Cassis v NSW Department of Education & Training

Industrial Relations Commission (NSW)|1997-08-12|Before: Grayson DP, Mr P

CITATION: Cassis v NSW Department of Education & Training [2006] NSWIRComm 164 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Nabil Cassis NSW Department of Education & Training

Unfair dismissal - Allegations of aggravated indecent assault - Applicant employed as probationary teacher - Applicant acquitted of police charges - Employer conducted risk assessment and annulled probationary appointment - Dismissal said to be based on results of risk assessment rather than alleged misconduct - Whether probationary teacher excluded from unfair dismissal jurisdiction - Wheter child protection laws displace jurisprudence of Commission - Whether risk assessment protocol is distinguishable from allegations of misconduct giving rise to assessment - Onus of proof - Whether employer is required to prove misconduct to requsite standard CATCHWORDS: Held - Period of probation not determined in advance - Probationary teacher not precluded from bringing and maintaining unfair dismissal claim - Employer failure to establish misconduct - Dismissal harsh, unreasonable, unjust - Reinstatement ordered

Commission for Children and Young People Act 1998 Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Regulations 1996 Police Service Act 1990 Teaching Service Act 1980

Briginshaw v Briginshaw (1938) 60 CLR 336 O'Rourke v Miller (1984-5) 156 CLR 342 at 353-4 Shop, Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Coles Myer ltd v Shop, Distributive and Allied Employees Association (NSW) (1989) 27 IR 299 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Smith v Director General of Education (1993) 51 IR 204 Olle v De Bono Institute World Centre for New Thinking, Print P3932 12 August 1997 Deligiannis v Village Roadshow Limited, Print P6907, 1 December 1997 CASES CITED: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464 Oslead Pty Ltd v Baier, Print Q6780 24 September 1998 M v M (1998) 63 ALJR 108 Davidson v Beethoven Computer Services, Print S7129, 19 June 2000 Longworth v Desklosin Pty Ltd t/as Tom Byrne Motor Cycles, PR912484, 20 December 2001 New South Wales v Lepore and Another (2003) 195 ALR 412 Garner v Smashmaster Pty Limited PR942114, 17 December 2003 Director of Public Prosecutions v Cassis, Henson LCM, Downing Centre Local Court, 10 May 2004 Ferraris v NSW Police [2005] NSWIRComm 240

HEARING DATES: 16/09/05, 18/10/2005, 08/03/2006, 10/03/2006, 10/04/06, 12/04/06

Mr P Moorhouse of counsel instructed by Gregory Goold Solicitors (Mr L Ting) LEGAL REPRESENTATIVES: Mr S Benson of counsel instructed by Mr P Quinn, Senior Industrial Officer, Department of Education and Training

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Nabil Cassis and NSW Department of Education & Training

Application by Nabil Cassis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 In these proceedings the Commission is asked to determine three essential questions firstly, whether in the exercise of discretion the application for relief in relation to unfair dismissal which was made seven days out of time, should be accepted; secondly, whether the applicant who was a probationer at the time of his dismissal on 25 July 2005 is exempted from Part 6 Unfair Dismissals of Chapter 2 of the Industrial Relations Act 1996 (the Act) and thirdly, whether the dismissal was harsh, unreasonable or unjust. 2 As to the first question, there is no dispute that the applicant instructed his solicitors on the day that he was dismissed, to commence proceedings on his behalf. There is also no dispute that his solicitors wrongly believed and acted on the belief that applications may be filed within twenty-eight days of the dismissal rather than twenty-one days as prescribed by s 85 (1) of the Act. The delay in making the application was thus due to representative error. There is no suggestion that acceptance by the Commission of the out of time application would in any way prejudice or cause hardship for the respondent. Indeed the respondent indicated from the outset that it did not wish to be heard on the matter. Having regard, therefore, to the various matters required by s 85 (3) of the Act to be taken into account, I accept the application out of time. 3 Turning then to the question of the applicant's standing as a probationer, it is the respondent's contention that the applicant is precluded from bringing or maintaining the proceedings by reason of the operation of cl. 6 (1) (c) of the Industrial Relations (General) Regulation 2001 (the Regulation). 4 The Regulation, which sets out certain classes of employees who are not entitled to bring claims in unfair dismissal under Ch 2, Pt 6 of the Act relevantly states: 6(1) [Classes of employees] For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) … (b) … (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) … (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment (emphasis added) 5 The respondent contends by reference to among other things, to the Commission's recent decision in Ferraris v NSW Police [2005] NSWIRComm 240 that the statutory scheme relating to the appointment of probationary police constables pursuant to the Police Act 1990 is for present purposes, materially indistinguishable from the Teaching Service Act 1980 relating to the appointment of probationary teachers. 6 In Ferraris it was held that clause 6 (1) (c) of the Regulation operated to preclude probationary police from access to the unfair dismissal jurisdiction. I note that decision which is presently on appeal to the Full Bench, was based on an acceptance of two important pre-conditions to the operation of cl 6 (1) (c) of the Regulation firstly, that the regulation made under the Police Act 1990 provided for the period of probation to be determined in advance of appointment and secondly, that the period of 12 months probation was reasonable having regard to the nature and circumstances of police employment. Indeed, the latter pre-condition as to reasonableness was expressly conceded by the applicant in Ferraris. 7 In this case, both propositions are squarely challenged by the applicant and it is therefore instructive to examine the two statutory schemes as they relate to probationary employment to see whether, as the respondent contends, the schemes are undistinguishable for present purposes. In the case of police officers, s 73 of the Police Act 1990 provides: 73 Appointment of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from NSW Police at any time and without giving any reason. Whereas cl 13 of the Police Regulation states: 13 Appointment of constables on probation (1) In accordance with section 73 (2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation: (a) for a period of 1 year, or (b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person. (2) Despite subclause (1), the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in NSW Police or in any other police service or police force (however called). (3) All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority. 8 In the case of teachers, s 48 of the Teaching Service Act 1980 relevantly provides: 48 Appointments on probation (1) Unless the Director-General, in a particular case or class of cases, otherwise determines, a person who is not an officer of the Teaching Service when the person is appointed by the Director-General to a position in that service shall be appointed on probation, which shall be for a period of 12 months or such longer period as the Director-General may in any particular case or class of cases determine. (2) The Director-General may: (a) after the expiration of the period of probation for which a person is so appointed, confirm or annul the appointment, or (b) during the period of probation for which a person is so appointed, extend the period of probation or annul the appointment. (emphasis added) 9 It seems clear enough on the face of it, that the statutory scheme relating to the appointment of probationary teachers vests in the Director-General a discretion to vary the period of probation during its currency (s 48 (2) (b) above) whereas the Police Act 1990 seems to require the peiod of probation to be specified at its outset. 10 As to that, it is submitted on the applicant's behalf in this case that where an employee such as the applicant is engaged for a specified period (in this case for a period of 12 months) with the express possibility of an extension during that period, then it cannot be said as cl 6 (1) (c) of the Regulation requires, that the duration of the period has been determined in advance. I agree. 11 In my opinion, the respondent faces insuperable difficulty in making out its case for exclusion of the present application on jurisdictional grounds by reason of that fact alone and it is therefore unnecessary to express a concluded view as to the reasonableness of the probationary period. 12 This approach is consistent with the approach taken in various decisions of the Australian Industrial Relations Commission to which I have been taken, applying the provisions of the Workplace Relations Act 1996 and regulations made thereunder dealing in virtually identical terms with the requirement that probationary periods be determined in advance (see Oslead Pty Ltd v Baier, Print Q6780 24 September 1998; Longworth v Desklosin Pty Ltd t/as Tom Byrne Motor Cycles, PR912484, 20 December 2001; Garner v Smashmaster Pty Limited PR942114, 17 December 2003). 13 In Longworth, for example, Lawson C described the matter this way: Meaning of Determined in Advance' [6] A number of cases have considered the operation of regulation 30B(1)(c) where the original probationary period has been extended after an employee has commenced work. The question for determination is whether such an extended period was determined in advance'. [7] For the purposes of regulation 30B(1)(c), the probationary period must be determined in advance of the employment relationship rather than in advance of the contract of employment (per Watson SDP in Deligiannis v Village Roadshow Limited, Print P6907, 1 December 1997; a similar distinction was drawn by Whelan C in Olle v De Bono Institute World Centre for New Thinking , Print P3932 and by Watson SDP in Davidson v Beethoven Computer Services , Print S7129, 19 June 2000). Extension of Probationary Period [8] The reference in paragraph (i) of regulation 30B(1)(c) to "the period, or the maximum duration" of probation assumes that the probationary period can be extended provided that the maximum possible period of probation is determined in advance. While there is nothing unlawful in an employer seeking to extend a period of probation, an application will not be excluded by regulation 30B(1)(c) unless the option of such an extension was determined in advance of the employee entering into employment (per Whelan C in Olle v De Bono Institute World Centre for New Thinking , Print P3932, 12 August 1997). [9] Provision for extension of a probationary period for a further unspecified period does not meet the requirement of regulation 30B(1)(c) that the maximum probationary period be determined in advance (per Deegan C in Baier v Oslead Pty Ltd , Print Q4890, 13 August 1998, citing Whelan C in Olle v De Bono Institute World Centre for New Thinking , Print P3932; decision of Deegan C was upheld on appeal by Giudice J, Drake DP and Lewin C, Print Q6780, 24 September 1998, citing the unreported decision of Farrell JR in Thompson v Sons of Gwalia Ltd (8 October 1996) where it was stated that `The employee must not merely know with some certainty for how long they will be on probation, they must know it in advance' ). 14 I am of the view for those reasons that the application presently before the Commission is competent and should be dealt with according to its merits. 15 As to that, the backgrounds facts as extracted by Mr Moorhouse of counsel for the applicant may be usefully set out as follows: Background facts 1. The applicant's affidavit sworn 20 November 2005 discloses the following uncontested evidence:

(a) the applicant was of Egyptian nationality, and came to Australia in 1996, where he has since resided; (b) the applicant performed and tutored music in Egypt for approximately 15 years, including conducting private piano tutoring; (c) from 1998 until 2000 the applicant undertook a Bachelor of Music degree at the University of New South Wales, graduating in 2000; (d) in 2003 the applicant undertook, and completed, a Bachelor of Teaching (Secondary) at the University of Western Sydney; (e) from 1998 to 2003 the applicant tutored on average 15 to 20 private piano students per week, with ages ranging from 6 to adult, and including teenage girls; (f) on 3 September 2003 the applicant was arrested and charged with two counts of aggravated indecent assault; (g) in about February 2004 the applicant commenced casual or temporary teaching for the Department of Education and Training ("the Department"). He taught for three weeks in term 1 at Robert Townsend High, and then for most of term 2 and all of term 3 at Ingleburn High; (h) the charges brought against the applicant were heard in the Local Court on 15 and 16 April 2004, and were dismissed in a decision handed down on 10 May 2004; (i) on 30 September 2004 the applicant was given a permanent appointment as a teacher (mobile) music at Sarah Redfern High School. He taught at that school for all of term 4, 2004; (j) on or about 25 November 2004 the applicant was contacted by Mr David Gallard from the Department, who enquired about the charges and requested references and a written submission from the applicant about his suitability for working as a teacher; (k) over the following days, the applicant provided Mr Gallard with a written statement, and three brief references; (l) on about 2 December 2004 Mr Gallard again contacted the applicant and requested a copy of the Local Court decision, which the applicant subsequently sought to provide through his solicitor, Mr Goold. There was then correspondence between Mr Goold and the Department regarding the basis for the investigation into the applicant; (m) the applicant travelled overseas from 25 December 2004 until 22 January 2005; (n) upon his return home the applicant received a letter from the Department stating that he had been assessed as a medium risk. On about 28 January 2005 the applicant received a letter from Mr Johnson, the Department's Relieving Director of Staffing Services, stating that as a result of the risk assessment the Department was considering annulling his appointment. The letter also directed the applicant to undertake non-teaching alternative duties; (o) submissions were subsequently made by Mr Goold on behalf of the applicant regarding the risk assessment, and requesting a review of that risk assessment; (n) the applicant was then informed that Mr Reg Pollock had been engaged to review his employment status with the Department; (o) Mr Pollock's report, which was admitted into evidence, was provided to the applicant. It was accompanied by a covering letter from Mr Johnson dated 25 April 2005 which again stated that the Department was considering annulling the applicant's employment and gave the applicant a further opportunity to provide written submissions; (p) there was then further correspondence and discussions between Mr Goold and officers of the Department, including further written submissions as to why the Department's assessment of the applicant was flawed and a request for an interview with Mr Johnson; (q) on 25 July 2005 the applicant's employment was terminated with immediate effect by letter handed to him on that day. 2. The Local Court charges brought against the applicant resulted from a complaint made by one of his private piano students. Although two charges were brought, they arose out of what can be described as a single allegation by the student that the applicant rubbed her in the vaginal area, and then touched the outside of her brassiere, during the piano lesson which occurred on 25 August 2003. At the hearing of those charges the complainant also alleged that the applicant had rubbed her in the vaginal area during their piano lesson the previous week. A description of the conduct as alleged by the complainant is set out in the decision of Henson LCM delivered 10 May 2004, which was admitted into evidence in this proceeding. 3. The applicant maintained his innocence at the time that he was charged, and at all subsequent times. His evidence in this proceeding includes a statement under oath that the allegations made against him were false. 4. The applicant is married with two young children. Up to the time of him giving evidence he had not obtained any alternative teaching position, and his private tutoring (generally conducted on weekends and sometimes in the evenings) was his only source of income. The family was largely dependent on the wife's income. 5. All of the applicant's professional training was in the areas of music and teaching. His evidence was that since coming to Australia his goal had been to obtain a permanent teaching position within a school, and he had undertaken four years of tertiary study towards that goal. 6. The applicant gave evidence that he remained committed to teaching, wished to resume a teaching career with the Department, and was aware of his responsibilities and duties towards young students. He also gave evidence that he was greatly upset, and suffered significant stress, as a result of the termination of his employment by the Department.

16 It may be useful to observe at this point that the respondent approached the proceedings from the outset on the basis that it did not intend and it did not need to establish that the applicant misconducted himself as alleged in the criminal proceedings. Rather, the respondent contends that it held itself bound to carry out a risk assessment on the applicant once it was discovered in the course of a criminal records check that the applicant had faced criminal charges and regardless of the fact that he was acquitted of those charges. 17 The risk assessment protocol which was developed under the auspices of the Commission for Children and Young People for use by accredited employment screening agencies such as the respondent, employs a system of numerical ratings derived from a so-called criminal record module and a workplace characteristics module. The applicant was assessed as being of medium risk and his appointment was ultimately annulled in accordance with departmental policy. 18 It is not disputed firstly, that the allegations and the charges arising from the allegations were the sole trigger for the risk assessment and secondly, that the workplace characteristics module of the risk assessment protocol would place most if not all teachers at a medium risk level if universally applied across the teaching profession. 19 As I understood the evidence, this is because of the intrinsic nature of teaching involving as it does, for example, unsupervised contact with children in the employment setting more often then not in the absence of other adult staff or parents and involving, as it also does, the teacher frequently working alone with individual children. 20 The variable in the risk assessment protocol or one of the variables, for want of a better term, is the existence of alleged offences involving children and/or young people and it is here that the applicant complains of being unfairly treated by the respondent in the use to which such allegations were put and the material bearing which they so obviously had on risk assessment outcome and consequently on the respondent's decision to terminate his employment. 21 It is contended for the applicant that where an employee is summarily dismissed for serious misconduct amounting to a criminal offence, the onus is on the employer to prove the misconduct to the reasonable satisfaction of the Commission (see Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83-84; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464). 22 In Wang, the requisite burden of proof was described by the Full Bench in this way: The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged misconduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1998) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer ltd v Shop, Distributive and Allied Employees Association (NSW) (1989) 27 IR 299. 23 It is further contended for the applicant that the evidence before the Commission cannot form the basis of a finding to the requsite degree of satisfaction that the alleged aggravated sexual assault in fact occurred. The applicant gave direct evidence that the allegations against him were false and he was available to be cross examined on the issue in order that his evidence might be properly tested in the usual and appropriate way. 24 On the other hand, the only evidence in support of the allegations is the hearsay evidence constituted by the transcript of the complainant's evidence before the Local Court. The complainant did not give direct evidence here and was not available for cross examination. 25 The applicant argues in such circumstances that the transcript evidence must be given little weight and that it would be a denial of natural justice for the Commission to place that evidence above the applicant's direct and consistent denial of the allegations without the applicant having the opportunity to test that evidence. It is further submitted for the applicant that any fair reading of the complainant's transcript evidence would not lead to any let alone the prerequisite degree of satisfaction that the alleged conduct had in fact occurred. Certainly the presiding Local Court magistrate who heard the complainant's evidence expressed significant doubts about the reliability and acceptability of that evidence and as much is clear from a reading of the decision of his Honour Henson LCM who said: In these proceedings the evidence of the defendant has not been diminished in terms of its potential for acceptability. To the contrary the evidence of the complainant has suffered significantly in that regard. 26 As earlier observed, the repsondent's case proceeds upon the basis that the allegations of misconduct against the applicant form no material part of the decision to dismiss him and it is not necessary therefore, that such allegations are made out to the prerequisite degree of satisfaction. It is submitted, in any event that the presiding Magistrate stopped short of finding that the complainant in those proceedings had given false evidence. 27 It is submitted by Mr Benson for the respondent that in effect, the employer's obligation to make out the allegations of misconduct insofar as those allegations apply to offences against children, has been displaced by the statutory regime introduced by the Commission for Children and Young People Act 1998 and in particular by the provisions of Part 7 _ Employment Screening of that Act. 28 Mr Benson points to the clear parliamentary intention to require screening in areas of child-related employment and to the equally clear intention that the welfare of children be the paramount consideration in such screening. He points also to the provisions of s 44 of the Commission for Children and Young People Act towards the end of Part 7 which explain the effect of Part 7 on other rights and procedures including rights in circumstances where, as here, allegations of unfair dismissal are raised. 29 Section 44 (2) of the Commission for Children and Young People Act provides as follows: (2) Nothing in this Part affects any statutory right that an employee may have in relation to employment or termination of employment. However, any court or tribunal exercising jurisdiction with respect to any such right must have regard to the results of any employment screening carried out under this Part in connection with the employment concerned and the welfare of children as the paramount consideration in that employment screening. 30 It is the provisions of Part 7 of the Commission for Children and Young People Act including the extract of those provisions set out above which, on the respondent's case, make it mandatory that the risk assessment protocol of an approved screening agency such as the respondent be used to the exclusion of other risk assessment protocols and on that basis the expert psychological evidence called initially by the applicant and later by the respondent may be safely left aside. 31 It is the provisions of Part 7 of this Act particularly the extract of those provisions set out above which on the respondent's case, requires that the risk assessment it carried out as an approved screening agency be given predominant weight in determining whether the applicant is a suitable person to be employed as a teacher. 32 As to the proposition for which Mr Moorhouse contends, namely, that if the dismissal were left undisturbed it would effectively mean that a teacher against whom such allegations are made is placed in an almost impossible position of being required to prove his or her innocence, Mr Benson submits that such a consideration is not a relevant consideration having regard to the statutory scheme laid down by the child protection laws including but not limited to the welfare of children as the paramount consideration in the screening process. 33 Mr Benson submits that a finding in the criminal proceedings that the complainant had given false testimony and had perjured herself would have been a very relevant consideration and the type of supporting information that the respondent was seeking form the applicant to establish his continuing assertion that he had been falsely accused. In the absence of such supporting information, in Mr Benson's submission, the applicant continued throughout the risk assessment process, to have the onus of establishing his suitability for placement as a teacher and to that end the obligation of offering some form of tangible explanation as to why the complainant would bring false allegations against him. In that regard Mr Benson relies on the decision of Gibbs CJ with whom Mason and Dawson JJ agreed in O'Rourke v Miller (1984-5) 156 CLR 342 at 353-4. 34 The basis of that submission, however, is somewhat unclear on the evidence as it stands particularly when one examines the criminal record module of the risk assessment protocol which appears to record and give a numerical weighting to the fact of an acquittal rather than the basis of it. The relevant question generating the numerical response is whether the person being assessed "was acquitted of an offence which involved sexual activity or act(s) of indecency" and it does not appear on its face to permit a different or lower score to be given to an acquittal based on false evidence or perjury, for example, than to an acquittal based on doubts about the reliability of accusatory evidence as in the case of the applicant's acquittal. 35 It may be that what Mr Benson is putting is that there is a general discretion vested in the risk assessor to go outside the numerical score and reduce the level of risk thereby assessed in an appropriate case. Either way, it is clear enough that the onus was placed squarely on the applicant to persuade the risk assessor as to such matters or in other words to prove his innocence and it is that feature of the risk assessment protocol which is the most controversial in the context of these proceedings. 36 The respondent's argument proceeds further upon the basis that this is not a misconduct case of the type which would require application of the principles in Pastrycooks and Wang for example. Indeed, on the respondent's argument, it is not a misconduct case at all. It is a case, as Mr Benson submits: … that raises the question of suitability of a probationary teacher to be affirmed as a teacher or annulled. 37 It is submitted by Mr Benson as I understood it that although the annulment of a teacher's probationary appointment is a dismissal for present purposes (Smith v Director General of Education (1993) 51 IR 204) the characterisation of probationary employment involves the idea of something in the nature of a trial and experiment with a view to determining whether to permanently appoint a probationer. It is not necessary therefore, that there be misconduct. It can be a situation where a trial or assessment of suitability has been found wanting. 38 Mr Benson relied also on the judgment of the High Court in New South Wales v Lepore and Another (2003) 195 ALR 412 in terms of the duty of care owed by the respondent to pupils within the education system and to the legal liability borne by the respondent for the criminal acts of its teachers against those pupils. In that regard, Mr Benson submitted: BENSON: There their Honours were clearly pointing out the scope of teachers if they were so motivated to cultivate and groom children. At page 498 Justice Callinan also makes pertinent comments. I take you to those expressions of the High Court, the legal duties imposed upon the Department of Education and Training because as the employer, it is legally liable for the sexual assault on its teachers and on the students in their care.

The High Court in Lepore and Parliament in introducing the new legislative regime in 1998 recognised the need for screening of a stringent nature to be introduced and to remove any ambiguity as to whose interests were paramount and those are the interests of the children involved in the schools in the state. The implementation of that statutory regime having regard to its purpose in the context of the legal duty of care imposed upon the Department of Education and Training as employer to apply a stringent screening process to exclude from direct teaching roles persons whose suitability is called into question. As the High Court said in O'Rourke v Miller, there was a duty to weed out persons concerning whom the relevant employer entertained any reasonable doubts. If there is a reasonable doubt about the applicant's suitability, then the Department of Education and Training, responding to the notification from CrimTrac and the employment screening processes, acted in a proper manner in proceeding to annul the probationary employment of the applicant.

That sending away, to use the language in Smith's case, of the applicant from that probationary employment was not in the context of probationary employment in the context where there had been allegations made of a criminal nature, that whilst they did not meet the criminal standard in an evidentiary sense sufficient to convict the applicant, still raised serious issues of concern and those issues of concern came within the protocol framework established by the Commission for Children and Young People as a legitimate concern for the Department. In that context the annulment was not harsh, it was not unreasonable and it was not unjust. The applicant had only 10 weeks teaching before he - in fact less when the issues first came to light. He had only 10 weeks of actual teaching before the detailed review process got underway.

In summation, the Department was entitled to rely on risk assessments provided by the accredited screening agency. The statutory purpose of the screening was to elevate the protection of children as the paramount consideration of assessing suitability and that overrides the employment considerations of the applicant in respect to child related employment and that statutory scheme followed the High Court's enunciation of the duties of school authorities. The protocols of the Commission for Children and Young People are formed by expertise in child protection. The risk assessment of the applicant provided a legitimate concern which had a duty to act upon it and thus the annulment of the appointment was not harsh, unreasonable or unjust. 39 As to the effect of Part 7 of the Commission of Children and Young People Act, Mr Moorhouse submitted that the respondent's failure to comply with the requirement to carry out employment screening prior to or as soon as reasonably practicable after the applicant's actual employment (see s 37 (2) and s 37 (3) of that Act) has the effect of negating s 44 (2) of the Commission for Children and Young People Act and thereby removing any obligation on the Commission to have regard to the results of the screening on the basis that the screening was not carried out properly in accordance with the requirements of the Commission for Children and Young People Act. 40 Mr Moorhouse submitted in the alternative that in any event, the effect of s 44 of the Commission for Children and Young People Act does not mean that it automatically overrides the principles the Commission would otherwise apply or other matters of fairness. It is the welfare of children and not the employment screening which is the paramount consideration. The Commission would have regard to the results of the employment screening without the necessity of displacing other considerations that would ordinarily apply. I think, on balance, that must be the correct approach and I say that without in any way diminishing the paramountcy to be given to the welfare of children. 41 It seems to me that if the Parliament had intended the results of employment screening to apply to the exclusion of other considerations, it would have expressly said so and in the absence of an express provision in that regard, the child protection legislation to which I have been taken should not be read to mean that the jurisprudence of the Commission is effectively displaced. 42 Having said that, I can see no basis for a conclusion that the normal legal principles applicable to misconduct cases should not be applied here and it cannot be that an abstract concept of risk generated by allegations of criminal misconduct can in the course of these proceedings become divorced from those allegations and the consequent necessity to make them out to the requisite standard. The allegations of misconduct form the sole basis for the risk assessment and as such, in my opinion, are an integral element of the respondent's decision to terminate the applicant's employment. As the evidence does not permit a finding that the allegations have been made out to the requisite standard, it must reasonably follow and I find accordingly that the dismissal was harsh, unreasonable and unjust. 43 Although it was submitted by Mr Benson that the Commission would find reinstatement impracticable, given the context of the criminal proceedings and the employment policies of the respondent, and given the proposition that reinstatement to face to face teaching would be untenable without raising the most serious concerns of parents whose children come within the applicant's care, it is not a submission which has anything but the flimsiest evidentiary basis and it should not be accepted as I am disposed. 44 It is to be remembered that the applicant was acquitted of charges of criminal misconduct and as Mr Moorhouse points out with some persuasive force, there is no evidence upon which to base such a submission other than some evidence in the abstract from Mr Pollock that relies in itself on the assumption that the alleged misconduct occurred. 45 Against that, there is evidence relied upon by the applicant from various sources attesting his competency as a music teacher. 46 The Commission makes the following orders:

The applicant be reinstated in his former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.
The respondent pay to the applicant an amount representing remuneration lost or foregone as a result of being dismissed.
The period of the applicant's employment with the respondent be taken not to have been broken by the dismissal.

AMENDMENTS HISTORY: 24/05/2006 - Typographical error in para 11 - unsuperable changed to insuperable - Paragraph(s) 11

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