WA teacher wins unfair dismissal case

In 2018, Mr Kilner had been employed as a teacher for 36 years, the last 28 years of his career he taught at Busselton Senior High School.

Following an altercation with a student in 2017, Mr Kilner took stress leave and suffered from post traumatic stress disorder, brought on by a culmination of events he experienced in Afghanistan and Iran during the 1970s.

While on sick leave, Mr Kilner was dismissed by the education department and stripped of any sick leave he had owing.

The SSTUWA applied to the WA Industrial Relations Commission for a conference alleging Mr Kilner's dismissal was unfair and sought orders for his reinstatement and lost wages.

In its application to the WAIC, the union stated Mr Kilner had an ongoing entitlement to sick leave and that the director general did not comply with the award and his sacking was unlawful.

"The evidence is clear from Dr Mowat and Dr Buckeridge that Mr Kilner was not fit to work at Busselton SHS, whereas he may have been fit to work elsewhere.

"This was not assessed.

"With the respondent not putting him to work at another school, Mr Kilner may have been entitled to payment of sick leave."

Mr Kilner said while it was a great outcome, it had been tough in the beginning, he suffered a breakdown and sought medical and psychological help.

"The SSTUWA supported and funded my appeal to the full bench of the WAIRC, my appeal was upheld," he said.

"Unfortunately, a number of teachers who were not members of the union had their employment terminated.

"It would seem that non-union experienced older teachers with extensive sick leave credits are most vulnerable and are being targeted."

Mr Kilner said there were four important outcomes which resulted from the full bench of the WAIRC in his appeal case.

"Teachers could no longer have their sick leave credits stripped away from them by the Department of Education just because they were inconvenient employees or had work related mental health issues," he said.

"It is the responsibility of an ethical and caring employer to look after their employees.

"Especially in this case where it is a government employer and an injury caused in the course of an employee undertaking normal duties.

"PTSD is recognised as a medical condition, it can no longer be ignored as a reason for not being able to teach."

Mr Kilner said the union had achieved excellent results for its members and had maintained hard earned conditions that were under constant attack by out of touch bureaucrats.

"Young teachers now only survive five years in the system due to increasing demands limited support and an unhealthy work environment," he said.

"The WAIRC has criticised the department in a number of recent cases. The Landwehr, Buttery and Jamieson cases are excellent examples of appalling processes implemented by the department.

"Fortunately, for me I had excellent medical and community support here in Busselton that has enabled me to overcome this medical condition."

In December last year, the education minister Sue Ellery announced new measures to address violent behaviour against students and staff.

New rules were implemented which would see students who instigated violence or filmed an attack automatically suspended.

Principals could seek approval from the Department of Education's director general to expel students who physically attacked staff.

Staff would also receive support on preventing, managing and responding to aggression and violence in schools.

In Mr Kilner's case, he felt little was being done to address student behaviour problems at the school leaving staff open to abuse with limited support.

SSTUWA president Pat Byrne said the union welcomed the decision of the Full Bench of the Industrial Relations Commission to reverse the forced retirement of a teacher after a 35-year career.

Ms Byrne said this decision was the outcome of an appeal lodged by the untion against an earlier decision by the WAIRC which, while finding the teacher's dismissal to be unfair, did not order reinstatement or re-employment.

"The circumstances applying to this particular case were unusual in that, while the teacher was absent from work on extended sick leave, he was also subjected to a disciplinary investigation in relation to an incident in the classroom," she said.

"The question of whether his ill health was a result of the investigation process was an issue in the appeal.

The Full Bench found the WAIRC erred in its original decision in concluding that the teacher's absence from work was for non-medical reasons because that conclusion was not open to it on the evidence available.

"On that basis the Full Bench has remitted the matter to the original Commissioner for further hearing and determination, as to the teacher's capacity to return to work and the practicability of his being reinstated or employed at a school other than his original school.

"This decision provides greater clarity as to the standard of evidence required before the Department makes any decision to remove teachers from the classroom on the grounds of ill health.

"Rather than supporting our teachers dealing with work related stress, the department has sometimes been too hasty in resorting to forced retirement on the grounds of ill health rather than allowing teachers time to recover, even where they have sufficient accrued sick leave remaining, as was the case here.

"SSTUWA members feel strongly that they are not supported by their employer in dealing with violent students.

"This was a major issue in the recent discussions around the Minister's anti-violence initiative in schools.

"The union believes the Department has moved some way in relation to this and looks forward to continuing this work to deliver a more compassionate and supportive approach."

A Department of Education spokesperson said there were currently 63 active worker compensation claims from teachers, related to stress. Of these, 21 are currently not at work;

A spokesperson said the Department did not retire (terminate) teachers as a result of them being assaulted.

"For any employees assaulted at work, our first priority is to look after them and see them returned to their school," the spokesperson said.

"If there are ongoing issues experienced by our employees, we work with medical professionals to determine the best outcome.

"The factors contributing to teachers taking stress leave are widely varied and can be a combination of both personal and/or work related issues."

The Department of Education executive director Damien Stewart said it was incorrect to say the department had breached the award and to say that the termination was unlawful.

"This matter has been remitted to the WA Industrial Relations Commission for further consideration."