Hosemans v Commissioner of Police

Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 House v R (1936) 55 CLR 499 HREA on behalf of Robert Drinan v Hunter Area Health Service [2002] NSWIRComm 270 IGA Distribution Pty Ltd and Moses [2001] NSWIRComm 235 CASES CITED: Martin Evans v The New South Wales Police [2005] NSWIRComm 404 Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (New South Wales Branch) [1973] AR (NSW) 231 Michael John Burgess & Ors v Mount Thorley Operations Pty Limited (2002) 119 IR 52 New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464 Pitcher v Langford (1991) 23 NSWLR 142 Woods & Hunter Area Health Service (unreported, IRC 4484 of 1997, Harrison DP, 19 March 1999)

APPELLANT Mr J Murphy of counsel Solicitor: Mr A Murphy NSW Department of Education and Training LEGAL REPRESENTATIVES:

RESPONDENT Mr B Docking of counsel Solicitor: Mr P Potter MacMahon & Associates

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING AND NEW SOUTH WALES TEACHERS FEDERATION (ON BEHALF OF ANTHONY MOSSFIELD)

Application by New South Wales Department of Education and Training for leave to appeal and appeal against decision of Deputy President Grayson given on 14 December 2005 in matter IRC 3745 of 2005

1 On 23 December 2005, the New South Wales Department of Education and Training ("the appellant"), lodged an application for leave to appeal and, if granted, appeal against a decision of Deputy President Grayson given on 14 December 2005, whereby Anthony Mossfield was reinstated in employment with the appellant and certain sums of money were ordered to be paid to him: New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464. This decision concerns an application made by the appellant for a stay of that decision. The Deputy President's Decision 2 The Deputy President found that the respondent's services as a probationary school teacher with the appellant were terminated on 28 June 2005, after initially a period of engagement as a casual teacher from 27 January 2003 until 27 January 2004, when Mr Mossfield was appointed on a full-time basis, subject to satisfactory completion of a probationary period. 3 An incident occurred in a classroom on 18 June 2004 which involved Mr Mossfield in the physical restraint of a student who had been misbehaving. The incident gave rise to the student's suspension and eventual expulsion from Niland School for Specific Purposes. The school caters for up to 56 students with histories of emotional disorders and/or mental disabilities and illnesses. Such students generally are not able to be accommodated in mainstream school sittings. 4 There were two allegations against the respondent which were ultimately pursued by way of disciplinary action. They were that Mr Mossfield: (a) punched the student in the stomach with a closed fist causing him to lose his breath and cry;

(d) punched the student in the back of the head causing an injury to his head which required medical attention. 5 Mr Mossfield, the student known as Keith involved in the incident, together with other students who witnessed the incident, the school principal and the investigating officer all gave evidence during the proceedings. 6 The applicant's contemporaneous notes stated that he hit the student in the stomach and subsequently punched him in the back of the head. Mr Mossfield subsequently resiled from his assertion that when he hit the student in the stomach, it was a punch. Mr Mossfield denied punching the student in the stomach. 7 The Deputy President found, on balance, that the correct conclusion in respect of the version of events to which the applicant adheres (being the second version), is more likely to be the most reliable and to the extent that it was at variance with other versions of events, the Deputy President found it should be preferred. 8 The Deputy President observed at [37] - [40]: [37] Moreover, and as Ms Lowson submitted, whilst the applicant accepted that hitting a student was inappropriate that is not to say that the question whether he acted in self defence and in the defence of others as I am satisfied he did, is not a significant factor to be taken into account and in that regard, I am further satisfied that there were ample grounds to justify the applicant's conclusion that it was necessary for him to take such a defensive initiative. [38] Plainly, though, the question then arises whether the applicant's actions are to be regarded in whole or in part as reasonably necessary having regard to the specific circumstances (as the DET policy states) and equally plainly, even if one accepts as I do that the restraint measures employed by the applicant with the exception of the forceful blow to the back of Keith's head, were reasonably necessary, the blow to the back of the head presents almost insuperable difficulties in terms of its justification as I am disposed. [39] Having said that, I should not be taken as being in agreement with Mr Murphy's characterisation of that particular act on the applicant's part as conduct which is so reprehensible of itself as to leave DET with no alternative but to bring the applicant's teaching career to a summary end. [40] In my opinion, the ultimate sanction of dismissal with the additional consequence that the applicant is indefinitely precluded from working in the field of primary, secondary or TAFE education is of such undue severity in the circumstances as to warrant intervention by the Commission and although the Commission may, as it has done traditionally, express its strong disapproval of misconduct such as occurred here, it is as Boland J recently observed in Evans v NSW Police [2005] NSWIRComm 404 at [31], also the function of the Commission to deal with each case on its own facts: because although assault might provide prima facie grounds for removal, circumstances may exist that make removal harsh and that either reinstatement should be ordered or some other remedy applied.

In this case there were as set out above and in the body of evidence generally, such extenuating circumstances as to make the degree of culpability attaching to the applicant's act of punching Keith to the back of the head significantly less than it might otherwise have been and furthermore to make the dismissal harsh both in its consequences for the personal and economic situation of the applicant and in its disproportionality to the gravity of the misconduct (see Byrne v Australian Airlines Ltd per McHugh and Gummow JJ (1995 61 IR 32 at 72). 9 I note in passing that one of the matters referred to by the Deputy President in the above paragraphs, that being Martin Evans v The New South Wales Police [2005] NSWIRComm 404, a case which involved an assault by an off-duty policeman, is the subject of an appeal. 10 The Deputy President also found that the appellant took into account background matters which formed no part of the allegations put to the respondent. In light of the decision that the Deputy President reached, he found it not strictly necessary to determine these matters, although he observed that the failure to afford Mr Mossfield a proper opportunity to comment upon the background matters, deprived him of his entitlement to procedural fairness. 11 The Deputy President made the following orders at [61] by reference to the orders sought by the applicant which the Deputy President set out at [59]: (i) that Mr Mossfield be re-employed as a probationary teacher with a six month probationary period to fulfil

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

(iii) that his employment be taken to be continuous

(iv) that he be paid back pay since 30 June 2005 until the date of decision

… The Application for Appeal 12 The grounds for the appeal as specified in the application for leave to appeal and appeal are as follows: 1. The Learned Deputy President erred in making the following findings: a. That the blood around the respondent's mouth, which he conceded was Keith's blood, must have been transferred from Keith's scalp in the continuing struggle, a fact which of itself indicates contract between Keith's head and the respondent's mouth as the respondent asserts. This follows a finding that the laceration to Keith's scalp was caused by the respondent's punch to the back of Keith's head. Neither the respondent, nor any witness, gave any evidence of any further contact between Keith's head and the respondent's mouth, after the respondent punched Keith in the back of the head, such as would explain the presence of blood in or near the respondent's mouth. This finding by his Honour is made without any evidence from either party to support it. b. That the respondent had not recently invented the claim that he had pushed Keith in the stomach with the end of his fingers, or touched him in the stomach, rather than punched him in the stomach as was alleged. In finding that there was no recent invention by the respondent, his Honour relied upon the respondent's written response to the applicant of 30 August 2004 in which the respondent denied using a closed fist. His Honour also relied, in this regard, on the respondent's second witness statement in which the respondent claimed that the hit to Keith's stomach "was not a punch" and "was intended to make him drop the computer hard drive by trying to stop my hand, and so to stop him throwing the computer at me or any of the students." His Honour misunderstood the "recent invention" submission of the appellant which was that the respondent's assertion that he "pushed" or "touched" Keith in the stomach was a recent invention which was a significantly different version of the incident than earlier versions given by the respondent. c. In relation to the allegation that the respondent punched Keith in the stomach his Honour, nowhere in the decision, deals with the admissions made by the respondent under cross examination to the effect that, after hitting Keith in the stomach, the respondent asked him "Are you okay?" and "Can you breathe?". Nowhere in any of the respondent's earlier versions of events are these statements referred to. They are referred to in the statements of Keith and other boys who gave evidence. They clearly support the conclusion that the respondent punched Keith in the stomach with sufficient force to wind him but these matters are not dealt with at all in the decision. d. That Keith harboured feelings of resentment after being suspended from Niland for his part in the incident, and that resentment caused Keith to paint the respondent's actions in the most damaging light. This finding ignores the fact that Keith's version of events was consistent from the outset in relation to the two punches he received at the hands of the respondent. e. The finding that the respondent was correct in his assessment of the situation, at the time he chose to intervene, as posing a clear risk to the safety of Keith and other students and to his own safety. His Honour does not deal with the range of alternatives that were available to the respondent, such as grabbing Keith's arm or hand, rather than hitting him in the stomach and then punching him in the back of the head. f. His Honour accepted the submission on behalf of the respondent that the evidence of the students, who observed the incident, should be treated with a high degree of circumspection given "…the inherent variations in theme and content as between them in certain respects and in other respects a degree of sameness… which is highly suggestive of memory of what may have been discussed among themselves rather than what was directly observed." However, his Honour does not identify these "variations in theme" nor does his Honour identify the "degree of sameness". Nowhere does his Honour give any reasons for, or explanations of, his rejection of any specific aspects of the evidence of Keith or the other boys, which aspects he fails to identify. g. His Honour held that the blow to the back of Keith's head presents "…almost insuperable difficulties in terms of its justification…". His Honour then refers to "…such extenuating circumstances as to make the degree of culpability attaching to the applicant's act of punching Keith to the back of the head significantly less than it might otherwise have been…". However, his Honour does not identify with any precision what these "extenuating circumstances" were. h. His Honour found that certain background incidents involving the respondent were taken into account in deciding to terminate the respondent's employment, and that those matters formed no part of the allegations put to the respondent in the show cause process leading up to his dismissal. 2. His Honour erred in holding that the appellant was obligated to proceed against the respondent pursuant to s.84 of the Teaching Service Act and the Teaching Service Regulation. The Evidence 13 Mr Docking of counsel, who appeared for the respondent, tendered an affidavit of Joanne Frances Macara sworn 9 January 2006. Ms Macara is a solicitor with the carriage of this matter. Ms Macara deposed that Mr Mossfield had had various casual employment positions since the annulment. Such employment has included working as a labourer in July 2005; working as a part-time lecturer for a 13 week period with the University of Western Sydney where he earned $400 net per week; working as a casual storeman for six days in December 2005; and working as a bottle shop attendant for six days in December/January 2006. 14 Mr Mossfield is married with three dependent children. The youngest of his children suffers from Gorlin's syndrome, which results in him being regularly hospitalised. The cost of his medication is approximately $48 per week after rebates. Mrs Mossfield is employed as a teacher by the appellant. The respondent has a mortgage of $300 per week. Weekly family expenses, including food, cars, petrol, insurance, rates, water and utilities total approximately $725 per week. 15 Ms Macara stated that to the best of Mr Mossfield's recollection, he gave evidence that following the annulment of his employment, he had spent approximately $8,000 of his personal savings and since that time he had spent an additional amount of approximately $7,000 from his savings. 16 Ms Macara further stated that Mr Mossfield had become despondent about his dismissal. His name is on the Commission for Children and Young People's list as a category 1, which results in Mr Mossfield not being able to obtain any child related employment. 17 Ms Macara stated that Mr Mossfield wishes to return to teaching. If there is no permanent place available for him, he would reluctantly be willing to return to the non-teaching duties at Mt Druitt School Education Office at Emerton until the appeal is determined. Submissions 18 Mr Murphy, counsel for the appellant contended that the Deputy President erred in a number of fundamental ways. He submitted that a finding that the respondent hit the student in the head was sufficient for the application to be rejected. Mr Murphy contended that the Deputy President erred in determining that the respondent did not punch the student in the stomach. This was, so it was submitted, inconsistent with the respondent's evidence in cross-examination that he asked the student if he could breathe. This, counsel submitted, was irreconcilable with a touch or push in the stomach. If dealt with properly, it was submitted it would have led to the conclusion that the respondent punched the student in the stomach. Counsel submitted that although the appeal challenged findings of fact and credit, the Deputy President had not appropriately utilised the advantage he enjoyed in hearing the matter at first instance. 19 Mr Docking opposed the stay. Counsel referred to a number of cases involving assaults where members of this Commission, or the Court of Appeal, have reinstated employees. Those cases included Woods & Hunter Area Health Service (unreported, IRC 4484 of 1997, Harrison DP, 19 March 1999) and HREA on behalf of Robert Drinan v Hunter Area Health Service [2002] NSWIRComm 270. 20 Counsel submitted that leave will not generally be granted if the appellant is unable to demonstrate that the appeal "raises substantial issues of principle or law, or has wider implications than the jurisprudence of this Commission, including whether a decision has widespread practical application": Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409. 21 Mr Docking also submitted that the approach of the Deputy President was consistent with classic expositions of the principles applicable to unfair dismissal matters and in particular, consistent with the observations of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (New South Wales Branch) [1973] AR (NSW) 231 at 233. 22 Mr Docking further submitted that the circumstances of this appeal involve a classic non-appellable exercise of discretion. It is not enough, so it was submitted, that the judges comprising the appellate court considered that if they had been in the position of the primary judge, they would have taken a different course: House v R (1936) 55 CLR 499. 23 Mr Docking further submitted that the Deputy President was not required to mention every fact, relying in particular on the observations of Kirby P, as he then was, in Pitcher v Langford (1991) 23 NSWLR 142 at 149 - 150. 24 In addition, Mr Docking submitted that the Deputy President had not misunderstood the recent invention argument and that such argument was not reasonably arguable in the appeal and that the appeal did not have reasonable prospects of success. Finally Mr Docking submitted that in order to be fair to the respondent, the fruits of victory should be enjoyed until the appeal is determined. Relevant Principles

25 Both counsel accepted, for the purposes of the stay application, that the principles set out by Walton J, Vice President in Michael John Burgess & Ors v Mount Thorley Operations Pty Limited (2002) 119 IR 52 were applicable in determining this application. At paragraphs 19 and 20 the Vice President said: [19] The principles which govern the exercise of discretion in considering an application for a stay in appeal proceedings have been elucidated in two comparatively recent decisions: Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 and Campbells Cash & Carry v National Union of Workers, New South Wales Branch (2001) 104 IR 400. The appellant is required to establish or demonstrate a sufficient and proper basis for a stay. The decision as to whether to grant a stay is a discretionary one, to be made by the Court after considering, among other factors, the balance of convenience and the rights of the parties. In certain cases, it may be appropriate to consider (as a very preliminary assessment) whether an appellant has a reasonably arguable ground of appeal or whether there is a serious question to be tried.

[20] I respectfully agree with the following principles which were succinctly stated in Re Transport Industry at par 19: "19 I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter:

(1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears.

(2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted.

(3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties.

(4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed.

(5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay.

(6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case."

Consideration 26 The usual starting point for consideration of any stay is that it is for the applicant for the stay to demonstrate why a stay should be granted in the particular circumstances which arise for consideration. 27 I am satisfied that the New South Wales Department of Education and Training has met that onus in this case. 28 In my view, it is appropriate to make an assessment of the appellant's prospects for success in this matter. That consideration is relevant to the question of the balance of convenience and the terms of any stay. Such an assessment is necessarily preliminary, as the Commission has not fully heard the parties on the application for leave to appeal, or the merits of the appeal. 29 In my view the appeal is arguable, but it is attended by some difficulties. First, it is contended that the Deputy President misunderstood a submission made by the appellant, the recent invention submission. The effect of the submission was that the respondent's assertion that he pushed or touched the student Keith in the stomach was a recent invention, which was a significantly different version of the incident than earlier versions given by the respondent. 30 In respect of the allegation that the respondent punched Keith in the stomach, the appellant contends that the Deputy President did not deal with admissions made by the respondent in cross-examination to the effect that after hitting Keith in the stomach, the respondent asked him "Are you okay?" and "Can you breathe?" 31 The second aspect of the challenge to the decision is the Deputy President's finding that the respondent was correct in his assessment of the situation and the time he chose to intervene. The appellant contends that the Deputy President did not deal with a range of alternatives that were available to the respondent, such as grabbing Keith's arm or hand rather than hitting him in the stomach and then punching him in the back of the head. 32 The third aspect of the challenge is to the failure of the Deputy President to give any reasons for, or any explanation of his rejection of specific aspects of the evidence of the student Keith and the other students. 33 The fourth aspect of the challenge to the Deputy President's decision is his failure to identify the extenuating circumstances that reduced the degree of culpability of the respondent's act of punching the student Keith to the back of the head. 34 Each of these challenges to findings made by the Deputy President would need to be considered in the context of the evidence before the Deputy President. Clearly I am not in a position, and nor is it appropriate for me to determine such questions at this preliminary stage, particularly in the absence of appeal books and submissions. However, it seems to me that it cannot be said that the contentions are without merit. 35 I consider that the factual matters that I should act on for the purposes of the stay application are the Deputy President's findings. This is so, because there is no presumption in the filing of a notice of appeal, even where the appeal has arguable prospects of success, that the first instance decision was wrong or would be set aside. 36 It cannot, in my view, be concluded that the appellant has no prospects of success. Given the reasons for dismissal that the respondent hit the student in the stomach and punched the student in the back of the head causing injury, I am unable to conclude that the balance of convenience favours the respondent in relation to the re-employment order made at first instance. From a preliminary assessment made at this stage of the proceedings, the appellant's prospects of success in the appeal need to be balanced against the nature of the employment of the respondent. 37 Mr Mossfield was yet to complete his probationary period of employment. It seems to me that, in light of the conduct complained of, the balance of convenience favours the grant of a stay. In reaching this conclusion, I am mindful of the observations made by Wright J President in IGA Distribution Pty Ltd and Moses [2001] NSWIRComm 235 at [38]: For two main reasons I consider that the factual matters which I should act on for the purposes of the stay application are the Commissioner's findings. First, because there is no presumption in the filing of a Notice of Appeal, even where the appeal has arguable prospects of success, that the first instance decision was wrong or that it would be set aside. Secondly, and which must be seen to be relevantly cumulative upon the first consideration, the respondent had worked in the relevant area without criticism of his personal performance or the satisfactory nature of his work for a period in excess of one year. In those circumstances I do not consider that it would be appropriate to find that it is not possible for the respondent to return to that area of work until the determination of the appeal. 38 However, in my view, it would be inappropriate for the appellant to be required to accept Mr Mossfield's return to employment pending the outcome of the appeal, because the allegations as to the employee's conduct are such that in my view the status quo should not change in the short term. 39 The more difficult question is whether the Deputy President's orders in respect of the payment of monies should be stayed. This raises the question of the terms upon which a stay should be granted to effectively balance the interests of the parties in a fair and appropriate way. This needs to be balanced against the reasons demonstrated for a stay. This is not without difficulty, but I consider that the way in which this should be achieved is to grant a stay, with conditions. In respect of the order that Mr Mossfield is to be paid back pay from 30 June 2005 until the date of the decision, I take the view that the appellant should be required to pay Mr Mossfield 50 per cent of the sum ordered. If the appeal succeeds, that sum will be repayable. There was no suggestion that Mr Mossfield will be unable to make such a repayment. If the appeal is not successful, the Department will be required to pay the balance of the amount ordered by the Deputy President, plus interest at Supreme Court rates. 40 It is also relevant that Mr Mossfield has had other casual employment, albeit employment where he has earned less than what he would have earned, had he continued to be employed by the appellant. This is a matter which I accept requires consideration in addressing the question of the conditions which might accompany a stay. In my view, the appellant should pay Mr Mossfield the difference between his ordinary salary when he was formerly employed by the appellant, and any salary that he now earns in his casual employment, pending the determination of the appeal. 41 This amount will not be repayable. 42 I am satisfied that these conditions will ensure justice between the parties, taking into account all of the circumstances. I therefore grant the stay of the orders made by Deputy President Grayson on 14 December 2005, on the following basis: 1. The New South Wales Department of Education and Training is to pay Mr Mossfield 50 per cent of the money ordered by Deputy President Grayson. If the appeal succeeds, this sum is to be repaid. If the appeal fails, the New South Wales Department of Education and Training is to pay Mr Mossfield interest on the other 50 percent of the money order made by the Deputy President at Supreme Court interest rates.

2. The New South Wales Department of Education and Training is to pay Mr Mossfield the difference between his ordinary salary whilst formerly employed by the appellant, and any salary that Mr Mossfield earns in any casual employment pending the determination of the appeal. This amount is not repayable if the appeal fails.

3. The Commission orders that the orders made by Deputy President Grayson in IRC 3745 of 2005 be stayed until further order of this Commission, on the terms set out in this decision. 43 The appellant and the respondent should assume that the time for the filing and serving of appeal books and written submissions will operate from the date of today's decision. In that regard the appellant should file and serve an outline of its submissions and a chronology within four weeks from today. The respondent should file and serve an outline of its submissions within a further four weeks from receipt of the appellant's submissions. The appellant is to file and serve any submissions in reply within a further two weeks from receipt of the respondent's submissions.

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