E v Secretary, Department of Education

The proceedings

1. During the hearing of this application, I made a number of procedural rulings to the effect that I would admit into evidence all of the material that was before the decision maker, Ms Thorpe, but that where that material contained statements of fact which are disputed, and the person or persons who have made those statements were not called as witnesses so that their evidence was able to be tested in the usual way, then little, if any, weight could be attributed to those statements.
2. There was much debate during the proceedings about the failure of either party to call Ms R who, I was informed, had also been dismissed from her teaching position by the respondent. There was also some debate about the non-appearance of Mr R as a witness. These matters are discussed in greater depth later in these reasons for decision.
3. Some of the misconduct allegations and findings against the applicant may be readily disposed of.

Allegation 1(b)-(d)

1. The applicant has strenuously denied that he had ever engaged in sex based harassment towards Ms R. He has maintained that all of their interactions have been consensual and, for the most part, initiated by Ms R.
2. In a document dated 16 March 2017, entitled "FINDINGS WITH RESPECT TO [MR E] - DEPUTY PRINCIPAL AT [THE] SCHOOL", prepared by Ms Thorpe, she stated, in relation to her findings with respect to allegation 1(b) - (d), as follows: In considering whether [Mr E] engaged in sex based harassment of [Ms R], I have formed the view the interactions may have been mutual. However, the comments and the sharing of explicit photos with a colleague do constitute sex based harassment in the workplace of the worst kind, whether or not the interactions were mutual. The sustained conduct is entirely unacceptable by any staff member let alone a member of the school executive.
3. However, in an affidavit prepared for the proceedings, Ms Thorpe stated: 30. I have since recognised that a finding of interactions being mutual between [Mr E] and [Ms R] generally negates the actions of [Mr E] constituting sexual harassment. However, my original finding of misconduct rested on the view that it is grossly inappropriate for a deputy principal to maintain such relations with his subordinate colleague, particularly when that deputy principal was heading the recruitment panel for the position [Ms R] was acting in, and for which she had applied as a candidate. No conflict of interest was declared by [Mr E] at any stage during the process. I further sustained the allegation that [Mr E] provided interview questions and a fellow candidate's CV to [Ms R] prior to her being interviewed. I maintain the view that [Mr E's] actions amounted to misconduct of a most serious nature.
4. As noted above, Ms R was not called as a witness in these proceedings. I accept the evidence of the applicant as to the consensual nature of their relationship which is strongly supported by the photos and other communications which passed between them.
5. The allegation of sexual harassment of Ms R by the applicant was effectively abandoned by the respondent during the proceedings and I don't propose to deal further with it in these reasons for decision.

Allegation 3(a)-(b)

1. The applicant denied that he supplied Mr M's CV or the interview questions to Ms R prior to the day of the convening of the selection panel, Monday 4 April 2016. He suggested a number of ways in which Ms R may have obtained these materials.
2. Mr M gave evidence that Mr R sent him via text message an image of Mr M's CV and an image of the interview questions on Monday 11 April, a week after the selection panel was convened.
3. In the absence of any direct evidence as to how and when Ms R and/or Mr R came into possession of these images, I am not satisfied to the requisite standard that this allegation can be sustained.

Allegation 7(b)-(c)

1. This allegation is to the effect that, at the PDHPE faculty meeting on the afternoon of 4 April 2016, after the announcement of the appointment of Ms R to the Relieving Head Teacher position, the applicant effectively threatened two teachers on temporary contracts, Mr V and Mr A, with the loss of future employment opportunities if they did not support Ms R as the Relieving Head Teacher of the faculty.
2. It seems sufficiently clear from the evidence of the persons who were present that this meeting was somewhat chaotic with heated exchanges occurring and people speaking over the top of each other.
3. In his written outline of submissions, counsel for the applicant summarised that evidence as follows (omitting references to transcript and exhibits) : 189. Every person at the meeting on 4 April 2016 meeting who was interviewed gave a different version of the meeting in this respect: (a) [Ms Gr] note and note from lnvestigator was that "Temps be mindful of their positions" but in her affidavit [Ms Gr] says ''Be mindful as you boys are on temp [sic] contracts; they have to be renewed next term" but the Applicant immediately qualifies that this is not a threat to their employment; (b) [Mr A] cannot remember the exact words but something along the lines of 'if you don't fit the fit, if you don't fit into the dynamics of the staff room, you contribute then we'll have to find someone else more appropriate" and gives a slightly different version in his affidavit; (c) [Mr V] says the Applicant said "as teachers on temporary agreements we should be doing all we can please our HT and to not be disrupting the dynamics of the faculty" and a slightly different version in his interview; (d) [Mr V] did not report to Principal on 27 Apri1 2016 any threat from the Applicant; (e) During meeting of 4 April 2016 the Applicant did not say he would terminate the employment of temporary teachers, the threat was from [Ms R] and this concerned [Mr V]; (f) The threats to employment were made after Applicant left the meeting. (g) [Mr M] makes no comment about this matter in his initial complaint. In his interview the threat was described as inadvertent and the threat by the Applicant was "I am not afraid of EPAC teachers and you're only on temporary grounds". In his affidavit he says what the Applicant said was "You are only temp teachers and your positions can be reviewed"; and (h) [Mr R] told [Mr M] about [Mr A] and [Mr V's] positions being under threat and prior to that time, [Mr M] only had an inkling that their position was under threat. 190. The evidence of the Applicant was that he did not intend to harm anyone. 191. Ms Thorpe believed that all teachers including head teachers should maintain a relationship with a head teacher. It would hardly be a threat to verbalise this requirement. 192. Further, Ms Thorpe admits she does not know whether the Applicant intended any reference to maintain a good relationships with the head teacher as a threat and that there is no allegation against the Applicant that he was threatening temporary teachers employment only that certain words were used. 193. Ms Thorpe agreed that [Mr V] does not say he was threatened by the Applicant and she believed [Mr A] implied that there was a threat by the Applicant. 194. The decision to renew any temporary contracts was not a decision of the Applicant and each of the temporary teachers had their contract renewed. [Mr M] was aware that the Applicant didn't decide who was to be employed. The Applicant was not responsible to appointing temporary teachers. 195. Further, there was a history of [Mr A] and [Mr V] receiving their temporary comments at the last moment or even after they had started. [Mr A] believed it was fairly common for [Mr A] to be provided contracts at the commencement of the term or into the term. [Mr A] recognised that the offer of future employment turned on the need for work and his work performance. 196. At its highest there was a misunderstanding between the persons at the meeting. I agree with the above summary of the evidence relating to this allegation.
4. I am not satisfied to the requisite standard that the allegation that the applicant effectively threatened two temporary teachers in the PDHPE faculty that their contracts would not be renewed if they did not support Ms R as the Relieving Head Teacher can be sustained.
5. This leaves for determination allegations 4, 5 and 6(a)-(b).

Allegation 4

1. The respondent asserts that, as at 4 April 2016, the day when the applicant participated in the Expression of Interest process as a selection panel member for the role of Relieving Head Teacher, PDHPE faculty, he was already in a sexual relationship with Ms R and that his failure to disclose this or, alternatively, to remove himself from the process, constituted serious misconduct such as to justify his dismissal. The applicant has admitted that he had engaged in a sexual relationship with Ms R, but claims that this relationship only began after she was appointed as Relieving Head Teacher and that no conflict of interest existed at the time of her appointment.

Case for the applicant

1. The applicant denies this allegation but his story has changed in a number of ways over time.
2. In his draft response to the allegations which the applicant prepared and forwarded to the Teachers Federation on 15 August 2016, but which was never forwarded to the respondent, the applicant stated the following: 1. During the period when the applicant was hospitalised in early March 2016, he received the first photograph from Ms R which he described as "not explicit" but "provocative in nature". This was followed by further photographs from Ms R which the applicant claimed he deleted as he "felt it was inappropriate given she was married". 2. Soon after the applicant arrived home on 6 March, he agreed for Ms R to visit him at his home. She brought food, drink and a small gift box with chocolates and a gift card. 3. During the next three weeks, Ms R visited the applicant at his home on a number of occasions and they would often have a cup of coffee and sit in the backyard and chat about work, about Ms R's failing marriage and about the applicant's divorce. 4. At about this time, the applicant started receiving photos from Ms R of her in a bikini and photos with her children. The applicant reciprocated by sending Ms R photos of his children. 5. The applicant resumed work on 21 March. He claimed that his friendship with Ms R at that stage "had not crossed into anything more than two people becoming friends". 6. Ms R continued to send the applicant photos but, at that stage, he had not reciprocated by sending her photos of himself. Ms R's visits to his home became more frequent. According to the applicant, all of these interactions occurred before he participated in the selection panel on 4 April 2016, but he maintained that he did not believe that he declared a conflict of interest "as I did not view there to be any conflict because in my view at the time I had not reciprocated or shown any interest in [Ms R] other than a friendship and I certainly firmly believe that any dealings with [Ms R] would not and did not influence my views in any way".
3. Later in this draft response, the applicant disclosed that he and Ms R engaged in a consensual sexual relationship but that this did not occur until some days after the appointment of Ms R as Relieving Head Teacher. However, it must be remembered that this draft response was never forwarded to the respondent.
4. In the applicant's response dated 17 August 2016 which was forwarded to Ms Scott, he simply stated "I did not declare a conflict of interest as at the time of the interview process there was no conflict of interest to declare".
5. However, in the draft letter to Ms Thorpe dated 28 April 2017 prepared by the applicant's former solicitor, it was conceded that "our client recognises that he should have declared what was in hindsight an emerging personal relationship with [Ms R] as a conflict of interest. Our client also recognises that the dynamics of school relationships were affected by his poor decision-making during the period in question… With respect to allegations 4 and 6, our client recognises that he may have made errors of judgement". As already stated, it is unclear whether this correspondence was ever forwarded to Ms Thorpe.
6. In the letter to Ms Thorpe dated 12 May 2017 prepared by the applicant's current solicitor, which was forwarded to Ms Thorpe, the applicant's relationship with Ms R was described as "more akin to a courtship that commonly occurs prior to the acceptance of both [Ms R] and [Mr E] that the courtship had in time become a relationship." It was also claimed that, on the second last day of term one 2016, which was Thursday 7 April, Ms R and the applicant began to communicate via SMS from mobile phone to mobile phone and that they met on this day for the first time outside of their employment. These statements were clearly untrue. Reference was then made to them holding hands during a dinner they shared the following night, but no reference was made to them engaging in a sexual relationship that night or at all, although there was a reference to Ms R having "deceived her husband regarding the nature of the sexual aspect of their relationship" in a letter from the applicant's treating psychologist which was attached to the response from the applicant's solicitor. However, it is unclear from the wording of the psychologist's letter whether this reference amounted to an admission that a sexual relationship had existed between the applicant and Ms R.
7. In response to allegation 4, the letter stated "Our client denied that there was a conflict of interest at the relevant time".
8. In his first affidavit filed in these proceedings, the applicant described his relationship with Ms R prior to the selection panel process as "one of mutual respect and friendship, and on a par with similar relationships I had developed with other teachers such as [Mr I], [Ms Ra] and [Mr C]". The applicant maintained that the sexual relationship with Ms R did not begin until the last day of term one, Friday 8 April 2016, and continued over the course of the school holidays for approximately two weeks until the day of the phone call from Ms R referred to in the passage from the applicant's draft response extracted at paragraph 18 above.
9. In support of this claim by the applicant, he called as witnesses Mr A, Mr Vi and his brother Mr El. Each of these witnesses gave evidence that they had seen the applicant in the company of Ms R during the school holidays which followed term one in 2016.

Case for the respondent

1. It is the respondent's case that, as at Monday 4 April 2016, the day of the selection panel process that resulted in Ms R being appointed as Relieving Head Teacher, the applicant and Ms R were engaged in a sexual relationship and the applicant's failure to disclose this conflict of interest constituted serious misconduct.
2. Prior to the applicant going into hospital on 29 February 2016, he had been exchanging emails with Ms R, using his department email account, which Ms Thorpe described as "suggestive" and "very personal". The following email exchange took place between Ms R and the applicant on 25 and 26 February 2016: Hey [Mr E's first name] I have attached my PDP. Also if there is anything I can do to help when you are going to be on leave, please let me know. I haven't stop thinking of you. (hope that doesn't sound strange, hahah). You will be fine. xx [Ms R's first name] :-) Hi [Ms R's first name] Thank you so much for your offer of support and well wishes. It will only sound strange if I say that I have been thinking of you to hahah :) But on a serious note i really appreciate you professionally and on a personal level. I have a positive outlook and looking forward to getting back to work in 3 weeks. xoxoxox I hope that wasnt to many xo either lol Thank you for your PDP. Please pass on the rest as they are complted. thank you [Mr E's full name] Morning!! You're such a positive person, and there isn't anything better than going into surgery feeling the way you do. You're strong and fit and that makes the recovery side so much quicker, that's what got me through it all. No never too many xoxoxoxo….. hahah. You're such a sweet, kind hearted person. Thank you for all your support. You're going to be a great asset to the school. I'll make sure I'll see you before you head off. [Ms R's first name] :-) x thanks [Ms R's first name] you made me blush with your kind words and all thoese xoxoxoxoxoxo You take care and if you get a chance whilst im in hospital, I would appreciate a call from you to keep me sane. :) Hope you and your family have a great weekend. xo ( holding back on xo you may get to use to it hahaha) [Mr E's full name]
3. It was conceded by counsel for the applicant that the "x" in these emails was a symbol of a kiss and the "o" was a symbol of a hug. I take from the context of these emails that "lol" means "lots of love" rather than "laugh out loud" as was faintly suggested by counsel.
4. The respondent also relies upon Ms R's mobile phone records which were tendered into evidence. According to those records, Ms R first rang the applicant's mobile phone on 26 February 2016 which was before he entered hospital. She sent him two SMS messages on 1 March when he was in hospital. Over time the frequency and duration of Ms R's calls to the applicant increased.
5. The applicant returned to work on Monday 21 March 2016. On that day, Ms R sent the following email to the applicant in response to an email from the applicant asking her how to enter student results: Hey!! Sentral, mark book, year 8 2016, then enter your marks. I have created assessment task columns. Then put it under Athletes. I can SHOW you later. I had a meeting with [teacher] period 3 then spoke with [Ms B]. Didn't realised I had a class this period. Not good, not good. :-( I ran to class and feel so bloody awful. I forwarded the email you sent me on HT EOI to PE staff. I'm interested. You know!! :-) How are you feeling? The applicant responded as follows: Hey, I'm doing well. I would prefer you come down and SHOW me. x [Mr E's full name]
6. On the same day, Monday 21 March, Ms R made five calls to the applicant's mobile phone totalling approximately 56 minutes in duration. The last of those calls was made at 8.08pm and lasted approximately ten minutes.
7. On Wednesday 23 March, Ms R made three such calls totalling approximately 60 minutes, the last at 9.21pm lasting approximately seven minutes. On Saturday 26 March, six calls totalling approximately 63 minutes were made, the last at 11.07pm lasting approximately one minute. On Friday 1 April, the last working day before the selection panel process, five calls totalling approximately 41 minutes were made. That evening between 8.23pm and 9.05pm Ms R sent the applicant a number of SMS messages. On the following day, Saturday 2 April, Ms R called the applicant six times. The duration of the calls totalled approximately 27 minutes. The last of those calls was made by Ms R at 11.52pm and lasted approximately eight minutes. On the following day, Sunday 3 April, Ms R called the applicant six times and sent him an SMS message. The duration of the calls totalled approximately 16 minutes. The last call was made just before 9.00pm and lasted approximately three minutes. On the morning of the selection panel interviews, Monday 4 April, Ms R made two short calls to the applicant and called him a couple of more times later on that day.
8. It was during this period that, according to the applicant's draft response which he forwarded to the Teachers Federation, Ms R's visits to his home became more frequent (see subparagraph 48(f) above).
9. The evidence of Ms W, a School Administration Assistant at the school, was that on Saturday 2 April 2016, two days before the selection panel process was scheduled to take place, she and Ms R attended a birthday party for a former teacher of the school, after which Ms R went to the applicant's home. Later that night, Ms W had a facetime conversation on her mobile phone with Ms R during which she saw Ms R and the applicant standing next to each other in a backyard. The applicant had not previously disclosed the fact that Ms R had been at his home on this occasion but, under cross-examination, conceded that she had.
10. The respondent disputes that the sexual relationship between the applicant and Ms R only commenced after Ms R had been appointed to the Relieving Head Teacher position. According to the applicant, their sexual relationship began on the last day of term one, Friday 8 April 2016, and lasted until late in the school holidays, a period of approximately two weeks. It ended when Ms R rang the applicant and told him that Mr R "busted" her talking on her mobile phone to the applicant and then assaulted her.
11. The respondent submits that there is an abundance of material before the Commission to establish that the sexual relationship between Ms R and the applicant ended rather than began on or about 7 or 8 April 2016 in which case, given the applicant's own estimate of the period of time that their sexual relationship lasted, it must follow that Ms R and the applicant were engaged in a sexual relationship well before Monday 4 April, the day when the applicant convened the selection panel which led to the appointment of Ms R to the Relieving Head Teacher position.
12. Documents obtained under subpoena by the respondent from the NSW Police Force, and admitted into evidence over the applicant's objection, disclose that, on the night of Wednesday 6 April 2016, Mr R was charged by police with the offence of common assault on his wife, Ms R. The documents also disclose that, early on the morning of Thursday 7 April, Mr R was issued with an Apprehended Violence Order restricting his contact with Ms R. The respondent submits that these events coincide with the two phone calls which the applicant had with Ms R and which are referred to in the extract from the applicant's draft response reproduced at paragraph 18 above and which are discussed in an affidavit of the applicant, admitted into evidence in these proceedings, in the following terms: 89. One day late in school holidays during a late night phone call we were engaged in the phone immediately cut out. I tried unsuccessfully to call [Ms R] back but the phone was switched off. I simply assumed that her phone battery had died. 90. The next day I received a call from [Ms R]. Her voice was trembling and she was whispering. We had a discussion to the following effect: She said: "[Mr R's first name] has busted me talking to you. He has seen all the pictures that you sent me and the ones I sent you. He is very angry and I don't know what he is going to do." I said: "so what. You're separated. It should be known of his business." She said: "He is very jealous and angry. I had to call the cops. He bashed me. There were 8 cop cars here last night. And he was arrested. Do you still have any pictures of me on your phone?" I said: "Yes." She said: "Please babe delete them all." I said: "Why what is going on I don't understand?" She said: "He knows people that can get those pictures off your phone. He can hack into your phone." I said: "No he can't. He is trying to trick you." She said: "He is very pissed off with you he wanted to know where you live. He said, he wants me to go make a statement to the police that you tried to rape me." I said: "Let him. They will ask you anyway and you tell them the truth." She said: "You can't call me anymore. He has my phone. I will message you later once I get another phone. I said: "If you feel like you are not safe you and the children are welcomed to stay with me." She said: "It is ok my parents and sister are here with me at the moment." 91. Over the next couple of days [Ms R] would continue to call me to update me on the situation. She told me that a court date was issued for her husband and that he was not allowed into the home or to see the children at the Police had issued an AVO against him.
13. The respondent submits that the phone call referred to at paragraph 90 of the applicant's affidavit occurred on Thursday 7 April and marked the end of the sexual relationship between Ms R and the applicant, not the beginning of it.
14. The respondent relies on the fact that Ms R's mobile phone records indicate that a call was made to Miranda Police Station at 2.23pm on Thursday 7 April and to Southern Sydney Women's Domestic Violence Court Advocacy Service at 2.54pm on the same day.
15. The respondent also notes that, in the period after Thursday 7 April and up to Friday 1 July 2016, which was the last day covered by the phone records which are before the Commission, Ms R's phone was in constant use but calls to the applicant virtually ceased with only a two second call being made at 10.38pm on Monday 11 April, a three second call at 2.28pm on Tuesday 12 April, a five second call at 7.40pm on Tuesday 19 April and a two second call at 11.10pm on Sunday 24 April being the only calls made to the applicant's mobile phone from Ms R's mobile phone during that period.
16. EPAC records disclose that on Thursday 7 April 2016, Mr R contacted the unit and reported that he was making allegations on behalf of his wife, Ms R, that the applicant had abused his position by sending sexually explicit messages to his wife on snap-chat and via text messages to her. Mr R stated that the applicant was supposed to support his wife in obtaining the Relieving Head Teacher role and instead he abused his position by sending personal and explicit messages to her. Mr R also stated that his wife has admitted that she may have encouraged the conduct from the applicant because she was desperate to obtain the new position that the applicant was on the selection panel for it. Mr R stated that the conduct escalated once his wife secured the one year Relieving Head Teacher position. He stated that the previous night he witnessed that the applicant had sent his wife a fully naked picture of himself lying on a bed. Mr R also stated that the snap-chat pictures and messages only last seven seconds and that his wife had deleted all the messages from her mobile phone.
17. EPAC records also disclose that, on Wednesday 13 April 2016, only one week into the two week affair which the applicant claimed had commenced towards the end of the previous week, Ms R contacted EPAC and alleged that she had been sexually harassed and bullied by the applicant and asked for herself to be protected against reprisal.
18. The respondent submits that all of this material demonstrates that the sexual relationship between Ms R and the applicant began before the selection of Ms R for the Relieving Head Teacher position on 4 April rather than several days later. The respondent also submits that, if this were the case then, as of Monday 4 April 2016 when the applicant convened the selection panel, he was obligated to declare a conflict of interest and/or withdraw from the process.

Jones v Dunkel

1. Based on the principle espoused by the High Court in Jones v Dunkel ([1959] 101 CLR 298), both parties submitted that I should draw an adverse inference against the other party as a result of the failure by either party to call Ms R to give evidence in the proceedings. This submission was put more forcefully on behalf of the applicant.
2. The respondent, somewhat faintly, submitted that Ms R was in the applicant's camp and that an adverse inference should be drawn as a result of the applicant's failure to call Ms R as a witness in his case. That submission may be readily rejected. Given what has occurred between those two people, especially the unsubstantiated allegation by Ms R that she was sexually harassed by the applicant, there is no way the Ms R could be regarded as being in the applicant's camp.
3. The respondent relied upon the judgement of Lindgren J in Francis v South Sydney District Rugby League Football Club Ltd ([2002] FCA 1306) and, in particular, to the following passage from that judgement: All three of the following requirements must be met before I may draw the Jones v Dunkel inference: "(a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained." Payne v Parker [1976] 1 NSWLR 191 (CA) at 201 per Glass JA.
4. The respondent also relied upon the following passage from the judgement of Davies J in Parras Holdings Pty Limited v Commonwealth Bank of Australia ([1997] FCA 1107): I would not have expected either party to have called Mr Robinson. He is the father-in-law of Michael Phontos. At the time when the loan was arranged and while the account was under his control, Mr Robinson had a conflict of interest. He still has that conflict. I assume that both parties would consider that it is likely that, if called, he would be an unpredictable witness. I do not consider that there has been any matter raised which places an obligation upon the Bank to call Mr Robinson as its witness. There is no allegation of unconscionable or wrong conduct on his part. Nor does anything he did have to be explained. The complaints are made with respect to the actions taken by other officers of the Bank.
5. I agree with the submission put on behalf of the respondent to the effect that the explanation for not calling Ms R is that she would most likely not have been a credible witness. By way of example, in a written statement prepared by Ms R on 26 May 2016, she stated that, over the weekend of 2-3 April 2016, she kept trying to think of ways to end her association with the applicant completely but was scared, frightened and had witnessed his physical aggression. She stated that she did not know what to do, was isolated and anxious, was vomiting over that Sunday and spent the day in bed with migraine from stress. However, the evidence of Ms W, which I accept, was that Ms R voluntarily went to the applicant's home on the evening of Saturday 2 April 2016. Based on Ms R's apparent lack of credibility, I draw no inference adverse to the respondent from its failure to call Ms R as a witness in the proceedings.

Briginshaw v Briginshaw

1. Counsel for the applicant submitted that the evidence in support of the proposition that the applicant was in a sexual relationship with Ms R at the time she was appointed to the Relieving Head Teacher position did not satisfy the so-called "Briginshaw standard of proof" as espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336).
2. It is worth revisiting Briginshaw to consider just what was there 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.
3. 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:
4. 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.
5. 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.
6. 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.
7. Evidence that, when the respondent was told by the inquiry agent of the co-respondent's admissions, she, according to 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.
8. 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 the adultery, which he denied.
9. 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. 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.
10. In the present matter, there is reliable and probative evidence which more than satisfies the "Briginshaw standard of proof" from which an inference can be drawn that the applicant was engaged in a sexual relationship with Ms R at the time he convened the selection panel which recommended that Ms R be appointed to the position of Relieving Head Teacher. That evidence, which is discussed at paragraphs 67-73 above, demonstrates, to my comfortable satisfaction on the balance of probabilities, that the sexual relationship between the applicant and Ms R began before Monday 4 April 2016. This evidence establishes that Ms R was "busted" by her husband on the night of Wednesday 6 April after which he was charged by police with assaulting her. The next day, Thursday 7 April, Ms R rang the applicant and told him what had happened. On the same day, Ms R contacted Miranda Police Station and Southern Sydney Women's Domestic Violence Court Advocacy Service. On the same day, Mr R contacted EPAC and alleged that the applicant had been sexually harassing Ms R. Six day later, on Wednesday 13 April, Ms R, herself, contacted EPAC and made the same allegation against the applicant.
11. It is simply inconceivable that the sexual relationship between the applicant and Ms R continued beyond this time which, on the applicant's version of events, must have been the case if their two week affair began some days after Monday 4 April 2016.
12. With respect to the evidence of Mr A, Mr Vi and Mr El that they had seen the applicant in the company of Ms R during the school holidays which followed term one in 2016, counsel for the respondent put the following submission: EASTON: Yes, I haven't addressed that in my written submissions at all. The most that can be said about that is that their recollections of events, one, are vague and, two, they are neither consistent nor inconsistent with them being in a sexual relationship at the time because the events that they describe are [Mr E] having a conversation on the street with [Ms R] and that's all. That's as I recall that evidence. Now, I must say I haven't gone back to look at that but, for example, at exhibit 9, [Mr Vi] talks about seeing a white Mercedes a few times and I think, from my recollection, his recollection was he saw the car there before the start of the school holidays and then also another time in the holidays, when he was at his ex-wife's home and he sees it on the street. And [Mr A] talks about an event in the holidays where, para 6, [Mr E] excused himself and stepped to meet a female friend, who was parked in her white car at the bottom of the drive leading up to the house and then they speak for about 10 minutes. Now, that's not conclusive evidence that a sexual relationship was continuing at that point in time. When you weigh that up against the other evidence of the time, you can still be satisfied that the relationship ended at that point of time rather than actually commenced. I accept the force of this submission. The evidence of Mr A, Mr Vi and Mr El is inconclusive and does not negate the preponderance of evidence that the sexual relationship between the applicant and Ms R ended when she called him on Thursday 7 April 2016 and told him that she had been "busted" by her husband the previous night. It necessarily follows that their sexual relationship must have begun before Monday 4 April 2016.
13. If it were the case that the applicant and Ms R had been engaged in a sexual relationship before 4 April 2016, then his failure to declare a conflict of interest and remove himself from the selection process for the position of Relieving Head Teacher constituted serious misconduct which justified his dismissal.
14. Even if it were the case that the sexual relationship between the applicant and Ms R did not begin until after 4 April 2016, there is sufficient evidence before the Commission to establish that their relationship as at that date was not just "one of mutual respect and friendship, and on a par with similar relationships [Mr E] had developed with other teachers…". The frequency, duration and timing of their phone conversations, the content of their email exchanges and the frequency of Ms R's visits to the applicant's home, all speak of a close personal relationship which was sufficient to create a conflict of interest in the applicant as of 4 April 2016. His failure to declare that conflict of interest and remove himself from the selection process for the position of Relieving Head Teacher constituted serious misconduct which justified his dismissal.

Allegation 5

1. It follows from what is set out above that Ms R, as a consequence of the relationship that she was in with the applicant, must have been advantaged above the other two candidates in the selection panel process for the position of Relieving Head Teacher. It matters not that the other members of the selection panel, Ms Ge and Ms Ra, also formed the view that Ms R was the best candidate or that the final decision to appoint Ms R to the position was made by Ms B, not by the applicant. What matters is that the applicant participated in the process as panel convenor when he should not have and, given that he was the most senior member of the panel, the other two candidates, Ms Gr and Mr M, were unfairly disadvantaged.
2. The seriousness of this misconduct was compounded by the fact that, according to the evidence of the school Principal, Ms B, which I accept, shortly before the applicant convened the selection panel, Ms B approached him and said: [Mr E's first name], I'm worried about some chatter and a perception about the panel and your capacity to run the interview panel objectively. Perhaps you should step down as convener of the panel and we can re-run the process with [Ms G's first name] as convenor.
3. This should have served as a clear warning to the applicant that, given the relationship that existed between himself and Ms R at that time, he should have heeded Ms B's advice and stepped down as convenor of the panel. Instead, he replied: There is absolutely no conflict of interest and I am more than able to continue with the process. There was nothing to be concerned about. This was clearly not the case.
4. Even it were the case that the applicant's recommendation that Ms R be appointed to the position was not due to his personal relationship with her, his participation in the process as convenor of the selection panel constituted misconduct.

Allegation 6(a)-(b)

1. In a written complaint to EPAC dated 29 April 2016, Mr M claimed that he had, on 24 March 2016, complained to the applicant about Ms R sending and showing nude images of herself to Mr M and that the applicant failed to take appropriate action to address this complaint. Mr M made the same allegation in an interview with Mr Mooney and Ms Scott on 9 May 2016 and in his sworn evidence in these proceedings. According to Mr M, the applicant effectively brushed off his concerns.
2. Mr V made a similar allegation in a note he prepared on 27 April 2016 and in a written complaint to EPAC dated 29 April 2016 and in his interview with Mr Mooney and Ms Scott on 9 May 2016 as well as in his sworn evidence in these proceedings.
3. Mr M was cross-examined on this matter but remained adamant that he had raised his concerns with the applicant. The following exchange occurred: Q. I want to put to you that you actually didn't raise with the applicant any concerns that you had about (Mrs R) sending you nude photographs. A. I did, I told him that if anyone's being sexually harassed it's myself and that she's been sending explicit texts and messages to me. I made it clear.
4. Mr V was also cross-examined as follows: Q. Now, going to the meeting of 24 March 2016? A. The same document? ………………….. Q. I want to put to you that you didn't actually inform [Mr E] that [Ms R] had given or had made sexually inappropriate comments? A. I did inform [Mr E] that [Ms R's first name] had made sexually explicit comments. Q. And you didn't tell him that she had sent you explicit sexual images? A. I disagree. I did tell him that she had sent me sexually explicit images.
5. I formed the impression that both Mr M and Mr V were credible witnesses and I accept their evidence that on 24 March 2016 they separately raised with the applicant the issue of Ms R sending them sexually explicit images and that the applicant effectively brushed off their concerns.
6. On the other hand, the applicant's evidence on this issue was vague, imprecise and inconsistent. In his draft response which he forwarded to the Teachers Federation on 15 August 2016, the applicant stated: I vigorously deny this allegation. Initially it was [Ms R] that mentioned to me that [Mr M] was making her uncomfortable with low level sexual innuendo. I said to her that I will address it with him. I spoke to [Mr M] in private in my office. He denied these allegations and said; in fact it is her that was initiating sexual advances by sending him photos. I asked him if he could prove this, he said yes, but he was not prepared to take it further. He said that the photo was from a hotel evening after the school formal in 2015. [Mr M] insisted that he was not prepared to put anything in writing and was happy for me to ask her to cease any sexual advances. When I re-interviewed [Ms R] she denied sending him any photos. I was left with a situation where there was no evidence from both sides and both were not prepared to make a formal complaint or advised me that they did not want to take it further. At no point was I made aware nor did I see any photos that were taken on school grounds during school hours. I was later informed by the principal that [Mr M] and [Mr V] had made a complaint to the other Deputy. At that point to the best of my understanding it was investigated by the principal.
7. However, in his response to EPAC dated 17 August 2016, the applicant stated: I deny this allegation. Neither teacher mentioned to me that naked photos were sent. I had an informal discussion with [Mr M] because he mentioned he was unhappy with [Ms R] but he was reluctant to give me specific details about his complaint other than to say that [Ms R] was very unprofessional. I was later informed by the principal that [Mr M] and [Mr V] had made a complaint to the other Deputy. At that point to the best of my understanding it was investigated by the principal. The principal mentioned that she had sought EPAC advice and that she was dealing with the matter. The applicant made no reference in this document to Mr M's claim that it was Ms R who was initiating sexual advances by sending him photos, which he had referred to in his earlier draft response.
8. In the correspondence to Ms Thorpe dated 12 May 2017, the applicant's solicitor responded on his behalf to this allegation as follows: 73. The allegation and subsequent investigation concerns very delicate matters. Without doubt, [Mr E] would have held concerns for the privacy of [Ms R] and the ramifications of disclosing material of that nature. It is a difficult balancing exercise. 74. The investigation into this allegation makes no reference to any guideline materials which might have assisted [Mr E] in dealing with matters reported to him. 75. The investigation also fails to refer to training course conducted within the department concerning the reporting of sensitive matters that may involve breaches of privacy. 76. Lastly, [Mr E] had been in the role of Deputy Principal for a very short time. What training if any was he provided in the performance of that role that would have equipped him with the knowledge of how best to address the concerns, which were raised to him by fellow teachers. Again, no reference is made to Mr M's complaint to the applicant that it was Ms R who was initiating sexual advances by sending him photos.
9. In his first affidavit tendered in these proceedings, the applicant recorded a conversation between Mr Mooney and himself, part of which is set out below: He said: "What do you know about photographs being sent by [Ms R] to other staff?" I said: "What you mean photographs?" He said: "Are you aware of inappropriate photographs being distributed by [Ms R] to other staff members in the PE faculty?" I said: "No I haven't." He said: "Have you received any complaints from PE staff about [Ms R]?" I said: "A number of staff have expressed some concerns about [Ms R] but they have not made any specific complaints other than mere sweeping statements questioning her professionalism. The Staff members that have raise concerns with me and the Principal about [Ms R] were invited to put their complaints formally in writing but they have declined to do so. Things got very ugly between [Mr M] and [Ms R] when [Ms R] was awarded the Relieving Head Teaching position by a panel of three members of which I was one. [Mr M] became very angry and resentful when he was not the preferred candidate." Again, no reference is made to Mr M's complaint to the applicant that it was Ms R who was initiating sexual advances by sending him photos.
10. In his second affidavit tendered in these proceedings, in response to the written complaint by Mr M to EPAC dated 29 April 2016 and to the record of interview between Mr M and Mr Mooney and Ms Scott on 9 May 2016 and to the affidavit of Mr M tendered in these proceedings, the applicant stated as follows: 57. In relation to… 24 March I say that [Mr M] never raised with me any concerns relating to nude photographs he had allegedly received from [Ms R]. I say that my comment "it is a personal issue" related to the allegedly falling out between [Ms R] and [Mr M] concerning an incident between them at an after party. I say that this was a matter that occurred outside of school and I saw this as a private matter which both individuals needed to put behind them. ……………….. 58 ……………. I further say that [Mr M] at no stage made any allegations to me that he had received nude photographs from [Ms R]. In relation to Line 480 [of Mr M's record of interview] I say that the observations made by [Mr M] "her level of communication, her level of professionalism her confidence is way behind where it should be" accurately reflects the nature and substance of the concerns that were put to me by [Mr M] and other staff. I further say this did not include any reference to nude photographs. …………………… 63. In relation to Paragraph 25 [of Mr M's affidavit], I say that [Mr M] did not raise any allegations about nude photographs but merely expressed his concerns to me about [Ms R's] lack of professionalism and I invite him to put his complaint in writing to allow me to investigate this matter further and I further say that I did raise these concerns informally with [Ms R] in an attempt to resolve these issues.
11. Further, in his second affidavit tendered in these proceedings, the applicant stated that, at no time, did anyone raise with him concerns about Ms R sending nude photos to staff prior to the interviews nor did anyone formally submit a written complaint about this issue to him. In response to the written complaint of Mr V to EPAC dated 29 April 2016 and to Mr V's affidavit tendered in these proceedings, the applicant stated: 42. In relation to… 24 March 2016 I say that the meeting did take place however the only allegations that was put to me at the time concerned [Ms R's first name] unprofessional conduct but deny that any allegations were raised with me concerning [Ms R's first name] sending nude photos and I further say that I invited him to put his complaint in writing so that it could be fully investigated which I recall he declined to do so. I say that after receiving this concern that I raised these issues with [Ms R's first name] but maintained confidentiality by not disclosing to her who had approached me regarding this matter. I further say that at no stage did [Ms G's first name] raise any issues concerning [Mr V's first name] having approached her regarding his alleged complaints. ………………. 49. In relation to Paragraph 17 [of Mr V's affidavit], I say that [Mr V's first name] did not raise any sexual allegations or complaints about [Ms R] and further say that his complaint related to [Ms R's] lack of professionalism. I also say that I invited [Mr V's first name] put his complaint in writing and provide with specific incidents as per Departmental complaint handling procedures. To the best of my recollection [Mr V's first name] did not submit his complaint to me in writing but I am aware that he did so later with the Principal. I further say that I did in fact follow up [Mr V's first name] general concerns and those expressed by [Mr M] in an informal meeting I had with [Ms R] at the time wherein I sought to explore these issues with her and sought ways to resolve these concerns set out as a discussion. I further say that I constantly reminded staff that made complaints to me about other staff that they should put their complaints in writing and I also reminded all staff of their obligations under the Code of Conduct when dealing with or communicating with one another.
12. The applicant had made no reference to Mr M's complaint to him that it was Ms R who was initiating sexual advances by sending Mr M photos, which was referred to by him in the draft response which he forwarded to the Teachers Federation on 15 August 2016 (see paragraph 96 above), until he was cross-examined about his response to allegation 6(a)-(b). The following exchange occurred during that cross-examination: Q. Now, on page 33, the numbered pages down the bottom like I've referred you to, you repeat allegation 6 there in the middle of the page in bold, and then you say: "I vigorously deny this allegation. Initially it was [Ms R] that mentioned to me that [Mr M] was making her uncomfortable with low level sexual innuendo. I said to her that I will address it with him. I spoke to [Mr M] in private in my office. He denied these allegations and said in fact it was her that was initiating sexual advances by sending him photos. I asked him if he could prove this. He said yes, but he was not prepared to take it further. He said that the photo was from a hotel evening after the school formal in 2015. [Mr M] insisted that he was not prepared to put anything in writing and was happy for me to ask her to cease any sexual advances. When I re-interviewed [Ms R], she denied sending him any photos. I was left with a situation where there was no evidence from both sides, and both were not prepared to make a formal complaint or advised me that they did not want to take it further. At no point was I made aware, nor did I see any photos that were taken on school grounds during school hours." Now, that's your version of events that you tell the Teachers Federation. And the email itself that I showed you at the start there was dated 15 August, so that's closer to the event than we are now, of course. Do you accept that this draft words here is a better recollection from you of the events? A. I would say it would be. Presumably it would be. Q. So do you accept then that [Mr M] spoke to you and said, in answer to a suggestion about sexual innuendo, that in fact it was [Ms R] that was initiating sexual advances by sending him photos? A. Yeah, look, I do recall that, but when he spoke to me about photos, it wasn't photos of, explicit photos like that, it was photos at an after party, as he said, that they were kissing, and that he didn't appreciate that, but I don't recall the details of this actual conversation at the moment though. Q. Well, have a look at the words in bold that say the allegation is, on or about 24 March, failed to take appropriate action to address staff complaints that [Ms R], in her role as relieving HT, sent photos of herself naked to two male teachers. A. Mm-hmm. Q. And then you refer to [Mr M] telling you about her sending photos. A. But not nude photos. Q. Not nude photos. A. He wasn't - he didn't talk to me anything about nude photos. He was talking about a year 12 formal, they went to the photo, they had photos, they were kissing, and that's as far as I can recall it. I don't recall that there was any indication that it was explicit or nude or topless or anything like that. Q. Well, you describe it here in your words as "initiating sexual advances by sending him photos". A. He denied these allegations and he said in fact it was her that was initiating sexual advances by sending him photos. Q. Yes. A. Correct. Q. Because according to this version, right, she raises with you low level sexual innuendo by [Mr M], and [Mr M] denies it and says, "No, no, she's initiating sexual advances by sending me photos." A. Correct. ………………….. Q. What you're describing [Mr M] as alleging is that [Ms R] was initiating sexual advances by sending photos? A. Yes, of photos sent, but he never - as I said, he never spoke about anything about nude photos, explicit photos, anything of that nature. He said that she was sending photos of an after party. He went on about something about that, you know, there was alcohol, everyone was drinking, that was the photos of them kissing, touching tongues and that type of stuff. He never referred to any topless - anything of that nature. Q. The allegation you're answering is that she sent photos of herself naked to two male teachers? A. Correct. Q. And then-- A. So I do refer to the photos - to the photos, but, as I said, I don't recall ever - [Mr M] ever telling me that the photos were nude, topless, explicit, anything like that, but I do recall some mention of a photo and the only one I do recall was when they had their tongues touching and she had sent him that with some type of caption and when I spoke to both of them about the - whether it was consensual or not, obviously, you know, you know, the kissing, and they both said it was and so I was quite happy to ask them to sort of grow up and sort of move on. Q. And that's what you understand to be the allegation, that [Ms R] was initiating sexual advances? A. Yes, and just low level from what they both said, low level sexual innuendo that they both sort of said, oh, you know, she says that I've got a nice butt, he says - you know, it's that type of conversation and that's what the comment I made was, "You both need to grow up and sort of build bridges, get over the mistakes of the past and move forward", but at no point was there a reference, to me anyway, that there was nude or explicit photos. Q. Well, let's separate out what they might be saying to each other or what they're telling you they're saying to each other and the photos because you're specifically asked here about photos and you give an answer about photos, an allegation of photos, that she was initiating sexual advances by sending photos? A. Correct, so I am suggesting there and obviously my memory's not as well now, but I am suggesting that there was a mention of photos, but there was never any mention of photos of explicit - of a nature or anything of that nature, topless or otherwise. Q. So sexual photos, but not nude photos, is that what your recollection is? A. Well, all - the only photo I recall [Mr M's first name] talking about was a photo of them with tongues touching. That's the only photo that I was aware that she sent him.
13. I find this evidence of the applicant utterly unconvincing. The specific allegation against him was that he failed to take appropriate action to address staff complaints that Ms R, in her role as Relieving Head Teacher, PDHPE, sent photos of herself naked to two male PDHPE teachers, Mr M and Mr V, and took photos of herself naked while on the school site and during school hours. Up until being confronted in cross-examination with his draft response to the Teachers Federation, in which he stated that Mr M had said "in fact it is her that was initiating sexual advances by sending him photos", the applicant had made no mention at all of any claim by Mr M that he had raised with the applicant that Ms R had sent Mr M any photos of a sexual nature.
14. I accept the evidence of Mr M and Mr V that, on 24 March 2016, they both separately complained to the applicant that Ms R had sent them photos of herself naked and I am satisfied that the applicant failed to take appropriate action to address those complaints. I am also satisfied that the applicant's failure in this regard was a product of the developing relationship between himself and Ms R and that his failure in this regard constituted misconduct.
15. The submission put on behalf of the applicant to the effect that Ms G, the other Deputy Principal, also failed to take appropriate action in response to her being made aware of these complaints does not diminish the culpability of the applicant when considered against my findings in relation to allegations 4 and 5. Further, his failure to take appropriate action on these complaints was, unlike the applicant's complaint about Ms G's inaction, due to his relationship with Ms R.

Was the dismissal of the applicant harsh, unreasonable or unjust?

1. I have taken into account the applicant's long period of service as a teacher in the Teaching Service of the respondent. I have also given consideration to the applicant's previous unblemished record, to the state of his health in early 2016 and to the potentially devastating effects that the loss of his career will have on him. However, against these considerations I must consider the gravity of the misconduct committed by the applicant.
2. It is my finding that the applicant deliberately failed to disclose the nature of his relationship with Ms R at the time when he was the convenor of the selection panel which was considering Ms R's application for the position of Relieving Head Teacher of the PDHPE faculty at the school. He did this after being cautioned about the perception of a possible conflict of interest by the school's Principal, Ms B. He dismissed her concerns and assured her that there was no conflict of interest despite the fact that there clearly was. The applicant participated in the selection process to the advantage of Ms R and to the disadvantage of the other two applicants.
3. In addition, it is my finding that the applicant failed to take appropriate action to address the complaints that Ms R sent photos of herself naked to Mr M and Mr V and took photos of herself naked while on the school site during school hours, and that his failure in this regard was directly attributable to the relationship that he had, or was forming with, Ms R.
4. Taken together, the applicant's misconduct in relation to allegations 4, 5 and 6(a)-(b) was sufficiently serious to justify the termination of his employment. The dismissal of the applicant was neither harsh nor unreasonable nor unjust.

Order

1. The unfair dismissal application filed by Mr E on 6 June 2017 is dismissed. John Murphy Commissioner

Amendments 06 July 2018 - Deleted name in paragraph 93 and included initials 12 July 2018 - Typos 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: 12 July 2018