'Unhealthy culture has to be addressed': Busselton teacher to be reinstated after unfair dismissal case

Former Busselton Senior High School teacher Bill Kilner will be reinstated at another school after the Department of Education's Director General lost a final appeal in the WA Industrial Relations Commission to terminate his employment.
Former Busselton Senior High School teacher Bill Kilner will be reinstated at another school after the Department of Education's Director General lost a final appeal in the WA Industrial Relations Commission to terminate his employment.

Former Busselton Senior High School teacher Bill Kilner will be reinstated at another school after the Department of Education's Director General lost a final appeal in the WA Industrial Relations Commission (WAIRC) to terminate his employment.

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

The veteran teacher of almost 40 years had taken stress leave after the incident and was suffering from post traumatic stress disorder. He spent the last three decades of his teaching career at the Busselton high school.

Following his dismissal the State School Teachers Union of WA (SSTUWA) applied to the WAIRC stating Mr Kilner's dismissal was unfair and sought orders for his reinstatement and lost wages.

After the SSTUWA won its case the Full Bench of the WAIRC requested the decision be reviewed.

The commission concluded that Mr Kilner could return to work at a school other than Busselton Senior High School.

The Department of Education appealed the decision stating the teacher was at risk of a relapse at another school if there were students who would be difficult to manage.

The Full Bench was also asked to reconsider whether correspondence between the Director General and Mr Kilner demonstrated the teacher had lost trust in the department that it was impracticable to reinstate him.

In its ruling, Full Bench senior commissioner Stephen Kenner said there was no evidence presented to suggest Mr Kilner was unfit to return to work or that he had lost trust in the department.

Chief commissioner Pamela Scott stated at the hearing that it was "clear from the history of Mr Kilner's correspondence with his employer and others that he was someone who expressed his concerns and complaints, and his desire for improvement".

"While expressing his dissatisfaction, concerns and grievances, Mr Kilner's correspondence with the Director General was expressed in a manner that was not disrespectful or discourteous," she said.

"She [the Director General] responded with courtesy and thanked him for drawing those things to her attention, and she pointed out areas of change that were being effected.

"An employee is entitled to raise complaints and grievances and to express their views, provided that they do so in a reasonable way, and without malice or mischief.

"Employees are not expected to be meek and compliant in all things."

"Employees are not expected to be meek and compliant in all things."

WAIRC chief commissioner Pamela Scott

Mr Kilner said the decision by the Full Bench of the WAIRC was a powerful decision because it gave teachers the right to question processes in schools and opened up schools to have a democratic process where teachers are allowed to participate in decisions.

"It was stated in the decision that employees are not expected to be meek and compliant in independent public schools," he said.

"Teachers have to follow a certain process and it is sad that this process stops them from talking about anything that is going wrong in the management of a school.

"It is bullying at its worst.

"Independent public schools have never been evaluated, now we have statements from a court that things need to change and teachers should be listened to.

"This unhealthy culture has to be addressed by the minister."

The Department of Education did not answer questions on why it pursued the case in the WAIRC or how much money it had cost taxpayers.

The department's executive director workforce Damien Stewart said they were aware of the decision and would work with Mr Kilner's representatives on the outcome.

SSTUWA president Pat Byrne said the union believed that on the whole the outcome was good.

"This has been a long-running and complex case and it is worth recapping the history," she said.

"The union's member Mr Kilner was dismissed for medical incapacity.

"The union has always argued that any medical problems he suffered were linked to Busselton Senior High School and that he was fit to work at another school (or would soon become fit after an appropriate return to work program)" she said.

"The union considered that the medical evidence relied upon by the Director General to dismiss Mr Kilner was not sufficient to justify the drastic decision to terminate his employment."

Ms Byrne said the union believed that the decision supported two very important propositions.

"The first is that a decision to dismiss a teacher for medical reasons will need to be supported by medical evidence of a high standard," she said.

"The second is that it will be unfair to dismiss a teacher on the basis they are unfit for work at a particular school, if they can safely and effectively work at another school.

"The case did not revolve around issues of lack of openness or honesty.

"The dispute concerned the quality of medical evidence and whether it is unfair to dismiss a teacher who is unfit to work at one school but fit to work at another."

Ms Byrne said following the first decision that Mr Kilner's dismissal was unfair the union and the department had engaged in discussions about the process of medical retirement.

"These discussions have been quite co-operative and while there will doubtless be disagreements in future around particular cases, the union believes that the Director General has taken positive steps to improve the process," she said.

Ms Byrne said in the commission's reasons on the second appeal decision, the Full Bench observed that a person who expressed concerns about their employment was not demonstrating a lack of trust and confidence in their employer.

"This is not a new or controversial principle, but it is a helpful reminder that employees are entitled to raise concerns and present their views to their employer in an appropriate way," she said.