Win for Busselton teacher

Busselton school teacher Bill Kilner has been told that he can return to work after the Department of Education lost an appeal to have an unfair dismissal case overturned in the WA Industrial Relations Commission.

The department had appealed a decision made at an unfair dismissal hearing when the State School Teachers' Union of WA won its case last year.

Mr Kilner had been dismissed by the department following an altercation with a student in 2017 and stripped of any sick leave he had owing.

He had taken stress leave, and was suffering from post traumatic stress disorder brought on by a culmination of events.

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 his dismissal the SSTUWA applied to the WAIRC for a conference alleging Mr Kilner's dismissal was unfair and sought orders for his reinstatement and lost wages.

The Full Bench of the WAIRC requested that a decision be reviewed after the SSTUWA won its case.

WAIRC commissioner Damian Matthews said he was required to consider whether Mr Kilner could return to work, and whether he should be reinstated at Busselton SHS or another school.

Mr Matthews found Mr Kilner could return to work at a school other than Busselton SHS and that he should be compensated.

He rejected that Mr Kilner was unfit to return to work, or that a return to work would be impracticable, because he might suffer a relapse of a medical condition at work.

"The respondent asked me to speculate about what might happen at a school other than Busselton Senior High School," he said.

"I do not consider it useful or appropriate to do so. I have no evidence upon which to conclude that the applicant's member is not fit for work and credible expert evidence that he is fit for work."

The department also argued that it was impracticable for Mr Kilner to return to work because he had a deep-seated lack of trust for the department, based on correspondence between the two parties.

The commissioner said that the documents related to real events and real concerns in relation to those events.

"None of the content reads like the work of someone who is paranoid or who has become an unhinged conspiracy theorist," Mr Matthews said.

"There is nothing upon which to reasonably base a finding that it is impracticable for the applicant's member to work in a school other than Busselton Senior High School."

A SSTUWA spokesperson said they were pleased that Mr Kilner had been reinstated, which had always been their objective.

"This is a fair and just outcome. We are disappointed that the amount of compensation awarded was less than the full amount of Mr Kilner's lost income, but we accept that the decision was within the discretion allowed to the commissioner," the spokesperson said.

"The union appealed the decision at first instance so the department cannot be criticised for defending the appeal.

"However, we were surprised that the department's lawyers sought to have the case dismissed rather than engage with the merits of Mr Kilner's reinstatement.

"This caused the union and the department to expend considerable costs in debating legal issues rather than considering the central issue of whether Mr Kilner could successfully return to work."

Department of Education workforce executive director Damien Stewart said the department was currently reviewing the decision at this time.