B v Director-General of Education and Training NSW and Department of Education and Training [2003] NSWIRComm 1029 (30 July 2003)

Last Updated: 11 August 2003

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Industrial Relations Act 1996

"B"

(Applicant)

-V-

DIRECTOR-GENERAL OF EDUCATION AND TRAINING NSW, DEPARTMENT OF EDUCATION AND TRAINING

(Respondent)

COMMISSIONER CAMBRIDGE 30 July 2003

Matter No. IRC 4266 of 2002

Application by "B" pursuant to section 84 of the Industrial Relations Act 1996 re alleged unfair dismissal.

Matter No. IRC 3032 of 2003

Notification under section 130 by the NSW Teachers of a dispute with the Department of Eduction and Training re allegations against employee.

[ IMAGE ]

D E C I S I O N

1.	This Decision is made primarily in respect to matter No. IRC 4266 of 2002 (the unfair dismissal claim), but also determines matter No. IRC 3032 of 2003 (the dispute notification).

2.

The applicant in the unfair dismissal claim, and various child witnesses have been identified by use of pseudonyms at the request of the Parties and so as to provide for some anonymity for those individuals. The anonymity has been sought as a consequence of the serious allegations made against the applicant, "B", as these matters include allegations of misconduct involving some inappropriate physical contact with children.

PROCEDURAL BACKGROUND

3.

On 23 July 2003 the NSW Teachers Federation (the Federation) made application for Relief in relation to unfair dismissal on behalf of "B", (the applicant). The application named the respondent employer as the Director-General of Education and Training, NSW Department of Education and Training, (the employer or the Department).

4.

The application was initially allocated to Bishop C. The Commission's file indicates that Bishop C conducted various proceedings which were ultimately unsuccessful in resolving the claim by way of conciliated settlement. Following an application made pursuant to section 173 of the Industrial Relations Act 1996 (the Act), the matter was reallocated to the Commission as currently constituted.

5.	Subsequently the Hearing of the Arbitration of the unfair dismissal claim was joined with proceedings in respect of the dispute notification and the Hearing was conducted over four days, 2, 3, 4 and 6 June 2003.

6.

Shortly after the commencement of the Hearing on 2 June 2003, the Commission raised concern about evidence provided by the applicant which suggested that the applicant was an employee engaged under a contract of employment for a specified period of time, and that specified period was less than six months. This issue prompted some debate between the Parties regarding the operation of Clause 6 of the Industrial Relations (General) Regulations 2001 (the Regulations), such that the applicant may be a class of employee exempt from access to the unfair dismissal provisions of the Act.

7.

Following some debate and an adjournment of proceedings, the Parties agreed that the issues that underpinned the unfair dismissal claim required proper Hearing and Determination. In particular, neither Party sought to have the potential operation of the Regulations circumvent the prospect for there to be a proper Hearing and Determination of the issues which underpinned the unfair dismissal claim. Subsequently on 6 June 2003, the Federation filed the dispute notification and by agreement that matter was joined to proceedings in the unfair dismissal claim. The joinder of the dispute notification has ensured that the Commission would not be deprived of jurisdiction so as to ensure that the issues which underpinned the unfair dismissal claim could be Heard and Determined.

BACKGROUND

8.

The applicant is a male who was some 58 years of age at the time of his alleged unfair dismissal on 3 July 2002. The applicant was engaged by the Department as a Teacher and he taught at a Public Secondary School. The applicant had been employed as a Teacher for some 40 years, when in January of 2002, he resigned from employment, essentially on the basis of a retirement from full engagement as a Teacher. The effective date of the applicant's retirement was 29 January 2002.

9.

Following the effective date of retirement, the applicant continued to make himself available for engagement as a Teacher on what was described as a casual basis. Although he had retired from full time "permanent" employment as a Teacher, the applicant was offered engagement to work in a full time vacant position for the first two school terms of 2002. Thus the applicant was re-employed pursuant to a contract which specified that the employment was of a temporary teaching engagement for a period from 29 January 2002 until 5 July 2002 inclusive. This period encompassed the first two school terms for 2002.

10.

It should be noted that the applicant's temporary teaching engagement for the first two terms of 2002, was at the same Secondary School that he had been engaged during the preceding 8 years of his "permanent" employment. In effect therefore the applicant retired at the end of 2001, but returned to work on a temporary - two term basis, performing very similar work to that which he had previously undertaken. The applicant's principal subject areas were Maths and Science and for the purposes of these proceedings the applicant can be described as a High School Science Teacher.

11.

On or about 30 April 2002, the applicant was summonsed to attend the School Principal's office. Upon attendance at the Principal's office the applicant met with both the Principal of the School and the District Superintendent of Schools. The District Superintendent advised the applicant that serious allegations of misconduct had been made against him by students and another staff member. The District Superintendent handed the applicant an envelope which contained an undated letter signed on behalf of a Catherine Melville, who was described as Chief Investigator. This undated correspondence set out, inter alia, four numbered incidents which represented the basis for the allegations of serious misconduct made against the applicant. The correspondence also advised that an investigation into the allegations was being conducted, and that the applicant was invited to provide a response either in writing or by way of taped interview within fourteen days of the date of the letter. As the letter was undated this proposition became untenable. Nevertheless, the applicant did provide written response to the allegations by way of a letter dated 6 May 2002.

12.

On the days immediately following the advice to the applicant of the allegations, the applicant was absent from work on the basis of some illness apparently arising directly from the presentation of the allegations. On or about 6 May 2002, the applicant was transferred from teaching duties and performed work in a District Office which did not involve any direct contact with children. The applicant remained in the District Office position until the expiration of his temporary teaching engagement on 5 July 2002.

13.

On or about 3 July 2002, the applicant was advised that the acting Director of the Child Protection Investigation Directorate of the employer had determined to withdraw the applicant's formal approval to teach, and that the withdrawal of the approval to teach would be maintained until the outcome of the investigation into the allegations made against the applicant had been concluded.

14.

On or about 23 July 2002, the applicant was provided with a document which set out further allegations made against the applicant by a former student, and which arose from information obtained during investigation into the first series of allegations. The second set of allegations were also identified by way of four numbered incidents which were asserted to have occurred on various unspecified occasions in 1995, 1997 and 1998.

15.

Solicitors acting on behalf of the applicant responded to the second set of allegations in correspondence dated 7 August 2002. Following the further investigation of both sets of allegations made against the applicant, the employer determined that certain of the allegations were proven, such that the employer considered that the applicant was unfit and unsuitable to perform work as a School Teacher. The employer therefore determined that the applicant's approval to teach would be revoked indefinitely. The revocation of this approval to teach was conveyed together with the specific determinations made in respect of all allegations, by way of letter dated 25 October 2002 from Ms Caroline Wells, the Acting Director, Child Protection Investigation.

16.

Although the dismissal of the applicant could have been said to have occurred on or about 3 July 2002, when the applicant was initially advised of the withdrawal of his approval to teach pending the outcome of the employer's investigation, the confirmation of the ongoing revocation of the approval to teach did not occur until 25 October 2002. It was not disputed that the applicant has sought by way of these proceedings, to review the decision of the employer regarding the revocation of his approval to teach. Consequently the applicant has sought Orders which would effectively provide for the reinstatement of his approval to teach, and if granted, further Orders remedying any loss which would said to have been unfairly inflicted upon the applicant during the period that he had been unable to teach.

THE EVIDENCE

17.

As would be anticipated, the evidence in this matter has concentrated upon the various recounts of the incidents that relate to the allegations of serious misconduct made against the applicant. Broadly, evidence regarding the alleged incidents of misconduct has required the Commission to settle matters of contested fact. Those matters have, in all but one incident, generally involved contest between the evidence provided by children, being students at the relevant times, against the evidence of the applicant.

18.

In addition, evidence was provided regarding the procedures that the employer followed that involved the investigation and subsequent conclusions which culminated in the findings in respect of the allegations that provided basis for the ongoing revocation of the applicant's approval to teach. Generally the evidence regarding the procedures that led to the revocation of the applicant's approval to teach was consistent, and has not required the settlement of important issues of contested fact.

19.

Consequently the evidence requiring particular attention was that concerning the alleged incidents of misconduct which were particularised in the allegations made against the applicant. Importantly, all but one of the incidents involved contested evidence as between the applicant and children, or in the case of the second set of allegations, allegations which were made by a person who was at the time of the alleged events a child.

20.

Putting to one side the second set of allegations, the Commission has been conscious of the need to treat very carefully the evidence provided by children. Particular cognisance of the age of those individuals who provide evidence as a witness has been necessary. The Commission has been conscious of the need to consider aspects of the evidence provided by children with care, and with due regard for the young age of those witnesses.

21.

It is relevant to note and acknowledge that young minds that have not had the benefit of extensive life experience and other training, will understandably construe certain events, and in particular, points of detail, in a manner which would ordinarily be considered differently to that which would be expected from a mature adult. By way of analogy, one could compare evidence that would be taken from an experienced and trained forensic practitioner, and contrast that with a lay person who had no particular exposure to detailed forensic analysis. The evidence of the highly trained forensic practitioner would usually be considered differently to that provided by an individual of untrained mind.

22.

Therefore it is appropriate to recognise that the deficiencies of detail and precision which can be identified in evidence provided by children should be treated with more care than deficiencies of detail as provided by adults. It is very important to analyse deficiencies in the evidence of children such as inconsistencies, with great care and regard for the obvious potential that a young mind will ordinarily reflect far less attention to detail and precision than that of a mature adult. I have adopted such an approach to the analysis of the evidence provided by children in this case.

23.

In addition to the particular care and attention that has been provided to evidence provided by children, I have also had regard for various other verbal and non verbal aspects of the presentation of witnesses, particularly as such matters might impact on the question of credit where that factor might assist in the resolution of questions of contested fact.

24.

There were five witnesses including the applicant, called in support of the claim. The applicant called four other colleagues to provide evidence in support of his case. I shall not provide detailed articulation of observations regarding witnesses who are existing Teachers. Any such details have become unnecessary for the proper determination of the matter, and would only be potentially capable of forming basis for some disquiet in the context of the ongoing school environment.

25.	In summary, the evidence provided by all existing Teachers was generally believable, and there were no significant deficiencies in the performance of any of the existing Teachers as witnesses.

26.

I did not observe any notable deficiency in the demeanour or general performance of the applicant as a witness and generally throughout the proceedings. The applicant's demeanour and other personal characteristics did not provide concern such as to impact upon the veracity of his evidence. Ultimately it has been matters other than demeanour and general observations which have operated as the basis for various findings regarding the veracity and accuracy of the applicant's testimony.

27.

All of the five children that were called to provide witness evidence did so in a highly commendable manner. All of the children, without exception, presented as sincere individuals who were conscious of the requirement to tell the truth. It was particularly commendable to observe that when particular children were presented with certain inconsistencies or incongruities in their evidence, they reacted with dignity, sincerity and openness.

28.

The performance of each of the children particularly during cross-examination, was highly commendable. When faced with difficult questions during cross examination, not one of the children sought to avoid or conceal some error which may have been revealed in their testimony. Similarly, not one of the children sought to embellish answers during cross-examination as a means to attempt to overcome identified deficiencies. Notwithstanding certain identified deficiencies in the evidence provided by some of the children, I have accepted that each of the children were witnesses of truth. Apart from recognised and understandable youthful exuberance, which explained some tendency for exaggeration in particular instances, the evidence provided by the children has generally been preferred in instances where it departed from that provided by the applicant.

29.

In addition to the five children, there were six other adult witnesses called to provide evidence in support of the employer's case. I make no adverse observations about the performance of any of the other witnesses called by the employer. I must note however, some unfortunate vagueness of the evidence provided by the witness "AG". Ultimately the evidence provided by "AG" has been irrelevant to the Determination of this matter and the principal findings that underpin that Determination.

30.

I note in particular the creditable performance of Mr Michael Eccleston as a witness. Mr Eccleston was the person responsible for conducting the investigation into the allegations made against the applicant, and he made certain recommendations following that investigation. Mr Eccleston provided measured and carefully considered answers to questions and he displayed a commendable, even-handed and balanced contemplation of his responses during his attendance in the witness box.

31.

There was a considerable amount of evidence provided in this matter which has ultimately not been essential to the Determination required. As will become apparent from my consideration of the matter, the evidence regarding the second set of allegations concerning incidents alleged to have occurred during 1995 to 1998 has been generally disregarded. The evidence of most elevated importance involves three of the four allegations made in the first set of allegations provided to the applicant on or about 30 April 2002.

THE CASE FOR THE APPLICANT

32.

At the Hearing the applicant and the Federation were represented by Ms P Lowson, barrister. Ms Lowson provided the Commission with a written outline of the applicant's submissions and a further document which represented an additional written outline of the applicant's submissions. Ms Lowson made detailed oral submissions in elaboration of the outline and further outline of the applicant's written submissions.

33.

Ms Lowson stated that the primary argument advanced by the applicant was that the employer had not made out any proven case of misconduct as alleged against the applicant. Ms Lowson further stated that the secondary argument advanced on behalf of the applicant involved a challenge to the procedural aspects that led to the decision to dismiss the applicant.

34.

In respect to the secondary procedural aspects of the submissions made by Ms Lowson, various Authorities were referred to which were said to require the employer to follow specific detailed procedures when dealing with the allegations made against the applicant. Ms Lowson submitted that the employer had not followed the procedures that it was bound to apply. In this regard Ms Lowson referred to various provisions of the Teaching Services Act 1980. In brief Ms Lowson submitted that the applicant had not been provided with an appropriate procedure regarding the detailed investigation that was undertaken, and the manner in which the material that was revealed in the investigation was subsequently determined.

35.

Ms Lowson submitted that the applicant had been deprived of a proper process and that the procedure that the employer adopted was flawed. In particular Ms Lowson made mention of the delay that accompanied the investigation and final determination of the employer to continue the revocation of the applicant's approval to teach. Ms Lowson submitted that the employer had deprived the applicant of any capacity to work in his chosen vocation whilst it (slowly) investigated and determined the matters relating to the allegations. Ms Lowson submitted that this process was unfair and that the employer should have, at very least, either provided some ongoing employment in an area that did not involve direct contact with students, or alternatively paid the applicant some amount which would be commensurate with a position of an employee being suspended with pay whilst these matters were being investigated and determined.

36.

Ms Lowson further submitted that there were a variety of other deficiencies in the procedures that the employer had adopted. Of significance, Ms Lowson stated that there had not been a formal oral Hearing before the decision maker (Ms Wells) determined the various allegations. Ms Lowson submitted that the absence of any formal Hearing before the decision maker represented a significant procedural deficiency which should render the subsequent determination by Ms Wells to be unfair.

37.	Ms Lowson made further detailed submissions regarding what she described as the applicant's "primary argument". In this respect Ms Lowson made detailed submissions regarding each of the primary allegations that were found to have been proven by the employer.

38.

Ms Lowson made detailed submissions which supported the applicant's evidence against that provided by other witnesses. Ms Lowson drew the Commission's attention to the long and successful service of the applicant as a Teacher. Ms Lowson submitted that the applicant's distinguished teaching record should assist in respect of the adoption of the applicant's evidence wherever that might depart from evidence of others.

39.

Further, Ms Lowson drew the Commission's attention to certain admirable aspects of the applicant's reaction to the allegations. In summary Ms Lowson submitted that the applicant should be considered as a witness of truth, and that various deficiencies and other aspects of the evidence provided by, in particular, the children, should lead the Commission to conclude that the applicant's version of the specific incidents was to be preferred and adopted.

40.

Ms Lowson submitted that the Commission should find that the incidents of alleged misconduct made against the applicant were not proven, and that at worst, the applicant was guilty of an error of judgement in respect to admitted use of some nicknames for certain students. In addition the applicant was subjected to manifest unfairness in the procedure that had been adopted by the employer.

41.

Consequently Ms Lowson submitted that the applicant should be provided with Relief from unfair dismissal, or in the alternative, the Commission should make an Award in the terms sought by the Federation in the dispute notification matter. Ms Lowson submitted that the Commission should find that the removal of the applicant's approval to teach was wrong, and make necessary Orders to remedy that circumstance.

THE CASE ADVANCED ON BEHALF OF THE EMPLOYER

42.	The employer was represented by Mr S Benson, barrister. Mr Benson provided the Commission with a written outline of submissions which he supplemented with detailed oral submissions.

43.	Mr Benson first submitted that the employer sought to rely upon the "jurisdictional" point, and that therefore the applicant was exempt from access to the unfair dismissal provisions of the Act.

44.

Mr Benson then provided an outline of the chronology of relevant events leading to the incidents which were the subject of the allegations made against the applicant. Mr Benson urged the Commission to accept that the evidence provided by the witnesses called by the employer, particularly including the child witnesses, should be believed. Mr Benson made detailed submissions about particular aspects of the evidence provided by the children.

45.

Mr Benson submitted that certain identifiable deficiencies in the children's evidence were understandable and acceptable. Further, Mr Benson submitted that there were important aspects of evidence of key child witnesses which assisted their testimony greatly. In particular Mr Benson made note that where one of the child witnesses had every opportunity to collaborate another's evidence regarding the applicant making a statement to the effect of "Oops - naughty hand", that child did not provide such collaboration. According to Mr Benson this was of particular importance in establishing the veracity of the testimony of the children generally. Mr Benson described this particular aspect of detail of the children's evidence as a "classic example" of evidence provided by truthful witnesses.

46.

Mr Benson made submissions which stressed the importance of corroborated evidence from two adults who witnessed one particular incident that was the subject of allegations made against the applicant. Mr Benson submitted that on balance and weight, the Commission should accept the evidence provided by two of the applicant's colleagues, where that directly contradicted with the applicant's testimony.

47.

Mr Benson submitted that the investigation of the employer into the allegations made against the applicant was carried out in both a professional and timely manner. Mr Benson rejected any criticisms that were made of the procedure that the employer adopted. In particular Mr Benson submitted that the procedure that was adopted was appropriate, and that there was no mandatory requirement for the employer to have the applicant appear before the decision maker as a pre-requisite to the determination of the allegations.

48.

Mr Benson made further detailed submissions about the various incidents which the employer had found to have been proven, and which represented conduct on the part of the applicant that was at least highly inappropriate and as such, capable of rendering the applicant as a person who was unfit, and unsuitable to be entrusted with the responsibilities of a School Teacher. Consequently Mr Benson urged the Commission to find that the various incidents which the employer had established as proven were properly determined, and that the consequent decision to continue the revocation of the applicant's approval to teach was correct and proper in the circumstances.

CONSIDERATION

The Procedure

49.

The consideration of these matters can be approached by firstly making an analysis of the procedures that the employer adopted when it dealt with allegations of serious misconduct made against the applicant. In circumstances where there is a Statutory or Regulatory prescription for dealing with allegations of misconduct against an employee, any failure to follow the specified process can represent a fundamental injustice, such as to render any subsequent dismissal to be unfair.

50.

Ultimately the determinations that I make regarding the substantive issues in this instance overcome the procedural deficiencies that can be identified in this case. Although there were various aspects of detail of particular procedure that gave rise to concern, the most important deficiency which can be identified involved the absence of the applicant appearing personally before the decision maker. During the course of proceedings the Commission drew an analogy where a matter before the Commission might be simply determined upon the various documents that were filed in support of the respective cases without the Commission actually observing the various individuals as witnesses. It would seem that the employer may be led into procedural error if it does not require, "the accused" to appear in person before the decision maker and before any determinations are made.

51.

Although the procedure followed by Mr Eccleston, whereby he interviewed the children and other relevant individuals, was undertaken with care, method, attention for detail, and diligence, it would have been appropriate to have the applicant appear both before Mr Eccleston and also Ms Wells before either of those individuals made recommendations or determinations regarding the issues surrounding the allegations. In addition, the delays that occurred in circumstances where an employee was deprived of capacity to earn income in his chosen profession, was a matter that was highly regrettable, and steps should be taken to avoid any repeat of these unfortunate procedural deficiencies.

52.

Specifically, it would be appropriate to ensure that in all cases where allegations of serious misconduct arise, that in addition to the investigation process, there be some particularisation of the allegations by way of charge, and that the accused individual be given proper opportunity to answer the charges both in writing and personally before any decision maker. This should occur at a time prior to there being any recommendations or determinations made of any of the issues that would be the subject of the charges.

The Allegations

53.	There were two separate sets of allegations made against the applicant. In each set of allegations there were four specified and numbered incidents. Therefore there can be broadly identified eight particular allegations that were made against the applicant.

54.

Ultimately the employer found five of the eight allegations to have been substantiated. For the purposes of analysis for Determination in this case, I propose to disregard the four allegations made in the second set of allegations provided on or about 23 July 2002. I have disregarded the second set of allegations in it's entirety, in large part because of the length of time that has passed since the alleged events occurred. In addition, all but the first allegation in the second set were matters of little consequence, even if they were capable of being properly proven.

55.

Further, I have decided that there is little purpose served in undertaking any detailed consideration of the first allegation made against the applicant regarding the particular use of nicknames for various students. Although, the employer found that in respect of two of the three alleged nicknames, the matter was proven, that was largely self evident as the applicant had admitted to using two of the three nick names that were alleged in allegation No. 1 of 30 April 2002.

56.	Consequently the focus for analysis of allegations has been confined to allegations Nos. 2, 3 and 4 of the first set of allegations provided to the applicant on or about 30 April 2002.

57.

In brief, allegations Nos. 2 and 4 involve assertions that the applicant made inappropriate physical contact with two different Year VII female students. Allegation No. 2 involved an assertion that the applicant had touched the upper leg and upper thigh area of a female Year VII student. This allegation was that the action of the applicant was a deliberate running of the fingers along the skin and outside of the student's skirt, and that this touching of the student occurred for something in the vicinity of 30 seconds.

58.

Allegation No. 4 involved an assertion that the applicant pinched a female Year VII student on one of her buttocks, and subsequently said words to the effect of "Oops, naughty hand". It was asserted that this conduct was in no way inadvertent touching, and was touching of a particular part of the student's anatomy which would on any reasonable and objective assessment, be seen to be highly inappropriate.

59.

The allegation No. 3 asserted that the applicant stood on a balcony of the High School building, and that in full view of the students and other staff, performed actions which represented simulated sexual acts, specifically the stroking of a 560 mm long cardboard cylinder in a fashion such that the applicant simulated the act of male masturbation with the cardboard cylinder.

60.	For convenience, each of these three specific allegations will be respectively referred to as; allegation No. 2 - touching the upper leg of a female student; allegation No. 3 - simulated sexual acts on the balcony; and allegation No. 4 - pinching of the buttock of female student.

Allegation No. 3

61.

I have approached consideration of these allegations by first making analysis of allegation No. 3, the simulated sexual acts on the balcony. I have undertaken consideration of this allegation first because it represented a matter of contested evidence as between the applicant and two adult witnesses. Therefore it was an incident which did not involve the particular care associated with the treatment of evidence of children as earlier discussed in this Decision.

62.	The applicant's evidence regarding the allegation No. 3 of simulated sexual acts on the balcony, can be conveniently summarised by the following extracts from transcript:

"Q. To refresh your memory, do you recall on this occasion, having a long tube - significantly longer than this, but for demonstration purposes - a tube, and leaning back and simulating masturbation?

A. No, I certainly do not."

and

"Q. Do you recall that?

A. No.

Q. I put it to you that's what you did in view of at least the persons that were present in the quadrangle. Do you recall that?

A. No.

Q. What I put to you is that that occurred on that day.

A. Yes, you can put it to me, yes. I just denied it.

Q. What I want to put to you is that it attracted Ms Foord's attention, who was working in the quadrangle, and she came over to you, below the position where you were on the first floor balcony, and said to you words to the effect, "Look, can you go and be disgusting somewhere else." Words to that effect.

A. I have no recollection of that ever occurring.

Q. But you'd agree that if you were simulating the act of masturbation within view of teachers and students in the quadrangle, while there's a class underway, that that would be totally inappropriate?

A. If a person did that, yes, I would." ^[1]

63.

The applicant flatly denied that he participated in the incident concerning allegation No. 3 involving simulated sexual acts on the balcony of the school building. The applicant denied any involvement in an incident regarding the simulated sexual acts on the balcony from the outset that allegations of that conduct arose. Relevantly in his written response dated 6 May 2002 (Annexure A to Exhibit 1), the applicant made the following statements in respect to allegation No. 3 of simulated sexual acts on the balcony. The applicant's written response included the following:

"I deny the allegation as stated. ...

Any action involving a bell jar and cardboard cylinder never occurred. The date as 13 March 2002 is wrong as my colleague was on sick leave on that day. This person is willing to support the above.

Concerning the bell jar - I have not used one in the past many years of Science teaching. Of the cylinder - though someone has located one and chosen to measure it as 560 mm even if I assume to the nearest accurate mm, the incident described in the allegation did not occur."

64.	The allegation number No. 3, involving simulated sexual acts on the balcony arose from a complaint made by another Teacher. This Teacher made written formal record of complaint which relevantly stated as follows:

" During the afternoon of 13 March, during sport time "B" stood on the top balcony opposite the Science Staff Room simulating sexual acts with various objects that looked to represent male and female genetalia. He stroked and patted some sort of glass bell jar in full view of the PDU students, staff and Uni Prac. students.

He then produced a cardboard cylinder of about 2 ft in length and stood at such an angle that the cylinder looked like an erect penis. He proceeded to stroke it.

He seemed to be completely oblivious to the other staff and students around him. I found his actions offensive and I asked him to find somewhere else to carry out his disgusting acts."

65.	The written complaint was signed by the Teacher who subsequently gave evidence as a witness in these proceedings. The evidence of this Teacher broadly confirmed the incident as described in the initial letter of complaint (Exhibit 22).

66.

Importantly the incident regarding allegation No. 3 involving the simulated sexual acts on the balcony, was also witnessed by another adult being a person who was a Teacher's Assistant. The Teacher's Assistant was a person who was a supportive colleague of the applicant. Notwithstanding her apparently generally supportive association with the applicant, the evidence of the Teacher's Assistant confirmed the incident, and in particular confirmed the simulated sexual acts involving the stroking of the cardboard cylinder. Relevantly the Teacher's Assistant provided the following recount of the incident during her record of interview:

"And he's done that - I walked across the Playground because I saw him. I've looked up and thought, "Oh, god, he thinks he is funny." and I've just - you know marked it off shook my head; whatever.

I can't remember exactly.

... But I know I would have just, "Oh, god, you know, cut that out."

67.	The Teacher's Assistant provided further confirmation of the incident in some detail during her cross-examination, and the following extract from transcript is provided:

"Q. What did you observe him do? Can you simulate what you've observed him do?

A. He rubbed the cylinder.

Q. He was holding it.

A. Like this. That's all I saw.

Q. The witness is indicating that he was holding it in the left hand and stroking it with the right hand, up and down.

A. Yes.

Q. And looking at you?

A. Yes, looking at me." ^[2]

68.

There are various other extracts from transcript which confirm that the incident involving the applicant simulating the sexual act of male masturbation with a cardboard cylinder would be proven to have occurred and such a finding would be made beyond reasonable doubt. The evidence provided by the two adults that witnessed allegation No. 3 involving simulated sexual acts on the balcony was compelling, and as such contrasted with the consistent blunt denials of the applicant.

69.

The Commission is therefore presented with serious doubt about the veracity of the applicant's evidence, particularly regarding the incident subject to allegation No. 3, involving simulated sexual acts on the balcony. It would seem that either the applicant was being untruthful about that incident, or alternatively, there was some alarming defect in the conscious recall of the applicant. There is further disturbing evidence which impeaches the applicant's testimony about another specific matter, and gives rise to serious concern about this issue of either his untruthfulness, or alternatively his psychological capacity for conscious or sub-conscious denial of particular events.

Horn bag

70.	It is relevant to analyse the evidence provided about a matter involving the applicant's use of the word "horn bag" as some flippant description for a particular female or females generally. The applicant provided the following evidence on this question during cross-examination:

"Q. I'm putting to you that the name "horn bag" has sexual innuendo.

A. Yes, to some people.

Q. It's a term that you've heard used before?

A. I've read it in a book, yes.

Q. You'd agree it's hardly a flattering term to use to a female?

A. I didn't use it to a female." ^[3]

71.

As with the incident of allegation No. 3 involving simulated sexual acts on the balcony, the applicant denied that he used of the word "horn bag". This evidence needs to be considered having regard for evidence provided by witnesses called in support of the applicant's case whereby firstly one witness provided the following evidence:

"Q. BENSON: Have you heard B use the word "horny bag"?

A. I've never heard the term "horny bag".

Q. You haven't?

A. Not "horny bag".

COMMISSIONER: I think it's "horn bag".

BENSON: Q. "Horn bag"?

A. Yes, certainly.

Q. Have you heard him refer to any female teachers - - -

A. In the staff room, where I confined my comments to, yes; and it's certainly not in a derogatory way." ^[4]

72.

It must be stressed that this evidence about the applicant's use of the word "horn bag" came from a witness who was very supportive of the applicant's position generally. During the cross-examination of the next witness who was also called in support of the applicant's case, the following evidence was provided about the use of the word "horn bag":

"Q. Had you heard him attribute the nickname "horn bags" to fellow female members of staff?

A. Yes.

Q. Who had he described or used that term in respect of?

A. Say that again, sorry?

Q. Who did he call horn bags?

A. I was one; a few, I guess. It was just his sense of humour.

Q. Who else?

A. I suppose Mrs Pearson and me. I'm sure there were probably others." ^[5]

73.	The next witness called in support of the applicant's case provided the following further evidence regarding the applicant's use of the word "horn bag":

"Q. Have you heard B refer to female members - any female members - of staff as "horn bags"?

A. I have.

Q. Who have you heard him call that name?

A. Within the confines of the science staff room, and only there.

Q. Who?

A. Nobody in particular. It was one of B's sort of lines. It was not said in any way to predicate anybody or pick them out or - it was just an off-the-cuff line.

Q. You hadn't heard him interact with female staff and say, "Hi, horn bags," or something like that?

A. As I said before, I have heard him speak in those words, but not in a malicious or any other form." ^[6]

74.

As was the case with the conflicting evidence regarding allegation 3 involving the simulated sexual acts on the balcony, it was regrettable to identify the denial by the applicant regarding the use of the word "horn bag". The applicant would have the Commission believe that he had only ever read the term "horn bag" in a book, yet three of the witnesses called in support of his case attest to his use of the word, perhaps even on a regular basis.

Allegations Nos. 2 & 4

75.

Although the confirmation of allegation No. 3 would provide, of itself, sufficient basis to finalise the Determination of these matters, the Commission briefly provides some further analysis and findings in respect to the two other primary allegations involving inappropriate physical touching of female Year VII students. Consideration of allegations Nos 2 and 4 must be approached against a background of significant impeachment of the applicant's evidence regarding allegation No. 3, involving simulated sexual acts on the balcony, and as supported by evidence of the use of the word "horn bag".

76.	It is relevant to note the applicant's initial reaction to the two allegations involving the inappropriate physical contact with female Year VII students. In his written response dated 6 May 2002, the applicant stated the following in respect of allegation No. 2:

"I deny the allegation. This never occurred. The girl is a liar."

77.	In respect of allegation No. 4, the second of the two allegations made by students regarding inappropriate physical contact, the applicant provided the following written response:

"I deny the allegation. The girl is a liar."

78.

It was curious that the applicant should use such strong language as the basis for denial of these two allegations. During the course of his testimony the applicant identified that the prospect for inadvertent contacts to be exaggerated, or misconstrued in some fashion, could lead to genuine misunderstanding about matters such as those relevant to allegations Nos. 2 and 4. The applicant's direct personal attack on the two girls that made the allegations provides him with little assistance in terms of consideration of these issues. Although it may not be entirely necessary, particularly, given that on even the most stringent standard of proof, allegation No. 3 can be substantiated, I believe that for the benefit of the girls that were involved, it is appropriate that the Commission makes some particular findings about allegations Nos. 2 and 4.

79.

I have earlier commented favourably upon the performance of all the child witnesses in this case. These compliments are of course extended to the two individuals that raised allegations Nos. 2 and 4 against the applicant. I have carefully considered certain inconsistencies that were identified in respect of the recollections of the two incidents underpinning allegations Nos. 2 and 4.

80.

In particular, I noted the reaction of the child involved in allegation No. 4, when presented with the inconsistent aspect of her evidence which firstly described that it was her left buttock that was squeezed or pinched by the applicant, and then subsequently altered that description to be her right buttock. Although such a point of detail would ordinarily be capable of significantly impugning the evidence of an adult, I believe that this inconsistency represented a genuine mistake associated with some of the tensions and haste that were involved in the child's preparation of the initial statement of complaint.

81.

Various other matters of detail which represented inconsistencies in the evidence provided by the two female students who made the allegations numbered 2 and 4, must be considered and contrasted with the evidence provided by the applicant which was severely and alarmingly impeached by his testimony concerning allegation No. 3 and the use of the word horn bag. On balance I prefer the evidence of the children over that of the applicant.

82.

Consequently I find that the incidents involving inappropriate touching of female students by the applicant, and as particularised by the evidence regarding allegation No. 2, concerning the touching of the upper leg of a female student, and allegation No. 4 involving the pinching of the buttock of a female student, are proven upon the requisite standard of proof having regard for the seriousness of the conduct. Although I have carefully and repeatedly, attempted to provide for the prospect that the events as particularised in allegations Nos 2 and 4 may have involved some inadvertent or misconstrued contact, I am unable to provide the applicant with any such benefit.

CONCLUSIONS

83.	This has been a difficult and in some respects unpleasant case. It is indeed unfortunate that the long and apparently successful career of the applicant should end in the ignominy that is associated with the findings that I am compelled to make in this case.

84.

These matters have been advanced so as to primarily require the Commission to determine whether the employer's decision regarding substantiating incidents which gave rise to findings of serious misconduct on the part of the applicant, could be upheld following full Hearing by this Commission. Upon a careful and detailed examination of all of the evidence, the Commission must conclude that three particular allegations of serious misconduct made against the applicant are proven.

85.	The Commission finds that the applicant did, at some time during the week commencing 11 March 2002, make inappropriate and deliberate physical contact with the upper leg and thigh area of a female Year VII student.

86.

Further, the Commission finds that the applicant did on or about the afternoon of 13 March 2002, engage in an act of simulated male masturbation involving the stroking of a cardboard cylinder, and that this conduct occurred on a balcony of the school buildings in open view by other students and staff in the general vicinity.

87.	Further, the Commission finds that on or about 19 March 2002, the applicant did make inappropriate and deliberate physical contact with a Year VII female student, such physical contact involving the pinching of the student's buttock.

88.

The applicant's conduct in respect to the above actions constitutes, separately and collectively, serious misconduct of a nature which would require that the applicant not be permitted to be engaged in any occupation which would involve direct contact with children. Consequently the Commission is not prepared to disturb the employer's decision to revoke the applicant's approval to teach on a continuing basis.

89.

There was disturbing evidence that, as a consequence of the allegations underpinning these proceedings, the applicant had been subjected to anonymous abuse, threats and other vilification connected with suggestions that he was a paedophile. It must be stressed that the findings that are made of inappropriate physical contact with Year VII female students, and the simulated masturbation incident, cannot be translated into a basis for any allegation of paedophilia. There was no evidence provided to this Commission which could provide any basis for an allegation of paedophilia.

90.	The applicant's misconduct should not be either understated or exaggerated. The applicant pays a heavy price for his foolish and inappropriate conduct.

91.	The Commission is concerned about one particular aspect of this case which compels further mention.

92.

The applicant's blunt denials of the misconduct may have been a simple falsehood. However, the applicant may not have been deliberately untruthful in respect of his evidence of denial of the events as found. In the alternative, and as a somewhat more alarming prospect, the applicant may have some sub-conscious impediment which does not permit his conscious recall of these incidents. If this latter proposition be correct, it would seem that the applicant should seek assistance and undertake to not seek engagement in any employment that would involve direct contact with children. This is an issue for the applicant and the Federation to further consider.

93.

For completeness the Commission further concludes that the applicant was a class of employee exempt from access to the provisions of Part 6 of Chapter 2 of the Act, as he was an employee engaged under a contract of employment for a specified period of time, and that specified period was less than six months. Therefore Clause 6 of the Industrial Relations General Regulations 2001 operates so as to exempt the applicant from access to the unfair dismissal provisions of the Act. Consequently the unfair dismissal claim is dismissed.

94.

In respect of the notification of a dispute made in matter No. 3032 of 2003, the Commission declines to provide the Relief sought by the Federation in the dispute notification, and pursuant to section 162(2)(h) of the Act, the Commission considers that further proceedings would be frivolous or vexatious in view of the findings made in the related matter No. IRC 4266 of 2002. The dispute notification is therefore dismissed.

95.	Accordingly proceedings in these matters are now concluded.

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^[1] Transcript of proceedings, (02/06/03) @ page 36.

^[2] Transcript of proceedings, (04/06/03) @ page 9 .

^[3] Transcript of proceedings, (02/06/03) @ page 33.

^[4] Transcript of proceedings, (02/06/03) @ page 60.

^[5] Transcript of proceedings, (02/06/03) @ page 70.

^[6] Transcript of proceedings, (02 /06/03) @ pages 77-78.