Lawrence v Catholic Education Office, Sydney

Industrial Relations Commission (NSW)|1999-02-19|Before: Schmidt J, Barr JJ

CITATION : Lawrence v Catholic Education Office, Sydney [2002] NSWIRComm 115 ANTHONY LAWRENCE Applicant PARTIES : CATHOLIC EDUCATION OFFICE, SYDNEY Respondent FILE NUMBER: IRC 6053 of 1998 CORAM: Schmidt J CATCHWORDS : Unfair dismissal - summary termination for misconduct - dismissal occurred after District Court sentencing on criminal charges - successful appeal in Court of Criminal Appeal - imposed sentence served - onus falling on applicant and respondent - evidentiary burden falling on respondent met - respondent entitled to rely on conclusions reached in criminal trial - material from criminal trial and appeal sufficient to meet evidentiary burden - misconduct established - procedural difficulties arising in relation to dismissal - dismissal not harsh, given serious misconduct in question - application dismissed LEGISLATION CITED : Evidence Act 1995 Industrial Relations Act 1996 Briginshaw v Briginshaw (1938) 60 CLR 336 Bigg & Anor v NSW Police Service (1998) 80 IR 434 Byrne v Australian Airlines (1995) 69 ALJR 797 Kent v Department of School Education (unreported, Schmidt J, 19 February 1999) CASES CITED : M v M (1988) 63 ALJR 108 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Wang & Ors v Crestell Industries Pty Ltd & Anor (1997) 73 IR 454 R v Graham (unreported, Newman, Levine and Barr JJ, 2 December 1997) R v AJL [2000] NSWCCA 104 (12 April 2000) HEARING DATES: 05/13/2002 DATE OF JUDGMENT: 05/28/2002

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

MATTER NUMBER IRC 6053 OF 1998 ANTHONY LAWRENCE v CATHOLIC EDUCATION OFFICE, SYDNEY Application by Anthony Lawrence re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT

1 This application under s84 of the Industrial Relations Act 1996 ('the Act') was brought by the New South Wales Independent Education Union ('the IEU') on behalf of Mr Anthony Lawrence, on 16 November 1998. The application concerned the summary termination of the applicant's employment by the Catholic Education Office, Sydney, in October 1998.

2 The dismissal took place shortly after Mr Lawrence's sentencing in the District Court in relation to charges of indecent assault upon a former student of the school at which Mr Lawrence was employed as a teacher. Mr Lawrence later successfully appealed that conviction to the Court of Criminal Appeal, which ordered a new trial. Mr Lawrence had in the meantime already served the sentence imposed upon him, following upon his first conviction. The jury at the second trial was unable to reach a verdict and a new trial was ordered. Representations were then made on Mr Lawrence's behalf. This resulted in a decision not to proceed with the third trial.

3 This matter was the subject of conciliation in November 1999, it having been earlier agreed that the matter would not proceed while the appeal from the applicant's conviction was outstanding. At that point the appeal had been listed for hearing in March the following year. No agreement was reached on the claim, but it was agreed that the matter should await the appeal decision. While that agreement was not consistently maintained, it was reinstated. Mr Lawrence later instructed solicitors to represent him in place of the IEU and in November 2001, the matter was again conciliated without success. The matter was then programmed for hearing.

4 There were some difficulties encountered in the preparation of the matter for hearing, which were attended to by the parties before the Commission. When the hearing commenced, it was announced that Mr Lawrence no longer sought the order of reinstatement which he had been pressing, given the then state of his health. The hearing was shortly adjourned, while the parties again sought to resolve their differences. They were, however, still unable to reach an agreement and the hearing proceeded.

5 Evidence was given by the applicant, and the respondent called Mr Ford, the respondent's employee relations officer.

6 The applicant had been employed as a full-time teacher by the employer since 1980 and earlier on a part-time basis, while completing his studies in the four preceding years. He was also a Deacon of the Catholic Church, actively involved in Church life over that period. In May 1997, he was charged with having committed aggravated indecent assault upon a student of the school in December 1995.

7 The applicant was granted unconditional bail and a few days later was suspended, on pay, from his teaching duties. He has not worked as a teacher since that suspension.

8 The applicant denied that he had committed the offences with which he was charged, pleaded not guilty to them and defended himself at the trial. The jury returned guilty verdicts in relation to all the charges, after a 6 day trial.

9 This verdict came to the attention of the employer. Mr Ford had responsibility for dealing with the matter. On 1 September, he wrote to the applicant advising: 'Such behaviour is clearly inconsistent with your continued employment as a teacher in a Catholic school. Before making a final determination regarding your employment, the Catholic Education Office would ask if there are any issues you believe it should consider. Your written response is required by Friday, 11 September.'

10 The applicant replied on 11 September, alluding to his background of service to the Catholic Church, reiterating his denial of the allegations, which he described as having flown from the student's self confessed 'attraction' to him. He also advised that he would be appealing his conviction, despite the financial hardship he had faced in funding his defence, which had left him all but penniless. He said that: 'However, I do not intend simply to fade away. Once vindicated by the appellate court, I am determined to resume my career. I will not have my life destroyed by an adolescent's admiration turned nasty. Nor will I be pushed aside by a so called "youth worker" who, appearing from the complainant, "suffered" several perjury-avoiding memory losses during cross examination. As for my relationship with the Catholic Education Office, I would remind you that the alleged offence is claimed to have taken place whilst I was an agent of the Office. My appeal is not simply for personal advantage. I want the accusation to be revealed for what it is and the verdict quashed. I would suggest that the Catholic Education Office has a particular interest in seeing me vindicated.

11 On 21 September, Mr Ford replied advising: 'The Catholic Education Office is prepared to take no further steps against you at this stage and to review the matter following the conclusion of your appeal. You will continue to be on leave without pay. However, it will be necessary for me to keep in contact with your solicitor to enable me to ascertain when the appeal will be lodged and when it will be heard. For this purpose, I enclose an Authority addressed to your solicitor to enable him to supply me with such information. Would you please sign it and return it to me so that I may liaise with your solicitor in this regard. You should not take our decision to review the matter following the appeal as any indication that the outcome of your appeal will necessarily affect the outcome of your employment position with us. The two matters are entirely separate and we will have to review your position after taking into account the factors which are relevant to your employment.'

12 On 16 October, Backhouse DCJ sentenced the applicant to 400 hours of community service. This sentence was drawn to Mr Ford's attention shortly afterwards and led to a review of the employer's approach. A copy of the transcript of the proceedings was obtained and reviewed by Mr Ford, who discussed these developments with Brother Kelvin Canavan, the Executive Director of Schools and also with the respondent's Director of Human Resources. There was an issue in these proceedings as to how much of this material was considered by Mr Ford. Nevertheless, it was clear that it was consideration of this material which led to the applicant's summary dismissal on 26 October, when he was advised in a letter from Brother Kelvin that : 'I am writing to you as a follow up to Peter Ford's letter, dated 21 September 1998, to which we have received no reply. That letter follows his prior letter of 1 September 1998 and your correspondence of 11 September 1998. The contents and context of these letters have been considered by me and Mr. Ford has also made me aware of the decision of Backhouse J. on 16 October, 1998. As a consequence of these deliberations I have decided to summarily terminate your employment as of today's date.'

13 Mr Ford's evidence was that once the trial material was reviewed, it became apparent to the employer that the letter of 21 September had been inappropriately or hastily written. The view then reached was that a jury of twelve had reached a guilty verdict on the material before it, beyond reasonable doubt. This was a different standard than that to which the employer had to be satisfied. Dismissal followed.

14 It was submitted for the applicant by Mr Johnson of counsel that where an employer had summarily terminated employment for misconduct, in proceedings such as this an onus fell upon the employer to demonstrate that the alleged misconduct had occurred.

15 Here, in 1997, allegations had been made as to inappropriate behaviour by the applicant. A jury proceeded to hearing the evidence and found him guilty of those allegations. The Commission had no idea what material the jury had before it in coming to that view, because that material had not here been put in evidence. What was known was that there was a finding of guilt, and a successful appeal to the Court of Criminal Appeal, whose decision was in evidence. There was also a new trial, where the jury was unable to agree upon its verdict.

16 That position, it was submitted, presented the Commission with a particular difficulty, because there was no evidence from which the employer could discharge the onus placed upon it, to prove that the serious misconduct in question had occurred.

17 It was also argued that it would be concluded that Mr Ford had taken a particularly cavalier approach to the affidavit he had sworn. His evidence demonstrated that he had not properly investigated the payments made to Mr Lawrence, which were conceded not to have been made on an ex gratia basis. He was paid only entitlements which he had.

18 Mr Ford had further indulged in evidence bending in relation to what he had read, before the decision to dismiss the applicant was made. His affidavit evidence suggested that only some documents had been read, but his evidence at the hearing was that he had read all of the transcript. The proper finding was that this evidence was a fabrication.

19 It was also submitted that the employer's failure to honour the assurance it had given the applicant, that it would await the appeal court's decision before making a decision on continued employment, had made the dismissal unfair. The employer did not follow its own process, which would have been more fair or right.

20 Rather, what occurred was that the promise was not adhered to, when only a portion of the transcript of the first trial had been read on one version, or on another all of the transcript, including an inadmissible portion of the evidence. This removed from the applicant, the opportunity which he would have had, of the employer giving consideration to the Court of Appeal's view that another trial was required, because he had been denied an opportunity of an acquittal.

21 Essentially the position reached was dismissal, without regard to whether or not the facts in question had been made out. This, it was argued, would lead to a finding in favour of the applicant and an order for compensation of the maximum 26 weeks' pay.

22 Mr Wilson, solicitor appearing for the respondent submitted that it would not be overlooked that the applicant's dismissal followed upon his conviction and sentencing on 3 counts of assault involving the commission of an act of indecency against one of his students. The decision was made after consideration of the transcript of the hearing, including the trial judge's observations on sentencing, the applicant having been found guilty by a jury. The circumstances plainly made unavoidable the conclusion that the applicant's conduct was inconsistent with his continued employment as a teacher in the respondent's employ.

23 It was conceded that the decision was made inconsistently with the earlier advice which the applicant had been given, that the employer would await the outcome of the appeal decision. It was also accepted that there was an onus on the respondent to establish that the misconduct in question had occurred. The onus to demonstrate that the dismissal was unfair, still rested upon the applicant, it was submitted.

24 Here it was argued that the conviction of the defendant of the offences in question was of itself, sufficient both to warrant the applicant's instant dismissal and to satisfy the onus which fell on the employer in these proceedings, to demonstrate that the misconduct had occurred. There was no call in those circumstances for the employer itself to conduct a separate investigation, the conduct had already been established, indeed by evidence to the criminal standard.

25 The respondent had access to the transcript of the proceedings, after it had already given the applicant an opportunity to make representations to it about his dismissal. It did not concede that its departure from the assurance that it would await the outcome of the appeal, rendered the dismissal harsh, unreasonable or unjust. To the contrary, it argued that once it was in receipt of the evidentiary material accepted by the jury, it had a duty to consider that material and its implications for ongoing employment. The applicant had already been advised that the outcome of the appeal would not, in any event, be determinative itself of the question of continued employment; it knew that the applicant continued to protest his innocence, but the detail of the evidence which came to its attention then also had to be weighed. It was that information which caused the respondent to change its attitude and to move to dismiss the application.

26 Reliance was also placed upon the views expressed by the Court of Criminal Appeal, which concluded that despite the fact that the criminal proceedings involved a contest between the evidence given by the applicant and the student, it had been concluded that the evidence had provided a proper basis for the jury to reach the conclusion which it did, that the charges had been proven to the criminal standard.

27 It was also submitted that the Commission would reject the attack made on Mr Ford's credit. He had gone out of his way to correct an error which he had discovered in his understanding of the payments made to the applicant. That had arisen out of a departure from instructions given and recorded on the relevant file. This was not consistent with a witness not giving truthful evidence.

28 In reply Mr Johnson argued that Mr Ford would not be accepted as a witness of truth, nor did the decision of the Court of Criminal Appeal have the force asserted. That court had ordered a retrial because the evidence of the social worker to whom the student first made the allegations in question, had been wrongly put before the jury, thereby depriving him of an opportunity of acquittal. It was conceded that this evidence was material to which the employer was entitled to have regard in the decision which it came to, but it was emphasised that the evidence would lead to the view that this evidence had not been considered before dismissal in any event. It was also conceded that there was no evidence as to what had occurred at the second trial.

29 The law in relation to applications brought under s84 is well settled. An applicant bears the onus of demonstrating that the dismissal was harsh, unreasonable or unjust in all of the circumstances which prevailed. Where an employer has dismissed an employee summarily for serious misconduct, the employer has an evidentiary burden of establishing that the misconduct occurred. In each case the onus is a civil one, although as to the misconduct, the evidence must "be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at p362." (See Wang & Ors v Crestell Industries Pty Ltd & Anor (1997) 73 IR 454 at 464. See also Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 and the discussion of these decisions in Bigg v NSW Police Service (1998) 80 IR 434 at 452 to 456.)

30 It must be observed that none of these decisions concerned a dismissal after a conviction on criminal charges. In Wang, charges of theft had been laid against one of the applicants, but they had been dismissed. The other two applicants were never charged by the police. The parties there led evidence as to the circumstances of the dismissal and Commissioner Connor concluded that the dismissal of these applicants had not been demonstrated on the evidence to have been harsh, unreasonable or unjust. On appeal the Full Bench concluded that the Commissioner's finding that the appellants had been involved in the unauthorised removal of the employer's property from its premises was open.

31 The process adopted by the employer in effecting the dismissal was also challenged on appeal in Wang. The evidence was that the employer had relied on the police who had interviewed the employees, to give them advice of their dismissal. It was not communicated direct to them and the employees were not interviewed by their employer or given an opportunity to defend themselves. The Full Bench concluded, following the approach of the High Court in Byrne v Australian Airlines (1995) 69 ALJR 797, that the seriousness of the misconduct there established was such that the lack of procedural fairness did not render the dismissals in question, harsh, unreasonable or unjust.

32 In Byrne, while the High Court observed that an unfair procedure might result in a dismissal being harsh, unreasonable or unjust, it was concluded at p805, in the joint judgment of Brennan,CJ, Dawson and Toohey JJ that: 'Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a) ( Gregory v Philip Morris Ltd (1980) 80 ALR 455 at 471, 473, per Wilcox and Ryan JJ; Wheeler v Philip Morris Ltd (1989) 97 ALR 282 at 306-307, per Gray J.) On the other hand, if an employer were to observe their actual misconduct of an employee in circumstances which allowed no innocent explanation, a summary dismissal might not be in breach of cl 11(a). And facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable (See Lane v Arrowcrest Group Pty Ltd 1990) 27 FCR 427 at 456). It was not, therefore, a permissible approach for the Full Court to reach a conclusion adverse to the respondent based upon the procedure employed in dismissing the appellants without considering whether the trial judge was correct in reaching the conclusion that there was sufficient evidence to establish that the appellants were involved in misconduct alleged against them. Special leave to cross-appeal should be granted and each of the cross-appeals allowed. The matters should be remitted to a Full Court of the Federal Court to be reconsidered in the light of this Court's reasons.'

33 In Pastrycooks Employees, Hungerford J was not concerned with misconduct which had led to criminal charges being laid, but rather with a van salesman elected to the position of union delegate who had been summarily dismissed for misconduct after he refused to make a delivery to a customer. There were issues before his Honour as to whether the employer had given the employee a lawful direction to perform the work in question and whether the employer had departed from established custom in relation to the performance of such work. The case did not concern serious misconduct of the kind dealt with in Wang, or which arises in this case, involving allegedly criminal behaviour. Such circumstances come but relatively rarely before the Commission. Another example of such circumstances were those dealt with in Kent v Department of School Education (unreported, Schmidt J, 19 February 1999).

34 One of the issues which here arose was whether, in circumstances where an employee has been convicted of a criminal offence, in relation to the conduct which constituted the misconduct, in respect of which the employer then acted to dismiss the employee, the employer is entitled to accept that the conviction itself established that the misconduct had occurred, so as to permit the employer to act to terminate the employment. A second issue was whether the employer was entitled to rely on the material revealed in the criminal trial, in order to satisfy the evidentiary burden which falls upon it in proceedings such as these, to demonstrate that the misconduct in question had occurred.

35 In my view there can be no doubt that an employer, in the face of a conviction of the kind which here arose, is entitled to rely upon the conviction as demonstrating that the misconduct in question had occurred. A prudent employer may well, as the respondent here did, give the employee an opportunity to raise anything which the employee regards as relevant to the employer's decision as to whether employment can properly be continued in the face of the conviction. Matters so raised should then of course be taken into account in any decision reached. There can, however, be no question that notions of fairness do not require an employer faced with circumstances where the employee has been convicted of such an offence, to then also conduct its own separate investigation into the matters already dealt with in the criminal proceedings.

36 In this case the employer was faced with circumstances where the allegations of misconduct came to its attention after the applicant had been charged by the police. The employer then waited until the criminal proceedings were completed. At that point the student, the applicant and the other witnesses called in the respective cases at the criminal trial had given their evidence and had been cross examined. The jury had convicted the applicant on that evidence and the applicant had been sentenced by the Court. The employer then reviewed the transcript of the proceedings and formed a view that the circumstances were such that continued employment of the applicant as a teacher was not possible.

37 I am well satisfied that this situation was one where the criminal trial, at which evidence was led which convinced the jury that the applicant was guilty of the charges in question, was a sufficient basis upon which the respondent was entitled to act. I am also satisfied that the material upon which the respondent so acted, would also provide an adequate basis for it to meet the evidentiary burden which falls upon it in these proceedings to establish that the misconduct had occurred.

38 As to whether that onus has been met in this case, given that not all of the material in the criminal trial was put in evidence in these proceedings, I have reached the conclusion that even though the entire transcript of the criminal proceedings was not tendered in these proceedings, the material in evidence was sufficient to satisfy the evidentiary burden falling upon the respondent.

39 The reasons for that conclusion are these. The respondent sought to tender the transcript of the proceedings - or at least those parts which contained the evidence given by the student and the applicant. The applicant had himself already tendered the transcript of the judge's summing up to the jury and her remarks on sentencing, as well as the decision of the Court of Criminal Appeal in relation to his appeal from that conviction.

40 The applicant objected to the tender of the evidence given by the student. There were complaints of surprise made and the respondent ultimately did not press the tender of any of the transcript. That circumstance arose out of a motion which had been earlier filed by the applicant in April, when the vacation of the hearing, fixed for May, and leave to file further evidence was sought. As earlier noted, the hearing had been listed in November 2001, when directions were given for the filing of affidavit material. The applicant did not comply with those directions and the matter was mentioned on several occasions, with the respondent foreshadowing an application to have the matter dismissed for want of prosecution.

41 The applicant's April motion was supported by an affidavit explaining that he had been suffering from a condition which precluded him from dealing with his day to day affairs and that as a result, he had been unable to instruct his solicitors in relation to the preparation of the matter for hearing. It was also explained that his financial position had prevented him from obtaining access to the transcript of the criminal proceedings, which he required in order to pursue his application.

42 Consent arrangements were then made, as between the parties, which involved the respondent providing a copy of the transcript in question to the applicant and a very truncated timetable for the filing of the evidence being agreed, in order that the hearing dates in May could be preserved. It was revealed at the hearing that in the course of these arrangements being implemented, by oversight one part of the transcript had not been provided to the applicant and hence the complaints of surprise and objection to the tender of the transcript were pressed.

43 So it came about that the transcript of all of the proceedings at the criminal trial were not put in evidence in these proceedings. For the applicant, this led to the submission that the respondent had not met the evidentiary burden which fell upon it to demonstrate that the misconduct in question had occurred. This was denied by the respondent, which relied upon the fact of the conviction, as well as upon the transcript which the applicant had tendered, together with the judgment of the Court of Criminal Appeal.

44 As I have already said, I have concluded that the applicant's submissions in relation to the evidentiary burden falling upon the respondent having not been here met cannot be accepted.

45 Where an employee seeks to challenge the fairness of a dismissal in proceedings brought under s84 of the Act, as has often been observed, the Commission is not hearing an appeal from the employer's decision. Nor is it concerned to establish what decision it would have made in the circumstances, had it been the employer. The Commission is also not in any way obliged to rehear what was already been dealt with in the criminal proceedings. The statutory injunction is rather to determine whether the applicant's dismissal was harsh, unreasonable or unjust, as the applicant complains in light of all of the evidence.

46 Here, the applicant was convicted in September 1998 of a number of serious offences in relation to a student at the school at which he was employed. There can be no room for argument that such offences, as Mr Ford described them in his letter of 1 September, reflected conduct inconsistent with the applicant's continued employment. Nor can it be argued that such conduct, if it had occurred, amounted to serious misconduct warranting summary dismissal.

47 The applicant was then given an opportunity to draw to the employer's attention any matters which he wished to have considered before a decision was made. The applicant's response consisted of a protestation of his innocence and advice of his intention to appeal his conviction. The respondent's attitude to this advice was one which it was plainly entitled then to adopt. It decided that it would await the outcome of the appeal, before giving further consideration to the applicant's continued employment.

48 That approach was soon departed from by the respondent. The initial decision as to continued employment was taken before any consideration was given by the employer as to what had been revealed in the criminal proceedings. Mr Ford's evidence was that when he first wrote to the applicant, he only had a general understanding of the allegations which had been made against the applicant, although he had approached the District Court and had received confirmation from the Court of the applicant's conviction. Mr Ford had also been involved in discussions with the applicant's union representative and with Brother Kelvin, before the decision to await the appeal outcome was made.

49 The Catholic Commission for Employment Relations ('the CCER'), however, later notified Mr Ford of the sentence imposed upon the applicant by Backhouse DCJ on 16 October and then also provided him with a copy of the transcript of the proceedings. There was an issue between the parties as to whether or not Mr Ford then read the whole of the documents with which he was supplied. I am not convinced that the evidence which he gave on oath at the hearing, that he had done so, should be disbelieved as having been a fabrication.

50 Mr Ford said in his affidavit as to this, that: 'On or about 17 October 1998, I was notified by Mr Darrin Martin, the then Employment relations adviser with the Catholic Commission for Employment Relations (hereinafter referred to as "CCER"), who informed me that Mr Lawrence had been sentenced in the District Court. Shortly thereafter I recall contacting Mr Bernard O'Donnell, the then Senior Employment Relations Adviser, with the CCER, Mr O'Donnell arranged to obtain for me a copy of the transcript of the District Court proceedings. I read the transcript of the evidence of Mr Lawrence and …, the alleged victim and principal witness for the Crown. I also read the summing up of the Judge, Her Honour Judge Backhouse. I contacted Mr O'Donnell in relation to the factual findings. Mr O'Donnell said words to the effect: "These are very serious matters Peter. The allegations have been dealt with in a three day hearing before a jury of twelve and they formed the view, beyond a reasonable doubt that Anthony Lawrence committed these acts. The CEO's got to decide if this is incompatible with his duties as a teacher (and I think it is). In my opinion it would not be unfair to now terminate Mr Lawrence's services." '

51 I accept Mr Ford's oral evidence, given in cross examination, that he had in fact read the whole of the material with which he had been provided and that the words he had used in his affidavit had not been intended to convey that he had not done so. I also accept that in his affidavit he was seeking to emphasise that he had read those parts of the material he considered relevant to these proceedings. Although the affidavit could plainly have been more clearly expressed, I have been influenced in coming to that conclusion both by the circumstances in which this matter was prepared for hearing and by the evidence which Mr Ford gave in relation to other paragraphs of his affidavit, where he had sworn that the applicant had received ex gratia payments from the respondent.

52 The position as to this was that when he swore his affidavit, Mr Ford had understood that this was the basis of certain payments made to the applicant prior to his dismissal, given the instructions he and others had given about payments to be made, which were reflected in the relevant file. The position was revealed to have been different, when Mr Ford had later checked the relevant payroll records after having sworn his affidavit. The instructions for ex gratia payments to be made had resulted from understandings as to the applicant's entitlements. Instructions as to ex gratia payments were first given before a claim for sick leave had been received and granted. Sick leave had then been backdated, so as to cover a period which had earlier been directed to be paid on an ex gratia basis, there no longer being any need to do so. Later, a further sick leave entitlement arose and it again proved to be unnecessary for the ex gratia payments directed to be made. Mr Ford had prepared his affidavit, having checked his file. He had only later checked the respondent's payroll records, which had revealed his misunderstanding, which was consistent with the instructions recorded in the relevant file. He had then set out to correct the inaccuracies he had discovered in his affidavit when he was called to give his evidence at the hearing.

53 At the hearing Mr Ford did not present as a witness setting out to mislead the Commission in his evidence. The reverse was the case. All of his evidence was candidly given, even when it did not assist the case pressed by the respondent. I take the view that no case was made out for the conclusion that Mr Ford had lied on his oath.

54 It follows that it must be concluded that Mr Ford had regard to all of the material with which he was provided in relation to the criminal trial. When considering the evidence given in the criminal proceedings, Mr Ford was, of course, doing so for a different purpose to that for which the evidence was there given. The criminal court, the jury and the witnesses were all concerned with whether the applicant had committed the offences with which he had been charged. Mr Ford was considering whether the applicant's employment could continue, in light of what had been revealed in those proceedings.

55 As I have already noted, there was no question that the conduct in question would have amounted to serious misconduct warranting summary dismissal, if it had occurred. It was that matter with which the employer was concerned. Not all of the material considered by Mr Ford was in evidence in these proceedings. The transcript of Backhouse DCJ's summing up to the jury was attached to an affidavit sworn by the applicant, as was her Honour's remarks on sentencing, the notice of appeal from the decision and the decision of the Court of Criminal Appeal. The evidence which had led to the conviction was described in some detail in those documents, particularly in the judgment of Powell JA in the Court of Criminal Appeal. Hulme and Dowd JJ agreed with his Honour's judgment.

56 Powell JA summarised the case which the Crown had set out to establish at the hearing as follows: 9 As I have earlier recorded, at the time of the alleged offences, the Complainant was in Year 10 at the school which he then attended. Towards the end of that year - the date was later identified by the investigating police officer as 6 December 1995 - there was held at the school a function, apparently known as an employers' awards night - the awards were apparently sponsored by employers and businesses in the district and went to students who, during the year, had been doing work which was relevant to the business of the sponsors. Associated with the presentation of the awards was a dinner for the sponsors, teachers and pupils who were to receive awards. At the time wine and beer were available for the adults who were present and there were soft drinks - such as Coca Cola and lemonade - for the pupils who had attended. As the Complainant was to receive an award that evening, he was in attendance both for the presentation and at the dinner.

10 Although the evidence is not entirely clear, it would seem that, after the presentations but before dinner had been served, many of those present stood around in conversation. The Complainant's evidence was that, while was this was occurring he was talking to the Appellant. While they were talking, the Appellant obtained a cup of white wine for the Complainant who, when he tasted it, did not like it and drank no more of it.

11 At the time when this function was held, there had been erected in the school grounds a new chapel which, at the time, was in the process of being fitted out. The plan which was tendered on the hearing indicates that the chapel was rectangular and the description later given of it by the Appellant when interviewed by the police was that it contained three rooms, they being, the body of the chapel and, separated by a wall which was behind the place where the altar was to be installed, two rooms described by the Appellant as a work area with a sink and a storage area.

12 While the Complainant and the Appellant were talking, the Appellant asked the Complainant if he wished to see the chapel. Although the chapel was situated in a area to the side of the hall, access to it was restricted and direct access was not possible so that, if one wished to see the chapel, one had to proceed from the hall around three sides of a building then used as a library and thence to the chapel.

13 When they reached the chapel, they entered it and the Appellant pointed out to the Complainant various features of it, such as lighting and the effects which could be achieved by the lighting and the intended place for various items, such as the cross - when the chapel had been fully fitted out.

14 When that had been done, the Appellant and the Complainant then proceeded to the far end of the chapel where the Appellant opened the door into what the Complainant, in his evidence, described as a room "where the priests get changed into the - into the garments" - this I take to be a reference to the priests' vestments. Although not further identified, it seems probable that the room in question was that described by the Appellant in his record of interview as the storage area. The Complainant walked in, followed by the Appellant. Although the room was not lighted the door was then closed by the Appellant. The Appellant then held the Complainant's arms near his shoulders and said something about right or wrong. He then bent over and kissed the Complainant on the mouth. The Complainant could feel the Appellant's tongue on his lips and could smell alcohol on his breath. The kiss lasted no more than a minute. When the Appellant stopped he said "This is wrong" and they walked back out of the room. The Complainant did not consent to the Appellant kissing him. This incident was the subject of the first charge in the indictment.

15 After they had left the chapel, the Complainant and the Appellant walked alongside one wall of the library building before turning right to pass along what appears to have been the front wall of the library building before turning right again in order to walk back to the hall. As they did so, the Appellant had his hand on the Complainant's shoulder. While they were walking along the front of the library building, they were passed by another teacher - either a Mr. Mc or a Mr. D, the Complainant could not remember which - walking in the opposite direction.

16 After they had passed the other teacher, instead of turning right at the end of the library building, the Appellant guided the Complainant towards the front gate of the school, using his hand on the Complainant's shoulder to do so. When they reached the entrance of a building described as the Year 12 block, they entered and went up a staircase stopping on a landing. The block was closed that night and it was dark.

17 When they reached the landing, the Appellant started to kiss the Complainant again. The Complainant may have said something about wanting to go back to the hall. The Appellant said "Don't worry this won't take long". As the Appellant kissed him, he (the Appellant) rubbed the area of the Complainant's penis on the outside of his clothes. The Complainant had an erection. The Appellant unzipped the Complainant's trousers and put his hand on the inside of the Complainant's underpants and began rubbing the Complainant's penis. The Complainant did not consent to the Appellant kissing him on this occasion or touching his penis. This incident was the subject of the second charge in the indictment.

18 The Appellant then unzipped his own trousers and began masturbating himself. The Appellant was touching his own penis with one hand and the Complainant's penis with the other. The Appellant then took the Complainant's hand and placed it on the Appellant's penis and started moving his body in a thrusting motion. At this point the Complainant noticed that the Appellant was circumcised. The Appellant pushed the Complainant's head down towards his penis. The Complainant moved back and the Appellant started touching himself again until he ejaculated. The Complainant could see a white spot on the ground. The Complainant did not consent to the Appellant touching his penis or to the Appellant putting his (the Complainant's) hand on the Appellant's penis. This incident was the subject of the third charge in the indictment.

19 The Appellant then zipped his trousers up and apologised. They then left the Year 12 building, turned left to walk back towards the hall which they entered. The Complainant did not tell anyone at the hall what had happened. He said he wanted to forget it, he was confused, and could not make sense of it.

20 The following year the Complainant continued to attend the school as a pupil in Year 11. During the year he saw the Appellant occasionally but never in private. In 1997 the Complainant, for reasons which do not bear on the present matter, changed school and moved out of his parent's home. When he did so, he stayed in various crisis centres, staying in the third such centre for most of the year 1997.

21 Shortly after he went to live in the third centre he disclosed to his case worker Ms. B. what had happened to him in Year 10.

22 Ms. B. gave evidence that, in March 1997 she was a youth worker at the third of the centres where the Complainant lived in 1997. According to the records of that centre, the Complainant arrived there on 10 March 1997. On 15 March 1997 the Complainant disclosed to her what had happened to him at school. Ms. B. made notes about the conversation with the Complainant on the following morning and made an entry in the communications book which was kept at the centre. In the circumstances, it is unnecessary to record in any detail what was the evidence given by Ms. B. as to what the Complainant told her in March 1997.

23 Detective Senior Constable Fileman attached to the Child Protection and Enforcement Agency was officer in charge of the case. He gave evidence of having spoken to the Appellant on 20 May 1997 and informed him that he had received a complaint from the Complainant, which complaint the Appellant said he rejected. The Appellant was taken to the Police Station and interviewed by way of ERISP in the course of which interview the Appellant denied the allegations which were put to him. However, while he said he was not sure whether he showed the Complainant the chapel he said that he may have done so, and that, while he could not recall giving the Complainant a glass of wine, it was possible that he did so. Detective Fileman attended the school with the Complainant during June 1997 and took some photographs. He checked a diary entry which identified the evening in question as having been on 6 December 1995.

24 Each of Mr. Mc. and Mr. D. was called to give evidence, the former giving evidence that he attended the function in question and recalled the Complainant and the Appellant being present but did not recall crossing paths with anyone when he walked from the hall to his car that evening, and the latter giving evidence that he attended the function in question but could not recall whether the Complainant or the Appellant was present nor did he recall seeing the Complainant in company with the Appellant that night.

57 His Honour also summarised the case which the applicant had sought to advance at the hearing: 33 The Appellant gave evidence that he had been a school teacher for twenty-eight years and that apart from matters then under consideration he had been never charged with, or convicted of, any criminal offence.

34 It was the Appellant's duty to co-ordinate the catering for the evening in question. The evening was a means of thanking employers who had given time and effort to make the work experience programme a success. It was a chance for them to see the work of the students. It was a general "PR exercise" for the school.

35 The Complainant was a student at the school and was present at the awards night function. During the night there was some talk among the students about trying to get some wine. The Complainant asked him for some wine. The Appellant said that as a joke he obtained a small plastic party glass of wine and gave it to the Complainant in front of some other people. The Complainant took a sip and said "Oh that's revolting" and gave it back to the Appellant. The Appellant said that they all laughed.

36 The Appellant had a conversation with the Complainant about the chapel during which the Complainant asked if he could see the lighting in the chapel. The Appellant can recall saying to someone "I'm just going to show (the Complainant) the lighting". The Appellant and the Complainant left the hall. At the chapel, the entrance doors were open and the lights were on. The Appellant switched some of the lights up and down and the Complainant used the lights to get different effects. The Appellant then said "We'd best go". At no time did the Appellant enter the small rooms near the altar with the Complainant on that evening. Earlier that afternoon the Appellant did go into one of the rooms to prepare the chapel. At no stage whilst in the chapel did the Appellant kiss the Complainant or touch him on the shoulders.

37 They then walked back along the driveway between the Year 12 block and the library. At the first logical point they turned right and walked down past the library and back in the double doors of the hall. At no time that evening did he go to the Year 12 stairwell with the Complainant. At no time did he touch the Complainant in a sexual way or have the Complainant touch him in a sexual way. They returned to the hall and the Appellant spoke to another teacher Mr. R. He saw the Complainant accompany Mr. R. to a table with several others.

38 The Appellant left prior to the end of the evening function because of the condition - sleep apnoea - from which he suffers and which renders him unable to stay awake beyond late evening. He had been working at the function all day and was exhausted. He left quietly, saying goodbye to only a few people.

39 On the day that the Appellant was interviewed by police he was particularly unwell. During the police questioning he felt totally exhausted. He asked both Detective Fileman and Officer Sanders for medication but did not discuss with the officers his ailment.

40 Mr. R. gave evidence that he was a secondary English teacher formerly teaching at the school. A fellow teacher and colleague while he was at the school was the Appellant. Mr. R. can recall the Appellant and the Complainant being present at the function. He observed the Appellant leaving the hall on several occasions during the night to show different groups of people the chapel. He also recalls seeing the Appellant and the Complainant leaving the hall together. The Appellant said to him "I'm just showing (the Complainant) down to the chapel, I'll be back soon." Shortly afterwards Mr. R. left the hall to go to his car to find some headache tablets.

41 Mr. R's car was parked at the end of what was described as F block opposite the library. While he was there, he observed the Appellant and the Complainant walking from the chapel area around the library. From what he could see the Appellant was not touching the Complainant. He saw them walk along the staff car park area which runs parallel to the Year 12 block towards the hall. He was standing at his car when he observed this.

42 Mr. R eventually closed the car door having found no headache tablets. On his walk back to the hall he did not lose sight of the Complainant and the Appellant. From his perspective they could not have gone straight ahead past the library and into the Year 12 block. Upon entering the hall Mr. R spoke to some staff and senior students. He asked the Appellant about getting some headache tablets. He later sat down with the Complainant and his brother and had dinner with them.

43 A Ms. V gave evidence that she was a teacher and in 1995 taught at the school. She did not attend the function on the evening in question. She had been in the Year 12 stairwell after sunset in December. It is very dark. If she was standing on the landing with the internal light fixtures extinguished she would not be able to see the ground. There is a window above the stairwell but it is covered in a thick mesh and is very dirty.

44 A Mr. L gave evidence that he is a teacher and colleague of the Appellant at the school. In December 1997 at about 9.30 in the evening Mr. L had to go into the stairwell area of the Year 12 block. It was extremely dark and he had to hold onto the stair rail even though he was familiar with the building.

45 In addition to the evidence of those witnesses, there were two witnesses who gave evidence as to the good character of the Appellant, one of those, a former student of the Appellant and, at the time, a family friend, also giving evidence that the Appellant's behaviour in the company of children and adults was one of integrity. Further, some of those who treated the Appellant for his condition of sleep apnoea gave evidence as to the effect which that condition can have on a person affected by it.

58 The appeal had raised two grounds. The first that the convictions were unsafe and could not be supported, having regard to the evidence before the jury. This ground was dismissed, Powell J concluding at para [63]: 'Having read the whole of the evidence which was tendered at the trial, I have concluded that, notwithstanding the various matters upon which Mr. O'Donnell has sought to rely, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although - unless the evidence of complaint to Ms B were available to provide it - there was no evidence corroborative of the evidence of the Complainant, it is not without point to recall that the Complainant's evidence was that, during the course of the incident the subject of the third charge in the indictment, he noticed that - as the Appellant was later to concede - that the Appellant was circumcised. This, one would think, was a fact of which the Complainant would not have been aware if he had not seen the Appellant in a state of undress. Further, the evidence which the Appellant gave at the hearing differed in a number of respects - which the jury might have thought to be of some significance - from the answers given by him and recorded in the ERISP. Nor, if I may say so, need the jury have placed upon the evidence of Mr. R, Ms. V and Mr. L the weight which Mr. O'Donnell would seek to have put on it - indeed, it seems to me, that the evidence of Mr. R had an air of unreality about it.'

59 The second ground of appeal went to an error conceded by the Crown at the hearing of the appeal. That error went to the admission of the evidence of Ms B, as evidence of the truth of the complaint. Ms B was the social worker to whom the student had made his initial complaint, some two years after the events in question. The Crown conceded that the evidence was inadmissible under s66 of the Evidence Act 1995, given the decision of the High Court in R v Graham (unreported, Newman, Levine and Barr JJ, 2 December 1997). Her Honour had relied upon the earlier decision of the Court of Criminal Appeal in that matter, which had been overturned by the High Court. It was possible that the evidence was admissible on another basis and so the Crown argued that there had been no miscarriage at the trial. As to this aspect of the appeal, Powell JA concluded: 'In the present case, as I have earlier recorded, Backhouse DCJ instructed the jury that the evidence of Ms. B as to the complaint made to her by the Complainant was evidence of the truth of what she was told. Because the admission of the evidence of that complaint was not justified under s.66 of the Evidence Act 1995, and its admission was not inevitable pursuant to s.108(3)(b) of the Evidence Act 1995, and because of the direction given by Backhouse DCJ to the jury in respect of the evidence of the complaint, I am unable to conclude that the Appellant did not lose a significant chance of an acquittal, it following, in my view, that the appeal should be allowed on this ground.'

60 A new trial was ordered. What evidence was led at that trial was not here revealed. By that time the applicant had been dismissed from his employment and the respondent did not further investigate what evidence had there been given. No evidence was given about those matters in these proceedings by the applicant, other than the fact that the second jury was unable to reach a verdict on the evidence before it and a third trial was then ordered. In March 2001, the applicant's solicitors wrote to the Office of the Director for Public Prosecutions, asking that it not proceed with the third trial, for the following reasons, the applicant then already having served the sentence imposed by Backhouse DCJ: '1. The purported criminality occurred in December, 1995. 2. Mr. Lawrence remains privately funded throughout the proceedings and has expended substantial funds in relation to the matter. We are instructed Mr. Lawrence has essentially been without an income since the conclusion of the 1st trial. 3. Mr. Lawrence has been punished as a result of being convicted after being found guilty at the first Trial. Mr. Lawrence has completed the punishment by way of completion of the CSO orders. 4. You elected to proceed with the second Trial notwithstanding Mr. Lawrence completing the sentence imposed on him pursuant to the first Trial. It is submitted that Mr. Lawrence should not be burdened with the third Trial. If the view of the Crown is the only legitimate purpose is in pursuing Mr. Lawrence is to stop him continuing to be employed as a teacher it is further submitted this issue should be ventilated in another jurisdiction or forum presumably being subject to the civil standard of proof.'

61 In these proceedings, while the applicant challenged the fairness of his dismissal, he ultimately did not seek an order of reinstatement. Orders of monetary compensation under s89 of the Act were claimed. Nevertheless, the fact was that the Director for Public Prosecutions advised the applicant on 8 June that a decision had been made not to proceed further in relation to the charges which had been laid. It followed that the applicant was never convicted of the charges in question. Nor however, was he acquitted.

62 In all of these circumstances as I have noted, I am well satisfied that it may be concluded that the respondent met the evidentiary burden falling upon it, to establish in these proceedings, to the requisite degree, that the misconduct in question had occurred.

63 At the time the decision was made, the respondent was in possession of the transcript of the proceedings at the first trial. It had available not only the details of the complaints made by the student, but also his evidence, as well as the evidence of the applicant's denial of the charges, the evidence of the other witness called in the proceedings and the various observations made by the trial judge. On the basis of that material a jury found the charges proven to the criminal standard. In my view it was unarguable that this material provided a sufficient basis for the employer's conclusion that the misconduct had occurred and that it was inconsistent with the applicant's continued employment, notwithstanding the orders later made by the Court of Criminal Appeal, in ordering a retrial.

64 Unlike the jury, the respondent was also entitled to have regard to the evidence of complaint made by the student to Ms B. The respondent, after all, was not considering whether the applicant had committed a crime, but whether or not the applicant's employment could properly be continued. Evidence from a social worker that a student had raised such serious complaints with her, was not material which an employer could overlook, simply because it was later concluded that it was evidence which was not admissible on the basis which it had been received at the first criminal trial. The employer could likewise have regard to other information not relevant to the criminal proceedings. This included the applicant's continuing denial of the allegations, which it had received in the applicant's earlier correspondence.

65 All of this was material which the respondent was entitled to consider. The decision to dismiss was clearly open to the respondent, the jury having found the applicant guilty on the evidence before it. If confirmation of this view were needed, it was in fact provided by the later decision of the Court of Criminal Appeal. The conclusion reached by Powell JA at para [70] quoted above, amply demonstrated that the evidence led at the trial was properly capable of leading the respondent to the conclusion that the misconduct had occurred, it being in the Courts of Criminal Appeal's view sufficient to have led the jury to its guilty verdict.

66 That judgment, without more, was, in my view, also sufficient in these proceedings for the respondent to meet the evidentiary burden which here fell upon it. That conclusion seems inescapable, given the law governing the conduct of criminal trials, as opposed to that governing proceedings such as these before the Commission. Here, the rules of evidence do not apply and the Commission is bound to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, (s163). The Commission is also obliged to take account of the public interest in the exercise of its functions and for that purpose to have regard to the objects of the Act, (s146). Those objects include s3(g), which envisages resolution of industrial disputes in a prompt and fair manner and with a minimum of legal technicality, if arbitration is necessary.

67 While these obligations do not detract from the law as to the onus which falls upon parties in proceedings such as these, they do highlight the different nature of proceedings brought under s84 of the Act, compared to criminal prosecutions. It must follow, in my view, that firm conclusions such as those expressed by the Court of Criminal Appeal in the appeal judgment here in question, about the conduct at issue, could never be lightly departed from by this Commission in proceedings such as this, without a proper basis for that departure being established.

68 I do not exclude the possibility that circumstances could come forward where an applicant led evidence in proceedings such as this, which properly led to the view that the dismissal was harsh, unreasonable or unjust, despite the evidence and conclusions reached at a criminal trial, or on appeal by the Court of Appeal. The applicant in these proceedings made no such attempt, other than relying upon the earlier assurances given by the employer, that it would hold off acting to dismiss him, until after the appeal judgment was given. I will deal with this aspect below. I am, however, unable here to conclude that any departure from the views expressed by the Court of Criminal Appeal, as to the evidence in relation to the conduct in question having provided a proper basis for the jury's conclusion that the offences charged had been committed, are thus available. Nor can I reach any view other than that this provided sufficient evidence as to the conduct in question, sufficient to meet the evidentiary burden falling upon the respondent in these proceedings, that the misconduct in question had occurred.

69 The second jury was unable to come to a common view on the evidence led at the second trial, as to whether or not the offence had been committed. Who gave evidence in those proceedings or what otherwise occurred in those proceedings was not here revealed. Whatever the evidence was, the result of the trial was that the applicant was not acquitted of the charges. This led to a third trial being ordered, but not proceeded with in all of the circumstances I have earlier outlined.

70 While the end result is that the applicant was not convicted of the charges, those developments cannot properly lead to the conclusion that the employer was not entitled to form the view at the end of the first trial, on the evidence then available to it, that the misconduct in question had occurred. The applicant, the employer, or indeed this Commission, cannot now ignore what had earlier occurred at the first trial, where the student, the applicant and the other witnesses called had given their evidence on oath as to the events in question. It was this evidence which then both convinced a jury, to the criminal standard, that the conduct which comprised the offences charged had been occurred. This also led the employer to the view that it had to act to dismiss the applicant. The Court of Appeal later concluded that this evidence properly left the conviction open. It cannot be concluded in those circumstances, that the employer was in error in concluding that the misconduct in question had occurred.

71 I turn then to the fairness of the decision to dismiss, having in mind the assurance which was given to the applicant that the respondent would not act further in relation to his dismissal, until the appeal was decided. The respondent's change of heart after it had gained access to the evidence in the criminal trial, led it to summarily dismiss the applicant without further warning to the applicant and contrary to the assurance earlier given.

72 In my view these circumstances might have been capable of rendering the decision harsh, if not unreasonable or unjust. That question, however, must be considered in the light of the approach of the Full Bench in Wang, where the High Court's judgment in Byrne was followed.

73 The High Court there contemplated that procedural unfairness might lead to a conclusion that a dismissal was unfair, because, for example, the employee was thereby deprived of an opportunity to bring additional material forward, which could have provided an innocent explanation of the misconduct in question. It concluded that Byrne could not be decided upon such a basis. The Full Bench in Wang came to a similar conclusion on the facts before it.

74 This was not a case where the applicant sought to advance anything new, by way of evidence in relation to the conduct in question as demonstrating the relevant unfairness of the decision to dismiss. The applicant in these proceedings also brought no evidence which suggested that he had been denied an opportunity to bring forward anything else relevant to the question of whether the misconduct had occurred, by the employer acting upon the evidence at the criminal trial in finding the decision to dismiss.

75 Undoubtedly, it would have been preferable for the respondent to have informed the applicant of its change in attitude, before it acted to dismiss him, given what he had been advised in Mr Ford's letter of 21 September. Nevertheless when consideration is now given to what transpired afterwards, it is difficult to see that anything other than the respondent's dismissal could have resulted in the circumstances with which the respondent was here confronted.

76 Had the employer acted in accordance with its earlier advice to the applicant, it is difficult to conceive that any other conclusion to that reached in October 1998 would later have been reached, given the decision of the Court of Criminal Appeal. The respondent would still then have been left to deal with the evidence given at the first trial in the light of the conclusions reached by the Court of Criminal Appeal, that the evidence properly left open a conviction. Nor could the respondent have ignored the evidence of Ms B. It is difficult to see that the conclusion that the evidence did not disclose serious misconduct would then have properly been available, notwithstanding the applicant's continued protestations of his innocence. Indeed, after the appeal judgment was given, these proceedings were long on foot and the applicant was pressing for his reinstatement. The respondent continued resisting that claim, persistent in the view that it had reached the proper decision in light of the evidence to which it had access since October 1998, even after it had gained access to the appeal judgment.

77 This situation does not, on reflection, appear surprising. Employers who have to determine whether or not misconduct has occurred, usually must do so without the assistance provided by access to evidence and cross examination about the events in question, given in a court in which the criminality of such conduct has been determined against the employee by a jury. In circumstances where allegations of misconduct arise, it is commonplace for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that misconduct has not occurred.

78 I think it unarguable that in every such case, there is a risk that a person who has not engaged in the misconduct alleged, is, nevertheless, dismissed or found guilty of an offence with which they are charged. That possibility remains even when a thorough investigation into particular conduct has been conducted by an employer and not the police. The converse possibility also exists.

79 Here the applicant still maintains his protestations of innocence. He has never departed from them. These proceedings are, however, not finally concerned with establishing the applicant's guilt or innocence. That has been dealt with in the criminal proceedings. This application is rather concerned with the question of whether the applicant's summary dismissal in October 1998 was harsh, unreasonable or unjust in the circumstances which then existed.

80 On the evidence, I am satisfied that following the approach in Wang, it cannot here be concluded that the respondent's departure from the decision to await the outcome of the appeal decision, resulted in a dismissal which was harsh, given the serious misconduct in question, the detail of which was revealed at the criminal trial. The dismissal took place at a time when the applicant's employment had been continued notwithstanding that he had been charged with serious offences involving a student at the school. The applicant had exhausted his various entitlements to accrued leave and the respondent had exercised a discretion to make ex gratia payments to him, which had become unnecessary, because of his access to sick leave entitlements when he fell ill. He was dismissed following upon conviction of those serious criminal charges. The Court of Criminal Appeal later concluded that the verdict was open, even though it ordered a retrial, because the evidence of Ms B had wrongly been admitted in the criminal trial. That view was reached in a case which required the jury to reach a conclusion as to whether the applicant, or the student's evidence in relation to the conduct in question was to be believed, there having been no other witnesses to the events in question. The applicant's version was that the complaints were a fabrication; the student that he had been sexually assaulted by the applicant, his teacher, while at a school function one evening. The evidence, including that given by Ms B, and the jury's conclusion that it believed the student, not the applicant, was material to which the employer was properly entitled to have regard when it came to its attention, in determining whether to dismiss the applicant on account of serious misconduct.

81 Once the evidence in the criminal proceedings came to its attention, when Backhouse DCJ had sentenced the applicant, the employer was then no longer prepared to continue the employment on any basis and it has maintained that attitude ever since. Given the serious nature of the misconduct in question, that attitude must be accepted as having been properly open to the employer.

82 While a question such as this is not without difficulty, on balance I have reached the view that the conclusion that the dismissal was harsh, even if not unfair or unjust, was not properly open. Had I come to any other view it would still have been necessary to give consideration as to whether any orders could have been made in favour of the applicant. Such orders are discretionary. The applicant no longer sought reinstatement, but money compensation.

83 The applicant sought the maximum compensation available - 6 months salary. I am well satisfied that the circumstances here arising would have precluded a reinstatement order or even such a money order being made and indeed, only an order at the smallest end of the scale could have been available. As I have noted, I have been unable to conclude that even such relief is available, for the reasons given.

84 The application must be dismissed for all of these reasons. I so order. ------------------------

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