1
[Extract from Queensland Government Industrial Gazette,
dated 23 September, 2005, Vol 180, No.4, pages 232-251]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 74 – application for reinstatement
Mr AA AND Blackheath and ThornburghCollege (B/2003/1280)
COMMISSIONER THOMPSON13 September 2005
Application for reinstatement – Witness evidence – Process flawed – Termination harsh, unjust and unreasonable – Reinstatement and compensation ordered.
DECISION
Preamble
An application for reinstatement was filed by Mr AA (applicant) with the Industrial Registrar on 7 August 2003 in which it was alleged that Blackheath and ThornburghCollege (respondent) had terminated his employment by summarily dismissing him on or about 17 July 2003.
He had been suspended on full pay from 21 January 2003 following allegations relating to criminal conduct which had been made against him by a student he had previously taught.
On 14 February 2003, he was charged on one count of sexual assault which on 15 May 2003 was substituted for a charge of indecent treatment of a child under sixteen years of age.
On or about 10 July 2003, committal proceedings in respect of the criminal charges were held in the Townsville Magistrates Court following which he was committed for trial to a criminal sitting of the Townsville District Court.
On 10 June 2004, correspondence from the Office of the Director of Public Prosecutions (DPP) was received by Counsel acting for Mr AA in the Criminal proceedings advising that a nolle prosequi had been entered on 9 June 2004 meaning that no outstanding charges remained against Mr AA.
The correspondence also stated that the Teachers’ Registration Board had been advised in writing that the prosecution was no longer proceeding against him.
In terms of this application, the matter was set down for hearing on 17 and 18 February 2005.
On that day, the parties, by agreement, sought to have the matter stood over to allow an agreement in principle to settle the application to be considered by the Board of the College.
The Board subsequently chose not to ratify the proposed agreement with the matter then going to hearing.
At the outset of the hearing proper, the parties raised issues in respect of protecting the identities of certain persons giving evidence before the Commission.
The Commission determined that, in the case of three (3) witnesses in the matter they would have their identities suppressed and would, for the record, be known as Mr AA, Miss BA and Ms BB.
The Commission would be closed to the general public whilst each of the abovementioned persons gave their evidence.
Applicant
The applicant was represented by Mr John Merrell, of Counsel, and relied upon evidence given by Ms Sarah Sellars and himself.
Mr AA
Mr AA, a teacher for some 32 years, had been in the employ of the respondent for over 15 years.
His evidence commenced with a categorical denial of the allegations against him relating to criminal misconduct.
Evidence went to the committal proceedings and the decision of the DPP to withdraw the charge against him and have entered a nolle prosequi.
On 18 July 2003, he received correspondence from the respondent advising that he had been summarily dismissed effective as of 17 July 2003.
As a result of the events, he and his family had suffered a great deal of shame and humiliation and, in his view, the treatment given to him by the college had been harsh, rendering his dismissal unfair.
Whilst he had attempted to mitigate his loss by finding other teaching work, he was unsuccessful and eventually found alternative employment as a taxi driver in Townsville.
It was Mr AA’s evidence that because of the allegations against him, he had been forced to move his family from ChartersTowers.
Mr AA, in his affidavit in reply, referred to allegations in respect of complaints from several parents, however, to his knowledge, he knew personally of only two such complaints.
He had never been afforded the opportunity to meet with the Executive Committee in relation to the complaints against him and had never been provided with any details as to why his employment was terminated.
The witness disputed evidence from Ms BB that he had been unprofessional in sexually touching her daughter (Miss BA).
The affidavit in reply also reiterated previous denials in relation to allegations from Miss BA and, at paragraph 4(b), went to a phone conversation with Ms BB:
“I admit that [Ms BB] telephoned me on 10 February 2003. At the time of receiving this phone call, I was not aware that it was a pre-text phone call involving the police. At no time during this call did I act unprofessional or unlawfully. At all times during the phone call, I maintained my innocence in relating to the allegations made by [Miss BA] and was polite to [Ms BB].”.
He also provided to the Commission his recollection of the meeting he attended with Mr Hugh Rose, and in the company of his solicitor.
At paragraph 6(f) of the affidavit, he stated:
“At the meeting with Mr Rose, I denied that I had touched any of the female students’ legs and I continue to deny this. In relation to the other comments regarding taking students to McDonald’s, it was asked by me and my solicitor to provide names and times of these supposed acts so that I could properly consider them. As no such particulars were given, I had to say that from my memory I couldn’t recall such an occasion.”.
Since his dismissal until 17 February 2005, his total gross income had been the sum of $44,681.48.
Cross-examination
The cross-examination of Mr AA was lengthy, occupying some 77 pages of transcript.
The witness, in the main, appeared to answer all the questions with an openness, although on some matters he experienced a degree of difficulty in recalling events of two years past.
A range of issues were canvassed in the process, including the following:
•Mr AA being charged with a criminal offence
•Notice attached to his records with Education Queensland
•CathedralSchool – teaching position and his failure to disclose charges against him at the time of securing employment.
•Continuity of employment with the College broken previously
•Practise of touching students
•Applicant’s failure to respond (at meeting with the Principal) to the allegations of Miss BA
•Providing of assistance to students seated in the classroom
•Placement (and types) of desks within the classroom
•Telling (by the applicant) of inappropriate jokes (page 78, line 20 of transcript):
“Walters:How could it possibly be appropriate in any subject to say to a school student, ‘How do you make a whore moan? You don’t pay her.’ How could that be appropriate? That was your joke, wasn’t it?
Mr AA:Yeah. I don’t think that – that’s – that was given as an extreme example of how far or how risqué or whatever my jokes ever got.
Walters:Well, you volunteered that to – – ?
Mr AA:Yes. I did.
Walters:– – Mr Rose?
Mr AA:Yes.”.
•Allegations of touching Miss BA (page 120, line 28 of transcript):
“Walters:Now – – ?
Mr AA:I might have been a bit emphatic in saying that I never touched her anywhere but I think it was implied some sort of sexual touching or something like that and so my answer was emphatic.
Walters:Well, are you trying to qualify that answer, that – that you didn’t mean that you never touched her at any time. That’s what you said in your affidavits, isn’t it? That you’d never touched her on any occasion?
Mr AA:I certainly don’t recall ever touching her on any – on any occasion.
Walters:Well – well, how can you now qualify that and say, oh, it was an emphatic way, just relating to a sexual way?
Mr AA:Well, you know, you can – you can bump into someone in a – in a doorway or something you know. That’s all I’m saying.
Walters:Well – – ?
Mr AA:As far as I’m concerned I never touched her anywhere but – you know – I – –”.
•Relationship with Miss BA (page 122, line 5 of transcript):
“Walters:Now, Mr AA, how did you get on with Miss BA as in a student teacher situation? How was your relationship with her?
Mr AA:Well, I was never aware that there were any difficulties in the relationship if – if that’s your question. It was a – a normal teaching relationship.
Walters:You never had any disagreements with her?
Mr AA:No. I don’t remember any.
Walters:You never had any need to discipline or punish her?
Mr AA:She was a very quiet, polite, well-behaved student. The only times I would have – I punished were, you know, that she didn’t always put in the sort of effort that I thought she should have done but other than that she was a – a – as I said, a quiet – a quiet student she didn’t draw particular attention to herself.
Walters:I – I’m just trying to see if you have any – any, perhaps, reason or motive that this girl would make such a damning accusation against you? Sometimes people there can be an animus, a dislike, a falling out. There was nothing like that between you and her, was there?
Mr AA:No.”.
•Police investigation
•Suspension from work
•Interview with Mr Rose (Principal).
Sellars
The other witness evidence relied upon by the applicant was that of Ms Sellars, a former student of the respondent who had been taught by Mr AA from 1999 to 2001 in the grades 8, 9 and 10.
Her evidence was that of a witness statement given to the Queensland Police Service on 19 February 2003.
The evidence went to her attendance at the college and to her relationship with Miss BA whilst at the college.
She stated that she considered Miss BA to be her “good friend” and that despite having had “our fights”, they had been pretty much best friends since grade 8.
They (Miss BA and Sellars) were both in mathematics classes taught by Mr AA and, at times, both students would sit together.
Ms Sellars described Mr AA as not a really strict teacher whose classes were relaxed as long as “we were doing our work”.
He was not an “overly touchy kind of person” although every now and then he may have put his hand on her shoulder when explaining certain points during lessons.
Mr AA had often provided assistance to both Miss BA and the witness in class.
In the Christmas holidays of 2002, she met up with Miss BA in ChartersTowers where she was informed that Miss BA had made a complaint against Mr AA and that she would be taking it further.
At paragraph 23 of her statement, she recalled what her comments to Miss BA were at that time:
“I told her that I thought Mr AA was a good teacher and she said she didn’t do very well with him. I told her I thought it may have been because of her work effort.”.
Cross-examination
Under cross-examination from Mr Harvey Walters, for the respondent, a number of questions were raised including:
•Contact with Mr AA since leaving Blackheath and ThornburghCollege
•Assistance provided by Mr AA in classroom situations
•Witness being upset at the allegations levelled against Mr AA
•Allegations by Miss BA against fellow (male) students bullying/harassing her
•Jokes told by Mr AA in class.
Respondent
In accordance with the final directions orders in this matter, the respondent tendered four (4) affidavits from witnesses from whom evidence would be adduced in the course of proceedings.
Of those witnesses, only Ms Jennifer Slaney appeared before the Commission without having an Attendance Notice served upon her.
Those other witnesses were Miss BA, Ms BB, and Mr Hugh Rose, each of whom had Notices served under rules 54 and 58 of the Industrial Relations (Tribunals) Rules 2000.
Slaney
Ms Slaney had been elected Chairperson of the Blackheath and Thornburgh College Executive Committee for the period March to August 2003.
In evidence, she stated that during the period in which she was the Chairperson, the committee received correspondence from several parents, teachers and children (including Miss BA) regarding inappropriate conduct towards young girls by Mr AA.
In response to the concerns raised in the correspondence, Ms Slaney, at paragraph 3 of her affidavit, stated:
“After much debate, over several meetings of the Executive Committee, and with due consideration, the Executive Committee decided to terminate the employment of Mr AA. This decision was not taken lightly but it was considered necessary in order to protect the students at the College and Blackheath & ThornburghCollege’s reputation.”.
Cross-examination
In cross-examination, significant issues covered included:
•Allegations against Mr AA (page 207, line 9 of transcript):
“Merrell:All right. But from what – the correspondence you’d received you’d agree with me that very serious allegations were being made against Mr AA; that’s right?
Slaney:Yes, that’s correct.
Merrell:Allegations involving criminal conduct?
Slaney:Inappropriate conduct – I don’t know – yeah, criminal I suppose, yes.
Merrell:Yes. And you’d agree with me that if there was proof that Mr AA had have been engaging in that conduct he could be dismissed?
Slaney:Yes.
Merrell:Yes. But before that decision could be made there had to be proof that he engaged in such conduct; that’s correct, from your position of chairman of the committee?
Slaney:We felt we had proof.
Merrell:Well, listen to my question. Before you could make a decision to dismiss him there had to be proof before the committee that he’d engaged – – ?
Slaney:Yes, yes.”.
•Investigation by Mr Rose of the complaint against Mr AA (page 211, line 40 of transcript):
“Merrell:You don’t recall. Did Mr Rose at any time produce a written report to the executive committee about his interview with Mr AA?
Slaney:Not that I recall.
Merrell:Did – at any time did he produce a report where he has made recommendations to the committee about whether he’d formed the view that Mr AA had engaged in inappropriate touching of – of any student or a student?
Slaney:I don’t recall Mr Rose writing any report.
Merrell:Was there any report before the committee where conclusions had been reached about people interviewed about the allegation against Miss BA?
Slaney:Could you repeat that?
Merrell:Was there any report before the committee where conclusions had been reached about the evidence as to whether Mr AA had engaged in – in any inappropriate touching of – of Miss BA?
Slaney:Not – I don’t think a report, no.”.
•Decision to terminate (page 220, line 35 of transcript):
“Merrell:Yes. Now, given that there’d been no investigation report that had been placed before you, given that you told me before that Mr Rose never gave any report about any denials that Mr AA had made to the allegations about Miss BA, wasn’t it the case that the decision that was made by the executive committee to terminate Mr AA’s employment was so solely on the basis that he had been committed for trial the day before?
Slaney:It’s my recollection that we had suspended Mr AA without pay, which we didn’t release was not correct proceedings, and we had – had to make a decision to reinstate or dismiss Mr AA and after this we decided that we would dismiss him and we paid the money that we owed him for – –
Merrell:So the decision to – – ?
Slaney:– – time we suspended – –
Merrell:– – to dismiss him made by the committee was made because he was suspended, on – without pay – but prompted by the fact that he’d been committed for trial in the Magistrates Court; is that right?
Slaney:Yes, it was prompted by that.”.
Rose
Mr Rose, an experienced Headmaster, was engaged as interim Principal of the College from March until June 2003.
At the time of taking up that appointment, the applicant was not known to him.
His evidence was that shortly after taking up the appointment, a number of complaints made by teachers, parents and children against Mr AA were brought to his attention by various staff and Executive Committee members.
The complaints, according to the witness, were allegations relating to inappropriate touching of young girls.
In line with his duty as Interim Principal, he convened a meeting to deal with matters pursuant to the allegations against Mr AA.
That meeting was held at the Principal’s residence on 13 March 2003 and attended by Mr AA, Ms Renee Bennett (Mr AA’s legal representative), Mr Paul Hefferan (the College Bursar), and the witness.
At annexure A of his affidavit, he attached a record of the meeting, which evidence identified Mr Hefferan as the minute taker.
It was the evidence of the witness that Mr AA had been given the opportunity to fully and openly discuss all issues, however he did not avail himself of the opportunity, but rather Ms Bennett made comments or refused to comment on the various issues raised in the course of the meeting.
Annexure A, which was headed “Strictly Confidential”, highlighted a range of issues subject to discussion at the meeting.
Included in this group were such matters as:
•Letter of 6 January 2002 from Ms BB regarding inappropriate behaviour towards her daughter (Miss BA).
•Letter of 1 February 2002 from Mr Ross Thomson (former Principal) regarding comments made publicly to students and the touching of students.
•Letter of 17 February 2003 from another parent alleging her daughter had been subjected to sexual harassment.
The applicant, according to the minutes, was required to provide responses to what were described as a plethora of verbal comments regarding Mr AA’s alleged inappropriate behaviour.
Note: A “rider” was contained within the minutes which stated that the verbal comments were not considered as they may not have any credibility.
Further on in the minutes, the following comment was attributed to Mr Rose:
“HR stated that he believed there were 2 options open to the school as [Mr AA’s] employer:
a)execute a summary dismissal or
b)to keep him employed under suspension without pay.”.
Ms Bennett, on behalf of Mr AA, according to the minutes, requested that the following be placed on record:
“a)that the allegations against [Mr AA] did not warrant summarily dismissal;
b)the allegations made by [Miss BA] have been dealt with by the school beforehand;
c)the employer owes [Mr AA] a duty of care;
d)the employer’s decision regarding [Mr AA] should not be made until after the criminal investigation has been heard by the Court.
e)(THE OTHER POINTS MENTIONED WERE TO BE CONFIRMED LATER BY LETTER).”.
The applicant, at the conclusion of the meeting, was advised that the school would communicate their position on either Monday 24 or Tuesday 25 March 2003.
Cross-examination
Mr Rose, during a lengthy period of cross-examination, was questioned on such matters as:
•complaints and allegations levelled against Mr AA;
•certified agreement provisions for reviewing unsatisfactory work performance;