Mahmoud v Department of Education and Training

LEGISLATION CITED: Crimes Act 1900 Industrial Relations Act 1996

CASES CITED: Pastrycooks Employees, Biscuit Makers Employees and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70

HEARING DATES: 17/05/05, 18/05/05, 13/03/06

APPLICANT In person LEGAL REPRESENTATIVES:

RESPONDENT Mr S Benson of counsel instructed by Mr P Quinn, Senior Industrial Officer, Department of Education and Training

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Tosson Mahmoud and Director - General of Education and Training

Application by Tosson Mahmoud re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION

[2006] NSWIRComm 56 1 These proceedings have followed a protracted course largely due to related proceedings in the local Court in which the applicant, Mr Mahmoud was charged with and convicted of common assault. The victim of the assault was Ms Cheryl Binns, principal of The Grange Public School at Minto where the applicant was engaged as a casual relief teacher on 22 May 2003. 2 The matter proceeds by way of an application for relief from alleged unfair dismissal under Chapter 2 Part 6 of the Industrial Relations Act 1996. In the course of the proceedings, and in addition to the application for relief the applicant filed various notices of motion with which I will deal compendiously given that they effectively seek the same relief or in the alternative relief which is beyond the Commission's power to grant. I refer here to the applicant's claim for monetary compensation in the amounts of: · $450000 for lost earnings and injury to health, · $58000 for case preparation, · $2000 for stationery, computer use, photocopying, telephone calls, facsimile and transport costs, · $900000 for permanent irreversible damage to livelihood and work · $12000 for costs incurred in relation to disciplinary matters in Eagle Vale High School and Kingswood High School where the applicant had taught on prior occasions.

3 To the extent practicable, the proceedings have been adjourned pending the outcome of the criminal proceedings including at one stage, a private assault charge brought by the applicant against Ms Binns which was dismissed early in 2004 at Campbelltown Local Court. 4 The assault charge brought by the police against the applicant was heard in the same place later in 2004 and as earlier observed, a conviction was recorded. It seems the applicant was given a suspended sentence and placed on a two-year good behaviour bond under the relevant provisions of the Crimes Act. He thereafter commenced appeal or review proceedings, the course of which was somewhat obscure in spite of the Commission's efforts to elicit from the applicant an estimate of their nature and likely duration. The proceedings were said by the applicant at different times to be in either the District Court or the Supreme Court or both. At all events, and absent more precise information in that regard, this matter was programmed for hearing and was heard on 17 May 2005 and 18 May 2005. 5 The disposal of the matter was then further delayed after evidence had been taken by a sequence of requests from the applicant, who represented himself, for extensions of time for the filing and service of written submissions. Those requests were granted on terms and in the ultimate absence of compliance with varied directions, the applicant was informed that further failure in that regard may result in the matter being determined on the material already before the Commission. In the result, written submissions were filed albeit some considerable time later (most recently on 13 March 2006) and the matter now proceeds to decision. 6 In addition to the documentary material tendered and relied upon by the parties, the following witnesses were called: - · Mr Tosson MAHMOUD, the applicant

· Mr Gary WALDEN, School Education Director Macarthur School Education Area · Mr Patrick QUINN, Senior Industrial Officer, Department of Education and Training · Ms Cheryl BINNS, Principal of The Grange Public School · Ms Maree RAYNHAM, Assistant Principal of The Grange Public School · Ms Maria O'ROURKE, Teacher at The Grange Public School · Ms Rebecca LEECHBURCH - AUWERS, Teacher at The Grange Public School 7 It might be usefully observed at this point, independently of any estoppel which may operate to preclude a finding in this Commission contrary to the finding in the criminal jurisdiction (namely, that the applicant assaulted Ms Binns) that the evidence leaves no room for doubt in my mind that there was a palpable failure on the applicant's part to obey a lawful and reasonable direction given to him by Ms Binns; that the applicant's bellicose behaviour towards Ms Binns was unwarranted and unjustified and that in conducting himself in the manner he did towards Ms Binns and others including the numerous school students who are said to have observed his behaviour, he placed himself in a position which made his continuing employment as a professional teacher untenable. 8 I say that in due deference to the applicant and his strongly held belief that he is the victim of a conspiracy against him perpetrated by Ms Binns. The applicant's evidence and written submissions make regular reference to the incident giving rise to the police arresting him as being a feminist, racist plot against him and also to his efforts as a self-described social reformer to eradicate the so-called virus of feminism from society. I found no objective basis upon which it could be found that there was such a conspiracy. 9 If the above words seem to be of a somewhat extreme character, it should be observed that they expressly represent the concepts upon which the applicant bases his case and in so doing, upon which he claims to have been wronged by Ms Binns, the police, the criminal courts and the respondent to these proceedings who determined that his approval to teach should be revoked. 10 The incident or series of incidents which triggered the events described above, occurred at The Grange Public School on 22 May 2003 in the manner (as I am comfortably satisfied) which is described by Ms Binns and the other witnesses called and relied upon by the respondent. To the extent that such evidence is at odds with the applicant's evidence, I prefer the former. 11 In a contemporaneous statement taken by police, Ms Binns described the series of incidents in this way:

1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false.
2. I am 43 years of age.
3. I am currently employed as the Principal at the Grange Public School, Benham Road, Minto. I have been at the school in this role for the past eighteen months. My duties entail the well running of the school whilst caring for the needs and welfare of the students and staff employed.
4. On Thursday the 22nd of May, 2003 I arrived at the school around 8:30 am. During the morning I conducted a staff meeting. The assistance of a number of casual relief teachers had been arranged prior to the meeting. During this staff meeting I saw one of the relief teachers arrive at 8:55 am. This relief teacher I know as Mahmoud.
5. At about 9:30 am I had a conversation with Debbie Mcillwain who is one of my assistant principal(sic) about the relief teacher Mahmoud. This conversation was about the way in which Mahmoud was treating the children.
6. At around 10:20 am I was in my office when Racheal(sic) Armer who is one of my teachers came into the office. Racheal(sic) Armer informed me that there was a problem down in one of the class rooms with the relief teacher Mahmoud.
7. I walked down to F block to ascertain what was occurring with the relif teacher as I was concerned with the children. As I walking towards the class rooms I could hear a male yelling. I could not make out what he was saying.
8. As I turned the corner I saw Rachael Armour facing Mahmoud. There was a child standing next to Rachael facing in(sic) the wall and another child behind Mahmoud also facing the wall. Mahmoud was yelling at Rachael "These two boys have been making fun of me all morning. They went around in the library and went around to the computer and pressed buttons." Rachael did not reply to this.
9. I walked over to the wet area and I said, "Excuse me my name is Cheryl Binns. I am the school principle(sic) can I speak to you outside please". Mahmoud looked at me the he turned back and looked at the children. Mahmoud raised his voice and said something back to the children. I am unable to recall what he said.
10. I walked away from Mahmoud attempting to get him away from the children. Mahmoud then came out and walked up to me. Mahmoud said "This is a bad class". I said "I want to talk to you about the way you were talking to the children". Mahmoud started to get agitated lifting his shoulders.
11. I said, "I want you to come to the office to talk to me". Mahmoud said, What is the problem?" I said, "I've got some children in the office who had said that you had threatened to slap their faces". He didn't respond immediately then he said, "Who are these children". I said, "I can't tell you the name of the children. The department has processes in place to deal with this. I will talk to you in the office".

The letter prompted a response from the respondent dated 11 April 2003 to the effect that the respondent did not feel the applicant had addressed the specific allegations of improper conduct at Eaglevale High School and Kingswood High School. In this letter the respondent gave the applicant further opportunity to provide a response to the specific allegations and to make submissions as to why his approval to work as a casual teacher ought not be withdrawn. 24 It was against this contextual background that the applicant taught at The Grange Public School on 22 May 2003 the day on which he was arrested and although it must be recognised that these other allegations of misconduct have and are given the standing of allegations only, it is clear that as at 22 May 2003 they had yet to be satisfactorily answered by the applicant and were still under active consideration when overtaken by the events of 22 May 2003. It may be assumed, safely I think, that absent sufficient explanation by the applicant, they may well have provided grounds in their own right for the applicant's removal from the list of approved casual teachers. 25 Accordingly and although not determinative in their own right of unsuitability to teach, they must inevitably count against the applicant in terms of whether his misconduct on 22 May 2003 should be regarded as an aberration. 26 There is then on the respondent's argument the question raised by the evidence as to the applicant's strongly held views on feminism. As earlier observed the applicant portrayed himself as a so-called social reformer and as the following extract from his affidavit reveals, his agenda for social reform finds no place for feminism and no way to describe feminism other than in derogative terms: I am the prime mover behind the concerns and the changes which are going on for two years now all over the Country in the field of Education, gender relations, feminism and the other related very serious national, social and family matters and which are covered extensively in the media. As a social reformer, I am in constant correspondence with the Prime Minister and the Premiers of the States giving them concrete, very serious and fundamentally important assessments about the above mentioned matters in particular about the elimination of the virus of feminism from the body of the Nation and the steps taken to steer the driving wheels of the Nation in the right direction. They all listen to what I say, believe in it and act accordingly without delay. 27 Plainly and again as the respondent submits, our society permits its citizens an entitlement to hold views on the broadest possible range of matters and to agitate within the limits of the law for the advancement of those views. In the applicant's case, however, his clear commitment to the elimination of what he perceives as the virus of feminism raises inevitable questions about the practicability of his employment in a work environment such as teaching where many of his peers and many of those who may exercise supervisory control in the work environment are female. I agree with and accept the proposition advanced by the respondent that the strong views held by the applicant as a social reformer count against his application for relief rather than as he would have it, in favour of it. 28 The applicant, in my opinion, has not demonstrated the necessary grounds to warrant intervention by the Commission. The application is accordingly dismissed and these proceedings concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.