Mr Brian Danvers v The Commissioner for Public Employment - [2023] FWC 2047

[2023] FWC 2047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Brian Danvers
v

The Commissioner for Public Employment

(U2023/3876)

COMMISSIONER RIORDAN

SYDNEY, 22 SEPTEMBER 2023

Application for an unfair dismissal remedy

On 5 May 2023, Mr Brian Danvers (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Northern Territory Government Department of Education on 17 April 2023 on performance and inability grounds under section 44 of the Public Sector Employment and Management Act 1993 (the PSEM Act). The Respondent to the Application is the Commissioner for Public Employment, Northern Territory (the Respondent).

The Applicant was employed by the Respondent as a Teacher from 20 January 2004 until his dismissal on 17 April 2023. The Applicant’s employment was covered by the Northern Territory Public Sector Non-Contract Principals, Teachers And Assistant Teachers’ 2021-2024 Enterprise Agreement (the Agreement).

Background

In its submissions, the Respondent provided the relevant background to the Applicant’s dismissal. The Respondent’s submissions in this regard are repeated here in full:

“The Public Sector Appeal Board Decision
On 27 June 2019, a Public Sector Appeals Board (PSAB) upheld an appeal by the Applicant against a decision of the Department of Education to dismiss him following an investigation and disciplinary process that found that he had committed breaches of discipline (Attachment E).
Although the PSAB found that the Applicant had committed a breach of discipline in relation to an incident at a school camp at Bathurst Island in 2005 (which will be summarised in greater detail below), it found that an incident involving the washing of the legs of students in 2012, did not constitute a breach of discipline.
The PSAB found that the Applicant did ‘not pose an unreasonable risk to the safety of his students and that the appropriate disciplinary action [was] for the Chief Executive Officer to formally caution [him] pursuant to s 49C(1)(b)(emphasis added).’1 Although the PSAB does not state expressly that the Applicant was to be reinstated as a teacher, the reference to ‘his students’ in its reasons for decision, suggest that it expected that, subject to the formal caution, the Applicant would be assigned to resume his teaching duties, with his students. It specifically used the expression ‘his students’. It did not use a more generic expression, such as a reference to students generally.
The PSAB directed that the Applicant ‘be reinstated to employment from the date of his original suspension without pay on 19 February 2014, and [that he was] to be reimbursed for his lost earnings and all associated employment benefits (superannuation contributions, salary increments, long service leave and recreational leave entitlements, etc.) to which he would have been entitled if he had been employed for the entire period from 19 February 2014 to the date of his reinstatement.’
The Applicant, had been employed as a Classroom Teacher level 9 (CT9). He was reinstated as a CT9. However employment as a teacher in the Northern Territory is conditional on a teacher being registered as a teacher with the Teacher Registration Board of the Northern Territory (TRB).
Following the decision of the PSAB, the Applicant applied to the TRB for teacher registration to on 17 September 2019.
The Teacher Registration Board Decision
On 13 November 2020, the TRB declined to register the Applicant as a teacher. It was not satisfied that he was a ‘fit and proper’ person to teach(Attachments A.1 and A.2). The TRB advised the Applicant of its decision on 18 November 2020.
The TRB decision advised the Applicant that:
a. it considered his registration application and its supporting documentation on 17 July 2020 and that at that time it considered that the Applicant was not a fit and proper person to teach;

b. subsequently the TRB invited the Applicant to appear before it in relation to its notice of reasons of decision, as well as providing written submissions;

c. the Applicant filed written submissions to the TRB on 30 September 2020;

d. the Applicant appeared before the TRB on 22 October 2020 to supplement his written submissions; and

e. the TRB subsequently found that it was not satisfied that he was a fit and proper person to teach in accordance with s 32 of the Teacher Registration Board (Northern Territory) Act 2004 (NT); and that he was not eligible for full or provisional registration, resulting in the TRB refusing his teacher registration application pursuant to s 36(1)(c) of that Act.

In reaching its decision the TRB considered:
a. the Applicant’s criminal history, which disclosed three offences;
b. the fact that the Applicant had not disclosed any criminal history in his original 2004 application, and his 2019 application; and

c.   the Applicant’s submissions and medical evidence in relation to the omissions.
The TRB found that the Applicant had deliberately misled it in relation to his conviction in July 1981 for culpable driving in 2004 and in 2019.
The TRB considered the Applicant’s conviction for aggravated assault involving a female student. Notwithstanding the Applicant’s submissions and his disagreement with the decision of the court at the time, the TRB found that he had acted deliberately in getting into the student’s bed, while she slept and assaulted her.
The TRB distinguished its decision from that of the PSAB, which was considering whether the Applicant’s conduct in 2005 was a breach of discipline. Unlike the latter, the TRB was considering whether the Applicant were a fit and proper person to be registered as a teacher.
Other matters that the TRB considered were:
a.   the Applicant’s breach of bail conviction in 2017;
b.   other behaviours displayed by the Applicant at the school camp in 2005 that were not the subject of the criminal conviction, such as swimming in close proximity with the female students and touching one student’s leg whilst in the pool;

c. allegations of the Applicant engaging in ‘creepy’ behaviour in woodworking classes;

d. whether the Applicant bought alcohol for students or the student’s mother and the appropriateness of doing same;

e. whether the leg washing incident, which resulted in a quashed conviction in the Northern Territory Court of Criminal Appeal constituted behaviour that went outside the bounds of acceptable professional behaviour for a teacher (distinguishing its approach from that of the PSAB);

f. other aspects of inappropriate behaviour that were not denied by the Applicant, but dealt with through explanation; and

g.   the Applicant’s working with children clearance, in which the TRB noted that the Screening Authority, SAFENT, did not have all the information that was available to the TRB.
Although it is not a question before the Commission as currently constituted, the Respondent submits that the evidence from the TRB decision and its reasons for decision, indicate that in its processes, the Applicant was afforded procedural fairness when it made its decision not to register him as a teacher. As argued throughout this submission, this decision had consequences for the Department of Education in its ability to continue employing him as a teacher. The submission will now turn to the question of the decision of the Northern Territory Civil and Administrative Tribunal (NTCAT).
The Northern Territory Civil and Administrative Tribunal Decision
The Applicant appealed the decision of the TRB to NTCAT on 23 December 2020. Following a re-hearing, NTCAT confirmed the decision of the TRB on 7 October 2022 (Attachment B).
Noting the fact that the TRB refused the Applicant’s application for registration as a teacher because it was not satisfied that he was a ‘fit and proper person to teach’, NTCAT gave the following reasons for its decision:
a.   his failure to disclose a conviction in 1981 for culpable driving (NSW) in 2004 on two occasions, which NTCAT considered to be a breach of professional standards;
b.   the school camp incident in 2005 in which NTCAT found that he ‘had intruded on the personal space of female students in the community pool on Bathurst Island, and made inappropriate comments on that day of a sexual nature including in relation to the 19 year old female student’, with the exception of the allegation that he had ‘touched or brushed a female student when swimming underwater in the pool on Bathurst Island’;

c. complaints of unprofessional conduct over 2007 and 2008, NTCAT being satisfied that female students visited the woodwork area and obtained coca cola, which constituted a breach of professional standards;

d. a complaint of unprofessional conduct in 2009 and 2010 in which the Applicant assisted female students to visit Hungry Jacks;

e. a complaint of unprofessional conduct in 2011 involving the purchase of alcohol, in which NTCAT disagreed with the Department of Education’s findings, holding that a finding of recklessness was sufficient to find that ‘a teacher failed to perform his or her duties “professionally and with integrity”, and thus breached discipline, concluding that he ‘did not comply with professional standards’;

f. a complaint of unprofessional conduct in 2011 involving a ‘maze’ game in the old photography room at the school, in which NTCAT was not satisfied that the allegations against the Applicant had been proven;

g. the leg washing incident in 2012 and other woodwork classroom incidents in 2013, in which NTCAT summarised the court process and distinguished its findings from that to the PSAB;

h. the Applicant’s alleged attempts to obtain the personal phone numbers of female students, and the provision of chocolates to students as rewards in 2013 in which NTCAT agreed with the TRB and disagreed with the Department of Education that the conduct was unprofessional;

i. the Applicant’s working with children clearance in 2019 (i.e. the Ochre Card) in which NTCAT found that there were ‘significant difficulties’ in the Screening Authority’s ‘process and reasoning’;

j. the processes and reasoning adopted by the TRB in refusing to renew the Applicant’s registration (which had expired) and refusing to register the Applicant as a teacher; and

k. the Applicant’s submissions (including his reference to Briginshaw, which NTCAT rejected).

The Respondent submits that the Commission should note that the NTCAT proceedings constituted a rehearing of the Applicant’s case with the TRB.
A consequence of the NTCAT decision was the Applicant remained unregistered as a teacher, and that he was unlikely to be so registered in the foreseeable future. These circumstances precipitated the Department of Education’s initiation of the inability provisions under Part 7 of the Public Sector Employment and Management Act 1993 (NT) (PSEMA). This submission will now set out the inability process that led to the Applicant’s dismissal.”

(My emphasis)

The Respondent issued the Applicant with a Performance and Inability letter on 20 December 2022 in the following terms:-

“Dear Mr Danvers
Re: Employee Performance and Inability – Section 44 - Public Sector Employment and Management Act 1993
I am writing pursuant to section 44 of the Public Sector Employment and Management Act 1993 (“the Act”), to advise you that I suspect there are “inability or performance grounds” which exist in respect to the performance of your duties as a Classroom Teacher (CT) classification with the Department of Education (the department).
In particular with references to sections 44(1)(a), (b) and (c) of the Act, I suspect that you are:
(a) not able to perform the duties you are assigned to perform;
(b) not suited to perform, or capable of efficiently performing those duties; or
(c) not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties.

Suspected Inability Grounds

The reasons that I think inability on performance grounds may exist are as follows:

a) You are an ongoing employee of the department and employed as a CT.
b) You have been employed by the department as a CT since 20 January 2004.
c) On 13 November 2020, the Teacher Registration Board (the board) of the Northern Territory denied your application for registration as a teacher (of technical studies) and determined they were not “satisfied” that you are “a fit and proper person to teach”. You were notified of the board decision and reasons via correspondence dated 18 December 2020.
d) You requested the board review the decision, resulting in the outcome dated 18 December 2020 being confirmed. You were notified of the review outcome via correspondence dated 18 January 2021.
e) You subsequently made application to the Northern Territory Civil and Administrative Tribunal (the tribunal) for a review of the board decision. On 7 October 2022, the tribunal issued orders and reasons and determined that the “decision on 13 November 2020 to refuse the applicant’s application for registration as a teacher is confirmed.” The Tribunal were not satisfied, on the evidence adduced, that you are a “fit and proper person to teach” as required by s 30(b) of the Teacher Registration (Northern Territory) Act 2004. Since this precondition is not fulfilled, you are not “eligible” for registration under that provision.
f) The tribunal remarked on a number of circumstances during the course of your employment as a CT where you did not comply with professional standards.
g) Essentially, the role of a CT requires registration with the board in order to be employed in that capacity.

On the basis of my suspicion, as set out above, I advise that I am commencing an “inability process” under the Act, to determine whether I can be satisfied that inability on performance grounds exist pursuant to s 44 of the Act.
Opportunity to respond
Before I make a decision pursuant to s 44 of the Act, I offer you the opportunity to make submissions to me as to whether you agree with my suspicion, provide me with any comments and/or explain the matters set out in (a) to (g) above. Your submissions should be in writing and reach me within fourteen (14) calendar days of your receipt of this letter.
Foreshadowed suspension
Furthermore, on the basis of the material set out above, and my suspicion that there exist inability on performance grounds, I am of the opinion that the suspected inability on performance grounds are of such a serious nature that you should not continue performing the duties you have been assigned to perform pending the making of a final decision. Pursuant to s 47 of the Act I foreshadow an intention to suspend you from duty, without remuneration, for a period of 6 months or until the suspension otherwise ceases in accordance with s 47(4) of the Act.
However, before I take action to suspend you I invite you to make a submission to me in relation to the foreshadowed intention to suspend you from your duties as a Classroom Teacher. Your submissions on whether you should be suspended from duty should be submitted in writing and reach me within seven (7) calendar days of your receipt of this letter.
Further information
Subject to your written explanation, if any, of the matters raised and my consideration of any other relevant matters in accordance with section 44(3) of the Act, I may decide to take further action under section 44(4) of the Act.
I attach for your information copies of:
• Public Sector Employment and Management Act - Part 7 – Employee performance and inability, sections 44 through to 47.
• Employment Instruction No 6 – Employee Performance and Inability
• Employment Instruction No 3 – Natural Justice

Employee Assistance Program Providers
I appreciate that this may be a difficult time for you and remind you that the Employee Assistance Program providers are available for you to access during this process, the contact details for which can be found on the next page of this correspondence.

[redacted]
Should you have any queries regarding this matter, please contact Shaye Richardson, Senior Manager, Workforce Relations on [redacted].
Yours sincerely
Paul Nyhuis
Senior Director Education
Darwin Region
20 December 2022”

(My emphasis)

Northern Legal Services provided a response to the Respondent on behalf of the Applicant on 25 January 2023:

“Dear Sir
Mr Brian Danvers - Inability Allegations – Section 44 Public Sector Employment and Management Act ("the Act").
I refer to your correspondence to my client dated 20 December 2022 informing Mr Danvers of your intention to suspend him from duty without remuneration for a period of six months and your suspicion that he is unable to perform his duties vide the inability provisions under the Act.
My client's employment was terminated by the DoE for alleged breaches of discipline after a long period of suspension without remuneration that commenced on 19 February 2014. That decision was appealed to the Public Sector Appeals Board ("the Board"). On 27 June 2019, the Board handed down its decision together with written reasons ("the Decision"). That document is attached at Attachment ‘A’ for your ease of reference.

In this matter, the question of whether or not it is open for you to make a finding that my client is unable to perform his duties is a question of law rather than fact. The DoE has not alleged poor performance but has relied on a legal requirement. The teaching profession is regulated by the Teacher Registration (Northern Territory) Act. One of the objects of that Act is to mandate registration as a teacher before a person can lawfully teach.
During the appeal proceeding, the DoE was represented by the Solicitor for the Northern Territory who engaged the services of Mr Tom Anderson of counsel. Your counsel filed written submissions to the Board to assist it in making its findings. Part of the DoE's submissions were that it should not make a decision that could not be implemented. It was submitted that my client was not at that time currently registered, and as such, could not lawfully be employed as a classroom teacher.
Those submissions were obviously considered by the Board as it ordered that my client be immediately reinstated to employment and that all of his salary and other entitlements be reimbursed.
The Board made the Order with the full knowledge that my client was not registered as a teacher in the Northern Territory and that there was some doubt whether he could obtain future registration at all.
I note that the Board made a finding that he was not considered an unreasonable risk to his students.
Any decision of the Board must be one that was within the power of the Chief Executive pursuant to s. 59E(4) of the Act. The Board's decision was valid under the Act and there was no appeal by the DoE to the Supreme Court.

It is obvious that the effect of the Decision was that my client was reinstated to employment other than as a classroom teacher. I note that when he returned to duty he was working at the Mitchell Centre in a non-teaching role. Within the Decision, the Board did not place a time limitation as to when my client was required to obtain registration as a classroom teacher, or to obtain such registration at all. The DoE was simply ordered to reinstate him to employment.
It follows that your allegation that my client is unable to perform his duties is misconceived. He is no longer employed as a classroom teacher. It is incumbent on the DoE to continue his placement in Quality Teaching and Learning or some other administrative position. Since his reinstatement, he was already permitted to take recreation leave, an entitlement that does not apply to classroom teachers.
Should the DoE not find him a suitable position, it will be in breach of the Decision.
Accordingly, the question of suspension does not arise.

Yours faithfully,
Ron Hope
Principal
Northern Legal Services”

(My emphasis)

The Decision[1] of the Public Sector Appeals Board provided:

“DECISION

The decision of the Board is as follows:
Pursuant to section 59E(2)(e) of the Public Sector Employment and Management Act, the Board sets aside the decision of the Chief Executive Officer and replaces it with the Board’s decision, which is as follows:
a) That the actions and conduct of the Appellant in the “leg-washing incident” which occurred on a date sometime between July and September 2012 were not breaches of discipline within the meaning of the Act, and therefore no disciplinary action is warranted in relation to that matter.
b) That the Appellant’s actions and conduct in the “school camp incident” of 29 March 2005 and his aggravated assault conviction in 2015 arising from that incident, constituted a failure by him to carry out his duties professionally and with integrity and were therefore contrary to the Performance and Conduct Principle as set out in sections 5F(1)(a)(i) of the Act, and that Appellant’s conduct in that incident amounts to the following breaches of discipline:

• Section 49(a) - fails to uphold the performance and conduct principle
• Section 49(b) – is found guilty in a court of an offence that affects the employee’s employment
• Section 49(f) – in the course of his employment or in circumstances having a relevant connection to his employment conducts himself in an improper manner

c) That, having found on reasonable grounds that the Appellant committed the breaches of discipline as set out in the paragraph above, the Board directs pursuant to s49C(1)(b)(i) that the following disciplinary action is to be taken against the Appellant:

• The formal caution issued to the Appellant by the Respondent on 2 June 2005 is to remain in place with the same wording and directions, but is to be re-issued as at the current date, with one change to add to the first paragraph the words highlighted below, so that the first paragraph of the caution will now read:

“I refer to my letter to you dated 16 May 2005, your response dated 16 May 2005, the counselling of you by Ms Elphinstone and Mr Marshall on 17 May 2005, and your conviction without penalty on 25 May 2015 for aggravated assault in relation to your actions on the night of 29 March 2005 during a school excursion”.

d) The Board further directs that the Appellant is to immediately be reinstated to employment from the date of his original suspension without pay on 19 February 2014, and is to be reimbursed for his lost earnings and all associated employment benefits (superannuation contributions, salary increments, long service leave and recreational leave entitlements, etc.) to which he would have been entitled if he had been employed for the entire period from 19 February 2014 to the date of his reinstatement.”

(My emphasis)

Further, the written reasons for the Board’s decision relevantly provided:

“46. It is the view of the Board on all of the evidence that the Appellant does not pose an unreasonable risk to the safety of his students and that the appropriate disciplinary action is for the Chief Executive Officer to formally caution the Appellant pursuant to s49C(1)(b).”

(My emphasis)

On 3 March 2023, the Respondent issued the Applicant with a further Performance and Inability letter, as follows:

“Dear Mr Danvers,
Re: Employee Performance and Inability – Section 44 – Public Sector Employment and Management Act 1993
I refer to my letter of 20 December 2022 in which I advised you, pursuant to section 44 of the Public Sector Employment and Management Act 1993 (“the Act”), that I suspected that there were “inability and performance grounds” in respect to the performance of your duties as a Classroom Teacher (CT) with the Department of Education (the department). I also set out my reasons for forming that suspicion on the basis that:

a. on 7 October 2022 the NT Civil and Administrative Tribunal (NTCAT) confirmed an earlier decision of the NT Teacher Registration Board (TRB) refusing your application for registration as a teacher, because the NTCAT was not satisfied that you are a fit and proper person to teach; and
b. as you are employed to perform duties as a CT, you are not able to perform your duties (s.49(1)(a)), not suited to perform or capable of efficiently performing those duties (s.44(1)(b)) and/or not licensed, registered or otherwise qualified to perform CT duties (s.44(1)(c)).

In that correspondence, I also foreshadowed my intention to suspend you from duty without remuneration, pursuant to s.47(4) of the Act pending the outcome of this process.
I invited you to make a submission to me in relation to the foreshadowed suspension without remuneration and the suspected “inability or performance grounds”, within seven (7) days and fourteen (14) days respectively. You requested further time to provide submissions. I approved your reasonable request for further time.
I acknowledge receipt of the submissions provided on your behalf by Northern Legal Services, received via email on 25 January 2023.

Performance and Inability Grounds
I have considered the submission provided on your behalf by Northern Legal Services which, in summary:

a.   refers to a decision of a Public Sector (Discipline) Appeal Board made on 27 June 2019 reinstating your employment (the PSAB Decision);
b.   asserts that the effect of that decision was to reinstate your employment in a non-teaching role;
c.   asserts that, as you are no longer employed as a CT, my suspicion that you are unable to perform, and/or not registered to perform your duties is misconceived;
d.   submitted in effect that the department is obliged to find you a “suitable position” i.e. a position performing non-teaching duties; and
e.   asserts that if it does not do so, the department will be in breach of the 2019 PSAB Decision.

In my view those submissions are misconceived and not relevant to my decision. Whilst I do not consider it necessary to respond to all of your submissions, this is not to be taken as an indication that I accept any of them. On the contrary, I reject your submissions for the following reasons:

1. The “appealable decision” considered in the 2019 PSAB Decision was a decision to terminate your employment, for disciplinary reasons, under s.49C(1)(c) of the Act;
2. The PSAB decision did not deal with issues relating to your teacher registration which were of no relevance to the decision to terminate your employment under s.49C(1)(c) of the Act;
3.   When the PSAB issued its decision on 27 June 2019 you were not a registered teacher (your registration having lapsed on 31 December 2015) and you only applied for registration subsequently on 17 September 2019;
4.   The PSAB’s decision was to reinstate you “to employment”. That decision did not specify that you were to be reinstated to non-teaching duties and there is no basis to conclude that that was the PSAB’s intention;
5.   The word “reinstate” is accepted as connoting restoring a terminated employee to their former position or station. Immediately prior to the 2018 termination, you were employed as a CT;
6.   In addition, page 21 paragraph 46 of the PSAB decision provides a consistent implication that you were to be reinstated to teaching duties, because the Board expressed the view that you did not pose an unreasonable risk to the safety of your students;
7.   Consequently, you were reinstated to your original classification as a CT and have continued to be employed as a CT since your reinstatement (see Attachment A);
8.   Whilst you were temporarily assigned to perform administrative duties in 2020, you have utilised various forms of leave for the vast majority of the period since your reinstatement, and almost continuously since February 2020 (see Attachment B). Consequently, there is no evidence before me to suggest that you have gained any transferrable non-teaching skills or experience since you were reinstated in June 2019.
9.   Between 17 September 2019 and 7 October 2022 there was a possibility that, at some point, you might obtain teacher registration;
10. However, following the NTCAT decision of 7 October 2022, and in circumstances in which you have not advised that you have appealed that decision, the only reasonable conclusion available is that you cannot and will not be registered to teach at any point in the future. Further, it would be an offence under s.72 of the Teacher Registration (Northern Territory) Act 2004 for the department to employ you to perform teaching duties.

For those reasons, I am satisfied on reasonable grounds that there are performance and inability grounds for your employment because:

a. you are not able to perform the duties you are assigned to perform, being CT duties, under s44(1)(a); and/or
b. you are not suited to perform those duties, under s44(1)(b), because, amongst other reasons, the TRB and NTCAT have found that you are not a fit and proper person to hold teacher registration; and/or
c. you do not and cannot hold essential registration for the satisfactory performance of your CT duties under s.44(1)(c).

Remedial Action
Having made those findings, and having regard to sections 44(2) and 44(5)(a) of the Act, I may now take remedial action that is reasonable and appropriate in the circumstances. The remedial actions available to me under s.46 of the Act are to:

a. take no further action – s.46(1)(a); or do one or more of:
b. order you to undertake any training, counselling or other remedial activities I consider appropriate in the circumstances – s.46(1)(b)(i);
c. reduce your salary within the range applicable to the CT designation – s.46(1)(b)(ii);
d. under section 35 of the Act transfer you to perform other duties in the Agency – s.46(1)(b)(iii)(A);
e. under section 35 of the Act transfer you, or request that the Commissioner for Public Employment transfer you to perform other duties in another Agency – s.46(1)(b)(iii)(B); or
f. terminate your employment – s.46(1)(c).

Having considered all of those options I am satisfied that the only remedial actions that could possibly be reasonable or appropriate in the circumstances would be to either transfer you to perform other (non-teaching) duties in the department (as is effectively proposed by Northern Legal Services), or to terminate your employment.

In particular I note that:

a.   taking no further action would not be reasonable or appropriate in the circumstances;
b.   ordering you to undertake training, counselling or other remedial activities will not remedy your inability to perform CT duties;
c.   reducing your salary will not remedy your inability to perform CT duties; and
d.   it would not be reasonable or appropriate to transfer you to perform duties in another Agency.

Whilst I have considered transferring you to perform non-teaching duties within the department on an ongoing basis, I have also had regard to the facts that:

a. your employment experience prior to joining the department in 2004 included:
i.26 years working as a ground support engineer in the Royal Australian Air Force; and
ii.What I understand to be several years working as a workshop manager for local councils in Maningrida and Ngukurr.

b.   you were originally employed in 2004 to perform CT duties;
c. between your original employment in 2004 and the decision to terminate your employment under s.49C(1)(c) of the Act in October 2018 you exclusively performed CT duties;
d.   you were temporarily assigned to perform administrative duties after the PSAB reinstated your employment in June 2019;
e.   however, for the vast majority of the period from June 2019 to the present you have utilised various forms of leave, such that you have not performed any duties which might have given you transferable skills, knowledge and experience in non-teaching duties.

For those reasons, I am not satisfied that it would be reasonable and appropriate for me to transfer you, to any vacant position, to perform non-teaching duties for which you do not possess contemporary or transferable skills, knowledge or experience. It would also be inconsistent with the merit principle to deny other persons, who do possess the relevant skills and experience, the opportunity to perform the duties of a vacant administrative position.

I also reject your submission that the department has an obligation to transfer you to non-teaching duties (that you do not possess the skills, knowledge or experience to perform) and note that s.31 of the Act provides that a Chief Executive Officer (or delegate) “must not” transfer an employee to perform duties unless the employee possesses such educational qualifications and meets other requirements as are determined by the Commissioner for Public Employment as being required for the performance of those duties.

Consequently, I am satisfied that the only reasonable and appropriate remedial action available to me, is to terminate your employment under section 46(1)(c) of the Act and I foreshadow my intention to take that action.

Opportunity to respond
Before I make a final decision pursuant to section 46 of the Act, I offer you the opportunity to make submissions to me as to why I should not take the proposed remedial action. Your submissions should be in writing and reach me within fourteen (14) calendar days of your receipt of this letter.
Suspension Decision
In light of the NTCAT’s confirmation that you are not a fit and proper person to hold teacher registration, and for the reasons outlined above, I am satisfied that your performance and inability grounds are of such a serious nature that you should be suspended from duty without remuneration.
Your suspension will take effect from the date of this letter and will remain in place for a period of 6 months or until the suspension otherwise ceases in accordance with s.47(4) of the Act.
I have received your request of 27 February 2023 that asks that I consider the matter of your pay from 14 December 2022. As I have only now determined the matter of suspension, it is reasonable for me to treat the interim period from 14 December as on duty but not attending and accordingly remunerate you from 14 December 2022 up until the effective suspension date.
Available Support and further information
The services of the Employee Assistance Program remain available to you to access if required.
While these proceedings are in progress, I remind of your obligations under the Code of Conduct to maintain confidentiality and it is a requirement that you do not copy or disclose the contents of the letter or my previous correspondence to others, except to the extent that you consider it necessary to assist you in responding to any correspondence relating to this matter.
Should you have any queries regarding this matter, please contact Shaye Richardson, Senior Manager, Workforce Performance on [redacted].
Yours sincerely
Paul Nyhuis
Senior Director Education
Darwin Region
3 March 2023”

(My emphasis)

Northern Legal Services provided a response to the Respondent on behalf of the Applicant on 17 March 2023, providing:

“Dear Mr Nyhuis
Mr Brian Danvers – Submissions as to penalty – Inability Proceedings
I refer to previous correspondence and to your letter to my client dated 3 March 2023 (“your letter”).
Out (sic) the outset it is clear from your letter that the DoE has an agenda to terminate my client’s employment with the NTPS. I refer to your admission that you have rejected all his submissions made on his behalf in my letter of 25 January 2023. In any civil dispute, some merit must fall to either party and to say otherwise is indicative of bias. You have also back-dated his suspension. A suspension should not be retrospective, but rather prospective. The decision was made on 3 March but my client was not served that notice of suspension until 6 March. Further evidence of bias, malice, and a show of bad faith. It is noted that your letter is silent as to the reasons for suspending my client without pay.
With respect to your reasons for your decision to find against my client I refer to the following enumerated points on page 2 of your letter.
4. The DoE was ordered to reinstate my client to employment. We agree that the decision did not specify what type of employment. It did not say he was to be reinstated to teaching duties. The only logical inference is that he was to be provided with non-teaching duties as it was in evidence (and submissions) before the PSAB that he was not registered as a teacher. It was further submitted by the DoE’s counsel that it should not be put in a position wherein compliance with their orders would be a breach of Territory law.

A fortiori, if it was the intention of the PSAB to order temporary reinstatement of my client to non-teaching duties, pending his application for registration with the TRB, they would have said do. They did not. There is no sunset clause in their decision. In my view the PSAB as constituted when the decision was handed down is now functus officio. Therefore, should my client’s employment be terminated, a fresh appeal would be made to the Board with a different panel.
5. Your narrow interpretation of ‘reinstate’ is noted and suites the DoE’s agenda. However, the decision was within the power of the CE to reinstate to another job. Therefore, it was open to the PSAB to make a decision under PSEMA. The decision was not appealed by the agency.
6. Similarly, the comment as to Mr Danvers not being a risk to students goes to his credit, and if employed in a non-teaching position he may be from time to time in a school and proximate to students. It is therefore critical that he not be a person who was considered an unacceptable risk to students for him to be suitable for non-teaching duties.
8. The fact that my client has been on extended leave is totally irrelevant to the basis of inability. It does not affect the fact that he was not employed as a classroom teacher, which is fatal to any inability allegations. Your implication relies on an unknown basis that his leave was detrimental to the agency. All leave in the public service must be approved. That approval is given on the basis that the work unit is not adversely impacted.
9. This is not a reason for rejection. It is merely stating a fact.
As to your reasons for not transferring him to non-teaching duties we say the question does not arise as the decision of the PSAB reinstated him to such a role. However, for the sake of completeness, I note that you have not given my client credit for his 9 years of experience as a classroom teacher. Another example of bias and prejudice, and improper considerations. There has not been a request for my client to submit a current CV, and you have not considered his academic qualification that include adult education. Since his reinstatement, he has been supervised by office-based managers. I am instructed that this qualification lends itself to a non-teaching role. He has also arranged a meeting for a return to work, in good faith, and that suggestion was rejected in favour of using the inability provisions of the PSEMA. There are currently a number of administrative positions advertised on the DoE website for which he is qualified and could apply for.
Finally, it is worth of note that my client has been subject to bias and even malicious administrative action over many years by his employer. It was subjected to significant criticism in the decision of the PSAB and the DoE has displayed a level of arrogance in not complying with the Board’s Orders. The order that he receive his past salary and allowances is indicative of, at the very least, poor administrative action. For example, Ms. Guppy, brought extensive and serious allegations against him for breach of the Code of Conduct, all, except those arising out of the leg washing incident were found to be without basis. It is a matter of record that the PSAB dealt with the remaining disciplinary matters by dismissing them.

Given the long running agenda by the DoE to injure my client in his employment, it now has the opportunity to act reasonably and appropriately, and provide him with a non-teaching job in compliance with the orders of the PSAB.
Yours faithfully,
Ron Hope
Principal
Northern Legal Services”

The Applicant was terminated by way of formal letter on 17 April 2023:

“Dear Mr Danvers

Employee Performance and Inability – Section 46 - Public Sector Employment and Management Act 1993
I refer to previous correspondence sent by the Senior Director, Education - Darwin Region, Mr Paul Nyhuis, dated 3 March 2023 in which Mr Nyhuis found that, as a result of a decision of the NT Civil and Administrative Tribunal (NTCAT) dated 7 October 2022:

1. you cannot and will not be registered to teach at any point in the future;
2. consequently Mr Nyhuis was satisfied on reasonable grounds that there are performance and inability grounds in relation to your employment, as a Classroom Teacher, under sections 44(1)(a), (b) and (c) of the Public Sector Employment and Management Act 1993 (the Act); and
3. having reached that finding and considered all of the remedial actions available to him under section 46 of the Act, Mr Nyhuis was satisfied that the only remedial action that was reasonable and appropriate was to terminate your employment under section 46(1)(c) of the Act.

Mr Nyhuis' letter also invited you to make a submission as to why he should not take that remedial action.
I have considered Mr Nyhuis' letter and the submissions provided on your behalf on 17 March 2023 which, amongst other matters, argue that:

a. a decision of a Public Sector Appeals Board (PSAB) made on 27 June 2019 did not reinstate you to teaching duties and therefore, I infer, you argue that any assessment of your ability to perform your duties, for section 44(1) of the Act, should be conducted with reference to (unspecified) non-teaching duties;
b.   since your reinstatement you have been supervised by office based managers;
c.   you have qualifications in adult education which lend themselves to a non-teaching role; and
d.   there are currently a number of administrative positions advertised on the DoE website for which you are qualified, although you did not identify any positions.

Whilst I agree with Mr Nyhuis' view that the 2019 PSAB decision should be accepted as reinstating you to teaching duties, which you are not able, suited, capable of or registered to perform; I have nevertheless given further consideration as to whether it would be reasonable and appropriate to transfer you to perform non-teaching duties under section 46(1)(iii)(A) of the Act.
Having considered the relevant matters I find that:

1.   Notwithstanding your submission, repeated at paragraph b. above, the leave history enclosed at Attachment A establishes that you have been on leave for the vast majority of the period from 1 July 2019 to the present. Consequently, I do not accept that you have been supervised by office based managers in any real sense. Further, whilst I take no issue with your entitlement to use your accrued leave throughout that period, the fact is that you have not performed any substantial non-teaching duties or demonstrated any transferrable skills since you were reinstated on 27 June 2019. Therefore, there is nothing to suggest that you have gained relevant experience in any non-teaching duties that I may have regard to;
2.   Whilst I do not necessarily take your reference to possessing adult education skills as a suggestion that you could be transferred to perform teaching duties in adult education, for the sake of completeness, I note that all adult education positions within the Department require teacher registration. Consequently you could not be transferred to any such position; and
3.   I have reviewed the job descriptions for all vacant non-teaching positions within the Department as at 12 April 2023 (See Attachment B) and I am satisfied that you do not possess the experience or qualifications necessary to perform the duties of any of those positions.

Accordingly, I am satisfied that in the circumstances it would not be reasonable or appropriate to transfer you to perform any other, non-teaching duties, within the Department.
For those reasons I am satisfied that the termination of your employment pursuant to section 46(1)(c) of the PSEMA is the only reasonable and appropriate remedial action available in the circumstances. Accordingly, I hereby terminate your employment in the NT Public Sector with effect from the date of this letter.
In accordance with section 59A(1)(a) of the Act you have the right to lodge an appeal against my decision to terminate your employment in the NT Public Sector within 14 days from the date you receive this letter. I enclose a copy of section 59A of the PSEMA for your information. Any appeal should be lodged with the Disciplinary Appeal Board, c/- Office of the Commissioner for Public Employment [redacted].
If you require further information in relation to this matter, please contact Ms Shave Richardson, Senior Manager, Workforce Relations on [redacted].
Yours sincerely
Tim Morgan
Acting Senior Director, Education
Darwin Region
17 April 2023”

(My emphasis)

The matter was heard at Darwin on Tuesday, 15 August 2023. The Applicant was self-represented at the Hearing. The Respondent was represented by Mr Mark Hathaway, Assistant Director, Employee Relations, Office of the Commissioner for Public Employment.

The Applicant gave evidence on his own behalf at the Hearing. Ms Julie Danvers, the Applicant’s wife, also gave evidence for the Applicant.

The following persons gave evidence for the Respondent at the Hearing:

· Mr Tim Morgan, Director of School Improvement Framework, Department of Education, formerly Acting/Senior Director;

· Ms Shaye Richardson, Senior Manager, Workforce Performance, Portfolio 2, Workforce Relations, Department of Corporate and Digital Development; and

· Ms Liz McDowell, Senior Manager, Workforce Performance, Workforce Relations, Department of Corporate and Digital Development.

Statutory Provisions

The relevant sections of the FW Act relating to an unfair dismissal application are:

“396 Initial matters to be considered before merits  
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:  
(a) whether the application was made within the period required in subsection 394(2);  
(b) whether the person was protected from unfair dismissal;  
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;  
(d) whether the dismissal was a case of genuine redundancy.  
 

381 Object of this Part  
(1) The object of this Part is:  
(a) to establish a framework for dealing with unfair dismissal that balances:  
(i) the needs of business (including small business); and  
(ii) the needs of employees; and  
(b) to establish procedures for dealing with unfair dismissal that:  
(i) are quick, flexible and informal; and  
(ii) address the needs of employers and employees; and  
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.  

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.  
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.  
382 When a person is protected from unfair dismissal  
A person is protected from unfair dismissal at a time if, at that time:  
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and  
(b) one or more of the following apply:  
(i) a modern award covers the person;  
(ii) an enterprise agreement applies to the person in relation to the employment;  
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. 

384 Period of employment  
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee.  
(2) However:  
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:  
(i) the employment as a casual employee was on a regular and systematic basis; and  
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and  
(b) if:  
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and  
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and  
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.  

 
385 What is an unfair dismissal  
A person has been unfairly dismissed if the FWC is satisfied that:  
(a) the person has been dismissed; and  
(b) the dismissal was harsh, unjust or unreasonable; and  
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and  
(d) the dismissal was not a case of genuine redundancy.  

see section 388.  
387 Criteria for considering harshness etc.  
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:  
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and  
(b) whether the person was notified of that reason; and  
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and  
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and  
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and  
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and  
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and  
(h) any other matters that the FWC considers relevant.” 

Applicant’s Submissions

The Applicant submitted that his employment with the Respondent was initially terminated on 10 October 2018. The Applicant noted there was no face-to-face meeting regarding that decision.

The Applicant also noted that he did not have teacher registration at that time.

The Applicant submitted that he appealed the termination decision to the PSAB and was successful, with reinstatement ordered. The Applicant submitted that the Department of Education did not appeal this decision.

As to the order for reinstatement, the Applicant submitted that “the PSAB cannot make a directive the Chief Executive, DoE, cannot make”. The Applicant submitted that the Department of Education was aware he did not have teacher registration, and he was not, and could not be, reinstated to a teaching position. Further, the Applicant submitted that the reinstatement was not conditional on him obtaining teacher registration.

The Applicant submitted that there was some discussion via email correspondence with Ms Liz McDowell, Senior Manager, Workforce Performance, Workforce Relations, Department of Corporate and Digital Development, and one face-to-face meeting with Ms Fiona Roche, Human Resources, around an alternative position.

The Applicant submitted that he was re-employed as an officer at the Department of Education admin offices in Darwin. He submitted that no meeting was arranged by the Respondent to discuss and provide a job description, job title or duty statement. He submitted that he was provided with a work station, but was not provided any substantial directions or work allocation. The Applicant submitted that he felt “demeaned” as a result of this process.

The Applicant submitted that he chose to apply for his teacher registration to be reinstated after having his Working with Children Clearance (Ochre Card) renewed.

The Applicant submitted that the process with the Teacher Registration Board (TRB) and appeal to the Northern Territory Civil Administration Tribunal (NTCAT) took nearly 3 years, being from December 2019 to November 2022.

The Applicant submitted that during this period, he took “entitled and approved” leave. The Applicant was due to return to work on Monday, 18 July 2022, however, on 17 July 2022 he had a serious accident at his home which resulted in him being admitted to the ICU at Darwin Hospital. The Applicant submitted that he was unable to return to work for a few months as a result of this incident.

The Applicant submitted that during his absence, his wife contacted the Department of Education and on 21 July 2022, she spoke with Ms McDowell who advised: “He’s been away so long he doesn’t have a position now”.

The Applicant submitted that once he was fit to return to work, he requested a return-to-work meeting, to which the Department of Education agreed. However, the Department of Education cancelled that meeting.

The Applicant submitted that he was advised by phone that termination of his employment was being considered. The Respondent provided him with a “notice of anticipated dismissal” by email.

The Applicant submitted that he was then advised that his employment was terminated in writing, with the letter sent to him via email.

Harshness

The Applicant submitted that the termination of his employment was unfair as it lacked procedural fairness. The Applicant submitted that there were no face-to-face meetings to discuss his employment, his impending suspension or his termination. Instead, all communication was via letters and email correspondence.

The Applicant submitted that he was not afforded the opportunity to discuss the option of alternative employment with the Respondent.

The Applicant submitted that, at the time of filing his submissions, there were non-teaching positions with the Department of Education which he was qualified to perform, including:

a. Vacancy No: 006204 – Maintenance Officer; and
b. Vacancy No: 024935 – Operations Assistant.

The Applicant submitted that the Respondent never made a request for a current copy of his CV.

The Applicant submitted that his health and well-being have been impacted by an overall disregard to duty of care and natural justice by the Respondent.

Respondent’s Submissions

The Respondent submitted that the dismissal of the Applicant on 17 April 2023 was the outcome of an inability process conducted under Part 7 – Employee performance and inability – of the PSEM Act. Relevantly section 44 states:-

“Part 7 Employee performance and inability
44 Inability or unsatisfactory performance

(1)       There are inability or performance grounds for an employee if the employee:
(a)       is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or
(b)       is not suited to perform, or capable of efficiently performing, those duties; or
(c)       is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or
(d)       is not performing those duties efficiently or satisfactorily.

(2) If the Chief Executive Officer of an Agency is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the Agency, the Chief Executive Officer may take action in relation to the employee under section 46(1).
(3)       In determining whether there are inability or performance grounds for an employee, the Chief Executive Officer must have regard to:
(a)       the performance and conduct principle; and
(b)       the employee's performance record under the Agency's employee performance management and development system as mentioned in section 24(3)(f); and
(c)       any other matter the Chief Executive Officer considers relevant.

(4)       For determining whether there are reasonable grounds as mentioned in subsection (2), the Chief Executive Officer may, subject to the Employment Instructions, do one or more of the following:
(a)       obtain relevant information from persons as, and in the way, the Chief Executive Officer considers appropriate;
(b)       consult with persons as the Chief Executive Officer considers appropriate;
(c)       make inquiries as the Chief Executive Officer considers appropriate;
(d)       if applicable, obtain a report from a health practitioner under section 45.

(5)       The Chief Executive Officer must not take remedial action in relation to an employee unless satisfied:
(a)       the action is appropriate and reasonable in the circumstances; and
(b)       the employee:
(i)           has been given written notice of the proposed action and the grounds for taking it; and
(ii)          has been given a reasonable opportunity to show why the action should not be taken.

(6)       As soon as practicable after making a decision under subsection (2), the Chief Executive Officer must give written notice of the decision to the employee.
(7)       If the decision is to take remedial action, the notice must:
(a)       give the reasons for the decision; and
(b)       inform the employee of the employee's right to request a review under section 59 or to appeal under section 59A (as appropriate).

(8) A decision to take remedial action takes effect on the day the notice is given to the employee or a later day specified in the notice.”

(My emphasis)

The Respondent submitted that the process started on 20 December 2022 when the then Senior Director Education for the Darwin Region, Mr Paul Nyhuis wrote to the Applicant advising him that he suspected that there were performance and inability grounds in respect of his duties as a Classroom Teacher Grade 9 (CT9) with the Department of Education. The Respondent submitted that the central element of this letter was Mr Nyhuis’s concern that the Applicant would be unable to perform his duties because he was not registered as a teacher. The Respondent noted that Mr Nyhuis also referred to the Applicant’s appeal of the TRB decision to the NTCAT.

The Respondent submitted that Mr Nyhuis initiated an inability process under the PSEM Act and provided the Applicant with 14 days from the date of his letter to provide written submissions in reply. The Respondent noted that Mr Nyhuis’s letter foreshadowed an intention to suspend the Applicant without remuneration for 6 months and provided the Applicant 7 days to provide submissions about the proposed suspension.

As extracted at paragraph [5] of this decision, the Applicant, through his solicitor, provided a response on 25 January 2023. The Respondent submitted that the Applicant asserted that the question of whether it were open for Mr Nyhuis to make a finding that he was unable to perform his duties was a question of law rather than fact. The Respondent submitted that the letter focused on the question that the inability process was not dealing with the Applicant’s poor performance as a teacher, but the legal requirement for registration. The Respondent submitted that in this letter, the Applicant contended that the PSAB made its decision in the “full knowledge” that the Applicant was not registered as a teacher and that “there was some doubt whether he could obtain future registration at all”. The Respondent submitted that the inference drawn by the Applicant’s solicitor from the PSAB’s decision was that the Applicant had been reinstated to employment other than as a classroom teacher.

As extracted at paragraph [8] of this decision, Mr Nyhuis further wrote to the Applicant on 3 March 2023. Regarding his findings, the Respondent submitted that Mr Nyhuis outlined the options available to him under the PSEM Act, and made conclusions about unsuitable options. The Respondent noted that as a result, Mr Nyhuis concluded that the “only reasonable and appropriate remedial action” he could take under the PSEM Act would be to terminate the Applicant’s employment. However, the Respondent submitted that the letter also provided the Applicant with an opportunity to respond to this foreshadowed intention to terminate his employment.

As extracted at paragraph [9] of this decision, the Applicant, through his solicitor, responded on 17 March 2023.

The Respondent submitted that Mr Nyhuis left the Northern Territory Public Sector on 15 May 2023. Mr Tim Morgan commenced as Acting Senior Director, Education for the Darwin Region on 27 February 2023. The Respondent submitted that Mr Morgan assumed responsibility for managing the inability process for the Applicant, as a result.

The Respondent submitted that on 17 April 2023, Mr Morgan wrote to the Applicant terminating the Applicant’s employment on the grounds of inability. The Respondent submitted that this decision was based on the fact that the Applicant was not registered as a teacher.

The Respondent submitted that the Applicant’s dismissal was not unfair, the Respondent had a valid reason for dismissing the Applicant, and the dismissal complied with the principles of procedural fairness set out in s.387 of the FW Act.

Response to the Applicant’s Submissions

The Respondent submitted that the Applicant’s submissions are misconceived and avoid the fact that the Applicant’s employment was ceased due to his inability to work as a teacher as a consequence of him not being registered as such.

Whether the Applicant had been reinstated to employment other than as a teacher

The Respondent noted that in their letter of 17 March 2023, the Applicant’s solicitor asserted that the decision of the PSAB effectively reinstated the Applicant to employment, but not employment as a teacher, given the Applicant’s lack of registration and the low probability that he would ever regain registration as a teacher, and that the Department of Education had an obligation to find him a suitable position. The Respondent submitted that there are three critical facts that militate against this proposition:

a)Firstly, the Respondent submitted that the Applicant was reinstated as a CT9, and the reimbursement of his lost income was made up at the CT9 level. The Respondent submitted that at all material times, the Applicant was classified as a CT9. It submitted that this approach is consistent with the ordinary meaning of ‘reinstate’. The Respondent relied on the Macquarie Dictionary definition of ‘reinstate’ as meaning “to put back or establish again, as in a former position or state”.

b)-
(i) Secondly, the Respondent submitted that the PSAB wrote at paragraph 46 of its reasons for decision:

“It is the view of the Board on all of the evidence that the Appellant does not pose an unreasonable risk to the safety of his students and that the appropriate disciplinary action is for the Chief Executive Officer to formally caution the Appellant pursuant to s49C(1)(b)”.

(Respondent’s emphasis)

(ii) The Respondent submitted that the use of the phrase ‘his students’ as a noun, indicates that the PSAB’s decision assumed that the Applicant would be reinstated to a teaching position. The Respondent submitted this is a reasonable inference to draw from the PSAB reasons for decision and its direction to the Chief Executive Officer to formally caution the Applicant. The Respondent submitted that use of a formal caution is a sanction at the lower end of those that would be available to a Chief Executive Officer, following a disciplinary investigation under the PSEM Act.

c)Thirdly, the Respondent submitted that the Applicant took steps to register as a teacher following the PSAB’s decision to reinstate him. The Respondent submitted that the Applicant’s argument that he had been reinstated to employment generally, rather than employment as a teacher, is an attempt to reinterpret the PSAB’s decision in the light of the decisions of both the TRB and NTCAT.

The Respondent submitted that in the light of both the TRB and NTCAT decisions, the fact that the PSAB noted the breach of discipline in relation to the aggravated assault in 2005 and its rejection of a breach of discipline finding in relation to the leg washing incident, it is arguable that the PSAB did not have access to all of the evidence considered by the two other authorities. Further, the Respondent submitted that the PSAB in its deliberations was answering different questions. At its essence, the PSAB was not considering whether the Applicant was a fit and proper person to be registered as a teacher. The Respondent noted that the TRB found that the PSAB’s decision, in relation to the Applicant’s disciplinary proceedings was based on considerably less material than that which was available to it.

Whether there were positions for which the Applicant was qualified and for which the Applicant could apply

As to the two vacancies listed in the Applicant’s submissions, the Respondent responded as follows.

The Respondent submitted that vacancy number 006204 is for a maintenance officer at the Physical 3 level, which is of considerably lower remuneration than that of CT9. Further it is based at a primary school. The Respondent submitted that the job description also says that the successful applicant must have no significant criminal record. The Respondent submitted that particular job would be problematic in the light of both the TRB and NTCAT decisions.

The Respondent submitted that vacancy number 24935 is an ongoing vacancy for an AO3 Operations Assistant. It submitted, again, that the remuneration for this job is significantly less than that for a CT9. The Respondent submitted that apart from the fact that the job is located in Nhulunbuy, the job requires significant secretarial experience, report preparation and adherence to relevant policy and processes. The Respondent suggested that, on the basis of the TRB and NTCAT decisions, the Applicant could have problems demonstrating an ability to comply with these requirements. Further, it submitted that the position requires travel to remote localities, and notwithstanding the fact that the Applicant has a current (as at the time of filing its submissions) working with children card, the Respondent would have concerns with the Applicant visiting remote communities, which could put him in contact with vulnerable people.

The Respondent noted that at the time of filing its submissions, the Applicant had not applied for either job, or for any other job within the Northern Territory Public Sector.

As to the Applicant’s submission that the Respondent had not asked him to supply his current CV, the Respondent submitted that the Department did not have an obligation to assist the Applicant to find alternative employment. The Respondent submitted that the Applicant was undergoing an inability process under the PSEM Act; he was not a redeployee, which would have triggered the redeployment and redundancy provisions that apply in the Northern Territory Public Sector.

As to the option of ‘transfer’ available to the CEO under Part 7 of the PSEM Act, the Respondent submitted it is important to note that the merit principle would not apply to a transfer as a consequence of an inability process. The Respondent submitted that whilst a transfer to another job within the Department of Education was a possibility, whether a CEO or a delegate were to exercise that option was a matter for discretionary judgement.

Further, the Respondent submitted that the Applicant had been out of the workplace for a considerable period of time and had not built up levels of service that could be used to assess his suitability for transfer to other work. The Respondent submitted that although a CEO has power to transfer employees under s.35 of the PSEM Act, the CEO has to consider whether the employee is “capable of performing and is competent and qualified to perform those duties”. The Respondent submitted it is a reasonable inference to draw that neither Mr Nyhuis nor Mr Morgan had sufficient information about the Applicant’s work performance, skills or abilities to make an informed decision in this regard.

The Respondent noted that on the evidence of Mr Morgan, alternative roles were contemplated for the Applicant, including transferring him to a role as an adult educator in Vocational and Educational Training (VET). The Respondent submitted, however, no VET positions were available in the Department of Education that did not require teacher registration.

Criteria for Harshness

The Respondent accepted that the Applicant was a person protected from unfair dismissal at the time of his dismissal, in accordance with s.382 of the FW Act.

Valid Reason

The Respondent submitted that it had a valid reason for the dismissal of the Applicant relating to his capacity to work as a teacher. The Department dismissed the Applicant because without registration with the TRB, it was unable to employ him as a teacher.

The Respondent submitted that this reason meets the test set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 in that it was “sound, defensible or well founded”, and was not “capricious, fanciful, spiteful or prejudiced”.

Notified of the Reason

The Respondent submitted that the Applicant was notified of the reason for his dismissal through correspondence as follows:

a.on 20 December 2022 in the initial inability letter setting out the particulars and a foreshadowed suspension; and
b.on 3 March 2023 in which the findings of the inability investigation were provided to the Applicant and his termination was foreshadowed.

The Respondent submitted that these steps met the requirements of procedural fairness as articulated by a Full Bench of the Australian Industrial Relations Commission in Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 (Crozier). The Respondent submitted that the Department of Education notified the Applicant of the reasons for its intention to terminate his employment, before making the final decision to do so.

Opportunity to Respond

The Respondent submitted that it gave the Applicant an opportunity to respond to the reasons related to his termination, which the Applicant availed himself of on 25 January 2023 and 17 March 2023.

The Respondent submitted that these documents prove that the Applicant had the opportunity to provide a response to the reasons for the termination before they were finalised, consistent with the decision in Swain v Ramsey Food Packaging Pty Ltd [1999] AIRC 1504 Print S2209 and Crozier.

Support Person

The Respondent noted that no meetings relating to the Applicant’s dismissal were held with the Applicant. Consequently, it submitted that s.387(d) of the FW Act does not apply in this case.

Unsatisfactory Performance

The Respondent submitted that the Applicant’s dismissal related to his capacity to work as a teacher due to his loss of registration, not to his performance as a teacher.

Size of the Employer’s Enterprise and Human Resource Management Specialists

The Respondent acknowledged that the Northern Territory Public Sector is a large employer, with dedicated human resource management specialists, and has the capacity to manage its human resource procedures.

Any Other Matters

While the Respondent submitted that the reason for the dismissal of the Applicant was due to his inability to work as a teacher due to not holding the requisite registration, the Respondent submitted that the Commission should have regard to the evidence of the Applicant’s lack of integrity and honesty, especially in relation to his declarations of his criminal convictions whilst applying for Registration.

Remedy

The Respondent maintained that the dismissal was fair and the application should be dismissed.

However, the Respondent submitted that in the event the Commission determines that the Applicant has been unfairly dismissed, any award of compensation should be at the lower end. The Respondent submitted that the Applicant has done nothing to mitigate his loss.

Applicant’s Submissions in Reply

In reply, the Applicant submitted that the decisions by the TRB and NTCAT are irrelevant. However, in the event the Commission determines them to be relevant, he submitted his responses to those decisions.

The Applicant submitted that the decision of the PSAB did not expressly state that the Applicant was to be reinstated as a ‘teacher’. The Applicant submitted that the Department of Education complied with the order to reinstate him, but failed to comply with the order to “amend the formal caution”.

The Applicant submitted that he applied for a Working With Children Clearance, Ochre Card, then applied to the TRB for teacher registration. He submitted that this was not a requirement of his employment.

As to any ‘criminal history’, the Applicant submitted that he was subject to a National Police check to ascertain relevant criminal history in 2002. He submitted that the Police Certificate did not disclose any criminal convictions, and he was not required to disclose any criminal history in his original 2002 application for teacher employment with, then, ‘DEET’.

The Applicant submitted that “all National Police Certificates have given conflicting / incorrect information”. He submitted there was an administrative error on his part due to:

(a)lack of legal clarification;
(b)ambiguous wording on the TR Application; and

(c)States and Territories having different legislation regarding spent convictions. The issue involved different jurisdictions.

The Applicant noted that this oversight was corrected on the final application submitted.

The Applicant submitted that the Department of Education has now used the TRB decision to terminate his employment. The Applicant submitted that the TRB has never disclosed what information the TRB had that SAFENT didn’t have. He submitted that requests were made by Northern Legal Services to provide this information, but it was never forthcoming. The Applicant submitted that any new information that was relevant to SAFENT should have been reported by the Department of Education.

The Applicant submitted that following his reinstatement after the decision by the PSAB, he was not engaged as a teacher. The Applicant submitted that there was discussion with Ms Roche and Ms McDowell to this effect. The Applicant noted that his statement of service provided by the Respondent shows ‘classroom teachers’ designation commencing from 20 January 2004 and ceasing on 10 October 2018.

The Applicant submitted that there was a possibility he may have obtained teacher registration, however, he was employed in another role in the Mitchell Centre, Darwin from 1 October 2019.

The Applicant submitted that his employment status was a ‘permanent officer with the Department of Education’.

The Applicant submitted that he understood his employment with the Department of Education would have continued had he decided not to apply for teacher registration.

Further, the Applicant submitted that his current employment skill set was unknown to the CEO of the Department of Education. The Applicant submitted, therefore, Mr Nyhuis and Mr Morgan were restricted in making a transfer decision.

The Applicant restated his position that “as legally directed by the PSAB [he] was employed by DoE and there was a requirement to find a more suitable position”. The Applicant submitted that if his position ceased to exist, he could have been a redeployee or offered a redundancy.

Consideration

The Applicant has submitted a range of material which is irrelevant to this application. This irrelevant material extends to historical situations and material which has been determined by the Courts and other Tribunals. The Commission does not have the jurisdiction to review or comment on this material or the respective decisions. This decision concerns the termination of the Applicant and whether the termination was harsh, unjust or unreasonable.

It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.

When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[2] is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”  

In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[3] held:

“The above extract is authority for the proposition that a termination of employment may be:  

·            unjust, because the employee was not guilty of the misconduct on which the employer acted;  
·            unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or  
·            harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.

Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[4] said:

“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.  

I now turn to the criteria for considering harshness as provided in s.387 of the Act.

Section 387(a) - Valid Reason

The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[5]

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. … 

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound,  defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them.  The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.

In Rode v Burwood Mitsubishi,[6] a Full Bench of the Australian Industrial Relations

Commission held:  
 

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 

In Qantas Airways Ltd v Cornwall (Cornwall)[7] the Full Court of the Federal Court of Australia said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.” 
(My emphasis)

The Applicant was terminated on 17 April 2023 by way of correspondence due to the Applicant’s inability to perform the inherent requirements of his appointed role, i.e. a Classroom Teacher Level 9 (CT9).

It is not in dispute that the Applicant did not hold the compulsory registration with the Teacher Registration Board of the Northern Territory. It is noted that the Applicant has sought legal redress of this issue, without success. The Applicant agreed that he is not likely to achieve teacher registration in the foreseeable future. I have taken this into account.

The Applicant submitted that he successfully appealed his first termination through the Public Sector Appeals Board (PSAB) and was subsequently reinstated. The Applicant advised that he was re-employed by the Respondent and allocated administrative duties at the Mitchell Centre in Darwin. The Applicant continued to be paid his CT9 rate of pay. I note the decision of the PSAB, as extracted at paragraph [6] of this decision, where it determined:-

“d) The Board further directs that the Appellant is to immediately be reinstated to employment from the date of his original suspension without pay on 19 February 2014, and is to be reimbursed for his lost earnings and all associated employment benefits (superannuation contributions, salary increments, long service leave and recreational leave entitlements, etc.) to which he would have been entitled if he had been employed for the entire period from 19 February 2014 to the date of his reinstatement.”

I also note the PSAB’s views as extracted at paragraph [7] of this decision. I have taken these matters into account.

The Applicant was granted an extended period of leave of some three years after he was re-employed. This leave included periods of long service leave, recreational leave and unpaid leave.

I accept the evidence of Ms Shaye Richardson, who is the Senior Manager, Workforce Performance, Portfolio 2, Workforce Relations, Department of Corporate and Digital Development in the Northern Territory. Ms Richardson testified that:-

“8) On 22 December 2022, I received a phone call from Mr Danvers. Mr Danvers proposed that he was not employed as a classroom teacher as his last work with the department was in the Mitchell Centre and based in the office.

9) I advised him that his ongoing employment is as a Classroom Teacher and the office based opportunity was identified as a temporary arrangement.”

I have taken this into account.

In response to a question from me, Ms Richardson stated that her impression was the Applicant did not accept the proposition that his ongoing employment was as a classroom teacher. I have taken this into account.

I do not accept the Applicant’s argument in relation to the alleged ambiguity of the PSAB’s decision. Paragraph 46 of the ‘Reasons for Decision’ (see paragraph [7] of this decision) uses the phrase “… the Appellant does not pose an unreasonable risk to the safety of his students …”. This phrase does not imply reinstatement to an administrative role but envisages a direct relationship with students. Further, the mention of “his students” gives the Applicant a form of collective ownership or control over the students in the manner attributed to a classroom teacher, not an administrative officer working in an office in the Darwin CBD. I have taken this into account.

Further, in response to a question from me, the Applicant admitted that he did not mention the concept of reinstatement to the Department to a non-teaching role in any of his submissions to the PSAB. I have taken this into account.

I note that the Applicant was paid his CT9 rate of pay throughout the entire time of his reinstatement and for his backpay. I have taken this into account.

I am satisfied and find that the Applicant was an ongoing Classroom Teacher. On the basis that the Applicant did not hold the relevant teacher registration, the Respondent could not utilize the Applicant as a classroom teacher. As a result, I am satisfied that the Applicant could not fulfil the inherent requirements of his appointed role. Therefore, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.

Section 387(b) - Notified of the Reason

The Respondent wrote to the Applicant on 20 December 2022, advising that it was commencing an “inability process” in accordance with section 44 of the PSEM Act. I have taken this into account.

The Applicant responded to this correspondence by way of a letter from his legal representative on 25 January 2023. I have taken this into account.

The Respondent wrote detailed correspondence to the Applicant on 3 March 2023, foreshadowing its intention to terminate the Applicant for the reasons identified in the correspondence. I have taken this into account.

I am satisfied that the Applicant was notified of the reasons for his termination.

Section 387(c) - Opportunity to Respond

The Respondent provided the Applicant an opportunity to respond to the intention to terminate correspondence of 3 March 2023. The Applicant availed himself of this opportunity and responded on 17 March 2023, once again by correspondence from his legal representative. I have taken this into account.

The Applicant was terminated, by correspondence, on 17 April 2023. I note that Mr Morgan, Acting Senior Director, Education, Darwin Region, advised the Applicant that before reaching his decision to terminate the Applicant that he reviewed the job descriptions for all vacant non-teaching positions with the Department. Mr Morgan formed the view that the Applicant did not possess the necessary skills, experience or qualifications to fulfil these roles. Mr Morgan reported this assertion in a response to a question from me during the Hearing.

I am satisfied that the Applicant was given an opportunity to respond to the situation.

Section 387(d) - Any refusal of a support person

It is not in dispute that no meetings occurred between the parties in the lead up to the Applicant’s termination on the basis that the process was conducted via correspondence. I note that the Applicant utilized the services of a legal representative during this period. I have taken that into account.

I am satisfied the Applicant was not refused a support person.

Section 387(e) - Unsatisfactory performance

The Applicant was not dismissed for unsatisfactory performance but due to his incapacity to work as a teacher. I have taken this into account.

Section 387(f) - Size of Employer

It is not in dispute that the Respondent is a large employer and complied with its obligations and procedures in terminating the Applicant. I have taken this into account.

Section 387(g) - Dedicated HR specialists

The Respondent has a dedicated team of experienced HR specialists. I have taken this into account.

Section 387(h) - Any other matter

I have taken into account that the Applicant re-applied for his teacher registration after he was re-instated in 2019. I accept the unchallenged evidence of the Applicant that the Respondent did not request that he pursue this course of action.

I have taken into account the email on 26 July 2022, from Ms Richardson to the Applicant’s wife where it was said:-

“When Brian is feeling better, it would be good if he could connect with Kate around return to work options.”

I note the submission of the Respondent that this email was sent before the decision of the NTCAT in relation to the Applicant’s attempt to renew his teacher’s registration and the commencement on the “inability or performance” process of the Respondent.

I have taken into account that the Respondent was under no obligation to find an alternate role for the Applicant either with the Department of Education or the broader Northern Territory Public Service. The Applicant was not terminated due to a restructure or redundancy process. Despite this, Mr Morgan testified that he did look for other suitable roles within the Department for the Applicant without success.

I have taken into account the Applicant’s submission that the PSAB knew that he could not be reinstated as a teacher because they knew that he had lost his teacher registration. I do not accept that this supposition is self-evident or accurate. The PSAB do not mention this issue in their Decision or Reasons for Decision. It is possible to draw many assumptions on this issue, none of which may be accurate or relevant. The only relevant consideration for this matter is that the PSAB were silent on the issue but referred to the Applicant not being an “unreasonable risk to the safety of his students”.

Conclusion

I have previously found that the Respondent had a valid reason to terminate the Applicant. My consideration of the remaining provisions of section 387 does not result in the Applicant’s termination being harsh, unjust or unreasonable.

The Applicant was terminated because he could not satisfy an essential requirement to be a teacher in the Northern Territory, i.e. to hold a teacher registration. Without this registration, the Respondent could not permit the Applicant to teach in any of its schools.

The Applicant was afforded procedural fairness by the Respondent who went beyond their statutory obligations in an attempt to find the Applicant a suitable, ongoing role on a similar pay rate – without success.

For the reasons stated above, I am satisfied and find that the Applicant was afforded a “fair go” and was not unfairly dismissed.

The application for an unfair dismissal remedy is dismissed.

I so Order.

COMMISSIONER

[1] DA/2018/7.

[2] (1995) 185 CLR 410.

[3] (1998) 84 IR 1.

[4] [2000] AIRC 1019.

[5] (1995) 62 IR 371.

[6] PR4471.

[7] (1998) 84 FCR 483.

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