinary grammatical meaning. The relevant purposes of the WWC Act appear from its long title and from s 3 of the Act, to which we have already referred. Those purposes are not such that the construction of s 41(3)(b) advanced by the appellant would promote a purpose or object underlying the WWC Act in preference to the ordinary grammatical meaning of that provision.
17 Mr Brett submitted that access to the Commission is a fundamental right that should only be denied to Mr Brett if that abrogation is justified by irresistibly clear language. Mr Brett relied upon the statement of Lord Bridge in Raymond v Honey [1983] 1 AC 1 at 14 where his Lordship said that in considering whether any contempt had been committed by the appellant in that case one of the basic principles from which to start is that a citizen's right to unimpeded access to the courts can only be taken away by express enactment. Mr Brett relied upon the approval of that statement by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen (1994) 179 CLR 427 at 436. In Cocov The Queen the right in question was the right of a person in possession of property to exclude others from those premises which the court described as a fundamental common law right. The approach of the courts to the interpretation of statutes which abrogate or curtail fundamental rights has been referred to as the principle of legality: see Al-Ketab v Godwin (2004) 219 CLR 562 at [19] (Gleeson CJ). The principle of legality applied to the construction of statutes is that the courts will not, in the absence of clear statutory words, impute to the legislature an intention to abrogate fundamental common law rights.
18 The right to bring a claim for unfair dismissal in the Industrial Relations Commission is a statutory right not a common law right. It is not clear that the court should apply the same approach to limitations on statutory rights as to limitations on common law rights. In Buck v Comcare (1966) 66 FCR 359, Finn J dealt with the interpretation of s 57(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) under which an employee's rights to compensation and to institute or continue proceedings are suspended if he or she refuses or fails, without reasonable excuse, to undergo a medical examination by a legally qualified medical practitioner nominated by the relevant authority. Finn J said:
… [Section] 57(2) operates on a significant, albeit statutory, right of an employee in Mrs Buck's position. That right does not fall into the category of 'common law' rights which traditionally have been safeguarded from legislative interference etc in the absence of clear and unambiguous statutory language: cf J J Doyle QC, 'Common Law Rights and Democratic Rights', P D Finn (ed), Essays on Law and Government, vol 1, pp 158ff. Yet it is a right of sufficient significance to the individual in my view, that, where there may be doubt as to parliament's intention, the courts should favour an interpretation which safeguards the individual. To confine our interpretative safeguards to the protection of 'fundamental common law rights' is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society (364 - 365).
- The approach of Finn J was approved by the Full Federal Court in Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449 at [34].
19 The assumptions underlying the principle of legality are subject to the basic rule that parliament may override them. However, it must be apparent that the legislature has directed its attention to the question of the abrogation or curtailment of such rights and has determined upon abrogation or curtailment of them: Coco v The Queen [418] - [419]. In Lee v New South Wales Crime Commission (2013) 251 CLR 196 Gageler and Keane JJ said:
The principle [of legality] ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration of rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'.
…
The interpretive strictures of the legality principle should not be applied so rigidly as to have a sclerotic effect on legitimate innovation by the legislature to meet new challenges to the integrity of the justice system [313] - [317].
20 The principle of legality does not lead to a construction of WWC Act s 41 different from that which we have set out above. This case is not concerned with whether general words are sufficient to abrogate the right of access to the Industrial Relations Commission for an unfair dismissal claim. The legislature has directly addressed the issue. WWC Act s 41(2) clearly abrogates any rights which an employee may otherwise have where the employer dismisses the employee in complying with a provision of the Act which prohibits the employer from employing the employee in child-related employment. Section 41(3) is a saving provision and the excluded remedy is an exception to the saving provision and hence falls within the remedies which are excluded by s 41(2). The principle of legality does not assist in the interpretation of those provisions even if access to the Industrial Relations Commission to claim a remedy for unfair dismissal is a right which attracts the legality principle.
21 Mr Brett submitted that in circumstances where the WWC Act did not require his dismissal, it cannot be said that the reason for the dismissal was compliance with the WWC Act. We do not agree. 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. The enquiry is whether the reason the respondent dismissed Mr Brett was to comply with the Act, not whether the respondent could have complied with the Act by taking some other course of action.
Subjective and objective reasons
22 The second aspect of the appellant's argument on appeal concerns subjective and objective reasons. Mr Brett says that the word 'reason' in s 41(3)(b) is not concerned solely with the subjective state of mind of the employer; it also requires an objective consideration of the respondent's reason or reasons for dismissing the employee. The appellant says that the Full Bench erred by failing to give an objective consideration to the reason the respondent dismissed Mr Brett.
23 The supposed distinction between objective and subjective reasons has been recently addressed by the High Court in relation to Fair Work Act 2009 (Cth) s 346 which prohibits the taking of adverse action by an employer against an employee for a proscribed reason. In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 the majority of the Full Court of the Federal Court found that Fair Work Act s 346 required an objective assessment of the intention of the alleged wrongdoer to establish the real reasons. The court found that the motive or what the person genuinely believes (subjective intention), while relevant to determine the question of whether an adverse action was taken because of a proscribed reason, was not determinative: Gray and Bromberg JJ at [28]. The decision was appealed to the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The High Court held that the test to establish the real reasons for the employer's decision was not an objective test but a test of what motivated the decision-maker at the time of making the decision: French CJ and Crennan J [44] - [45], Gummow and Hayne JJ [119], [127]; Heydon J [146] - [149]. Gummow and Hayne JJ said at [120] that questions of subjectivity as opposed to objectivity serve only to misdirect the correct interpretation of s 346. Their Honours explained:
… to engage upon an inquiry contrasting 'objective' and 'subjective' reasons is to adopt an illusory frame of reference. Such an inquiry into the 'objective' reasons risks the substitution by the court of its view of the matter for the finding it must make upon an issue of fact … [121].
24 Board of Bendigo Regional Institute of Technical and Further Education v Barclay was applied by the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980. French CJ and Kiefel J said at [7] that the focus of the inquiry as to whether Fair Work Act s 346(b) has been contravened is upon the reasons for the decision-maker taking the adverse action; the inquiry involves a search for the reasoning actually employed by the decision-maker. Their Honours stated that the determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences. Gageler J said at [85] that the word 'because' in Fair Work Act s 346 connotes the existence of a particular reason as an operative and immediate reason for taking adverse action and the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual. His Honour explained that in a case where the totality of the operative and immediate reasons for one person having taken adverse action against another person are proved, the question presented by Fair Work Act s 346(b) is whether any one or more of those reasons answers the description of the other person having engaged in any one or more of the industrial activities listed in s 347(a) or (b). His Honour observed at [93] that an employer could not escape the proscription in s 346(b) merely by proving that the employer applied its own characterisation to an act or omission having the character of a protected industrial activity.
25 The word 'reason' in WWC Act s 41(3)(b) should be interpreted in a similar way. The reason is the operative and immediate reason for the employer dismissing the person. The focus of the inquiry as to the employer's reason is upon the reasons for the decision-maker dismissing the person. The inquiry involves a search for the reasoning actually employed by the decision-maker. Direct evidence of the reason why the decision-maker dismissed the person may be accepted by the court or may be found to be unreliable because other objective facts are proven which contradict the decision-maker's evidence. The determination is one of fact, taking account of all the facts and circumstances of the case and available inferences.
26 This conclusion is consistent with the reference in s 41(3)(c) to 'the fact' that the person was dismissed for 'that reason'.
Full Bench made no error
27 In construing or interpreting s 41(3)(b) the acting President, with whom Commissioner Harrison agreed, made no error in her Honour's approach to determining the reason the respondent dismissed Mr Brett. In her reasons for decision the acting President stated at [47] that the expression 'the reason' in WWC Act s 41(3)(b) should be interpreted as the factual cause of the dismissal. At [52] the acting President said that to determine the reason of a dismissal referred to in WWC Act s 41(3)(b) requires an assessment of the acts and the state of mind of the employer. The acting President was directing attention to the fact that the decision-maker was the Director General herself and that the focus of the inquiry should be the reasoning actually employed by the decision-maker. At [55] the acting President said that the objective approach to the construction of WWC Act s 41(3)(b) must be rejected. Her Honour was right to say that the 'reason' in s 41(3)(b) is not to be determined objectively; it is to be determined taking account of all the facts and circumstances of the case and available inferences and in particular the reasoning actually employed by the decision-maker. At [59] the acting President said that the question for determination was a determination of the actual reason for the dismissal of Mr Brett and in an assessment of the real purpose of the dismissal what was in truth in the mind of the employer must be ascertained. Again, her Honour was correct in saying that the Commission must ascertain the reasons for the decision-maker dismissing Mr Brett and that inquiry involves a search for the reasoning actually employed by the decision-maker.
Practical alternatives
28 The appeal must be dismissed because the appellant's construction of WWC Act s 41(3) is wrong. It is therefore unnecessary to consider whether there were practical alternatives for the respondent to comply with the Act other than dismissing Mr Brett. Nevertheless, as the matter was argued we will briefly set out our findings on that issue.
29 It is an agreed fact that Mr Brett was a science teacher at North Lake Senior Campus and he was employed in child-related employment as defined in the WWC Act. The respondent would have contravened WWC Act s 22(3) if she had continued Mr Brett's employment after he was issued with the interim negative notice. That is because he was employed as a teacher in child-related employment. However, Mr Brett says that the respondent could have complied with WWC Act s 22(3) without dismissing him by transferring him to a position not involving contact with children or by ordering him to leave the school premises and remain away or by suspending him. We will consider each of those propositions, starting with the assertion that the respondent could have transferred Mr Brett to a position not involving contact with children.
Transfer
30 It is an agreed fact that Mr Brett was appointed as a teacher under the Education Act 1928 (WA) and after that Act was replaced with the School Education Act 1999 (WA) his appointment continued under the School Education Act1999 (WA). Mr Brett's employment was subject to the provisions of School Education Act s 235 - s 238 and s 240. Section 235(1) provides that persons are to be employed in the Education Department in one of the following categories:
(a) as public service officers appointed or made available under pt 3 of the Public Sector Management Act 1994 (WA) (PSMA); or
(b) as members of the teaching staff; or
(c) as other officers; or
(d) as wages staff.
Section 238(1) provides that the chief executive officer, the respondent, may, if she considers that it is in the interests of the department to do so, determine that a person who is a member of the teaching staff is to become an officer of the class mentioned in s 235(1)(a) or (c).
31 Therefore, the respondent had the power to transfer Mr Brett to become a public service officer if she considered that it was in the interests of the department to do so. It was submitted on behalf of Mr Brett that the respondent could have transferred him to the position of public service officer at head office. The respondent gave evidence that there was no opportunity to redeploy or transfer Mr Brett to a regional office or head office. The respondent further said that there was no capacity to find other work for Mr Brett and she did not need other work to be undertaken. That evidence was accepted by the acting Senior Commissioner who found that the respondent did not place Mr Brett in another role because there was no other work which was required to be performed. The Full Bench did not interfere with those findings on appeal. Under School Education Act s 238 the respondent could only transfer Mr Brett if she considered that it was in the interests of the Department to do so. Although the acting Senior Commissioner made no express finding that the respondent did not consider that it was in the interests of the Department to transfer Mr Brett, that is an inevitable consequence of the respondent's evidence and the acting Senior Commissioner's findings. It follows that transferring Mr Brett to another category of employee was not a practicable alternative.
Order to remain away from school premises
32 Secondly, Mr Brett says that the respondent could have ordered him to leave the school premises and remain away pursuant to School Education Act s 240. School Education Act s 240 empowers the respondent to order an employee to leave school premises and remain away if the chief executive officer suspects that the teacher may have committed a breach of discipline as referred to in PSMA s 80 and that the continued presence of the teacher on the school premises constitutes a risk to the safety or welfare of students on the premises. PSMA s 80 provides that an employee who does any of the things set out in s 80(a) to (e) commits a breach of discipline. The parties did not make any submissions whether the respondent had grounds for suspecting that Mr Brett had done any of the things set out in s 80(a) to (e). However, on 10 May 2012 the respondent ordered Mr Brett to remain away from the school premises. It may be inferred that the respondent suspected that Mr Brett may have committed a breach of discipline as referred to in PSMA s 80 and hence had the power to order Mr Brett to remain away from the school premises.
33 School Education Act s 240 provides that in the circumstances specified the chief executive officer may require a teacher to leave the school premises and remain away until the suspected breach of discipline has been dealt with under pt 5 of the PSMA or until the order is sooner revoked. The respondent did not deal with the charges against Mr Brett, or the issue of the interim negative notice, as a disciplinary matter under PSMA pt 5. However, the respondent did not submit that the chief executive officer may not make an order requiring a teacher to leave the school premises and remain away and not revoke the order in circumstances where the suspected breach of discipline is not dealt with under pt 5 of the PSMA. It is therefore unnecessary to address that matter.
34 The respondent submitted that the power to order a teacher to stay away is limited by the WWC Act which prohibits the employment of an employee who has an interim negative notice in child-related work. We will consider that submission later in these reasons when considering the power of the respondent to suspend Mr Brett.
Suspension
35 The third alternative proposed by Mr Brett is that the respondent could have suspended him. School Education Act s 239 provides that PSMA pt 5 has effect as if in that part references to 'employee' included a member of the teaching staff. PSMA pt 5 div 3, which includes s 80A to s 82, deals with disciplinary matters. Section 82 provides that if an employee is charged with having committed a serious offence, which is defined in s 80A to include an indictable offence against Western Australian law, the employer may, in accordance with the Commissioner's instructions, suspend the employee on full pay, partial pay or without pay. A suspension arising from a criminal charge has effect until the charge has been finalised: s 82(2)(b). On the face of the legislation, the respondent had power to suspend Mr Brett on full or partial pay or without pay.
36 The respondent submits that the power to suspend and the power to order the teacher to stay away are each limited by the WWC Act which prohibits the employment of an employee who has an interim negative notice or a negative notice in child-related work. The respondent submitted that a teacher who is suspended or ordered to stay away under a s 240 of the School Education Act remains employed in child-related employment because the mere fact that the teacher is suspended or ordered to stay away does not alter his usual duties which habitually require contact with children.
37 The word 'suspended' in its ordinary signification includes to 'debar … for a time, from the exercise of an office or function' (Macquarie Dictionary, 2nd ed). In the context of the phrase 'suspend the employee' (s 82 PSA), the word 'suspend' denotes the suspension of the functions of the employee, even though the contract itself subsists and continues in its operation subject to the effect of the suspension order. A teacher who is suspended or ordered to stay away from school premises cannot carry out functions which involve contact with a child in connection with an educational institution for children and hence cannot carry out child-related work.
38 The employment under the contract continues throughout the period a teacher is suspended or ordered to stay away under School Education Act s 240. However, whether or not the respondent would have contravened WWC Act s 22(3) by suspending Mr Brett or ordering him to stay away from school premises but not dismissing him involves a question of construction.
39 WWC Act s 22(3) provides that an employer must not employ a person in child related employment if the employer is aware that a negative notice or an interim negative notice has been issued to the person and is current. 'Child-related employment' is defined to mean child-related work carried out by a person under a contract of employment or in other specified circumstances. It is apparent from the definition, and confirmed by the Explanatory Memorandum, that the definition of 'child-related employment' captures child-related work carried out by individuals who are in an employment-like relationship, including where the work is carried out on an unpaid or voluntary basis. 'Child-related work' is defined as work where the usual duties of the work involve, or are likely to involve, contact with a child in connection with the places or services specified in s 6(1)(a)(i) - (xix).
40 The WWC Act s 23 provides that if a person holds a current interim negative notice the person must not be 'employed' in child-related employment. The purpose of s 23 is to prevent a person who holds a current interim negative notice from carrying out child-related work by prohibiting people who have been charged with or convicted of relevant offences from carrying out child-related work whilst in an employment-like relationship. The WWC Act is concerned with a person holding a current interim negative notice carrying out child-related work, not regulating the contract of employment between an employer and an employee or requiring contracts of employment to be terminated. If an employer suspends an employee from carrying out child-related work, or all work, or orders the employee to stay away from the premises on which child-related work is carried out then the employer would not be contravening WWC Act s 22(3) notwithstanding that the contract of employment continued to subsist. The terms 'employ' in s 22(3) and 'employed' in s 23(a) relate to the work performed or to be performed by the person in question, as distinct from the contractual or other relationship between the person and the employer.
Conclusion
41 The appeal should be dismissed.
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