Douglas v Secretary, Department of Education

Anita Dunn

1. Anita Dunn is employed at the School as a temporary part-time administration officer and has been in that role since 19 September 2019. Ms Dunn was a witness to the incident between the appellant and M in the hydrotherapy pool at the School on 21 February 2020 which led to the misconduct allegations against the appellant and, ultimately, to her dismissal.
2. Ms Dunn was called to give evidence by the Department. Her affidavit contained the following: 2. On the morning 21 February 2020, I was working in the office at the School. As part of my role, I was required to attend the School's hydrotherapy pool to collect a student who was sick as his father was at the office to collect him and take him home. 3. I attended the hydrotherapy pool at about midday to collect the sick student. When I arrived, I stood outside the waiting area, in front of a large, open window. I was waiting for Veronica Langthorne, the sick child's teacher, so she could handover the sick student. Veronica was not in the pool area. I believe she was in the changing room at that time. 4. The sick student was in the waiting area directly in front of me, on the other side of the open window and on my side of the pool gate. He was walking around in the waiting area. 5. From my position in front of the open window, I saw the waiting area directly in front of me, the gate and fence to the pool area, and the hydrotherapy pool itself. The window was sliding glass and was entirely open, so there was no glass between me and the inside of the pool area. I had a very clear view. 6. I saw Vicki Douglas in the hydrotherapy pool with a student who I now know to be called M, and another student. The other student was exiting the pool when I first saw them. He was not close to Vicki or M. 7. I understand M to be nine years old, and I perceived him to be well built, but about the general size of a nine year old. 8. Vicki and M were about 15 to 20 metres away from me in the hydrotherapy pool when I saw them. The depth of the pool where they were standing was up to M's chest. 9. I noticed that M was splashing a lot. He appeared happy splashing in the pool. I0. I saw and heard Vicki yell at M words to the effect of, "Stop splashing me". M did not stop splashing after Vicki yelled at him. Vicki then splashed him back and moved towards him. 11. I then saw Vicki grab M's wrists and shook him in a rough manner. Vicki and M struggled for a short time in this position and she told him to stop again. 12. I looked away momentarily at the sick student in the pool waiting area. When I looked back, M was in a different position in the pool. Vicki moved to him and grabbed his wrists. 13. I then saw M hit Vicki in the face. He appeared to use an open hand with his palm down in a movement that started above his head and moved down in front of him. 14. I saw and heard Vicki yell at M, "Don't you ever hit me again" and other words to that effect. I then saw Vicki put her hand on the back of M's neck and push his head under the water for 2-3 seconds. 15. After M's head came up out of the water, I perceived M to be distraught. I thought there was a significant contrast between how M looked when I first saw him, and how he looked after he was submerged. He appeared happy when I first arrived at the pool area and he was splashing, but he looked to be upset after the rough interaction with Vicki, as he was making a type of crying noise. 16. I then saw Vicki start to take M to the steps to get out of the pool. She handled him roughly. 17. I was shocked by the interaction I saw between Vicki and M. The way Vicki was interacting with M physically appeared very rough. 18. As Vicki was taking M to the steps, I saw Veronica exit the changing rooms and my focus changed to taking the sick student to his father. 19. As I saw Vicki was walking along the side of the pool after she had exited, I heard her say words to the effect of "he hit me", although I am unsure who this was directed to. 20. After I escorted the sick student to the office to meet his father, I sat down at my desk. I sent a message on WhatsApp to my husband at 12:29pm about what I saw. A screen shot of that message is attached to this affidavit and marked "A". 21. My husband suggested that I talk about what I had seen with Cassandra Lloyd, Teacher and Assistant Principal. I have known Cassandra since I was a child and l consider her my best friend. I said to Cassandra words to the effect of, "I've seen some behaviour that I don't think is okay". Cassandra said to me words to the effect of, "You need to tell Greg". I understood that Cassandra was referring to Greg Wood the Principal at the School. 22. Cassandra organised a meeting between Greg and me. I attended that meeting at around 3:30pm on the same day. At that meeting, I recounted to Greg what I had seen at the pool. 23. During the course of that meeting, Greg asked me to prepare a statement in writing of what I had seen. 24. I prepared a written statement of what I saw when I got home on the evening of 21 February 2020. I gave a hard copy of the statement to Greg Wood on Monday 24 February 2020. A copy of that statement is annexed to this affidavit and marked "B". 25. On Tuesday 25 Februray 2020, I had a meeting with Greg Wood and Helen Davis, Relieving Director of Educational Leadership, Department of Education. During this meeting I recounted what I had seen at the request of Helen Davis. During this meeting I was advised that a police officer or officers would attend the school soon to speak with me. 26. On the same day two police officers came to the school. They spoke to me about the incident. 27. The police officers asked me to consider if I wanted to proceed with the matter to court. I considered whether I wanted to proceed over the next few days, and on Thursay 27 February, the police officer called me and I told them that I did not want to press charges. 28. I decided not to proceed because I did not think it was my responsibility to make that decision. I had reported what I had seen at that stage, and I thought proceeding with pressing charges would be a very stressful process for me any my family. Although I considered the incident I saw to be very serious, I thought that it should be someone else's choice to determine whether Vicki should be charged. 29. Rachel Moore, investigator at the Employee Performance and Conduct Directorate ("EPAC") of the Department of Education asked me to attend an interview on 13 March 2020. On that date, I attended Greg Wood's office and was interviewed by Rachel with Greg in the room. The interview was recorded and annexed to this affidavit and marked "C" is a copy of the transcript of that interview. 30. Following the interview, on 21 May 2020, Rachel emailed me some further questions. I corresponded with Rachel about her questions by email on 21 and 22 May 2020. Annexed to this affidavit and marked "D" is a copy of that email chain, including the attachments that I provided. 31. I have not seen or spoken to Vicki since 21 February 2020. Prior to the 21 February 2020, I had never personally met Vicki.
3. The WhatsApp message to her husband which Ms Dunn sent at 12.29pm on 21 February 2020, which is referred to at paragraph 20 of her affidavit, was as follows: I just saw a teacher treat a child unacceptable. I don't know what to do
4. The written statement that Ms Dunn made at home on the evening of 21 February 2020, which is referred to at paragraph 24 of her affidavit, was as follows: On Friday 21 February 2020 around midday whilst waiting to pass on a message to the teacher, Veronica, at the open window of the … School pool, I witnessed the following: • 2 students were with a teacher/SLSO, Vicki, in the pool. • 1 of those students, M, was splashing Vicki. • Vicki yelled at M to stop splashing. • M kept splashing. • Vicki splashed M back, grabbed his wrists and shook them telling him stop again. • This type of rough interaction continued. • Following this interaction M hit Vicki on the face. • Vicki yelled at him "Don't you ever hit me in the face again" amongst other things that I can't remember, grabbed his head and pushed his head under the water for approximately 2-3 seconds. • M appeared distressed and upset. • Vicki proceeded to take him from one side of the pool to the other to get him out in a rough manner (I don't remember the specifics but the interaction was quite rough). After passing on the message to Veronica, I left the area, went back to the office. Distressed I messaged my husband stating that I witnessed unacceptable treatment of a child and didn't know what to do (I did not give any details of the situation). There was one teacher present, Veronica, and another SLSO in the pool area during the altercation (I don't know the name of the SLSO). They were changing students after their swimming class.
5. Ms Dunn was subjected to rigorous cross-examination by counsel for the appellant, Mr D Nagle.

Rachel Moore

1. Rachel Moore is employed as Principal Investigator in the Department's Professional and Ethical Standards (PES) Directorate. On 26 February 2020, Ms Moore was asked by Sarah Parry, Director, Child Protection Investigations, to conduct an investigation into allegations of misconduct against the appellant.
2. Prior to Ms Moore commencing her investigation, the appellant had, on 24 February 2020, received a letter from Ms Thorpe advising the appellant that allegations about her conduct had been referred to EPAC. The information related to "inappropriate physical contact with a student". Beyond that, the allegations were not particularised. The appellant was advised that the allegations would be the subject of an investigation in accordance with the Department's "Guidelines for the Management of Conduct and Performance". The appellant was directed to report for alternative administrative duties at another school.
3. As part of her investigation, Ms Moore interviewed Ms Dunn on 13 March 2020. The information provided by Ms Dunn during this interview about the incident involving the appellant and M on 21 February 2020 is consistent with the written statement that she made that evening (at [12] above). It is also consistent with the contents of her affidavit subsequently filed in these proceedings (at [10] above).
4. Ms Moore was also provided with an email dated 12 March 2020 from Veronica Langthorne, a teacher at the School, to the principal, Greg Wood. The contents of that email are set out below: Please find following a statement of the events that occurred on 21 February 2020, as to my best recollection. We had finished swimming and were starting to change the students. Once a couple of them had been changed I took them into the area behind the fence away from the pool so that I could start putting their shoes on and to keep them together until all students had been changed. I recall two students waiting with me and both trying to make their way out to the liberty swing area, one through the door and one through the window so at some stages my back was turned away from the pool momentarily whilst I attempted to keep students inside. It wasn't until all students were out of the pool and Vicki had changed and come out of the change room that she informed me that she had been hit in the face by a student. I did not see this occur or the events that preceded or followed this apparent incident. It was not until the following Tuesday 25 February whilst I was attending Canberra Royal that I learnt that Vicki was not on class. At first I thought she had a medical condition as the doctor had given her time off, it wasn't until further communication with other staff that I learnt the reason why she was off. On Thursday 27 February 2020, Vicki contacted me via messenger (messages attached). She asked me to call her which I did and we had a short conversation. When Vicki spoke to me on the phone, she told me she had been reported and was most insistent in finding out what I had seen at the pool. She further questioned me as to who was at the pool and why certain people had been up to the pool, had I seen anyone walk past the windows etc. During the conversation Vicki mentioned that when she was hit she grabbed the student to get him out of the pool and they both slipped under the water. As previously mentioned I did not see any of these events occur. If you require any further information or clarification, please don't hesitate to contact me.
5. Attached to the email and tendered into evidence by the counsel for the Department was a screen shot of a string of messages between the appellant and Ms Langthorne which was initiated by the appellant on 27 February 2020 and interspersed with a telephone conversation.
6. At this time the appellant had been advised by Ms Thorpe only that her conduct had been referred to EPAC and it related to "inappropriate physical contact with a student". The appellant had not been provided with the name of the student, the time and date of the alleged incident or any particulars of the alleged conduct. These details were not provided to the appellant until 19 March 2020. Nevertheless, the appellant proceeded to question Ms Langthorne about "the lady from the office (who) was at the window when was that and what was she there for?".
7. Ms Langthorne was subsequently interviewed by Ms Moore on 15 May 2020. She confirmed that she had not witnessed the incident involving the appellant and M which was the subject of the investigation.
8. Ms Moore also had conversations with two other SLSOs, Yousra Armanyous and Hira Hussain, who were present at the hydrotherapy pool on 21 February 2020. The records of those conversations are set out below: T/C to Yousra Armanyous (SLSO) Asked Yousra is she can recall what happened when M was taken out of the pool, whether Vicki handed M to her as he got out. She said she didn't recall assisting to get M out of the pool or being asked to look after Is and was unsure if Hira had helped. When asked further, she clarified that she could not remember any details of what happened, and it's possible that she did assist and doesn't remember. She said she didn't see anything happen between Vicki and M and said if something happened maybe it had been in the changing room after, as she recalls seeing Vicki after she came out of the changing room, with a red mark under her eye. T/C to Hira Hussain (SLSO) Ms Hussain confirmed she was present at the swimming lesson on the day M hit Ms Douglas in the face. She recalled M had been misbehaving and jumping in the pool, so they took him out of the pool and when he had calmed down he was allowed back in the pool. She says this strategy appeared to work, as he was calm when he got back in the pool and he swam gently and didn't bother anybody. Ms Hussain observed Ms Douglas assisting another student to swim, and M was in the pool behind Ms Douglas and appeared calm. At this point Ms Hussain took a student into the changing room to get changed, and when she returned, the incident had taken place and Ms Douglas was holding her eye where she had been hit by M. M was still in the pool at this point and Ms Hussain assisted Ms Douglas to get M out of the pool. She said Ms Douglas 'had to force him' and she held him until he was close to the steps and they (referring to herself and Ms Douglas) 'just had to drag him out' and then M walked to the changing room. Ms Hussain confirmed that the other SLSO did not assist getting M out of the pool and she did not think she was there when M attacked Ms Douglas, as she was in the changing room. It is noted that English is not Ms Hussain's first language and she appeared to struggle at times to describe the events. It appears this influenced some of her language, such as 'force' and 'drag'. She indicated that due to Ms Douglas' eye injury it was necessary to force M out of the pool so they could finish the lesson. Ms Hussain recalled Ms Douglas had to put ice on her eye, as there was a large swelling caused by M's hit.
9. By letter dated 19 March 2020 from Ms Parry, the appellant was provided with the allegations of misconduct against her (at [5] above). As the third allegation concerning the appellant's secondary employment was not sustained, I do not intend to deal further with this allegation in these reasons for decision. The appellant was asked to respond to the allegations in an interview or in writing. The appellant chose to respond in writing and did so by letter dated 1 May 2020 to Ms Parry.
10. In her response to Allegation 1, the appellant claimed that she did not recall M splashing her with water or her splashing him but stated that, if she did, it would have been in play. The appellant denied shaking M by the wrists and stated that the only time she can conceive that she would have held him by the wrists was when he was getting out of the pool and she was handing each arm to the SLSOs to avoid them being hit.
11. In response to Allegation 2, the appellant stated as follows: When it was time for M to get out I sat Is on the spa steps asked the SLSOs to watch him while I walked over to M saying that it was time to get out. I was standing on his left side and placed my arm out towards him to assess his reaction. He turned and hit me with the heel of his right hand on my left cheekbone. In response to being hit by M I may have said "don't hit me" but I was injured and shocked by his attack on me. I then moved behind M to avoid being hit again and placed my arms under his armpits to assist him out of the pool. As I was moving him to the edge of the pool, he lifted his legs off the bottom of the pool and we both fell forward. I was in the water up to chest height before regaining my footing. At this point he may have gone under water, but this was not an intentional action on my part. When I reached the pool stairs, I took M by the wrists and handed each SLSO one hand to avoid them being hit by M.
12. In her investigation report, which was finalised on 2 June 2020, Ms Moore, after considering the evidence that she had gathered, including a number of photographs of the hydrotherapy pool at the School and the immediate surrounds, made the following recommendations: It is recommended that: * That the conduct alleged at allegations 1(a) and (b), and 2(a), (b) and (c) and 3 is sustained. * That the decision maker finds that the sustained conduct at allegations 1(a) and (b), and 2(a), (b) and (c) constitutes misconduct. * That the sustained reportable conduct (serious physical assault) at allegation 2(b) is reported to the NSW Office of the Children's Guardian.

Disciplinary outcome

1. By letter dated 13 July 2020 from Ms Thorpe, the appellant was advised as follows: I sustain the particulars of Allegations 1 and 2. I find particulars 1(b) and 2(b) amount to misconduct. While I accept you may have been shocked by the student slapping you hard across the face, it appears the slap was in response to having his wrists grabbed roughly and the action of pushing his head under the water is most serious as it could have resulted in significant harm to the student. Reacting in such a manner is entirely unacceptable in any circumstances particularly given the vulnerable nature of the student. The disciplinary actions available to me range from a caution and/or reprimand to dismissal. On this occasion, I am considering directing you to resign from the Department of Education. I am also considering placing your name on the list of persons not to be employed by the Department of Education (NTBE list). Having considered this matter, I am required to consider whether the allegations amount to conduct requiring a report to the Office of the Children's Guardian (OCG) as prescribed by the Child Protection (Working with Children) Act 2012. I have decided that the action of pushing the students head underwater may require reporting to the OCG, as it could have resulted in significant harm to the student. You may wish to address this matter in your submission to me.
2. The appellant was given 14 days from the receipt of the letter to make a written submission to Ms Thorpe and/or a submission at interview. The appellant was given an extension of time to respond and, ultimately, a letter from the appellant to Ms Parry dated 18 August 2020, was provided as an attachment to correspondence dated 21 August 2020 to Ms Thorpe from the appellant's union representative, Andrew Wright, of the Public Service Association of NSW. In this correspondence, the appellant repeated her denial of the allegations.
3. Despite these representations, by letter dated 31 August 2020, Ms Thorpe confirmed her previous findings, directed the appellant to resign and advised her that her name was to be placed on the NTBE list and she was to be reported to the OCG. Having failed to comply with the direction to resign, the appellant was dismissed by letter dated 18 September 2020 from Mr Wright-Smith.

Daryl Currie

1. Daryl Currie is employed by the Department as the Acting Executive Director, PES. Mr Currie prepared an affidavit in which he referred to a number of previous allegations of misconduct that had been made against the appellant.
2. When counsel for the Department, Mr T Dixon, attempted to read the affidavit and call Mr Currie to give evidence, Mr Nagle, on behalf the appellant, objected on the ground that the previous matters had not been relied upon by the Department to dismiss the appellant.
3. After hearing submissions from both counsel, I declined to admit the affidavit of Mr Currie into evidence and I have paid no regard to its contents in coming to my decision in this matter.

Case for the appellant

1. In her witness statement, the appellant essentially repeated her responses to the allegations that she had provided in writing to Ms Parry on 1 May 2020 (at [23]-[24] above). Annexed to the appellant's witness statement were a number of photographs and a diagram of the pool area indicating where she alleged that people were located during the incident on 21 February 2020.
2. The appellant responded to the affidavit of Ms Dunn in the following terms: Statement of Anita Dunn 36. I have been provided with a copy of the Affidavit of Anita Dunn dated 5 November 2020. I make the following comments in response to Ms Dunn's affidavit: 37. Paragraphs 4-5: People constantly come and go through the waiting area and the area outside the waiting area Ms Dunn describes which is shown in the photograph at Tab I of Exhibit VYD-1 (and at page 71 of the affidavit of Rachel Moore dated 6 November 2020). I was aware of Ms Dunn's presence when she was there. I had observed her to the left of the door marked with a red elipse in the photograph at Tab J of Exhibit VYD-1 (and at page 73 of Ms Moore's affidavit). 38. I was not aware at the time that the video cameras at the pool were not operational. I thought I was being videoed while I was in the pool. It was only later that I found out that the video cameras were not operational. 39. Paragraph 5: I refer to my Response to Findings on page 17 at Tab F of Exhibit VYD-1 and contend that Ms Dunn had a "very clear view" as stated because: (a) Ms Dunn was at least 15-20 metres away from where I was located in the pool with M; (b) She was standing outside a window looking in; (c) Inside there was a small "waiting area' with two students and one teacher constantly moving around: and (d) There was also a tall pool fence between Ms Dunn and her view of the activity in the pool. 40. Paragraph 6: The other student that Ms Dunn is referring to is I. At the time of M was splashing and hit me in the face Is was sitting at the pool step which is marked with a green elipse in the photograph at Tab K in Exhibit VYD-1. The red elipse in that Tab K image indicates where M and I were standing. SLSO Yousra Armanyous was standing immediately behind Is, facing me directly at that time. 41. The red elipse in Tab L in Exhibit VYD-1 also shows where M and I were standing. The red elipse in Tab N in Exhibit VYD-1 also shows were Is and Yousra were located. 42. Paragraph 8: The shallow end of the pool is not deep. The tile on the wall (circled in red) shown in the photograph at Tab M of Exhibit VYD-1 indicates the depth there is 0.7 metres. The position where M and I were standing is marked with a red elipse in the photograph at Tab L of Exhibit VYD-1. The pool floor is slightly uneven and at that point it is about 0.8 metres deep. The deep end itself is not deep (as far as I recall the deep end is 1 metre). 43. Paragraph 10: I deny yelling at M to stop splashing me. I refer to my response to Allegation 1 above. 44. Paragraphs 11-12: I deny shaking M in a rough manner. I refer to my response to Allegation 1 above. 45. Paragraph 14: I refer to my response to Allegation 2 above. I expressly deny putting my hands on the back of M's neck and pushing his head underwater for 2-3 seconds as alleged by Ms Dunn. 46. Paragraphs 16-17: I deny handling or interacting with M roughly. I refer to my response to Allegation 2 above.
3. Also tendered into evidence as part of the appellant's case was a number of character references. The authors were Sylvia Southern, Samantha Thompson, Lauris Le Couteur and Leeann Barnes. These references generally spoke of the caring, respectful and supportive manner with which the appellant interacted with special needs children. Only Ms Barnes was required for cross-examination. Ms Barnes was asked a number of questions about her knowledge of previous misconduct allegations against the appellant arising from her interactions with students. Consistent with my earlier ruling, I do not propose to give any consideration to these previous matters in my determination of this appeal.
4. The appellant also relied upon a witness statement in reply in which she responded to certain aspects of the oral evidence given by Ms Dunn on the first day of the hearing.

Submissions

1. Both parties relied upon comprehensive written submissions, some parts of which are reproduced below.

Submissions of the Department

1. Written submissions relied upon by the Department contained the following (footnotes omitted): The Evidence of Anita Dunn 7. Ms Dunn's evidence was that she clearly saw the incident from a distance of 15-20m from a window looking over the pool. 8. Ms Dunn did not know Ms Douglas. She had no reason to lie about what she saw. 9. Ms Dunn was not shaken in cross-examination - at all. She maintained in clear and cogent terms that she saw Ms Douglas dunk the head of M under the water for 2-3 seconds moments after M had slapped her face. 10. Ms Dunn maintained on each occasion the issue was traversed that she saw: (a) Ms Douglas grab M by the wrists and shake him. They were face to face, with Ms Douglas facing Ms Dunn, and M with his back to Ms Dunn; (b) Then, after being struck on the face by M, Ms Douglas said "Don't you ever hit me in the face again"; (c) Ms Douglas then moved to M's left side, placed her right hand behind his head/neck; and then dunked his head underwater for 2 to 3 seconds. M was thereafter in a distraught state (distinctly different) and making a crying noise. (d) Ms Douglas then roughly removed M from the pool. 11. After witnessing the incident, Ms Dunn immediately texted her husband that she had just seen "a teacher treat a child unacceptable". 12. Ms Dunn reported the incident to the School, and made a contemporaneous statement of what she saw that night. 13. Ms Dunn appropriately accepted that there were times when she looked elsewhere before and after the incident, but her evidence was that she was looking directly at Ms Douglas and M when the incident occurred. 14. Ms Dunn also drew (and was cross-examined upon) the movements and positioning of Ms Douglas and M in the pool. 15. Ms Dunn was very clear that she saw a rough interaction. She stated in cross­ examination: (a) A: From what I saw, the interaction was very rough; (b) Q: How did he respond to the vigorous shaking? A: From what I could see he broke free and he smacked Vicki across the face. (c) Q: You've said it's a rough interaction - A: Yes. (d) Q: From time to time, teachers physically manoeuvre around [children] - A: Only at this point in the pool have I witnessed that kind of interaction. I thought it was a rough interaction. (e) A: This rough interaction I witnessed is the only rough interaction I've witnessed at the school. 16. Ms Dunn's evidence on the dunking of M's head did not change throughout: (a) A: I do know what I saw - Vicki grabbed M by the back of the neck and he went under. I know I saw that. 17. The Appellant's case is that Ms Douglas stood behind M and put her extended arms under his armpits in order to remove from the pool and, while doing so, slipped such that M fell under the water. This case was emphatically rejected by Ms Dunn: (a) Q: You don't know if Vicki lost her footing - A: I don't, but if she did, it didn't show because Vicki was always above the water (b) Q: You're just assuming that they hadn't lost their footing? A: Yes - but no movement up top indicated from Vicki that she slipped and lost her footing. (c) Q: If you ever saw M go under the water it was not because Vicki Douglas had dunked him but rather that they had lost their footing - A: Nothing showed me that they slipped. There was no slipping, Vicki never went under, her body was always above the water, her hand was on the back of his neck. (d) A: I never saw Vicki directly behind M. (e) A: I remember what I saw was that I never saw Vicki behind M - I can definitely say that. 18. Ms Dunn's account did not change from the time she first reported it. It should be accepted. The Evidence of Vicki Douglas 19. Ms Douglas' account was that she cautiously approached M with her right arm fully extended. Ms Douglas's evidence was that she was positioned with her back to Ms Dunn (the window) and M similarly had his back to the window. Accordingly, they were both facing the same direction. 20. Ms Douglas says that she was hit across the face whilst at M's side with her right arm extended. She was hit with his right hand on her left cheek. 21. That meant that M was able to reach with his right arm all the way across and past Ms Douglas's extended right arm, past most of her face and make contact with her left side. That version does not appear at all possible based on the relative sizes of Ms Douglas and M: (a) Q: M hit you when you were in the process of getting him out of the pool? A: No, he hit me before I got that chance - I put my arm out [right hand indicated] and he hit me on my left cheek. (b) A: Always approach with caution - I put my hand out [right hand indicated]. Q: How could he hit you in the face? A: He swung around and went like that [roundarm swing indicated]. (c) Q: So you were close? A: At arms length. (d) Q: You were indicating that your [right] arm is at full length? A: Yes. (e) Q: At your arms length distance he hit you with his arm in the face? A: Yes. (f) Q: He wasn't at a full arms distance to you, there was less distance between you and M than what you are indicating? A: No. (g) Q: His right hand to your left cheek? A: Yes (h) A: He swung around and went bang - it happened so quickly - he swung around and went bang. 22. The incident only makes sense if it is understood that Ms Douglas was facing M. At that far shorter distance, his right arm would easily reach and make contact with the left side of Ms Douglas' face. 23. Key parts of Ms Douglas's evidence are internally contradictory. Other aspects are confirmatory of what Ms Dunn saw. 24. For example, Ms Douglas said M was not splashing, and yet later said that they were splashing each other (as Ms Dunn witnessed): (a) Q: You indicate that you move towards M who was roughly in the position where the X is marked - he was splashing around in the water and having a good time? A: I don't recall splashing. (b) A: Earlier on he was splashing and I asked him to stop because he was upsetting I and he stopped and walked away. (c) Q: He was splashing you? A: I think he was trying to get my attention. (d) Q: Did you at all splash M back? A: I probably did in fun - he was happy and we often do that, some students don't like the water and we play splashing to get them used to the water and I may have done that but I don't recall exactly what I did at that time. 25. Ms Douglas admits to grabbing M's wrists, albeit later in the incident when she was handing him to the SLSO on the side of the pool. However, the incident occurred at a time what Ms Douglas was in the process of removing M. Her evidence was that, if a student does not leave the pool when asked, the second option she employed was to physically remove them (referred to as 'option 2'): (a) A: I approached M [right hand extended] to guide him out of the pool; (b) Q: I suggest that you grabbed his wrists first? A: No. I give the children a choice first. (c) Q: I suggest that is exactly what happened on that day - he didn't respond to the request and you went to option 2? A: I didn't get a chance to do that because he turned around and hit me with the heel of his hand. 25.2 Ms Douglas admitted using the words attributed to her by Ms Dunn after Ms Douglas was slapped by M. This confirms Ms Dunn was witnessing the incident at the exact moment it occurred: (a) Q: Back to pool you said words to the effect "don't you ever hit me again?" A: Yes. (b) Q: You raised voice because you were in shock or upset? A: Possibly yes. (c) Q: Do you accept you would have said it loud enough for someone 15-20m away? A: Yes - everyone should have heard it. 26. Ms Douglas oriented M as facing the same direction as Ms Dunn saw him: (a) Q: M has his back to the window? A: Yes, he would have. (b) Q: You say you were on his left hand side? A: Yes (c) Q: You were facing? A: I was facing the back of the pool area towards the steps [right hand extended out]. (d) Q: How was it that you then turned 90 degrees so you both got your back towards the bottom of the diagram? A: Because I went in line with him, we were standing here where his name is, I walked over and walked to the side [right hand indicated] and gave him the option to get out of the pool. 27. Ms Douglas was confused about her account. She said she was hurt and dazed. Ms Douglas completed a form after the incident in which she indicated she was bruised on her right cheek. She maintained in her evidence that it was her left cheek: (a) Q: M took his right hand and swung around and hit you on the left cheek? A: I don't think he was aiming, he swung around and hit me and happened to get my left cheek. (b) Q: At [24] of your affidavit you say you were hit with the heel of M's right hand on your left cheekbone and that was correct? A: I did say that but this was done a long time after and I may have gotten in wrong. (c) Q: At page 37/ of 89 [incident report] you say you sustained a bruise to your right cheek? A: Yes. (d) Q: at page 38 you say there was a slap by the student to left side of face? Yes. (c) Q: Did you have a bruise on your right cheek or not? A: Going by this it is very confusing but when I filled this out I was in shock - maybe when he hit me he went across my face so he could have got both sides. (f) Q: Standing here today you cant recall which side the bruise was? A: No. 28. Ms Douglas' account lines up with Ms Dunn's in that Ms Douglas moved around behind M in a counter-clockwise direction: (a) Q: What was your immediate reaction after you were hit? A: He hit me, I went back a bit, took a breath, thought it's time to get out, put my arms underneath him he lifted his legs up and we both went under - under chest level not under head level. (b) Q: In which direction did you move around M? I would have been here [indicated towards window in an anticlockwise direction]. (c) Q: Counter-clockwise? A: I couldn't tell you. (d) Q: You can't remember? A: We were both standing beside each other and I just went around him and moved him - to the right - would have gone around anticlockwise. 29. Ms Douglas' account changed. She stated she could not recall exactly what occurred in respect of critical aspects of the incident itself: (a) Q: If you monetarily lost your composure after being struck, now is the time to say? I waited a minute (took a breath). (b) Q: You stepped back and took a breath? A: I don't know. (c) Q: You don't recall? A: I'd just been hit - I don't know if took one step. (d) Q: After being hit you don't know what you did next? A: No. 30. Ms Douglas' affidavit account was that M's head "may have gone under the water". Her oral evidence in cross-examination was that she had no recollection of his head going under the water: (a) Q: What did you do? I took a breath, walked over to him, put my arms under his armpits. (b) Q: Do you accept he went completely underwater? No - I have no recollection that his head went under the water. I fell to about middle range of my chest and he is not much shorter than me so I can't say he went under - if he were to have gone under he would have gone completely under. (c) Q: At [24] you say "at this point he may have gone under the water ... "? A: Yes. (d) Q: Your evidence was just that his head did not go under the water? A: Correct. (e) Q: Your evidence then that it might have gone under water but you don't know? A: Yes - it could have - I went to here [hands indicated mid chest region]. 31. Ms Douglas introduced a new narrative whereby she said M's legs kicked her legs out from under her. This was plainly an attempt to explain how they both could have fallen forward in circumstances where Ms Douglas said she was not carrying M: (a) Q: If you had your hands under his armpits explain to us how you fell forwards? A: We both went down, we fell down, under the water might have been the wrong words. (b) Q: You think that M took his legs off the bottom? A: His legs lifted up and we both fell down. (c) Q: Because in 0.8m of water you can't lift M using your arms? A: Yes­ anybody you can lift in water. (d) Q: And yet once he lifts his legs off the ground you fell forward? A: Yes (e) Q: Explain that. A: I was guiding him, I wasn't lifting him - I put my arms under his armpits to guide him along. (f) Q: How then did you fall if you weren't liftin him? A: Because his feet were in front of me and his feet probably kicked me - I can't recall exactly how it happened, but.. (g) Q: You were guiding not lifting? A: No [not lifting]. (h) Q: Notwithstanding you were guiding him you fell forward? A: Yes. (i) Q: Your evidence was M kicked back? A: I said it could have. (j) Q: Are you speculating? A: Yes. (k) Q: Because you don't recall? A: Yes. 32. Ms Douglas maintained that the teacher, Ms Veronica Langthorne, was in the waiting area under the window where Ms Dunn was. However, Ms Dunn had been waiting for Ms Langthorne to come out of the changerooms: (a) Q: [you say] throughout the course of the lesson there was a teacher in that waiting area? A: Veronica was in there with one of the students and Y. (b) Q: [you say] She was there as to the time of the incident? A: Yes. (c) Q: You constantly saw her moving around at the time of the incident? A: She was in the area trying to chase children who were getting out of windows. (d) Q: At the time? A: I can't recollect that. (e) Q: At [39(c) of your affidavit] you can't recall that now? A: She would have been. (f) Q: Veronica was in the waiting area at the time of the incident? A: Yes (g) Q: You saw her? A: Yes (h) Q: I put to you that you are mistaken about that? A: Ok. (i) Q: I've asked a number of times about 39(c) of your affidavit where you sought to challenge what Ms Dunn had said by giving evidence that there was a small waiting area with two students and a teacher - your evidence is that she as moving around in there? A: She was in the gated waiting area. 33. Ms Douglas had a guilty mind about the incident. She made approaches to Ms Langthorne to find out who was present at the pool. Ms Douglas started with the narrative in the days after the incident, without knowing she was being investigated for that incident, that they slipped and M's head went under the water: (a) Ms Douglas accepted in cross examination that did not know she was being investigated for the incident in the days following. (6) The principal had indicated to her that he couldn't discuss the matter with her and that she should contact EPAC. (c) Q: At that stage you had no idea? A: No. 34. Ms Douglas thereafter texted and called Ms Langthorne to find out who was present at the pool. Ms Dunn's evidence is to be preferred 35. Ms Douglas' account of how she came to be hit my M is not physically possible given the distances and size differences. 36. The far more cogent explanation of the incident is that given by Ms Dunn. That is, Ms Douglas was facing M directly and standing at a short distance because she had been holding both of his wrists. 37. Ms Douglas states that, after she was hit, she then moved behind M and put her arms under him armpits. Ms Dunn's evidence was that Ms Douglas never moved in behind M. It did not happen. 38. Ms Douglas also suggested that M's feet lifted off the bottom of the pool; and that his feet hit her feet and that they both fell forward. This account was accepted to be speculation on Ms Douglas's part as she admitted that she could not recall what had occurred. It was not an account given in her written statement to the investigator. 39. Yet it is the evidence Ms Douglas gave as to why she said she and M fell forward in circumstances where, on her evidence, her extended arms were merely "guiding" M to the edge of the pool, and not lifting him. 40. It is difficult to conceive how a person could fall forward into the water to create the type of scene that Ms Dunn had witnessed if Ms Douglas was indeed merely "guiding" (and not lifting) M. Ms Douglas provided no explanation. 41. Ms Douglas also displayed knowledge of guilt just after the incident when she rang Ms Langthorne. She did not know of the fact that a complaint had been made in respect of the Incident in the pool, yet she asked a number of questions of Ms Langthorne, including whether the witness (Ms Dunn) was present at the end of the lesson. When Ms Langthorne indicated that she thought Ms Dunn was not present at the end of the lesson, Ms Douglas gave a thumbs up in reply. Findings 42. The Commission should find that: (a) M was splashing a lot. He appeared happy splashing in the pool. (b) Ms Douglas yelled at M words to the effect of "stop splashing me". (c) M did not stop splashing. (d) Ms Douglas then splashed him back, grabbed M's wrists, and struggled with him, in doing so she shook him. (e) Ms Douglas released one of M's wrists. (f) M, facing Ms Douglas, then hit Ms Douglas in the left side of her face with his open right hand. (g) Ms Douglas yelled "Don't you ever hit me again" or words to that effect. (h) Ms Douglas then moved around to her right and grabbed the back of M's neck and pushed his head under water for 2 to 3 seconds. (i) When M surfaced, he was distraught. (j) Ms Douglas then roughly removed him from the pool. Disposition 43. The acts of physical retaliation fall squarely within the definition of misconduct. 44. Once that is established, the sanction must be dismissal. 45. In this matter, section 7A of the Act requires that "the protection of children be the paramount consideration" when the Commission determines the matter. The policy underlying s.7A reflects the existence of the Department's duty of care to its students. 46. The Department has a clear duty to take steps to guard its students against foreseeable risks adverse to their safety and welfare. 47. These are matters to which the Commission is obliged to have regard to in carrying out its assessment of a dismissal, and its consideration of remedies. 48. For all of the above reasons, the Appeal must be dismissed.
2. Mr Dixon supplemented the Department's written submissions with oral submissions on the final day of the hearing.

Submissions of the appellant

1. The appellant relied upon the following written submissions: 1. These short submissions are written based upon the anticipated submissions of the respondent (who bears the onus) and do not constitute the entirety of the case advanced by the appellant. The full case will be advanced upon the making of oral submissions by the appellant's counsel. 2. The allegations in this matter are as follows: a. In response to student with special needs, S (known as M) splashing you with water in the swimming pool you: i. Splashed water at M; ii. Took hold of M by his wrists and shook him. b. In response to M hitting you in the face, you: i. Yelled at him words to the effect; "Don't you ever hit me again"; ii. Grabbed the back of M's head and pushed his head under the water for 2-3 seconds, and; iii. Took hold of M by his wrists and removed him from the pool. 3. The appellant denies all the matters above except that: a. The appellant does not deny telling M not to hit her; b. That when passing M over to the other SLSOs she passed his hands over so that he was not able to hit the SLSOs or other children. 4. Importantly, the appellant has always denied shaking M and has always denied pushing M's head under water. 5. It is of crucial importance to bear in mind that the only purported eye witness was around 20 metres away, looked away from time to time and that none of the other persons present being SLSOs or the teacher heard or saw anything to cause them concern. They do not even report hearing the appellant say "don't hit me". The appellant is a witness of truth without a history of violence 6. The evidence given by the appellant has not been the subject of challenge in these proceedings because, without calling the other SLSOs and the teacher present on 21 February 2020, the respondent cannot advance a forensic case that constitutes such a challenge. 7. The appellant has worked as an SLSO since 2000, including for 16 years at [the School], with 15 of those 16 years constituting permanent employment. 8. The appellant has called character evidence to demonstrate that she is a person who is trusted around special needs children. 9. The appellant's evidence was clear in relation to the interaction with M. The appellant gave the following evidence regarding the incident: a. I was placed on the spa step and Yousra was watching him. b. The spa step is located near the exit steps towards the back of the pool; c. She approached M from the side to get him out of the pool; d. He swung around with his right hand and hit the appellant on the left side of her face; e. It was a powerful strike; f. The appellant' head was forced back from the strike; g. The appellant move behind M so he could not strike her again; h. The appellant then moved her hands under his armpits to guide him out of the pool; i. M then lifted his feet of the floor of the pool and they both fell forward; j. The appellant then moved him to the edge of the pool and handed over his wrists so that he could not strike the SLSOs or other children. k. She filled out the relevant incident reports soon after. It is acknowledged that the appellant was mistaken when she wrote that she had suffered a bruise to the right side of her cheek not her left. If the respondent says this goes to her credit the submission should be rejected. She had just been heavily struck by a 9 year old boy of Islander heritage who is a large child who comes up to the shoulder of the appellant. 10. Importantly, the appellant is lefts handed. It is worth noting that on the version of Ms Dunn the appellant used her right hand to dunk M. Whilst not determinative it weighs into the fabric of the appellant's denial that she would not use her non-dominant hand in the circumstances. The evidence that the appellant is left handed is not recent invention: see Ex VYD-1, p20, 4th entry. 11. There were CCTV cameras within the pool complex at the time of the alleged assault. The appellant was not aware that the CCTV was not operational at the time of the alleged assault. 12. None of the other persons present witnessed, either visually or aurally, anything out of the ordinary. 13. The allegation that the appellant was from time to time shouting does not bear scrutiny given the presence of others in and around the swimming complex. Evidence of character witnesses 14. The four character witnesses relied upon by the appellant each say that: a. They have seen the appellant interact with children, b. They believe she treats children well, c. That they think it would be out of character for the appellant to assault a child. 15. Lauris Le Couteur worked with the appellant for many years. She observed the appellant to follow protocols and be respectful towards the children. 16. Leanne Barnes gave evidence that the appellant had cared for her son A over the past five years. A is a special needs teenager. 17. Sylvia Southern has given evidence that she has witnessed the appellant with children over the past fourteen years including her own son. She does not believe the appellant would assault a child. 18. Samantha Thompson has known the appellant for 14 years. Ms Thompson has 2 special needs children. She has observed the appellant to care for her children outside of the school environment and trusts her and continues to trust her with her children. 19. It is important when determining whether the assault is proved whether the appellant would do something which would clearly be completely out of character on the evidence before the Commission. Failure of recollection of Dunn and implausibility 20. The following aspects of Ms Dunn's evidence means it should not be taken to be reliable. Ms Dunn's evidence established: a. In her interview Ms Dunn said the following: Because I know I remembered then, like when I told Greg, the day it happened, but I'm not a hundred percent sure now who was around which way" (L190- 200). b. "At one point one of the boys came up to me. That's why my vision had moved away from the pool. That's when they - they were over here. This is where M struck Vicki" (L185). Importantly Ms Dunn said this change in position occurred in a matter of only a couple of seconds. It would not have been possible for the appellant and M to have moved so quickly. c. Moore: Can you describe that to me? (L262 and following) Dunn: It was similar to here. I honestly can't remember the exact physicalness, but I do remember it looking physical and a bit rough, and again, around the wrists. Moore: Did it look like she was doing it on the spot, or trying to manoeuvre him out of the pool? Dunn: I can't comment. I don't know. d. She could not see under the water to know if M's feet lifted off the bottom of the pool; e. She did not know how long she was at the window; f. She thought she may have been standing at the window on the left hand side. The evidence is that the window on the left does not open. g. She was not sure who else was present at the time of the alleged assault; h. She was not sure how far M and the appellant had moved from P1 to P2 and that her map was not reliable; i. She did not recall who was present with the two children present in the holding pen; j. She could not say when detailing the grabbing of wrists shaking allegation that the appellant had not held the wrists of M while he struggled. k. She had not interacted with M. 21. Other aspects of her evidence which were of concern were: a. She did not see M exit the pool; b. She said that from the time she saw Veronica walk out of the change room and got her attention , the appellant removed M from the pool (which she didn't see) and moved to half way along the pool and said "he hit me". In that same time she did not see M of SLSO Hira who removed M from the pool. c. She did not have a clear recollection of many of the events she alleged happened. 22. Ultimately, without corroboration, the version given by Ms Dunn stands alone, unsupported, unconvincing and unacceptable to a trier of fact given the seriousness of the allegation. Failure of investigator 23. The investigator did not put the version given by Ms Dunn to any of the other witnesses for their comment. 24. The investigator did not think it was necessary to take detailed versions from each of Veronica, Yousra and Hira about what they could remember of the day with precision. 25. The investigator did not ask Veronica for example how long she interacted with Ms Dunn for. 26. The investigator also asked numerous leading questions during interviews which lessens the reliability of the outcome of the investigation. 27. It also appears the respondent will submit that the enquiries made by the appellant in the days following demonstrates a consciousness of guilt. Such a submission should be rejected. The appellant knew that there had been a physical interaction with M because he had struck her. The appellant also knew of an interaction when Mo had bitten M. Those two events were the basis of her making enquiries once she had been stood down in the days after 21 February 2020 (Ex VYD-1, p20, 5th entry). Failure to interview other persons present 28. Present at the time of the alleged assault were the following people: a. Veronica Langthorne b. Yousra Armanyous c. Hira Houssein 29. Neither Yousra nor Hira ever had the version given by Ms Dunn put to them to see if they could recollect any events relevant to the matters the subject of the investigation. 30. By way of example, no evidence was taken about who was changing which child in or around the relevant period. 31. Furthermore, each of the SLSOs were not asked if they can even recall seeing Ms Dunn at the window at around the time. 32. Importantly of course the respondent has not called the three witnesses because it would not have assisted the respondent's case. 33. Each of the three potential witnesses was in the pool area working with the appellant and none of them witnessed shaking of any kind. None of them witnessed the appellant dunking the head of M either. 34. None of them give evidence of the appellant shouting at M. 35. This failure to call relevant witnesses gives rise to a Jones v Dunkel inference that does not assist the respondent in proving case. 36. It is not enough to say that none of the witnesses could not give evidence that they saw anything which would tend to prove the respondent's case. The fact they saw nothing, and that they are not available to test the evidence of Ms Dunn, leads to the inescapable conclusion that the appellant should be believed and the misconduct as alleged is not made out.
2. The appellant's submissions then cited a lengthy passage from the decision of the Full Bench (Sams DP, Boland J, Grayson DP) in New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 and concluded as follows: 39. When the Commission has regard to the matters as outlined above the inescapable conclusion must be that the allegations, including the most serious allegation of dunking, is not made out.
3. The submissions then addressed the issue of practicability of reinstatement and concluded as follows: 41. ln the premises therefore the Commission should make the following Orders: a. The appeal is upheld; b. The decision of 31 August 2020 to remove the appellant should she not resign is set aside; c. The appellant is to be paid such amount as she would have earned but for the decision to remove her, less any earnings from the application of her labour during the period of removal.
4. Mr Nagle also supplemented the appellant's written submissions with oral submissions on the final day of the hearing, which included the following: Ultimately Commissioner you have character witnesses that know this woman well that say this is not in her character. You have other teachers present at the time that do not witness anything untoward. You have my client denying that she did these things and that they had slipped under the water. There's been something that's been tried to be made of that but that must imply that they went under above their heads. That's not right. That was not the version that my client gave. And if someone assumed that to be the case, they've slipped under the water, that is fairly tenuous. True it is that you have Ms Dunn that thinks that she saw something and that she's definite about one aspect of it, other aspects not so much. But at the end of the day, taking into account the very serious nature of the allegations they've made, and the fact that it would amount to criminal conduct, in my submission you can't be qualitatively satisfied. And if that's the case then the respondent's case is not made out. Once you get to that practicability of reinstatement does not arise.

Department's submissions in reply

1. During Mr Dixon's oral submissions in reply, he addressed the issue of the credit of Ms Dunn and the lack of credit of the appellant as well as the Jones v Dunkel point raised by Mr Nagle due to the Department's failure to call as witnesses Ms Langthorne, Ms Armanyous and Ms Hussain who were present at the hydrotherapy pool on 21 February 2020. The following exchange then occurred: DIXON: I beg your pardon, my instructing solicitor reminds me of one thing Commissioner, I apologise for that. Just so the Commissioner understands, there was a question put to Ms Dunn at the end of cross-examination that there was an interim prohibition order in place from the children's guardian-- COMMISSIONER: To Ms Douglas. DIXON: Sorry, to Ms Douglas. Now it's just a procedural issue that the Commission needs to bear in mind. If I could just give a reference to s 8 subs 2 and s 47 of the Child Protection (Working with Children) Act 2012, and the upshot is that the Commission's-- COMMISSIONER: Can you just give me those references again please? DIXON: Yes, it's 8 subs 2 and s 47 of the Child Protection (Working with Children) Act 2012. The upshot of those provisions is that an interim bar, which is what Ms Douglas accepted was in place in respect of her employment. The interim bar is a prohibition as defined in 8.2 and as a result the Commission has no jurisdiction to reinstate whilst an interim bar remains in place. I'm just identifying that as a potential issue for the Commission, depending on the path it takes, but that seems to be the present state of affairs. COMMISSIONER: That seems to be a fairly significant submission that's been put. It hasn't been put till now has it? DIXON: Well, no, I don't think it's been put till now. It really means that an investigation that is extant needs to, as I understand it, play out before the Commission can exercise the full penalty of powers. COMMISSIONER: So what investigation is currently underway? DIXON: Well I'll just take instructions on that. As I understood it the evidence was it's an investigation in respect of the very incident, or the matter, before the Commission. COMMISSIONER: And who's conducting that? DIXON: The Office of the Children's Guardian. COMMISSIONER: So are you saying that I need to await the outcome of that before I can uphold the appeal if that was the decision that I came to? DIXON: Yes. If I could just. Yes. So 47.2 reads that "The Industrial Relations Commission, or any other Court or Tribunal, does not have jurisdiction under any act or law to order the reinstatement or re-employment of a person or worker contrary to a prohibition on employment imposed under this Act". And as I say the interim bar falls within the definition of prohibition on employment. It's not a point we seek to make on any merit ground whatsoever. It's just - I'm identifying that there's a procedural issue in place, or jurisdictional issue in place, for the Commission, whilst the investigation remains on foot. COMMISSIONER: At what stage is that investigation up to? DIXON: I'm instructed that Ms Douglas has put in a submission and that the next stage in the process is that a decision is then made. COMMISSIONER: By who? DIXON: By the Office of the Children's Guardian. NAGLE: Can I put Mr Burns in the witness box? COMMISSIONER: I don't have a problem with that. BURNS: Or I can just speak from the bar table. NAGLE: I don't mind how it happens. BURNS: Can I just say-- COMMISSIONER: In your hands-- NAGLE: --about to say, I'm going to ask for some time to put in a written submission in relation to this and it's also, while I'm on my feet, we don't seek reinstatement or re-employment. We seek the decision be set aside. They're different. The language in this part of the Act is different to eighty nine. COMMISSIONER: Well, what's the consequence of that? NAGLE: The decision to dismiss has been taken to have been set aside. COMMISSIONER: Then what flows from that? NAGLE: If they have to pay her, but there's an interim bar in place, then so be it. COMMISSIONER: All right. So, is Mr Burns going to say anything more than that? NAGLE: Well, I'm happy for him to explain where the process is up to. But-- COMMISSIONER: If he knows, I'm happy to hear it. BURNS: Yes, I know. In, I think January, Vicki received a letter from the-- COMMISSIONER: January? BURNS: January this year, she received a letter from the Office of the Childrens Guardian requesting - notifying that they'd received, or that there was an interim bar in place, so she's only been unable to work with children since January this year. And it requested, they received the notification from the Office of the Childrens Guardian about the decision of the department to terminate her employment. She was requested to put in a submission. We requested an adjournment of that submission until after this hearing was finished. They said, "No, you still had to put in", so we've advised the Office of the Childrens Guardian that the allegations were denied, or that the matters the subject of the dismissal had been appealed and we're before the Commission and I've given the Office of the Childrens Guardian the matter number and the dates upon which it was to be before you and they received that - when did you send that submission through? About I think 9 March. About the beginning of March and since that time we've heard nothing. So, the status quo is that the Office of the Childrens Guardian has been advised that the matter's subject to appeal here. COMMISSIONER: So, did you want to put in a submission about it? NAGLE: I think the answer is "Yes" and, if I do, I think it's going to be within the next 48 hours, but I think it will be what I've already said, that-- COMMISSIONER: Well, I'll give you an opportunity to think about it and, if you wish to, if you could do that and then provide it, obviously, to Mr Dixon and if you think that needs a response, then you should do that within a similar timeframe. NAGLE: Yes, I'll have anything to you by 4pm this Thursday. COMMISSIONER: Subject to receiving that material, I propose to reserve my decision.

Appellant's submissions on effect of sections 8 and 47 of the Child Protection (Working with Children) Act 2012

1. Shortly after the conclusion of the hearing of the appeal on 13 April 2021, the following written submissions were filed on behalf the appellant: 1. At the conclusion of the hearing in this matter on Tuesday, 13 April 2021, the Respondent's Counsel raised for the first time with the Commissioner the issue of section 8 and section 47 of the Child Protection (Working with Children) Act 2012 (CPWWC Act) submitting that legislation may affect the jurisdiction of the Commission to reinstate the Appellant. The manner in which this point was raised in the Commission should attract some criticism. 2. Section 8 of the CPWWC Act provides: 8 Restrictions on engaging in child-related work (1) A worker must not engage in child-related work unless-- (a) the worker holds a working with children check clearance of a class applicable to the work, or (b) there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. (2) A worker must not engage in child-related work at any time that the worker is subject to an interim bar. 3. Section 47 of the CPWWC Act provides: 47 Relationship with other Acts and laws (1) A prohibition on employment under this Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or worker contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment of a person from employment prohibited under this Act. 4. The Appellant is currently the subject of an interim bar as a consequence of the finding of misconduct which was the subject of this Appeal. 5. A copy of the Notice of Interim Bar letter from the Office of the Children's Guardian dated 12 January 2012 informing the Appellant of the Interim Bar (Notice of Interim Bar) is attached at Schedule A to these submissions. Page 2 of the Notice of Interim Bar describes the Appellant's Workplace Record as follows: Type of Record Name of Record Outcome Date of Outcome Workplace Record Misconduct - Department of Education Sustained 31/08/2020 6. The Outcome referred to in the Notice of Interim Bar is the Decision which is the subject of this Appeal (see Notice of Appeal part 19, annexure D; Statement of Vicki Douglas dated 18 December 2020, paragraph 30; Tab G to Exhibit VYD-1) 7. It is important to note that the CPWWC Act does not prevent a person who is the subject of an interim bar from commencing or running an unfair dismissal claim or a public sector disciplinary appeal under the provisions of the Industrial Relations Act 1996 (IR Act) or any other legislation. 8. By contrast, Parliament has seen fit to legislate in clear terms to prevent certain other classes of NSW Government Sector employees from commencing an unfair dismissal claim or a public sector disciplinary appeal. For example, employees of the Independent Commission Against Corruption are prevented by section 104 of the Independent Commission Against Corruption Act 1988 (ICAC Act) from commencing an unfair dismissal claim or a public sector disciplinary appeal under the provisions of the IR Act. 9. Section 104 of the ICAC Act provides: 104 Appointment of Chief Executive Officer and other staff (1) The Chief Commissioner may appoint a Chief Executive Officer and such other staff of the Commission as may be necessary to enable the Commission to exercise its functions. … (9) The Chief Commissioner is, for the purposes of any proceedings relating to staff employed under this section held before a competent tribunal having jurisdiction to deal with such matters, taken to be the employer of the staff. (10) An appeal does not lie to the Industrial Relations Commission concerning a promotional or disciplinary matter affecting any staff employed under this section. (11) None of the following matters, and no matter, question or dispute relating to any of the following matters, is an industrial matter for the purposes of the Industrial Relations Act 1996 - (a) the appointment of, or failure to appoint, a person to any position as a member of staff of the Commission, (b) the removal, retirement, termination of employment or other cessation of office of a person in any such position, (c) any disciplinary proceedings or disciplinary action taken against a person employed under this section. (11A) Without limiting subsection (11), Part 6 of Chapter 2 of the Industrial Relations Act 1996 does not apply to or in respect of the dismissal (within the meaning of that Part) of any person from any position as a member of the staff of the Commission. 10. Parliament has not seen fit to legislate in the CPWWC Act such clear terms as it has in section 104 of the ICAC Act to prevent employees who are the subject of an interim bar from commencing or running an unfair dismissal claim or a public sector disciplinary appeal under the provisions of the IR Act. 11. The appellant is not prevented, and has not been prevented, from commencing and running her public sector disciplinary appeal while being the subject of an interim bar. Orders 12. The reference to "prohibition on employment" in section 47 of the CPWWC Act is unclear in its meaning. The Macquarie Online dictionary provides the following definitions: Prohibition: 1. The act of prohibiting. 2. A law or decree that forbids. Prohibition order: 1. A law or decree which forbids some specified activity. 13. However, Part 4 of the CPWWC Act which deals with "Reviews and Appeals" specifically in section 26(2)(c) refers to "a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004". 14. While there would be little doubt that section 47 of the CPWCC Act would apply to persons subject to a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004, the application of section 47 CPWWC Act to a person the subject of an interim bar is less clear. 15. In this case, the appellant does not seek orders which require reinstatement or reemployment. Decisions of this Commission have made orders setting aside the original decision rather than requiring an explicit order reinstating the appellant. 16. The available orders in a case such as the present are found in section 100C(2) of the IR Act. That subsection allows the Commission to allow or disallow an appeal. It does not speak to reinstatement or reemployment. 17. Section 100C is distinctly different to section 89 of the IR Act. Section 89 specifically uses the language found in section 47 of the CPWWC Act. 18. Therefore, the primary submission in reply by the appellant is that section 47 of the CPWWC Act does not preclude the Commission to allow an appeal. 19. ln allowing the appeal and setting aside the decision to remove the appellant the Commission does not reinstate the appellant. Rather, the Commission renders the removal void by setting it aside. There is no order for reinstatement or reemployment required. 20. In the event the Commission is against the appellant on this point and finds that whilst the interim bar is in place the Commission cannot uphold the appeal then the appellant seeks that published reasons be given regarding the findings about the purported misconduct and that the respondent notify the Office ofthe Children's Guardian of the outcome of the proceedings. 21. The Orders which could then be made by the Commission in that circumstance are: (1) The appeal be allowed; (2) The Respondent is directed to immediately inform the Office of the Children's Guardian that the Outcome against the Appellant dated 31 August 2020 has been successfully appealed; (3) The matter be listed for report back by telephone on 30 April 2021 or such time to be determined by the Commission; (4) Any other order the Commission deems fit in the circumstances.
2. The correspondence to the appellant from the OCG dated 12 January 2021, and annexed to the above reproduced submissions, was headed "Notice of Interim Bar and Request for Information WWC058193E" and advised as follows: About the assessment Since we granted you a WWCC clearance, we have received new information about your workplace record. The new information requires assessment under clause 1(2)(b) of Schedule 1 to the Act to decide whether you should continue to hold a WWCC clearance. The record/s prompting this assessment are outlined below. In addition to the records in this letter, the assessment will also consider other police or workplace records you may have, information from external agencies (for example, the Department of Communities and Justice) and information from you. We will make sure you are aware of the information we use in the assessment so that you may share your views about the records. About the interim bar While we conduct the assessment, the Children's Guardian has decided you are subject to an Interim Bar under section 17 of the Act. The Interim Bar is required because the records outlined in this letter indicate there may be a risk to the safety of children should you engage in child-related work while the assessment takes place. The Interim Bar means you cannot engage in child-related work while the assessment takes place. If we become aware you are working with children, we may refer the matter to the NSW Police. Our Compliance team is required by law to contact any verifying individual or organisation to let them know you are interim barred so that they can remove you from child-related work. The Compliance team will not tell anyone why you have been interim barred.

Department's submissions on the effect of sections 8 and 47 of the Child Protection (Working with Children) Act 2012

1. On 19 April 2021, the following submissions were filed on behalf of the Department (footnotes omitted): A. Introduction 1. On 13 April 2021, while under cross-examination, the Appellant gave evidence that she was given notice by the Office of the Children's Guardian that she is subject to an interim bar under the Child Protection (Working with Children) Act 2012 ("the WWC Act"). 2. The Respondent first became aware of the interim bar on 29 March 2021 following an enquiry directed by its solicitor to the Appellant's solicitor. The application of s.47 of the WWC Act was flagged as a jurisdictional issue with the Appellant's solicitor immediately after the Respondent was put on notice of the Appellant's interim bar. 3. The Appellant has been aware of the interim bar since 12 January 2021 and has continued to prosecute her appeal without giving notice of this potential jurisdictional hurdle to the Respondent or the Commission. There can be no criticism of the Respondent for failing to raise the instant issue in circumstances where only the Appellant was aware of the interim bar. To the contrary, the notion that the Commission would proceed to determine the matter without being informed of a jurisdictional issue that was squarely within the knowledge of the Appellant is the matter of immediate concern. 4. In closing submissions, the Respondent identified that s. 47 of the WWC Act may affect the jurisdiction of the Industrial Relations Commission to award the relief sought by the Appellant in her Notice of Appeal - namely, "Reinstatement". 5. On 15 April 2021, the Appellant filed written submissions addressing the effect of ss. 8 and 47 of the WWC Act on the instant appeal. These submissions address the issues raised in the Respondent's submissions. B. Institution of proceedings 6. The Respondent does not submit that s. 47 of the WWC Act precludes the Appellant from instituting or carrying on the proceedings before the Commission. C. The WWC Act 7. The object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances ("WWCCC"). 8. The object of the WWC Act is achieved in part by s. 8, which provides for certain circumstances in which a worker "must not engage in child-related work". A worker is thereby prohibited from engaging in child-related work if the worker does not hold a WWCCC of the relevant class, or is subject to an interim bar. 9. The Children's Guardian may conduct a risk assessment of an applicant for a WWCCC to determine whether they pose a real and appreciable risk to the safety of children. It is open to the Children's Guardian to find that an applicant poses a real and appreciable risk to children even if not satisfied that a particular allegation has been made out. 10. Section 47 of the WWC Act provides as follows: 47 Relationship with other Acts and laws (1) A prohibition on employment under this Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or worker contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment of a person from employment prohibited under this Act. 11. The meaning of "prohibition on employment imposed by this Act" within the meaning of s. 47 of the WWC Act is unambiguous. A prohibition on employment imposed by the WWC Act is a prohibition on employment imposed by s. 8 of the WWC Act. 12. The Appellant's submissions in relation to s. 26 of the WWC Act and to Child Protection (Offenders Prohibition Orders) Act 2004 are misconceived and do not assist the Commission in the interpretation of s. 47. 13. Section 26 of the WWC Act pertains to restrictions imposed on certain persons in respect of their eligibility to seek orders under ss. 27 and 28 of the WWC Act before the NSW Civil and Administrative Tribunal. 14. A prohibition order made under the Child Protection (Offenders Prohibition Orders) Act 2004 is not a prohibition on employment "imposed by [the WWC Act]". D. Appropriate orders 15. At the conclusion of the hearing in this matter on Tuesday, 13 April 2021, the Respondent's (sic Appellant's) Counsel raised for the first time with the Commissioner (and the Respondent) that the Appellant does not seek orders which require reinstatement or reemployment of the Appellant. This position diverges from the Notice of Appeal filed on 23 September 2020, and the Appellant's Case Summary filed 18 December 2020. 16. The Respondent agrees that the Commissioner's power to determine the present case is derived from s. 100C of the Industrial Relations Act 1996 ("IR Act"). However, the Commission is not restricted to a singular order allowing or disallowing the appeal. Section 100D(1) of the IR Act provides for additional orders that may be made if the Commission decides to allow a disciplinary appeal. 17. By setting aside the Respondent's decision to terminate the Appellant's employment, the Commission necessarily reinstates the Appellant's employment. Irrespective of whether the Commission orders "reinstatement" or "reemployment" in those terms, an order setting aside the Respondent's decision would have that effect. Section 100D(3) of the IR Act specifically envisages reinstatement as a consequence of a successful disciplinary appeal. 18. Having regard to the subject matter, scope and purpose of the WWC Act, the legislative intention of s. 47 is plainly to prevent the Commission from making an order which has the effect of returning a person to a role which is prohibited by the WWC Act. Any attempt to formulate an order which has that effect would be rendered nugatory by s. 47 of the WWC Act. E. Disposition 19. The Respondent submits that the Commission need not consider the application of s. 47 of the WWC Act because the Commission ought to disallow the appeal. 20. If the Commission is minded to allow the appeal, the Commission is not empowered to make any order which would have the effect of returning the Appellant to her role as an SLSO, or to any other child-related work within the meaning of s. 6 of the WWC Act. 21. In those circumstances, the Commission should publish reasons with respect to the factual matters in the case and the effect of s. 47 of the WWC Act. The Commission should then make no orders (other than case management orders) until the Appellant's interim bar ceases to have effect. 22. The Commission should be cautious in making any order that "the appeal be allowed" or in any similar terms. The Commission would risk falling into jurisdictional error by making any order that could be interpreted as having the effect of quashing the decision of the Respondent and, as a result, returning the Appellant into her role as an SLSO. 23. The Commission should not make an order contingent upon the Appellant's interim bar ceasing to have effect. It is open to the Children's Guardian to find that the Appellant poses a real and appreciable risk of harm to the safety of children and cancel the Appellant's WWCCC, even if the Commission is not satisfied that the allegations of misconduct that are the subject of this appeal are made out. 24. The Commission should not make an order directing the Respondent to inform the Office of the Children's Guardian of any matter. The Appellant is in a better position than the Respondent to inform the Office of the Children's Guardian of all relevant matters to her WWCCC. 25. If the Commission is minded to ultimately allow the appeal, the Commission should publish reasons (including reasons disposing of any dispute as to the operation of s. 47 of the WWC Act), and make an order granting the parties liberty to apply for the matter to be re-listed for directions concerning the nature of any relief after the Appellant's interim bar ceases to have effect.

Determination

1. In her Notice of Appeal - Public Sector Discipline filed on 23 September 2020, the appellant listed the relief that she is seeking as follows: (1) Reinstatement (2) Removal from Not To Be Employed (NTBE) list (3) Withdrawal of referral to Office of the Children's Guardian (4) Formal apology (5) Compensation for lost income
2. Nothing that has been put on behalf of the appellant in these proceedings would warrant the Commission granting the form of relief set out at (3) and (4) both of which would appear to be beyond the Commission's power. The form of relief sought at (2) would also appear to be beyond the Commission's power, although a reinstatement order would presumably override the Department's NTBE list. The submissions put on behalf of the appellant did not specifically address these issues but, instead, focussed on reinstatement and compensation for lost income.
3. However, the first hurdle that the appellant faces is the Child Protection (Working with Children) Act 2012 (CPWWC Act) and, specifically, sections 8 and 47 of that statute.

CPWWC Act

1. I must say that it is entirely unsatisfactory that this issue was not brought to the Commission's notice until literally the dying seconds of a three day hearing. The CPWWC Act raises an important issue that should have been addressed by the parties at the outset. I direct this criticism to the legal representatives of both parties.
2. It is now put on behalf of the appellant that she "does not seek orders which require reinstatement or reemployment" (paragraph 15 at [44] above). I reject this submission. The appellant is clearly seeking an order that would have the effect of reinstating her to her former role of SLSO at the School with back pay (see [41]-[42] above).
3. The issue of practicability of reinstatement does not arise if the appellant is not seeking reinstatement. Further, the consequence of allowing the appeal would be, as Mr Nagle put it, "my client goes back to work".
4. It was also put that, by allowing the appeal and setting aside the decision to dismiss her, the Commission does not reinstate the appellant but, rather, renders her removal void by setting it aside (paragraph 19 at [44] above). I also reject this submission. Setting aside the decision to dismiss the appellant would mean that she is not dismissed but reinstated to her former role. If the Commission lacks the power to order the appellant's reinstatement, the Commission also lacks the power to make an order that would have the same effect.
5. Section 47(2) of the CPWWC Act is in the following terms: (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or worker contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment of a person from employment prohibited under this Act.
6. The wording of this subsection is intractable. There can be no utility in the Commission hearing and determining an appeal which it is statute barred from allowing, which is the outcome that the appellant is seeking in these proceedings (paragraph 21 at [44] above).
7. As already stated, the effect of allowing the appeal would be that the appellant would be reinstated. If this were an unfair dismissal case, there is no doubt in my mind that section 47(2) of the CPWWC Act would prevent the Commission from making a reinstatement order pursuant to section 89(1) of the Act.
8. To effect the reinstatement of the appellant by allowing her appeal and setting aside the decision to dismiss her, in circumstances where section 47(2) of the CPWWC Act makes it clear that this Commission may not order reinstatement of the appellant due to her being subject to an Interim Bar, would offend the legal maxim "when anything is prohibited, every means by which the thing may be accomplished is also prohibited" (see Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA 157 at [81]-[88] and the authorities cited therein),
9. Further, section 8(2) of the CPWWC Act is in the following terms: (2) A worker must not engage in child-related work at any time that the worker is subject to an interim bar.
10. It is not in dispute that the appellant is currently subject to an Interim Bar. Whilst ever the Interim Bar is in place, the appellant cannot engage in child-related work and, therefore, cannot be reinstated to her former role as an SLSO at the School.
11. In addition to seeking an order that her appeal be allowed, the appellant also seeks the following order: (2) The Respondent is directed to immediately inform the Office of the Children's Guardian that the Outcome against the Appellant dated 31 August 2020 has been successfully appealed;
12. The purpose of seeking such an order was not fully explained. If its purpose is that a finding by this Commission that misconduct by the appellant had not occurred might influence the OCG in its consideration of the appellant's suitability to engage in child-related work, then I would decline to make such an order.
13. Sections 6 and 7 of the Children's Guardian Act 2019 are in the following terms: 6 Main object of Act The main object of this Act is to protect children by providing for the role and functions of the office of the Children's Guardian, including - (a) promoting the quality of organisations and persons providing services to children, and (b) regulating those organisations and persons in providing those services. 7 Paramount consideration The safety, welfare and wellbeing of children, including protecting children from child abuse, is the paramount consideration in decision-making under this Act and the regulations and in the operation of this Act and the regulations generally.
14. These statutory provisions make it clear that it is the OCG, not this Commission, which is responsible for protecting children in this state by, inter alia, regulating persons who are engaged in child-related work. Further, it is not for this Commission to provide the OCG with some sort of quasi advisory opinion by making orders which are statute barred by the CPWWC Act.
15. The most that this Commission could have done, in light of the Interim Bar, would have been to adjourn the hearing of this appeal until after the OCG had concluded its consideration of the appellant's suitability to be permitted to again engage in child-related work and until the conclusion of any proceedings taken elsewhere that the decision of the OCG may have given rise to. For the reasons set out below, the adjournment of these proceedings on such basis would have been a futility.

Merits of the appeal

1. Despite my determination that this Commission is statute barred by the CPWWC Act from reinstating the appellant, because the merits of the appeal were fully canvassed in these proceedings, I propose to set out the determination I would have otherwise made if the Commission had the power to allow the appeal.
2. In short, I would have dismissed this appeal for the reasons set out below.
3. The only evidence before the Commission relevant to the allegations against the appellant (at [5] above) was the evidence of Ms Dunn and that of the appellant herself. The Department bears the onus of proving, on the balance of probabilities, that the appellant committed the misconduct as alleged.
4. The appellant relies upon the following extract from the judgement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
5. Allegations 1(b) and 2(b) against the appellant are serious and the consequences for the appellant flowing from the finding by Ms Thorpe that they have been sustained and constitute misconduct are grave. However, the comments of Dixon J are directed not to the standard of proof in civil matters such as the present appeal, which is "the balance of probabilities", but rather to the quality of the evidence required for the court to be reasonably satisfied that an allegation has been proven to the requisite standard.
6. It is worth revisiting Briginshaw to consider just what was then being considered by the High Court. Briginshaw was an appeal from the Supreme Court of Victoria (Martin J) by the petitioner, Mr Briginshaw against the dismissal of his petition for divorce from the respondent, Mrs Briginshaw, on the grounds that she had committed an act of adultery with a third party, the co-respondent. Both the respondent and the co-respondent denied that they had committed adultery. There was no direct evidence that they had.
7. The "inexact proofs, indefinite testimony, or indirect inferences", which Dixon J was considering on the question of whether or not an act of adultery had occurred, comprised: 1. Evidence from the petitioner's sister that the co-respondent, had admitted to her that he had sexual intercourse with the respondent. The co-respondent denied making this admission. 2. Evidence from an inquiry agent of a similar admission made to him by the co-respondent in the presence of the petitioner's sister. The co-respondent refused to sign any statement and also denied making this admission, although his own evidence left the impression that his refusal to make a full admission, preferably in writing, was accompanied by no firm or explicit denial of the fact. 3. Evidence that, when the respondent was interrogated about her relations with other men by the inquiry agent, in the presence of the petitioner, no "indignant remonstrance" was evoked from her. 4. Evidence that, when the respondent was told by the inquiry agent of the co-respondent's admissions, she, according to the petitioner, replied that, if the co-respondent had admitted it, she would. According to the inquiry agent, her reply was that, if the co-respondent had stated it, she would make a statement. The respondent denied these versions of events. 5. Evidence from the inquiry agent that he had overheard a conversation between the respondent and the co-respondent in which the latter was alleged to have said that "he had told them the truth". The respondent's evidence was that she told the co-respondent that she was sorry that she had got him "into the mess" and that they said he had admitted adultery, which he denied. 6. Evidence by an independent witness of an admission of adultery made by the co-respondent which was denied by the co-respondent and another independent witness who had been present when the admission was said to have been made.
8. This was the character and quality of the evidence which led Dixon J to express the words of caution which he did, and which have been quoted so many times since.
9. In the present matter there is direct eye witness testimony from Ms Dunn, which is qualitatively different from the evidence that an act of adultery had been committed in Briginshaw.
10. I agree with the following submission which was put on behalf of the Department (footnotes omitted): 1. This case is able to be determined by the Commission's assessment of the evidence given by the witnesses to the incident. As the accounts are vastly different, the Commission must decide which account should be accepted. 2. The Briginshaw standard does not assist the appellant in the determination of this appeal. It is accepted that "reasonable satisfaction" of the Commission "should not be produced by inexact proofs, indefinite testimony, or indirect inferences" where the circumstances in s.140(2) of the Evidence Act 1995 are present. 3. However, this is a case that turns on direct evidence of an eyewitness.
11. Only Allegations 1(b) and 2(b) were sustained by Ms Thorpe and found by her to constitute misconduct (see [26] above). In determining the merits of this appeal I have decided to deal only with these two allegations in these reasons for decision.

Allegation 1(b) - took hold of M by his wrists and shook him

1. Again, Ms Dunn has been consistent in relation to this allegation from the outset (see [12] and paragraph 11 of her affidavit at [10] above).
2. In her interview with Ms Moore, Ms Dunn stated: DUNN: …So Vicki then splashed him back and moved towards him, and I guess restrained - quite firmly restrained him to stop him from splashing… and then when I came back to and saw what was happening in the pool, they were, Vicki and M were, I guess - I'm just trying to - interacting again, and it looked quite rough. ………………………………. MOORE: Sorry, for the tape, you're just doing the motion of what, grabbing his wrists? DUNN: Yes. MOORE: Or his arms, with both hands. So she moved towards him, grabbed his wrists. DUNN: Yes. MOORE: Then just held him still? DUNN: No. MOORE: Did some kind of shaking motion? DUNN: Shaking, yep. ……………………………… MOORE: Then, you said it was physical then? DUNN: Yes. MOORE: Can you describe that to me? DUNN: It was similar to here. I honestly can't completely remember the exact physicalness, but I do remember it looking physical and a bit rough, and again, around the wrists. MOORE: Did it look like she was doing it on the spot, or trying to manoeuvre him out of the pool? DUNN: I can't comment. I don't know.
3. Under cross-examination, Ms Dunn gave the following evidence: Q. Sorry, you told the investigator that Vicki grabbed his wrists and then shook them, is that right? A. That's correct. Q. You were 15 to 20 metres away? A. Yes. Q. You don't know whether M was trying to pull away or shaking his own hands while she had hold of them, do you? A. To me it looked like a vigorous shaking of the hands. Q. How about we deal with the question I just asked you. Did you understand the question I asked you? COMMISSIONER: Do you want to ask it again? NAGLE: With respect, Commissioner, I'll ask her whether she understood it first. WITNESS: Can you ask the question again, please? NAGLE: Sure. Q. At the time that you say that Vicki was shaking his wrists, you can't say whether she was holding his wrists and he was moving his arms about, can you? A. To me, from what I could see, it looked like they were being shaked. Q. That's your belief? A. That's what I saw. Q. You're in no position to tell this Commission whether, while Vicki was holding his wrists, you say she was holding his wrists, there was movement because M was moving his arms or because Vicki was moving his arms, can you? A. Not being one of the parties involved, I can't say a hundred per cent sure what that interaction was, but from my point of view the interaction was very rough. Q. And then for some reason you just start looking away at that point, is that right? A. Not immediately. Q. Can you say how he responded? A. So, at that point, how he responded to what? Q. To this vigorous shaking that you're telling the Commission about? A. Well, from what I could see he broke free and that's when he smacked Vicki across the face. Q. So your version is that she grabs his wrists, shakes them vigorously and he responds by breaking free and hitting her in the face? A. Yes. ……………………………….. Q. You were asked whether it looked to you as though Vicki was doing it on the spot or trying to manoeuvring him out of the pool and you say, "I can't comment, I don't know"? A. That's talking about holding the wrists, I don't know what the reason behind that was, I couldn't comment.
4. The appellant has denied this allegation and stated in her response letter to Ms Parry of 1 May 2020: I deny shaking M by the wrists - the only time I can conceived I would have held him by the wrists was when he was getting out of the pool and I was handing each arm to the SLSOs to avoid them being hit.
5. Whilst I have no doubt that Ms Dunn genuinely believes that it was the appellant who was holding M by the wrists and shaking him, it may well be that this was her perception of what was occurring when, in reality, it may have been M that was doing the shaking while the appellant was holding his wrists to restrain him.
6. Ms Dunn frankly admitted during her interview with Ms Moore and under cross-examination in these proceedings that she could not comment on whether the appellant was trying to manoeuvre M out of the pool when she was perceived by Ms Dunn to be shaking him by the wrists.
7. I am not satisfied to a reasonable level on the evidence before the Commission that the Department has proven to the requisite standard that the misconduct which is the basis for this allegation occurred as alleged.

Allegation 2(b) - grabbed the back of M's head and pushed his head under the water for 2-3 seconds

1. This is clearly the most serious misconduct allegation that has been levelled against the appellant.
2. Again, Ms Dunn has been consistent from the outset on this aspect of the incident (see [12] and paragraph 14 of Ms Dunn's affidavit at [10] above).
3. In her interview with Ms Moore, Ms Dunn stated: Then what I saw was M struck or hit Vicki on the face. Then she yelled out, Don't you hit me, or, Don't hit me ever again, something along those lines. Then she grabbed him by the back of his head and put his head under the water, I would say for two to three seconds. Then he came up and he was quite distraught. Then she roughly proceeded to get him out of the pool.
4. Ms Dunn was subjected to rigorous cross-examination by counsel for the appellant on this aspect of the incident but remained unshaken on what she claimed she had seen. Some of that cross-examination is reproduced below: Q. Coming back to the incident, you agree that you couldn't see anything that happened under the water? A. No my focus was on top of the water. Q. You don't know whether M lost his footing under the water? A. No. Q. You don't know if Vicki lost her footing under the water? A. No they didn't show it. From above the water, you wouldn't think that they did, because Vicki was always above the water. Q. Thank you but you were just assuming that they hadn't lost their footing, that's the best you can do, isn't it? A. Yes. But no movement up top indicated from Vicki that she slipped and lost her footing. …………………………………. Q. Well at the time you were asked by Ms Moore, can you just close your interview for me please? I've asked you to close your interview. Please close your interview. At the time Ms Moore said to you, "So did he just topple forward at this point? Did he go under the water?" You say, "I think her force pushed his head under the water. It was all that very, very quick, like that particular moment". So your answer at the time was you think her force pushed his head under the water. You can't categorically say that he didn't topple forward, can you? A. The behaviour that I saw looked as though it was forced. Didn't look like a topple, like an accidental, "I'm tripping here". I can say that. Q. That's your words were, "looked as though"? A. Yes. Q. That's what you think you saw, was her using force, but just like with the wrist grabbing, you don't actually know what force was exerted where for him to go under the water, do you? A. What question am I answering here? Q. The one I just asked you? A. Can you repeat the question please? Q. Just like when you said, "I think her force pushed his head, just like with the grabbing of the wrists", and you not knowing whether it was Vicki moving his arms or him trying to move his arms. When you saw him go under the water you're not able to categorically say where forces were applied on the body, are you? A. It wasn't - you said them go under the water . It was just M that went under the water and her hand was on the back of his head, his neck/head area, giving that impression that yes, it was forced under. Q. Giving that impression? A. Sure. Q. And you can't say what happened under the water, can you? A. No. Q. And you can't say that the child didn't lose his footing under the water, can you? A. No. Q. And you can't say that the child didn't lose his footing under the water, can you? A. No, but I can say that I did see a hand on the back of someone's head being pushed down. ……………………………… Q. You can't say what force was applied to the back of anyone's neck at the time, can you? A. I can only state what I saw and what I saw was his hand on the back - her hand on the back of his head, looking as though it was being forced down under the water. Q. I suggest to you that you can only say what you think you saw a year and a bit after it happened? A. No that's what I saw on the day and that's why I was actually very stressed.
5. I found Ms Dunn to be a witness of credit. She had no reason to make up or embellish what she claimed to have seen happening in the hydrotherapy pool at the School on 21 February 2020. She was unshaken under cross-examination on her evidence relating to Allegation 2(b). Having closely observed her demeanour in the witness box, I formed the opinion that she was telling the truth. Unlike the conduct which underpinned Allegation 1(b), the action of the appellant, after having been struck on the face by M, of placing her hand on the back of M's head or neck and pushing his head under the water for approximately two to three seconds, is not the type of action that is open to misinterpretation.
6. By contrast, I found the evidence given by the appellant on this aspect of the incident much less compelling. In her initial response, the appellant claimed that, as she was moving M to the edge of the pool, he lifted his legs off the bottom of the pool and they both fell forward at which point M's head may have gone underwater, but this was not an intentional action on the appellant's part (see [24] above).
7. The appellant repeated this response in her witness statement in these proceedings.
8. Under cross-examination the appellant gave the following responses: Q. Your evidence that you just gave you say that you walked around and put your hands underneath M's armpits right? A. Mm. Q. You say through his armpits? A. Yes. Q. Then you say that you lifted or he lifted his legs and that you both fell forward in the water correct? A. Correct. Q. So he - you accept that he went completely under water? A. No. I have no recollection that his head went under the water. I fell up to about chest, middle range of my chest and he's not much shorter than me so I can't say that he went under and if we were in short water which was only up to my thigh, if he was to go under he would've gone completely under. ……………………………. Q. As I understand your evidence was just that his head did not go or you can't recall it going under the water? A. Correct. Q. Do I understand your evidence then that it might well have gone under water but you just don't know? A. Yes. His head could have gone under the water at that stage. I went to here because I didn't go under, when I say under the water I don't mean under. Q. If you had your arms underneath his armpits, explain to us how you fell forward to the point where you both went into the water? A. We both went down. Wording as in going under the water was probably not the correct words. We fell down which to me is under the water because we went down a bit but only up to about here. Q. So how did that happen tell us that. You think that M took his legs off the bottom? A. Yes as we went to walk because his legs lifted up and we've both fell down. ………………………………… Q. Yet is it the case that once he lifts his legs off the ground you then automatically fell forward? A. Yes. Q. Just explain that. A. Because I was guiding him I wasn't lifting him. Q. You were guiding him? A. I put my arms under his armpits to guide him along. Q. How was it then Ms Douglas that you fell in the water if you weren't lifting M. How did you fall in the water once he lifted his legs up if you were guiding him? A. Because he's - because his feet were in front of me and he's probably kicked my feet from under me because he's lifted backwards so he's gone under. Q. So he's kicked your feet underneath from underneath you? A. I don't know exactly. I can't recall exactly how it happened but we both fell down into the water. Q. Ms Douglas are you making up this evidence at the moment? A. No I am not. Q. You say that you were guiding him, you weren't lifting him? A. No. Q. You say that notwithstanding you were just guiding him he lifted his feet up and you fell forward? A. Yes with the weight of him. Q How was it that you fell forward? A. Because I had the weight of him here, if you've got somebody and someone falls of course you are going to go down with them. Q. You just indicated that you weren't lifting him? A. I didn't lift him I had my arms under his armpits so when he went down the weight of him took me down. Q. You say you were just guiding him with your arms, not lifting him? A. I wasn't lifting him. But if you have your arms out here and someone pushes down you're going to go down. Q. This was a child that you could otherwise lift in the water quite easily? A. You can lift any weight in the water. Q. Yes? A. Yes. Q. Notwithstanding you can lift any weight in the water, on this occasion you couldn't, you actually fell when-- A. Because I wasn't planning on lifting the child I was guiding him. I was not lifting him. Q. Tell the Commission how you felt a kick or such that your legs went from underneath you when M moved his legs? Tell the Commission that evidence? You mentioned that he kicked - might have kicked your legs underneath you and that's why you fell. Just explain that? A. I don't understand what you're saying. Q. Your evidence was that M kicked back and took your legs from underneath you? A. I said it could've. I didn't say that's what actually happened. Q. You say it could of? A. Could have. Q. Are you speculating now? A. Yes I am. Q. Because you don't recall? A. No I don't in the short time that it happened. It was very quick. Q. Do you accept that you told Ms Langthorne on the phone that-- COMMISSIONER: Mr Dixon just before you move on. Just so I can get a better understanding of the evidence just being given. Q. You were up the shallow end of the pool when this incident occurred. A. Yes. Q. Where does the water come up to when you're standing-- A. About to my thigh. Q. To your thigh? To your hip or-- A. No just below. Q. Where does it come up to on M when he's standing in that-- A. He's only so much shorter so it would be just at the top of his - below his hip but top of his leg. COMMISSIONER: Thank you. ……………………………………. Q. Is it your evidence that after you fell over with M you continued to keep your arms underneath his arm pits? A. Yes. Q. Until you got to the edge of the pool? A. Yes. …………………………………….. Q. Now I think I was about to ask you about Ms Langthorne. You spoke to Ms Langthorne on the phone. You indicated to her in the days after the incident that you both went under the water, both yourself and M during the course of the incident do you recall that? A. Yes. Q. So you've seen Ms Langthorne's email where she indicates that she had that phone call with you? A. Correct. Q. You accept then that you told Ms Langthorne that you fell while you were trying to get out of the pool, fell forward? A. Yes. Q. And that M's head went under water? A. No I never once said that M's head went under water. Q. You said that you went under water as well that's what you told Ms Langthorne? A. As I said my under the water meaning that I fell under the water, not over the top of my head. Q. So you said the words "under the water" but Ms Langthorne assumed that it meant-- A. Yes. Q. --the entire head? I want to suggest to you Ms Douglas that that was incorrect. What you told Ms Langthorne was an attempt to explain what had otherwise occurred being you dunking M's head under the water? A. Incorrect I never put that child's head under water. ………………………………….. Q. During that conversation you then speculated as to what the investigation might be about did you not? A. Sorry can you repeat that again please? Q. Yes you raised with Ms Langthorne during the course of this phone conversation as to what you thought the investigation might be about? A. I brought up two different times when I had to put my hand on a child during that week. Q. During the course of that conversation you stated to Ms Langthorne that M had hit you in the pool? A,. Yes. Q. And you stated to Ms Langthorne that when you took him to take him out of the pool, you both slipped under the water? That's what you said in the conversation is it not? A. Yes. Q. The fact of the slipping under the water was something that you had not previously mentioned to Ms Langthorne or any of the SLSO's on the day of the incident is it? A. Not correct. Q. You say that you mentioned that you slipped under the water? A. Yes. Slipped. Q. Who did you mention that to? A. When we were talking to everybody about what had actually happened I had mentioned it that day. That when I was escorting him out that we both went down.
9. The appellant was first made aware that allegations about her conduct had been made by way of a letter from Ms Thorpe dated 24 February 2020 (see [15] above). On the day of the incident, 21 February 2020, the appellant completed a Major Incident Report and an Accident/Injury Report.
10. In the Major Incident Report the appellant wrote: M was asked to get out of the as swimming was finished. He then proceeded to slap Vicki in the face.
11. In the Accident/Injury Report the appellant wrote: Bruise to right cheek Redness Swollen ………………………………. Slapped by student to the left side of my face
12. In neither report did the appellant make any reference to herself and M having "slipped under the water".
13. With respect to this Allegation 2(b) I accept the evidence of Ms Dunn over that of the appellant for reasons which I set out below.
14. I reject the criticisms of the responses given by Ms Dunn during her interview with Ms Moore and of her evidence in these proceedings (paragraphs 20-21 of the appellant's submissions at [39] above). I would be concerned if Ms Dunn claimed to have a crystal clear recollection of every minor or peripheral aspect of the incident. On the critical aspect, the appellant pushing M's head under the water, she did have a clear recollection of what she saw and she remained unshaken.
15. As previously stated, Ms Dunn has been consistent from the outset that the appellant pushed M's head under the water. She had no reason to make up such an outrageous story. On the other hand, the appellant had every reason to deny it.
16. The appellant, on her own evidence, was in a state of shock having just been forcefully struck on the face by M in what could be described as an act of provocation.
17. The appellant's versions of this aspect of the incident have not always been consistent. In the two reports of the incident that she made on the day it occurred, no mention was made of her and M having "both slipped under the water". The appellant conceded that, on 27 February 2020, she told Ms Langthorne, in a telephone conversation, that she and M both slipped under the water, suggesting that the both were completely under water, including their heads. Ms Langthorne assumed that this was what she was being told by the appellant. In Ms Langthorne's interview with Ms Moore on 15 May 2020 the following exchange occurred: MOORE: So, then you put, during the conversation Vicki mentioned that - sorry, she was hit - she grabbed the student to get him out of the pool - sorry, when she was hit she grabbed the student to get him out of the pool and they both slipped under the water. LANGTHORNE: Yes, that's what she told me. ………………………… MOORE: So, when she said they both slipped under the water, did you get the impression that she means that they both went right under? LANGTHORNE: Well, I assume so.
18. Ms Langthorne's assumption was entirely consistent with the words which the appellant has conceded that she used in the telephone conversation they had on 27 February 2020, that the appellant and M "both slipped under the water".
19. In her written response to the allegation that she pushed M's head under the water for two to three seconds, the appellant stated that they both fell forward and M "may have gone under the water" (see [24] above). A fair reading of this response would suggest that the appellant was conceding that M's head may have gone under the water but this was not an intentional action on her part. Under cross-examination in these proceedings, the appellant stated that she had "no recollection that his head went under the water" but that "if he was to go under he would've gone completely under".
20. I find the appellant's evidence that she was behind M guiding him out of the pool with her arms under his armpits when they both slipped or fell forward when M lifted his legs up, probably kicking the appellant's feet from under her, and they both went under the water, to be implausible.
21. I am also of the opinion that by contacting Ms Langthorne at a time when the appellant had not been provided with the allegation that she pushed M's head under the water for two to three seconds, and by questioning Ms Langthorne about "the lady from the office… at the window", the appellant was well aware of the allegation that was to come because it had happened as would later be alleged and she was concerned that Ms Dunn had witnessed her actions.
22. I reject the criticism of the Department for not calling to give evidence in these proceedings other staff members who were present at the time the incident occurred, such as Ms Langthorne, Ms Armanyous and Ms Hussain. It is clear from the enquiries that Ms Moore made that none of these staff members witnessed M striking the appellant's face, which is not a fact in dispute, and what followed immediately thereafter. I am unable to see how any evidence these three staff members might have given would assist me to determine whether or not the appellant pushed M's head under the water for two to three seconds as alleged.
23. I am comfortably satisfied to the requisite standard, based on the evidence of Ms Dunn, that Allegation 2(b) has been substantiated. In coming to this conclusion I have not disregarded the character evidence presented in support of the appellant, however, there is no evidence before me that would indicate that any of these character witnesses have observed the appellant interacting with children under the trying circumstances that confronted the appellant on 21 February 2020 at the School.
24. I also accept that the appellant is left handed and that based on the way the incident was described by Ms Dunn, it was the appellant's right hand which she used to push M's head under the water. It was conceded by counsel for the appellant that this fact is not determinative. It was not suggested that the appellant was incapable of dunking M's head under the water with her non-dominant right hand and I am comfortably satisfied to the requisite standard on the evidence before the Commission that this is what she did.
25. I have some sympathy for the appellant. Striking the appellant on the face was a provocative act by M. However, that does not excuse the appellant's response.
26. I am of the opinion that the appellant's misconduct which formed the basis of Allegation 2(b) was, without more, sufficiently serious to warrant the termination of the appellant's employment.

Order

1. The public sector disciplinary appeal filed by Vicki Douglas on 23 September 2020 is disallowed.
2. I so order. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2021