Evans v NSW Police

Industrial Relations Commission (NSW)|2005-12-14|Before: Grayson DP, Ms P, Mr J

CITATION: New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464

PARTIES: NSW Department of Training and Education

CATCHWORDS: Unfair dismissal - Teacher misconduct alleged - School for special purpose - Violent student behaviour - Physical restraint by teacher - History of violence by student - Allegation of assault by teacher - Tension between departmental policy and Local school policy - Duty of care - Foreseeable risk - Investigation by employer - Process of investigation - Delay in interview of witnesses - Procedural fairness - Reliability of evidence - Harshness of ultimate sanction of dismissal - Held: Extenuating circumstances such as to render dismissal harsh and consequently unfair - orders as to re-employment and lost pay.

Industrial Relations Act 1996 LEGISLATION CITED: Teaching Services Act 1980 Teaching Services Regulation 2001

Evans v NSW Police [2005] NSWIRComm 404 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 61 IR 32 CASES CITED: Shop Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Smith v Director-General of School Education (1993) 51 IR 204 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

HEARING DATES: 10/17/2005; 10/18/2005; 10/19/2005; 10/20/2005; 10/21/2005; 11/22/2005

APPLICANT: Ms P Lowson of counsel SOLICITORS MacMahon and Associates Pty Ltd (Ms P Potter) LEGAL REPRESENTATIVES:

RESPONDENT: Mr J Murphy of counsel SOLICITORS Department of Education and Training (Mr A Murphy)

27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training

Application by New South Wales Teachers Federation (on behalf of its member Anthony Mossfield) re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 The applicant, Anthony Mossfield, commenced employment with the Department of Eduction and Training (DET) as a casual school teacher at Niland School for Specific Purposes (Niland SSP) on 27 January 2003. He commenced as a teacher of physical education and continued performing that work on a full time basis until the latter part of 2003 when he became a classroom teacher for Year 9. On 27 January 2004, he was appointed on a permanent full time basis subject to satisfactory completion of a probationary period. 2 Niland caters for up to 56 students with histories of emotional disorders and/or mental disabilities and illnesses. Such students generally are not able to be accommodated in mainstream school settings. 3 On 18 June 2004, during the probationary period, an incident occurred in the classroom which involved the applicant in the physical restraint of a student Keith who had been acting out as it is termed or in other words, misbehaving. In this case, Keith had been engaging in angry and disruptive behaviour which included but was not limited to the destruction of computer equipment by removing the equipment from storage cupboards and throwing it onto the floor. 4 The incident gave rise to Keith's suspension and eventual expulsion from Niland and gave rise also to allegations against the applicant which were particularised by letter of 16 August 2004 as follows: It is alleged that: 1. Whilst employed as a teacher at Niland SSP, on Friday 18 June 2004 after 11am, whilst teaching in the computer room, you responded to a male student, namely Keith's behaviour by: (a) punching him in the stomach with a closed fist causing him to lose his breath and cry; (b) picked him up by his clothing which tightened around his body: (c) stepped behind him and put your arms around him to restrain him; and (d) punched him the back of the head causing an injury to his head which required medical attention. 5 The allegations were investigated by the Employee Performance and Conduct (EPAC) Unit of DET resulting in allegations (a) and (d) being pursued by way of disciplinary action. Allegations (b) and (c) were not pursued. During the course of the investigation, the applicant was assigned non-teaching alternative duties at the Mt Druitt School Education Area Office. 6 On 28 June 2005 following the completion of the EPAC investigation a year or more after the incident, the applicant's employment was terminated in these terms: Dear Mr Mossfield, ANNULMENT AND DETERMINATION Pursuant to Section 48(2) of the Teaching Services Act 1980, I hereby annul your appointment and further pursuant to Section 48(4) determine that you will cease to be employed in the NSW Education Teaching Service as from the date of receipt of this letter. Yours sincerely, Director, Employee Performance and Conduct 7 Additionally, the applicant's name was placed on what is described by DET as "the confidential list of persons not to be employed in NSW government schools or TAFE NSW without reference to the Director of Staffing Services" and his details were provided to the Commission for Children and Young People (CCYP) under the Commission for Children and Young People Act 1998 as a Category One matter the effect of which is that a risk assessment is triggered in the event of any future application for child-related employment. 8 Although the application for relief specifies reinstatement to his former position, it is in fact re-employment in another school which is pressed by the applicant as well as ancillary orders going to continuity of service and back pay and also an order (which I suspect may be beyond power) requiring DET to take whatever steps are necessary to ensure the removal of the applicant's details from the register kept by CCYP. Alternatively, the applicant seeks maximum compensation. 9 At hearing and in addition to the documentary material tendered and relied upon, evidence was taken from the following witnesses: Anthony MOSSFIELD, the applicant Keith, the student involved in the incident in question Dwayne, a student who witnessed the incident Scott, a student who witnessed the incident Sharon Louise LeBAN, Niland SSP principal Kate Amanda HALLORAN, Investigator Employee Performance and Conduct Unit, NSW Department of Education and Training. 10 As may be apparent from the above list, it was agreed as a protective measure that the surnames of the three under-age witnesses would not be disclosed in the record of proceedings and it may be observed further with appropriate acknowledgement of the assistance of both counsel in this regard, that I am satisfied that each of the three students who gave evidence properly and adequately understood the obligation to give truthful evidence and were competent to do so in my opinion. 11 I turn then to the allegations upon which the applicant's dismissal was primarily based and I say primarily because there are a number of background matters which were taken into account by DET in deciding to dismiss the applicant which were plainly never put to him as matters of significance in the investigation or at any stage in the sequence of events leading up to the dismissal. I will return to those matters later. 12 At the outset, it may be usefully observed that the Niland working environment is accepted and may be fairly described as being out of the ordinary. Similarly, the same might be said with every respect and considerable compassion about Keith who is described by attending child psychiatrist Dr Turner as having a long, recurrent and documented history of parental neglect and abuse culminating in suicide attempts and other episodes of self-harm. Dr Turner refers to Keith's developmental years as being characterised by a chaotic and abusive home environment, exposure to parental/adult drug use and violence the result of which has been a profound impact on Keith's affective, behavioural and cognitive development with strong programming towards aggression, impulsive and mood disturbance. 13 At the time of the incident, Keith was in the care of the NSW Department of Community Services and living in a 24 hour residential care unit. The evidence reveals a history of violent outbursts within the Niland environment and elsewhere, a number of suspensions and consideration of expulsion from Niland because of such misbehaviour. A fortnight or so prior to the incident and after a sequence of disruptive behaviour in other classes, the applicant was asked to take Keith into his Year 9 class as a last resort, the only alternative being expulsion from the school. The applicant was aware of Keith's background in broad if not detailed terms and agreed to accept Keith into his class clearly and to his credit, in the hope that it may assist Keith in continuing his education. 14 The applicant was also aware, as were the Niland school principal and deputy principal, that the week leading up to the incident had been a particularly bad one for Keith due to the suicide of a friend/housemate in the residential care unit. Keith had also verbalised to staff that he was having suicidal thoughts and as a result, he was being closely monitored in case he attempted self-harm. The evidence indicates that his behaviour that week had been such that he had been sent home every day with his carer. 15 On the day of the incident namely, 18 June2004, the applicant was informed by the principal, that the funeral service for Keith's friend was being held and it can be inferred I think that this information was imparted to the applicant with a view to emphasising the need for close monitoring of Keith's behaviour. The applicant said he felt he could not lose sight of Keith. 16 The applicant also gave the following evidence as to the events of 18 June 2004 leading up to the incident: Before recess on 18 June 2004, I had to escort one of my other students, Glenn to the front office. Glenn was unmedicated and had become violent. I took him to the Principal's office, but he kicked me a number of times, so I was forced to restrain him in front of the Principal and Deputy and take him to the time-out room. The time-out room is a room with no furniture and one Perspex window facing the outside, with one small window Perspex window in the door, so that the student can be watched through that window. The student is put into the room by a teacher when a child is violently out of control. The door is locked and opened when it appears the child has calmed down.

and later At recess on 18 June 2004, Keith caused fights with other students. The first was with Daniel, who ended up so upset that he put his fist through a window. Mr Carpenter, Ms Roseman and I were forced to restrain Daniel and take him to the time-out room. Mr Carpenter, Ms Mangan and I then began to clean up the broken glass. A few minutes later Keith attempted to hang another student by the neck. This was reported to me by Ms Mangan who was on playground duty. A few minutes later, approximately 11.05am, Keith and Simon began to fight on assembly lines, and a few teachers (including myself) had to pull them apart. At this point I asked Keith if he was okay, and he twice said "I haven't got any problems." Ms Mangan told me after the event that she had gone to the staff room at approximately 11am to ring Keith's carers but was unable to contact them and the Principal and Deputy were not available. I was aware that the Principal and Deputy Principal had left the school as when I was walking through the office area just before 11am, I heard them tell the school secretary that they were going out, and during recess I saw both the Principal and Deputy go out the front door of the school. After recess, between 12 noon and 12.30 p.m I took my class with five students including Keith to the computer room. In the computer room Keith began to act out again, teasing and threatening other boys (especially Mitchell), and throwing his soccer ball about the room. 17 What then transpired, at least on the applicant's version of events, is described in the following extract from contemporaneous notes made by the applicant in this way: As Keith's behaviour began to escalate, he began to aim his soccer ball at the glass cabinets in the computer room. Indeed, he would have smashed one pane, except that the sliding door was open (or missing). I then said that Keith should go home. He ran at me, but I was in the door so he could not leave. I moved assertively towards Keith, as I was now concerned of physical harm to myself, Keith and the other students. I told him repeatedly to calm down. He responded by picking up a computer and throwing it at me. He hit me in the shins. He threatened to bash me, kill me and get the "Rebels" on to me. He picked up a second computer to throw at me. I reactively hit him in the stomach, and he dropped the computer. Obviously I was v (sic) concerned for my own and the other students welfare at this point. When Keith dropped the second computer, I stepped behind him and put my arms around him (in order to restrain him/keep him still). Keith then head-butted me in the mouth causing me to bleed. I then punched Keith in the back of head as he was attempting to head-butt me a second time. Keith yielded at this point. I sat Keith down and noticed that he was bleeding from a cut to the head. I took him out the door and to the Principal (who was in the playground). Together, we escorted Keith to the Principal's office, where I left him with the Principal and Deputy. 18 The applicant subsequently resiled from his assertion that he suffered an injury to his mouth and deposed to the blood around his mouth as having come from a laceration to the back of Keith's head. He further asserted that the laceration to the back of Keith's head resulted not from his closed fist but rather from forceful contact with his upper front teeth when Keith allegedly head-butted him in the mouth. Keith did not deny continuing to struggle and in particular, to throwing his head backwards in an attempt to break free of the applicant's restraint. He was adamant however, that the back of his head hit the applicant in the chest and not the mouth. To my mind and although considerable forensic energy was expended on both sides of the record, in establishing whether the scalp laceration was caused by Keith throwing his head backwards into the applicant's mouth or by the applicant's punch to the back of Keith's head, the issue in a manner of speaking, is a peripheral one and something of an unnecessary distraction given the applicant's candid admission that he did in fact punch Keith in the back of the head in an attempt to suppress his escalating violence. 19 Be that as it may, however, I think the balance of evidence supports the fact and I find accordingly, that the laceration was more probably than not caused by the punch. I say that having regard to the evidence of the various witnesses to the incident and also to the evidence going to the downward half-moon shape of the scalp laceration which would make it highly improbable if not, as Mr Murphy submitted, physically impossible given the positions of combatants at the time, for the wound to have been caused in the manner asserted by the applicant. That being so it follows that the blood around the applicant's mouth which he concedes was Keith's blood, must have been transferred from Keith's scalp in the continuing struggle, a fact which of itself indicates contact between Keith's head and the applicant's mouth as the applicant asserts. 20 As to the allegation of a punch to the stomach with a closed fist causing Keith to lose his breath and then to cry, it was the applicant's initial recital which he recorded contemporaneously and then adopted in the first of two sworn statements, that he moved assertively towards Keith and reactively "hit" him in the stomach causing Keith to drop a computer which he assumed was about to be thrown at him. 21 In a second statement filed in court on the first day of hearing, the applicant said this: In relation to the incident involving Keith, in addition to the account that I wrote on the day I say: (i) when I hit him in the stomach it (a) was not a punch and (b) was intended to make him drop the computer hard drive by trying to stop my hand, and so to stop him throwing the computer at me or any of the students. (ii) I deny punching him in the stomach, and I deny that by hitting in the stomach I intended to escalate the situation. I was trying to manage the situation as best I could whilst preventing Keith from throwing anything at the other students or at me. 22 When taken in cross-examination to this particular aspect of the incident, the applicant maintained that he in fact pushed Keith in the stomach with outstretched fingers rather than punched him with a closed fist. As the following extract from the transcript reveals, he denied and continued to deny that he punched Keith in the stomach with a closed fist and he continued to deny that Keith was winded or doubled over or that Keith as he alleged fell to the ground and stayed there for three to five minutes as a result of any such impact to the stomach: Q. You hit him in the stomach with sufficient force to wind him? A. That's incorrect.

Q. He then buckled over? A. Incorrect.

Q. And stumbled to the floor? A. Incorrect.

Q. Would you describe to the Commission how it is that you hit Keith in the stomach? A. Certainly. The boy had thrown a CPU unit, the main part of a computer, at me and hit me in the leg, in my shin, causing my shin to bleed, and had already picked up a second CPU to throw at me and it was for the intent of trying to get him to drop that second one that I pushed him in the stomach. 23 It was put to the applicant that this refined version of events, to use a neutral term, was in the nature of a recent invention, a proposition which the applicant rejected and I note in that regard among the material tendered and relied upon by the respondent, that there is a written response from the applicant a fortnight after the allegation of punching with a closed fist was put to him in August 2004, to the effect that he did not close his fist in making contact with Keith's stomach (Exh 30 annexure L). There was in that regard no recent invention by the applicant as to his version of events. 24 Furthermore, and as the following extract from transcript reveals, Keith plainly harboured feelings of resentment after being suspended from Niland for his part in the incident and his resentment, in a sense understandable in the circumstances as he perceived them, was based on his erroneous assumption that he had been punished for what happened on 18 June 2004 and the applicant had not. 25 The extract from Keith's cross-examination evidence at p 92 and onwards is as follows:

Q. When Ms Halloran came to interview you at your house - do you remember that? A. Yes.

Q. At that stage you were suspended from Niland School, weren't you? A. Yes.

Q. You had been suspended for 20 days, is that right? A. Something like that.

Q. You had been suspended because of what had happened with Mr Mossfield? A. Yeah.

Q. For throwing computers at him? A. For throwing computers, yes.

Q. And for hitting him as well? A. Yeah.

Q. And when Ms Halloran came to talk to you, at that stage you did not think that was really fair, did you? A. Yes.

Q. You did not think it was fair? A. No, I didn't.

Q. Because you felt you had been suspended and at that stage you did not know if anything had happened to Mr Mossfield? A. No.

Q. You thought nothing had happened to him? A. Yeah?

Q. You did not know he had been suspended from the school as well. A. Yeah.

Q. When Ms Halloran came to talk to you and asked you questions I want to suggest to you that when you were answering those questions you were still feeling that it was unfair that you had been suspended from school and Mr Mossfield had not? A. Yes.

Q. And that when you were answering the questions you wanted to make it clear what you say Mr Mossfield had done to you? A. Can you rephrase that?

Q. When Ms Halloran was asking you questions - A. Yes.

Q. - you wanted to tell the story of what Mr Mossfield had done to you? A. Yes?

Q. And you wanted to minimise what you had done to Mr Mossfield? A. Yeah.

Q. Because you felt you had already been punished for that by being suspended? A. Yes.

26 Although that feeling of resentment may not of itself be sufficient to detract from the ultimate probative value of Keith's evidence, it would when taken as a motive on Keith's part to paint the applicant's actions in the most damaging light together with the variations in theme and content of the evidence of other student witnesses to the incident, tend to give weight to the proposition for which Ms Lowson contends namely that there were insufficient grounds to disbelieve and displace the applicant's version of events as Ms Halloran, the EPAC investigator, did. 27 It is to be remembered here that the respondent accepts that the circumstances confronting the applicant 18 June 2004 were sufficiently serious to warrant the imposition by the applicant of a reasonable form of physical restraint and to the extent that that was one of the allegations initially levelled at him (namely that he physically restrained Keith), it was satisfactorily answered and was not considered to be a matter which warranted disciplinary action or which in the result, should form any part of the grounds upon which it was decided to terminate the applicant's employment. 28 In such circumstances, it is not difficult to imagine in an effort to distract Keith from his angry and destructive activities why the applicant may have elected to push or as he initially said, hit Keith in the stomach. It may not have been the best option with the wisdom of hindsight but it is what the applicant described on oath as the course of action he chose and carried out in an attempt to cause Keith to desist. It does not follow and in my opinion, the evidence does not compel or on balance, permit a finding that a blow to Keith's stomach was delivered with such force as to cause him to lose his breath, to cry and as was further asserted, to fall to the ground winded and lay there for three to five minutes. There may well have been in the highly volatile and emotional circumstances at the time, a sequence of over-reactive responses from Keith designed to create an impression to that effect but it is more likely I think, having regard to the totality of the evidence that the contact with Keith's stomach was as the applicant described it. 29 There is after all, no suggestion anywhere in the evidence of a pre-meditated and sustained attack by the applicant with an intention on his part to cause injury to Keith and conversely, there is an abundance of evidence to suggest that the applicant's actions, however badly chosen they may have been, were designed to bring the situation with which he was confronted under control. 30 In saying that, I should add that I do not consider that the evidence leaves any room for doubt that the applicant was correct in his assessment of the situation at the time he chose to intervene, as posing a clear risk to the safety of Keith and other students and to his own safety and in that regard, I accept and agree with the submissions made by Ms Lowson. 31 I also accept and agree with Ms Lowson's submission that the evidence of the students who are said to have observed the incident should be treated with a high degree of circumspection given as I have already observed, the inherent variations in theme and content as between them in certain respects and in other respects a degree of sameness, as Ms Lowson describes it, which is highly suggestive of memory of what may have been discussed among themselves rather than what was directly observed. 32 Taking these matters into account there seems to me to be a serious question as to whether Ms Halloran, on the material available to her was entitled on reasonable analysis to reach the conclusion she did about the first of the two surviving allegations namely, the allegation about punching Keith in the stomach with such force that it caused him to lose his breath and cry. 33 This is particularly so when one considers that the statement given by Keith to the school principal on the day of the incident was not read or received by Ms Halloran; that the statement made no mention of Keith being winded and that interviews with students other than Keith were not conducted by the investigator Ms Halloran until five months after the incident thus raising the inevitable questions as to accuracy or reliability of recall and so on. 34 I think on balance that the correct conclusion is that the version of events to which the applicant adheres as to the first of the two surviving allegations is more likely to be the most reliable and to the extent that it is at variance with other versions of events, it should be preferred. I do so accordingly. Having said that, it may be observed that the applicant had not received the so-called Physical Assault Restraint Training (PART) in his time at Niland notwithstanding what could be reasonably described, in my opinion, as a working environment which compelled such training and furthermore that the elements of impracticality inherent in the restraint policy said to operate in the Niland environment can be seen as being at odds with DET policy set out in Legal Issues Bulletin No 9 Physical Restraint of Students. 35 For example and by no means exhaustively, in the Niland environment it was expected of the applicant and other teachers that they should await the presence of another adult before intervening in violent or dangerous student behaviour whereas the DET policy emphasises the duty of care owed by staff to students in protecting them from or against risks of injury which are reasonably foreseeable. 36 I am under no illusion that this is a simple matter but it must also be borne uppermost in mind when considering the events of 18 June 2004 that the applicant was confronted on his own with a highly emotionally charged student who was behaving aggressively with a significant history and with every indication that his behaviour at the time would continue to the potential detriment of persons and property within his immediate reach and further that the likelihood of calling for and obtaining support in a timely way was virtually non-existent. I note in that regard that the applicant did not have a teacher's aide working with him as a support person and he was aware that the Niland principal and deputy principal to whom he might ordinarily turn and had in the past turned for assistance, had departed the school precinct earlier in the day. 37 Moreover, and as Ms Lowson submitted, whilst the applicant accepted that hitting a student was inappropriate that is not to say that the question whether he acted in self defence and in the defence of others as I am satisfied he did, is not a significant factor to be taken into account and in that regard, I am further satisfied that there were ample grounds to justify the applicant's conclusion that it was necessary for him to take such a defensive initiative. 38 Plainly, though, the question then arises whether the applicant's actions are to be regarded in whole or in part as reasonably necessary having regard to the specific circumstances (as the DET policy states) and equally plainly, even if one accepts as I do that the restraint measures employed by the applicant with the exception of the forceful blow to the back of Keith's head, were reasonably necessary, the blow to the back of the head presents almost insuperable difficulties in terms of its justification as I am disposed. 39 Having said that, I should not be taken as being in agreement with Mr Murphy's characterisation of that particular act on the applicant's part as conduct which is so reprehensible of itself as to leave DET with no alternative but to bring the applicant's teaching career to a summary end.

40 In my opinion, the ultimate sanction of dismissal with the additional consequence that the applicant is indefinitely precluded from working in the field of primary, secondary or TAFE education is of such undue severity in the circumstances as to warrant intervention by the Commission and although the Commission may, as it has done traditionally, express its strong disapproval of misconduct such as occurred here, it is as Boland J recently observed in Evans v NSW Police [2005] NSWIRComm 404 at [31], also the function of the Commission to deal with each case on its own facts: because although assault might provide prima facie grounds for removal, circumstances may exist that make removal harsh and that either reinstatement should be ordered or some other remedy applied.

In this case there were as set out above and in the body of evidence generally, such extenuating circumstances as to make the degree of culpability attaching to the applicant's act of punching Keith to the back of the head significantly less than it might otherwise have been and furthermore to make the dismissal harsh both in its consequences for the personal and economic situation of the applicant and in its disproportionality to the gravity of the misconduct (see Byrne v Australian Airlines Ltd per McHugh and Gummow JJ (1995 61 IR 32 at 72). 41 As to the elements of procedural unfairness asserted by Ms Lowson to have tainted the employer's decision to dismiss, it seems to me in view of the conclusion I have reached as to substantive unfairness, that it is not strictly necessary to determine those matters. It should be observed however, that it is apparent from the material (in particular the final report and recommendation of the investigator Ms Halloran) that certain background matters were taken into account in deciding to terminate the applicant's employment and further that those matters which need not be recited here, formed no part of the allegations put to the applicant in the show cause process leading up to his dismissal. 42 Those background matters did not involve the applicant in any disciplinary sanction although each in turn was referred for investigation and duly investigated by EPAC, who self-evidently have the power to impose such sanctions if thought warranted and they clearly did not in any way adversely impact upon the applicant's perceived suitability as a teacher because as observed earlier, he was offered a permanent appointment to the teaching service in spite of them. I can see no reason why the applicant was not given a specific and clearly presented opportunity to comment upon those matters even if, as Mr Murphy submitted, they were only treated by the employer as matters which should have led the applicant to a heightened appreciation of the proper boundaries in physically restraining students. This goes of course to culpability. Whether that submission be accepted or rejected, it remains the case that the background matters had the potential to affect the outcome of the disciplinary process adversely to the applicant and in my opinion, the failure to afford him a proper opportunity to comment upon them deprived him of his entitlement to procedural fairness. It follows that I do not consider the reference to those background matters in DET's response to a request by the applicant's solicitors for particulars of its case against the applicant, to be sufficient to satisfy its obligation to afford procedural fairness (see Exh 30 Annexure AI). 43 As to the investigative approach taken by Ms Halloran on behalf of EPAC, I am not persuaded that there is a proper basis to conclude that the imperfections identified by Ms Lowson and at least in part conceded by Ms Halloran and I refer here, for example, to the delay in conducting formal interviews with witnesses and to the unwarranted prompting of witnesses by the Niland principal during the course of those interviews, amounted to procedural unfairness. By and large as I am disposed, the investigation was conducted with thoroughness and objectivity although as I have concluded it produced an erroneous result. 44 For those reasons and having regard to the authorities to which the Commission was taken as to the prerequisite standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336; Shop Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 and others) I am of the view and find accordingly that the allegation of misconduct involving a punch to the back of the head has been made out. I am also of the view and find accordingly, that the other allegation has not been made out. I further find that the decision of the employer to terminate the applicant's employment to be attended by such a degree of harshness and in turn, unfairness as to warrant the Commission's intervention. 45 Towards the end of her submissions Ms Lowson raised an issue as to the operation of the provisions of the Teaching Services Act 1980 and the Teaching Services Regulation 2001 referrable to the proper procedure for dealing with breaches of discipline allegedly committed by an officer within the meaning of the Teaching Services Act. 46 The Teaching Services Act defines an officer as being a person employed in the Teaching Service other than as a temporary employee. There is no dispute that the applicant was such a person at the relevant time. 47 Ms Lowson contends firstly that Division 6 Part 4 of the Teaching Services Act applies in that it provides for a person, either the Director-General or a prescribed officer to deal with alleged breaches of discipline rather than, as here, the department's investigative arm, EPAC and secondly that s 48 of the Teaching Services Act provides for a person whose probationary appointment is annulled and absent any determination by the Director-General to the contrary, to be deemed to be a temporary employee and to thereby continue to be employed. 48 The first contention proceeds on the basis that failure to apply the provisions of Division 6 of the Teaching Services Act wrongly deprived the applicant of an important procedural right to which he was entitled and which by its more prescriptive requirements, sets up a procedure to be followed in dealing with breaches of discipline which is inherently fairer and more independent than the procedure adopted by EPAC. 49 The second contention proceeds on the basis that had the annulment of the applicant's probationary appointment under s 48(2) of the Teaching Services Act been the only action taken against him, the applicant could have continued on as a temporary employee and would have as a matter of fairness, been in a less disadvantaged position in terms of continuing employment, whilst these and concurrent declaratory relief proceedings (IRC No 5142 of 2005) are on foot. The declaratory relief matter which challenges the validity of the applicant's dismissal is presently adjourned before Kavanagh J pending the outcome of this matter. As it was, not only was the applicant's probationary appointment annulled under s 48(2) of the Teaching Services Act but it was also determined under s 48(4) that he ceased to be employed from the same date, 28 June 2005. 50 Division 6 of Part 4 of the Teaching Services Act relevantly provides: 82 Definition

In this Division, "prescribed officer" means: (a) a person who is the holder of, or is acting in, any position in the Teaching Service or in the Public Service that is prescribed as a position for the purposes of this Division, and

(b) an officer of the Teaching Service, or a member of staff of a Department within the meaning of the Public Sector Employment and Management Act 2002 , who is prescribed as an officer for the purposes of this Division.

83 Breaches of discipline (1) An officer or temporary employee of the Teaching Service who:

(a) commits any breach of this Act or the regulations,

(d) willfully disobeys, or willfully disregards, any lawful order made or given by a person having authority to make or give the order,

(e) is negligent, careless, inefficient or incompetent in the discharge of his or her duties, or

(f) engages in any disgraceful or improper conduct, is guilty of a breach of discipline.

(2) Subsection (1) does not apply in relation to a school principal to the extent that the principal is inefficient or incompetent in the discharge of his or her duties.

84 Procedure for dealing with breaches of discipline

(1) A breach of discipline alleged to have been committed by an officer or temporary employee of the Teaching Service shall be dealt with by the Director-General or a prescribed officer. (2) Subject to this Division, the regulations made under section 100 may: (a) make provision for or with respect to the manner of dealing with alleged breaches of discipline, and

(b) prescribe all matters that are necessary or convenient to be prescribed for carrying out or giving effect to this Division.

85 Punishment for breaches of discipline (1) Where a breach of discipline is dealt with by the Director-General or a prescribed officer in accordance with the regulations and the Director-General or prescribed officer, as the case may be, finds that the officer or temporary employee charged has committed the breach or the officer or temporary employee admits to the Director-General or prescribed officer that he or she committed the breach, the Director-General or prescribed officer: (a) may decide to impose on the officer or temporary employee any one or more of the following punishments, that is to say, may decide to: (i) caution the officer or temporary employee,

(iv) except in the case of a senior executive officer, reduce his or her rate of salary or wages, or

(v) except in the case of a senior executive officer, reduce him or her to a lower classification or position in the Teaching Service, (b) may decide to impose any one of the following punishments, that is to say: (i) where the breach is dealt with by the Director-General, the Director-General may decide to dismiss him or her from the Teaching Service, direct that he or she resign from that service within such period as may be specified in the direction or direct that his or her resignation from that service, if tendered within a period specified in the direction, be accepted, or

(ii) where the breach is dealt with by a prescribed officer, the prescribed officer may decide to recommend to the Director-General that the officer or temporary employee be dismissed from the Teaching Service or that he or she be required or allowed to resign, or (c) in the case of an officer on probation--may decide to annul his or her appointment.

(2) Where a prescribed officer makes a recommendation referred to in subsection (1) (b) (ii), the Director-General may decide to: (a) impose any one of the punishments referred to in subsection (1) (b) (i), or

(b) impose any one or more of the punishments that may be imposed under subsection (1) (a).

(3) Where the Director-General, in the exercise of the powers under this section, directs: (a) that an officer or temporary employee resign from the Teaching Service within a period specified in the direction, or

(b) that the resignation from the Teaching Service of an officer or temporary employee, if tendered within a period specified in the direction, be accepted,

and the officer or temporary employee does not resign or tender his or her resignation, as the case may be, within the period specified in the direction, the Director-General may decide to dismiss that officer or temporary employee from the Teaching Service.

(4) A decision of the Director-General under subsection (1), (2) or (3) or of a prescribed officer under subsection (1) (a) may be given effect to at any time.

(5) Without limiting the operation of section 24 of the Government and Related Employees Appeal Tribunal Act 1980 , where the Director-General decides to direct an officer to resign from the Teaching Service, as referred to in subsection (1) (b) (i) or (2), that decision shall be deemed to be a decision of the nature referred to in section 23 (1) (g) of that Act. (6) The accountant of the Department, upon receiving notice of any fine imposed by the Director-General or a prescribed officer on an officer or temporary employee of the Teaching Service, shall deduct the amount of the fine from the salary, wages or other remuneration payable to that officer or temporary employee. 51 The provisions of s 48 of the Teaching Services Act are as follows: 48 Appointments on probation (1) Unless the Director-General, in a particular case or class of cases, otherwise determines, a person who is not an officer of the Teaching Service when the person is appointed by the Director-General to a position in that service shall be appointed on probation, which shall be for a period of 12 months or such longer period as the Director-General may in any particular case or class of cases determine. (2) The Director-General may: (a) after the expiration of the period of probation for which a person is so appointed, confirm or annul the appointment, or

(b) during the period of probation for which a person is so appointed, extend the period of probation or annul the appointment.

(3) Where the appointment of a person is so annulled, the person shall thereupon cease to be employed under this Division as an officer of the Teaching Service and shall, unless the Director-General makes a determination under subsection (4), be deemed to be a temporary employee of the Teaching Service under this Act. (4) Where the appointment of a person is so annulled, the Director-General may determine that the person shall cease to be employed in the Teaching Service upon a day specified in the determination and the person shall cease to be so employed on that day. (5) A person who, by reason of the annulment of an appointment, ceases to be a member of the Teaching Service under this section is not entitled to appeal to the Government and Related Employees Appeal Tribunal against the annulment or against any determination of the Director-General made under subsection (4). (6) Nothing in section 54 or 85 prevents the Director-General from exercising, at any time, the power to annul an appointment under subsection (2). (7) This section does not apply to the appointment of a senior executive officer to a position in the Teaching Service. 52 Mr Murphy contends by reference to s 48(6) above, that there is specific power under s 48(2) to annul a probationary appointment which is available for use by the Director-General notwithstanding the provisions of s 85(1)(c) and further that the availability of s 48(2) for such a purpose was recognised by the former Industrial Relations Court of New South Wales in Smith v Director-General of School Education (1993) 51 IR 204 per Fischer CJ, Bauer and Hungerford JJ at 212 in the following terms: "....it is clear on the facts that the action taken against the appellant did not follow proceedings taken against him for a breach of discipline under Div 6 of Pt 4 of the Teaching Services Act . And, we would observe, subs (6) of s 48 of the Teaching Services Act nevertheless enables an annulment to be made, at it was here in subs (2) thereof, regardless of any punishment imposed under s 85 for a breach of discipline, such as the annulment of an appointment of an officer on probation pursuant to subs (1)(c) thereof." 53 Moreover, the provisions of s 48 leave open to the Director-General one of two courses which may be followed after a decision has been made to annul. In Smith's case, the operation of the provisions was described at pp 219, 220 in this way: ...that does not mean, in our view, that where such employment is brought to an end by the deliberate decision of an employer, even in the exercise of a statutory power to annul, it may not otherwise be a dismissal from employment. The key point, it seems to us, in such a situation is that the employer may either end the appointment by annulment or continue it by confirmation. That is the statutory position here under s 48(2) of the Teaching Services Act with subs (3) and subs (4) thereof providing for the officer concerned to cease to be employed. It represents, in our plain view of it, a statutory scheme for a person to be sent away from employment (or removed from office) - a dismissal. There was some suggestion that an annulment of an appointment effectively rendered the appointment in some way void so as to be inconsistent with a mere dismissal. Whilst, on one view of it, the word "annul" may have the meaning of "void", other meanings of the word, in our view, are consistent with the concept of dismissal. For instance, the Oxford English Dictionary, 2nd ed (1989) defined "annul" with various meanings and shades thereof as follows: "1. To reduce to nothing, annihilate, put out of existence, extinguish. 2. To put an end or stop to (an action or state of things); to abolish, cancel, do away with. 3. To destroy the force or validity of; to render void in law, declare invalid or of none effect." It is entirely consistent then for an annulment of an appointment to represent the ending of a period of employment, in the same way as does a dismissal. In any event, and even if a dismissal were more limited, the ordinary meaning of "annul" readily comprehends the concept of dispensing with the services of an employee. 54 Thus, the person whose probationary appointment is annulled may, at the discretion of the Director-General or prescribed officer, either become a temporary employee under the deeming provisions of s 48(3) or may cease to be employed under the provisions of s 48(4) of the Teaching Services Act. In this case, the latter option was chosen and it may be readily accepted if I properly understood the gravamen of Ms Lowson's submission, that the consequences for the applicant were thereby significantly more severe than would otherwise have been the case. The submission goes to severity or harshness. 55 As to whether there was proper compliance with the provisions of Division 6 of Part 4 of the Teaching Services Act, Mr Murphy submits that the effect of s 84(1) is not to mandate the use of the disciplinary provisions in all cases where a breach of discipline is alleged and/or found to have been committed but rather, it is to establish the power to take disciplinary action in cases where such power may not otherwise exist. The further effect of s 84(1), Mr Murphy contends, is to vest such power in either the Director-General or a prescribed officer and conversely, the effect of s 84(1) is not to provide that where a breach of discipline is alleged, the breach shall only be dealt with under the disciplinary provisions. Whilst that submission may be accepted insofar as it applies to the use of alternative power to annul (as in s 48(2)), it cannot be accepted, in my opinion, insofar as it applies to the prescribed procedure for dealing with breaches of discipline (s84) as distinct from the punishment for such breaches (s 85). That procedure in the clear and unambiguous words of s 84 (1) of the Teaching Services Act requires the Director-General or a prescribed officer to deal with alleged breaches and that is the point of Ms Lowson's argument as I understood it. 56 At all events and although not specifically addressed in the course of argument by either counsel, it may well be that the Director, Employee Performance and Conduct Unit who was the person who purported to annul the Applicant's probationary appointment and to determine that he cease to be employed was in fact acting in the capacity of a prescribed officer in accordance with the regulations and therefore, in compliance with s 84 of the Teaching Services Act. 57 That is so because the Teaching Services Regulation relevantly provides: 13 "Prescribed officer" for purposes of Division 6 of Part 4 of the Act (1) In accordance with paragraph (a) of the definition of "prescribed officer" in section 82 of the Act, the positions within the Department that contain the following titles are prescribed as positions for the purposes of Division 6 of Part 4 of the Act: Deputy Director-General

General Manager Executive Director

Senior Manager (2) In accordance with paragraph (b) of the definition of "prescribed officer" in section 82 of the Act, any member of staff of the Department of Education and Training who is employed for the purposes of exercising functions which include dealing with breaches of discipline under Division 6 of Part 4 of the Act is prescribed as an officer for the purposes of that Division. (emphasis added) 58 Whether and in the event that there was any lack of compliance with the requirements of Division 6 of Part 4 of the Teaching Services Act such as to constitute procedural unfairness and I should not be taken to have so concluded, it remains the case on the findings made, that the Applicant's dismissal was manifestly, substantively unfair and insofar as there was a failure to afford him a proper opportunity to comment upon certain background matters which were taken into account by the employer, the dismissal was procedurally unfair. 59 Turning then to the question of remedy and as observed at the outset, the applicant presses for the following orders: (i) that Mr Mossfield be re-employed as a probationary teacher with a six month probationary period to fulfil

(ii) that the re-employment be to a school as set out by Mr Mossfield in his application for permanent appointment, or as otherwise modified by him

(iii) that his employment be taken to be continuous

(iv) that he be paid back pay since 30 June 2005 until the date of decision (v) that the Department take whatever steps are necessary to ensure the removal of Mr Mossfield's name from the register maintained by the CCYP

(vi) such further or other orders as the Commission deems fit including in the alternative to the above, an order for compensation at the maximum amount. 60 Neither Ms Lowson nor Mr Murphy addressed on remedy in any detail and it may be assumed, safely I think, that a finding in the applicant's favour as to unfairness would leave the Commission free, as far as the respondent is concerned, to deal with the question of remedy according to its own view on the merits, of the applicant's claim. 61 That being so and with the exception of proposed order (v) which does not appear to me to be within the scope and reach of s 89 of the Industrial Relations Act 1996, I see no reason why the applicant's claim should not be granted. I make orders (i) to (iv) accordingly on the understanding discussed with Ms Lowson during addresses that the amounts earned by the applicant by way of post-termination income may be deducted from the amount paid under order (iv). 62 Before leaving the matter it is clear the employer should give careful and measured attention to the issue raised by proposed order (v) above in the interests of giving effect to the Commission's decision and I make that recommendation. These proceedings are concluded.

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