Legislation : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA)

School Education Act 1999 (WA)

Balfour v Attorney-General [1990] NZCA 364; [1991] 1 NZLR 519

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Laws v London Chronicle (Indicators Newspapers) Ltd [1959] 2 All ER 285

McDonald v Kwik Express (Timemasters Pty Ltd) [2006] WAIRC 03603

Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W. A. Branch (1985) 65 WAIG 385

Newmont Australia Ltd v Australian Workers Union, WA Branch (1988) 68 WAIG 677

North v Television Corporation Ltd [1976] CthArbRp 1465; (1976) 11 ALR 599

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority of Western Australia [2017] WAIRC 00066

Trestrail v City of Karratha [2025] WAIRC 00820

1. On 6 January 2025, the applicant (Ms Warnock), filed a Form 2 - Unfair Dismissal Application (Form 2), in relation to her dismissal on 10 December 2024 as a Teacher at Merredin College, stating:

• 3.1 What reasons did your employer give for the dismissal?

1. Providing driving lessons to a student [who in these reasons will be referred to as AB]. 2. Allowing [AB] to perform chores at Ms Warnock's house to repay her for the damage he caused to her car. 3. Messaging [AB] during class to check on his whereabouts. 4. Driving [AB] home from extra-curricular activities.
2. In her Form 2, Ms Warnock states:

1. The [respondent's] decision to terminate Ms Warnock's employment was harsh and unreasonable. This is because the decision to dismiss was a disproportionate response to Ms Warnock's conduct.
2. It is unclear whether the Department had issued any directions, policies, or procedures that prohibited the conduct that the [respondent] relied upon to terminate Ms Warnock's employment. Ms Warnock would not have engaged in any of the conduct if she was aware that it may have created problems in her employment.
3. On 24 January 2025, the respondent filed a Form 2A - Employer Response to Unfair Dismissal Application, stating:

1. The respondent commenced the relevant disciplinary process on 15 May 2024 in response to information received that [Ms Warnock] might have breached professional boundaries with one of her year 12 students, [AB].
2. [Ms Warnock] was afforded procedural fairness throughout the disciplinary process.
3. The respondent's disciplinary findings were open based on the available evidence that was gathered through a disciplinary investigation that was conducted as part of the disciplinary process.

Response to section 3.2 of the application

1. As to [13], the respondent says that the decision to dismiss [Ms Warnock] was not harsh or unreasonable. [Ms Warnock's] conduct (which was not isolated) was a significant breach of professional boundaries with one of her students. The respondent's conclusion - that [Ms Warnock's] ongoing employment was untenable due to doubts about her suitability - was rational and justified the decision to dismiss.
2. The respondent does not accept [14] and says that [Ms Warnock's] conduct was a breach of the Department's Code of Conduct. Further, [Ms Warnock] had received relevant training (Accountable and Ethical Decision Making) in June 2022 on the importance of professional boundaries.
3. Further to the above, [Ms Warnock's] conduct was clearly at odds with the Teacher Registration Board of WA's [(TRBWA)] 'Teacher-Student Professional Boundary' publication, which is widely known throughout the teaching profession.
4. The parties agree that:

The overarching issue to be determined is whether the Respondent's right to terminate the contract of employment has been abused, such as to render the exercise of that right unfair. See: [Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W. A. Branch (1985) 65 WAIG 385 (Undercliffe)].

1. On 4 April 2025, the parties filed an Agreed Statement of Facts, stating:
   1. On 28 January 2018, [Ms Warnock] commenced employment with the Respondent as a Teacher at Merredin College.
   2. Ms Warnock is acquainted with [AB's mother, who in these reasons will be referred to as Mrs B, and references to Mrs B's family referred to as the B-family] and her son, [AB], through the Merredin Church of Christ. This pre-dated the student/teacher relationship between Ms Warnock and [AB].
   3. During 2024, [AB] was a Year 12 Student at Merredin College. Ms Warnock was [AB's] English teacher.

1. In 2024, Ms Warnock provided driving lessons to [AB]. This was to assist [AB] in learning how to drive and to obtain his driver's licence.
2. The driving lessons commenced on or before 5 April 2024. The driving lessons were conducted on a one-on-one basis in Ms Warnock's personal vehicle.
3. One of the driving lessons involved a return trip from Merredin to Perth.
4. After one driving lesson, on or about 5 April 2024, [AB] offered to give Ms Warnock his and [Mrs B's] personal mobile phone numbers.
5. At least one driving lesson took place before Ms Warnock had confirmed with [Mrs B], over Facebook Messenger, that she gave her permission. In response, [Mrs B] confirmed that she was okay with Ms Warnock providing driving lessons to [AB] after tutoring on Monday evenings. On a subsequent occasion, [Mrs B] gave permission for Ms Warnock to take [AB] on a driving lesson from Merredin to Perth and back.
6. During one of the driving lessons, on or before 5 April 2024, [AB] hit a curb. This caused damage to a tyre on Ms Warnock's car. [AB's] mother offered to pay for the damage. Ms Warnock rejected the offer. Ms Warnock suggested that [AB] could instead assist Ms Warnock with some chores at her home as compensation for the damage. [AB] and his mother agreed.
7. [AB] attended Ms Warnock's house on at least two occasions. On the first occasion, he assisted in moving some artificial turf and performing other gardening activities. On the second occasion, he chopped a load of firewood.
8. During a different driving lesson on around 27 April 2024, [AB] hit a gate when pulling into his driveway. This caused damage to the body of Ms Warnock's car. [Mrs B] offered to pay the $500 excess to cover Ms Warnock's out-of-pocket costs. Ms Warnock accepted [Mrs B's] offer. [Mrs B] transferred the $500 to Ms Warnock and then she submitted the insurance claim, including paying the excess. Ms Warnock's insurance repaired the damage.

1. On 22 April 2024, Ms Warnock was teaching her Year 12 English class. [AB] was supposed to be in the class but was absent without notice or explanation. Ms Warnock had seen [AB] at school earlier that day. During the class, Ms Warnock sent a text message to [AB] from her personal mobile phone to his personal mobile phone to ascertain his whereabouts.

1. On various occasions, Ms Warnock provided [AB] with a lift home after tutoring and the Repertory Club.

1. On 10 December 2024, the Respondent terminated Ms Warnock's employment without notice or payment in lieu of notice, for serious misconduct.
2. Ms Warnock was a permanent employee and was not on probation at the date of the dismissal.
3. Aside from the events that led to her dismissal, Ms Warnock had not previously been the subject of any disciplinary actions. She had an otherwise satisfactory employment record.
4. At the date of dismissal, [Ms Warnock's] gross salary was $111,476 per annum, being a salaried Teacher increment 2.6 under the School Education Act Employees' (Teachers and Administrators) General Agreement 2023 [(Agreement)].
5. Ms Warnock called Trevor John Stace, who gave the following evidence-in-chief:
   • (a) He has worked for the respondent since 2015. Previously, he worked for the Education Department for five years followed by seven years with the Catholic Education Office.
   • (b) Since the start of 2023, he has been the Head of Learning Area (HOLA) for English and the Humanities at Merredin College. He has been Ms Warnock's direct line manager since the beginning of 2024. He did not work with Ms Warnock in 2023 because she took the year off on a deferred salary arrangement.
   • (c) As Ms Warnock's line manager, he is responsible for ensuring that the curriculum is delivered appropriately, supporting Ms Warnock in carrying out her role and with behaviour management, and general day-to-day support of a teacher in his learning area.
   • (d) He is comfortable with Ms Warnock working in his department and has no concerns about her working with students. He is aware of Ms Warnock's values, ethics and character. He is also aware that she is a person of very deep faith and is very active in her church. She would go out of her way to help students. She is the type of teacher that cares and will do whatever she can to help somebody.
   • (e) 'However, as I said, a little bit naively, she might have crossed a boundary or two.'
   • (f) He became aware that Ms Warnock had been providing driving lessons to AB when he noticed some damage to her car in the carpark and asked her about it, at which time Ms Warnock mentioned the driving lessons.
   • (g) He had previously heard rumours from discussions around the staffroom that Ms Warnock was providing driving lessons to AB, but did not speak to Ms Warnock about it, because 'I was confident that she was behaving with the full consent of [AB's] mother, who is her friend'. 'It didn't register with me that, actually, that it was highly inappropriate.'
6. Mr Stace gave the following evidence under cross-examination:
   • (a) While he is aware that Ms Warnock was dismissed on the basis of unprofessional conduct regarding contact she had outside of the school with AB, and that the contact involved her giving AB driving lessons; he does not know how long the lessons went for or how often they occurred.
   • (b) He did not give permission for Ms Warnock to be in a car nor drive with AB. He did not give permission for Ms Warnock to have AB at her home to perform chores and was not aware that was occurring. He also did not give permission for Ms Warnock to swap personal phone numbers with AB and for her to text AB on that personal phone number.
   • (c) Ms Warnock did not discuss with him beforehand what she was intending to do and seek his views.
   • (d) He was Ms Warnock's supervisor for one term, being Term 1 of 2024.
   • (e) He agrees with what he said in the statement he provided to Standards and Integrity (SID) (Exhibit A1) that:

Our role is a unique profession and position which has certain professional boundaries, and we can't do these things others ordinarily would.

(f) He believes the statement above to be correct. It is an understanding that he has gained over 22 years of teaching. His knowledge arises from his learning at university in addition to his experience. He was a member of a WACOT (Western Australian College of Teaching, the predecessor body to the TRBWA) committee that oversaw professional conduct.

1. Mr Stace gave the following evidence under re-examination:
   • (a) It is normal for a teacher to develop their understanding of professional standards from university and from experience, although he is unfamiliar with what is now covered in the university courses.
   • (b) It is also important for there to be explicit induction at every school, and the Principal is currently developing an induction booklet for staff at Merredin College.
   • (c) Based on his experience when he started at Merredin College, he expects that when Ms Warnock started that she was provided with a copy of the Code of Conduct and asked to familiarise herself with it.
   • (d) He has not seen a detailed induction anywhere he has taught that 'really spells out all of your professional responsibilities'. In relation to professional standards and the relationship between teachers and students, there is 'nothing of any great depth'.
2. In answer to clarifying questions from the bench, Mr Stace said:
   • (a) Merredin College is a kindergarten to Year 12 school. In the secondary school there are two Deputy Principals, approximately 320 students, 20-30 teachers, three HOLAs, and a Teacher in Charge. Each HOLA or Teacher in Charge is responsible for approximately four or five teachers.
   • (b) In Exhibit A1, he said:

She has ultimately done her friend a favour and was teaching her son to drive. Our role is a unique profession and position which has certain professional boundaries, and we can't do these things others ordinarily would.

(c) By 'these things' he means that there are some things you might normally do for a friend such as teaching their child to drive, but as a teacher, if that friend's child is a student at your school, then 'you would have to go about seeking permissions for that to occur' and there are things that you have to say no to.

(d) At the time, it did not register with him that Ms Warnock providing driving lessons to AB was highly inappropriate. That is regrettable, because it should have. He accepts that it is highly inappropriate.

(e) His role is to oversee the day-to-day running of the department, ensure they are delivering the curriculum appropriately, managing students appropriately, and are behaving appropriately towards students. He had 'no inkling that there was any issue at all' with the way that Ms Warnock managed students. 'To the best of my understanding, things were fine.'

1. Ms Warnock gave the following evidence-in-chief:
   • (a) In January 2018, she commenced employment with the respondent at Merredin College. She primarily taught English but sometimes taught drama or HASS (Humanities and Social Sciences).
   • (b) She has known the B-family since she moved to Merredin in 2018. Mrs B was a regular attendee at her church, together with her two youngest children who were still in primary school at the time. In 2018, she had two of Mrs B's older children in her homeroom and taught one of them Year 10 English. During those first few years, one of Mrs B's older children 'was going through a pretty tough time, [so Mrs B] would regularly come and speak to me after church about [him] and his struggles at school' and she would give Mrs B encouragement, 'so we would talk quite regularly'. She and Mrs B were also in the same morning tea group at church which involved organising food and washing up afterwards. When she had an abundance of vegetables she was growing in her garden, she offered them to the church, and she would drop them off at Mrs B's house or pass them to her at church. Additionally, being part of a church community, she would sometimes make meals for the members, which included making meals for Mrs B and delivering them to Mrs B's house.
   • (c) She had previously taught AB in 2021 for a semester for Year 9 HASS.
   • (d) At a Follow the Dream session (after-school tutoring for indigenous students), at the end of Term 1 2024, AB mentioned that he wanted to be a driver in the army. She enquired whether he had his licence and he said that he did not because his mother does not like teaching him and his siblings how to drive. She said 'I give you a lift home after Follow the Dream anyway, if it's okay with your mum, maybe I can give you some driving lessons?'
   • (e) During the school holidays, she ran into AB at the hardware store (where he works) when she went to purchase some gardening supplies and asked him whether he had his learner's permit or logbook. He said that he had, and as he was going on his lunchbreak, she asked him if he had discussed it with his mum and if he wanted to do a driving lesson during his lunchbreak. AB said that it was okay with his mum, so she gave him a driving lesson.
   • (f) The next day, she followed up with Mrs B who confirmed that 'Yes, he did mention it' and 'it's fine with me.'
   • (g) Originally, she was providing AB with short driving lessons after school. After one of these lessons when she dropped AB home, she was chatting with Mrs B, who said she was too much of a control freak to teach her kids how to drive and asked her if she would 'take care of all of [AB's] driving lessons, and also, if I would be happy to do logbook hours with [one of Mrs B's] adult daughters.'
   • (h) The first driving lesson with AB was during lunchtime on 4 April 2024, which was during the school holidays between Term 1 and Term 2.
   • (i) She 'didn't want it to appear like it was something secret', so on the first day of Term 2, she spoke about providing driving lessons to AB with those in the humanities department who were present in the staffroom during a learning area meeting. She mentioned it 'partly because I didn't want people to raise questions if they saw me and him leaving the school in the same car.' She did not officially tell anyone but made it quite well-known around the school.
   • (j) They said 'Gee, that's brave, I wouldn't be that brave', which she took to mean that they would not be brave enough to have a learner driver in their car. No one said that she was not supposed to have students in the car nor that she should not be giving driving lessons.
   • (k) Just over a month after she first started providing driving lessons, on 10 May 2024, the Principal, Kylie Cattaway, approached her and said that she wanted to see her. She asked whether this was about the driving lessons with AB because 'why else would the Principal need to see me?' After school that day, she attended a meeting in Ms Cattaway's office with the Union representative attending as her support person.
   • (l) At the meeting, Ms Cattaway presented her with a list of concerns that had been raised, and they talked about them. Ms Cattaway explained that the driving lessons were not really appropriate as they are one-on-one and need to stop. To clarify where the line was, because in a small country town the line is rather blurred, she asked some questions. She said that her driving lessons involve an instructor-student relationship given in a car and she asked how that differed from the teachers who were on football teams with students and using the changerooms at the same time. Ms Cattaway told her it was not appropriate and that she had to stop. She said that she understood, and from that point stopped providing driving lessons to AB.
   • (m) Page 75 of the Agreed Bundle (Exhibit A2) is Ms Cattaway's notes of the meeting. It records the seven items of concern that were raised with her. It records that she had mentioned how she knew Mrs B and the B-family. She had mentioned it because she sees that as the cause; if she did not have a familiar relationship with Mrs B and the B-family then she would not have been giving driving lessons to a student.
   • (n) Ms Cattaway's notes record that she asked whether it would make a difference if AB's sister was in the car. She asked this because she was trying to find out where the boundary was. Her experience with other staff members is that they would be involved with students outside of school for various reasons so 'I was just trying to find where is the line, so that I don't cross it again.'
   • (o) When asked whether before this conversation with Ms Cattaway she had turned her mind to where the line in relation to [AB] is, she said:

I think, yes. Because you do hold in your mind, is - is this okay, as teachers do with everything. But because I knew his family, I thought that it was on the right side of the boundary. Just as, you know, there's a maths teacher, who coaches the junior - like, the colts football team. Um, so he's constantly got outside of school contact with, um, students. There's a number of staff members who actually play on the same netball team as students. So they're constantly, um, in group chats with students and seeing them outside of school. I've even had students confess that they were at Mad Monday activities with staff members.

I'll just - what's 'Mad Monday activities'? What's that?---Mad Monday is basically a big drinking session after the football grand final. Um, so having that as an example, I wanted to clarify where my driving lessons sat on this continuum of appropriate or not appropriate. And that's why I was asking clarifying questions, because I wanted to know, is it inappropriate because it's one-on-one with the student? And if there was a second person, would it be okay? Or is it inappropriate, just, full stop, because he is a student?

And Ms Cattaway's note says, 'I suggest that to manage perceptions, it would be best not to'. Is that your recollection of what Ms Cattaway said?---From what I recall, I think it was that she just said - she did talk about perception a lot. That some people may perceive it as something that it's not. And because of that, it would be best to stop. I can't remember her exact words.

(p) Ms Cattaway's notes record their discussion about the Repertory Club's mid-year production. The Repertory Club is the town's local theatre that puts on a play at least twice a year. Anyone in the town can audition to play a part in the production and there are other teachers in the Repertory Club. As the mid-year production was coming up and it was too late to pull out, she asked Ms Cattaway, either at this or a different meeting, whether it was okay for her to be in the play if AB was also in the play, and Ms Cattaway said 'as long as you're keeping your distance, it should be fine'.

(q) AB had performed chores at her house twice. The first time was during the Term 1 school holidays when he went to her house to feed her pet rabbits while she was away. The second time was closer to May 2024 when he chopped firewood for her.

(r) When asked about Ms Cattaway raising her communications with AB via SMS and what her recall of that discussion was, she said:

Yes. Um, she did bring it up. And I did say, 'Yes. I did message him during class to find out why he wasn't there'. Um, I did explain to her that it was because I had seen him in homeroom that morning, and then he wasn't in class. And this was very close to when he had had a PTSD episode a couple of weeks' prior. Um, so I was concerned, because I had seen him, not even, like, an hour ago, and then he wasn't at school. It wasn't in the system that he'd signed out. So I was a bit worried about where he was. And I understand, like, when I had that conversation, and I mean, even after the fact, that when I did it, I was like, 'Mm. Probably shouldn't be using my personal phone to message a student about their absences'. I should have just raised it with student services and said, 'Hey. [AB's] not in class', and they would've looked into it.

And did you stop communicating with [AB] via his phone number and your phone number after this?---Yes. Yep.

(s) When asked what her understanding was, prior to her meeting with Ms Cattaway, as to how her conduct fell within her responsibilities in relation to teacher-student professional boundaries, she said:

Yep. Um, so as I've said before, the - my only educational context as a teacher has been at Merredin College. And I have seen staff go beyond the classroom with many students. Um, whether - like I said, whether it's coaching, being on the same team as them, employing them. All sorts of things like that. So - and by 'employing', I mean as babysitters or doing yard work. That sort of thing. Not necessarily employing them at a business. Um, I am also very much a pastoral care person. That's from my background as a youth pastor and a chaplain. And my understanding was, yes, there are professional boundaries. We always need to keep that in mind. But we are also asked to look after the well-being of our students and provide pastoral care. I saw what I was doing as an extension of both my teacher job and as my, um, role in the church, to provide pastoral care to this family. It just so happened that it was driving lessons with [AB], um, that it came about. I - because I knew that my intentions weren't nefarious, I didn't think it was a breach of boundaries. Because I was doing it to help someone, I thought that it was on the right side of the continuum. I didn't think, prior to all of this being raised, that what I was doing was a problem, because also, nobody else had raised it as an issue. All I saw was the examples that I had had from other teachers - senior teachers, deputy principals, of this sort of behaviour. And so I thought that what I did was falling in the same category as what they did.

(t) When asked what her understanding is now of teacher-student professional boundaries and what occurred, she said:

Um, I understand that boundaries are different to what I thought they were. Um, that even though they were part of my church community, and I thought I was also wearing a church hat at the same time as a teacher hat, there is a - a different, um, standard to which teachers are held. Um, I had a conversation with, um, another teacher, who had been at Merredin College, and also at the church, and he said he went through a similar thing of having to realise that, um, just because it's something that you would do in a church capacity, it's not something that you can do as a teacher. And so I now have a better understanding that, um, the line is a lot closer than what I thought it was. Um, just because it's something that I think is appropriate, doesn't necessarily mean that it was. And, um, if anyone ever requests something outside of the classroom again, like, tutoring or something else, I would be more cautious, and definitely seeking advice from line managers and others as to whether or not it's appropriate for whatever activity it is.

(u) Follow the Dream is a program that the Department of Education has for indigenous students who are academically talented and looking at university. It involves two tutoring sessions a week, in addition to camps and excursions connecting the students to universities. She started tutoring with the Follow the Dream program in 2023 while she was on deferred salary leave for 12 months. She had been giving AB lifts home from Follow the Dream since she started tutoring in 2023. She never turned her mind to what driving AB home from Follow the Dream tutoring might mean in terms of professional boundaries, because:

Um, probably because it was common practice. So, um, students - like, teachers giving students a lift home from tutoring, it was, in my mind an extension of that tutoring. They were staying late. It's 5 o'clock. You know, they need to get home. They need to get home safely. Um, and so - yeah. It was just something that was done.

(v) She had not seen the Follow the Dream Enrolment Form (Exhibit R3) prior to her dismissal.

(w) On the first night of the Repertory Club play, AB arrived late, so the usual person who applies the make-up had left. She and some male cast members were backstage in the greenroom. They were going onstage in 15 minutes, so she applied AB's make-up.

(x) Prior to her meeting with Ms Cattaway, she drove AB home from rehearsals on three or four occasions. The rehearsals generally finished around 9:00pm.

(y) Since her dismissal, she has secured two part-time roles, on reduced pay. As the loan repayments on her house and car outweighed her post-dismissal income, she had to sell her house. The dismissal also had a huge impact on both her mental and physical health.

(z) If she was reinstated:

I would be a lot more mindful, um, of interactions with students outside of the classroom teaching role. Um, like, I was running camps, um, prior to this. Being the house coordinator. Doing the tutoring. All of those things, I would be a lot more cautious about. Um, but I would also be a lot more - I'd take the initiative more about checking with my line manager, you know, 'Is doing this okay?' Um, you know, 'A parent has requested that I tutor their student. Is that all right?' Um, 'It's this student and this is where we're going to meet, and how and why'. And I would, um - being aware of my own neurodivergence and my, um, blind spots, when it comes to, ah, social rules and - and unwritten rules, I would make sure that I am a lot more proactive in checking that something is okay before I do it.

1. Ms Warnock gave the following evidence under cross-examination:
   • (a) The driving lessons with AB started on 4 April 2024. After one of the drives, they swapped personal phone numbers. They messaged each other about arranging drives.
   • (b) Document 4 of the respondent's bundle (Exhibit R1) is the screenshot of the text messages between herself and AB on 22 April 2024:

(c) She accepts that there are more messages between herself and AB. She accepts that in AB's interview with SID he talks about messaging her in relation to driving lessons. She accepts that counsel for the respondent made a request for her to produce her text messages with AB and that her response was that she had deleted the messages and AB's phone number, because 'my understanding was that it was a bad thing to have. So after the investigation concluded in December, I deleted them off my phone'. This occurred before the Union confirmed that they would support her unfair dismissal claim. Other than the text messages exchanged on 22 April 2024 (at [11(b)] above), she did not take screenshots of the deleted messages.

(d) In light of everything, she accepts that it was inappropriate for her to message AB via personal phones. She accepts (and now understands) that one of the reasons why it is inappropriate to message a student via personal numbers is because that form of communication is unsupervised, and therefore, not open to scrutiny.

(e) She accepts that her language in the messages at [11(b)] above is informal. She does not accept that it demonstrates a familiarity between her and AB. She says the familiarity is 'no more than I would have with any other student', although she had not messaged any other student.

(f) Off the top of her head, there were probably between five to 10 more text messages between her and AB. She did not show those messages to anyone. She denies that she deleted the messages because she did not want anyone else to read them.

(g) The day prior to the message exchange at [11(b)] above, was Sunday, 21 April 2024.

(h) Page 116 of the Agreed Bundle is the logbook she wrote out:

(i) The drive from 1:44pm to ‍2:30pm was to Westonia.

(ii) The drive from 2:38pm to 3:25pm was back from Westonia.

(iii) The purpose of Westonia was to do a 'longer drive on highway driving.'

(iv) The drive from 4:46pm to 5:10pm was around town. On that day, after going to and from Westonia, AB chopped wood and did yard work at her house, and then 'on the way home, we did another lesson'.

(j) When asked if she accepts that there were extended periods of time when she was alone with AB in the car, she said:

What do you mean by 'public spaces'?---Well, we were always on roads where there were other road users able to view us at any time.

So between Merredin and Perth, was there ever a time where you were driving and there wasn't a car in sight?---Yes.

(i) The drive from 7:47am to 10:25am was when they left Merredin to travel to Perth and stopped at Mundaring. She took over the driving at Mundaring because AB had not driven in the city before and they were going on the freeway.

(ii) Between 10:25am and 4:05pm, she went to her naturopath appointment while AB waited in the waiting room, and she went to her second appointment which was in a shopping centre while AB did his own thing in the shopping centre. When she finished her appointment she texted AB, they got back in the car and then drove to Armadale to pick up something from her parents' house. They arrived there at approximately 3:50pm/3:55pm. AB waited in the car and her parents came out to say hello. AB drove when they left Armadale to Merredin 'because that way, he could get some city driving along the highway there'.

(iii) The drive from 4:05pm to 5:50pm was from Armadale to Northam where they stopped for dinner at McDonald's.

(iii) The drive from 6:20pm to 8:05pm was from Northam to Merredin.

(l) She accepts that being alone with a student for that period of time was a breach of professional boundaries as a teacher. When asked whether she accepts it was a serious breach of professional boundaries, she said:

Do you accept that being alone with your student for an extended period of time was a serious breach of professional boundaries?---I'm still unclear as to what a 'serious breach' is, because in my mind, I was still in the instructor-student relationship, as I was his driving instructor and he was my student. And also, there have been many instances in my career, and other teachers that I know, where they have had to be in the car alone with students before.

So do you accept that it was a serious breach of professional boundaries, or you don't accept that?---With the nature of the driving lessons, yes. Because this was not part of a school excursion. It was not driving lessons done as part of a school program. Um, so now that I have been made aware of it, I do think, yes, I should not have been alone with him in the car for that period of time for that particular activity.

(m) She accepts that her contract of employment requires her to remain familiar with guidelines about professional behaviour and accepts that the Code of Conduct is one of those documents.

(n) She is unfamiliar with the Department's 'Our Code of conduct and standards' document.

(o) She saw the TRBWA Teacher-Student Professional Boundary booklet (TRBWA Booklet) for the first time when Ms Cattaway showed it to her at their meeting on 10 May 2024.

(p) She does not recall completing the Accountable and Ethical Decision Making (AEDM) training on 26 March 2018 and on 23 June 2022. She knows she would have completed the training she just cannot recall when she last completed it.

(q) She does not recall completing the Child Protection and Abuse Prevention (CPAP) training on 8 February 2024. She said: 'These sorts of things, they come up, you do them, you forget about them.'

(r) She accepts that her behaviour, spending time one-on-one for an extended period of time with a student, in the circumstances, is a breach of the Code of Conduct.

(s) When asked whether she accepts that texting over the personal mobile phone was a breach of the Code of Conduct, she said:

That is a hard one. Because it was for student welfare and his well-being and his safety. Because he had had a PTSD episode a couple of weeks' prior, at the end of the first term. And so having seen him that morning, and then not seeing him in my classroom, and then not having any explanation as to why he was not there, I was concerned for his welfare.

(t) When asked again whether she accepts that texting over the personal mobile phone was a breach of the Code of Conduct, she said 'I should have done things differently. Yes.'

(u) She does not accept that AB performing chores at her house is a breach of professional boundaries. The first time AB came to perform chores at her house was to feed her pets when she was away. The second time, AB chopped wood, which was between 3:25pm and 4:46pm on 21 April 2024. While she was home at the time, he did not come inside the house.

(v) The slide from the AEDM training titled '4.4 Conduct Open to Misinterpretation' states:

Conduct, even well intended, may be observed by someone (a student, a parent, or a colleague) and perceived as inappropriate for a person working with children.

Staff should avoid being alone with a student and where it is unavoidable; do so with the informed consent of parents and school principal.

Staff should conduct themselves in a way that will not give others reason to question their fitness/suitability to teach and that will not create discomfort for their students.

(w) Having read the slide, she accepts that one of the key elements or overriding purposes of the procedures in relation to professional boundaries, is to protect herself and the Department from any misunderstanding. However, without having the benefit of reading the slide, she would not have thought that one of the purposes of professional boundaries was to avoid any misunderstanding that others might have of her and the Department.

(x) The slide asks:

Which of the behaviours would you consider unprofessional or inappropriate for someone working with children?

• Communicating or corresponding with students about sexual or personal feelings for the student
• Inviting a student to your home or attend theirs without a professional educational reason
• Giving a student money
• Meeting up with students at the local cinema or shopping centre
• Transporting a student in your car without parent and principal approval
• Invite students to join your personal social networking site or accept their invitation to join theirs

(y) When taken to the section of the slide that refers to 'inviting a student to your home or attend theirs without a professional educational reason' and asked whether she accepts that it is inappropriate to invite a student over to her home without a professional educational reason, she said:

So - but what - do you accept that it's a breach of professional boundaries or not?---It depends on the context.

So in your context?---In my context, I should not have had [AB] over at my house doing yard work.

(z) She accepts that, as the teacher, it is her responsibility to maintain professional boundaries.

(aa) The slide from the CPAP training titled 'Inappropriate relationships' states:

Establishing a relationship with a student for the purpose of committing child sexual abuse is considered to be 'grooming' behaviour. Grooming is intended to lower the resistance of the child in preparation for sexual abuse.

• offering personal gifts, special favours or special treatment
• adopting a welfare role that is the responsibility of another staff member e.g., a counsellor, or doing so without the knowledge of key staff members
• inviting or allowing a student or students to visit their home
• working outside of professional boundaries to find ways to see students alone
• being present when students dress or undress when not in a supervisory role
• developing a special relationship with a particular student
• participating in online chat room discussions with students
• phone/SMS contact with students
• after hours interactions with students without parental consent
• arranging time alone with a particular student
• driving a student unaccompanied, without knowledge and consent of key staff members
• conversations with students of a sexual nature.

Note: Staff should be aware that these behaviours towards students, while not illegal, may not be within professional boundaries. Refer to the Department's Staff Conduct and Discipline policy and procedures.

(bb) When asked whether she accepts that the CPAP training has identified the behaviours of 'inviting or allowing a student or students to visit their home', 'working outside of professional boundaries to find ways to see students alone' and 'developing a special relationship with a particular student' as inappropriate, she said:

I accept that it says if you're grooming, it is inappropriate to do these things.

So if you're not grooming - and again, that's not alleged, do you accept that those behaviours are still inappropriate?---No.

So you don't accept that they're inappropriate?---If you say that they're inappropriate for all staff members, then I would raise the question as to why staff members, who have children that are students, are allowed to have the students - their children's friends over their house. I would question why staff members are allowed to coach football teams, which is working outside of professional boundaries to see - like, sorry. Not that one. Um, a coaching relationship is a special relationship with students, especially if you take on a more mentorship role, or you're coaching that student one-on-one. There are a lot of ways - yes, these can be grooming behaviours. But there are also a lot of ways that teachers do these things in an innocent manner.

Correspondence of a personal nature including letters, email, phone, SMS text, and on social networking sites i.e. Facebook, Twitter etc. (not including class postcards or bereavement cards, etc.) is considered a violation of professional boundaries.

(dd) She accepts the above statement in certain contexts but not in all contexts.

(ee) She does not agree that having received the AEDM training and the CPAP training, it should have been clear to her that it was a breach of professional boundaries to:

(ii) Swap personal phone numbers with AB and texting him.

(iii) Invite AB to her home or arrange for him to be doing chores at her house.

(ff) She maintains that it was unclear to her that her conduct was a breach of professional boundaries.

(gg) When asked if she accepts that driving to and from Perth, spending that time alone, was open to misinterpretation, she said:

At the time that it happened, I didn't think that it was. All I thought was that people would think I am helping out a family friend. With hindsight, I see now how this behaviour can be open to misinterpretation. I have done a lot of self-reflecting in this whole process, since that first meeting with [Ms Cattaway], when it was raised that these were issues. And I understand now how these sorts of things can be misinterpreted by people like students or parents or colleagues, because obviously they have been misinterpreted. But at the time, that is not a thought that crossed my mind, because I had pure intentions. All I thought was, 'I am helping out a family friend'.

And do you accept that there's also - by engaging in that activity - I'm talking about the driving, that that posed a risk to the Department's reputation as well?---It didn't cross my mind at the time.

(hh) She accepts that the relationship between a teacher and a student is not equal and that there is a power imbalance.

(ii) When asked whether the risks associated with the driving arrangement should have been obvious to her at the time, she said:

So the risks that I considered were his safety, in the sense that I got comprehensive car insurance. At no point did I ever think he would owe me anything for these lessons. They were voluntarily entered into. There was no mention of payment or repayment. When the two accidents did happen, the tyre, and then the run-in with the gate, I never asked for money. [Mrs B] offered. In the first instance, I said, 'No. Let's do yard work in exchange instead'. The second instance, I accepted her offer to pay the insurance excess. But in no way did I ever think [AB] would owe me anything for this.

(jj) She accepts that driving with AB would have continued if Ms Cattaway did not speak to her about it. In fact, she had spoken with Mrs B about another trip to Perth for AB to get his eyes tested. AB had said that the speed signs were difficult to see. It was her plan for AB to drive to Perth despite this, because she felt he had been a good driver. While there were two accidents, she said 'that's what happens when you have a learner diver in the car. Sometimes, they misjudge things'.

(kk) She went through the TRBWA Booklet very thoroughly after Ms Cattaway gave it to her. When asked if she accepts that the TRBWA Booklet warns against driving one-on-one with a student she said:

That booklet does not take into account the context of a small town. It may have a section on there about, 'Yes, you live in regional areas', but it is, in no way, ah - any teacher that you speak to, that works in a country school, in a small country town, will say that that booklet is not something that country teachers can stick to.

So what's your opinion though? Is it fit for purpose, that booklet?---No.

It's a - - -?---And - and I would - I would actually go to argue that the TRB didn't think it was fit for purpose, because it has, just recently, in the last year, revised it and added in additional caveats about not being friends with parents, not being alone with car - in cars with students. They have been added since this investigation.

So do you accept that the new booklet is fit for purpose?---It still does not take into account a small town context.

Right. The old booklet that we're talking about, the one that's been filed in this [proceeding], that does talk about rural towns, though, doesn't it?---It talks about rural towns, but it doesn't understand it.

(ll) The Expert Report of Dr Ian Sherman dated 13 August 2025 (Exhibit A6) records that Dr Sherman had 'asked her whether she felt that, in retrospect, she had gotten too close to [AB]. She said she does not think so'. When asked what she thinks now, she said that she still does not think that she had gotten too close to AB.

(mm) In relation to telling Dr Sherman (Exhibit A6 [19.31]) that she had 'thought about every safety in relation to [AB], except my reputation. My thinking was I'm not planning on having sex with this student, so there's nothing wrong with what I'm doing', she said:

The context of that comment was, at the time, I didn't think about - think what I was doing was wrong, because my motivations were not that way inclined. So that comment is not me saying, now, that's what I think. The comment was, at the time, that's what my thinking was.

(nn) She last consulted with a psychologist at the beginning of 2025 and has not booked any other appointments since. However, she is currently taking anti-depressant medication.

(oo) In relation to the Repertory Club, she agrees that Ms Cattaway having warned her to keep her distance from AB that in hindsight, she should not have applied AB's make-up and she should have gone and tried to find somebody else to do it.

1. Ms Warnock gave the following evidence under re-examination:
   • (a) The TRBWA Booklet states the following in relation to rural towns:

Is it ever acceptable for a teacher to socialise with a student or students?

Social engagements are an important part of community life in small towns or rural communities, and indeed in larger communities, and contribute positively to the wellbeing of teachers working in these communities.

Teachers involved in social or sporting groups, or working in small towns or rural communities face additional challenges in managing professional boundaries with students and their families. They are more likely to have social relationships with the parents of the students who attend their school and are therefore more likely to see their students out of school hours, in social or sporting settings, or at various community clubs or associations.

The situation may also arise where there is likely interaction between students and teachers outside school (for example, in some faith-based schools where the school and church community are intertwined). Similarly, the situation may arise at social events where the children or families of other teachers are also present, and where the children are students at the schools where the unrelated teachers teach.

This means that teachers will have legitimate reasons, on occasions, to attend social or sporting events which are also attended by students that they teach. It is also possible that they will visit students' homes or be visited by them, due to the teacher's social or sporting connections with students' parents or older, adult siblings. Teachers should generally avoid being in these situations with their students, unless they are in the company of other adults.

The recommendations below may assist teachers to enjoy these social or sporting engagements without compromising their professional responsibilities or crossing professional boundaries:

» Social contact should be generated via the relationship the teacher has with the event organisers (such as a social or sporting event) or parents/carers or adult siblings of students.

» Teachers should avoid being alone with their students in these situations and where it is unavoidable, do so with the informed consent of parents.

» Teachers should conduct themselves in a way that will not give others reason to question their fitness/suitability to teach and that will not create discomfort for their students.

» Consuming alcohol in these situations may lessen a teacher's capacity to judge when a professional boundary is at risk, so alcohol consumption should be avoided or limited.

» Teachers should politely avoid discussing matters relating to their workplace and should not discuss any student's learning or progress, at social or sporting occasions.

» Any concern a teacher has about whether or not a situation may be compromising or may breach professional boundaries should be disclosed to a senior/supervising colleague or their principal in advance, and an approved plan of action prepared and followed.

(b) While the TRBWA Booklet does cover some of the parts of being a rural teacher, it is saying to generally avoid these situations, unless in the company of other adults, which is very hard to do in a rural town.

(c) The TRBWA Booklet asks the question 'Is it ever acceptable for a teacher to socialise with a student or students?' but does not actually answer the question.

(d) The TRBWA Booklet describes situations that arise in rural towns but does not give an evaluation; it does not outline what is acceptable and what is not acceptable.

(e) The line that 'Teachers should generally avoid being in these situations with their students, unless they are in the company of other adults' gives a little bit of direction, but it is not necessarily feasible in a country town.

(f) She did not see the TRBWA Booklet until Ms Cattaway provided it to her on 10 May 2024. If she had read the TRBWA Booklet beforehand, she would have put a pause on things and would have gone and sought somebody else's opinion on whether what she was doing was appropriate or not.

(g) She has no bookings to see a psychologist because she was seeing a psychologist for 2023 and parts of 2024, but the psychologist 'was happy with how I progressed and basically graduated me from seeing her. She said I didn't need to go back and see her anymore.'

(h) In relation to Dr Sherman's report and his recommendations, she said:

He was very fixated, during those four hours, on my depression. He didn't understand the nuances that come from being a - a practicing Christian and the faith that I have. Um, the whole interview was rather odd, because he was supposed to be assessing me for autism and ADHD, and he was just so narrow focused on my depression and whether I felt hopeless and whether I, ah, was seeing people and what medication I was on.

1. In answer to clarifying questions from the bench, Ms Warnock said:
   • (a) Previously, she only had compulsory third party insurance on her car. She took out comprehensive car insurance prior to offering the driving lessons.
   • (b) She did not have a conversation with Mrs B or AB about what would happen if AB crashed her car.
   • (c) She did not ask for any payment for the driving lessons or for the fuel.
   • (d) After the accident, she did not ask for any money. It was Mrs B who offered.
2. Ms Cattaway gave the following evidence-in-chief:
   • (a) She has worked for the respondent for at least 24 years.
   • (b) Since the start of 2024, she has been the Principal at Merredin College.
   • (c) Previously, she held various Associate Principal positions at Piara Waters in Perth, Newton Moore Senior High School in Bunbury, and Kalgoorlie-Boulder Community High School in Kalgoorlie.
   • (d) She met with Ms Warnock on 10 May 2024 to discuss the concerns that had been raised with her by other staff members. The concerns had been raised with her both verbally and via email. This included the email from Zane Walker dated Tuesday, 7 May 2024. She also received other emails, all of which she forwarded to SID (Exhibit R2).
   • (e) Mrs B had also made contact and arranged a meeting which took place on 9 May 2024. Mrs B was concerned about AB and Ms Warnock's interactions. She was not concerned there was any wrongdoing, but she felt there could be some lines that had been crossed and that AB could potentially place Ms Warnock in a vulnerable situation, and that she was concerned about the whole situation. She took notes at the meeting. This included Mrs B stating that 'I know [Ms Warnock] has crossed the lines.'
3. Ms Cattaway gave the following evidence under cross-examination:
   • (a) She started as a teacher in 1995 and became an administrator in 2000.
   • (b) She was Associate Principal at Piara Waters for about 18 months, then in Bunbury for about nine years, and following that was in Kalgoorlie for nearly 18 years.
   • (c) While Bunbury and Kalgoorlie are regional towns, Merredin is the smallest community that she has resided in. She accepts that in regional towns, you often have staff members who might have their children at the school so there are opportunities for conflicts of interest to be managed.
   • (d) She accepts that in a regional town, there is an increased likelihood of students and teachers interacting outside of the school context, such as at community events. Examples in Merredin would include teachers and students playing on the same sporting teams, or a teacher may be shopping at the local shop or going to the local cinema and a student would be serving them.
   • (e) As an educator, she considers that you would be informed around working with children and would avoid situations that might put you into a difficult position. Even in a classroom. They often have conversations that if you are going to sit in a classroom with a child that you should leave the door open or make sure someone knows you are there; it is 'common practice to not place yourself in those positions'.
   • (f) While the frequency of the intermingling between students and teachers in a social or sporting context may happen more in a regional town than a metropolitan area, in her experience and having worked in regional areas, it is well-managed and there are transparent conversations in those settings.
   • (g) For example, when she was private tutoring in Kalgoorlie, she was advised to not do it on the school site and to declare it to the parents beforehand.
   • (h) On her first day at Merredin College, the Deputy Principal presented to all staff about communicating with students in the IGA when people can overhear.
   • (i) Another example involved a staff member asking her whether it would be a conflict of interest for a student to work on their farm. After they discussed it, the staff member ended up not hiring the child.
   • (j) If she went to the local pharmacy and a student was serving her and she did not want the student to see what medication she was taking, she would ask to present the script to someone else rather than the child.
   • (k) She is aware that some of the teachers are involved in the Repertory Club.
   • (l) However, as the Principal, she would hold staff members accountable to not place themselves in vulnerable positions. The onus is on the employee to not place themselves in a vulnerable position.
   • (m) While a teacher may hire a child to work on their farm or to be their babysitter, that connection is through the adults knowing each other, that relationship is not just the teacher and the child. In the example of babysitting, her advice is to do that through the adults; if you know the adult you might use their children for that services, but you do not recruit the children from within your work as a teacher.
   • (n) She queries whether the staff members who were aware of Ms Warnock giving driving lessons and not having discussed it with Ms Warnock, are the same people that reported their concerns to her. However, sometimes it takes people time to process and contemplate whether it sits comfortably with them and whether they need to report it. Sometimes people need to consult with line managers, friends or colleagues to determine whether they need to report it.
   • (o) She did not know that Ms Warnock or any other teachers had been driving students home from Follow the Dream.
   • (p) Her concern about Ms Warnock giving driving lessons was the fact that it was a one-on-one situation. Regardless of how innocent or kind-minded it is for Ms Warnock to offer driving lessons, given it was a one-on-one situation then any allegation that a student can make will put a staff member in a vulnerable position.
   • (q) Staff had brought their concerns to her, so the perceptions of the situation were already concerning for people.
   • (r) She had not received any information to say there was wrongdoing. Her concern was the potential for allegations to be raised that could put Ms Warnock in a compromising position.
   • (s) She does not accept that it is just about the perceptions; she says it is inbuilt into the conduct of a teacher to keep professional boundaries between students and staff. It is not just how it looks, but also the vulnerable position that you put yourself in.
   • (t) Her direction to Ms Warnock about the driving was that it had to stop. Her direction to Ms Warnock about the Repertory Club was different because there are a group of people involved with the Repertory Club, so her direction was that Ms Warnock could continue with it but she needed to be more aware.
   • (u) She asked Ms Warnock about friending students on social media and Ms Warnock told her that her account was private and people can only see her account if they are friends of friends.
   • (v) She asked Ms Warnock if she had messaged AB during a class and Ms Warnock admitted that she had. She thinks that is crossing boundaries because texting a student's personal phone is of a personal nature. Communications with a student is through their email address and is about assessments or following up on work. If it is about attendance, the communication should be with the parent and not with the child. In any event, communication about attendance is managed through Administration.
   • (w) In relation to the text message at [11(b)] above, she is not as concerned about the content of the message, but about the means by which that communication occurred. Communication through an SMS raises concerns because it is of a personal nature, whereas the same conversation occurring in a classroom would not raise concerns for her.
   • (x) Ms Warnock's language in the text is not overly professional. She expects a bit more professional communication, but SMS lends itself to emojis and abbreviations; which is personal communication.
   • (y) At the meeting on 10 May 2024, she discussed with Ms Warnock the risks associated with having AB doing yard work. The risk is the one-on-one situation, with Ms Warnock being one person in the house and AB being one person in the yard, there are no witnesses or anyone else that can confer as to what is happening in case an allegation is raised.
   • (z) She had concerns about the whole connection. AB was doing yard work to pay back the driving lessons. For a staff member, she would expect the friendship is through the parent and not with the child. If Ms Warnock had needed garden work and she was working through Mrs B and Mrs B had organised it, that would be different. Her concern was that AB was paying back garden work for driving lessons.
   • (aa) Even if Mrs B was aware of and approved AB performing yard work, she would still have a concern about it because of the one-on-one scenario permitting any allegations to come up. She would still speak to a staff member about it and advise them against it.
   • (bb) SID's investigation report records her as saying that after counselling Ms Warnock on 10 May 2024 she was concerned Ms Warnock was going to continue with driving AB around. She did not hold concerns that Ms Warnock was necessarily going to continue driving AB around, her concerns were that instead of accepting the direction to stop, Ms Warnock asked a number of clarifying questions such as whether she could continue if she had someone else in the car. It appeared to her that Ms Warnock was trying to find ways around the direction, which is what raised concerns for her. In her mind, she questioned whether Ms Warnock fully understood the importance of professional boundaries, which could lead to her continuing the behaviour.
4. Ms Cattaway gave the following evidence under re-examination:
   • (a) The 15 May 2024 order made under s 240 of the School Education Act 1999 (WA) ordering Ms Warnock to leave Merredin College and remain away until further notice, was not a decision she made but a decision made by the respondent. Her role was to meet with Ms Warnock, provide her with a copy of the s 240 letter, accompany her to collect her personal belongings, and then accompany her to leave the site.
   • (b) When she reported the matter to SID, they take over and she no longer has delegated authority in the disciplinary process; she is required to act on SID's behalf and follow their instruction. When she met with Ms Warnock on 10 May 2024, she had already reported the matter to SID and informed Ms Warnock of doing so during the meeting on 10 May 2024.
5. Ms Warnock's expert witness, Dr Sherman was not required for cross-examination with his Expert Report tendered as Exhibit A6.
6. The respondent called Zane Walker (Ms Walker), Danielle Megan Clark (Ms Clark) and Laura Wimsett (Ms Wimsett).
7. Ms Walker gave the following evidence:
   • (a) She has worked as a teacher at Merredin College since 2008.
   • (b) She has served as the Follow the Dream Champion for three years which involves her organising after-school tutoring on Mondays and Tuesdays.
   • (c) AB was a participant. Ms Warnock was one of the five tutors, and tutored on Mondays.
   • (d) On each day, she tries to schedule a maths tutor and an English tutor.
   • (e) The Follow the Dream Enrolment Form (Exhibit R3), states:

Regular transport home after tuition needs to be organized by students and their families. In the event my child cannot obtain transport home from a parent/carer, and they are unwell, injured, or due to bad weather, I give permission for my child to be transported home via a Merredin College Vehicle, or in the case of an emergency a Merredin College staff member's private vehicle. Any emergency transport required we will try to communicate this to families as soon as possible.

(f) She sent Ms Cattaway an email on 7 May 2024 outlining her concerns. The context was that she thought it was a bit odd that in week 3 of Term 2 (Monday, 29 April 2024: Exhibit R4) for Ms Warnock to tutor AB in maths when she was there as the English tutor. On the Wednesday (1 May 2024), she walked past Ms Warnock's car and Ms Warnock said that she was teaching AB to drive and that they had done a day trip to Perth together on the weekend and AB had crashed her car. Finally, she thought it was odd that on the Tuesday in week 4 of Term 2 (Tuesday, 7 May 2024: Exhibit R4) for Ms Warnock to attend tutoring when it was not her rostered day, and drive AB home. She thought there must have been communication between AB and Ms Warnock for her to pick him up from tutoring and take him home on her non-tutoring day.

(g) If it was the case that AB and another student had requested Ms Warnock to assist them with the maths ESTs (Externally Set Tasks) but the other student did not show up at tutoring, and she was in Ms Warnock's shoes, she would have given the ESTs to Justin Roberts (Mr Roberts), the trained maths teacher, and asked Mr Roberts to work through the EST with AB. Mr Roberts is university qualified to teach maths whilst Ms Warnock is not, and Ms Warnock has no experience in teaching maths.

(h) She can count on one hand the number of times in three years that a child has been dropped home after Follow the Dream tutoring.

(i) She thought it was odd for Ms Warnock to tutor AB in maths on the Monday but did not speak to Ms Warnock about it at the time. On the Wednesday, Ms Warnock told her that she was giving AB driving lessons. On the Thursday, she spoke with the maths tutor (Mr Roberts, who confirmed to her that he thought it was odd too for Ms Warnock to tutor AB in maths), and on the Friday, she spoke with the Deputy Principal (David O'Neill) who told her that she needed to share her concerns with Ms Cattaway. She accepts that she could have spoken with Ms Warnock about her concerns, but by that time she realised it was not for her to raise her concerns with Ms Warnock but with those 'higher up'.

(j) She had no managerial responsibility over Ms Warnock.

1. Ms Clark gave the following evidence:
   • (a) She is a teacher at Merredin College and started working there in Term 1, 2024. Previously she worked as a teacher in England.
   • (b) She was AB's homeroom teacher. They had homeroom every Monday, Tuesday, Thursday and Friday. Ms Warnock was the house coordinator for the house factions.
   • (c) Ms Warnock would come into the homeroom every day to speak with AB. She confided with a colleague that she was concerned about this and the colleague told her to provide a statement to SID.
   • (d) She accepts that Ms Warnock was in charge of going around to several homerooms. She accepts that when Ms Warnock attended her homeroom, she provided her with assistance as a new teacher when she needed it, and that she did have a need for Ms Warnock's assistance because she had some difficult students in her homeroom.
   • (e) On one occasion she saw Ms Warnock lean on the table in front of AB with her elbow and they were 'quite face-to-face'.
   • (f) She accepts that other than that one occasion that Ms Warnock would be standing with a table in between her and AB.
2. Ms Wimsett gave the following evidence:
   • (a) She is the Principal Project Officer in charge of the Department's online professional learning systems and has been in the position for close to three years.
   • (b) The AEDM training (Exhibit R6) is mandatory, and all staff are required to complete it within six months of appointment and to repeat it every three years. Ms Warnock's online learning records (Exhibit R5) indicate that she completed the AEDM training on 26 March 2018 and 23 June 2022.
   • (c) The CPAP training (Exhibit R7) is mandatory, and all staff are required to complete it every three years. Ms Warnock's online learning records (Exhibit R5) indicate that she completed the CPAP training on 17 February 2018, 4 February 2021 and 8 February 2024.
   • (d) The Department's 'Our Code of conduct and standards' document is available on the Department's public website and on the intranet (Ikon). It is a more complete version of the Code of Conduct.

1. On 17 June 2025, the respondent filed written submissions, stating:

2.1 Dismissal without notice and task of the Commission

1. [Ms Warnock] was dismissed from employment, after following a disciplinary process, pursuant to Part V of the [PSM Act]: Which applies to teachers by virtue of s 239(1)(a)(i) of the School Education Act 1999. Further, [Ms Warnock] was dismissed without notice, or payment in lieu thereof, pursuant to clause 11(4)(a) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (Award) on the basis that the breach of discipline amounted to serious misconduct: Noting the definition of 'serious misconduct' under clause 11(4)(b) of the Award.
2. [Ms Warnock] has emphasised that she was dismissed without notice. The Respondent accepts that, having dismissed [Ms Warnock] without notice, he bears the evidentiary burden, in the application, to establish the facts underpinning the misconduct: Newmont Australia Ltd v Australian Workers Union, WA Branch (1988) 68 WAIG 677 [(Newmont)]. However, the application of this principle is somewhat redundant in this application as the core factual elements of the misconduct are not in dispute. Therefore, it is open for the Commission to conclude that the Respondent, following a thorough disciplinary investigation, had a genuine belief that the misconduct, the subject of the disciplinary findings, occurred and that dismissal was warranted: Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 [(Bi-Lo)].
3. Ultimately, the overarching test in this application is whether, in all the circumstances, the dismissal of [Ms Warnock] constituted an abuse of the Respondent's right to terminate the contract of employment: [Undercliffe].
4. In applying this approach, the Commission is not to take a rigid approach, and all factors of the case must be considered consistent with the requirement to act in accordance with equity, good conscience and the substantial merits of the case: See, for example, [McDonald] v Kwik Express (Timemasters Pty Ltd) [2006] WAIRC 03603 at [13]. It follows, even if the Commission is of the view that [Ms Warnock's] conduct did not justify dismissal without notice, it should still refuse to reinstate [Ms Warnock] on the basis that the conduct warrants dismissal and/or that reinstatement is impracticable.
5. On proportionality, the respondent submits: (references to Ms Warnock's written submissions omitted)
   1. As stated above, the Respondent's doubts regarding [Ms Warnock's] discretion and judgement in relation to professional boundaries were justified. When considering the Respondent's duty of care towards students in Department of Education Schools, and the risk of harm associated with a teacher's breach of professional boundaries, it was appropriate for the Respondent to take a position that prioritised the interests of students over [Ms Warnock's] interests: Balfour v Attorney-General [1990] NZCA 364; [1991] 1 NZLR 519 at 524
   2. Moreover, [Ms Warnock's] submissions in this application have served to reinforce and magnify the Respondent's concerns. That is, as above, not only does [Ms Warnock] not accept that her conduct was a breach of professional boundaries, but she also submits that 'all' her conduct was a demonstration of her performing a purported fundamental duty of [sic] term of her employment. Similar submissions were made in relation to her contacting [AB] via text message and giving [AB] lifts home.
   3. Put simply, [Ms Warnock's] fundamental misunderstanding regarding an essential term of her contract is cause alone to not reinstate her to into a teaching position.

1. The respondent maintains its written submissions, especially [6]-[7], which provide a high-level overview of the respondent's case: (footnotes omitted)
   1. The Respondent's position is that [Ms Warnock's] conduct was a very serious matter as she breached professional boundaries with her student in objective ways that created a significant risk to her, to [AB], and to the Department's good reputation. Some of those risks materialised, such as when [AB] damaged her vehicle resulting in him being in an implied financial debt to his English teacher. Alarmingly, the first accident did not cause [Ms Warnock] to reflect and put a stop to the situation. Rather, household chores were arranged as payment for the damage and the driving continued. In view of this, and all the elements of the misconduct, the Respondent's significant doubts about [Ms Warnock's] discretion and judgement in relation to professional boundaries were justified and formed a reasonable basis to terminate her employment.
   2. The above doubts are magnified by [Ms Warnock's] position in this Application. That is, having the benefit of time to reflect on her actions, [Ms Warnock] submits that all her conduct was an example of her providing 'pastoral care' to [AB], which was a 'fundamental duty of her employment as a teacher'. This demonstrates a significant lack of insight into her behaviour and a fundamental lack of understanding of her role as a teacher, which reinforces the Respondent's position that, due to a lack of discretion and judgement, [Ms Warnock] should not be employed as a state school teacher.
2. After Mr Stace's and Ms Warnock's evidence was given, Ms Warnock conceded that her conduct breached professional boundaries. The respondent says there was a serious breach. The conduct is not on the margins of acceptability, where there may be doubt. The conduct is not an unavoidable outcome of living in a small town and is patently inappropriate.
3. There is no ambiguity in relation to the appropriateness of Ms Warnock's conduct in any of the following:
   • (a) AEDM training (Exhibit R6).
   • (b) CPAP training (Exhibit R7).
   • (c) Code of Conduct (Exhibit R8).
   • (d) Our Code of conduct and standards (Exhibit R9).
   • (e) TRBWA Booklet (Exhibit R1: Document 3).
4. These documents make it clear that professional boundaries are not just put in place to protect the safety of student; they are put in place to avoid misunderstandings. Avoiding conduct that would cause a misunderstanding eliminates the need to analyse a teacher's intention as no questions arise.
5. It is trite that the relationship between a teacher and a student is not equal, and therefore open to scrutiny; as it should be. The boundaries are in place to protect the teacher, the Department and the student.
6. Notably, Ms Warnock did not call Mrs B as a witness, and therefore the appropriate inference can be drawn that Mrs B's evidence would not have assisted Ms Warnock's case. Regardless, a teacher dealing with a student outside of school hours, whether in a sporting or drama context, or where the student is a family friend, still needs to maintain teacher professional boundaries.
7. The small town context does not excuse the arrangement. If anything, there is a greater need for vigilance with professional boundaries in that context.
8. Ms Warnock's conduct was completely avoidable.
9. After hearing all of the evidence, the respondent's concerns about Ms Warnock's suitability for employment as a teacher remains.
10. Significantly, 10 months after her dismissal, Ms Warnock opened her case arguing that her conduct did not amount to a breach of professional boundaries. Only after Mr Stace referred to Ms Warnock's conduct as highly inappropriate and Ms Warnock accepted in cross-examination that her conduct did amount to a breach of professional standards, was the concession made that her conduct constituted a breach of professional boundaries.
11. Despite this, during cross-examination, Ms Warnock was quick to characterise her time in the car with AB as 'in public' and would not accept that it should have been obvious to her at the time that the conduct was inappropriate. When meeting with Dr Sherman, Ms Warnock did not accept that she had gotten too close to AB. She described the training as things you do and forget. She was particularly critical of the TRBWA Booklet.
12. While applying AB's make-up at the Repertory Club performance did not form any disciplinary findings, Ms Warnock agreed that she applied AB's make-up in circumstances where her evidence was that she had asked Ms Cattaway whether she could continue with the Repertory Club given the concerns raised, and that Ms Cattaway had warned her to keep her distance from AB. Ms Warnock's decision to apply AB's make-up after being excluded from the school under a s 240 order, and being investigated by SID in relation to AB, demonstrates Ms Warnock's poor decision making, which is relevant to the respondent's concerns about suitability.
13. Accordingly, the respondent's concerns about Ms Warnock's suitability were warranted at the time of the dismissal and have not been allayed through the proceedings.
14. Dr Sherman found there was no diagnosis of ADHD or autism spectrum disorder. He refers to the ongoing need to explain to Ms Warnock what is expected of her in relation to professional boundaries at [22.74], [22.82], [22.78]:
    1. Does Ms Warnock have the capacity, either totally or partially, to work as a teacher?

22.74 As a result of her suspension and subsequent dismissal, she is acutely aware of boundary issues, and if she is permitted to return to the teaching career which she loves and to which she has devoted herself for nearly a decade, it is highly unlikely that she would breach boundaries with students again.

1. Are there any work tasks that are contraindicated for Ms Warnock? If so, please describe them.

22.82 In my opinion, there are no work tasks that are contraindicated for her. My impression is that as a result of these events, she has a better understanding of boundary expectations and will be capable of maintaining appropriate boundaries at all times, regardless of the type of work task.

1. What workplace accommodations, if any, would assist Ms Warnock if she were to be returned as a teacher?

22.78 It would be necessary for the senior managers to ensure they had a thorough understanding of her psychiatric/psychological issues and to take the time to explain everything expected of her, for instance, regarding boundaries, with care.

1. In relation to the impracticability of reinstatement, Dr Sherman has qualified Ms Warnock's fitness for work, in relation to her diagnosis for depression, as provisional on her being engaged in psychological counselling:
   1. Is Ms Warnock presently able to return to work as a teacher, and if not, when do you believe she will be able to return to that occupation?

22.79 In my opinion, once she has reengaged with a clinical psychologist and made regular appointments with her psychiatrist, Dr Chang, she will be able to return to work as a teacher.

22.80 She will require a weekly session with the clinical psychologist for at least six months, followed by fortnightly sessions thereafter for two to three years, depending on progress.

22.81 She should consult with her psychiatrist on a monthly basis for the next 12 months, then every three months for the next two years, or as the psychiatrist recommends.

1. Ms Warnock's evidence was that she is not engaged in psychological counselling and therefore, at this point in time, she is not fit to be teaching. The respondent acknowledges that Ms Warnock has since produced an undertaking to the Commission (Exhibit A7) dated 16 October 2025, to provide her clinical psychologist with Dr Sherman's report, commence psychological counselling, continue to take her anti-depressant medication, and in the event the Commission orders her reinstatement or reemployment undertakes that she will continue to comply with each undertaking beyond the date of the decision.
2. Ms Warnock was dismissed for committing acts of misconduct amounting to a breach of discipline pursuant to s 80(c) of the Public Sector Management Act 1994 (WA) (PSM Act). Where a breach of discipline is found, s 82A(3)(b) of the PSM Act provides that disciplinary action can include dismissal.
3. Ms Warnock was dismissed under Part 5 of the PSM Act, which only requires a breach of discipline, not a serious breach of discipline. The disciplinary action taken was in the form of dismissal.
4. Part 5 of the PSM Act does not contemplate dismissal with notice. In any event, Ms Warnock was dismissed three days before the summer school holidays.
5. Dismissal under Part 5 of the PSM Act is not conditioned by what is in the Award.
6. In an event, the respondent has met the evidentiary onus that falls upon an employer where an employee has been dismissed summarily.

1. On 3 June 2025, Ms Warnock filed an outline of submissions, in which she submits it was unfair for the respondent to dismiss her because: (footnotes omitted)

1. Ms Warnock first met [Mrs B and AB] at church in around 2018. Ms Warnock considers [Mrs B] to be a church friend, and they have interacted with each other through the church for many years. 2. As a teacher, one of Ms Warnock's important responsibilities was to provide pastoral care to her students. This is achieved through 'promoting positive environments that support the physical, social, intellectual, and emotional development of every student.' Ms Warnock considers all of her interactions with [AB] fell within her pastoral care responsibilities.

1. To the extent that the Department was concerned about the blurring of the lines between pastoral care and professional boundaries, that line was not as clearly crossed as the Department made out in its dismissal decision of 10 December 2024.

1. Ms Warnock had a clean employment record. Aside from the events that led to her dismissal, she had not previously come under notice for misconduct. 2. There was room, on at least one interpretation of the facts, to provide Ms Warnock with the benefit of the doubt and to allow her to continue on with her employment. 3. Summary dismissal is the harshest of penalties an employer can impose on an employee. It should not be imposed lightly. In this case, summary dismissal was a disproportionate response to the events.
2. Ms Warnock submits the relevant legal principles are:
   1. The overarching issue to be determined is whether the Department's right to terminate the contract of employment has been abused, such as to render the exercise of that right unfair. See: [Undercliffe].
   2. All of the circumstances of the case must be considered in determining the overarching issue. See: Garbett v Midland Brick Company Pty Ltd [[2003] WASCA 36 (Garbett)].
   3. The Department bears the evidentiary onus to establish the facts on which the decision to dismiss was based. This is because the termination was a summary dismissal for alleged misconduct. See: [Newmont].
   4. It is only in exceptional circumstances that an employer is entitled to dismiss an employee summarily. See: Laws v London Chronicle (Indicators Newspapers) Ltd (1959) 2 ALL ER 285 [(Laws)].
   5. If summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show Ms Warnock disregarded the essential conditions of the contract of service. See: North v Television Corporation Ltd [1976] CthArbRp 1465; (1976) 11 ALR 599 [(North)].
   6. Until the terms of the contract are known and identified, it is impossible to say whether or not any particular conduct is in breach thereof or is a breach of such gravity or importance as to indicate a rejection or repudiation of the contract. One cannot begin the inquiry without ascertaining what work the employee was employed and had undertaken to perform. It is also necessary to ascertain what particular obligations the parties had agreed upon as important or even vital. See: [North].
   7. A relevant consideration in determining whether a person has been unfairly dismissed is whether dismissal was a proportionate and appropriate penalty for the alleged conduct. See for example: [The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority of Western Australia [2017] WAIRC 00066] [43]-‍[46] [(ARTBUE)].
3. On proportionality, Ms Warnock submits:

The Department's decision was a disproportionate response to the events

1. None of the events relied upon by the Department, either individually or collectively, were sufficiently serious to justify a decision to summarily dismiss Ms Warnock from her employment.
2. Ms Warnock had a prior good record. There was no evidence that [AB] had suffered any harm or had been exposed to any behaviours that may have adversely impacted his development. To the contrary, each of the events were examples of Ms Warnock providing pastoral care to [AB] to assist him in his development as a young adult. This was a fundamental duty of her employment as a teacher.
3. Even if the Commission were to have a different view about one or more of the events, it would still be open for the Commission to make a finding that summary dismissal was a disproportionate response to the events.

1. The issue of proportionality is the core issue. Ms Warnock wore multiple hats: her teacher hat, church hat, tutoring hat and Repertory Club hat. She had taught AB when he was in Year 9, and AB's whole family was known to Ms Warnock through the church. A teacher wearing multiple hats can cause misunderstandings when it comes to professional boundaries because it can blur the lines between what is acceptable conduct and what is unacceptable conduct.
2. Mr Stace's evidence was that it did not register with him at the time that Ms Warnock providing driving lessons to AB might be a breach of professional boundaries and Ms Warnock is a far less experienced teacher than Mr Stace.
3. Ms Warnock's explanation for engaging in the conduct was that as she had different hats on, she did not see at the time that her conduct was a breach of professional boundaries. Her explanation about why she engaged in the conduct is relevant to whether the respondent exercised their discretion in a manner that is harsh, unjust or unreasonable. Her explanation (her underlying subjective reasons for engaging in the conduct) goes to the issue of proportionality.
4. She now accepts that she breached professional boundaries, however, she does not accept the breach was serious enough to ground a finding for summary dismissal. She relies on Trestrail v City of Karratha [2025] WAIRC 00820 (Trestrail), as requiring summary dismissal to accord with the terms of the contract, which links back to clause 11 of Award.
5. While she did not admit to breaching professional standards in her responses during the investigation, she did acknowledge that she should have done things differently:
   • (a) Her response to SID's allegations letter dated 19 June 2024 (Exhibit A2: Document 3, p 16), states:

I have been devastated to receive these allegations and I wish to express that at all times I have been honest and transparent about the out of school interactions I had with [AB]. My interactions with [Mrs B] and [AB] have been respectful, honest, courteous and well-intentioned, occurring in the context of a small farming community where people regularly help each other out. At no time did my line manager suggest to me that there may be a concern or conflict of interest regarding this and my work as a teacher. If this had been raised with me, I would have followed all suggestions provided by my line manager.

(b) Her response to the respondent's proposed findings letter dated 31 October 2024 (Exhibit A2, Document 6, p 132), states:

Please be aware that my only experience as a teacher has occurred in my 7-year tenure at Merredin College, and in this small community environment, I have seen community members help each other out on such a regular basis. I regretfully did not understand that my actions in what I thought was helping a family from my church community, was crossing the boundary that I am required to follow in any engagement with a Merredin College student. I understand that my conduct - giving [AB] driving lessons, providing him with transport home after repertory club and Follow the Dream, and his doing yard work - has not met the standards expected and am deeply remorseful. I would like to provide my sincere assurance that I will never engage in such conduct in the future. However, there are additional findings made against me in the Investigation Report which I do not believe to be fairly drawn, specifically about my intentions, and I strongly reject those findings and will endeavour to address this below.

1. As outlined at [4] above, the parties agree that in determining the application, the principal question is whether the respondent's right to terminate Ms Warnock's employment has been exercised so harshly or oppressively as to amount to an abuse of that right: Undercliffe.
2. Ms Warnock bears the onus of establishing that the dismissal was, in all the circumstances, unfair within the principles set out in Undercliffe.
3. However, as Ms Warnock was summarily dismissed, the evidentiary onus falls on the respondent to demonstrate that Ms Warnock's conduct was of sufficient gravity to warrant her summary dismissal: Newmont.
4. Pursuant to Bi-Lo:

Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.

1. As outlined at [46] above, Ms Warnock relies on Garbett, Laws, North and ARTBUE.
2. Ms Warnock relies on Garbett for the proposition that all of the circumstances of the case must be considered. I accept that proposition. As outlined by Heenan J [72], the assessment of whether a dismissal is harsh, oppressive or unfair requires a broad evaluative judgment, taking into account the nature and gravity of the proven misconduct and any mitigating circumstances associated with the misconduct, the employee's length of service and disciplinary history, and the consequences of the dismissal for the employee:

Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances. Factors such as these going to the reasons for the particular dismissal are frequently referred to in the authorities in this area as matters of 'substantive' fairness, as opposed to issues of 'procedural' fairness which relate to the manner in which the employee was notified of the proposed termination, what opportunity, if any, he or she was given to respond and the time and method employed in effecting the termination. This distinction between substantive and procedural issues going to the question of whether or not a particular dismissal was harsh, oppressive or unfair can be useful in certain cases but it entails the danger of regarding the statutory test as having separate application and different meanings in different contexts. Such an approach must be rejected because, however the issue may arise, the decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss.

1. Laws is a 1959 decision of the England and Wales Court of Appeal (Civil Division), in which Miss Laws, an advertisement representative in her third week of employment, followed her immediate manager out of the managing director's office during a heated argument, despite the director saying 'stay where you are'. She was summarily dismissed the following day for refusing to abide by a lawful and reasonable direction. In circumstances where Miss Laws' evidence was that she left the room out of loyalty to her immediate manager, and the letter of dismissal was couched as the 'defiance of the managing director's request that you remain', the court found that the managing director's order was not an order related to her duties as advertisement representative, but a wise direction for him to have given, to calm down the heated exchange in his office. Accordingly, the court agreed with the first instance Judge's finding that Miss Laws was unlawfully dismissed. Lord Evershed MR stated the relevant principles as follows:

[S]ince a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is no doubt therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally.

... [O]ne act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions.

1. North is a 1976 decision of the Australian Industrial Court (AIC), in which Mr Pemberton, a Deputy News Director at TCN9, sent a telex message during a critical pre-broadcast period when the Department of the Media was monopolising telex lines with an acknowledgement procedure. The message read: 'If Media Min had any sense of Media he would not be tying up telexes at this time of night. Go away pls.' This coincided with a ministerial complaint about TCN9. Mr Pemberton was summarily dismissed for misconduct. The AIC found Mr Pemberton's dismissal to be in breach of the award clause entitling him to notice.
2. Smithers and Evatt JJ said:

There was a tendency in argument to treat the terms of the written contract between Pemberton and the respondent as if they were irrelevant to the inquiry arising under cl 10(e). But although a definition of misconduct contained in that contract could not control the meaning of the expression 'misconduct' in cl 10(e) of the award, the question as to whether any particular conduct constitutes misconduct within the meaning of cl 10(e) does depend upon the terms of the contract of employment.

Until the terms of the contract are known and identified it is impossible to say whether or not any particular conduct is in breach thereof or is a breach of such gravity or importance as to indicate a rejection or repudiation of the contract.

One cannot begin the inquiry without ascertaining what work as a journalist the employee was employed and had undertaken to perform. It is also necessary to ascertain what particular obligations the parties had agreed upon as important or even vital.

It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in [Laws], that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

In the subject case Pemberton had been employed for over two years and there was no evidence that his conduct had been unsatisfactory or that he received any warnings in that period. The misconduct relied upon by the respondent was misconduct in relation to an isolated incident when Pemberton was undoubtedly under considerable strain arising from the necessity for ensuring that the 6.30pm news service would be able to proceed at the appropriate time and in the appropriate way.

In my opinion the conduct of Pemberton was reprehensible, but I consider that in the circumstances in which it took place it fell short of misconduct entitling the respondent to dismiss him summarily under cl 10(e) of the award.

The standard of conduct that justifies summary dismissal of an employee under this award is difficult to lay down and is a matter to a great extent of degree and it seems clear that the respondent had no intention to commit a breach of the award. In the circumstances I do not think that any penalty is called for and indeed counsel for the claimant expressly stated that he made no submissions at all in relation to penalty. ...

1. ARTBUE is a 2017 decision of the Commission, in which Mr Merlo, a transit officer, was dismissed for deploying pepper spray at a person of interest (POI), a 12-year-old who appeared much older on the concourse of the Perth Railway Station. The POI was intoxicated, aggressive, making threats to punch and spit at officers. When the POI baulked as if about to spit, Mr Merlo deployed his pepper spray in what he described as a split-second reflex action. Senior Commissioner Kenner found that Mr Merlo deployed his pepper spray in self-defence, and his use of the pepper spray in the circumstances did not contravene the Transit Officer Manual. Consequently, and taking into account Mr Merlo's contrition after the incident, Kenner SC found that dismissal was not a proportionate and appropriate penalty for Mr Merlo's conduct and ordered reinstatement at a demoted level.
2. In closing submissions, Ms Warnock, relying on Trestrail, submitted that:
   • (a) The Full Bench in Trestrail:

[M]ade it clear that when we've got a case of serious misconduct, which then the employer relies upon, of summary dismissal ... working out whether that's justified or not requires a consideration of the contract of employment and what the parties had agreed in relation to under what circumstances an - the employer could summarily terminate without providing notice.

(b) Her contract of employment (Exhibit A2: Document 1) states:

1. The terms and conditions of your employment are governed by the provisions of the [Award] and the [Agreement], as amended or replaced from time to time. ...

2. Notwithstanding any provisions contained herein, either party may terminate the contract by giving the required notice or payment in lieu of notice in accordance with clause 11 - Termination of Employment of the Award.

(c) Therefore, the respondent dismissed her summarily 'pursuant to an express term' in her contract.

(d) Clause 11.4 of the Award states:

(4) Termination of an Employee for Serious Misconduct

(a) The Employer may terminate an employee without notice or payment in lieu of notice if the employee is guilty of serious misconduct. In such cases, wages will be paid up to the time of dismissal only.

(b) 'Serious misconduct' means misconduct of such a nature that it would be unreasonable to require the Employer to continue the employment of the employee concerned during the required period of notice.

(e) Like Trestrail, cl 11(4) of the Award refers to 'guilty'. Therefore, it is insufficient for the respondent to have a belief of guilt, or for there to be a risk of guilt; there needs to be guilt and it has to be 'guilty of serious misconduct'.

(f) Accordingly, the Commission needs to resolve whether she engaged in serious misconduct as defined in cl 11(4)(b) of the Award. The definition requires her to have engaged in conduct of such a nature that it would be unreasonable for the respondent to continue employing her during her notice period of either three or four weeks, in the context where she could have been assigned other work or transferred to another school, during her notice period.

1. Whether cl 11 of the Award is incorporated into Ms Warnock's contract such that Ms Warnock can rely on the propositions at [64] above, is not a matter I need to determine, because Trestrail does not stand for the proposition contended by Ms Warnock.
2. Trestrail involved two distinct claims, an unfair dismissal claim and a denied contractual benefit claim. The Full Bench said:
   1. It is also important to bear in mind that there were two distinct claims before the Commission for determination. The claim of unfair dismissal involved a discretionary decision by the Commission, as to whether the appellant's dismissal was an abuse of the respondent's legal right to terminate the Contract. Having regard to all of the circumstances of the case, and balancing the interests of both the employer and the employee, the question to be answered in a claim of this kind, was whether the respondent abused its legal right to terminate the Contract, such that as a matter of industrial fairness, the dismissal should be regarded as harsh, oppressive or unfair.
   2. The second claim before the Commission was a claim for the enforcement of a term of the Contract for payment of entitlements, on the basis that the appellant contended his dismissal was wrongful. This was a separate common law claim, which did not attract the same approach as the unfair dismissal claim. The question was one of fact, or perhaps mixed fact and law, that being did the evidence establish, as cl 11.3(1)(a) of the Contract required, that the appellant was guilty of grave or wilful misconduct, such as to enable the respondent to exercise its rights under the Contract to terminate it summarily without notice.
   3. Given the respondent exercised this contractual right provided by cl 11.3(1)(a) of the Contract, the burden was on it to establish on the balance of probabilities, that the appellant did commit grave or wilful misconduct. For the purposes of the contractual claim, an honest and genuine belief, based on reasonable grounds, after a proper inquiry, that the appellant was guilty of misconduct, would be insufficient. Alternatively, did the appellant commit a serious breach of any provision of the Contract, under cl 11.3(1)(c)? Again, as a matter of fact or mixed fact and law, this was required to be established by the respondent on the balance of probabilities, as the basis to exercise the contractual right to terminate the Contract summarily without notice.
   4. We raise this matter because from the written and oral submissions of the parties at first instance, it appears that there was a conflation of the claims, and the approach set out in Bi-Lo was argued as the appropriate test to apply globally. The approach in Bi-Lo had no application to the determination of the contractual benefits claim. They were separate and distinct claims and the tests are different. The unfair dismissal claim did not turn on the exercise of the legal right to dismiss, but the contractual benefits claim did. The remedies available under the Act in respect of each claim are different. This conflation appears in the summary of principles referred to by the learned Commissioner at [14]-[15] of her reasons. No reference is made to the requirement in the denied contractual benefits claim, for it to be established that the appellant was actually guilty of grave and serious misconduct under the Contract, for the respondent's contractual right to summarily dismiss to be enlivened (see AB552-553). In effect, given that both claims were concurrently before the Commission for determination, the establishment by the respondent of the guilt of the appellant of grave and serious misconduct, on the balance of probabilities, for the purposes of the contractual benefits claim, would defeat both claims.
3. As noted by the Full Bench in Trestrail [32]-[34], consideration of whether an employee has engaged in serious misconduct as defined in the contract such as to disentitle them to the contractual benefit to notice is necessary in determining a denied contractual benefit claim. However, in an unfair dismissal claim, the question to be answered, essentially that in Undercliffe, is whether the employer abused its legal right to terminate the contract, such that as a matter of industrial fairness, the dismissal should be regarded as harsh, oppressive or unfair.
4. As noted by the Full Bench in Trestrail [35], where a contractual clause defines serious misconduct as involving guilt, then the establishment of guilt is necessary in determining the denied contractual benefit claim. However, in an unfair dismissal claim, the approach set out in Bi-Lo is the appropriate test to apply.
5. As outlined at [56] above, the Bi-Lo test is satisfied where 'the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal'.
6. By extension, where an Award clause defines serious misconduct as involving guilt, then the establishment of guilt may be necessary in determining a claim for enforcement of cl 11 of the Award. However, Ms Warnock's application is not a claim seeking enforcement of the Award; it is an unfair dismissal claim, which, as outlined at [68] above, the Bi-Lo test applies.
7. Accordingly, I accept the respondent's submission that Ms Warnock was dismissed under Part 5 of the PSM Act, which operates independently of the Award's notice provisions.

1. As outlined in the Agreed Statement of Facts at [5] above, Ms Warnock does not dispute that she engaged in the conduct that formed the basis for her dismissal.
2. There is also no dispute that Ms Warnock was afforded procedural fairness during the disciplinary process. The evidence indicates that Ms Warnock was given notice of the allegations against her, was provided with the opportunity to respond to both the allegations and the proposed findings and did in fact provide detailed written responses at each stage. I am satisfied that the disciplinary process was procedurally fair.
3. Ms Warnock initially maintained, both during the disciplinary investigation and at the commencement of these proceedings, that her conduct did not constitute a breach of professional boundaries. She characterised her actions as an extension of pastoral care and community involvement, consistent with the norms of a small country town.
4. However, and as outlined in [25], [33] and [51] above, during cross-examination, Ms Warnock conceded that her conduct constituted a breach of professional boundaries. She accepted that:
   • (a) It was inappropriate for her to text message AB via personal phones: [11(d)] above.
   • (b) Being alone with AB in the car for extended periods in the circumstances of the driving lessons was a breach of professional boundaries as a teacher: [11(l)] above.
   • (c) Her conduct, in the circumstances, was a breach of the Code of Conduct: [11(r)] above.
5. However, Ms Warnock did not accept that the breach was serious and did not accept that all elements of her conduct were inappropriate in all circumstances:
   • (a) She did not accept that having AB perform chores at her house was a breach of professional boundaries: [11(u)] above.
   • (b) She did not accept that it should have been obvious to her at the time that the conduct was inappropriate: [11(ee)] above.
   • (c) She continued to express the view that the TRBWA Booklet was not fit for purpose in the context of a small town: at [11(kk)] above.
6. Accordingly, the critical question to be answered is whether Ms Warnock's breaches of professional boundaries were of sufficient gravity to warrant dismissal, specifically summary dismissal.

Was Ms Warnock's breach of professional boundaries serious?

1. Ms Warnock accepts that her contract of employment required her to remain familiar with the guidelines about professional behaviour, which includes the Code of Conduct: [11(m)] above.
2. Clause 7 of Ms Warnock's contract of employment states:

During the contract of employment you are required to obtain and maintain any statutory registrations as required from time to time and provide satisfactory evidence of their possession and currency to the Department of Education. Failure to maintain the appropriate registrations will be deemed to be a repudiation of the contract of employment entitling the Department to confirm your contract at an end. You agree that the Department is also entitled to suspend you without pay if you fail to maintain any statutory registrations for the period they have lapsed.

1. Clause 9 of Ms Warnock's contract of employment states:

It is your responsibility during the contract of employment to abide by and remain familiar with any applicable instruments including but not limited to the Public Sector Code of Ethics, the Department of Education Code of Conduct, legislation, policies, rules, guidelines and professional standards relevant to your employment in this position, as introduced and amended from time to time. These applicable instruments are contained in Schedule 1 attached hereto for your information and may be amended from time to time.

• [PSM Act];
• Public Sector Management Regulations 1995;
• School Education Act 1999;
• School Education Regulations 2000;
• Working with Children (Criminal Record Checking) Act 2004;
• Western Australian College of Teaching Act 2004;
• Teacher Registration Act 2012;
• Western Australian Public Sector Code of Ethics;
• Public Sector Standards in Human Resource Management, made pursuant to the [PSM Act];
• [the Agreement] 2014;
• [the Award];
• Occupational Health and Safety Act 1984;

All relevant Department of Education policies and procedures, including but not limited to:

• Appointment Procedures for Fixed Term and Graduate Teachers and School Psychologists;
• Staff Conduct policy; and
• Transfer and Deployment of Teaching Staff policy; and

Any other law, instrument, policy or procedure which may apply to employment.

1. The Allegation letter (Exhibit A2: Document 2), alleges that Ms Warnock's conduct was misconduct amounting to a breach of discipline pursuant to s 80(c) of the PSM Act, that may be considered an encroachment on professional boundaries, which if proved, is conduct that breaches the Code of Conduct, Standards 1 and 4:

Standard 1 - Behave professionally and with integrity

We are honest and trustworthy in our relationships, and demonstrate dignity and integrity at all times, both at work and in the community.

• treat colleagues, students, parents, carers, stakeholders and members of the public with respect, courtesy, honesty and fairness
• behave in a manner that will not damage the reputation of ourselves, our workplace, the Department or the Public Sector
• follow all Department policies and procedures, including when working as a volunteer, a member of a committee, working group or advisory body
• are accountable for our actions and decisions
• do our job lawfully, with reasonable care and diligence and as efficiently and effectively as possible
• exercise reasonable care and skill in the performance of our work

We maintain the safety and wellbeing of ourselves, our students, our colleagues and our stakeholders.

• provide and maintain safe and healthy work and learning environments that are mindful of staff and student wellbeing
• take reasonable steps to not cause foreseeable harm to ourselves, students in our care, each other, contractors, suppliers and volunteers
• protect students from actual or potential abuse and harm, in line with Department policies and procedures and the National Principles for Child Safe Organisations
• only use physical contact if reasonable and necessary and in line with the Department policies and guidelines

1. Standards 1 and 4 of the Code of Conduct do not use the phrase 'professional boundaries'. Standard 1 requires staff to 'behave in a manner that will not damage the reputation of ourselves, our workplace, the Department or the Public Sector' and to 'follow all Department policies and procedures.' Standard 4 requires staff to 'protect students from actual or potential abuse and harm, in line with Department policies and procedures'.
2. While the term 'professional boundaries' does not appear, I am satisfied that the substance of the obligation to maintain professional boundaries is encompassed by Standards 1 and 4. Conduct that breaches professional boundaries between a teacher and a student is, by its nature, conduct that risks damage to the reputation of the teacher, the school, and the Department (Standard 1), and conduct that may compromise the safety and wellbeing of students (Standard 4) by placing both the teacher and the student in a vulnerable and unsupervised situation.
3. The obligation to maintain professional boundaries is not a freestanding concept that exists only where those words are expressly used; it is a necessary implication of the obligation to act professionally and with integrity, and to maintain the safety and wellbeing of students.
4. This is reinforced by the Department's training materials, which Ms Warnock was required to complete and did complete.
5. The AEDM training, completed by Ms Warnock on 26 March 2018 and 23 June 2022, explicitly addresses 'Conduct Open to Misinterpretation' and specifically identifies behaviours including 'transporting a student in your car without parent and principal approval' and 'inviting a student to your home or attend theirs without a professional educational reason': [11(v)] above.
6. The AEDM training contains a section titled '4.5 Maintaining Professional Boundaries with Students', which states:

Maintaining Professional Boundaries with Students

You are responsible for maintaining a professional role with students. This means establishing clear professional boundaries with students that help to protect everyone from misunderstandings or a breach of the professional relationship.

Select each example to learn more about establishing and maintaining appropriate boundaries:

• Targeting individual students
• Personal disclosure
• Physical contact and interaction
• Communication
• Grooming

• offering gifts and personal favours
• adopting a welfare role that is the responsibility of another staff member (e.g. counsellor) or doing so without the knowledge of key staff members

• correspondence of a personal nature including letters, email, phone, SMS, and on social networking sites (e.g. Factbook, Instagram, Twitter, etc)

1. The CPAP training, completed by Ms Warnock on 17 February 2018, 4 February 2021 and 8 February 2024, identifies a list of behaviours that 'may not be within professional boundaries', including 'driving a student unaccompanied, without knowledge and consent of key staff members', 'phone/SMS contact with students', 'inviting or allowing a student or students to visit their home', and 'arranging time alone with a particular student': [11(aa)], [11(x)] above.
2. Separate to the 'Inappropriate relationships' section (at [11(aa)] and [89] above), the CPAP training contains a section titled 'Guidelines for maintaining professional boundaries with students', which states:

Guidelines for maintaining professional boundaries with students

Staff who work directly with students have an influential relationship with them. They have the ability to significantly impact on students' lives in important and long-lasting ways. The relationships between staff members and students are characterised by differing roles and an imbalance of power based on factors such as age, authority and gender.

As an employee of the Department, you are responsible for maintaining a professional role with the students you come into contact with. This means establishing clear professional boundaries with students that help to protect everyone from misunderstandings or a violation of the professional relationship.

For further information, please refer to the Department's Code of Conduct.

Always obtain permission from your principal or residential college manager and the child's parents when meeting with students off the school grounds and outside of school activities e.g. tutoring, coaching.

The provision of your contact details should be justified in terms of educational purposes and be approved by your principal or residential college manager.

Correspondence of a personal nature including letters, email, phone, SMS text, and on social networking sites i.e. Facebook, Twitter etc. (not including class postcards or bereavement cards, etc.) is considered a violation of professional boundaries.

Be aware that the offering of personal gifts or special favours, giving extra attention to a student, accepting a different standard of behaviour from a student or having 'special time' with a student are considered violations of professional boundaries.

1. The AEDM training and CPAP training materials use the phrase 'professional boundaries' expressly and link those boundaries back to the Code of Conduct.
2. Clause 9 of the contract (at [80] above), requires Ms Warnock to abide by, and remain familiar with, the Department's Code of Conduct and 'professional standards relevant to your employment'. Accordingly, this would include the document that expands upon the Code of Conduct, the Department's 'Our Code of conduct and standards' which contains a section titled 'Maintain professional relationships, interactions and boundaries with students', which states:

Maintain professional relationships, interactions and boundaries with students

The [TRBWA] has important information about Teacher-Student Professional Boundaries [7] that you should familiarise yourself with. This includes allied professionals.

You have a responsibility to manage child protection at your school [8].

The following questions may help you assess whether your boundaries with students are appropriate and professional:

• Am I dealing with a particular student in a different manner to how I would deal with another student in the same circumstances?
• Is my availability and language with a particular student different from usual?
• Would I do or say this if a colleague was present?
• Would I condone my conduct if I observed it in another adult?
• Could the consequences of my actions have negative outcomes for a student or for me?
• If I were a parent would I want an adult behaving this way toward my own children?

Information is always growing and changing on Ikon. Search Ikon using key words to find current information to help you behave professionally and with integrity.

1. In the above paragraph, footnote [7] links to the TRBWA's Booklet and footnote [8] links to a document on Ikon titled 'Child protection at your school'.
2. Ms Warnock says that she did not see the TRBWA Booklet until Ms Cattaway provided it to her on 10 May 2024. The TRBWA Booklet is published by the TRBWA, which is the statutory body established under the Teacher Registration Act 2012 to regulate the teaching profession. The Teacher Registration Act 2012 is expressly listed in Schedule 1 of Ms Warnock's contract: [81] above.
3. Clause 7 of the contract (at [79] above), requires Ms Warnock to 'obtain and maintain any statutory registrations as required from time to time' and the TRBWA registration is plainly the registration contemplated.
4. In addition, cl 9 of the contract (at [80] above), requires Ms Warnock to abide by and remain familiar with 'professional standards relevant to your employment' and Schedule 1 includes 'any other law, instrument, policy or procedure which may apply to employment'. Accordingly, the TRBWA Booklet, addressing professional boundaries between teachers and students is a 'guideline' or 'professional standard' relevant to the employment of a registered teacher, and falls within the broad language of cl 9 and Schedule 1.
5. Regardless of whether the TRBWA Booklet is directly incorporated as a contractual obligation by cl 9, I am satisfied that the Department's mandatory training, the AEDM training and CPAP training, which Ms Warnock was required to complete and did in fact complete, explicitly identified the very behaviours in which Ms Warnock engaged as being inconsistent with professional boundaries.
6. Ms Warnock's evidence was that she completed these training programs but described them as things you do and forget: [11(q)] above. The fact that she did not recall the content of the training does not relieve her of the obligation to comply with it.
7. The cumulative effect of the AEDM training and the CPAP training, together with the Code of Conduct, was sufficient to put a reasonable teacher on notice that the conduct in question was inconsistent with professional expectations, whether or not she had also read the TRBWA Booklet.
8. Accordingly, while I accept Ms Warnock's evidence that she did not see the TRBWA Booklet until 10 May 2024, I do not accept that the obligation to maintain professional boundaries was unclear or unknowable to her. The obligation arises from the Code of Conduct, is reinforced and particularised by the Department's mandatory training, and is further supported by the Department's 'Our Code of conduct and standards' and the TRBWA's Booklet. Ms Warnock's contract required her to be familiar with all of these instruments.
9. In Ms Warnock's response to SID's allegations letter dated 19 June 2024 (Exhibit A2: Document 3, p 16), she said: (emphasis added)

Merredin is a small country town and farming community and over the past 7 years I have become part of the community. I have been an active member of the community, serving as a member of the Merredin Church of Christ which I have had connections to since 2010, and more recently in the repertory club and playing the last post at the community's dawn service, all of which I greatly value. The church is a community, where we help those in need. I have worked with young people through my various churches since I was 12 years of age, starting by helping at Sunday school. I have been a Youth Leader, Youth Pastor and School Chaplain. Since becoming an educator, I have always strived to ensure a distinction between my role as a teacher and my relationships with young people at the church, maintaining an appropriate boundary.

1. Ms Warnock's statement (at [101] above), demonstrates that Ms Warnock herself recognised the importance of maintaining a distinction between her role as a teacher and her church relationships with young people. Her statement that she has 'always strived to ensure a distinction between my role as a teacher and my relationships with young people at the church, maintaining an appropriate boundary' is difficult to reconcile with her contention, maintained throughout these proceedings, that it was unclear to her that her conduct with AB breached professional boundaries. At minimum, Ms Warnock's own articulation of the boundary she says she has always strived to ensure, indicates that she was aware of the concept and its relevance to her circumstances. This would tend to reinforce, rather than alleviate, concerns about Ms Warnock's insight and judgment.
2. The following features of Ms Warnock's conduct elevate the seriousness of the breach beyond a single, isolated lapse of judgment:
   • (a) The driving lessons commenced on 4 April 2024 and continued until Ms Warnock was directed to stop on 10 May 2024. During that time, Ms Warnock drove with AB on multiple occasions, exchanged phone numbers, texted him during class, and had him perform chores at her house. This was not a one-off error, rather, a pattern of conduct.
   • (b) The first lesson occurred on 4 April 2024. The parties agree that this lesson took place before Ms Warnock had confirmed with Mrs B that she permitted Ms Warnock providing driving lessons to AB: Agreed Statement of Facts [8] (at [5] above).
   • (c) Even before Ms Warnock had obtained Mrs B's permission, she had already taken out comprehensive car insurance to provide the driving lessons: [11(ii)], [13(a)] above.
   • (d) The Merredin-to-Perth and return trip involved extended one-on-one time. On 27 April 2024, Ms Warnock and AB were together from 7:47am until 8:05pm, travelling to Perth, attending appointments, and returning to Merredin. For much of this time they were alone together in the car: [11(h)], [11(k)] above.
   • (e) When AB damaged Ms Warnock's car during the first accident, Ms Warnock rejected Mrs B's offer to pay and instead arranged for AB to perform chores at her home. This created a transactional element in the teacher-student relationship. As Ms Cattaway observed, the concern was that AB was 'paying back garden work for driving lessons': [15(z)] above. While Ms Warnock's evidence was that she never intended for AB to owe her anything, the objective effect was that a Year 12 student was performing physical labour at his English teacher's house to compensate her for damage caused during the driving lessons.
   • (f) The conduct was not limited to the driving lessons. Ms Warnock also drove AB home from Follow the Dream tutoring and the Repertory Club on various occasions. While she described this as 'common practice,' there is no evidence of this. In fact, the Follow the Dream Enrolment Form envisaged transport by a Merredin College vehicle or, in the case of an emergency, a staff member's private vehicle. Furthermore, Ms Walker's evidence was that she could count on one hand the number of times a student had been driven home from Follow the Dream in three years. However, Ms Warnock's evidence was that she had been giving AB lifts home from Follow the Dream since she started tutoring in 2023: [10(u)] above.
   • (g) This means that Ms Warnock's one-on-one contact with AB in her car pre-dated the driving lessons by more than a year, extending the period of conduct potentially crossing professional boundaries beyond the five-week driving lesson period. While the pre-exiting church relationship with the B-family, which Ms Warnock states commenced in 2018, provides context for why Ms Warnock may have been familiar with AB (addressed at [105] below), the lifts home from Follow the Dream arose through a school tutoring program, not through the church. Significantly, Ms Warnock's own evidence demonstrates that the driving lessons grew directly out of the Follow the Dream arrangement: 'I give you a lift home after Follow the Dream anyway, if it's okay with your mum, maybe I can give you some driving lessons?': [10(d)] above. The pre-existing pattern of one-on-one contact, established through the school tutoring program, was the foundation from which the driving lessons extended.
   • (h) The text exchange on 22 April 2024 demonstrates that Ms Warnock used her personal phone to contact AB on his personal phone during class time. While Ms Warnock explained this as a welfare concern related to AB's previous PTSD episode, the appropriate course was to raise the concern with student services rather than to contact the student directly via a personal and unsupervised communication channel. Ms Warnock acknowledged that there were other text messages between her and AB, which she did not show to anyone and deleted, together with AB's phone number, after the investigation concluded in December 2024, because her understanding was that having them was 'a bad thing': [11(c)] above.
3. These features, taken together, demonstrate a sustained pattern of conduct that crossed professional boundaries in multiple, mutually reinforcing ways. The arrangement was not confined to one isolated incident but involved driving, financial entanglement, unsupervised contact in a private home, and texting, all with the same student.
4. Against the seriousness of the breach, are the following mitigating factors:
   • (a) There is no allegation or finding of grooming, sexual misconduct, or any improper motive.
   • (b) Ms Warnock's evidence is that she believed she was helping a family friend and acting in AB's best interests. Ms Warnock's acquaintance with the B-family through church pre-dated the teacher-student relationship. Mrs B was a regular attendee at Ms Warnock's church and was in the same morning tea group. This provides important context for why Ms Warnock may have perceived her conduct as falling within the norms of a community and church relationship rather than a teacher-student relationship.
   • (c) Ms Warnock told colleagues in the staffroom about the driving lessons. She mentioned it specifically because she 'didn't want it to appear like it was something secret' and 'didn't want people to raise questions if they saw me and him leaving the school in the same car': [10(i)] above. This is not the conduct of a person seeking to conceal an improper arrangement.
   • (d) When Ms Cattaway directed her to stop the driving lessons on 10 May 2024, she stopped immediately and did not resume them.
   • (e) Ms Warnock had not previously been the subject of any disciplinary action and had an otherwise satisfactory employment record over approximately five and a half years of teaching at Merredin College (noting that Ms Warnock was not teaching but on a deferred salary arrangement in 2023), before she was issued with the s 240 letter.
   • (f) Ms Warnock's line manager, Mr Stace, with 22 years' experience, also failed to recognise the conduct as inappropriate when it came to his attention.
   • (g) Ms Warnock has suffered significant consequences. She has had to sell her house because her post-dismissal income was insufficient to meet her loan repayments. The dismissal has had a significant impact on her mental and physical health: [10(y)] above.
5. These are genuine and substantial mitigating factors. However, several matters diminish the force of the mitigation:
   • (a) Ms Warnock did not concede that her conduct breached professional boundaries until cross-examination. Her case opened on day one of the hearing on the basis that her conduct did not amount to such a breach. Her responses during the investigation, while expressing regret, did not unreservedly accept that her conduct was inappropriate. This pattern is relevant to assessing whether Ms Warnock has the insight necessary to avoid similar conduct in the future.
   • (b) Even after conceding the breach in cross-examination, Ms Warnock resisted characterising it as serious. She did not accept that AB performing chores at her house was a breach. She was critical of the TRBWA Booklet. She did not accept that the risks should have been obvious to her at the time. This suggests that Ms Warnock's understanding of professional boundaries, while improved, remains incomplete.
   • (c) After being excluded from the school under a s 240 order and while under investigation by SID, Ms Warnock applied AB's makeup at a Repertory Club performance. While Ms Cattaway had permitted Ms Warnock to continue with the Repertory Club, the direction was to keep her distance from AB. The make-up incident did not form part of the disciplinary findings, and I do not treat it as an additional ground for dismissal. However, Ms Warnock's decision to apply AB's make-up in these circumstances is relevant to the assessment of her judgment and insight. She acknowledged in cross-examination that, in hindsight, she should have found someone else to do it: [11(oo)] above.
   • (d) As outlined at [103(g)] above, the conduct that gave rise to the driving lessons (the regular lifts home from Follow the Dream since 2023), originated through a school tutoring program, not a church activity. While the church relationship may explain the initial familiarity, the pattern of one-on-one contact that directly preceded and precipitated the driving lessons was established in Ms Warnock's capacity as a tutor in a Department of Education program.
   • (e) Ms Warnock did not call Mrs B as a witness. Mrs B's evidence was potentially material to Ms Warnock's case, particularly in relation to the nature of the community relationship, the circumstances in which consent was given, and the chores arrangement. Ms Cattaway's evidence was that Mrs B had told her 'I know [Ms Warnock] has crossed the lines': [14(e)] above. In accordance with the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, I draw the inference that Mrs B's evidence would not have assisted Ms Warnock's case.
6. I have carefully weighed the seriousness of Ms Warnock's conduct against the mitigating factors and the consequences of the dismissal.
7. I accept that Ms Warnock's intentions were not improper and that the pre-existing community relationship with the B-family provides genuine, though not exculpatory, context. I note that Mr Stace did not raise concerns with Ms Warnock at the time, although the mitigating force of this is limited given the extent of Ms Warnock's conduct was not known to him. I accept that Ms Warnock has suffered significant personal consequences.
8. However, the teaching profession occupies a position of unique trust and responsibility in relation to students. As Mr Stace acknowledged: 'Our role is a unique profession and position which has certain professional boundaries, and we can't do these things others ordinarily would'. The power imbalance inherent in the teacher-student relationship is well-recognised and is the very reason professional boundaries exist.
9. Those boundaries exist not only to protect students but also to protect teachers and the reputation of the Department. As the AEDM training recognises, conduct 'even well intended, may be observed by someone (a student, a parent, or a colleague) and perceived as inappropriate for a person working with children'.
10. Ms Warnock's conduct, viewed objectively, placed her in precisely such a situation. The concerns were raised by other staff members and, independently, by Mrs B herself. The misunderstanding that the boundaries are designed to prevent had already occurred by the time Ms Cattaway became aware of the situation.
11. More significantly, the respondent's ongoing concern is not limited to the historical conduct but extends to Ms Warnock's suitability for continued employment as a teacher. That concern is grounded in the gap between Ms Warnock's subjective understanding of professional boundaries and the objective requirements of her role. As the respondent submitted, Ms Warnock entered these proceedings maintaining that her conduct was not a breach of professional boundaries, and even after conceding the breach, resisted accepting its seriousness. The respondent's doubts about Ms Warnock's judgment and discretion in relation to professional boundaries are, in my view, reasonably held.
12. Dr Sherman's expert report, while expressing the opinion that Ms Warnock would be capable of returning to work as a teacher, is itself qualified. Dr Sherman states that it would be 'necessary for the senior managers to ensure they had a thorough understanding of her psychiatric/psychological issues and to take the time to explain everything expected of her, for instance, regarding boundaries, with care': [37] above. The qualified nature of this opinion, rather than allaying concerns about Ms Warnock's suitability for continued employment as a teacher, would tend to reinforce them.
13. I have considered the principles in Laws and North, which are relied upon by Ms Warnock.
14. As outlined at [59] above, in Laws, Lord Evershed MR held that a single act of disobedience or misconduct can justify summary dismissal 'only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions.'
15. As outlined at [61] above, in North, Smithers and Evatt JJ emphasised that the gravity of misconduct cannot be assessed without first identifying the terms of the contract and what obligations the parties had agreed upon as important or vital.
16. Applying the principles at [115]-‍[116] above, the relevant obligations of Ms Warnock's contract are those in the Code of Conduct, Standards 1 and 4, which require Ms Warnock to behave professionally and with integrity, behave in a manner that avoids damage to her own reputation or that of the Department, and maintain the safety and wellbeing of students. These are plainly essential conditions of the teacher-student relationship. The question is whether Ms Warnock's conduct, viewed in totality, demonstrates a disregard of those essential conditions sufficient to warrant summary dismissal, or whether a lesser sanction would have been adequate.
17. As outlined at [63] above, in ARTBUE, Kenner SC found that dismissal was not a proportionate and appropriate penalty where Mr Merlo's use of pepper spray occurred as a split-second reflex action in circumstances of genuine threat, was not in contravention of the Transit Officer Manual, and was followed by genuine contrition. In that case, the misconduct was confined to a single, isolated incident in which the employee acted in self-defence and immediately recognised the error. Reinstatement at a demoted level was ordered.
18. Ms Warnock's case is distinguishable. Her conduct was not a single, isolated lapse in a moment of pressure, but a sustained pattern of boundary breaches extending over a period of at least five weeks, involving multiple forms of boundary breaches with the same student. Unlike Mr Merlo, Ms Warnock did not immediately recognise the error. She entered these proceedings maintaining that her conduct was not a breach of professional boundaries, and even after conceding the breach during cross-examination, resisted accepting its seriousness.
19. As outlined at [62] above, in North, Franki J found that Mr Pemberton's misconduct, while reprehensible, fell short of misconduct justifying summary dismissal in circumstances where it related to an isolated incident when Mr Pemberton was under considerable strain, had been employed for over two years with an unblemished record, and there was no evidence his conduct had been previously unsatisfactory. Here, while Ms Warnock similarly had an unblemished record, the critical distinction is that her conduct was not isolated. The driving lessons, the exchange of personal phone numbers, the texting during class, the chores arrangement, and the lifts home from extracurricular activities together constitute a cumulative pattern of boundary breaches that, viewed objectively, go beyond a single misjudgement. The financial entanglement created by the chores arrangement is a particularly concerning feature that compounded the other breaches. Moreover, Ms Warnock's limited insight into the seriousness of her conduct, as demonstrated throughout the investigation and these proceedings, is a matter of genuine concern in circumstances where the respondent must be able to trust that its teachers will exercise appropriate judgment in their dealings with students.
20. Having regard to all of the circumstances, as required by Undercliffe and Garbett, I am satisfied that the cumulative nature of Ms Warnock's conduct demonstrates a disregard of the essential conditions of her contract of service, within the meaning of that expression as used in Laws and applied in North. The professional boundary obligations are essential to the teacher-student relationship, not peripheral to it. Ms Warnock's sustained pattern of boundary breaches with the driving lessons, the financial entanglement through the chores arrangement, the extended one-on-one time, and the personal texting, together demonstrate, objectively, a disregard of those essential conditions. The respondent's decision to summarily dismiss Ms Warnock did not constitute an abuse of its right to terminate. Summary dismissal was not, in all the circumstances, a disproportionate response.
21. While I have considerable sympathy for Ms Warnock's personal circumstances, and I accept the genuineness of her subjective intentions, the assessment under Undercliffe requires me to balance the interests of both the employer and employee, taking into account all of the circumstances, and only intervene when 'intervention is necessary to protect an employee against an unjust or unfair exercise of the employer's right of dismissal, a right which is as fundamental in the relationship of employer and employee as is the right of an employee to leave [their] employment'.
22. Having taken into account all of the circumstances, I am satisfied that the respondent has established that the decision to summarily dismiss was not an abuse of its right to terminate. The respondent was entitled to take the view that the cumulative effect of the misconduct, and Ms Warnock's demonstrated lack of insight into the seriousness of her breach, warranted the most serious disciplinary sanction. The respondent's obligation to prioritise the safety and wellbeing of students, and to protect the reputation of the teaching profession, are legitimate considerations in that balance.
23. The respondent has met its evidentiary onus in establishing that the misconduct was of sufficient gravity to warrant summary dismissal.

1. For the preceding reasons, I find that Ms Warnock's dismissal was not harsh, oppressive or unfair.
2. While I accept that Ms Warnock's intentions were not improper, the cumulative effect of her sustained breach of professional boundaries, the financial entanglement between Ms Warnock and AB, the lack of insight demonstrated during the investigation and these proceedings, and the respondent's reasonably held concerns about Ms Warnock's suitability for continued employment as a teacher, lead me to conclude that the respondent did not abuse the right to terminate Ms Warnock's contract of employment.
3. Accordingly, I will issue an order dismissing the application.