Coleman v State of Queensland

Public Service Act 2008, s 187 and 188

Aird v Department of Community Safety, Queensland Ambulance Service [2013] QIRC 185

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258

Mathieu v Higgins [2008] QSC 209

Mitchell v Royal New South Wales Canine Council Ltd [2001] NSWCA 162; (2001) 52 NSWLR 242

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department of Education, Training and the Arts [2009] QIRC 11

Mr C. Bolovan of Counsel, instructed by Kilmartin Knyvett Lawyers, for the Applicant.

Ms A. Freeman of Counsel, instructed by Crown Law, for the Respondent.

[1] Mr Stephen Coleman was the Principal of Goodwood State School ('the school') and was employed by the State of Queensland ('the State') through the Department of Education ('the Department'). The school is a primary, co-educational school.

[2] Mr Coleman commenced employment at the school in January 2012.

[3] By letter dated 23 April 2018, Mr Duncan McKellar, Acting Assistant Director-General, Human Resources of the Department, terminated Mr Coleman's employment. The termination was effective from Mr Coleman's receipt of Mr McKellar's letter. Mr Coleman was paid an amount in lieu of notice.

[4] The termination of Mr Coleman's employment followed a discipline procedure conducted by the Department under the Public Service Act 2008 ('the PS Act'). The discipline procedure concerned 10 allegations made against Mr Coleman.

[5] In summary, the first six allegations were that between 2014 and 2016, Mr Coleman had engaged in an inappropriate and unprofessional manner towards two students. The seventh allegation was that upon Mr Coleman receiving information a student had been self‑harming, he failed to respond appropriately and professionally in accordance with the relevant departmental guideline. The three remaining allegations were that Mr Coleman, had contravened a direction, given to him at the commencement of the discipline procedure, not to communicate electronically with departmental employees.

[6] The Department determined that the 10 allegations were substantiated and that, by his conduct, Mr Coleman was guilty of misconduct within the meaning of s 187(1)(b) and s 187(4)(a) and (b) of the PS Act.

[7] By application for reinstatement filed on 11 May 2018, Mr Coleman contended that his dismissal was unfair within the meaning of the Industrial Relations Act 2016 ('the Act').

[8] The remedy he seeks is compensation in lieu of reinstatement or re-employment.

• did Mr Coleman engage in the conduct alleged in respect of the 10 allegations?

• to the extent Mr Coleman did engage in the conduct as alleged, was he guilty of misconduct within the meaning of s 187(4) of the PS Act?

• was Mr Coleman's dismissal harsh, unjust or unreasonable having regard to s 320 of the Act? and, if so

• what amount of compensation should the State be ordered to pay Mr Coleman having regard to s 322 of the Act?

[10] In my view, Mr Coleman's dismissal was not harsh, unjust or unreasonable.

[12] Mr Coleman commenced as a teacher employed by the State in 1999 and was employed as a Principal from 2002. Immediately prior to his dismissal, he was employed as a Teaching Principal at the school.

[13] Mr Coleman's evidence was that he had worked predominantly as a teacher throughout his life. His curriculum vitae discloses that prior to him commencing work as a teacher in 1999, he held the positions of:

• Director of Youthline, an organisation based in Tasmania, that provided, amongst other services, crisis phone counselling services for youth;

• Senior Project Officer with the West Tamar Community Youth Support Scheme;

• Special Method Tutor with the University of Tasmania; and

• Training Team Leader with the Launceston Skillshare/Northern Job Link Inc.

[14] Mr Coleman holds a Diploma of Teaching in Vocational Education and a Bachelor of Education (Primary) with distinction. Mr Coleman has been the recipient of awards by the Queensland College of Teachers for his service and leadership to State education and by the Queensland Association of State School Principals for his leadership and influence on State education.

[15] Mr Coleman's duties as the Principal of the school included:

• administering the school, including preparing duty rosters and leading the professional development and management of staff; and

[16] Mr Coleman's evidence was that the school operated differently to other larger schools in South-East Queensland. By way of example, he stated that at the school, it was not uncommon for teachers to lead a particular cohort of students for a number of years and that students could have a Teaching Principal for seven years.

[17] Mr Coleman's evidence was that prior to the allegations that led to his dismissal, he had never been the subject of any disciplinary process during his career as a teacher and Principal, or indeed in any other role.

[18] By letter dated 11 October 2016 from Mr Des Kluck, the Department's Executive Director, Performance and Safety, Mr Coleman was advised that allegations had been raised in relation to his conduct whilst employed as Principal at the school. Mr Coleman was directed that he was not to contact any staff or students of any departmental school unless he had prior approval and that such contact included the use of electronic communication/social media ('the 11 October direction'). Following on from that, Mr Coleman was placed on alternative duties in the Department's office in Bundaberg.

[19] The allegations started with an initial complaint made by three teachers at the school to Ms Tracy Crosbie, Regional Director of the Department's North Coast Region. Those complaints concerned, in summary, Mr Coleman's management of particular employee matters, his electronic communication with a staff member outside of hours, alleged inappropriate physical contact between Mr Coleman and a student and an issue concerning a student being allowed into the staffroom.

[20] The allegations against Mr Coleman were investigated by the Department's Ethical Standards Unit ('ESU'). That investigation was conducted by a Mr Mike Primmer, Principal HR Consultant of the North Coast Region.

[21] During the course of Mr Primmer's investigation, other concerns were raised about Mr Coleman's conduct. Ultimately, 12 allegations were investigated.

[22] Mr Primmer completed his investigation and made a written report dated 22 December 2016[1] ('Mr Primmer's report'). The allegations, by reference to the numbers used in Mr Primmer's report,[2] included:

Mr Coleman is alleged to have inappropriately put his arm around [Student A][3] at the end of the 2014 school concert.

Mr Coleman is alleged to have inappropriately hugged [Student A] outside the classrooms on the morning of the last day of the 2015 school year.

Mr Coleman is alleged to have inappropriately referred to [Student A] as beautiful and cute on a daily basis when she was at the school.

Mr Coleman is alleged to have inappropriately contacted [Student A] on Facebook in 2016.

Mr Coleman is alleged to have inappropriately communicated with [Student A] through e-mails from April to August 2016.

[23] Mr Primmer found that Allegations 7 and 10 were capable of substantiation. In respect of Allegation 10, the emails the subject of that allegation were provided to Mr Primmer by Student A.

[24] Mr Primmer's report was then forwarded to Ms Patricia O'Shaughnessy, Principal Advisor, Employee Relations Unit, North Coast Region, for her review given her role required her to manage investigations conducted in that region.

[25] Ms O'Shaughnessy considered Mr Primmer's conclusions, assessed the conclusions against the evidence gathered and listened to the audio recordings of the persons interviewed by Mr Primmer during his investigation ('Ms O'Shaughnessy's review').

[26] The audio recordings of those interviews were in evidence before the Commission but were not played in court.

• Allegations 6, 8 and 9 were also capable of substantiation; and

• two further additional allegations, not originally investigated by Mr Primmer, were capable of substantiation.

[28] Further, on the basis of other material received by her in early 2017, Ms O'Shaughnessy considered Mr Coleman, by emails he had sent to other employees in the Department, had breached the 11 October direction on three occasions.

[29] Ms O'Shaughnessy then recommended to Ms Crosbie that Mr Coleman should be invited to show cause why he should not be disciplined in accordance with the PS Act in relation to the allegations that Mr Primmer found were substantiated and in relation to the allegations she believed were capable of substantiation.

[30] Ms Crosbie accepted those recommendations.

[31] By letter dated 21 February 2017, Ms Crosbie wrote to Mr Coleman, through his then solicitors, inviting him to show cause as to why disciplinary findings should not be made against him in relation to 10 allegations ('the first show cause notice').

[32] The 10 allegations contained in the first show cause notice were:

Allegation One: During 2014 you engaged in an inappropriate and unprofessional manner towards [A], a student, when you put your arm around her at the end of the school concert. (Allegation Six in the Investigation Report)

Allegation Two: During 2014 you engaged in an inappropriate and unprofessional manner towards [B],[4] a student, when you put your arm around her at the end of the school concert.

Allegation Three: At the conclusion of the 2015 school year, you engaged in an inappropriate and unprofessional manner toward [A] when you hugged her. (Allegation Seven in the Investigation Report)

Allegation Four: During 2015 you engaged in an inappropriate and unprofessional manner towards [A], when you referred to [A] as beautiful and told her that she was a lovely girl. (Allegation Eight in the Investigation Report)

Allegation Five: During 2016 you engaged in an inappropriate and unprofessional manner towards [A] when you communicated with [A] via a Facebook private messenger service. (Allegation Nine in the Investigation Report)

Allegation Six: From 23 April 2016 to 9 August 2016 you engaged in an inappropriate and unprofessional manner towards [A], a student, when you communicated with [A] via email. (Allegation Ten in the Investigation Report)

Allegation Seven: On Sunday 24 July 2016 at 11.12am upon receipt of information from [A] that she had been self-harming you failed to respond appropriately and professionally to that information and in accordance with the Department's Student Protection Guidelines. (implemented July 2016)

Allegation Eight: On 16 January 2017 at 12.13pm you contacted departmental school staff by electronic communication in breach of the terms and conditions of your alternative duties as directed by Mr Des Kluck, Executive Director, Performance and Safety on 11 October 2016.

Allegation Nine: On 19 January 2017 at 10.29am you contacted departmental school staff by electronic communication in breach of the terms and conditions of your alternative duties as directed by Mr Des Kluck, Executive Director, Performance and Safety on 11 October 2016.

Allegation Ten: On 20 January 2017 at 12.04pm you contacted departmental school staff by electronic communication in breach of the terms and conditions of your alternative duties as directed by Mr Des Kluck, Executive Director, Performance and Safety on 11 October 2016.[5]

• provided a summary of the particulars of each allegation, through footnotes which referred to the paragraph numbers in Mr Primmer's report, which in turn summarised the evidence relied upon by Mr Primmer; and

− pages 1 to 42 of Mr Primmer's report, including the 15 attachments as noted in that report;

− the email correspondence from Mr Coleman the subject of Allegations Eight, Nine and Ten;

− a table containing the content of the emails between Mr Coleman and Student A the subject of Allegation Six; and

− the audio recorded statements of the students and other persons interviewed by Mr Primmer.

[34] In addition, Ms Crosbie, after setting out the allegations and a summary of the particulars of the allegations, also set out the sections of the PS Act in respect of which she considered Mr Coleman may be liable to disciplinary action. In this regard, Ms Crosbie stated:

• in respect of Allegations One, Two, Three, Four, Seven, Eight, Nine and Ten, she considered that Mr Coleman may be liable to disciplinary action on the basis that, pursuant to s 187(1)(b) of the PS Act, Mr Coleman was guilty of misconduct, that is inappropriate or improper conduct in an official capacity, within the meaning of s 187(4)(a) of the PS Act; and

• in respect of allegations Five and Six, she considered that Mr Coleman may be liable to disciplinary action on the basis that, pursuant to s 187(1)(b), Mr Coleman was guilty of misconduct, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act or, in the alternative, she considered that Mr Coleman may be liable to disciplinary action on the basis that, pursuant to s 187(1)(b) of the PS Act, Mr Coleman was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.

• in accordance with the principles of natural justice, no determination of his liability had been or would be made in relation to the allegations until he had the opportunity to respond; and

• he had 14 days from the date of receipt of the first show cause notice to show cause why Ms Crosbie should not be reasonably satisfied he was liable to be disciplined in relation to the allegations.

[36] On or about 13 March 2017, Mr Coleman provided a detailed response to the first show cause notice.

[37] Further, on or about 13 March 2017, a Security Investigation Report, sought by the Department to ensure that the emails disclosed by Student A represented the full extent of the email correspondence exchanged between her and Mr Coleman, identified that 127 emails were exchanged between them between the period of time Student A was at the school and when Student A was a student in a high school operated by the State ('the Security Investigation Report').

[38] By June 2017, the disciplinary procedure had passed to Ms Leigh Pickering, Assistant Director-General, Human Resources. As part of her role, Ms Pickering had the delegated authority to make certain decisions under the PS Act including decisions with respect to disciplinary matters.

[39] The Security Investigation Report disclosed email exchanges between Student A and Mr Coleman which were in addition to those the subject of Allegation Six (Allegation 10 as investigated by Mr Primmer).

[40] After having reviewed the additional emails, Ms Pickering considered that Allegation Six should be amended to read:

Allegation Six: From 15 September 2015 to 8 October 2016 you engaged in an inappropriate and unprofessional manner towards [A], a student, when you communicated with [A] via email.[6] ('amended Allegation Six')

[41] By letter dated 5 June 2017, Ms Pickering informed Mr Coleman of her decision to amend Allegation Six. In that letter, Ms Pickering:

• provided Mr Coleman with the terms of the amended Allegation Six;

• summarised the particulars of the amended Allegation Six;

• set out why, in Ms Pickering's view, the emails relevant to amended Allegation Six were in breach of the Department's Standard of Practice;

• advised Mr Coleman she considered he may be liable to disciplinary action on the basis that:

− pursuant to s 187(1)(b) of the PS Act, he was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act; or, in the alternative

− pursuant to s 187(1)(b), he was guilty of misconduct, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act; and

• attached, amongst other documents, copies of the emails the subject of amended Allegation Six ('the amended show cause notice').[7]

[42] In the amended show cause notice, Ms Pickering also advised Mr Coleman that:

• in accordance with the principles of natural justice, no determination of his liability had been or would be made in relation to amended Allegation Six until he had the opportunity to respond; and

• he had 14 days to show cause why she should not be reasonably satisfied that he is liable to be disciplined in relation to amended Allegation Six.

[43] By letter dated 20 June 2017 from Mr Coleman's former solicitors, Mr Coleman responded to the amended show cause notice.[8]

[44] By letter dated 2 November 2017, Ms Pickering advised Mr Coleman that she had determined:

• each of the 10 allegations against him were substantiated;

• in respect of Allegation Five, Mr Coleman was guilty of misconduct within the meaning of s 187(1)(b) and s 187(4)(b) of the PS Act in that he engaged in inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service; and

• in respect of the remaining nine allegations, Mr Coleman was guilty of misconduct within the meaning of s 187(1)(b) and s 187(4)(a) of the PS Act in that he engaged in inappropriate or improper conduct in an official capacity.[9]

[45] Ms Pickering gave extensive reasons for her determinations.

[46] Ms Pickering further advised Mr Coleman that:

• he was liable for disciplinary action pursuant to s 188 of the PS Act and that she was currently giving serious consideration to the termination of his employment;

• in terms of the principles of natural justice, no final determination of the disciplinary penalty had been made or would be made until he had the opportunity to respond and he was given seven days to show cause why he should not be dismissed; and

• his response would be considered in her final determination of penalty together with other specific considerations set out by Ms Pickering ('the show cause on penalty notice').

[47] By letter dated 1 December 2017, Mr Coleman provided a response to the show cause on penalty notice. In doing so, he referred to the specific considerations set out by Ms Pickering in the show cause on penalty notice ('Mr Coleman's penalty response').[10]

[48] The disciplinary procedure was then dealt with by Mr McKellar. Mr McKellar had the delegated authority to determine any disciplinary penalty to be imposed against Mr Coleman.

[49] Mr McKellar's evidence was that for the purposes of making his decision, he was provided with, amongst other documents:

• Mr Coleman's response to the show cause notices;

[50] Mr McKellar's evidence was that he considered all the above documents and satisfied himself that each of the allegations were capable of being substantiated for the reasons set out in Ms Pickering's letter dated 2 November 2017.[12]

[51] By letter dated 23 April 2018, Mr McKellar informed Mr Coleman that:

• in response to particular submissions made in Mr Coleman's penalty response, the reasons why he did not change the disciplinary findings made by Ms Pickering; and

• the reasons for his decision to terminate Mr Coleman's employment.[13]

The Public Service Act 2008

[52] Section 187 of the PS Act provides:

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has-

(a) performed the employee's duties carelessly, incompetently or inefficiently; or

(c) been absent from duty without approved leave and without reasonable excuse; or

(d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or

(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee's appointment, secondment or employment by, in response to the requirement-

(i) failing to disclose a serious disciplinary action; or

(ii) giving false or misleading information; or

(i) a provision of this Act; or

(ii) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(iii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.

(3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)-

(a) a public service employee under section 187A; or

(b) a former public service employee under section 188A.

(a) inappropriate or improper conduct in an official capacity; or

(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

victimising another public service employee in the course of the other employee's employment in the public service

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

[53] Apart from the definition of misconduct in s 187(4), the PS Act does not go on to provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct as contained in that definition.

[54] In Mathieu v Higgins ('Mathieu'),[14] Daubney J gave consideration to the construction of the Queensland Ambulance Service Disciplinary Policy ('the QAS Policy'). The QAS Policy concerned ambulance officers employed by the Queensland Ambulance Service.

[55] Section 20 of the QAS Policy relevantly provided:

The QAS may discipline officer if the delegate... is reasonably satisfied that the officer has:

1. performed the officer's duties carelessly, incompetently or inefficiently;

[56] Section 10(a) of the QAS Policy defined 'misconduct' as 'disgraceful or improper conduct in an official capacity.'

[57] Justice Daubney thought the observations of Kirby P in Pillai v Messiter (No 2)[15] were instructive in construing 'misconduct' in s 10(a). In Pillai v Messiter (No 2), Kirby P, in addressing the meaning of the expression 'misconduct in a professional respect' in the Medical Practitioners Act 1938, said:

But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[16]

[58] Justice Daubney held that the decision of Kirby P assisted in the construction of 'misconduct' in the QAS Policy because:

• the words 'disgraceful' and 'improper', while included in the definition in s 10(a) as alternatives, should not be regarded as wholly independent and each term should be read as giving colour to the other; and

• the definition must be read in context in that 'misconduct' was listed as one form of 'unacceptable workplace behaviour' and which was expressly separated from other forms of sub-optimal workplace behaviour such as 'carelessness, incompetence or inefficiency'.[17]

[26] These two considerations compel the conclusion that 'misconduct,' as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct,' to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.[18]

[60] Section 187(4)(a) of the PS Act relevantly defines 'misconduct' as 'inappropriate or improper conduct in an official capacity.' However, s 187(1)(a) refers to the relevant employee performing '... the employee's duties carelessly, incompetently or inefficiently' as another disciplinary ground.

[61] Because a public service employee's careless, incompetent or inefficient conduct is a separate disciplinary ground under s 187 of the PS Act, the analysis of Daubney J is of assistance in construing s 187(4)(a) of the PS Act.

[62] In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.

[63] Section 188(1) of the PS Act provides that in disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken - defined as 'disciplinary action' - that the chief executive considers reasonable in the circumstances. Examples of disciplinary action are then given, namely:

• reduction of classification level and a consequential change of duties;

• transfer or redeployment to other public service employment;

• forfeiture or deferment of a remuneration increment or increase;

The Industrial Relations Act 2016

[64] Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.

[65] A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted. Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[19]

[66] In many cases, the concepts of harshness, unjustness or unreasonableness will overlap.[20]

[67] Section 320 of the Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:

• whether the employee was notified of the reason for dismissal;

• whether the dismissal related to the operational requirements of the employer's undertaking, establishment or service or the employee's conduct, capacity or performance;

• if the dismissal related to the employee's conduct, capacity or performance, whether the employee had been warned about the conduct, capacity or performance or whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

• any other matters the Commission considers relevant.

[68] In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[21]

[69] In applications by dismissed employees under ch 8, pt 2 of the Act, following the employee being dismissed after a discipline process under the PS Act, where the relevant chief executive or delegate has to be reasonably satisfied the employee has been guilty of misconduct, the onus of proof falls upon the respondent to establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct as alleged.[22]

[70] Whether the misconduct occurred is to be decided on the balance of probabilities; and the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.[23] This consideration invokes the principle in Briginshaw v Briginshaw ('Briginshaw').[24] That principle does not go to the standard of proof but to the standard of evidence, such that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[25]

[71] Whether or not the Commission can be satisfied the misconduct occurred is a separate consideration to whether the dismissal was harsh, unjust or unreasonable within the meaning of the Act and whether the former employee is entitled to a remedy under the Act.[26] However, if it is determined that an employee's dismissal was not authorised by the PS Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the Act.[27]

[72] In unfair dismissal cases involving findings of misconduct under the predecessor to the PS Act, these principles have led to the following approach being taken by the Commission, namely, in respect of each allegation of misconduct, the Commission is to determine:

• whether in fact each allegation has been substantiated on the balance of probabilities;

• whether the explanation provided by the employee is accepted;

• whether those facts are established to the Briginshaw standard of evidence; and

• if so, whether the allegations which are substantiated meet the test of the definition of misconduct in the PS Act.[28]

[73] The State's evidence included the material that was before Ms Pickering and Mr McKellar. Only Mr McKellar was cross-examined by Mr Coleman.

[74] Mr Coleman gave evidence on his own behalf and was cross-examined.

Did Mr Coleman engage in the conduct alleged in respect of the 10 allegations, and to the extent Mr Coleman did engage in the conduct as alleged, did he engage in misconduct within the meaning of s 187(1)(b) and s 187(4) of the PS Act?

[75] The allegation was that during 2014, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A, when he put his arm around her at the end of the school concert.

[76] Student A was a student at the school from 31 October 2012 to 11 December 2015.

[77] From January 2011, the Code of Conduct for the Queensland Public Service ('the Code') was in operation and applied to employees of Queensland public service agencies. The Code is expressed to contain the ethics principles and their associated set of values prescribed in the Public Sector Ethics Act 1994 and contains standards of conduct for each ethics principle.

[79] There are five standards of conduct under the integrity and impartiality ethics principle and includes s 1.5 which is headed 'Demonstrate a high standard of workplace behaviour and personal conduct.' That section relevantly provides:

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own

[80] In April 2013, the Department issued a document entitled 'Standard of Practice' ('the 2013 Standard'). The then Director-General of the Department, in a message at the commencement of the 2013 Standard, stated that:

• professionalism and a high standard of ethical conduct is shown in all work activities of employees of the Department and was supported by a clear statement of what is expected of employees and was aligned to the Code which assisted employees in supporting ethical standards of behaviour and expectations across government;

• the 2013 Standard helped employees of the Department deliver on the four fundamental ethics principles and also provided advice and guidance for employees in making ethical decisions, especially in circumstances where the 'correct' or 'best' course of action may not be clear; and

• it was essential, and therefore mandatory, for all staff to not only read the 2013 Standard in conjunction with the Code, but also to undertake and maintain up‑to‑date training to develop a clear understanding of the ethical principles, values and standards of conduct that support the employees' daily work in the Department.[29]

[81] Section 1.5 of the 2013 Standard was headed 'Demonstrate a high standard of workplace behaviour and personal conduct'. A part of that section was sub-headed 'Protecting students from harm' and relevantly provided:

All students have a fundamental right to a safe and trusted physical and emotional environment that is free from harm. Departmental employees hold a special position of trust arising from the nature of the work. As employees we exercise powers that have a significant impact on the lives of students and consequently there is a community expectation that these powers will be properly and prudently used. Therefore, employees should strive to establish, build and maintain positive relationships with students so that the self-esteem and social development of students are enhanced.

Employees must actively seek to prevent harm to students and support those students who have been harmed.

Employees must read, understand, and comply with the Department's Allegations against employees in the area of student protection procedure and the Student Protection procedure, and be aware of their duty of care at common law. Employees must be aware of their responsibilities in preventing and responding to harm or risk of harm to all students.

An employee must not misuse the professional relationship with a student for personal or private gain.

Employees should strive to establish, build and maintain positive relationships with students so that the self-esteem and social development of students are enhanced.

Examples of inappropriate interactions (behaviours that raise a reasonable suspicion that the standards applying to the professional employee - student relationship have or may be breached) include:

• disregarding appropriate physical distances from students; other than for justifiable educational or safety purposes[30]

[82] The evidence gathered by Mr Primmer was that Student A said that Mr Coleman put his arm around her at the end of the school concert in 2014 and it made her feel uncomfortable.[31] Mr Primmer, as part of his investigation, interviewed, amongst other persons, Student A and Mr Coleman. I have listened to Student A's interview.

[83] In the written information Mr Coleman provided to Mr Primmer after his interview, Mr Coleman admitted to putting his arm around Student A[32] and supplied photographs taken by Student A's mother of him putting his arm around Student A and another student after the 2014 school concert.[33] Mr Coleman said he did not feel that his conduct was inappropriate but rather congratulatory and caring.[34]

• physical conduct towards Student A was not appropriate given his professional obligation to build and maintain positive professional relationships with students for the purpose of enhancing their self-esteem and social development;

• physical conduct towards Student A made her feel uncomfortable and notwithstanding his submission that his physical conduct of putting his arm around Student A may have been viewed by guests, parents, students and staff, his conduct was contrary to the 2013 Standard; and

• physical conduct towards Student A was not reasonable, was not necessary in the circumstances, was inappropriate and unprofessional, was a serious breach of trust and demonstrated significant errors of judgement in his capacity as Principal.[35]

[85] Ms Pickering determined that in respect of Allegation One, Mr Coleman was guilty of misconduct in that he engaged in inappropriate or improper conduct in an official capacity. In making that determination, Ms Pickering referred to the fact that as an employee of the Department, Mr Coleman was subject to s 1.5 of the Code and s 1.5 of the 2013 Standard.[36]

[86] Mr Coleman's evidence‑in‑chief was to the same effect as what he stated to Mr Primmer.[37]

• agreed that there was no safety or justifiable educational purpose for putting his arm around Student A;

• agreed he could have offered Student A verbal encouragement or congratulations instead of physical contact; and

• stated he regretted doing what he did, but his intentions were honourable, and that Student A's mother put them together for her to take the photo.[38]

[88] During his cross-examination, Mr Coleman said that he had never seen the 2013 Standard before.[39] I do not accept this evidence of Mr Coleman. There are three reasons for this.

[89] First, Mr Coleman had been a teacher employed by the State from 1999 and, from 2002, he was employed as a Principal by the State. All that employment was in primary schools operated by the State.

[90] Secondly, the 2013 Standard not only bound Mr Coleman, but the other employees at the school who he supervised as Principal and the 2013 Standard placed specific obligations on Principals in relation to the protection of students.[40]

[91] Thirdly, Mr Coleman agreed, in cross‑examination, that he had been undertaking training since 2013 that dealt with aspects of the 2013 Standard, including student protection.[41]

[92] I find it implausible, for these reasons, that Mr Coleman had never seen or was not aware of the 2013 Standard.

[93] It was put to Mr McKellar, in cross‑examination, that he formed the view that the mere fact Mr Coleman posed for the photo, with Mr Coleman's arms around a student's shoulder, was an inappropriate physical distance to have. Mr McKellar's response was that the Standard of Practice tries to avoid all of those occurrences being questioned.[42] It was further suggested to Mr McKellar that the Department's position was that under no circumstances would a teacher put their arm around student for a photo. Mr McKellar agreed that was his position.[43] It was then put to Mr McKellar that was still his position even though the photo was taken in full view of those at the concert, that Student A's parent had asked Mr Coleman and Student A to pose for the photograph and that there was nothing else otherwise inappropriate or improper about the behaviour.[44]

• the Department needed to be cautious about judging any kind of intent and deciding that such conduct is sometimes acceptable and sometimes not acceptable and that those were threshold issues for the Department in terms of how it manages relationships between students and teachers;

• the Department had the Standard of Practice so that the Department did not need to infer any intent; and

• the Department set the Standard of Practice which provides what is not considered acceptable behaviour so the Department did not need to judge each behaviour on its individual subjective merits.[45]

• his explanation that he posed for a photo with Student A, as directed by her mother, in public and at the end of the school concert should be accepted;[46]

• his conduct was not contrary to the requirement in s 1.5 of the Code because the mere fact that Student A expressed that she felt uncomfortable for the brief moment of the interaction, without more, is not sufficient to support a finding that his conduct fell short of that requirement;[47] and

• his conduct was not contrary to the requirement in s 1.5 of the 2013 Standard because placing his arm around a student in the context of a photograph and/or during the school concert, is an appropriate physical distance for a teacher to keep; and to suggest that such physical distance, in that context, was inappropriate given only one student expressed discomfort, without more, could not be seen as inappropriate or improper.[48]

[96] The evidence from Mr Coleman establishes that during 2014, he put his arm around Student A at the end of the school concert.

[97] For the reasons given earlier, I do not accept that Mr Coleman was not aware of the 2013 Standard. Mr Coleman knew that under the 2013 Standard he was not to disregard appropriate physical distances from students other than for justifiable educational or safety purposes. That was the accepted standard that bound Mr Coleman. As Mr McKellar stated, the Standard of Practice was imposed so that the Department did not need to infer any intent and did not need to judge each behaviour on its individual subjective merits.

[98] The fact that Mr Coleman may have put his arm around Student A at the behest of Student A's mother at the end of the school concert and in public, in my view, misses the point of the 2013 Standard.

[99] Mr Coleman had professional responsibilities as a Principal and teacher and was bound by the 2013 Standard which provided that an example of an inappropriate student interaction was an employee disregarding appropriate physical distances from students, other than for justifiable education or safety purposes. There was no justifiable educational or safety purpose for him putting his arm around Student A, who, at that time, was a primary school student. For these reasons, I do not accept Mr Coleman's explanation.

[100] Applying the analysis of Daubney J in Mathieu, for Mr Coleman to have engaged in 'misconduct' by engaging in inappropriate or improper conduct, that conduct must be at least a deliberate departure from accepted standards.

[101] Mr Coleman's conduct was not justifiable under the 2013 Standard. In my view, his conduct was inappropriate conduct in an official capacity. This is because Mr Coleman's conduct was a deliberate departure from the accepted standard as set out in the 2013 Standard. Mr Coleman disregarded the appropriate physical distances from Student A other than for a justifiable educational or safety purpose.

[102] In this respect, Mr Coleman's conduct meets the definition of 'misconduct' in s 187(1)(b) and s 187(4)(a) of the PS Act.

[103] The allegation was that during 2014, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student B, when he put his arm around her at the end of the school concert.

[104] Student B said that at the end of the school year, when the grade 6s and 7s were leaving to go to high school, Mr Coleman hugged her but that she had not been concerned and that it was the only time he had hugged her.[49] Mr Primmer audio recorded an interview with Student B. I have listened to Student B's recorded interview. Student B gives this evidence. Student B's evidence is slightly contrary to the allegation in that Student B recalled Mr Coleman hugged her at the end of the school year. The allegation, as identified by the Department, was that Mr Coleman put his arm around Student B at the end of the school concert in 2014.

[105] Before Mr Primmer, Mr Coleman stated he could not recall hugging Student B.[50] I have listened to Mr Coleman's audio recorded interview with Mr Primmer. That was Mr Coleman's evidence to Mr Primmer.

[106] Ms Pickering found that Mr Coleman's conduct, as alleged, had occurred.[51] Ms Pickering determined that Mr Coleman's physical conduct towards Student B was not appropriate, was not professional and that she was of the view that hugging and putting his arm around a 10 year old female student required him to be in close proximity to the child; and by virtue of its character, that physical contact is more sustained and intrusive than a teacher tussling the head of a student or high-fiving a student. Ms Pickering found that Mr Coleman's physical contact upon Student B was not reasonable or necessary, was a serious breach of trust and demonstrated significant errors of judgement by Mr Coleman in his capacity as Principal.[52]

[107] Ms Pickering determined that in respect of Allegation Two, Mr Coleman was guilty of misconduct in that he engaged in inappropriate or improper conduct in an official capacity. In making that determination, Ms Pickering referred to the fact that as an employee of the Department, Mr Coleman was subject to s 1.5 of the Code and s 1.5 of the 2013 Standard.[53]

[108] In his evidence-in-chief, Mr Coleman said he did not have a recollection of putting his arm around Student B, but that it was possible and it was likely to be congratulatory.[54]

[109] Mr McKellar was cross-examined about this allegation. It was suggested to Mr McKellar that it was perfectly understandable for a teacher and a student, who the teacher looked after for many years, to share a hug at the end of the school year when the student was moving to high school. Mr McKellar's response was that they may want to do that, but the Department gives its employees training that expressly says they should not and must not. Indeed, Mr McKellar's evidence was that it was something the Department includes in training for every teacher every single year to make sure that it does not happen because it can be interpreted by other students, and potentially parents, as something not innocuous. Mr McKellar stated that was the risk the Department ran and why the Department has such a hard line on those types of issues.[55]

[110] Mr Coleman submitted that his explanation - although it is possible that he placed his arm around Student B and that was in the context of congratulating her, as he did with other students on that day - should be accepted.[56]

[111] Mr Coleman's evidence about this allegation before the Commission was vague and did not amount to a specific denial of the allegation. Having regard to Student B's statement to Mr Primmer, I am of the view that Mr Coleman did put his arm around Student B although it is not clear whether or not this was after the school concert.

[112] For the reasons given earlier, I do not accept Mr Coleman's evidence that he was unaware of the 2013 Standard. The fact that his conduct towards Student B may have been congratulatory and that Student B had not been concerned about his conduct misses the point of the 2013 Standard. Mr Coleman's explanation, in this regard, should not be accepted. Mr Coleman knew that he must not engage in such conduct.

[113] In my view, Mr Coleman's conduct was inappropriate conduct in an official capacity. This is because Mr Coleman's conduct, in respect of this allegation, was a deliberate departure from the accepted standard as set out in the 2013 Standard. Mr Coleman disregarded appropriate physical distances from students other than for justifiable educational or safety purposes.

[114] Mr Coleman's conduct was inappropriate conduct in an official capacity and therefore meets the definition of 'misconduct' in s 187(4)(a) of the PS Act.

[115] The allegation was that at the conclusion of the 2015 school year, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he hugged her.

[116] The evidence before Mr Primmer from Student A was that, on the last day of school in 2015, Mr Coleman said to her he would keep in touch with her by email and he hugged her with two arms and that when he did so, he was in front of her.[57] Student A said she told another teacher, Ms Christina Mattiazzi, what had occurred and that it made her feel uncomfortable.[58] I have listened to the audio recording of Mr Primmer's interview with Student A. Student A gave that evidence.

[117] Mr Primmer interviewed Ms Mattiazzi who stated that she saw Mr Coleman, on the last day of school in 2015, hug Student A, that Mr Coleman had put his arms around Student A and that the student may have hugged him back with one arm. Ms Mattiazzi stated that she had not thought anything about it until Student A came inside and told her that Mr Coleman gave her 'the creeps'. Ms Mattiazzi stated that it happened at about 8.45 am on the grassed area between the classrooms.[59] I have listened to the audio recording of Mr Primmer's interview with Ms Mattiazzi. Ms Mattiazzi gives that evidence.

[118] When Mr Primmer put this allegation to Mr Coleman, he responded by saying it sounded like a natural thing he would do and that he would have been saying goodbye to Student A on her journey into Year 7.[60] Mr Coleman also stated it probably would have been an embrace, had been about caring and compassion and that Student A had definitely not felt uncomfortable.[61] I have listened to the audio recording of Mr Primmer's interview with Mr Coleman. Mr Coleman gave this evidence.

[119] Ms Pickering found the allegation to be substantiated[62] and also found that Mr Coleman's physical conduct towards Student A was not reasonable, was not necessary and notwithstanding that his physical conduct towards Student A was in the open grassed area, his conduct remained inappropriate and unprofessional.[63]

[120] Ms Pickering referred to the fact that as an employee of the Department, Mr Coleman was subject to s 1.5 of the Code and s 1.5 of the 2013 Standard.[64] Ms Pickering determined that in respect of Allegation Three, Mr Coleman was guilty of misconduct in that he engaged in inappropriate or improper conduct in an official capacity.[65]

• students approached him and hugged him farewell as they left his school for the last time in their move to high school; and

• if he had hugged Student A on that day, it was done so in an open and clearly visible public view, that the student did not appear uncomfortable with his behaviour on that day and that, at the time, he believed his reaction on that day was natural and normal.[66]

[122] In cross‑examination, Mr McKellar stated that his evidence in respect of Allegation Two was the same for Allegation Three.[67]

[123] Mr Coleman submitted that the Commission should accept his explanation that students approached him at the end of 2015 to hug him farewell as they left school for the last time and that if he had hugged Student A, he did so in a public, rather than a private setting and that, at the time, he believed that to be a natural reaction.[68]

[124] Mr Coleman submitted that the giving or reciprocation of a hug between a teacher and student, in a public setting, in the context of it being the last day of school for the particular student, '... is an unremarkable act.'[69]

[125] Mr Coleman also submitted that the mere fact that Student A expressed that she felt uncomfortable in that moment, or that Mr Coleman gave her 'the creeps', particularly when looking at the entirety of the professional relationship between Student A, her mother and Mr Coleman, is not sufficient to support a finding that the behaviour was inappropriate or improper.[70]

[126] Having regard to the statements made by Student A and Ms Mattiazzi to Mr Primmer, and to Mr Coleman's statements to Mr Primmer when asked about this allegation in his interview and Mr Coleman's evidence before the Commission, I find that at the conclusion of the 2015 school year, Mr Coleman did hug Student A.

[127] I do not accept Mr Coleman's explanation that the giving or reciprocation of a hug between a teacher and a student, in a public setting, in the context of it being the last day of school for that particular student, is 'an unremarkable act'. The fact that Mr Coleman's conduct towards Student A may have been reciprocative, on the last day of school and in a public setting, misses the point of the 2013 Standard.

[128] Mr Coleman knew he was bound by the 2013 Standard. The 2013 Standard provided that an example of an inappropriate student interaction was an employee disregarding appropriate physical distances from students, other than for justifiable education or safety purposes. Mr Coleman knew that he must not engage in such conduct. Mr Coleman's conduct, therefore, was in contravention of the 2013 Standard because his conduct was a deliberate departure from the 2013 Standard.

[129] In my view, Mr Coleman's conduct was inappropriate conduct in an official capacity and therefore meets the definition of 'misconduct' in s 187(4)(a) of the PS Act.

[130] The allegation was that during 2015, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A, when he referred to Student A as beautiful and told her that she was a lovely girl.

[131] The evidence before Mr Primmer from Student A was that Mr Coleman called her 'cute' and 'beautiful' on a daily basis. Student A said, as an example, if she was upset, Mr Coleman would say she should keep her head high and that she was beautiful. Student A said that while she appreciated the comments, it made her feel uncomfortable.[71] I have listened to Student A's audio recorded interview with Mr Primmer. Student A does make these comments.

[132] Mr Coleman's evidence before Mr Primmer was that it was definitely not true that he had referred to Student A as beautiful and cute. Mr Coleman said Student A would often go into a 'downward spiral' and become negative and feel bad about herself. Mr Coleman stated that if Student A had been sad, it would be natural for him to say something like Student A was a lovely girl and that he believed in her, but it was not a regular occurrence. Mr Coleman said that Student A had not felt uncomfortable when he said that.[72] I have listened to Mr Coleman's audio recorded interview with Mr Primmer. Mr Coleman does make these comments.

[133] Mr Primmer found that on the basis of the evidence available at that time, the allegation was not capable of substantiation.[73] Mr Primmer found:

217. The evidence did not support that Mr Coleman had referred to Student [A] as beautiful and cute and regular basis. In the example she has given, it had been appropriate for Mr Coleman to use the term beautiful, as she had admitted she had been upset at the time. He had likely been using the term to lift her spirits. There was also no pattern of behaviour among the other students of Mr Coleman referring to them using inappropriate terms of endearment.[74]

[134] Ms Pickering found that Mr Coleman did make the alleged comments to Student A[75] and found the comments made were not appropriate given his professional role as Principal and employee of the Department and given that Student A was a student at the time.[76] In making her findings about this allegation, Ms Pickering referred to s 1.5 of the Code and to s 1.5 of the 2013 Standard (under the sub-heading of 'Interactions with Students') referred to earlier in these reasons.[77]

[135] Ms Pickering found that Mr Coleman's conduct was inconsistent with his professional obligation to build and maintain a positive professional relationship with Student A for the purposes of enhancing her self-esteem and social development and that he was guilty of misconduct in that he engaged in inappropriate or improper conduct in an official capacity.[78]

[136] In his evidence‑in‑chief, Mr Coleman admitted that he had called Student A 'a lovely lass' because he was using an Irish accent in the classroom, as his mother was Irish, and he did that in an attempt to be funny and to add a joyful and relaxed atmosphere to learning; and that he would have referred to Student A as beautiful '... at some stage over the four years I had taught her ...' and that it was likely he referred to her as beautiful '... where the student was crying or appearing to feel bad about herself ' and that he may have said she was a beautiful person within that context.[79]

[137] In his evidence in cross-examination, Mr Coleman gave evidence to the same effect,[80] however Mr Coleman denied that he called Student A 'beautiful'.[81]

[138] Mr McKellar's evidence in cross‑examination was that he considered the comments to be unprofessional language and that the kind of language used by Mr Coleman was not required to uplift someone's spirit.[82]

[139] Mr Coleman referred to the decision by Mr Primmer that this particular allegation was not capable of substantiation because the evidence before Mr Primmer did not support that Mr Coleman had referred to Student A as beautiful and cute on a regular basis.[83]

[140] Mr Coleman also referred to his evidence in cross-examination where he explained that Student A was prone to spiralling downward and that the words were said in the context of encouragement that she would do fantastic things.[84] Mr Coleman submitted that this explanation should be accepted and that it was in line with the evidence given by him to Mr Primmer about the nature and frequency of the behaviour alleged against him.[85]

[141] Mr Coleman then referred to his evidence-in-chief where he stated that he would have referred to Student A as a 'lovely lass' and as 'beautiful' at some stage over the five years he taught that particular student. Mr Coleman also referred to his evidence-in-chief and submitted that he used either term to build a relaxing environment in the classroom, or in a context where Student A was crying or feeling bad.[86]

[142] Mr Coleman submitted that the conduct the subject of this allegation, namely calling Student A 'beautiful' and telling Student A that she was a 'lovely lass'[87], occurred in the context of Mr Coleman attempting to create a warm environment for the student to learn and to comfort the student when she was upset, again in a school setting; and that when regard is had to s 1.5 of the Code and the 2013 Standard, it was difficult to see how the alleged conduct, at its highest, might be seen as inappropriate or improper. Mr Coleman submitted that it was not clear how calling Student A 'beautiful' or a 'lovely lass' in front of a class of students could be construed as flirtatious or disrespectful and that the mere fact Student A had expressed discomfort is not sufficient to support a finding that the expressions used were inappropriate or improper.[88]

[143] The State submitted[89] that Mr Coleman did not dispute that he may have called Student A beautiful on occasions, in relation to her as a person, rather than relating to any physical qualities and that Mr Coleman agreed it was inappropriate for him to send Student A an email at 10.26 pm on 23 April 2016 in which he called her a 'lovely lass'.[90]

[144] The State further submitted that this conduct was inconsistent with Mr Coleman's obligation to build and maintain a positive, professional relationship with students for the purpose of enhancing their self-esteem and social development, it demonstrated lack of insight as to how that conduct might be perceived by others and was a significant error in judgement by Mr Coleman in his capacity as Principal.[91]

[145] The allegation that Mr Coleman referred to Student A as 'beautiful' concerned Student A's physical appearance. That is clearly the context in which Student A gave her evidence to Mr Primmer. Student A did not say to Mr Primmer that Mr Coleman called her 'beautiful' in the context of her character.

[146] In my view, having regard to Mr Coleman's evidence in cross‑examination, I do not find that he referred to Student A as 'beautiful' in the sense of Student A's physical appearance. Mr Coleman's evidence in cross-examination was that he would refer to Student A as a 'beautiful person' when he was trying to support her when she was feeling gloomy. The evidence is insufficient for me to conclude, on the balance of probabilities, that Mr Coleman referred to Student A as 'beautiful' in respect of her physical appearance.

[147] Again, in my view, it is reasonably clear that the 'lovely girl' part of this allegation concerns Mr Coleman's alleged comments about Student A's physical appearance rather than any comment about Student A's character. Student A did not give any evidence that Mr Coleman called her a 'lovely girl'. Mr Coleman told Mr Primmer that he would have called Student A 'a lovely girl' if she was sad. On this evidence, Mr Coleman's comments were not about Student A's physical appearance.

[148] Having regard to both Mr Coleman's evidence and Student A's evidence, there is insufficient evidence for me find that this allegation is proven on the balance of probabilities.

[149] For these same reasons, the State's submissions about this matter are inconsistent with what is actually alleged in Allegation Four. Furthermore, notwithstanding that Mr Coleman admitted he inappropriately referred to Student A as a 'lovely lass' in an email he sent to her on the evening of 23 April 2016, that is not what was specifically alleged in the second part of Allegation Four.

[150] The allegation was that during 2016, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he communicated with Student A via a Facebook private messenger service ('Messenger').

[151] In February 2016, the Department issued a new Standard of Practice ('the 2016 Standard').[92]

[152] The 2016 Standard is expressed to be a departmental publication which supports the Code and provides '... further ethical guidance to departmental employees about applying the Code's principles, values and standards of conduct to our daily work.'[93]

[153] Section 1.5 of the 2016 Standard is headed 'Demonstrate a high standard of workplace behaviour and personal conduct'. A part of that section is sub-headed 'Electronic communication between employees and students' and relevantly provides:

All telephone, email, SMS and other social networking contact by employees with students must be authorised by the employee's principal or manager. Records of the approval and the nature of the communication should be kept on file by the principal or manager who will advise the parent/custodian of the communication if required.

The following standards relate to all employees who have any form of contact with students.

Unless in exceptional circumstances, electronic communication with students is unacceptable unless:

• for justifiable appropriate educational reasons and
• approval has been obtained from the employee's principal or manager.

A record of the approval is to be kept by the employee and the employee's principal or manager.

Communication must not occur with students using a personal or departmental mobile phone, either verbally or by text message unless:

• for justifiable appropriate educational reasons and
• prior approval has been obtained from the employee's principal or manager.

A record of the approval is to be kept by the employee and their principal or manager.

Communication must not occur with students from an employee's private or personal email address and employee communication with students via departmental email must be for official purposes only.

Example: appropriate electronic communication between employee and students

A teacher uses their departmental email to provide assignment feedback to a student via the student's departmental email address.

Example: inappropriate electronic communication between employee and students

A teacher uses their personal email to provide assignment feedback to a student via the student's departmental email address.

A teacher uses their departmental email to provide assignment feedback to a student via the students personal email address.

A teacher uses their personal email to provide assignment feedback to a student via the student's personal email address.

Employees must not use personal social networking sites including Facebook and Twitter, to contact or access students enrolled in any state educational facility.

They must, to the best of their ability, prevent students from communicating with them or accessing their personal information via social media platforms. This includes restricting access to posts inappropriate for student viewing.

Employees must not use any official departmental social media site for non-work-related communication, or work-related communication that would be more appropriately addressed to a manager, principal or their regional office. They must only establish an official social media presence / site with approval from their principal or the Director-General.[94]

[154] Another part of s 1.5 of the 2016 Standard dealt with misconduct in a private capacity and relevantly provided:

The Code does not cover misconduct in a private capacity. However, Section 187 (4) (b) of the Public Service Act 2008 defines "misconduct" as inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Accordingly, in that capacity, private conduct may be subject to disciplinary action under section 187(1) (b) of the Public Service Act 2008.[95]

[155] The evidence before Mr Primmer was that Student A stated that Mr Coleman had made contact with her during out-of-school hours, that he had added her on Facebook and he then went on Messenger and sent messages asking how she was going at high school. Student A then stated that Mr Coleman told her he was not allowed to be friends with her on Facebook, so he asked her for her email address which she then provided to him.[96]

[156] Mr Coleman's evidence was that he had not accepted Student A's request for him to be a friend on Facebook, that Student A then contacted him on Messenger, they had a bit of dialogue and that he told her he could not add her as a friend as there were rules about teachers being friends with students on Facebook. [97]

[157] Ms Pickering determined that this allegation was substantiated on the basis that Mr Coleman's submissions confirmed that he did communicate with Student A via Messenger, that he did not have the authority to do so from an Assistant Regional Director and that the fact he communicated with Student A via Messenger meant that he did engage in electronic communication that was positively disapproved of by the Department.[98]

[158] Ms Pickering further determined that there was no evidence that Mr Coleman's Messenger communication to Student A was for justifiable appropriate educational reasons and that there was no evidence that Mr Coleman had sought and obtained the approval of an Assistant Regional Director to engage in communication with Student A on Messenger.[99]

[159] In his evidence-in-chief, Mr Coleman stated:

1. In relation to allegation five, I say that I was mistaken about the way in which departmental policy was intended to operate in such circumstances. [Student A] requested that I accept her as a friend on Facebook. I believe that she may have found me through mutual 'friends' on Facebook, being her mother and perhaps other adults that have accepted her request. I did not accept the request, being mindful that I am expressly prohibited from speaking to students on social media.[100]

[160] Mr Coleman then stated that minutes after he received Student A's request, a message, not from Facebook, '... but in the messenger system ... ' popped up in his browser window which was from Student A and which said 'hello'.[101]

[161] In cross-examination, Mr Coleman agreed that he replied to Student A on Messenger and agreed that he said to her that he could not connect with her as a friend on Facebook and agreed this was due to lots of rules about teachers not connecting with students.[102] Mr Coleman further stated that while he knew he could not 'friend' Student A on Facebook, he was '... unsure what Messenger was ...'[103] and that he was 'confused' whether he could communicate with her on Messenger.[104]

[162] Mr Coleman then agreed that when Student A said to him on Messenger: 'Hello, Mr Coleman', he could have ignored that but he said it was rude not to reply and to let Student A know he could not be a Facebook friend.[105]

• Mr Coleman was taken to parts of the 2016 Standard, as reproduced above in these reasons, and while he accepted that the 2016 Standard applied to him as at 5 March 2016, he said he was not aware of the policies in it;[106]and

• Mr Coleman admitted he knew that talking to students on Facebook was prohibited by the Department, that he could not 'friend on Facebook' and that it was the reason why he ignored Student A's Facebook friend request.[107]

[164] There was no evidence that Mr Coleman sought or received approval by his manager for him to be able to communicate, electronically, with Student A.

[165] In cross‑examination, Mr McKellar was taken to Exhibit 1, exhibit 'SC-03'. That contains a record of departmental training undertaken by Mr Coleman in 2018 dealing with what an employee should do when the employee receives a Facebook request to 'friend' a student. Mr Coleman's written answer, as part of the training, was to decline the request and to explain to the student that the employee cannot connect with them on social media. It was suggested to Mr McKellar that Mr Coleman's response to the request by Student A to 'friend' him on Facebook was consistent with his training. Mr McKellar's response was that the training was there to provide working examples for the purposes of annual refresher training.[108]

[166] Mr Coleman pointed out the inconsistencies between the evidence Student A gave to Mr Primmer compared to his evidence to Mr Primmer, namely that, it was in fact Student A who made the initial contact with Mr Coleman, by way of a Facebook friend request, which had not been accepted by Mr Coleman.[109]

[167] Mr Coleman then referred[110] to his response to the first show cause notice in which he stated that on 5 March 2016:

• the communication from Student A via Messenger came at 8.05 pm and said 'Hello mr Coleman!';

• he replied at 8.10 pm stating: 'I had better not connect with you as fb friend. Lots of rules about teachers not connecting with students'; and

• Student A then, via Messenger, said: 'You were always there for me and you were my teacher, principal and great friend. And now I guess you are just a good friend. It will always be that way. If I ever struggle in life I'll make sure I come to you.'[111]

[168] Mr Coleman also referred[112] to his evidence that on 10 March 2016, he communicated by Messenger with Student A' s mother. In that message he stated that:

• he felt uncomfortable about communicating with Student A on Messenger;

• he thought the connection with Facebook was too close and that departmental staff are not permitted to communicate with students of the department via Facebook;

• his role was not a social one but a supportive mentor one; and

• if she thought he could be of any value, whether she could think of a way that Student A could communicate easily.[113]

[169] Mr Coleman's evidence was that Student A's mother responded by stating that she understood what Mr Coleman was saying and asked Mr Coleman whether Student A replied to his emails or whether Student A only replied over '... facebook messenger?'[114]

[170] At this particular time, being March 2016, Student A was not at the school but was in high school.[115]

• the 2018 training (referred to in paragraph [165] of these reasons) which stated that the appropriate response to a student sending a friend request to a teacher was to decline the request and explain to the student that the employee cannot connect with them on social media;[116] and

• his own evidence in cross-examination where he explained that while he was not allowed to 'friend' students on Facebook or SMS them,[117] and that while he rejected Student A's request to connect with him on Facebook,[118] he was unsure what Messenger was or how that communication fell within departmental policy and that he did not want to be rude to Student A by not responding to the message she sent him on Messenger.[119]

[172] Mr Coleman submitted that his explanation should be accepted, that he acted within the scope of the training that had been provided by his employer and to the extent that while he technically breached the Department's policies, he did so in circumstances where he was not a sophisticated user of Facebook, nor the Messenger service.[120]

[173] I do not accept Mr Coleman's explanation.

[174] There are a number of reasons for this conclusion.

[175] First, as at March 2016, Mr Coleman was Principal of the school. I find it implausible that Mr Coleman would not have been aware of the content of the policies contained in the 2016 Standard given his position at the school and given the obligations Principals have under the 2016 Standard (as set out earlier in these reasons) in terms of keeping records of approval of social media contact between employees and students. Further, Mr Coleman, in his own evidence‑in‑chief, stated that he was expressly prohibited from speaking to students '... on social media.'[121]

[176] Secondly, Mr Coleman's evidence was that while he knew that he could not 'friend' Student A on Facebook, he was unsure of what Messenger was and was confused about its use in respect of the Department's policies. However, it is self-evident that Messenger is an application that permits electronic communications between persons. In that respect, it is similar to Facebook and SMS, both of which Mr Coleman admitted he was prohibited in using in contacting students.[122] Having regard to the facts that Mr Coleman admitted he could not 'friend' Student A on Facebook and his evidence‑in‑chief that he could not communicate with students on social media, I do not accept that Mr Coleman was confused about whether or not he was permitted by the Department to electronically communicate with Student A on Messenger. The issue is not the mechanism of the electronic communication between Mr Coleman and Student A, but the fact of the electronic communication.

[177] In any event, I find that Mr Coleman was not confused about whether the Department's policies prevented him from communicating with Student A on Messenger because of an email he sent to Student A relevant to Allegation Six. On Saturday, 23 April 2016, at 9.28 pm, Mr Coleman sent an email from his departmental email address to the personal email address of Student A where he stated:

Thank you [Student A's Christian name] - for persevering... so good to hear from you!!!

I was as nervous as heck sending you messages on meesenger[123] - we are not permitted to do that - but I was taking the risk because I didn't want to let you down ((-:[124]

[178] Finally, Mr Coleman admitted that in his response to the first show cause notice, he did not include the whole chain of the conversation he had with Student A on Messenger.[125] Mr Coleman's explanation was that his reasoning for not including the whole of the communication was because the allegation was that Student A thought that Mr Coleman made her feel uncomfortable; and so the reason he put Student A's Messenger response in his response to the first show cause notice, as referred to above at paragraph [167], was as evidence to rebut that allegation.[126]

[179] Mr Coleman's explanation about this is not satisfactory. On Mr Coleman's own admission, there were other communications on Messenger, made on 5 March 2016, between him and Student A which were not set out in his response to the first show cause notice. The content of those other communications was not before the Commission and is unknown. What is known is that the extent of the communications between Mr Coleman and Student A is more extensive than what Mr Coleman put in his response to the first show cause notice[127] and what he said in his evidence‑in‑chief.[128]

[180] The evidence is that Mr Coleman engaged in electronic communication with Student A via Messenger. Mr Coleman did this without any prior authorisation by his manager. Mr Coleman's conduct, in this regard, was in contravention of the 2016 Standard.

[181] It was conduct that was inappropriate and, as a consequence, amounts to misconduct within the meaning of s 187(4)(b) of the PS Act. This is because Mr Coleman's conduct was a deliberate departure from the accepted standard as set out in the 2016 Standard, namely, that social networking contact by employees with students must be authorised by the employee's principal or manager. Mr Coleman did not seek nor did he have any such prior authorisation from his manager.

[182] No suggestion was made by Mr Coleman that there was some justifiable appropriate educational reason for his electronic communication, via Messenger, with Student A. Mr Coleman's conduct was inappropriate conduct in a private capacity that reflected seriously and adversely on the public service because he was, in a private capacity, communicating with a student in direct contravention of the standards imposed on him by the Department.

[183] The amended Allegation Six was that from 15 September 2015 to 8 October 2016, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he communicated with Student A via email.

[184] Like the 2016 Standard, the 2013 Standard contained a section that dealt with electronic communication and social networking. That section relevantly provided:

All telephone, email, SMS and other social networking contact by employees with students must be authorised by the principal or manager. Records of the approval and the nature of the communication should be kept on file by the principal or manager who will advise the parent/custodian of the communication as appropriate.

The following standards relate to all employees who have any form of contact with students.

Unless in exceptional circumstances, electronic communication with students, particularly those under 18 years of age, is unacceptable unless:

• for justifiable appropriate educational reasons; or
• approval is gained from the employee's principal or manager.

A record of the approval is to be kept by the employee and the employee's principal or manager.

Communication must not occur with students using a personal or departmental mobile phone, either verbally or by text message unless:

• for justifiable appropriate educational reasons; or
• prior approval has been given by the employee's principal or manager.

A record of the approval is kept by the employee and by the employee's principal or manager.

Communication must not occur with students from a private or personal email address. Departmental policies allowing for communication with students via departmental email states that the communication must be for official purposes.

Employees must not use personal social networking sites including Facebook and Twitter, to contact or access students enrolled in any state educational facility. Employees must discourage students from communicating with them in this manner.

Employees must not use any official departmental social media site for inappropriate or non-work-related communication. They must only establish an official media presence / site with approval from the principal or manager.[129]

[185] Again, like the 2016 Standard, another part of the 2013 Standard dealt with private conduct and relevantly provided:

The Code of Conduct does not cover misconduct in a private capacity; however, private conduct that is misconduct is defined under section 187 (4) (b) of the Public Service Act 2008 as inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service and in this capacity misconduct is subject to disciplinary action under section 187(1) (b) of the Public Service Act 2008.[130]

[186] There was no dispute that Mr Coleman sent to Student A, and received from Student A, the emails the subject of this allegation.

[187] Copies of the emails were contained in Ms Pickering's letter dated 5 June 2017 to Mr Coleman.

[188] Mr Coleman's emails were sent from and received through his departmental email address.

[189] Student A's emails were sent from or received through her departmental email address or her personal email address.

[190] According to Ms Pickering's letter dated 5 June 2017:

• between 15 September 2015 and 21 April 2016, 10 emails were sent from Mr Coleman to Student A's departmental email address which were relevant to this allegation;[131] and

− 63 emails were sent from Mr Coleman to Student A's personal email address;[132] and

− 48 emails were sent from Student A's personal email address to Mr Coleman.[133]

[191] I will not, in these reasons, refer to each email sent from Mr Coleman to Student A and received by Mr Coleman from Student A.

[192] I set out a number of emails below. Many of these were put to Mr Coleman in cross‑examination and they are generally representative of the types of emails exchanged between Mr Coleman and Student A.

Emails between 15 September 2015 and 21 April 2016

[193] On Tuesday, 15 September 2015, at 8.12 am, Student A sent Mr Coleman an email that stated:

Hello Mr Coleman[134]

[194] On the same day, at 8.41 am, Mr Coleman responded by stating:

Heloooooooooo [Student A's Christian name][135]!!!!! ((-:[136]

[195] On the same day, at 8.43 am, Mr Coleman sent the following email to Student A:

You looked very sad yesterday.... Perhaps just tired... don't like to see you so sad... LOL... keep wanting to cheer you up! ((-:

And I guess that is really annoying! LOL... sorry ((-:[137]

[196] On the same day, at 8.49 am, Mr Coleman sent the following email to all students at the school:

Hope you are all well and having a great final week of term.

Look forward to seeing you all again in Term 4. [138]

[197] On Tuesday, 8 December 2015, at 10.04 pm, Mr Coleman sent the following email to Student A:

Did the email at home work - were you able to access EQ webmail?[139]

[198] The next morning, on 9 December 2015, at 8.37 am, Student A responded to Mr Coleman by saying: 'Hi mr c it worked'.[140]

[199] At 8.50 am that same morning, Mr Coleman emailed Student A stating:

[200] At 8.53 am, on the same morning, Mr Coleman emailed Student A stating:

And, Miss [Student A's surname]... you may call me Steve now as I am soon, no longer your teacher or principal, merely an old friend offering support and assistance. ((-: [142]

[201] In 2016, Student A was no longer enrolled at the school and was attending a high school operated by the State.

[202] On Wednesday, 17 February 2016, at 9.25 pm, Mr Coleman sent the following email to Student A:

How are things going for you? Do you need any help with any school work?

Remember that I will stick by my offer to be here to help and support you - am very happy to help you, [Student A's Christian name].

[203] On Friday, 1 April 2016, at 12.13 pm, Mr Coleman sent an email to Student A and, it would appear, to four other former students of the school who were now in high school, in which he stated, amongst other things:

Just touching base with you all. Hope all is going well and you had a great start to high school in Term 1.

Please remember that I'm here to help and support you any way I can.

Just send me a message to say hello, ask for help or let me know how you are going.[144]

[204] On Thursday, 21 April 2016, at 12.05 pm, Mr Coleman sent the following email to Student A with the 'Subject' entitled 'Happy Birthday':

Sorry this is late - hope you had a great day. ((-:

[205] The attached picture contained the words 'Happy Birthday', Student A's Christian name followed by an exclamation mark, and a hand drawing of what would appear to be the face of a smiling dog.[146]

[206] On the evening of Saturday, 23 April 2016, at 9.23 pm, Student A emailed Mr Coleman from her personal email address containing only the subject line which stated: 'Hello did this work?'.[147]

[207] At 9.26 pm, Student A again emailed Mr Coleman, with the 'Subject' entitled 'Hi Steve!' and stated:

I am unsure if this worked or not but if it did can you please let me know as soon as possible?☺[148]

[208] At 9.26 pm, Mr Coleman emailed Student A back stating:

[209] Then at 9.28 pm, Mr Coleman sent to Student A's personal email address the email referred to earlier in these reasons at paragraph [177].

[210] Student A then sent an email to Mr Coleman, at 9.31 pm, stating that she was glad she had '... finally figured this out!'. [150]

[211] Mr Coleman responded, at 9.32 pm, by sending the following email to Student A:

Now we can chat and communicate without getting me into trouble!! Phew!! Thanks [Student A's Christian name]!

So now... tell me all about it... how are things going?

How is your self esteem about learning and achieving? I always know that socially you will be like a duck to water!! haha

I want you to keep positive about yourself in your learning so that you can achieve your goals and have a great career helping people ((-:

I will keep my promise always [Student A's Christian name]. ((-:[151]

[212] After a further exchange of emails, at 10.02 pm, Mr Coleman emailed Student A stating:

You are very welcome, [Student A's Christian name]!!!

Gosh - such a relief to be chatting with you without stressing about contravening eq policies...

I just wanted to keep to my promise of backing and supporting you ..

And weren't you brave with those needles?! You ended up helping out the others! ((-:[152]

[213] After some further communications between them, at 10.07 pm, Mr Coleman asked Student A the following question:

So [Student A's Christian name], how are you in general? What are the positives in your life at the moment? [153]

[214] Student A responded, at 10.08 pm, by referring to her friends and family and referred to a 'Shaun'.[154]

[215] At 10.11 pm, Mr Coleman replied by stating:

[216] Then, at 10.14 pm, Mr Coleman emailed Student A stating:

Umm - guess that is a young fella you are interested in[156]

[217] Mr Coleman then emailed Student A about how pleased he was that he kept pushing certain former students and how well those former students were doing at other schools.[157]

[218] Then, at 10.19 pm, Student A emailed Mr Coleman stating:

Yes I heard and you should be proud of yourself. You have helped me and so so many other kids that are extremely lucky to know you.[158]

[219] In response to that email, Mr Coleman, at 10.26 pm, stated:

Ahh, you're a lovely lass, Miss [Student A's surname]!

It is why I changed from training 500 adults every year - to work with kids and help them build better lives for themselves.

Each of you are very dear to me an[159] I will help you all in every way I can.

But alas, Miss [Student A's surname] ... This old fellow is a bit weary now and needs to get some sleep. Was at school all day today..

Am so glad you connected with me [Student A's Christian name]. If I may, it will be a great privilege to be your buddy and support as you go through school and uni and move into your career

Night [Student A's Christian name]. Thanks again. You've made the old man very happy![160]

[220] At 10.33 pm, Student A emailed Mr Coleman and stated: 'Ok goodnight mr c'.[161]

[221] In response, Mr Coleman, at 10.36 pm, stated:

OH! That was in response to my Miss [Student A's surname]... hahaha

Sorry - and a bit slow [Student A's Christian name]. Hahaha [162]

[222] In response to the above email, Student A emailed Mr Coleman, at 10.37 pm, stating:

It's okay Goodnight Steve. Idk why it's just better to call you my[163] Coleman bc I'm used to it.[164]

[223] The next day, at 12.00 pm, Mr Coleman emailed Student A stating:

Thought you may like this pic of you with the old man.

Actually - if you are able to - I think I could use some help at about 8.30 - I have to bring our amp, speakers, cd player, etc to set up - not feeling confident about how it will work..

Sorry - not meaning to put pressure on - only if you are able and happened to be there... as you know this set up as well...

Perfectly all good if you can't be there!!! [165]

[224] Attached to the email was a photograph of Mr Coleman and Student A, which appeared, by virtue of a sign Mr Coleman was holding, to be taken in 2015 on what was known as 'Happy World Teacher's Day'. In the photograph, Mr Coleman has his right arm around Student A's right shoulder. Both are smiling.[166]

[225] Soon after, Student A emailed Mr Coleman indicating that she could not attend, in response to which Mr Coleman emailed Student A indicating that that was all good, there was no problem, he hoped she was having a great weekend and inquired whether she liked the picture of Student A and him.[167]

[226] In a subsequent email, Student A stated she did not get any photograph.[168] Mr Coleman then resent the photograph from the earlier email[169] in response to which Student A stated that she got the photograph and 'Yes! I love that photo!'[170]

[227] At 6.38 pm, Mr Coleman emailed Student A and stated:

[228] In cross‑examination, Mr Coleman agreed that this contact with Student A on 26 April 2016 was instigated by him.[172]

[229] At 5.45 pm, Mr Coleman emailed Student A and stated:

Just checking up on you

When is that maths test coming up - do you need any help?[173]

[230] At 5.51 pm, Student A responded by stating, amongst other things, that she was good, that 'We've' started on maths and that she was doing really well and was not stuck on anything.[174]

[231] Other email exchanges took place between Mr Coleman and Student A on 27 April 2016,[175] 9 May 2016,[176] 11 May 2016,[177] and on 13 May 2016.[178] In these emails, the communication was about Mr Coleman enquiring about Student A's school work and whether emails sent by Student A were being received by Mr Coleman.

[232] On Sunday, 19 June 2016, Mr Coleman emailed Student A and stated:

Am just checking up on you

Haven't heard from you for a while and want to make sure you are OK.

How are you going socially, emotionally and academically?

Am always here to help!! [179]

[233] Student A responded stating that she was alright and was 'still hanging on'[180] in response to which Mr Coleman asked her about her report card.[181]

[234] It then appears that Mr Coleman, by email, initiated contact with Student A on Wednesday, 22 June 2016, at 7.53 pm[182] and on Monday, 4 July 2016, at 1.30 pm[183] making general enquiries about how she was going and how she was going at school.

[235] Student A did not respond to these emails.

[236] On Wednesday, 13 July 2016, at 7.44 pm, Mr Coleman sent an email to Student A which appeared to be enquiring if she was receiving his emails.[184]

[237] Then, by email on Sunday, 17 July 2016, at 5.26 pm, Student A responded to Mr Coleman's earlier email sent on 19 June 2016 by asking how he had been.[185]

[238] On that same day, at 5.27 pm, Mr Coleman sent Student A an email which stated:

[Student A's Christian name]!!!! At last !!! LOL[186]

[239] Mr Coleman and Student A continued exchanging emails on 17 July 2016. During the exchange on 17 July 2016, Mr Coleman emailed Student A stating:

Is so good to hear from you and to make contact again!

Without stressing that I'll be in trouble LOL.[187]

[240] Mr Coleman and Student A continued exchanging emails after 17 July 2016.

[241] On the evidence before the Commission, the last email Mr Coleman sent to Student A was on Saturday, 8 October 2016, at 3.59 pm[188] and the last email Student A sent to Mr Coleman was on Monday, 17 October 2016, at 5.50 pm.[189]

[242] On his review of the emails that were before him (which were of a smaller number than that before Ms Pickering), Mr Primmer found that the emails had predominantly been in regard to Mr Coleman asking about Student A's learning and well-being, and that although Mr Coleman sent photos to Student A on her birthday and before Anzac Day, (which were not provided by Student A to Mr Primmer) Student A did not advise that they were inappropriate in nature.[190]

[243] Mr Primmer found that there was no evidence that Mr Coleman's actions in corresponding with Student A by email indicated any intention to groom her and it had been Mr Coleman's belief that he was able to email Student A as he was using his departmental email account. Mr Primmer went on to find that it had been inappropriate for him to correspond with Student A as she was a student in a state school, he wrote to Student A on her personal email address, not all the emails had been of an educational nature and Mr Coleman did not state he had approval from his manager to correspond with Student A.[191]

[244] Ms Pickering found that, in respect of all the emails that were before her, Mr Coleman's conduct in electronically communicating with Student A in 2015 and 2016 suggested a complete disregard for the obligations arising from his special position of trust and a complete lack of insight into how his conduct fell well short of the leadership qualities expected of a Principal and fell well short of the trust and confidence the Department had placed in him as a Principal.[192]

[245] Ms Pickering found that Mr Coleman's conduct was inappropriate in that it was contrary to the 2013 and 2016 Standards and amounted to misconduct in that he engaged in inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.[193]

• admitted that he used the departmental email to communicate with Student A and that it was his belief at the time that using the official departmental email was not in breach of the Department's policies;[194]

• stated that it was an honest and mistaken belief in that he believed that because all of his communications were documented, recorded and monitored by the Department, there was nothing sinister or untoward about his communications and that because the child's parent was aware of the communication, that the correspondence was beyond reproach;[195] and

• stated the communications the subject of the allegation:

'... are very similar to the types of conversations I might have with a student in my school, in person. I was often asking about academic progress and keeping focused on homework, tests and learning. I often used "left field conversations" to maintain positive rapport as I would in the classroom. I was focused on keeping track of her emotional stability and would encourage to manage herself in a constructive way.'[196]

[247] Mr Coleman's evidence‑in‑chief appeared to be that at the time of the communications, he did not know that the Department's policy prohibited that type of communication.

[248] When it was suggested to Mr Coleman, in cross-examination, that there was no justifiable educational reason for his electronic communications with Student A, Mr Coleman's response, in summary, was that:

• he was under the belief his departmental email was being tracked and that everyone could see his communications;[197]

• he was doing nothing untoward and that his intentions were honourable;[198]

• the purpose of his communications with Student A was to offer her support and assistance[199] and to set up communication to be able to support her in the transition to high school;[200]and

• he did not realise he was breaching the policy.[201]

[249] It was suggested to Mr McKellar that Mr Coleman's email to Student A sent on 17 February 2016 (referred to in paragraph [202] of these reasons), enquiring about whether Student A needed assistance with her schoolwork, was for a justifiable educational purpose. Mr McKellar disagreed by saying that at that time, Mr Coleman was not the principal teacher of Student A.[202]

[250] Similarly, Mr McKellar stated that Mr Coleman's email sent on 1 April 2016 to Student A and the four other former students of the school, (referred to in paragraph [203] of these reasons) was not for a genuine educational outcome for the same reasons. Mr McKellar added that was because there were other principals and teachers who were responsible for supporting those former students in a way that had been authorised, which was transparent and had been approved.[203]

[251] In his submissions, Mr Coleman referred to other evidence before the Commission, including that:

• Student A's mother stated that Mr Coleman emailed Student A about schoolwork, and that Mr Coleman had asked Student A how she was going in high school, and let her know that he was there if she needed help;[204] and

• Student A said that Mr Coleman used to ask her how she was going at school, that Mr Coleman had not sent too many emails to her, that Mr Coleman had contacted her once a week but she usually did not reply, and that she had replied to some emails.[205]

[252] Mr Coleman also referred to what he stated to Mr Primmer during the investigation, including that:

• he believed he was following departmental protocols by using his departmental email address to communicate with students, as he did in the past;

• he might not have communicated with Student A since May 2017; and

• he had sent email messages to check up on Student A, to see that she was on track and that he saw his role as being a mentor to her.[206]

[253] Mr Coleman then referred to Mr Primmer's reasons for finding the allegation substantiated.[207]

• he admitted that he used the Department's official email service to communicate with Student A;[208]

• he was under the honest and mistaken belief that because all of his correspondence was documented, recorded and monitored by the Department, and because Student A's parent was aware of the communications, his correspondence was beyond reproach;[209]

• the communications the subject of the allegations were similar to conversations he would otherwise have had with students in the school environment;[210] and

• the purpose of his communication with Student A, though she was no longer a student of his, but still a student in a school operated by the State, was to set up a communication to be able to support her in her transition to high school, and that his goal in sending the birthday message to her was to keep Student A motivated, her self-esteem up, not to get gloomy and not to disengage with school.[211]

1. This explanation should also be accepted. The Employee was operating under the honest but mistaken belief that he could engage in communications (described by ESU is predominantly relating to the student's education and well-being) over the departmental email service because of the content of the communications, as well as the fact that it was over a medium that is transparent and easily accessible to the Employer.[212]

• the allegations do not rise to the level of inappropriate or improper conduct in the circumstances;[213]

• the conduct the subject of the allegations occurred in the context of him attempting to keep track of Student A's emotional stability, given his knowledge of the difficulties she suffered throughout her schooling and at home; [214]

• the bulk of the communications related to Student A's education and, as such, viewed as a whole, the purpose and content of the communications were reasonably for a justifiable, appropriate educational purpose;[215]

• it is not clear how communicating with Student A, while she was one of his students or a departmental student, predominantly relating to matters of her well-being and education, without more, could constitute unethical decision‑making as part of the substratum of the conduct;[216] and

• it was difficult to see how the same matters could not constitute a justifiable, appropriate educational reason despite Mr McKellar's evidence that the communications did not have the qualities of justifiable, appropriate and educational reasons because it did not come from Student A's then teachers or principal.[217]

[257] On the evidence, Mr Coleman's motivation in emailing Student A was honourable in that he was genuinely concerned about her education and welfare. Mr Coleman's explanation for emailing Student A on a weekend night was that he was simply working away responding to emails on his laptop at night unaware of the time.[218]

[258] However, that Mr Coleman's intentions were honourable does not excuse his conduct or render his conduct as not being in contravention of the 2013 Standard and in contravention of the 2016 Standard.

[259] I do not accept Mr Coleman's explanation that he did not realise he was breaching any policy. There are four reasons for this.

[260] First, the content of the communication referred to in paragraph [177] of these reasons clearly indicates that Mr Coleman, as a departmental employee, knew that it was improper for him to be communicating electronically with Student A.

[261] Secondly, for the reasons given earlier, I do not accept that Mr Coleman did not know of the content of the 2013 Standard and 2016 Standard.

[262] Thirdly, the emails Mr Coleman sent to Student A in 2015, when she was still a student at the school, were not about any specific school subject with which Student A was having any specific learning difficulty. The emails were not about any other specific school‑related activity being undertaken by Student A.

[263] Fourthly, in respect of the emails Mr Coleman sent to Student A in 2016, which were at a time when Student A was no longer at the school and was in high school, to the extent the emails enquired about Student A's studies and exam results, they were predominantly at a high level of generality and were about Mr Coleman's general encouragement of Student A to achieve. Other emails were about Student A's emotional state and some private matters, while others were about technical issues regarding email communications.

[264] In my view, having regard to the content of all the emails, there was no justifiable appropriate educational reason for the communications. Further, there were no exceptional circumstances existing at the time of the communications that would justify the communications under the 2013 Standard or under the 2016 Standard.

[265] Mr McKellar's evidence was that prior to engaging in electronic communication with Student A, Mr Coleman should have sought the approval from his manager, being the Assistant Regional Director.[219] There was no evidence, prior to engaging in communications with Student A, or at any point in time after that communication had been initiated, that Mr Coleman had obtained approval from his manager to engage in the email communications with Student A.

[266] Even if there had been encouragement from Student A's mother for Mr Coleman to continue communicating with Student A after she left the school and was in high school for the purposes of either motivating or assisting Student A in respect of her schoolwork, Mr Coleman should still have sought and obtained the approval from his manager prior to engaging in electronic communication with Student A. Mr Coleman did not do so as required by the 2013 Standard and by the 2016 Standard.

[267] It was clearly improper for Mr Coleman to have continued or initiated email communications with Student A in the absence of the knowledge and approval of his manager.

[268] Mr Coleman's conduct was in contravention of the 2013 Standard and was in contravention of the 2016 Standard.

[269] It was conduct that was improper and, as a consequence, amounts to misconduct within the meaning of s 187(4)(a) of the PS Act. This is because Mr Coleman's conduct was a deliberate departure from the accepted standards as set out in the 2013 Standard and the 2016 Standard. There were no exceptional circumstances for Mr Coleman to communicate electronically with Student A. There were no justifiable appropriate educational reasons for Mr Coleman to communicate electronically with Student A. Mr Coleman did not seek and obtain approval from his manager prior to engaging in the email communication with Student A.

[270] The allegation was that on Sunday, 24 July 2016, at 11.12 am, upon receipt of information from Student A that she had been self-harming, Mr Coleman failed to respond appropriately and professionally to that information and in accordance with the Department's Student Protection Guidelines ('SPG').

[271] In July 2016, the Department issued the SPG. Its introduction relevantly provided:

Because of their regular contact with students and families, staff in schools and other educational facilities play a vital role in:

• identifying and responding to suspected child abuse and neglect
• helping families to access support services that may build on their strengths and address issues impacting on their parenting
• supporting better outcomes for students in Out-of-Home Care.

These Student Protection Guidelines, which have been developed to support the Department's Student Protection Procedure, provide detailed guidance about:

• relevant legislative provisions including those relating to student protection reporting
• key definitions and concepts in relation to child abuse and neglect
• reporting and referral processes
• information sharing requirements.[220]

[272] Part F of the SPG is headed 'Responding to other student protection matters'. Section 3 of that part deals with student self-harm and provides:

When a school-based employee suspects or identifies student self-harm or risk of self-harm:

• arrange for the immediate safety of the student including first aid, if required
• discuss an incident or reasonable suspicion of self-harm with the principal
• complete the OneSchool Student Protection Reporting module and submit the report to Child Safety through the principal when it is suspected a student is causing significant self-harm and may not have a parent able and willing to protect the student from harm.

Once informed of student self-harm, the principal should:

• notify the student's parents unless doing so is not appropriate - for example, the incident may relate to an independent student or notifying parents may not be in the student's best interests
• consider appropriate responses to support the student - information on student mental health and wellbeing is available on the Department's website
• support any other student or employee who may be affected by an incident of self-harm
• consult with qualified staff such as the Guidance Officer or School Based Youth Health Nurse to ensure ongoing safety of the student
• utilise established referral protocols and pathways to local mental health service providers if urgent mental health advice and assistance is required
• instigate the school's critical incident plan, if required.

The principal should only submit a student protection report to Child Safety via the OneSchool Reporting module when he or she forms a reasonable suspicion that the student is causing significant self-harm and may not have a parent able and willing to protect the student from harm.[221]

[273] The evidence in respect of this matter, and Mr Coleman's explanation, is relatively straightforward.

[274] First, Mr Coleman, in cross‑examination, stated he was aware of the SPG at the material time.[222]

[275] Secondly, in Mr Coleman's response to the first show cause notice, when responding to Allegation Six, he stated that he was aware that the home environment of Student A was sometimes not conducive of her well-being and success and that he had previously made Child Protection Reports in relation to Student A.[223] Mr Coleman went on to say that he was concerned that Student A did not have a positive level of support in a home environment as Student A's mother had shared with him the difficulties in managing her children at home and that was why he was particularly concerned about the welfare and continued achievement of Student A in her transition to high school in 2016.[224] In cross‑examination, Mr Coleman said, in respect of this evidence, his concern was about Student A's emotional wellbeing.[225]

[276] In the same response, Mr Coleman included a copy of what would appear to be a responsive SMS message from Student A's mother sent to him on 20 June 2016, at 8.26 pm. That message stated:

I think it's a mixture of things with [Student A's Christian name]. A group of girls that claim to be her friends but are actually quite nasty to her I think is the main issue. But also a bit of a boy problem. She's very confused. She's actually been cutting herself which is really upsetting. Also being very disrespectful and acting out towards me. She has spoken to the guidance officer and I think that helped a little. She is also going to see a psychologist over the school holidays. I'd like my old [Student A's Christian name] back.[226]

[277] Thirdly, on Sunday, 17 July 2016, after Student A made email contact with Mr Coleman, Mr Coleman emailed Student A and asked her to tell him all of her news and stated that he wanted to hear all about her.[227] In response, Student A started talking about her boyfriend, that they had broken up, that they nearly got together again but only to find out he was moving away.[228]

[278] After further email communication between them, on Sunday, 24 July 2016, at 11.12 am, Student A stated:

Well I'm not sure if mum has told you that I was actually self harming and disrespecting mum a lot like last month or something.[229]

[279] In cross‑examination, it was put to Mr Coleman, notwithstanding his view that the home environment of Student A was sometimes not conducive of her emotional well‑being, that when he received the email from Student A that she had been self‑harming, he did nothing. Mr Coleman's response was that there was no need for him to take action because in the SMS message from Student A's mother:

• Student A's mother was taking Student A to a psychologist; and

• the Guidance Officer at the high school was already dealing with Student A.[230]

[280] Mr Coleman's further evidence in cross‑examination was that:

• the SPG stated that he did not need to make a report unless there was a parent unwilling or unable to support the child; and

• because Student A's mother had stated the school Guidance Officer was involved and that she was taking Student A to the psychologist, '... I deemed that to be the mother is definitely willing and definitely able to support the child.'[231]

[281] Mr Coleman's submissions, in respect of this allegation, reflected his evidence about the allegation referred to above.[232] Mr Coleman also referred to his evidence that Student A's mother was quite open and honest about her difficulties and frustrations and that he actually had no doubt about her willingness to look after her children. [233]

[282] Mr Coleman submitted that the explanations he gave in his evidence-in-chief, as referred to above, should be accepted in that it was open to Mr Coleman not to submit a student protection report as required by the SPG in circumstances where the conditions precedent to making one were not satisfied.[234]

[283] In July 2016, Student A was not enrolled at Mr Coleman's school but was enrolled in a high school. Mr Coleman stated, in cross‑examination, that he did not inform the Principal of Student A's high school of her own admission to self-harm.[235]

[284] Mr Coleman also stated that he took no steps to confirm if Student A had been to see the Guidance Officer at the high school and whether she had seen a psychologist.[236] Mr Coleman also conceded that he did not ask Student A if she had gone to the Guidance Officer or the psychologist.[237]

[285] I acknowledge that the SPG are guidelines, but they do have, as their purpose, the provision of detailed guidance about reporting and referral processes regarding student protection matters. The terms of the SPG, referred to above, relevantly provide that where a school‑based employee suspects or identifies student self-harm or risk of self‑harm, the employee:

• is to discuss the incident or reasonable suspicion of self-harm with the principal; or

• complete the OneSchool Student Protection Reporting module and submit the report to Child Safety through the principal when it is suspected a student is causing significant self-harm and may not have a parent able and willing to protect the student from harm.

[286] Mr Coleman did neither of these things in circumstances where, through the submissions made in his response to the first show cause notice, he was aware that the home environment of Student A was not conducive of her well-being and success, where he had previously made Child Protection Reports in relation to Student A and where he was concerned that Student A did not have a positive level of support in her home environment given that her mother had shared with him her difficulties in managing her children.

[287] Given that Mr Coleman was fixed with this knowledge, I do not accept Mr Coleman's explanation that following the receipt of Student A's email on 24 July 2016, he took no action in accordance with the SPG because he was confident Student A's mother had the issue in hand. It seems to me that Mr Coleman could not have that confidence given:

• his admission that previously he had made Child Protection Reports in relation to Student A; and

• the fact that he took no steps to confirm if Student A had been to see the Guidance Officer at the high school or had been to see a psychologist.

[288] Mr Coleman submitted that, having regard to the facts of this allegation, it was difficult to identify what more he could have done, aside from notify the Principal of Student A's high school. Mr Coleman also submitted that Student A's disclosure did not relate to harm she was inflicting on herself at the moment of disclosure, '... thus negating the need for the Employee to make arrangements for first-aid.'[238]

[289] In my view, having received the information directly from Student A that she had self‑harmed and given his admitted knowledge about Student A's home environment and that he had previously made Child Protection Reports about Student A, Mr Coleman should have taken steps under the SPG to either discuss the reasonable suspicion of self‑harm with the principal of Student A's high school or complete the OneSchool Student Protection Reporting module and submit the report to Child Safety through the principal.

[290] Mr Coleman's conduct, in this regard, was inappropriate and therefore was misconduct within the meaning of s 187(1)(b) of the PS Act because it was inappropriate conduct in an official capacity. Mr Coleman's conduct was inappropriate because it was a deliberate departure from the standard expected of him as set out in the SPG.

[291] These allegations were that on 16 January 2017 at 12.13 pm, on 19 January 2017 at 10.29 am, and on 20 January 2017 at 12.04 pm, Mr Coleman contacted departmental school staff by electronic communication in breach of the terms and conditions of his alternative duties as directed by Mr Des Kluck, Executive Director, Performance and Safety on 11 October 2016.

[292] By his letter dated 11 October 2016, Mr Kluck advised Mr Coleman that allegations had been raised in relation to his conduct while employed as Principal, and that he was required to work in the regional office in Bundaberg until the matter was resolved and under certain specified conditions. In this regard, Mr Kluck's letter relevantly stated:

You are directed not to enter any departmental school site or contact any staff or students of any departmental school unless you have sought and obtained the prior approval of your Contact. This direction includes but is not limited to verbal and physical contact and the use of electronic communication/social media.[239]

[293] On Monday, 16 January 2017, at 12.13 pm, Mr Coleman used his departmental email to email members of the Queensland Association of State School Principals ('QASSP') who appeared to be employees of the Department. In that email, he referred to the investigation of the allegations made against him.[240]

[294] On Thursday, 19 January 2017, at 10.29 am, Mr Coleman emailed two other employees of the Department about matters that did not involve the allegations made against him.[241]

[295] By his email sent on Friday, 20 January 2017, at 12.04 pm, Mr Coleman emailed a number of employees in the Department in which he referred to matters associated with the investigation of the allegations made against him.[242]

[296] There is no doubt that Mr Coleman, by sending the three emails, breached the conditions set out in Mr Kluck's letter. Mr Coleman, in his evidence‑in‑chief, admitted the breaches.[243] Mr Coleman's evidence was that at the time he sent the three emails, he was not consciously aware of his obligations not to contact other employees of the Department.[244]

[297] Mr Coleman stated that when he sent the first email, referred to in paragraph [293] of these reasons, it was because he was joyful and relieved that other proceedings were not going to be pursued against him.[245] In relation to the other two emails, Mr Coleman stated that he was circulating information which he thought would be of assistance to the recipients and that there was no other collateral purpose to him sending those emails.[246]

[298] Mr Coleman submitted that it was unfortunate that he breached the conditions set out in Mr Kluck's letter, however that does not, without more, amount to conduct which is objectively inappropriate or improper, particularly in circumstances where the State has not adduced any evidence that his emails prejudiced or otherwise affected the business of the State or the investigation it was conducting in relation to the allegations made against him.[247]

[299] The conditions set out in Mr Kluck's letter were clear and unambiguous. Mr Coleman's explanations in sending the three emails, in light of the clarity of the conditions, does not excuse his conduct. There was no reasonable excuse for contravening the directions in the conditions.

[300] However, I am not satisfied that his conduct amounts to misconduct. Section 187(1)(d) of the PS Act provides that a public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied that the employee has contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person.

[301] In my view, that would have been the more appropriate ground for discipline for Mr Coleman in respect of Allegations Eight, Nine and Ten.

[302] It does not appear to me, that Mr Coleman's conduct, in respect of Allegations Eight, Nine and Ten, was improper or inappropriate conduct in an official capacity in the sense described in Mathieu, namely, a deliberate departure from accepted standards or serious negligence to the point of indifference.

[303] In my view, for these reasons, Mr Coleman, by his admitted conduct in respect of Allegations Eight, Nine and Ten, did not engage in misconduct within the meaning of s 187(1)(b) of the PS Act.

Was Mr Coleman's dismissal harsh, unjust or unreasonable having regard to s 320 of the Act?

[304] Mr Coleman submitted that in respect of whether or not the Commission finds that any of the allegations rose to the level of misconduct within the meaning of the PS Act, the act of dismissing him was harsh in all circumstances. It was submitted that this was because the allegations, particularised in the reasons for dismissal, taken separately or in combination, are not sufficiently serious or severe enough to warrant disciplinary action resulting in termination.[248]

[305] In particular, Mr Coleman submitted that:

• on Mr McKellar's evidence, but for proven Allegations Five and Six, it is unlikely the State would have terminated Mr Coleman's employment;

• Mr McKellar, who is not a teaching practitioner, harshly applied the Department's policies and took the most adverse possible view of Mr Coleman's conduct in independently finding each allegation to be misconduct and further finding that termination was the only appropriate option available to him;

• the evidence given by Mr McKellar gave the impression that the ideal teaching environment in the State's schools, from the State's perspective, '... is one attended by sterility so as not to create an environment where the mere suspicion of impropriety could arise' and that '... such an environment is at odds with the reality of teaching children of the level of maturity as those the subject of the allegations' for which Mr Coleman was terminated;

− under the Standards of Practice, departmental employees are prohibited from putting their arm around a student for the purposes of a photo;

− it was not just the fact that Student A felt uncomfortable about Mr Coleman's arm around her, but that it would create tensions within the school;

− Mr Coleman's technical compliance with the State's training in rebuffing Student A's Facebook friend request did not diminish his culpability in not complying with the Standards of Practice;

− in respect of Mr Coleman failing to advise the Principal of Student A's high school and failing to file a OneSchool report, in circumstances where Student A's mother advised Mr Coleman that the child was seeing a counsellor and a psychologist, it was Mr McKellar's perception that Mr Coleman did so for the purposes of using it as a platform to build a relationship with the student on an ongoing basis; and

− to the extent any email sent by Mr Coleman to Student A referenced any educational topic, that was not for a justifiable educational purpose because it was not afforded by the teachers or the principal of Student A's own school.[249]

• the letter of dismissal clearly set out the reasons for Mr Coleman's dismissal which related to his conduct;

• Mr Coleman's dismissal was based on Ms Pickering's findings that the 10 allegations had been substantiated;

• Mr Coleman had a number of opportunities to respond to the allegations and he took advantage of those opportunities;

• as a long-standing Principal who had undertaken annual training in the relevant standards and policies that applied to him, Mr Coleman should have no doubt as to the standard of conduct required of him;

• Mr Coleman was provided with a further opportunity to show cause in relation to the penalty;

• for the above reasons, the dismissal was not procedurally unfair; and

• the penalty of dismissal was not disproportionate to the gravity of his misconduct because:

− Mr Coleman held a significant position of trust within the Department;

− Mr Coleman had an obligation to set the standard for ethical conduct and to encourage and promote behaviour consistent with the Standards of Practice;

− the conduct engaged in by Mr Coleman was persistent, conducted over a lengthy period of time and involved a number of different instances of inappropriate behaviour towards students demonstrating a propensity to cross the professional boundaries between students and teachers which had, or at least had, the potential to have a negative impact upon the students;

− Mr Coleman's conduct was in breach of a number of standards and guidelines designed to ensure appropriate boundaries were in place between students and teachers;

− Mr Coleman's conduct and his responses to the allegations demonstrated a significant lack of insight into the impropriety of his conduct, its capacity to be open to misinterpretation and also demonstrated serious errors in judgement and ethical decision-making; and

− the loss of trust and confidence in Mr Coleman on the part of the State was based on conclusions that were reasonably open to Mr McKellar when the decision was made to dismiss him and Mr Coleman's conduct and lack of insight made it entirely unreasonable for the State to continue to employ him in a teaching capacity much less as a Principal.[250]

[307] By Mr McKellar's letter dated 23 April 2018, Mr Coleman was notified of the reason for his dismissal.

Mr Coleman's dismissal related to his misconduct

[308] Mr Coleman's dismissal related to his conduct. For the reasons set out above, I am satisfied that Mr Coleman:

• engaged in misconduct within the meaning of s 187(1)(b) and s 187(4)(a) of the PS Act in respect of Allegations One, Two, Three, Six and Seven; and

• engaged in misconduct within the meaning of s 187(1)(b) and s 187(4)(b) of the PS Act in respect of Allegation Five.

[309] It is the case that Mr Coleman was not warned about his conduct, prior to his dismissal, in respect of Allegations One to Seven. This is relevant consideration.

[310] It appears to be the case that Mr Coleman, after he was advised that he was in breach of the 11 October direction by sending the emails the subject of Allegation Eight, he did not, following that advice, engage in any further breaches of that direction.[251]

[311] In cross-examination, it was put to Mr McKellar that it was possible that Mr Coleman could have continued to be employed in the Department if he had been given warnings about his conduct the subject of Allegations One to Seven. Mr McKellar's response was that Mr Coleman was not willing to comply with his obligations.[252]

[312] In my view, given the nature of Mr Coleman's conduct and the position he held within the school and within the Department, the fact that he was not warned about his conduct the subject of Allegations One to Seven prior to his dismissal, is not a fact that can or should materially contribute to a finding that his dismissal was unfair.

[313] This is because, in respect of Allegations One, Two, Three, Five, Six and Seven:

• Mr Coleman's conduct did not involve one isolated act such that a warning may have resulted in a change to his conduct; and

• Mr Coleman's conduct was so inconsistent with his obligations under the 2013 and 2016 Standards and the SPG, that the termination of his employment was justified without any warning.

Mr Coleman was given an opportunity to respond

[314] Clearly, having regard to the first show cause notice, the amended show cause notice and the show cause on penalty notice, Mr Coleman was given the opportunity to respond to the claims about his conduct prior to his dismissal.

Other matters the Commission considers relevant

Was the dismissal proportionate to Mr Coleman's misconduct?

[315] The question has arisen as to whether Mr Coleman's dismissal was proportionate to the disciplinary findings.

[316] In cross-examination, Mr McKellar agreed that there were other disciplinary penalties, under the PS Act, that could have been imposed on Mr Coleman, including his redeployment.[253] It was suggested to Mr McKellar, having regard to the facts that Mr Coleman was an experienced educator, had an otherwise good disciplinary record, had been a Principal involved in the administration of the school including being involved in financial matters, and that there were workplaces operated by the Department where the employees were not face-to-face with students, that Mr Coleman could have maintained his employment by being deployed and warned about his conduct.[254]

[317] Mr McKellar's response was that it did not appear that Mr Coleman accepted the rules that applied to him.[255]

[318] Mr McKellar, in his dismissal letter dated 23 April 2019 to Mr Coleman, relevantly stated, amongst other matters:

• as a departmental employee, specifically in his role as a Principal, Mr Coleman held a special and privileged position of trust and confidence within the Department and the community at large;

• he had been entrusted with the care and well-being of young students and that of the staff who worked at the school;

• in light of his training and experience and involvement in the QASSP, it was his view that Mr Coleman knew or ought to have known that his conduct was inappropriate and had the potential to cause harm to Student A and Student B;

• he was of the view that Mr Coleman's conduct had significant potential to impact on public trust and confidence in the Department particularly so given:

− his conduct occurred at the school, and, or in the alternative during school hours and, or in the alternative, whilst Mr Coleman was performing his duties as a Principal;

− his conduct involved the use of the departmental email facility to communicate with Student A during weekdays and during the weekend; and

− the importance and special nature of his role as a Principal meant that the Department, other employees, students, parents and the community must have confidence in his ability to be trusted with the safety of students at all times; and

• he was of the view that the reputation of the Department would likely be adversely affected if Mr Coleman's employment was continued in the circumstances and that the Department must have the confidence of the community in relation to the safety of children under its care and the people it employs to undertake teaching and principal roles.[256]

[319] For the reasons I have given above in deciding whether Mr Coleman engaged in misconduct, Mr Coleman must have known that the conduct in which he engaged, the subject of Allegations One, Two, Three, Five, Six and Seven, was not proper or appropriate.

[320] Having regard to the conduct in respect of which Mr Coleman engaged in Allegations One, Two, Three, Five, Six and Seven, and the position he held within the school and the Department, Mr McKellar's reasons for Mr Coleman's dismissal are sound.

[321] I acknowledge, as did Mr McKellar,[257] that the findings of misconduct in respect of Allegations Five and Six are the most serious of all the findings of misconduct. I do not accept Mr Coleman's submission that the sterility of the ideal teaching environment (brought about by the application of the 2013 and 2016 Standards), so as not to create an environment where the mere suspicion of impropriety could arise, is an environment at odds with the reality of teaching children at the level of maturity the subject of the allegations.

[323] First, Mr Coleman knew Student A was 11 or 12 years of age in 2016.[258]

[324] Secondly, on the evidence before me, the standard prohibiting electronic communication between departmental employees and students, other than in the permitted circumstances, have applied in the Department since at least 2013. The Department has clearly taken the position, in applying that standard of conduct, that compliance with that standard is the best way to protect students.

[325] For the reasons given earlier, Mr Coleman knew about those standards but deliberately chose to ignore them in respect of his communication with Student A on Messenger and his comprehensive email correspondence with Student A. While his intentions, in engaging in the electronic communication with Student A, were honourable, they were in significant contravention of the standards required of him as a teacher and as a Principal of a school operated by the State.

[326] In my view, having regard to his position as a Teaching Principal at the school and the trust placed in him by the State and by the community, Mr Coleman's dismissal was proportionate to the all the conduct in which he engaged in respect of Allegations One, Two, Three, Five, Six and Seven.

[327] For these reasons, Mr Coleman's dismissal was not disproportionate to his conduct.

Was Mr Coleman's dismissal fair having regard to the action taken by the Queensland College of Teachers?

[328] Another issue raised by Mr Coleman as to why his dismissal was unfair was the decision of the Queensland College of Teachers ('QCT') dated 11 July 2018 by which the QCT, pursuant to s 101 of the Education (Queensland College of Teachers) Act 2005:

• proposed Mr Coleman enter into a practice and conduct agreement (which was accepted by him on 25 July 2018).[259]

[329] That action was instituted because of a finding by the delegated officer of the QCT of the following substantiated, inappropriate conduct by Mr Coleman, namely:

• at the conclusion of the 2015 school year, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he hugged her;

• during 2015, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he referred to her as 'beautiful' and told her that she was a 'lovely girl';

• during 2016, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he communicated with her via a Facebook private messenger service;

• from 15 September 2015 to 8 October 2016, Mr Coleman engaged in an inappropriate and unprofessional manner towards Student A when he communicated with her by email;

• on 24 July 2016, upon receipt of information from Student A that she had been self-harming, Mr Coleman failed to respond appropriately and professionally to that information and in accordance with the Department's SPG; and

• on 16, 19 and 20 January 2017, Mr Coleman contacted departmental school staff by email in breach of the terms and conditions of his alternative duties as directed by Mr Kluck on 11 October 2016.[260]

[330] The submission made by Mr Coleman was that, having regard to the fact the QCT reprimanded him in respect of the same conduct for which the State dismissed him, his dismissal was disproportionate.[261]

[331] I am not persuaded by this argument. There are two reasons for this.

[332] First, it was the Department that, pursuant to s 77 of the Education (Queensland College of Teachers) Act 2005, notified the QCT of Mr Coleman's dismissal and of the investigation and associated disciplinary procedure documentation.[262]

[333] Secondly, the fact that the QCT did not make any decision about Mr Coleman's registration as a teacher does not, on its own, render the Department's decision to dismiss him unfair. The matter was squarely put to Mr McKellar in cross-examination. Mr McKellar was asked to assume that if the QCT only reprimanded Mr Coleman, whether that would have changed his decision about dismissing Mr Coleman. Mr McKellar's answer was as Mr Coleman's employer, the Department had different requirements in that it had a Code of Conduct and Standards of Practice that determined a person's suitability to be an employee in any capacity.[263]

[334] In my view Mr McKellar's response is a valid response.

[335] Section 3 of the Education (Queensland College of Teachers) Act 2005 provides that the main objects of that Act are to uphold the standards of the teaching profession, to maintain public confidence in the teaching profession and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.

[336] That section goes on to provide that those objects are to be achieved mainly by:

• conferring on the QCT functions and powers about, amongst other things, granting registration or permission to teach to persons, taking disciplinary action against approved teachers and monitoring compliance with and enforcing the Education (Queensland College of Teachers) Act 2005.

[337] A decision by the QCT about a teacher's conduct involves different considerations to a decision of an employer to dismiss a teacher from employment. The former is about whether the teacher meets and continues to meet the requirements for registration or permission to teach to persons. The latter is about whether such a person, who meets the requirements for registration or permission to teach to persons, should continue to be employed having regard to, amongst other things, the conditions imposed by the employer or agreed to between the teacher and the employer, about the standards of conduct to be observed by the teacher.

[338] Ultimately, the State, as the employer, must have the confidence of the community in relation to the people it employs to undertake teaching and principal roles.

[339] While the decision of the QCT was a relevant consideration in determining whether Mr Coleman's dismissal was unfair, for the reasons given above, it is not determinative.

[340] The ultimate issue for determination in this proceeding was whether Mr Coleman's dismissal from his position as Principal of the Goodwood State School was harsh, unjust or unreasonable.

[341] Mr Coleman was dismissed because the State was reasonably satisfied that, in respect of Allegations One to Ten, he had engaged in misconduct within the meaning of s 187(1)(b) of the PS Act.

[342] For the reasons given earlier in this decision, the evidence has satisfied me that Mr Coleman engaged in the conduct the subject of Allegations One, Two, Three, Five, Six, Seven, Eight, Nine and Ten.

[343] Mr Coleman's substantiated conduct in respect of Allegations One, Two, Three, Five, Six and Seven, meets the test of misconduct within the meaning of s 187(1)(b) of the PS Act. For these reasons, his dismissal was substantively fair.

[344] Mr Coleman's dismissal was, for the reasons given earlier, procedurally fair.

[345] Mr Coleman did not meet the relevant requirements, imposed upon him as an employee and Principal, by the 2013 and 2016 Standards and as expected of him by the SPG, in respect of Allegations One, Two, Three, Five, Six and Seven. For those reasons, his dismissal was proportionate to his misconduct.

[346] For the reasons given earlier in this decision and having regard to the matters in s 320 of the Act, I am not persuaded that Mr Coleman's dismissal was harsh, unjust or unreasonable.

[347] Mr Coleman's application for reinstatement is therefore dismissed.

[3] The name of this student is not published to protect the student's identity.

[4] The name of this student is not published to protect the student's identity.

[14] [2008] QSC 209 ('Mathieu').

[15] (1989) 16 NSWLR 197.

[16] Ibid 200 (Kirby P). See also Aird v Department of Community Safety, Queensland Ambulance Service [2013] QIRC 185, [55] (Deputy President Bloomfield).

[19] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465 (McHugh and Gummow JJ).

[21] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (Hall P) ('Walker').

[24] [1938] HCA 34; (1938) 60 CLR 336, 361-362 (Dixon J).

[25] Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170-171 (Mason CJ, Brennan, Deane and Gaudron JJ).

[28] Queensland Teachers' Union of Employees (for Norman Wayne Armstrong) v State of Queensland acting through Department of Education, Training and the Arts [2009] QIRC 11, [209] (Commissioner Asbury).

[41] T 4-12, l 42 to T 4-13, l 10 and T 4-14, ll 34-35.

[46] Mr Coleman's written submissions filed on 15 November 2019 ('Mr Coleman's submissions'), para. 3.

[47] Mr Coleman's submissions, paras. 7-8.

[48] Mr Coleman's submissions, paras. 9-10.

[56] Mr Coleman's submissions, para. 3 b.

[68] Mr Coleman's submissions, paras. 13 and 14.

[69] Mr Coleman's submissions, para. 14.

[70] Mr Coleman's submissions, para. 18.

[83] Mr Coleman's submissions, para. 22.

[84] Mr Coleman's submissions, para. 24.

[85] Mr Coleman's submissions, para. 25.

[86] Mr Coleman's submissions, para. 24.

[87] The specific allegation in Allegation Four was that Mr Coleman told Student A she was a 'lovely girl'.

[88] Mr Coleman's submissions, paras. 26-28.

[89] The State's submissions filed on 25 October 2019 ('the State's submissions'), para. 38.

[90] T 4-22, ll 1-8 and ll 41-45. This email is contained in Exhibit 8, page 577.

[91] The State's submissions, paras. 40 and 41.

[109] Mr Coleman's submissions, paras. 30-31.

[110] Mr Coleman's submissions, para. 32.

[112] Mr Coleman's submissions, para. 33.

[114] Exhibit 1, para 39 and exhibit SC-02.

[116] Mr Coleman's submissions, para. 34.

[117] Mr Coleman's submissions, para. 34 and T 4-26, l 45 to T 4-27, l 2.

[119] Mr Coleman's submissions, para. 34 and T 4-29, l 30 to T 4-30, l 3, T 4-33, ll 12-18 and T 4-31, ll 26-40.

[120] Mr Coleman's submissions, para. 35.

[123] The spelling mistake is in the original.

[135] Student A' s Christian name was in a larger font and was bolded.

[159] The spelling mistake is in the original.

[178] Exhibit 8, pages 668, 670, 671, 673, 675, 678, 682, 686, 690, 694 and 696.

[204] Mr Coleman's submissions, para. 40 c.

[205] Mr Coleman's submissions, para. 40 d.

[206] Mr Coleman's submissions, para. 41.

[207] Mr Coleman's submissions, para. 42.

[208] Mr Coleman's submissions, para. 43 a.

[209] Mr Coleman's submissions, para. 43 b.

[210] Mr Coleman's submissions, para. 43 c.

[211] Mr Coleman's submissions, para. 45.

[212] Mr Coleman's submissions, para. 46.

[213] Mr Coleman's submissions, para. 47.

[214] Mr Coleman's submissions, para. 47.

[215] Mr Coleman's submissions, para. 47.

[216] Mr Coleman's submissions, para. 49.

[217] Mr Coleman's submissions, para. 49.

[232] Mr Coleman's submissions, paras. 53-54.

[233] T 4-57, ll 1-3 and Mr Coleman's submissions, para. 54.

[234] Mr Coleman's submissions, paras. 53-55.

[238] Mr Coleman's submissions, para. 59.

[247] Mr Coleman's submissions, paras. 64-65.

[248] Mr Coleman's submissions, para. 66.

[249] Mr Coleman's submissions, paras. 67-70.

[250] The State's submissions, paras. 84-96.

[259] Exhibit 1, para. 61 and Exhibit 6.

[261] Mr Coleman's submissions, paras 71-72.

[262] Exhibit 2, exhibit SC-2, page 1 of 2.