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[2001] WAIRComm 3078
procedural. Application dismissed for want of jurisdiction to proceed under s 29(1)(b)(i); applicant may institute an appeal under the former s 23B of the Industrial Relations Act 1979 as preserved by item...
3 cited instruments linked from this judgment.
The Commission held it did not have power to hear the teacher's unfair dismissal claim under the general unfair dismissal provision, because Parliament had provided a specific statutory procedure (former s 23B) for teacher appeals arising from the Education Act; the application was dismissed for want of jurisdiction, but the applicant may pursue an appeal under the repealed s 23B as preserved by transitional provisions in the Schools Education Act 1999.
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Bradley Max Puls, a government school teacher, was dismissed following an inquiry conducted under the Education Act 1928. He filed an application in the Western Australian Industrial Relations Commission alleging he had been harshly, oppressively and unfairly dismissed under s 29(1)(b)(i) of the Industrial Relations Act 1979 (the Act). At a directions hearing on 8 June 2001, the respondent (the Minister for Education) raised a preliminary jurisdictional objection: the respondent submitted that teacher dismissals following proceedings under the Education Act were to be dealt with under the specific teacher-appeal provision formerly enacted as s 23B of the Act, and therefore not properly brought under the Commission's general unfair dismissal jurisdiction in s 29(1)(b)(i) (Reasons for Decision [2]). The jurisdictional point, though raised late in the proceedings, was determined by Commissioner Kenner in an expedited ruling (Reasons for Decision [1]).
Commissioner Kenner examined the legislative history. The court set out the text of former s 23B (inserted in 1995) which expressly conferred jurisdiction on the Commission to hear appeals by teachers against punishment or dismissal arising under the Education Act, and preserved certain procedural consequences such as the Commission's power to confirm, modify or reverse decisions and a restriction on public inspection of appeal records (Consideration [2]). The Commissioner noted that s 23B effectively re-enacted elements of the former Government School Teachers Tribunal jurisdiction (former s 78(1)(b)(iii) and related provisions) and that Parliament had also preserved restrictions on appeals to the Full Bench (Consideration [1]–[3]). Applying the interpretive maxim that a specific statutory mode excludes more general expressions (expressum facit cessare tacitum / expressio unius), the Commission concluded Parliament intended teacher appeals under the Education Act to be pursued under the specific s 23B mechanism rather than under the general s 29 unfair dismissal head (Consideration [4]). The application under s 29(1)(b)(i) was dismissed for want of jurisdiction (Consideration [2]).
However, because the applicant's dismissal occurred on 12 December 2000, before the Schools Education Act 1999 (SEA) commenced and repealed s 23B, transitional item 22(c) of schedule 1 to the SEA preserved an applicant's right to institute an appeal in respect of a 'matter' referred to in s 23B(1)(a) that 'arose' before commencement as if s 23B had not been repealed (Consideration [3]–[4]). The Commissioner therefore directed that the applicant could prosecute the claim under the former s 23B and indicated that, even if regulations applicable to the Tribunal were thought to apply, the Commission would be minded to grant leave to extend time if necessary (Consideration [5]–[6]).
The practical outcome: the applicant's s 29 application was dismissed for want of jurisdiction; the applicant was invited to bring proceedings under the preserved operation of s 23B.
The decision turned on statutory interpretation and legislative history, not on the merits of the dismissal claim. The Commission emphasised three discrete lines of reasoning.
Specific re-enactment and preservation of tribunal powers. The Commission observed that s 23B (inserted in 1995) re-enacted, in substance, provisions previously vested in the Government School Teachers Tribunal (former Division 1 of Part IIA). That Tribunal had held exclusive jurisdiction over industrial matters relating to teachers, including appeals from punishments under the Education Act (Consideration [1]). The re-enactment of those disciplinary/appeal powers within the Commission (s 23B) thus preserved a specific route for teacher appeals.
Application of the expressio unius principle. The Commissioner relied on the well-known interpretive maxim (expressum facit cessare tacitum), stating that when the legislature prescribes a specific mode with conditions and restrictions for exercising a power, it excludes reliance on broader, general expressions in the same instrument (Consideration [4], quoting Anthony and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia). The presence of a detailed, later-enacted specific provision was taken as a clear sign that the specific channel was intended to be the exclusive channel for such teacher-related appeals.
Temporal and transitional effect. The SEA repealed s 23B, but by transitional item 22(c) it preserved appeals in respect of matters arising before the SEA commenced, allowing those appeals to be instituted as if s 23B had not been repealed (Consideration [3]). Because the applicant's dismissal occurred on 12 December 2000, before the SEA's commencement, his appeal 'arose' before the repeal and could be pursued under the preserved s 23B mechanism (Consideration [4]).
Collectively, these reasons persuaded the Commissioner that the applicant's chosen pathway (general unfair dismissal jurisdiction) was not the intended statutory pathway for teacher appeals arising from EA proceedings, and the application under s 29(1)(b)(i) could not proceed.
Before the 1995 amendments and the repeal of the Government School Teachers Tribunal provisions, teacher industrial matters were the exclusive domain of a Tribunal established under the Act. The 1995 Industrial Legislation Amendment Act dismantled the Tribunal and reallocated certain functions to the Commission, but crucially re-enacted specific appeal rights in s 23B for teachers (Consideration [1]–[2]). Parliament also apparently discussed, in Hansard, bringing teachers within the general jurisdiction of the Commission (Consideration [2]), but the statutory scheme retained and re-enacted the specific protective mechanisms and limitations previously exercised by the Tribunal.
The key post-decision legal position, as stated in this ruling, is:
Teacher appeals arising from punishments or dismissals under the Education Act (where those matters fell within s 23B(1)(a) as enacted in 1995) must be pursued under s 23B rather than under the general unfair dismissal jurisdiction in s 29(1)(b)(i); the specific procedure is the appropriate channel (Consideration [1]–[4]).
Where s 23B has been repealed by later legislation (the SEA), transitional provisions (item 22(c)) may preserve the right to pursue an appeal under s 23B for matters that arose before the repeal (Consideration [3]–[4]).
This decision therefore clarifies that the Commission will give primacy to specific statutory channels for teacher disciplinary appeals over its own general unfair dismissal jurisdiction, subject to transitional savings.
"In my opinion ... the legislature intended that claims of this kind be brought pursuant to the specific power contained in s 23B ... and not the general unfair dismissal jurisdiction ... s 29(1)(b)(i)" (Consideration [1]).
The text of s 23B, including that the Commission "has jurisdiction to hear and determine ... an appeal by a teacher against any punishment for alleged misconduct imposed ... under the Education Act 1928 ... and ... an appeal ... against the dismissal ... of the teacher" (Consideration [2]).
Quotation of Anthony and Sons: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode ... it excludes the operation of general expressions in the same instrument..." (Consideration [4]).
"I therefore conclude that this matter cannot proceed by way of an application pursuant to s 29(1)(b)(i) of the Act and this application should be dismissed for want of jurisdiction." (Consideration [2]).
Transitional saving: "By item 22(c) ... an appeal in respect of any 'matter' referred to in s 23B(1)(a) ... arising before the commencement ... may be instituted ... as if s 23B had not been repealed." (Consideration [3]).
This decision governs situations with these characteristics:
The employee is a government school teacher whose punishment or dismissal follows an inquiry or process under the Education Act (or the operative predecessor statute), and the statutory framework contains or contained a specific provision conferring appeal jurisdiction for such matters (Consideration [2]).
The teacher attempts to bring the dispute to the Commission under its general unfair dismissal jurisdiction (s 29(1)(b)(i) or equivalent) rather than via the specific statutory appeal mechanism.
There is a statutory history where a tribunal or specific process once had exclusive jurisdiction, that jurisdiction was absorbed or re-enacted as a specific provision in the Commission's statutory framework, and the legislature either retained the specific provision or provided transitional savings on repeal (Consideration [1]–[3]).
Where those facts are present, the Commission will likely hold that the specific statutory route is the proper vehicle, and that reliance on a general unfair dismissal head is inappropriate.
This judgment does not report later appellate consideration of the reasoning in this decision. The decision cites High Court and other authorities for interpretive principles (Anthony and Sons; Mt Isa Mines; Ross v R; Lyons), but the judgment itself is a single-judge decision of the Western Australian Industrial Relations Commission. The text contains no subsequent-citation history or references to later decisions which have applied, affirmed, or overturned this particular ruling. To assess subsequent treatment, practitioners should search citators and case law databases for later WAIRC or appellate decisions that reference Bradley Max Puls v Minister for Education [2001] WAIRComm 3078.
The decision resolves the immediate jurisdictional question, but leaves several practical and doctrinal matters open for future litigation or clarification:
Scope of 'matter' preserved by transitional item 22(c). The Commissioner concluded the applicant's dismissal 'arose' before commencement and was a 'matter' preserved (Consideration [4]). Future disputes may require finer analysis of what types of consequences or appeals 'arise' pre-commencement and are therefore preserved.
Interaction with procedural regulations. The Commissioner noted uncertainty about whether Part VIII regulations (dealing with the Tribunal) applied to s 23B appeals but indicated a willingness to grant an extension of time if necessary (Consideration [5]). The precise applicability of those regulations and the standards for extending time remain matters for procedural clarification.
Relationship between parliamentary materials and statutory wording. Although Hansard suggested an intention to fold teachers into the Commission's general jurisdiction, the court gave primacy to the statutory re-enactment of tribunal powers. The decision illustrates that extrinsic materials may inform context but cannot displace explicit statutory form. Future appeals may test the limits of how Hansard and other materials can be used where the statute is ambiguous.
Final appellate authority. As a decision of a single Commissioner, the extent to which this reasoning would be followed by the Full Bench of the WAIRC or by higher courts on appeal is not addressed in the judgment. A Full Bench or appellate pronouncement could confirm, refine or depart from the interpretive approach taken here.
Practical takeaway for practitioners: where a specific statutory appeals mechanism exists (or existed and is preserved by transitional provisions) for teacher disciplinary matters under the Education Act, do not proceed under the Commission's general unfair dismissal head; instead, institute the appeal under the specific provision (or the preserved transitional mechanism) and attend promptly to any procedural time limits, applying for extensions where necessary and relying on the Commission's indicated disposition in this ruling (Consideration [3]–[6]).
CITATION NO. 2001 WAIRC 03078
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"23B. (1) The Commission has jurisdiction to hear and determine -
(a) an appeal by a teacher against any punishment for alleged misconduct imposed on the teacher under the Education Act 1928 other than a punishment that is a reprimand or a fine that does not exceed $50;
(b) an appeal by a teacher (not being a person to whom subsection (2) applies) against the dismissal, or reduction to a position carrying a lower salary or remuneration, of the teacher for inefficiency under any regulations relating to the assessment of inefficiency and made under the Education Act 1928; and
(c) an appeal under section 7D (4) of the Education Act 1928.
_(2) This subsection applies to a person who is - _
(b) a teacher who is reduced to a position carrying a lower salary or lower remuneration but whose salary or remuneration is not by reason only of that reduction reduced to the level of the lower salary or lower remuneration.
(3) Without limiting the generality of subsection (1) the Commission may confirm, modify or reverse any decision, determination, finding or declaration appealed against.
(4) No record relating to an appeal against a punishment imposed on a teacher shall be open to public inspection."
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
Had it been the intention of Parliament to bring such matters as the instant matter within the general jurisdiction of the Commission, then it would have been unnecessary to re-enact the relevant provisions of the former s 78(1) as the former s 23B(1)(a) of the Act. The fact that it did, and the Act retained the specific provision dealing with EA appeals, strongly points in my view, to the application of the above principle of interpretation and that it was intended that in matters of this kind, the specific and not the general power be exercised. Section 23B was also the later section in time: Mt Isa Mines Ltd v FCT (1976) 10 ALR 629 at 639; Ross v R [1979] HCA 29; (1979) 25 ALR 137 at 145; Lyons v Registrar of Trade Marks [1983] FCA 236; (1983) 50 ALR 496 at 508.
I therefore conclude that this matter cannot proceed by way of an application pursuant to s 29(1)(b)(i) of the Act and this application should be dismissed for want of jurisdiction.
However, that is not the end of the matter as far as the applicant's claim is concerned. The SEA repealed the EA at the same time as the repeal of the former s 23B of the Act. Transitional provisions contained in schedule 1 to the SEA, at item 22, deal with consequential matters flowing from the repeal of s 23B of the Act. By item 22 (c), it is provided that an appeal in respect of any "matter" referred to in s 23B(1)(a) of the Act, "arising" before the commencement of the SEA, may be instituted, heard and determined as the case requires, under the Act, as if s 23B had not been repealed.
The termination of the applicant's employment was effected on 12 December 2000. This was before the commencement of the SEA. The termination of the applicant's employment, as a consequence of the alleged misconduct under the EA was, in my view, a "matter" referred to in the repealed s 23B(1)(a) of the Act, which "arose" before the commencement of the SEA. Thus, an appeal may be instituted, heard and determined, as the case requires under the Act, as if s 23B had not been repealed.
There was no time limitation imposed by the Act upon an applicant bringing an appeal under the former s 23B of the Act. Even if it could be said that the regulations contained within Part VIII of the Industrial Relations Commission Regulations 1985, dealing with the Tribunal, applied to proceedings under the former s 23B of the Act, which in my view they do not, I would be minded in any event, in the circumstances of the present matter, to grant leave to extend time for the filing of such an appeal.
I am therefore of the view that the present matter is one that can be prosecuted pursuant to the former s 23B of the Act, and the applicant should bring such an application forthwith, if that is what he wishes to do.
Bradley Max Puls
The Honourable Minister for Education [2001] WAIRComm 3078
(1984) 154 CLR 479
(1932) 47 CLR 1
(1976) 10 ALR 629
(1979) 25 ALR 137
(1983) 50 ALR 496
Application dismissed for want of jurisdiction to proceed under s 29(1)(b)(i); applicant may institute an appeal under the former s 23B of the Industrial Relations Act 1979 as preserved by item 22(c) of schedule 1 to the Schools Education Act 1999; Commission indicated willingness to grant extension of time if necessary.