Fantoni v Secretary of the Department of Education; Secretary of the Department of Education v Fantoni

Industrial Relations Commission (NSW)|2023-09-06

128 IR 37; [2003] NSWIRComm 211 Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201; (1993) 48 IR 396 Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 Master Education Services Pty Ltd v Ferfolia [2009] NSWIRComm 132 Mifsud v Campbell (1991) 21 NSWLR 725 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 Secretary of the Department of Education v Williams [2023] NSWIRComm 1098 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 Toshack v Commissioner of Police [2009] NSWIRComm 31 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 X (a pseudonym) v Secretary, NSW Department of Education [2022] NSWIRComm 1113 Texts Cited: None Category: Principal judgment Parties: Linda Fantoni (Appellant/Cross-Respondent) Secretary of the Department of Education (Respondent/Cross-Appellant) Representation: Counsel: L Andelman (Appellant/Cross-Respondent) M Seck (Respondent/Cross-Appellant) Solicitors: Emery Partners (Appellant/Cross-Respondent) Kingston Reid (Respondent/Cross-Appellant) File Number(s): 2023/00007925, 2023/00020963, 2023/00021021 Publication restriction: 1. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 (NSW), prohibiting: a. the disclosure of the name, address, picture or any other material that identifies, or the doing of any other thing that identifies: i. [name redacted] ii. [name redacted] iii. [name redacted] iv. [name redacted] v. [name redacted] vi. [name redacted] vii. [name redacted] viii. [name redacted] 2. An order pursuant to s 164A(1)(c) of the Industrial Relations Act 1996 (NSW), that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of: i. [name redacted] ii. [name redacted] iii. [name redacted] iv. [name redacted] v. [name redacted] vi. [name redacted] vii. [name redacted] viii. [name redacted] 3. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 (NSW), that access to the Commission file in the matters 2023/7925, 2023/20963 and 2023/21021 is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access. Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 X (a pseudonym) v Secretary, NSW Department of Education [2022] NSWIRComm 1113 Date of Decision: 18 November 2021 16 December 2022 Before: Commissioner Webster File Number(s): 2021/00009266

DECISION

Linda Fantoni is a teacher in the Teaching Service, as defined in s 44 of the Teaching Service Act 1980. With effect from 30 November 2020, the Secretary of the Department of Education ("Secretary") purported to dismiss Ms Fantoni from the Teaching Service on the basis of findings that she had mistreated students in her care. Ms Fantoni appealed that decision pursuant to s 98 of the Industrial Relations Act 1996.
In the course of the ensuing proceedings, the Secretary filed an outline of evidence of a former student of Ms Fantoni which the Secretary anticipated the student would give viva voce at the hearing. Ms Fantoni sought an interlocutory determination that the outline of evidence not be admitted and that the student not be permitted to give evidence at the hearing. In X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 ("Interlocutory Decision"), Commissioner Webster dismissed Ms Fantoni's application.
The matter proceeded to hearing. In X (a pseudonym) v Secretary, NSW Department of Education [2022] NSWIRComm 1113 ("Principal Decision"), Commissioner Webster upheld Ms Fantoni's appeal. However, based on her findings as to Ms Fantoni's conduct, the Commissioner ordered that Ms Fantoni be issued with a warning, be placed on a performance improvement plan and that she be transferred to a role not at the school at which she had been teaching prior to her purported removal ("School").
Ms Fantoni seeks leave to appeal and appeals: 1. the Interlocutory Decision ("Interlocutory Appeal"); and 2. the Principal Decision ("Ms Fantoni's Principal Appeal").
The Secretary seeks leave to cross-appeal and appeals the Principal Decision ("Cross Appeal").

Determination

We have determined: 1. to refuse Ms Fantoni leave to appeal the Interlocutory Decision; 2. to refuse the Secretary leave to cross-appeal the Principal Decision; 3. to grant Ms Fantoni leave to appeal the Principal Decision on two of the grounds on which she relies, but otherwise to refuse leave; 4. to uphold Ms Fantoni's Principal Appeal on those grounds; and 5. to make orders consequential to our findings.
Our reasons follow.

Principles to apply on appeal

Pursuant to s 188 of the Industrial Relations Act, an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
The principles governing the granting of leave to appeal were summarised by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 ("RMS Case") at [10]-[11] and by Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21]. We will not reproduce those passages.
If leave to appeal is granted, an appeal to a Full Bench "is not by way of a new hearing": s 191(1) of the Industrial Relations Act. The Full Bench "cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received": s 191(3).
Each of the Interlocutory Decision and the Principal Decision involved the exercise by Commissioner Webster of discretions conferred on the Commission by the Industrial Relations Act. Assuming leave is granted, for the appeals to succeed it is not enough that the Full Bench might have exercised those discretions differently. In their respective appeals, Ms Fantoni and the Secretary must show that the Commissioner failed to properly exercise the discretions committed to her: RMS Case at [10].
In their [1] written submissions in respect of Ms Fantoni's Principal Appeal, the Secretary provided the following useful summary of the principles to apply to an appeal from a discretionary decision: "7.9 The principles applicable to the appeal of a discretionary decision under the IR Act are well understood and are not re-stated. Indeed, s 191(3) makes clear that the Full Bench must follow the principles applying to appeals from discretionary decision. Relevantly, the note to s 191 states that 'The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal'. This decision refers to the principles of House v The King (1936) 55 CLR 499 at 504- 505: see Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012; 293 IR 187 at [42]-[43]; Coal and Allied Operations Ply Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [18]-[19]. 7.10 In order to demonstrate an appellable error, there must be an error in the decision-making process: Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [51]. It is not enough that the Full Bench may take a different course to the Principal decision-maker at first instance and reach a different conclusion: s 191(3). The Commission must not exercise its discretion by acting upon wrong principle such as by failing to have regard to relevant material, disregarding relevant material or mistaking the facts: House v The King (1936) 55 CLR 499 at 505; Coal & Allied Operations Ply Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21]-[30]. It must be apparent that some error has been made in exercising the discretion, to justify the Full Bench exercising its own discretion in substitution for the decision made at first instance: Coal and Allied Operations Ply Ltd (2000) 203 CLR 194 at [13]-[17]."

The Interlocutory Appeal

The interlocutory proceedings before Commissioner Webster involved a challenge by Ms Fantoni to the Secretary being able to adduce evidence in reply from a particular student. In the Interlocutory Decision, that student was referred to by the pseudonym "Student AB". For convenience and consistency, we will adopt the same pseudonym.
Before Commissioner Webster, Ms Fantoni relied on four grounds on which she asserted that the Commissioner could not, or should not, accept the evidence of Student AB. For the purposes of the Interlocutory Appeal, only one is relevant: that the evidence would amount to the making of new allegations against Ms Fantoni, which she claimed had been determined by the Court of Appeal in Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 ("Marroun") as not being permitted in proceedings under Ch 2 Pt 7 of the Industrial Relations Act.
As it transpired, Student AB was not called to give evidence in the proceedings before Commissioner Webster. This calls into question the utility of the Interlocutory Appeal. As the Secretary submitted in respect of the Interlocutory Appeal: "Ultimately, [Student AB] did not give any evidence in the matter. The issue of weight and use of her evidence, including in respect to whether [it] could be properly characterised as constituting new allegations does not arise. There is no practical utility in granting leave appeal. Engaging in Ms Fantoni's submissions on this issue is entirely hypothetical."
In her oral submissions at the hearing of the Interlocutory Appeal (which was conducted jointly with the hearing of Ms Fantoni's Principal Appeal and the Cross Appeal), Ms Fantoni argued that the utility of the Interlocutory Appeal lay in "correcting the law". She contended that the "substance and practical effect of the evidence" was that the Secretary was levelling new allegations against her, which had not properly been addressed by the Commissioner.
In the Interlocutory Decision, Commissioner Webster stated: "25. Given the basis upon which the respondent intends to rely upon the evidence, the appellant's argument that the respondent is introducing new allegations is unable to be sustained. The task of the Commission remains a determination of whether the particular allegations sustained and relied upon by the original decision-maker… have been made out. Accordingly, I find that the respondent is not making new allegations in these proceedings that require determination for the purposes of the Commission conducting the appeal. 26. As I have decided the Commission is not being asked to consider a new allegation or charge against the appellant, I have found it unnecessary to consider the issue of whether it would be inconsistent with the decision in Marroun to allow an employer to introduce new allegations in the context of a public sector disciplinary appeal. …"
It is clear from these passages that the Commissioner comprehended clearly the basis on which Ms Fantoni sought to rely on Marroun. She determined, based on her findings on the evidence and submissions before her, that it was not necessary to address that argument.
Having regard to these matters, the Interlocutory Decision may be regarded as being confined to the circumstances of this particular case. It does not, as Ms Fantoni sought to argue, stand as authority for the proposition that in public sector disciplinary appeals an employer can raise new allegations against an employee that were not before the original decision-maker. Commissioner Webster expressly did not consider that issue.
We are not persuaded that the issue raised by the Interlocutory Appeal is of such importance that, in the public interest, leave to appeal should be granted. We also consider that the Interlocutory Appeal lacks utility.
For these reasons, we have determined to refuse Ms Fantoni leave to bring the Interlocutory Appeal.

The Principal Decision

The Principal Decision commenced with Commissioner Webster providing the following overview: 1. This is a case about a teacher ('appellant') dismissed from the Teaching Service on 24 November 2020, after being accused of mistreating students in her care. The seriousness of the allegations against the appellant in this matter is compounded by the vulnerability of the young children she has been accused of mistreating, who have complex educational needs, and are deaf or hard of hearing. 2. The appellant's employer, the Secretary, NSW Department of Education ('respondent) terminated her employment on the basis that on occasions during the period 2016 to 2020, in her role as a Teacher (Hearing Support) at the School, the appellant engaged in conduct that could amount to misconduct in that: (1) The appellant used unnecessary and inappropriate strategies to manage the behaviour of Jack Andrews when she: (a) Placed a belt around him when he was seated in a chair (the chair), preventing him from moving off the chair; and (b) Removed Jack Andrews' shoes and socks, preventing him from going outside during designated breaks. (2) On a number of occasions, the appellant engaged in unnecessary and inappropriate physical contact with Jack Andrews when she grabbed and pulled him from the canteen line and from school assemblies. (3) In Term 2, 2019 the appellant placed Ruby Lang outside the classroom in inclement weather conditions, causing her stress and anxiety. … 4. I have found the allegation that the appellant used the unnecessary and inappropriate strategy to manage Jack Andrews' behaviour by removing his socks and shoes as proven. Otherwise, the respondent has failed to establish the allegations of misconduct against the appellant on the balance of probabilities before the Commission. I have allowed the appeal and issued a different disciplinary outcome which will see the appellant returned to a different school, issued with a warning, and placed on a performance improvement plan. My reasons for that outcome follow." (Footnote omitted)
The names of students appearing in the above extract are pseudonyms adopted by Commissioner Webster. With the exception of one witness - Daryl Currie, the Acting Executive Director, Professional and Ethical Standards Directorate in the Department of Education - the Commissioner assigned pseudonyms to all of the witnesses and any student or teacher to whom she had to refer. For ease of comprehension and consistency with the Principal Decision, we have adopted those pseudonyms.
By way of clarification, the date of 24 November 2020 at [1] of the Principal Decision is the date of the letter from Mr Currie to Ms Fantoni informing her that she was dismissed from the Teaching Service. The letter stated that the dismissal was "effective from the receipt of this letter". Ms Fantoni's last day of service was 30 November 2020.
In the Principal Decision, Commissioner Webster considered each of the allegations against Ms Fantoni. In the order in which she did so, the Commissioner: 1. concluded that the Secretary had not discharged their onus to prove, on the balance of probabilities, the allegation numbered (3) at [2] of the Principal Decision ("Allegation 3"). The Commissioner stated that she was not persuaded on the evidence that the conduct alleged occurred: at [34]; 2. stated that there was no reliable evidence that Ms Fantoni engaged in the conduct alleged in the allegation numbered (1)(a) at [2] of the Principal Decision ("Allegation 1(a)") and that the Secretary had not discharged their onus of proof to establish the allegation on the balance of probabilities: at [89]; 3. accepted that the Secretary had made out the allegation numbered (1)(b) at [2] of the Principal Decision ("Allegation 1(b)"): at [103]; and 4. determined that the Secretary had not proven, on the balance of probabilities, the allegation numbered (2) at [2] of the Principal Decision ("Allegation 2"): at [124].
In consequence of her findings in respect of Allegation 1(b), Commissioner Webster determined the proceedings as follows: "135. I make the following orders: (1) The appeal is allowed. (2) The appellant be issued with a written warning in respect of [Allegation 1(b)]. (3) The appellant be placed on a performance improvement plan, which will be designed to addresses the appellant's understanding of the policies and procedures of the respondent, including in respect of Behaviour and Risk Management Plans; and (4) The appellant be transferred to a role not at the School."

The Cross Appeal

Through the Cross Appeal, the Secretary seeks to have the orders made by Commissioner Webster in the Principal Decision set aside, and for Ms Fantoni's application under s 98 of the Industrial Relations Act to be dismissed. The grounds on which the Secretary relies are set out in their Application for Leave to Cross Appeal and Appeal as follows: "1. The Commissioner erred in finding that there was insufficient evidence to establish Allegation 1(a), being that 'On occasions between 2016 to 2020, the Appellant used unnecessary and inappropriate strategies to manage the behaviour of Jack Andrews when she placed a belt around him while he was seated in a chair, preventing him from moving off the chair.' Particulars The Commissioner erred in: a. not finding that there was sufficient evidence that the Cross-Respondent had engaged in the conduct comprising Allegation 1(a) based on her own admission that she had done so; b. not finding that the Cross-Respondent's evidence was contradictory, inconsistent and/or illogical and therefore her evidence regarding the use of the restraint was not reliable; c. finding that the evidence contained in the record of interview with the student, Jack Andrews was not reliable; d. finding that the evidence of Amanda O'Reilly was unreliable and thereby failed to give proper weight to her evidence that: i. the restraint was used as 'a knee jerk reaction out of frustration and not knowing what else to do'; and ii. the restraint helped Jack Andrews 'focus' on his schoolwork, e. finding that the evidence of Jennifer Reid was unreliable and thereby failed to give proper weight to her evidence of the occasion she says she witnessed Jack Andrews being restrained in the chair. 2. The Commissioner erred in finding that there was insufficient evidence to establish Allegation 3, being that 'In Term 2, 2019 the Appellant (respondent to this cross appeal) placed the student, Ruby Lang, outside the classroom in inclement weather conditions, causing her stress and anxiety.' Particulars The Commissioner erred in: a. finding that the conflicts between the evidence of two witnesses, Jennifer Reid and Ashley Dickson, lead to the conclusion that that [sic] the evidence of Jennifer Reid was unreliable; b. failing to give any weight on the Cross-Respondent's evidence that she engaged in a practice of encouraging the Ruby Lang [sic] to go outside; and c. failed to give any weight on the existence of contemporaneous evidence about the matter (being a diary entry of the Assistant Principal dated 5 June 2019). 3. The Commissioner did not afford procedural fairness to the Cross-Appellant (respondent in first instance) in failing to express the 'serious concerns' about Mr Andrews' reliability and provide it with an opportunity to address the same. 4. ln allowing the appeal which had the practical effect of setting aside the order that the Cross-Respondent be dismissed, the Commissioner failed to take into account material considerations which weighed in favour of the Appellant not continuing employment with the Cross-Appellant which evidenced that she posed a significant potential risk to children in the classroom, including that: a. the Cross-Respondent gave inexplicable and troubling contradictory and conflicting evidence about the use of a restraint on the student, Jack Andrews; and b. the Cross-Respondent had a propensity to conceal the use of the restraint on the chair and had not recorded and undertaken a proper assessment of the appropriateness of its use on children contrary to the Cross-Respondent's practices." (Italics in original)
The Secretary filed written submissions in support of their application for leave to bring the Cross Appeal. They included the following contentions: "2. This cross-appeal squarely raises important questions going to the Commission's obligation to give 'paramount consideration' to the 'protection of children' under s 5A of the Teaching Services Act 1980 (NSW) (TS Act) in dealing with the appeal and making any determination. It also raises issues going to the content of the Commission's obligations, in conducting a public sector disciplinary appeal, to consider carefully and weigh up the nature, quality and probative value of conflicting evidence of teachers and students, concerning events spanning a lengthy period of time involving the assessment of credit of witnesses. It was incumbent upon the Commissioner to resolve these factual contests. A failure to do so properly is a serious error. … 4. Issues of importance and general application arise in this appeal and, in any event, leave should be granted. Firstly, ground 1 of the notice of appeal raises issues of general importance in the sense that it goes to the weight and use the Commission can and ought to apply to evidence that an applicant has been dishonest during the proceeding. In particular, whether the Commission is limited to only treating evidence of that kind as going to credibility or whether it can be considered an implied admission of guilt and given probative weight. If the Decision is not quashed, it could be seen as precedent for the proposition that the Commission is significantly hampered in this respect. 5. Ground 1 also raises issues of general importance in so far as it has implications for evidence from children/students in proceedings before the Commission. If the Decision is not quashed, it could be viewed as precedent for the proposition that unless students are made available for cross examination, no weight will be given to their evidence. 6. Grounds 1, 2 and 3 raise issues regarding the proper administration of justice. These grounds go to the Commission's treatment of evidence that is given from people who are deaf or hard of hearing. At first instance, the Commissioner placed no weight on any person's evidence who is deaf or hard of hearing on the basis of unreliability. The reasons for not placing any weight on their evidence was due to matters that would be typical in evidence from people who are deaf or hard of hearing. The matter raises serious questions about whether it is in the interests of justice that such matters should be permitted to go to their reliability. 7. Ground 4 raises issues of importance that go to general application. At first instance, the Commissioner accepted that the paramount consideration is the protection of children: s 5A of the Teaching Service Act 1990. This ground of appeal asks what role this plays in the context of determining the appropriate disciplinary sanction. The Commissioner accepted the Appellant - a teacher of young students - had been disingenuous with the Department and this Commission about the circumstances of her restraining children. However, the Commissioner had no regard to this fact in determining the appropriate sanction. Unless the Decision is quashed, there is a risk it will be seen precedent for the proposition that s 5A is rendered nugatory in the context of public sector disciplinary appeals." (Emphasis in original, footnotes omitted)
For the reasons which follow, we are not persuaded that leave to appeal should be granted.

Ground 1

Ground 1 of the Cross Appeal challenges Commissioner Webster's findings of fact. Leave to appeal will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 at [5], adopted in the RMS Case at [11].
Further, the Full Bench would only intervene if it were satisfied that the finding was clearly wrong or not reasonably open on the evidence: Abboud v NSW Department of Education (1999) 92 IR 32 at 43, quoted with approval in Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37; [2003] NSWIRComm 211 at [98]; Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201; (1993) 48 IR 396 at 406.
At [69] of the Principal Decision, the Commissioner stated that Ms Fantoni "denied the highchair allegation and gave no evidence to support it". (The "highchair allegation" is a reference to Allegation 1(a).) This finding is at the heart of particular (a) to ground 1. The Secretary contends that the Commissioner's statement was in error. They submitted that "the evidence shows that Ms Fantoni admitting placing a belt around [Jack] when he was seated in the highchair, preventing him from moving off the chair and did so on at least one occasion to manage his behaviour in 2016".
In relation to particular (b) to ground 1, the Secretary submitted: "Although the Commissioner accepted Ms Fantoni had given disingenuous and incredible evidence on key issues in the proceedings, the Commissioner did not accept that her dishonesty in relation to key issues proved that Ms Fantoni was untruthful in denying that she had engaged in the misconduct in relation to the highchair. The Department submits the Commissioner erred in so doing."
The Secretary correctly described the evidence before Commissioner Webster, that Ms Fantoni had admitted to placing a belt around Jack when he was in the highchair. However, Allegation 1(a) was not limited to the assertion of those facts. The substance of the allegation was that in taking that action, Ms Fantoni engaged in "unnecessary and inappropriate strategies" to manage Jack's behaviour. Ms Fantoni did not admit to that allegation. This was a distinction recognised by the Commissioner.
In the Principal Decision, Commissioner Webster stated: "87. However, the appellant did not give evidence to support the allegation that she engaged in conduct that could amount to misconduct in that she used 'unnecessary and inappropriate strategies to manage the behaviour of the Jack' when she placed a belt around him while he was seated in a chair, preventing him from moving off the chair. The appellant's account of the 2016 incident can reasonable [sic] be summarised as a crisis. Mr Currie conceded, if true, the event would not be an example of the highchair being used to manage Jack's behaviour and would in those circumstances be 'understandable'… 88. I agree with the respondent that the appellant's account with respect to the 2016 incident was not credible …However, I reject the submission that the Commission should conclude, that because the appellant's account of the 2016 incident is not believable, she engaged in the highchair allegations. Again, this is akin to arriving at a conclusion that the allegations are made out based on 'indirect inferences'."
At the hearing of the appeals, the Secretary traversed in some detail Ms Fantoni's evidence before Commissioner Webster. They drew our attention to the observation of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [196] that "lies are clearly relevant to credit, but in some circumstances may also be evidence of a consciousness of guilt", and his Honour's description at [199] of the matters to be satisfied "before a lie can be considered to constitute corroboration".
The Secretary submitted at the hearing of the appeals: "Chief Commissioner, can I just bring those issues about each of those aspects of Ms Fantoni's credit together into a conclusion? As I indicated beforehand, Commissioner Webster's consideration of credit was mainly focussed on the 2016 incident, it didn't take into account what we say are inexplicable and significant discrepancies as to the time and circumstances of the use of the chair. In our respectful submission, those constitute lies which are not only relevant to Ms Fantoni's credit, but can be used to demonstrate a consciousness of guilt of the particular allegation if there is no appropriate explanation or consistent with a non-inculpatory position. … Now, dealing with para 87 of Commissioner Webster's decision, she says there is no evidence to support the allegations. And we would say being untruthful itself, is evidence capable of corroborating guilt. And in my respectful submission, that is something, given the totality of the evidence, Commissioner Webster should have found if she had given consideration to all the inconsistencies that we had identified."
Counsel for the Secretary had the following exchange with the Full Bench: "SECK: …In other words, there's a consciousness of guilt associated with Ms Fantoni telling a number of significant and material lies evident in the inconsistencies and implausibilities in her evidence which would allow Commissioner Webster to form the conclusion that the allegation is made out, and that's the way we would put it. CONSTANT CC: And you put that to Commissioner Webster, but she rejected it. SECK: She rejected it. And, in our respectful submission, she was wrong in rejecting it. And, that's because she doesn't actually go through a lot of the inconsistencies we've just identified. She does identify inconsistencies in a general sense, but in order to give it its full weight and understand whether or not it gives rise to a consciousness of wrongdoing, and an implied admission of guilt, you really have to go through the detail of it to understand how these material variances in Ms Fantoni's evidence, which are inexplicable, accrue to demonstrate that she must be improvising an explanation to conceal some wrongdoing.
To a degree, these submissions challenge the adequacy of the Commissioner's reasoning. It is well-established that it is "plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected": Basten JA in Container Terminals Australia Pty Limited v Huseyin [2008] NSWCA 320 at [4] citing, inter alia, Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA, Clarke JA and Hope AJA agreeing).
In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "152. While, as Basten JA explained in Lo v CCSR, '[i]f a decision-maker who gives reasons for a decision makes no reference to a particular matter, it may be inferred that he or she disregarded it, either deliberately or through inadvertence', such an inference should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. Indeed, it has been said that '[i]t is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal's] attention.' The Tribunal is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with." (Footnotes omitted)
In the same case, Emmett AJA made the following observations: "227. While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration."
It is clear from a reading of the Principal Decision as a whole that Commissioner Webster carefully considered the evidence put before her, from Ms Fantoni and others, and formed views as to the reliability of that evidence. The Commissioner's finding that Ms Fantoni's evidence regarding the "2016 incident" was not credible was confined to that evidence in the context of Allegation 1(a). She did not in terms find that Ms Fantoni was not a witness of truth whose evidence in all respects, that is, in the proceedings generally, should be disregarded.. We are mindful that the Commissioner had the benefit of observing Ms Fantoni give evidence, whose testimony extended over two days of the hearing.
To overcome credit findings, appellants must point to "incontrovertible facts or uncontested testimony" demonstrating error or that the findings were "glaringly improbable or contrary to compelling inferences": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [26]-[29], quoted with approval in Master Education Services Pty Ltd v Ferfolia [2009] NSWIRComm 132. Appellate courts should be reluctant to overturn findings based on assessments of credit and demeanour, save in the clearest of cases: Toshack v Commissioner of Police [2009] NSWIRComm 31 at [35].
The Cross Appeal does not rise to the standard described in these authorities. Rather, it cavils with the Commissioner's rejection of the submissions advanced by the Secretary below, without demonstrating appellable error in her doing so. While it would have been open to the Commissioner to accept the position put by the Secretary, the evidence did not compel her to do so.
It follows that there is no basis for the Secretary's submissions on leave that, unless quashed, the Principal Decision could be seen as precedent for the proposition that the Commission is "significantly hampered" in considering whether evidence of dishonesty during proceedings may be given probative weight as an implied admission of guilt, as opposed to merely going to credibility.
Particular (c) to ground 1 relates to Commissioner Webster's decision not to afford any weight to a record of an interview between Jack Andrews and a Departmental investigator, in respect of which the Secretary had tendered both an audio recording and transcript.
That evidence was explored in some detail by the Commissioner at [36]-[39] of the Principal Decision. The Commissioner concluded: "40. Jack's account of events in the interview were not as clear-cut as the respondent's submissions above suggest. During the interview he was often asked leading questions, the same questions more than once, and his answers were frequently non-responsive. For example, when asked about the highchair, Jack responded with information about a new gold chair which he indicated he preferred. At certain stages of the interview, Ms Reid and the interpreter seem confused whether Jack was responding with respect to the highchair or a taxi restraint… 41. I have afforded no weight to the interview in determining whether the highchair allegation can be substantiated. I have decided this is the appropriate course for the following reasons: (1) The respondent did not file any evidence to assist the Commission in forming a view as to the reliability of the account of Jack, given his age and developmental challenges. I have serious concerns about the reliability of Jack's account given the evidence of his intellectual capacities, and the contents of the transcript itself. (2) The interview was conducted with the assistance of a translator, with Ms Reid in attendance as a support person. Putting aside the fact that Ms Reid is also an important witness in these proceedings, there is no evidence of Jack having the contents of the transcript translated back to him or that he agreed with its contents. (3) It would be unfair to the appellant to accept the account of Jack in determining the allegations made against her without having an opportunity to test the reliability of his responses in the interview through cross-examination. I am particularly concerned about this in view of the issues I have identified in respect of the interview and Jack's responses as set out above at [40]."
The Secretary contended that the Commissioner erred in the following respects: 1. there was no evidence regarding Jack's "developmental challenges" or "intellectual capacities" which would lead to any concerns about the reliability of his evidence; 2. the decision to afford no weight to the evidence is "contrary to the general legal position that it is presumed that every person is presumed to be competent to give evidence unless shown otherwise", as reflected in ss 13-19 of the Evidence Act 1995; 3. nothing on the face of the transcript of the interview undermines the reliability of its content; 4. any concerns regarding Ms Reid's participation in, or conduct during, the interview were never put to her; 5. it was unnecessary for the transcript of the interview to have been read back to Jack; 6. the inability of Ms Fantoni to cross-examine Jack does not support the evidence being afforded no weight. There was no reason why the Commissioner would not have adopted the approach taken in criminal proceedings, in which it is "common that children give their answers by pre-recorded interview". Such evidence is not the subject of cross-examination but is given appropriate weight. Further, the Commissioner did not consider the potential harm to Jack of "exposing him to hostile cross-examination"; and 7. the Commissioner failed to have regard to the fact that the evidence "was consistent with much of the evidence before the Commission and this tended to support its reliability".
Ms Fantoni submitted on appeal: "67. The record of interview is replete with the errors set out in the Bench Book [for Children Giving Evidence in Australian Courts] on taking evidence from children and the respondent's Investigation Policy. 68. Firstly, Ms [Reid], one of the two main instigators of the complaint and a critical witness in the investigation, actively questions [Jack] throughout the record of interview and is repetitive in her questioning. 69. Secondly, at the time of the interview, another investigation was taking place about a safety seat buckle on a seat in a taxi. Clearly [Jack] was confused about the seat buckle he was being asked about. It is of note that the seat buckle on the high chair was fully adjustable, whereas the seat belt cover introduced in the transport vehicle had the effect of preventing [Jack] from removing the belt. 70. As at March 2020, [Jack] was in year 5, aged 9. He was repeatedly asked about matters that occurred four years ago when he was 6 years of age by a person (Ms [Reid]) who he was emotionally attached to and likely sought to please. The questions were leading. 71. Ms [Reid] asks [Jack]: '[Jennifer's] just saying, there was a brown chair and it had - Linda Fantoni had it, and it was put - do you remember that chair?' Ms [Reid's] questions and interventions are regular and pointed. 72. The recording of the interview of [Jack] demonstrates that for most of the interview, [Jack] was not directly responsive to the questions asked of him. Much of the evidence given concerning seatbelts and restraints is in regard to the taxi. [Jack's] interview is not signed and no attempt was made to translate the contents of the interview to him. 73. A further reason why [Jack's] evidence is unreliable is that when he was asked if Ms Fantoni took off his shoes, he answered: 'but Linda didn't take my shoes off' The undisputed evidence is that Ms Fantoni did take off [Jack's] shoes." (Footnotes omitted)
The Full Bench has listened to the audio recording of the interview and read the transcript. Having done so, we consider that there is some force to Ms Fantoni's submissions. In particular, Jack's answers were not all responsive to the questions put to him. There is occasional confusion as to whether Jack's answers to being placed in "the brown chair" (being the highchair referred to in Allegation 1(a)) related to that chair at all - he made reference to a gold chair, a blue chair and a taxi seat - or to something else entirely. We consider that there was a basis on which Commissioner Webster could conclude at [40] of the Principal Decision that "Jack's account of events in the interview were not as clear-cut" as the Secretary had sought to suggest to her.
During the hearing of the appeals, counsel for the Secretary had the following exchange with the Full Bench: "SECK: So, it certainly formed part of the evidence. For the purposes today it's only going to be necessary for me to take the full bench to the written transcription of the interview. The full bench would have read that we've extracted key parts of it in our submissions in relation to the cross-appeal. But, given there is a question about whether or not [Jack's] evidence should be given any weight, and that was the finding made by Commissioner Webster at para 41 of the decision, we would say at least one aspect of whether or not it should be given any weight is the tone, and we would say evident distress, that [Jack] was communicating during the interview. We would invite the full bench to listen to that. MUIR C: You're inviting us to listen to it privately to understand the distress that a child is experiencing in interview, without you taking us through it? SECK: The answer is yes, and it's merely to save time because I expect that the full bench will listen to it and form their own view on the issue. …"
In their written submissions on the Cross Appeal, the Secretary "urged" the Full Bench to listen to the audio recording of the interview "because the tone, manner and volume of [Jack's] answers revealed that the degree of stress and anxiety he was suffering in recounting being placed in the highchair".
In her written submissions on the Cross Appeal, Ms Fantoni contended: "65. … People who are deaf can sound different to people who are not deaf when they speak; this is not controversial. The sound and modulation of intonation of the speech is different to people who are not deaf. There was some evidence from Ms [Dickson] that when [Jack] signs he also makes sounds. 66. The sound of [Jack's] voice in the recorded interview is loud, strained and shrill. The respondent submits, without any evidence but based purely on [Jack's] demeanour, that he was distressed because he was asked to recall Ms Fantoni's conduct against him. There is no evidence as to [Jack's] state of mind - that is, whether he was distressed or why he was distressed."
Having listened to the audio recording of the interview, and having regard to the submissions of both the Secretary and Ms Fantoni, we do not consider that it is possible to draw firm conclusions as to Jack's state of mind during the interview. Jack was verbal from an early stage of the interview. The volume, tone and pitch of his voice changed at different times, not only when he was purportedly describing being placed in the highchair. We are unable to conclude that Jack displayed "evident distress" at recounting his experience at being placed in the highchair.
We note two further matters in particular regarding the Secretary's submissions. First, in the Principal Decision the Commissioner made the following observations, which are not the subject of appeal: "37. At the time of the interview, Jack was in Year 5, aged 10 years. Jack is profoundly deaf, with vision impairment. When he commenced at the School, he was observed as having significant language and development delay. Several witnesses attested to Jack having complex and challenging behavioural issues, particularly when he started at the School. He was described as acting aggressively towards others, it not being unusual for him to work 'himself into a heightened emotional state', and engaging in absconding behaviour…"
In her written submissions on appeal, Ms Fantoni drew our attention to the evidence before the Commissioner to the effect that Jack had been diagnosed with Reflective Detachment Disorder and that in 2020 he had anxiety, depression and was possibly taking medication for Attention-Deficit/Hyperactivity Disorder. Ms Fantoni also made reference to records of behavioural problems with Jack in 2019 and 2020. This evidence is consistent with the Commissioner's observations at [37] of the Principal Decision.
It follows that the Secretary's contention that there was no evidence regarding Jack's "developmental challenges" is not accurate. We will return to the question of Jack's intellectual capacity in our consideration of ground 3 of the Cross Appeal.
Second, we would not assume that cross-examination of a witness, particularly a child, would necessarily be "hostile". The Secretary apparently perceived no such concern when they intended to call Student AB to give evidence.
We consider that the Commissioner's conclusions as to the reliability of the evidence were open to her on the material before her. We are not persuaded that particular (c) of ground 1 of the Cross Appeal discloses error.
In the context of the matters we have addressed above, the Secretary's contention that leave to appeal ought to be granted as the Principal Decision "could be viewed as precedent for the proposition that unless students are made available for cross examination, no weight will be given to their evidence" does not bear scrutiny. The inability for Ms Fantoni to cross-examine Jack was simply one of a number of bases on which the Commissioner elected not to afford weight to the evidence.
The Secretary's submissions on leave, reproduced at [28] above, also included the contentions that the Commissioner placed no weight on any person's evidence who is deaf or hard of hearing on the basis of unreliability; that the reasons for not placing any weight on their evidence were due to matters that would be typical in evidence from people who are deaf or hard of hearing; and, the matter raises serious questions about whether it is in the interests of justice that such matters should be permitted to go to their reliability.
The second of these contentions is mere assertion. The submissions do not, in any event, properly reflect the analysis conducted by the Commissioner as to why she found a particular witness' evidence to be unreliable. It is certainly not the case that the Commissioner gave no weight to the evidence of Jack's interview simply because he was deaf or hard of hearing.
Particulars (d) and (e) of ground 1 of the Cross Appeal challenge findings by the Commissioner that the evidence of Amanda O'Reilly and Jennifer Reid was unreliable. Both witnesses were employed at the School as School Learning Support Officers and had been called to give evidence by the Secretary.
Again, we are mindful that the Commissioner had the advantage of observing the witnesses as they gave their oral testimony. On appeal, the Secretary sought to discount that factor by submitting that the Commissioner's findings of credit "were primarily based on written evidence, and inconsistencies or [implausibilities] [sic] contained in that evidence, and not observations made of witnesses in the witness box based on demeanour, body language, et cetera". We see nothing in the Principal Decision to suggest that the Commissioner's assessment of a witness' reliability was so limited. We observe that the examination of the parties' witnesses before the Commissioner occupied five days.
The Commissioner examined Ms Reid's evidence in respect of Allegation 1(a) at [48]-[50] of the Principal Decision. At [51] she determined that Ms Reid was not a credible witness whose evidence could be relied on, and set out her reasons for forming that view. The Commissioner conducted a similar exercise in relation to Ms O'Reilly's evidence at [53]-[67] of the Principal Decision. She concluded at [68] that Ms O'Reilly's evidence was unreliable, and that she was "unable to accept [Ms O'Reilly's] account of the use of the highchair".
In sum, the Secretary's submissions in respect of particulars (d) and (e) to ground 1 of the Cross Appeal do not rise higher than expressing disagreement with the Commissioner's findings. They set out the Secretary's contentions as to why the Commissioner ought to have found differently, but they do not rise to the level articulated in the cases referred to at [43] above to demonstrate appellable error.

Ground 2

This ground relates to the Commissioner's determination that there was insufficient evidence to establish Allegation 3. It is a challenge to the Commissioner's findings of fact. We repeat the observations made at [30] above.
At [24]-[30] of the Principal Decision, Commissioner Webster explored the evidence of Ms Reid in connection with Allegation 3. She observed inconsistencies between that evidence and that of Ashley Dickson, a teacher at the School. At [31] she recorded her finding that the evidence of Ms Reid in connection with Allegation 3 was unreliable. It is this finding that is at the heart of particular (a) to ground 2.
This raises similar issues to those with which we have dealt in respect of particulars (b), (d) and (e) of ground 1 of the Cross Appeal. We reiterate our observations at [43] above.
The Secretary's written submissions on appeal included the following contentions: "7.3 Allegation 3 concerned a student named [Ruby Lang], a deaf student in Ms Fantoni's classroom. It was alleged that Ms Fantoni had unnecessarily placed [Ruby] outside the classroom in inclement weather conditions in term 2, 2019, causing her stress and anxiety. Two witnesses for the Department (Ms [Reid] and Ms [Dickson]), who worked in the classroom next to Ms Fantoni's classroom, gave evidence that they observed [Ruby] outside her classroom crying. Ms [Dickson] was the teacher in the classroom next to Ms Fantoni's. Ms [Reid] was the SLSO in Ms [Dickson's] classroom. 7.4 It is to remembered Ms [Reid] is a profoundly deaf person. Her preferred language for communication is Auslan. She can communicate in the spoken word, but she is more likely to ask clarifying questions when she does so. This is important context in understanding her evidence. Ms [Reid] gave evidence in her witness statement that she asked [Ruby] 'What's wrong?' and [Ruby] 'pointed to the door and signed, "I have been told to sit outside."' [emphasis added]. In cross-examination, Ms [Reid] clarified that, when she said 'signed' in her witness statement, she did not mean to convey that [Ruby] used Auslan to inform Ms [Reid] that she had been told to sit outside but rather that [Ruby] used her body language to point at the door when Ms [Reid] passed her and on this basis that she formed the impression that [Ruby] had been told to sit outside. That is, Ms [Reid] had used the word 'signed' in her witness statement to indicate that [Ruby] had used her hands and body language to signal her answer. 7.5 On the basis of this apparent minor confusion about the use of the word 'signed' in her witness statement, the Commissioner found at Decision [30] that Ms [Reid's] inconsistency to be 'concerning' as she found that: 'she was willing to give different, yet definite evidence about the same events without a clear reason provided for that change'. On this basis alone, the Commissioner found Ms [Reid's] evidence to be unreliable. 7.6 The Commissioner's finding that Ms Strachan to be an unreliable witness based on such a trivial and explicable misunderstanding was unwarranted." (Emphasis and italics in original)
The Secretary's written submissions also included extracts from the oral evidence in the proceedings, which the Secretary said explained the confusion as to what Ms Reid meant by the use of the word "signed" in her written evidence. They contended that the Commissioner failed to consider that evidence.
We do not agree. At [29] of the Principal Decision, the Commissioner noted "Ms Reid's evidence of how she came to give her statement in the proceedings, in circumstances where she required her son to explain the meaning of some of the words and it had not been formally translated to her prior to her signing it". At [30] she referred to Ms Reid's "evidence under cross-examination that she did not understand some words in the statement". (We observe that the Commissioner referred to "the appellant's evidence under cross-examination", but in context it is to be read as a reference to Ms Reid's oral testimony.) We are satisfied that the Commissioner had regard to Ms Reid's evidence as to the confusion surrounding the words used in her written evidence.
The Secretary also sought to challenge the Commissioner's process of reasoning in making the finding regarding Ms Reid's reliability. The Secretary submitted: "Despite seemingly accepting Ms [Dickson's] account, the Commissioner then perversely rejected Ms [Dickson's] evidence on the basis that she too is said to be an unreliable witness: Decision [112]. Ultimately, this meant that each of the witnesses who gave evidence of direct observations were found to be unreliable and their evidence rejected. In effect, the Commissioner used Ms [Dickson's] evidence to impugn Ms [Reid's] credit and then rejected the same evidence of Ms [Dickson] as being unreliable. This circular form of reasoning was incoherent and therefore erroneous."
At [112] of the Principal Decision, Commissioner Webster stated that she had "serious concerns about the reliability of Ms Dickson's account" of the incident referred to in Allegation 2. As that account was not related to Allegation 3, it was not necessarily "the same evidence" that the Commissioner was rejecting. The Commissioner made no finding that, in terms, Ms Dickson was not a witness of truth and that her evidence was wholly unreliable.
While the Secretary may regard the Commissioner's finding regarding Ms Reid's reliability as "unwarranted" based on a "trivial and explicable misunderstanding", it does not rise to the level of appellable error. To adopt the language of Fox v Percy, the finding was not "glaringly improbable or contrary to compelling inferences".
Particulars (b) and (c) of ground 2 contend that Commissioner Webster failed to give any weight to evidence that, the Secretary submits, supported a finding that Allegation 3 had been established. Their submissions in this regard are summarised in their written submissions as follows: "7.22 The Department submits that the Commissioner's finding that the allegation is not established on the evidence is wholly unreasonable and contrary to the evidence. There are two direct witnesses who saw [Ruby] outside on a cold day crying. There is an extract from a diary which corresponds to this, citing 5 June 2019. Ms Fantoni admitted she engaged in a practice of sending children outside. To find that this is insufficient evidence, on the balance of probabilities, was an error. The Commissioner erred in finding this allegation was not established."
The "two direct witnesses" referred to by the Secretary were Ms Reid and Ms Dickson. We have already considered the Commissioner's assessment of their evidence.
The diary extract to which the Secretary referred was from the diary of the Assistant Principal of the School. It is dated 5 June 2019 and appears to record a concern raised by Ms Dickson that Ruby had been "put outside the room in cold" and that when Ms Reid tried to let her back in Ms Fantoni stated that Ruby had been "naughty".
Commissioner Webster made reference to that diary extract at [33] of the Principal Decision. To that extent, she clearly had regard to it. Despite the terms of particular (c), the Commissioner made no statement to the effect that she afforded the extract no weight.
More significantly. the Secretary's submissions attempt to recast the allegation made against Ms Fantoni and as a result impugn the Principal Decision from a false premise. The Commissioner directly addressed the substance of Allegation 3 as follows: "31. For these reasons, I have found the evidence of Ms Reid with respect to the classroom exclusion allegation to be unreliable. I attribute no weight to the evidence of Ms Dickson of what Ms Reid told her about why Ruby was outside. What Ms Dickson said Ms Reid told her, is inconsistent with what Ms Reid says occurred in both her statement and under cross-examination. The evidence of Ms Dickson that she observed Ruby crying outside of the appellant's classroom is an insufficient basis to make out the classroom exclusion allegation. It is of course concerning that Ruby would be outside in inclement weather conditions, upset without an adult supervising or comforting her, without appropriate clothing, irrespective of how she came to be there. However, there could have been a range of reasons why Ruby was outside and crying and there is no reliable evidence that this occurred because the appellant 'placed her there' for reasons that were exclusionary or inappropriate." (Emphasis added)
The gravamen of Allegation 3 was that Ms Fantoni had "placed Ruby Lang outside the classroom". The evidence might have supported a finding that she had done so. However, that is not enough to establish appellable error. The Commissioner's finding was reasonably open on the evidence before her.

Ground 3

Ground 3 of the Cross Appeal is a further challenge to the Commissioner's decision not to afford weight to the transcript of the interview between Jack Andrews and the Departmental investigator. It is directed particularly towards the Commissioner's reliance on Jack's "intellectual capacities" in making that determination (at [41(1)] of the Principal Decision, reproduced at [47] above).
The Secretary's written submissions in respect of ground 3 of the Cross Appeal included the following: "8.2 As detailed above in relation to the First Appeal Ground, there was no evidence about [Jack's] intellectual capacities before the Commission that warranted any concerns about his reliability. The Decision also does not explicitly state what evidence was relied on that went to [Jack's] intellect. In closing written submissions, Ms Fantoni made no reference to [Jack's] 'intellectual capacities' as a basis for impugning the reliability of his interview. In light of the significance of this finding, the Commissioner was obliged to raise this concern with the Department in order to give it an opportunity to respond. If it had been given such an opportunity, it would have pointed to the absence of such evidence, the presumption of competency and potentially obtained evidence from experts to refute the Commissioner's assumptions, or allay concerns, about his intellectual capacity and the impact on his reliability. 8.3 The Commissioner's denial to accord procedural fairness manifestly affected the outcome of Allegation 1(a) and the decision to grant the appeal."
We have already observed that at [37] of the Principal Decision, Commissioner Webster identified that Jack had "significant language and development delay" and that there was evidence of Jack "having complex and challenging behavioural issues". These statements are consistent with the evidence to which Ms Fantoni referred us on appeal, addressed at [56] above.
We have not been directed, though, to any evidence that Jack lacked intellectual capacity to give evidence or that this was a matter raised in the proceedings below, whether by Ms Fantoni or the Commissioner. It is unclear what "evidence of [Jack's] intellectual capacities" the Commissioner was referring to at [41(1)] of the Principal Decision.
We also accept the Secretary's submissions that they were not given the opportunity to be heard on the question of Jack's intellectual capacity, or on the Commissioner's suggestion that it was incumbent on the Secretary to file evidence "to assist the Commission in forming a view as to the reliability of the account of Jack".
On the basis of the matters set out at [85]-[86] we find that the Commissioner erred. However, we do not consider that these errors warrant the Secretary being granted leave to appeal.
The Commissioner's reservations about Jack's intellectual capacities formed only part of the reasons for her deciding to afford the evidence no weight. Significantly, "the contents of the transcript itself" caused the Commissioner concern as to its reliability. In this regard, we note our observations above in relation to particular (c) to ground 1 of the Cross Appeal.
Further, the transcript was not the only evidence on which the Secretary relied to establish Allegation 1(a). The Commissioner was not persuaded that the allegation could be substantiated on the other evidence led by the Secretary. It cannot be assumed that had the Secretary been heard on the question of Jack's intellectual capacity, it would necessarily have resulted in the transcript being afforded sufficient weight to overcome the other deficiencies in the Secretary's evidence identified by the Commissioner.
For these reasons, we are not persuaded to accept the Secretary's submission that "denial to accord procedural fairness manifestly affected the outcome of Allegation 1(a) and the decision to grant the appeal" (our emphasis).

Ground 4

Ground 4 of the Cross Appeal rests on the application of s 5A of the Teaching Service Act. That section provides, in part, that the protection of children is to be the paramount consideration in taking any action with respect to an officer under that Act or in dealing with any appeal against that action. That extends to proceedings in the Commission.
The Secretary makes two assertions. First, Commissioner Webster should have found that Ms Fantoni posed a risk to children. Second, had she made that finding, and having regard to s 5A of the Teaching Service Act, the Commissioner could not have ordered that Ms Fantoni be restored to the Teaching Service.
The Secretary's submissions on appeal drew our attention to what was said to be untruthful, inconsistent and contradictory evidence from Ms Fantoni in the proceedings before the Commissioner. The Secretary submitted that the Commission accepted that Ms Fantoni was not a credible witness, by reference to particular findings contained in the Principal Decision. In their written submissions on appeal the Secretary contended: "These troubling aspects of [Ms Fantoni's] evidence ought to have been a grave concern for the Commission in her consideration of the appropriate penalty, but the Decision discloses no consideration at all other than a bald statement that the Commissioner did not consider Ms Fantoni to be a risk to children."
There is no question that there were aspects of Ms Fantoni's evidence that Commissioner Webster did not accept. However, as was the case with Ms Dickson, the Commissioner confined her findings in this regard to particular aspects of Ms Fantoni's evidence. There was no finding, in terms, that Ms Fantoni was an untruthful witness who lacked credibility and whose evidence should be rejected in its entirety.
In any event, the Secretary's contention that the Commissioner's consideration of the risk to children was confined to a single "bald statement" is simply wrong. We note the following from the Principal Decision: 1. At [1] the Commissioner observed that "[the] seriousness of the allegations against the appellant in this matter is compounded by the vulnerability of the young children she has been accused of mistreating, who have complex educational needs, and are deaf or hard of hearing". 2. At [19] the Commissioner reproduced s 5A of the Teaching Service Act. 3. At [39] the Commissioner noted submissions that had been made by the Secretary that "the Commission must place weight on Jack's evidence, particularly given the paramount duty in this matter is to protect children". 4. At [81] the Commissioner stated that "in this matter, the paramount consideration is the protection of children" and referred again to s 5A. 5. At [86], in connection with Allegation 1(a), the Commissioner noted that it was "inappropriate that the appellant would use a chair designed for younger children in her classroom" to elevate children to work in a higher level. 6. At [101] the Commissioner accepted that, in connection with Allegation 1(b), "there may have been different ways to manage Jack's behaviour identified that did not require a physical intervention" and that "there may have been other actions that could be taken to secure the health and safety of others while calming Jack". 7. At [128] the Commissioner considered Mr Currie's evidence that "the prospect of [Ms Fantoni] being reinstated [was] of great concern to him" and his belief that children would not be safe with Ms Fantoni. The Commissioner did not share those concerns. 8. At [133] the Commissioner stated that in reaching her decision, which included an outline of the orders that she proposed to make, she had borne s 5A in mind.
Reading the Principal Decision as a whole, in a fair and balanced way, it is apparent that the Commissioner's statement at [128] that she did not have concerns about the welfare and safety of children in Ms Fantoni's care was an informed one. It had regard to the requirements of s 5A and the evidence before her.
In his written submissions on leave to appeal, the Secretary contended that unless the Principal Decision were quashed, "there is a risk it will be seen [as] precedent for the proposition that s 5A is rendered nugatory in the context of public sector disciplinary appeals". In light of our observations above, this submission is baseless and hyperbolic.

Conclusions

Grounds 1, 2 and 4 of the Cross Appeal do not disclose error in the Principal Decision. Leave to appeal in respect of those grounds is refused.
We are satisfied that ground 3 of the Cross Appeal discloses error. The Principal Decision does not reveal the evidence on which it was determined that Jack's intellectual capacity impacted on his reliability to give evidence. The Secretary was not afforded the opportunity to be heard on that matter. However, in light of the totality of the Commissioner's reasoning in respect of Allegation 1(a), and noting our observations above in respect of particular (c) to ground 1 of the Cross Appeal, we do not think that these errors are of such materiality to warrant the intervention of the Full Bench. We are unable to accept the Secretary's submission that the errors "manifestly affected the outcome of Allegation 1(a)". Consequently, we are not persuaded that the matter is of such importance that, in the public interest, leave to appeal should be granted.

Ms Fantoni's Principal Appeal

In broad terms, Ms Fantoni's Principal Appeal challenges Commissioner Webster's finding that Allegation 1(b) had been substantiated, and the orders the Commissioner imposed in consequence. To provide context to the appeal, it is necessary to reproduce at some length the Commissioner's reasoning in the Principal Decision: "90. The appellant admitted she removed Jack's shoes and socks on occasions but sought to contextualise these actions. The appellant provided the following explanation, in her response to the allegations of the respondent…: 'I accept the allegation and would like to provide some context around this. As stated above, [Jack's] behaviour had been escalating and he would lash out at staff by kicking, screaming, and spitting. To reduce the likelihood of injury to staff when [Jack] was in a heightened state, his shoes would be removed as he would kick staff in their shins. This was a recommendation of the Nonviolent Crisis Intervention (NVCI) training undertaken in 2012 and at the time it was a common occurrence at [the School] when a child was being violent and kicking staff. If he was heightened when the bell sounded for lunch, it was unsafe for [Jack] to enter into the playground as he was a risk to himself and others. The record of [Jack's] focus meeting 2015 stated that 'he can be a bit "hands-on" with other children' … Once [Jack] became calm his shoes were returned and staff assisted him with replacing and retying them. [Jack] was then able to participate in his outside play. There was a recommendation that NVCI training be undertaken on [Jack's] student behaviour support plan proforma dated 29th January 2014, as the training before this was in 2012. This retraining never occurred. However, a MAPA training program, which replaced NVCI was undertaken in 2018 as the violence was escalating.' … 93. I accept that there is an insufficient evidentiary basis to conclude that the appellant removed Jack's shoes and socks with the purpose of punishing him or preventing him from going outside during designated breaks. However, that was not the allegation made by the respondent. The allegation was that the removal of the Jack's shoes and socks had the consequence of preventing him from going outside during designated breaks. 94. In evidence were copies of Jack's Behavioural Plans and Individual Risk Management Plans ('Risk Plans') completed in 2014 and 2015…The Plans do not reference the removal of Jack's shoes and socks as a strategy to manage his behaviour. … 99. I accept the evidence of Mr Currie that the plans that were in place in respect of Jack to manage his behaviour were inadequate. They lacked detail and did not accurately reflect how Jack's behaviour was being managed, at least in so far as his shoes and socks being removed by the appellant and Ms O'Reilly. The absence of a detailed plan with respect to Jack's kicking was striking given other behaviours, such as eating foreign objects were identified. 100. The appellant, as a teaching professional had a responsibility to ensure that the plans were appropriate and accurate and to document strategies to manage the complex behaviours of Jack, in collaboration with other qualified people and his caregiver(s). The inadequacy of the plans is not only a poor reflection upon the professionalism of the appellant as a teacher, but the broader management and oversight at the School in the overall implementation of appropriate systems of oversight and management. It is worrying that the appellant says, as a teacher of children with complex needs at a school for special purposes for a lengthy period, she was not aware that she could create a Behaviour or Risk Plan and she did not create any such plans for students other than Jack. 101. I accept it may have been a proper and legitimate strategy to remove Jack's shoes and socks in particular circumstances to prevent injury. However, had proper consultation in the development of the Behaviour and Risk Plans occurred, there may have been different ways to manage Jack's behaviour identified that did not require a physical intervention. … 102. There is no evidence of the appellant collaborating with other in making her decision to remove the shoes and socks of Jack. The need to document the strategy was particularly important because of the physical nature of the intervention, which should be a last resort… The appellant should have given more careful consideration to the impact the strategy could have on Jack. 103. For the reasons I have set out, I agree with Mr Currie that the appellant's conduct was inappropriate and unfair to Jack and fell short of the standards expected of teachers. I agree that the conduct constituted a breach of the following parts of the Code [of] Conduct: 'Section 5, by failing to carry out her responsibilities to: i. keep students safe and support their wellbeing; ii. treat everyone with respect; iii. Understand and apply the laws, policies, procedures and guidelines that underpin her work; iv. act with the utmost care and diligence; and v. always uphold the values and good reputation of the department whether on or off duty; vi. be accountable for their actions and decisions, Section 4.6, by failing to model effective leadership with students and by failing in her duty to the safety of others. Section 5.1, by failing to: i. carry out her duties in a professional, competent and conscientious manger [sic]; and ii. be courteous to students, and Section 21.3, by failing in her duty to take reasonable care for the safety and welfare of a child in her charge. 104. I am also satisfied the appellant failed to adhere to Bulletin 9 - Physical Intervention and Restraint of Students by: a. Failing to physically intervene with a student only as a last resort where there is a real and immediate risk of injury to the student or others or to property; and b. Making physical intervention with a student when it was not reasonably necessary to prevent harm. 105. I am concerned that the appellant took very little responsibility for her failure to ensure the development of accurate Behaviour Plans for Jack. … What is the appropriate outcome? 125. It is my decision that this appeal be allowed, in accordance with my finding as set out above. However, based on the findings I have made with respect to the shoes and socks allegation, a disciplinary outcome against the appellant is warranted. The disciplinary action of termination is excessive for the misconduct sustained against the appellant. 126. As I have already stated, I am concerned that the appellant took very little responsibility for her failure to ensure the development of accurate Behaviour and Risk Plans for Jack. However, there was no evidence before the Commission from any Executive working at the School to rebuff [sic] her assertions that she had not been required to develop such plans for any student in her care during her tenure there. Whilst the appellant should not require such oversight and she failed in performing her role diligently and professionally, the respondent should have ensured systems of management were in place to make certain the policies and procedures were being implemented. This was a significant contributing factor in the conduct and points to a systemic failure in the respondent's leadership and governance systems at the School. 127. In determining the appropriate outcome, I have also considered my findings in respect of the appellant's use of the highchair in her classroom: see [86] above. The appellant exercised poor judgement when she decided to use the highchair in her classroom, particularly as she used the straps to secure the children into it. Without a very good reason, Principal school children should not be placed in a highchair designed for toddlers unless it is in a formalised plan. 128. I have considered the evidence of Mr Currie that the prospect of the appellant being reinstated is of great concern to him and that her conduct and responses during the period leading to her dismissal displayed such an alarming degree of lack of insight and concern for the welfare of children that he does not believe children are safe with the appellant… That opinion is largely based upon the acceptance of evidence that I have found to be unreliable in these proceedings. I do not have concerns about the welfare and safety of children in the care of the appellant, although her adherence to the respondent's policies and procedures must be addressed. I also disagree with the respondent's submissions that the appellant showed little of [sic] no remorse. Although she did not admit that she engaged in misconduct, she clearly indicated her willingness to engage in remedial activities and learn from the allegations… 129. The appellant was terminated from her employment on 24 November 2020, over two years ago. The uncontested evidence of the appellant was that she had an unblemished record prior to investigation leading to these proceedings, having worked for the respondent for over 20 years, nine years of which she was a teacher at the School… While some of the witnesses were critical of the appellant's teaching capacities, several gave evidence that the appellant was a dedicated and skilled teacher. The respondent did not lead evidence that her supervisors had concerns with respect to her performance. … 131. I have decided that the appropriate disciplinary and remedial action should be that the appellant is: (1) issued with a written warning in respect of the shoes and socks allegation; (2) placed on a performance improvement plan, which will be designed to addresses the appellant's understanding of the policies and procedures of the respondent, including in respect of Behaviour and Risk Management Plans; and (3) transferred to a role not at the School. 132. I would expect through the performance improvement plan, the appellant will be provided with training that will equip her to return to her duties and avoid ever being the subject of disciplinary action again. Given the seriousness of the transgressions, I decline to make any order for backpay."
The Application for Leave to Appeal and Appeal filed by Ms Fantoni in respect of Ms Fantoni's Principal Appeal contained 11 grounds of appeal. In the written submissions that she filed in support of the appeal, the grounds were "summarised" to eight and significantly recast. The submissions stated: "8. The application for Leave to Appeal and Appeal sets out the grounds of appeal. The grounds can be summarised as the following: The Commissioner erred in finding that Allegation 1(b) had been proved and that it constituted misconduct 1) The Commissioner confused the facts alleged in Allegation 1(b). 2) The Commissioner erred in finding that the removal of Jack's shoes and socks had the consequence of preventing him from going outside during designated breaks. 3) The Commissioner erred at [100]-[102], [126] of the Decision by failing to provide adequate reasons in rejecting the appellant's evidence that she did not have a responsibility for preparing behavioural management plans for Jack. 4) In determining that Allegation 1(b) was proven, the Commissioner failed to apply the requisite standard of proof as discussed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 5) The Commissioner erred by finding that preventing Jack from going outside during designated breaks was misconduct within the meaning of s 93F of the Teaching Services Act 1980 (NSW) [sic] [103]-[104]. The Commissioner erred in determining the appropriate remedy 6) The Commissioner erred in determining that the seriousness of the conduct in Allegation 1(b) warranted not making orders for lost pay and continuity of service pursuant to s 100D(1)(b) and 100D(1)(c) of the Industrial Relations Act 1996 (NSW) (the Act) [130], [132]. 7) The Commissioner failed to give adequate reasons as to why orders pursuant to s 100D(1)(b) and 100D(1)(c) of the Act were not made. 8) The Commissioner erred in making an order that the Appellant be issued with a written warning." (Underlining and bold in original, footnotes omitted)
The hearing of the appeal was conducted on the basis that these were the grounds pressed by Ms Fantoni on appeal. We have proceeded on the same basis.

Ground 1

This ground rests on the assertion that Commissioner Webster misapprehended Allegation 1(b) and the facts required to be established to substantiate it.
Ms Fantoni contends that the allegation is to be construed as meaning, in effect: With the intention of preventing Jack from going outside during recognised breaks, and by that means controlling his behaviour, Ms Fantoni removed Jack's shoes and socks. This strategy was unnecessary and inappropriate.
Commissioner Webster construed Allegation 1(b) differently. It is clear from [93] of the Principal Decision that she did not consider that the allegation required a finding that Ms Fantoni intended to control Jack's behaviour by preventing him from going outside. A combined reading of [4] and [93] of the Principal Decision reveals that the Commissioner regarded the allegation as contending that the removal of Jack's shoes and socks was itself the unnecessary and inappropriate strategy to manage Jack's behaviour. The fact that this prevented Jack from going outside during designated breaks was the (we can infer, possibly undesirable) consequence of that strategy, not its purpose.
We accept that there is room for debate as to how Allegation 1(b) is to be construed. There is some support for Ms Fantoni's interpretation in the evidence led by the Secretary in the proceedings below. Mr Currie deposed to a concern he held that "removing [Jack's] garments was another form of physical intervention that was directed at depriving [Jack] of his liberties by limiting his freedom to move outside" (our emphasis).
Even so, the construction adopted by Commissioner Webster was reasonably open to her on the terms of Allegation 1(b) and the evidence before her.
A further obstacle for Ms Fantoni on appeal is that the evidence before Commissioner Webster was that she "accepted the allegation": see the extract reproduced at [90] of the Principal Decision. Presumably, Ms Fantoni did so on the basis of her understanding as to the effect of the allegation and the facts required to substantiate it. There is little public interest in granting leave to appeal in respect of ground 1, when the allegation to which it relates was accepted.

Ground 2

This ground contends that Commissioner Webster erred in finding that the removal of Jack's shoes and socks had the consequence of preventing him from going outside during designated breaks. This is a finding of fact. We repeat the observations made at [30]-[31] above.
In her submissions on appeal, Ms Fantoni placed significant emphasis on the reasons for which she removed Jack's shoes, namely that he would on occasion kick other students or "kick his shoes up in the air to see how high they could go". The inference appears to be that it was this behaviour, rather than the removal of Jack's shoes per se, which prevented him being able to play outdoors.
Ms Fantoni referred to her oral evidence in the proceedings below to the effect that, even without his shoes on, Jack would be able to play outside in an undercover area. She also drew our attention to the evidence of Ms Dickson and Ms Reid, to the effect that they had seen Jack outside without shoes on. However, in her oral testimony before Commissioner Webster, Ms Fantoni also gave the following evidence in response to questions from counsel for the Secretary: "Q. And what should happen once that behaviour, the situation or the kicking behaviour subsides, is to give him back his shoes? A. Yes, that's correct. Q. And if he is in the playground, obviously it's a safety issue if he's not wearing his shoes, correct? A. Yes. Q. So of the children are playing outside and he doesn't have his shoes on, he can't go and play outside? A. No. Well, no."
Again, Ms Fantoni is confronted with the admission she made, as referred to at [90] of the Principal Decision. The Secretary submitted on appeal: "The Commissioner's consideration of this allegation is found at Decision [90]-[105]. Firstly, and most importantly, the Commissioner extracted a section of the written response to the allegations Ms Fantoni provided the Department on 25 May 2020. After admitting to the conduct, Ms Fantoni said, by way of 'context' that '[i]f [Jack] was heightened when the bell sounded for lunch, it was unsafe for [Jack] to enter into the playground ... Once [Jack] became calm his shoes were returned. [Jack] was then able to participate in outside play.' On Ms Fantoni's own evidence, there was a sufficient basis for the Commissioner to be satisfied that removing [Jack's] footwear prevented him from going outside. This is because a logical corollary of Ms Fantoni's evidence is that, in removing [Jack's] shoes and socks prior to lunch, she intended to have the effect of preventing [Jack] from going outside to play."
As a matter of logic, and having regard to the extract at [111] above, these submissions have to be accepted.
In light of the evidence, and having regard to the authorities referred to at [30]-[31] above, we are unable to conclude that the Commissioner's finding was clearly wrong or not reasonably open on the evidence. It follows that ground 2 fails to disclose error.

Ground 3

Ground 3 of Ms Fantoni's Principal Appeal contends that Commissioner Webster erred at [100]-[102] and [126] of the Principal Decision by failing to provide adequate reasons in rejecting Ms Fantoni's evidence that she did not have a responsibility for preparing behavioural management plans for Jack.
We reiterate our observations at [39]-[41] above.
From [94] of the Principal Decision, Commissioner Webster explored the evidence before her regarding the behavioural and risk management plans that were in place for Jack. She summarised at [95] Ms Fantoni's evidence in this regard and, at [96]-[98], that of Mr Currie. At [100] she referred to Ms Fantoni having "a responsibility to ensure the plans were appropriate and accurate". It is this statement which is at the heart of this ground of appeal.
A premise which appears to underpin Ms Fantoni's submissions on appeal (on both this ground and ground 4) is that Commissioner Webster found that Ms Fantoni bore sole responsibility for the development of the relevant plans. The Commissioner made no such finding. At [100] she made reference to the inadequacy of the plans reflecting poorly not only on Ms Fantoni, but on "the broader management and oversight at the School in the overall implementation of appropriate systems of oversight and management".
The evidence before the Commissioner was that responsibility for the creation and maintenance of behavioural and risk management plans was a shared one. During the hearing before the Commissioner the following exchange took place between counsel for Ms Fantoni and Mr Currie: "Q. And you agree that there is an expectation that the school will develop school based behavioural management policies? A. Yes. Q. And you agree, don't you, that it's the role of the executive to prepare behavioural modification plans? A. No, not exclusively. It's the role of everybody involved with managing and supervising and teaching that student, a student who is vulnerable, or a student with behaviour or sensory or disability to co-develop and create any plan that is used to support their learning. Q. Can I suggest to you that it is the role of the executive usually developed in conjunction with the class teachers and support staff from local district offices? A. It's not only the role of the executive. The executive would facilitate and ensure that there is a procedure involved. Schools vary dramatically as to the involvement of the executive, whether it be the principal or the DP or the AP that is involved. But it is a co-developed, collaborative mechanism that is used to support students. So, the executive - can I just ask, when you say 'executive' do you mean principal or are you talking about the broader executive? Q. No, I'm talking about the executive of the school, so the principal, the leadership team of the school? A. Yes, so the principal will facilitate the procedures for those supporting mechanisms but, depending on the size of the school or the role that the principal puts in place, the principal may not take a direct role in facilitating those behaviour management plans, though I do agree that the executive would facilitate that collaborative, but it's everybody's responsibility in supervising a student- sorry, supervising the development of a student and their needs, everybody involved has a responsibility to create that plan. Q. Can I put this question to you again, just in fairness, to see what your answer is? My proposition to you is that it is the role of the executive to prepare behavioural modification plans, risk management plans, emergency respond plans which are usually developed in conjunction with the class teachers and support staff from local district offices? A. Yes, and I would say it's not their role to create them, it's their role to facilitate their creation and so, therefore, it is the responsibility and the duty of care of the teacher and those people who are involved in supporting that student to come together to create those. So, yes, the executive would facilitate the creation but to actually say that it is only the responsibility of the executive would abrogate the responsibility under duty of care of everybody else involved in the care of that student. Q. What I'm suggesting, Mr Curry, is that it is the role of the executive to prepare these documents together with or in conjunction with the classroom teacher, any other persons involved with the student? A. Yep and again, very rarely does the principal prepare these documents. They facilitate their preparation by others. They might have a final sign off or a final review, but it is usually the - in my experience, having done these many, many times - it's usually led by the classroom teacher and the AP possibly of the unit and the support people to create them, so the principal or the executive has a role in facilitating those creations and ensuring that they're created but not necessarily in the creation of them. Q. And driving that process to make sure that the school does comply with the policies and procedures generated by the department within the individual school? A. They would facilitate that process and drive it but the people who were closest to the student would develop them and create them to ensure that the needs are met of the student in the classroom. Q. And it would be up to the executive of the school to really drive that process in regard to all the appropriate students that require any kind of behavioural modification plans or risk management plans or emergency responses? A. Yes, I'm going back, I wouldn't use the word 'drive', I would use the word 'facilitate' because you facilitate it but other people at the school have responsibility for it usually and so it would be possibly the AP of the support unit, a head teacher, teaching and learning, the classroom teacher. It's actually a devolved responsibility but a Principal facilitation for the principal. Q. But there's some oversight and there's some consistency across the school, isn't there, in regard to the preparation of these plans? A. Yes, they would require them to be done, yes, but as I said, the people nearest to it would have the responsibility for ensuring that they were valid and would work in the classroom."
There was evidence before Commissioner Webster that Ms Fantoni had been involved in preparing behaviour management plans for Jack in 2014 and 2015, in conjunction with others at the School. This evidence was consistent with the assertions underpinning the questions put to Mr Currie in the passage extracted above, and his responses.
Commissioner Webster considered the evidence before her. When the Commissioner's observations at [99]-[103] of the Principal Decision are read together, her process of reasoning becomes clear: Ms Fantoni was Jack's teacher; she was required to work "in conjunction with" relevant stakeholders to develop the necessary behavioural and risk management plans for him; and, as a "teaching professional" she could be expected to ensure that the behavioural and risk management plans for one of her students were appropriate and accurate.
It is apparent that the Commissioner considered that Ms Fantoni was inappropriately seeking to eschew any responsibility for those plans, and from this the Commissioner drew adverse conclusions. This is seen at [105] of the Principal Decision.
For these reasons we do not accept that ground 3 reveals error in the Principal Decision.

Ground 4

Ground 4 asserts that "in determining that Allegation 1(b) was proven, the Commissioner failed to apply the requisite standard of proof as discussed in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336" ("Briginshaw").
At the outset, we observe that Briginshaw does not establish a "standard of proof". In proceedings before the Commission the civil standard of balance of probabilities applies. To adopt the language of the Secretary's submissions, Briginshaw "is a rule of evidence which cautions that the nature and the strength of evidence required to prove a fact may vary depending on the nature and seriousness of the allegation".
Commissioner Webster referred to and quoted from Briginshaw at [17] of the Principal Decision. At [18] she referred to and quoted from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 ("Neat Holdings"). The Commissioner repeatedly stated that the onus was on the Secretary to establish the allegations against Ms Fantoni: see [4], [34], [35], [76], [81], [89] and [124]. At [81] she cited both Briginshaw and Neat Holdings and adopted language, which also appears at [84] and [88], derived from Briginshaw.
Although the Commissioner made no specific reference to the Briginshaw principles in her consideration of Allegation 1(b), it is clear that they informed her approach to the matter generally.
In reality, though, the submissions advanced by Ms Fantoni in support of ground 4 of Ms Fantoni's Principal Appeal are not so much directed to the application by Commissioner Webster of Briginshaw, as mounting further challenges to her findings of fact, echoing grounds 2 and 3. This is revealed in particular in Ms Fantoni's submissions that: "[h]ad the Commissioner applied the requisite standard of proof to Mr Currie's evidence she would not have been reasonably satisfied that Mr Currie's evidence was exact or definite or that a direct inference could be drawn from it that the appellant took off Jack's shoes and socks as a punitive measure or that the appellant was responsible for the preparation of the behavioural plans for Jack" and that: "the Commissioner failed to explain why she rejected the appellant's evidence and accepted Mr Currie's assertions that it was the appellant's responsibility to prepare Behavioural Plans for Jack and that it was 'inappropriate and unfair to Jack and fell short of the standards expected of teachers' to take off Jack's shoes and socks". (Emphasis in original, footnote omitted)
We do not propose to traverse ground that has already been covered. Ground 4 discloses no error in the Principal Decision.

Ground 5

This ground contends that Commissioner Webster erred by finding that "preventing Jack from going outside during designated breaks was misconduct within the meaning of s 93F of the Teaching [Service] Act".
Commissioner Webster made no finding in the terms asserted. The Commissioner read Allegation 1(b) as contending that the removal of Jack's shoes and socks was an unnecessary and inappropriate strategy to manage Jack's behaviour, involving as it did "physical intervention". She found the allegation to have been substantiated. The Commissioner's views as to the seriousness of the breach were informed by the absence of behavioural or risk management plans which contemplated a strategy of removing Jack's shoes and socks, and the fact that she considered that Ms Fantoni "should have given more careful consideration to the impact the strategy could have on Jack" (at [102]).
Turning to Ms Fantoni's submissions on appeal, ground 5 is premised on two bases: first, that Commissioner Webster failed to explain how she had found that Ms Fantoni had engaged in misconduct within the meaning of s 93C of the Teaching Service Act; and, second, the findings made against Ms Fantoni do not rise to the level of seriousness as to amount to misconduct.
At [14]-[21] of the Principal Decision the Commissioner outlined the legislation and legal principles that would guide her determination of the proceedings. It is clear that she had regard to the structure of the Teaching Service Act. Section 93C of the Teaching Service Act, which defines "misconduct" for the purposes of Pt 4A of that Act, is referred to and reproduced in part at [21] of the Principal Decision.
Section 93F(2) of the Teaching Service Act provides that, after dealing with an allegation of misconduct as a disciplinary matter in accordance with Pt 4A and the procedural guidelines, the Secretary may, if they are of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. The term "disciplinary action" is defined in s 93B(1). The precondition to the taking of disciplinary action is a finding that the employee has engaged in misconduct within the meaning of s 93C.
We accept Ms Fantoni's submissions that Commissioner Webster did not expressly find that she had engaged in misconduct within the meaning of s 93C. There is no reference in the Principal Decision to s 93F. However, at [125] of the Principal Decision the Commissioner stated that she had determined that "a disciplinary outcome" against Ms Fantoni was warranted. At [131] she expressed her decision as to "the appropriate disciplinary and remedial action" to be taken against Ms Fantoni.
Read in the context of the Principal Decision as a whole, it can reasonably be inferred that in determining to take "disciplinary action" against Ms Fantoni, the Commissioner was satisfied that the findings that she had made against her amounted to misconduct within the meaning of s 93C of the Teaching Service Act.
Ms Fantoni also challenged the conclusions reached by Commissioner Webster at [103] of the Principal Decision. She asserted that the Commissioner had not provided any reasoning as to how the Code of Conduct had been breached. Rather, Ms Fantoni submitted that the Commissioner simply "cut and pasted" the extracts from the Code of Conduct from the Secretary's submissions and accepted them without exercising independent judgement as to whether the provisions had relevantly been breached.
To the extent that this contention rests on the foundation that the Commissioner failed to provide adequate reasons, we refer again to the authorities at [39]-[41] above. In any event, when viewed in light of the entirety of the Principal Decision, and in particular [90]-[102], it can readily be ascertained why the Commissioner considered that Ms Fantoni had breached those sections of the Code of Conduct reproduced at [103].
Ms Fantoni also called into question the Commissioner's finding at [104] of the Principal Decision that she failed to adhere to "Bulletin 9 - Physical Intervention and Restraint of Students". Ms Fantoni drew our attention to the fact that the document bears a date of 3 April 2019, which post-dates some of the events giving rise to the allegations against her. It is not clear to us that this was a matter put to Commissioner Webster.
In any event, even were it to be accepted that "Bulletin 9" was created after the relevant events, we do not consider that much turns on it. Ms Fantoni was cross-examined at length about the contents of the document and accepted that nothing in the document came as a surprise to her. She acknowledged that it reflected what she understood to be the obligations imposed on her during her employment.
To the extent that Ms Fantoni asserts that the Commissioner's findings against her do not rise to the level of misconduct, it suffices to say that this was a conclusion that was reasonably open to the Commissioner on the evidence before her.
For these reasons, we are not persuaded that ground 5 demonstrates error in this regard.

Grounds 6, 7 and 8

It is convenient to deal with these grounds together. They each challenge the orders made by Commissioner Webster.
Section 100C(2) of the Industrial Relations Act provides that the Commission, "in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit". Section 100D(1) relevantly provides: 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may - … (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer.
Grounds 6 and 7 of Ms Fantoni's Principal Appeal challenge Commissioner Webster's decision not to make orders under s 100D(1)(b) and (c). Ms Fantoni had sought such orders from the Commissioner, albeit not with direct reference to s 100D.
In her Notice of Appeal - Public Sector Discipline filed on 24 December 2020, Ms Fantoni described the relief she sought as "reinstatement of employment as at 30 November 2020." In her case summary filed on 5 May 2021 and her closing written submissions dated 9 June 2022, Ms Fantoni submitted that the relief she sought included her being "restored" to her employment at the School and an order that "Ms Fantoni's service is to be taken as not having been broken by virtue of the dismissal and the period between the dismissal and the re-employment is to count as service for all purposes".
Ms Fantoni submitted on appeal that "[there] is a presumption that orders pursuant to s 100D will follow if an appeal is allowed". Ms Fantoni argued that such a presumption arose from two considerations.
First, she drew an analogy with the Commission's unfair dismissals jurisdiction, in respect of which it has been observed that "[the] general approach is that an employee who has been found to have been unfairly dismissed and, as a result, reinstated should not suffer a loss of income and benefits because a period necessarily elapsed in the time it took to hear and determine the case": Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069 at [41].
Second, Ms Fantoni argued that the definition of "disciplinary action" in s 93B of the Teaching Service Act did not encompass measures that would see an employee being unpaid for a period of time or which would impose a break in their continuity of employment. She submitted that for the Industrial Relations Act and the Teaching Service Act to "be applied harmoniously", where a public sector appeal is allowed by the Commission against a decision of misconduct within the meaning of s 93F of the Teaching Service Act, there would be a presumption that orders would be made pursuant to s 100D(1)(b) and (c) of the Industrial Relations Act.
Ms Fantoni drew our attention to recent decisions of the Commission in cases brought under Ch 2 Pt 7 of the Industrial Relations Act involving, in her view, findings of misconduct that were objectively more serious than the findings of misconduct made by Commissioner Webster against her. In those cases, the appeals were upheld and orders were made for lost pay and/or continuity of service.
We do not accept that there is a presumption that orders under s 100D(1) will be made in the event of a successful appeal that must be displaced. The use of the word "may" in the section connotes that it is within the Commission's discretion whether or not to exercise the power conferred by the provision: Interpretation Act 1987 s 9(1). Further, it is well-settled that whether or not to exercise the power conferred by s 100C(2) is within the Commission's discretion: see Secretary of the Department of Education v Williams [2023] NSWIRComm 1098 at [44]-[45]. We see no reason why a different approach would be taken to s 100D(1).
We have summarised at [10]-[12] above the principles that govern appeals from discretionary decisions. In this regard, Ms Fantoni referred to the following passage from House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the Principal judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the Principal judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." (Emphasis added)
In Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 the Full Bench observed: "69. As a further consideration, …we observe that House v The King (1936) 55 CLR 499; [1936] HCA 40 contemplates a situation where appellable error can be inferred, even if no error is apparent on the face of a judgment, where the decision is manifestly wrong. …"
There is no reference in the Principal Decision to s 100D of the Industrial Relations Act. However, we note the following statement at [132] of the Principal Decision: "Given the seriousness of the transgressions, I decline to make any order for backpay."
We presume the Commissioner's reference to an "order for backpay" to be an order pursuant to s 100D(1)(b). On that basis, it can reasonably be inferred that the Commissioner turned her mind to the section. However, beyond the statement at [132], there is no further analysis that explains the Commissioner's decision not to make an order under s 100D(1)(b).
There is nothing in the Principal Decision to explain why the Commissioner determined not to make an order for continuity of service pursuant to s 100D(1)(c).
We take the reference to "transgressions" at [132] as referring to the matters outlined at [125]-[127] of the Principal Decision. The Commissioner appears to have placed significant weight on her finding that Ms Fantoni failed to ensure the development of accurate behaviour and risk management plans for Jack, as well as Ms Fantoni's reluctance to accept responsibility for that failure. It is relevant, as Ms Fantoni submitted on appeal, that "[failure] to prepare a behavioural plan for Jack was not one of the written allegations of misconduct" against her.
Other than in respect of the matters summarised at [125]-[127] of the Principal Decision, the Commissioner made no adverse findings against Ms Fantoni. She referred (at [129]) to the "uncontested evidence" of Ms Fantoni that prior to the events giving rise to these proceedings she had worked in the Teaching Service for more than 20 years with an "unblemished record". As already canvassed, the Commissioner rejected concerns raised by the Secretary as to the welfare and safety of children in Ms Fantoni's care, having regard to s 5A of the Teaching Service Act.
Evidence led by Ms Fantoni on appeal suggests that following the Secretary's decision to remove her from the Teaching Service, her last day of service was 30 November 2020. Following the Principal Decision, she was restored to her employment as a teacher as of 16 December 2022. However, this was subject to the orders made by Commissioner Webster: that she be transferred to a role not at the School; that she be issued with a written warning; and, that she be placed on a performance improvement plan.
The Secretary gave effect to those orders. Ms Fantoni was restored to her employment in the Teaching Service with effect from 16 December 2022 (being the date of the Principal Decision). She was issued with a written warning. She was appointed to the position of classroom teacher (Science) at Swansea High School from 6 March 2023. On 3 May 2023 a Teacher Improvement Plan was implemented, at the conclusion of which Ms Fantoni's performance was assessed as meeting the level required.
The effect of the Commissioner's decision not to make orders pursuant to s 100D(1) of the Industrial Relations Act is that Ms Fantoni was deprived of her salary as a teacher for a period in excess of two years, as a result of a decision to remove her from the Teaching Service which the Commissioner effectively quashed. Further, Ms Fantoni will have lost employment-related accruals that she amassed during her employment, and will have had to start accruing those entitlements afresh. These are consequences which would have a significant detrimental effect on Ms Fantoni.
The Principal Decision does not address the question of continuity of service at all, nor the implications for Ms Fantoni of the Commissioner not making such an order. This is despite Ms Fantoni having sought such an order since the commencement of the proceedings (that being the effect of an order for reinstatement "as at 30 November 2020"). The Commissioner expressed a conclusion regarding an "order for backpay", her reasoning being the "seriousness of the transgressions".
The Principal Decision does not disclose why Ms Fantoni's "transgressions" are of such "seriousness" as to warrant the adverse consequences described at [161] above, particularly when viewed in conjunction with the other orders imposed by the Commissioner.
We consider that on the facts of this case, and the findings made by the Commissioner, the refusal to make orders pursuant to s 100D(1)(b) and (c) was unreasonable and unjust. We find the passage we have highlighted in the extract from House v The King at [152] above to be apposite.
Ground 8 of Ms Fantoni's Principal Appeal challenges order 2 in the Principal Decision, that Ms Fantoni be issued with a written warning. In her written submissions she contended that the order "would fall away if any of the grounds in grounds 1 to 5 are upheld by the Commission". She sought an order that the warning be removed from her file.
At the hearing of the appeals, Ms Fantoni also pressed that order 4 in the Principal Decision - that she be transferred to a role not at the School - be set aside. In its place, she sought an order that she be appointed to the position of Itinerant Support Teacher - Hearing in the Lake Macquarie region.
Given our findings in respect of the grounds 1 to 5 of Ms Fantoni's Principal Appeal, we are not persuaded that there is any basis to disturb orders 2 and 4 of the Principal Decision.

Conclusions

We find that grounds 1 to 5 and 8 of Ms Fantoni's Principal Appeal do not disclose error in the Principal Decision. We have determined to refuse leave to appeal in respect of those grounds.
We are persuaded that grounds 6 and 7 of Ms Fantoni's Principal Appeal demonstrate relevant error and that it is appropriate that leave to appeal be granted in respect of those grounds.
To correct the error that we have identified in the Principal Decision, we will make orders pursuant to s 100D(1)(b) and (c) of the Industrial Relations Act. In relation to an order under s 100D(1)(b), we have in mind the evidence led by Ms Fantoni on appeal regarding the income she earned between the time of her purported dismissal from the Teaching Service and her re-employment.

Orders

We make the following orders: 1. Leave for Ms Fantoni to appeal the Interlocutory Decision is refused. 2. Leave for the Secretary to cross-appeal the Principal Decision is refused. 3. Leave to appeal is granted to Ms Fantoni in respect of grounds 6 and 7 of Ms Fantoni's Principal Appeal, but is otherwise refused. 4. Ms Fantoni's Principal Appeal is upheld. 5. Pursuant to s 192(1)(a) of the Industrial Relations Act 1996, the Principal Decision is varied so as to include the following further orders: 1. the Secretary is to pay Ms Fantoni the remuneration that she would, but for the decision to dismiss her from the Teaching Service, have received from the Secretary for the period 1 December 2020 to 15 December 2022, less income received by her from either or both of Youcare Disability Services Pty Ltd and Centre for Neurodiversity Pty Ltd, as set out in Annexures A6, A7 and A8 of the affidavit of Ms Fantoni sworn on 28 August 2023; and 2. the period of employment of Ms Fantoni with the Secretary is taken not to have been broken by the decision of the Secretary to dismiss her, and the period between 1 December 2020 and 15 December 2022 is to count as service for all purposes.

Endnote

At the time of publishing this decision, the Secretary of the Department of Education is Mural Dizdar. During the proceedings below and at the time of the Principal Decision, the Secretary was Georgina Harrisson. To avoid confusion, we have adopted gender-neutral pronouns when referring to the Secretary. 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: 27 November 2023

Teaching Services Act 1980(NSW)

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