Was the dismissal harsh, unreasonable or unjust?
111I have found that Mr Krix committed misconduct within the meaning of the Teaching Service Act in relation to several matters. Those matters involved unnecessary physical contact with students, resulting in each case from circumstances escalating beyond, no doubt, what Mr Krix intended, but which in the end bordered on the violent. They included carelessness in the conduct of a dangerous experiment with the result that a student was seriously injured. They also involved a breach of an express and lawful direction.
112I note that Mr Krix makes no concession that any of his conduct was wrong or even ill-advised, save that he concedes that greater precautions might have been taken with the experiment in which the student was set on fire.
113I turn to the question of whether the dismissal was harsh, unreasonable or unjust.
114Section 88 of the Act sets out matters to which the Commission may have regard in the course of determining an application made pursuant to s.84. I have considered those matters. None of them change the effect of the essential consideration, that is, whether the dismissal was harsh, unreasonable or unjust.
115In determining this application I have had regard to the evidence of Mr Schipp, a senior Departmental employee of many years standing and the decisionmaker in this case.
116Mr Schipp gave evidence and was, very properly, pressed hard in cross-examination. In the course of his oral evidence he gave this account of his consideration of the matter:
Q As a probationer what was your view, what's the point of the probationary period from your perspective?
A The point of the probation period is to determine, I think it's described somewhere I've read, it's a period of time where both parties decide whether they are suitable to each other.
Q Would that have involved from the Department's perspective an assessment of whether someone conducts themselves in a manner that is suitable to warrant their permanent appointment?
A Well most certainly, that's the purpose from the Department's point of view.
Q And how did you regard Mr Krix's conduct vis a vis that issue?
A I had serious concerns about Mr Krix's conduct, what concerned me mostly about Mr Krix's conduct was, and I put my mind to this when I was looking, because I do accept that it's a serious step to take, it's someone's employment. What concerned me basically about it was, I have dealt over 38 years in schools where teachers who reacted inappropriately to students. Students can be very difficult, we deal with kid between 13 and 18 it's a tough period of their lives, it's difficult and there were no doubt whatsoever when I read the reports in here, Mr Krix was faced with some challenging students and I accept. And probably in a challenging environment at that school, having said that what concerned me most about Mr Krix, was not his inappropriateness of his reaction to that sort of behaviour. What concerned me most about it was that by his own behaviour he escalated, appeared to provoke and make situations worse. I would have expected a teacher at any stage of some of these issues we were looking at, to take the opportunity to step back, not easy to do. Mr Krix was sworn at, abused, that should never happen to any teacher but I have taught for 38 years it happened to me and the truth of the matter is that we have to have a way of dealing with that appropriately. If it becomes, I've got to save face or if it becomes a power game or you can't say that to me and this is a way I will react, then you are not suitable to be a teacher.
117Further requestioned, Mr Schipp said:
'There is no doubt whatsoever when I read a lot of Mr Krix's submissions in here, he did some wonderful work down at that ag farm and I don't think there is any argument in relation to that. However when I looked at his conduct and behaviour with students in a difficult setting, as I said he is not a man who has had 25 years of service with the Department and I could sit back and say, had a bad period of time, something has happened in his life, we will look at it.
Here is a man who is in his first year of permanent service with the Department whose behaviour is totally unacceptable, whose behaviour in the end is putting students at risk. When I made the decision to annulment I based it purely and simply on the basis that in the end, my job like the job of all people in the area in which I work is the protection of kids, that's what it boils down to in the end and I could not guarantee the protection of students, I honestly in my heart of hearts believed in a similar situation again where students perhaps stood up to Mr Krix where they abused him, where they swore at him and that will happen if you teach long enough in the service, if that will happen to you then I'm afraid I could not guarantee and have any confidence that Mr Krix would not react as inappropriately as he did at Riverstone.
118Mr Schipp was also asked a question by the Commission, as follows:
Q. Mr Schipp, section 5A of the Teaching Service Act; was that something that had any influence on the way you went about thinking about this matter, that's my question?
A. Most certainly sir. The truth of the matter is academic performance is good, social skills are formed, all those things are important in any teaching job within the school but my job and the job of any teacher in the school is in the protection and safety of students and that's what we all have to bear in mind and that's what I bear in mind in my job. And when I look at that, it's always risk management, Mr Krix as I have said I thought was in a very difficult situation with some very challenging students but as I said to you at the start, we get kids in their difficult period of time and if we got kids who are violent, abusive students and then if we react violently and abusive in return to them, then I think we are not going to change children, we are going to perpetuate that situation for those young people.
So I think my concern was certainly 5A and certainly as to whether Mr Krix was an appropriate person to be in front of our students and I decided he wasn't.
119I have set out Mr Schipp's evidence at length because in my view it is evidence both entirely central to and persuasive about whether or not the decision to dismiss Mr Krix was harsh, unreasonable or unjust.
120I have found that Mr Krix committed misconduct. The misconduct was serious. It involved in one case physically wresting with a student in the middle of a class, in another case carelessness in the conduct of a dangerous experiment with the result that a student was seriously injured, in another case physically intervening with three Year 7 students so that they fell to the ground, and in the last case breaching a lawful direction not to have such contact with students.
121Given that conduct, and given that it occurred all in the first 20 weeks of his probationary appointment, and given that Mr Krix is even now unable to see that there was anything wrong with any of his conduct, albeit he concedes that greater safety precautions might have been taken with the science experiment, I cannot see that it was either harsh, or unjust, or unreasonable to terminate his employment by annulling his probationary appointment.
122I repeat the particular evidence Mr Schipp gave concerning the decision to annul the appointment that he took. Of that he said this: 'When I made the decision to annulment I based it purely and simply on the basis that in the end, my job like the job of all people in the area in which I work is the protection of kids, that's what it boils down to in the end and I could not guarantee the protection of students.'
123The Department was obliged to take that approach. It could scarcely be otherwise given what had occurred under Mr Krix's charge and given the express statutory and common law obligations that the Department has toward students.
124 In that context I cannot see that the dismissal of a probationary teacher with such significant incidents of misconduct, involving conduct which more than once put at risk the safety of students, in the first 20 weeks of his employment was harsh. It was not, particularly given the obligation to protect students to which I refer above, and Mr Krix's inability to see that he has done anything wrong, and further expresses no contrition for that conduct or for his breach of a lawful direction given to him, unreasonable. The dismissal was lawful, and, again having regard to, specifically, s.5A of the Teaching Service Act and the considerations referred to by Mr Schipp and set out above, it was just.
125I have had regard to the fact that the loss of employment has a heavy consequence both financially and personally. I am obliged, however, to balance that against the conduct Mr Krix has actually committed in the context of his duty of care to students and the Department's statutory obligations to preserve the safety of students.
126Some concern was agitated by counsel for Mr Krix that the process denied him procedural fairness.
127So far as those concerns go to the statements obtained by the Departmental investigator, I have, as I say above, given that material no weight. So far as it goes to the letter to Mr Krix dated 12 September 2012 inviting him to make submissions, that letter is certainly badly worded. It expressly says that Mr Krix is invited to make submissions on, inter alia, the decision that he had committed misconduct.
128Yet when he attended an interview prepared to do that, he was told that he was there to make submissions on penalty. That is not what the letter says.
129That is not enough, however, to change the outcome of this case.
130As is well established, procedural fairness questions do not necessarily determine claims brought pursuant to s.84; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454. Here, the Department's decision, given its obligations to maintain the safety of students set out at length above and given Mr Krix's view that he has not in any event done anything wrong, but was justified in each action that he undertook, would be difficult to hold to be vulnerable to challenge on grounds of procedural unfairness even if that unfairness could be established on the evidence.
131In my view there has not been a departure from the bases of procedural fairness so as to take this matter outside the principles enunciated in Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep). Mr Krix was given opportunities to put his case to the Department, including extensions of time to do so.
132However, even were there some procedural unfairness, and noting my criticisms above of the wording of Department's letter to Mr Krix inviting him to make submissions, the matter has now been fully ventilated before the Commission.
133That has allowed the dismissal and all its surrounding circumstances to be reviewed, and has allowed Mr Krix to present a full case going to the substantive and procedural matters touching on his dismissal. To that end he has been represented by experienced and well-prepared counsel. That being so, any procedural unfairness that might be argued to have been visited on Mr Krix has been able to be remedied: Mason v Electricity Commission of NSW t/a Pacific Power (1995) 62 IR 436 at 442 per Hill J.
134The fundamental problem in Mr Krix's case, however, is that I am simply unable to accept his account of a number of critical events. Procedural questions could not change this.
135I have expressed the view than the decision to dismiss was neither harsh, unreasonable nor unjust. It follows that the orders I make in this matter are as follows.