Fair Work Act 2009

s.394 - Unfair dismissal

Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn

Application for an unfair dismissal remedy - allegation of misconduct - misconduct not proved - dismissal harsh, unjust and unreasonable - reinstatement ordered.

[1] Mr Michael Crowley was employed as a teacher at Lumen Christi Catholic College (the College) until he was dismissed on 22 June 2018. He was employed by Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn (the Archdiocese). His dismissal followed an investigation into an allegation of misconduct which resulted in a finding that he had breached his duty of care to students for whom he was responsible.

[2] The Independent Education Union of Australia (IEU) on behalf of Mr Crowley has made an application for a remedy in respect of his alleged unfair dismissal. In terms of remedy, Mr Crowley seeks reinstatement to his former position.

[3] The hearing was conducted over multiple days, commencing on 22 October 2018, and concluding on 5 December 2018. A site inspection was also conducted at Pambula River on the morning of 5 November 2018.

[4] Both parties were granted permission to be represented pursuant to s.596 of the Act. Mr A Howell of Counsel with Ms C Matthews of the IEU appeared for Mr Crowley. Mr K Brotherson of Counsel with Ms S Meier of Minter Ellison appeared for the Archdiocese.

[5] On application of the Archdiocese, I have agreed to ascribe pseudonyms in this decision to the twelve students who gave evidence in these proceedings.

[6] For the reasons set out below, I find that Mr Crowley's dismissal was unfair and I have decided to reinstate him to his former position.

[7] Mr Crowley was employed by the Archdiocese as a Personal Development, Health and Physical Education (PDHPE) teacher at the College in Pambula, NSW. Mr Crowley had been a teacher at the College for nearly 17 years, having commenced teaching there in February 2002.

[8] Mr Crowley's employment was subject to the NSW and ACT 2015 Catholic Systemic Schools Enterprise Agreement 2015 (Enterprise Agreement) and Catholic Education's Guidelines for Professional Conduct in the Protection of Students and Young People (Guidelines).

[9] On 17 November 2017, Mr Crowley conducted a kayaking practical class at the Pambula River involving 13 students from a Year 9 Physical Activity and Sports Studies (PASS) class. The students were aged between 14 and 15 years old. This was the second kayaking practical class of the Term 4 PASS class. The first took place on 9 November 2017.

[10] Mr Crowley was assisted by Mr Hamish Wenczel, a former student of the College and AFL Sports Ready Trainee, who was working at the College. The 13 students and Mr Wenczel were paired in seven 2-person kayaks and Mr Crowley was in a kayak by himself. The exercise commenced with Mr Crowley leading the group across the River from the northern to the southern shore. This occurred without incident. However what happened on the return to the northern shore is the subject of much dispute between the parties. What is not in dispute is that in the course of returning to the northern shore one of the kayaks capsized, followed by others, including Mr Crowley's kayak. Subsequently, the ambulance and the police were called and attended the scene (the Incident). All students were driven home after the Incident except one who was taken to hospital and diagnosed with a concussion. That student was also sent home after being examined.

[11] The Incident drew a great deal of local attention and became the subject of a report in the local newspaper that afternoon.

[12] Arising from the Incident, an allegation of misconduct was made against Mr Crowley.

[13] The Archdiocese engaged an independent investigator to commence an investigation. As a result of the investigation report and a subsequent review, the Archdiocese drew the conclusion that Mr Crowley had engaged in serious misconduct. Mr Crowley's employment was terminated by letter dated 22 June 2018. The termination took effect on 25 June 2018 and Mr Crowley received payment in lieu of notice.

[14] The allegation against Mr Crowley was particularised in a letter from Ms Stacey Ozanne, Head of Human Resources of the Catholic Education Office (CEO), as follows:

It is alleged that on 17 October 2017, you did not act in a professional manner or meet your duty of care requirements in regards to your activities with your Year 9 Activity and Sports Studies class at the mouth of the Pambula River.

The particulars of this allegation are that you conducted a field trip with this class as a practical component of their unit of work on water safety using kayaks in open water on the Pambula River estuary and:

Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

Failed to personally wear a helmet and buoyancy vest

Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar)

Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treatment for hypothermia

Allowing students who had not successfully qualified in swimming competency to take part in the activity

Failing to follow appropriate CE Policies and Procedures."

[15] The letter referred to a potential breach by Mr Crowley of section 4 (Professional Duties and Responsibilities) of Part D of the Enterprise Agreement, and the Guidelines. The letter set out the relevant provisions as follows:

• be conscious of their special duty of care to the students of the Catholic Archdiocesan school system in all educational activities in and out of school (a);

• demonstrate the highest standards of professional behaviour, exercise professional judgement and act in a courteous and sensitive manner when interacting with students, parents or caregivers, staff and members of the community (b);

• comply with reasonable directions given by a supervisor/Principal and adhere to official guidelines concerning the performance of their duties (k); and

• conduct themselves in such a manner as to protect and enhance the esteem and standing of Catholic education': see subsection (r).

1. be aware of the policies and procedures that apply to the work and in the workplace. If workers are uncertain about the scope or content of a policy with which they are required to comply, they should seek clarification from their principal/supervisor/manager

iii. undertake duties in a professional, competent and conscientious manner

v. be mindful of their duty to the safety of themselves and others

1. be aware that if their conduct has the potential to damage the school's reputation, even if it is in a private capacity, this could lead to disciplinary action

9.2 Workers have a duty to take reasonable care for the safety and welfare of the students in their care. That duty is to consider and take all reasonable action to protect students from known hazards or risk of harm that can be reasonably predicted. The standard of care that is required needs to take into consideration various factors, such as a student's maturity and ability."

[16] The letter further advised that a workplace complaints process into the allegation and the circumstances of the Incident had commenced in line with the CEO's Complaints and Complaints Intake and Management policies and that an external investigator, Mr Bill Jardine of Nemesis Consultancy, had been appointed to conduct an investigation into the matter.

[17] The investigation process was set out in great detail in the witness statement of Ms Ozanne which can be illustrated as follows:

• Following a concern raised by Mr Steven Centra (the College Principal) and a discussion between Ms Ozanne and Mr Tim Elliott (Head of School Services), it was agreed that Mr Phil Pettit (School Services Officer) would conduct a preliminary fact finding investigation to determine what had occurred and whether there had been compliance with the Archdiocese policies.

• On 23 November 2017 Mr Pettit produced a 'Report on Preliminary Investigation' (the Preliminary Report) after having interviews with students and staff involved.

• Mr Pettit's report raised concerns that Mr Crowley had conducted insufficient pre-checks of helmets and buoyancy vests, that he was not wearing a buoyancy vest or helmet himself, that there was insufficient teacher supervision during the activity, that there was inclement weather closing in at the time of the activity, and that a number of students did not have adequate swimming competency to participate in the class.

• A separate issue was raised by Mr Jon Sleeman (Child Protection Officer) involving a question of a parent whose child was involved in the incident about whether Mr Crowley had appropriate qualifications for water-based activities.

• On 27 November 2017, Ms Ozanne met with Mr Sleeman and Ms Pru May (Work, Health and Safety Officer) to discuss the Preliminary Report. It was agreed at this meeting that the Archdiocese would engage Nemesis Consultancy, for which Mr Sleeman also worked as a consultant, to undertake a detailed investigation to determine whether Mr Crowley had potentially breached his duty of care obligations. Mr Bill Jardine from Nemesis was engaged to investigate the Incident.

• As a result of a letter from a parent raising a concern that Mr Crowley had approached students during the weekend, a letter was sent to Mr Crowley on 30 November 2017 informing him that an investigation had commenced and directing him not to speak with students or parents about the Incident.

• Mr Jardine had interviews with persons involved in the Incident and produced an investigation report on 16 January 2018.

[18] The investigation report was dated 16 January 2018. It comprised some 40 pages in length and included the following sections: Background, Allegations, Investigation Actions, Witness Evidence Summary, Response to Allegations, Witness Evidence Summary (continued), Analysis and Findings.

[19] The investigation report is not summarised here, except to note that Mr Jardine found that each of the seven particulars of the Allegation were sustained.

[20] On 29 January 2018, Mr Crowley was informed by Ms Ozanne in writing that she had made preliminary findings that each of the seven particulars of the Allegation was sustained. Ms Ozanne found that Mr Crowley did not act in a professional manner or meet the duty of care requirements in regard to the activities with the Year 9 PASS class at the mouth of the River on 17 October 2017.

[21] The letter advised that the preliminary findings constituted misconduct, and taking into account the Final Warning issued to him on 22 December 2016 (not related to the Incident), Mr Crowley was given until 5 February 2018 to provide reasons as to why his employment should not be terminated.

[22] The letter also advised Mr Crowley that he would be suspended with pay from Monday 29 January 2018 until final findings were made.

[23] Mr Crowley attended a meeting with an IEU representative on 9 February 2018 and provided a written response. The Archdiocese subsequently engaged Mr Jon Sleeman and Mr Peter Moroney of Nemeses Consulting to conduct an investigation review.

[24] In a letter dated 5 April 2018, Mr Crowley was advised of the review findings, which were set out as follows:

1. Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

   1. Prior to the activity occurring, the weather conditions had been a mix of thunder and rain with the rain a combination of a light to heavy down pour.

   2. At some point during the morning, there was lightning. However, it is not clear at what time this was.

   3. On arrival at the location the conditions were overcast with light rain.

   4. The weather conditions deteriorated from the time of arrival and whilst the students undertook the activity.

   5. There is consistent evidence that the swells were up to 1.8 metres with an outward flowing fast tide from where the students were engaged in their activity out to sea.

   6. The sea conditions were considered dangerous.

   7. The risk assessment was completed by you in accordance with Catholic Education Procedures.

   8. However, the risk assessment was conducted in 2011 [ie created by CE] and did not adequately take into consideration the weather conditions of the day and immediately prior to the activity or the skill and experience of the group.

   9. The risk assessment did not adequately take into consideration the requirements as outlined in supporting policy and procedures.

   10. The risk assessment did not adequately take into consideration the skill and competency of the students and therefore did not appropriately consider the safety of the students.

   11. It was reasonable for you, based on your 17 years of experience to have identified this and adjusted your actions accordingly.

2. Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

   1. You failed to provide an adequate safety briefing.

   2. You failed to sufficiently conduct a pre-safety check for all students who participated in the activity.

   3. Some students had ill-fitting helmets or life vests when they undertook the activity.

   4. Based on the conditions of the day at the location, the failure to provide an adequate safety briefing and sufficiently conduct a pre-safety check of equipment placed the students at risk.

3. Failed to personally wear a helmet and buoyancy vest

   1. You failed to wear a buoyance vest and helmet which was not consistent with relevant Policies and Procedures.

4. Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar)

   1. Current accreditation documentation has subsequently been provided and accepted.

5. Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treated for hypothermia

   1. The above actions (before and during the activity) resulted in you recklessly leading students into a wave zone where multiple students were tipped from their kayak.

   2. The failure to ensure the student safety equipment was adequately fitted created a risk for the students should they need to rely on this. The fact the equipment performed as it was meant to does not mitigate this aspect.

   3. The failure to provide an adequate briefing to the students prior to the activity being conducted meant they were not clear on how they were to conduct the activity. This also caused the students to follow you into the wave area which placed their welfare at risk and resulted in several students capsizing and being required to be rescued. If the students had been briefed appropriately this would have likely meant they would not have followed you into this area and by doing so placing their safety at risk.

   4. Your actions to attend this wave and current area placed students at risk and whilst this may have been to assist other students in difficulty (noting this evidence is inconsistent) it placed other students at risk. This could have been avoided by proper instructions being provided to the students as to what they should do if incidents occurred whilst in the water.

   5. Given the weather and sea conditions it was reasonable that you would have a higher awareness level regarding student safety given the additional risks to safety this adverse weather caused.

   6. The incident resulted in such concern by students that they contacted emergency services personnel who were dispatched to respond and assist.

6. Allowing students who had not successfully qualified in swimming competency to take part in the activity

   1. Further evidence is required by you to make a final determination regarding the assessment process conducted.

7. Failing to follow appropriate CE Policies and Procedures.

   1. The following policies have been identified in which you were obliged to follow:

      • Catholic Education Sport and Physical Safety Policy
      • Excursion Policy

   2. These Policies states that the NSW Department of Education and Training Guideline for the Safe Conduct of Sport and Physical Schools should be followed. This Policy includes the relevant Canoeing and Kayaking and Wave Ski Policies which are referred to.

   3. It follows that not complying with any of these policies would not be complying with the CE Policies. It is reasonable to state, that based on the investigation and the review that the actions, discussed above are not in accordance with these policies and according the CE Policies and Procedures.

[25] The findings concluded that Mr Crowley through his actions failed to comply with the relevant provision of the Enterprise Agreement and sections 5.1(iii), (v), (vi) and 9.2 of the Guidelines. Mr Crowley was invited to provide, by 13 April 2018, any reasons why disciplinary action, which might include the termination of his employment, should not be taken.

[26] A detailed reply, including attachments, was provided to Ms Ozanne by Mr Crowley on 8 May 2018. His reply included the following:

"In any event, I am sorry that the students and their parents went through this ordeal. It was never my intention to cause any distress, harm, fear or embarrassment to the relevant students or their parents, the school or the school system.

I realise even though my intentions were positive I contributed in some part due to the communication confusion. I never did anything knowingly wrong. I certainly did not lead students into danger, and those boys paddled in against direct instructions from me and forced me to put my life at risk ..."

[27] On 25 May 2018, Mr Crowley received a 'Final Findings Letter' dated 24 May 2018 from Ms Ozanne which contained in extensive detail the particulars of the allegation, the investigation process, the final findings (with 4 out of 7 of the particulars were sustained) and the reasons for findings. The details of reasons for the findings are set out below:

1. Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

"I accept the findings in the Investigation Report that:

1. Prior to the activity occurring, the weather conditions had been a mix of thunder and rain with the rain being a combination of a light to heavy down pour.
2. At some point during the morning, there was lightning. However, it is not clear at what time this was.

1. On arrival at the location the conditions were overcast with light rain.

1. The weather conditions deteriorated from the time of arrival and whilst the students undertook the activity.
2. The swells were up to 1.8 metres with an outward flowing fast tide from where the students were to be engaged in their activity out to sea.
3. The conditions where the students were to be engaged in their activity of kayaking were dangerous, with a foreseeable risk that students could find themselves swept out to sea.
4. The risk assessment process you undertook on this day did not adequately account for the conditions and risks posed for yourself and students in entering the water.
5. It was reasonable for you, based on your experience, to have identified the risks associated with entering the water, including a potential risk of kayaks subsiding, students being swept out to sea, and potentially drowning and that you should have adjusted your actions accordingly, including by not allowing students to enter the water.

I therefore find that you did conduct the activity at a time of deteriorating weather, tidal run-out and high sea swell without an adequate risk assessment being conducted by yourself in the field at the time or appropriate consideration for the safety of the students."

1. Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

"I accept the findings in the Investigation Report that:

1. You failed to provide an adequate safety briefing given the nature of the conditions on the day.
2. You failed to sufficiently conduct a pre-activity safety check for all students who participated in the activity, for yourself and your assistant.

Based on the conditions on the day at the location, your failure to provide an adequate safety briefing resulted in students going into the water inadequately briefed and underprepared to deal with the dangerous conditions that they were entering into. Your failure to provide an adequate briefing to the students prior to the activity being conducted meant that there was confusion when the students entered the water in their kayaks as they were not clear on:

1. how they were to conduct the activity;
2. where (if anywhere) it was safe to kayak;

1. what to do if they found themselves having trouble in the water.

This failure was particularly marked in the context of some students having inadequate life-saving safety equipment that would have been noticed by you had adequate pre-activity safety checks been undertaken.

A combination of these two factors, and the conditions on the day, placed students at a foreseeable risk of capsizing, being swept out to sea and/or drowning if they fell into the water.

I therefore find that you did fail to conduct a sufficient pre-activity safety check of helmets and buoyancy vests for students, yourself or your assistant and this placed the students at risk of drowning when entering the water on their kayaks."

1. Failed to personally wear a helmet and buoyancy vest

1. Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar)

1. Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treated for hypothermia

"I accept the findings in the Investigation Report that:

1. Your actions (before and during the activity) including failing to brief the students clearly on how the activity was to be conducted and what to do should any dangerous situations arise resulted in you recklessly leading students into a wave zone where multiple students were tipped from their kayaks.
2. Your failure to ensure student safety equipment was adequately fitted created a risk for the students of drowning. The fact the students did not drown when they capsized their kayaks does not mitigate the risks you exposed the students to, but merely means that the equipment performed as it was intended to, despite the equipment being inadequate.

The failure to provide an adequate briefing meant that some students followed you into the wave area when they should not have, which placed them at an increased risk of capsizing their kayaks, and potentially drowning, given the weather conditions.

This risk was partially realised when several students did, in fact, capsize their kayaks and enter the water, ultimately requiring rescuing to prevent them from drowning. I am satisfied that the risk was sufficiently apparent to those on the beach that given the weather and sea conditions, the students in the water were at such a serious risk of drowning or being swept out to sea that they deemed it necessary to contact emergency services personnel who were dispatched the beach to render assistance.

I am satisfied that had the students in the water been adequately briefed they would not have entered the wave and current area, and your failure to brief them, and your actions in entering the area yourself, placed those students who followed you into the area at a substantially increased risk of drowning that they would not have otherwise have been exposed to.

Given the weather and sea conditions, the special position of trust you are placed in when taking students on these types of field trips and your extensive experience as a physical education teacher, you are expected to have a high level of awareness regarding student safety. In these circumstances it is incumbent on you to mitigate foreseeable risks for students in your care.

It is not unreasonable to expect that you should have taken appropriate action to mitigate the risks in light of the adverse weather conditions on the day by:

1. not allowing the students to enter the water; or
2. by providing an adequate safety briefing and properly ensuring that the relevant pre-activity safety checks had been undertaken.

I find that your failure to mitigate the risks in light of the adverse weather conditions was reckless and/or negligent in the circumstances.

I therefore find that you recklessly led the students into a wave and current area at the mouth of the river that was dangerous, which resulted in several students, as well as yourself, capsizing their kayaks and having to be assisted by other students, police, ambulance and a Lifeguard from the water."

1. Allowing students who had not successfully qualified in swimming competency to take part in the activity

1. Failing to follow appropriate CE Policies and Procedures.

"The investigation report identified the various Policies which as a teacher taking students on a field trip you were obliged to follow. This includes the CE Sport and Physical Safety Policy and the CE Excursion Policy.

I find, that based on the investigation and the review, your failure to:

1. provide an adequate safety briefing;
2. complete the pre-activity safety checks; and

constitute breaches of the requirements set out in the CE Sport and Physical Policy and the CE Excursion Policy."

[28] The letter went on to advise that given the findings reached, Mr Crowley was found to have breached his professional obligations under the Enterprise Agreement and the Guideline as follows:

"Given the nature of the findings made in relation to the particulars of the Allegation, I am satisfied that your actions on that day demonstrated a failure to comply with the Enterprise Agreement Clause 4(a) and (b), of Annexure D Professional Duties and Responsibilities, and Section 5.1(iii), (v) and (vi) and Section 9 of the Guidelines.

I find that the evidence identified in the investigation identified that you did not through your actions comply with the relevant provisions of the Enterprise Agreement and, in particular, section 9 of the Guidelines and:

1. Failed to meet your duty of care obligations to the students to maintain their safety when conducting this activity by failing to take action to properly assess and mitigate the risks you were exposing the students to, including the risk of drowning, given the sea and weather conditions;
2. Did not demonstrate the highest standard of professional behaviour and exercise appropriate professional judgement by the way you conduct these activities, in particular by allowing students to enter the water at all, or alternatively, by allowing them to enter the water without an adequate briefing or before adequate pre-activity safety checks had been conducted;

1. Did not adhere with the official guidelines in conducting this activity; and

1. Did not by your actions and how the activity was conducted conduct yourself in such a manner as to protect and enhance the esteem and standing of Catholic Education."

[29] The letter then went on to address the appropriate sanction, which reads:

"In determining an appropriate sanction, I have considered your responses to the Allegation, as well as the documents you have provided to support your contention that your employment should not be terminated.

I have also considered your recent unfortunate circumstances in the Tathra Fire and the loss of your home.

I have considered the term of your employment with Catholic Education and also your previous workplace misconduct matters where allegations against you have been substantiated. In particular, I have noted that on 22 December 2016 you were issued a final warning in relation to your conduct involving a workplace complaints process.

Taking into account these considerations I have determined that:

1. Given my findings in relation to the serious, life threatening risks that you exposed students in your care to on 17 October (sic) 2017, it is appropriate to terminate your employment.

2. However, given your personal circumstances and service to Catholic Education it is appropriate to offer you the opportunity to propose other positions that you are able and suitably qualified to perform for Catholic Education. If a suitable position is identified, and such a position is available to be filled, I am prepared to consider retaining you in employment with Catholic education with all of your accumulated entitlements preserved.

You should note, however, that Catholic Education will not continue to engage you as a Physical Education teacher at Lumen Christi Catholic College and you will not be considered for a role that will require you to supervise students offsite."

[30] Mr Crowley was invited to propose other employment positions that he could perform for the Archdiocese and was asked to respond by 6 June 2018.

[31] On 6 June 2018 Mr Crowley provided Ms Ozanne with a medical certificate certifying him unfit to perform his usual occupation.

[32] Around this time, the College had also been provided with a number of letters in support of Mr Crowley by members of the community, including former students, one of whom was a school captain, a former teacher, and the inaugural Chairperson of the College Board.

[33] On 13 June 2018 Ms Ozanne wrote to Mr Crowley giving him one final opportunity to propose an alternative to the proposed sanction of dismissal. In reply, Mr Crowley sought more time to consider the options, and noted the following:

"My home was destroyed as you know in the Tathra Bushfires, I have this precarious situation with my future hanging over my head and to make matters worse my ex partner witnessed and was chased by the perpetrator of the murders in Bega two Friday's ago, on the eve of our daughters 18 birthday party. We learnt at the weekend that ... my daughter now needs a knee reconstruction following an AFL injury. She is about to embark on her HSC exams. My family is in turmoil, requiring my upmost attention and I am certainly not in the right mental state to rationally make any decisions concerning my future at this present time."

[34] Mr Crowley also sought a reply to an earlier email requesting he be provided with a copy of the transcript of an interview that had been conducted with Mr Wenczel.

[35] Ms Ozanne replied two days later indicating that the process had already been extended in response to his difficult personal circumstances. Because of the impact that further delays would have on the College and its students, no further extensions would be given to Mr Crowley. He was given until close of business the following day to provide a response, after which Ms Ozanne said she would finalise a recommendation that his employment be terminated.

[36] Some further emails were exchanged between Ms Ozanne and Mr Crowley in the following few days. This included an email from Mr Crowley indicating that the College was aware of his skill set and abilities, and requesting that he be able to meet with Mr Centra to discuss alternative positions. Ms Ozanne's reply was to the effect that Mr Centra would not meet with him to discuss alternative positions, and Mr Crowley should provide her with a proposal of alternative employment if he wanted such a proposal to be considered by the College.

[37] By letter dated 22 June 2018 signed by Mr Ross Fox, the Director of the Archdiocese, Mr Crowley was advised that his employment was terminated. The termination letter reads as follows:

I am writing to advise you of the termination of your employment with Catholic Education.

The background to his matter is set out extensively in the letter to you of 24 May 2018 from Catholic Education's People and Culture Leader Ms Stacey Ozanne.

(a) On 17 October 2017 you embarked on a school excursion with your Year 9 Physical Activity and Sports Studies class to the mouth of the Pambula river;

(b) You were advised on 11 December 2017 that it was possible that you had breached your professional obligations under the NSW and ACT 2015 Catholic Systemic Schools Enterprise Agreement 2015 and Catholic Education's Guidelines for Professional Conduct in the Protection of Students and Young People as it was alleged that you had not acted in a professional manner or met your duty of care requirements in regards to the activities undertaken at the mouth of the Pambula River on 17 October 2017;

(c) You were also advised on 11 December 2017 that an investigation would be undertaken in relation to the allegations;

(d) You were interviewed as part of the investigation process and you were provided with the opportunity to respond to the investigation analysis, a review of the investigation, the People and Culture Leader's Preliminary Findings and a Show Cause Letter;

(e) The People and Culture Leader concluded that the allegation was substantiated and that given the serious nature of your misconduct, termination was an appropriate sanction.

I note that in making her decision with respect to sanction, in addition to the seriousness of the misconduct, the People and Culture Leader took into account:

(a) Your responses to the allegations as well as documents provided by you;

(b) Your length of service with Catholic Education;

(c) The final warning issued to you in relation to your conduct involving a workplace complaints process; and

(d) Your recent unfortunate circumstances in the Tathra fire and loss of your home.

Notwithstanding the People and Culture Leader's view on termination as the appropriate sanction, you were provided with the opportunity to propose alternative employment positions that you could perform at in the People and Culture Leader's letter to you of 24 May 2018.

You did not propose any alternative positions despite being provided with additional time to do so.

In the absence of any further submissions from you with respect to alternative employment positions you could perform, I agree with the position adopted by the People and Culture Leader and endorse her recommendation that it is appropriate to terminate you employment for misconduct.

While I am satisfied that in breaching your duty of care and your professional obligations you engaged in serious misconduct for the purposes of the Fair Work Act 2009, you will still receive a payment in lieu of notice. The termination of your employment effective as of 25 June 2018.

In addition to your payment in lieu of notice, you will be paid any accrued leave entitlements.

You are reminded of your obligation of confidentiality to the organisation which survives the cessation of your employment.

[38] Four of the seven particulars of the Allegation were sustained, and these formed the basis for Mr Crowley's dismissal. Accordingly, I now deal with the evidence in relation to each particular.

[39] Before I do, it is important to make an observation about the twelve, 14-15 year old students, who gave evidence. They gave their evidence one year after the Incident took place. From the time the first kayak capsized, the subsequent events could reasonably be described as chaotic and frightening for at least most of those involved. For anyone, let alone students of this age, giving evidence can be a daunting and intimidating experience.

[40] In terms of the evidence of the students, Mr Howell made the following submission in relation to the interview conducted by the investigator, Mr Jardine:

"The students are led very heavily and often when an answer is given that appears either to support something which the applicant had said or which appears to not really follow the line in which the investigator was tracing in his leading questions, the investigator either shuts down the questioning or steers if off in a different direction. It is regrettable and the only reason I mention it is it will come to explain why some of the students' evidence in these proceedings was quite different to what was before the employer."[1]

[41] It is perhaps unsurprising in light of the above that there were inconsistencies in the evidence of the students, including what they initially told the investigator compared to their answers to questions in cross examination. Their recollections of the Incident, or at least parts of it, were at times vague and unclear. This observation should in no way be construed as criticism. On the contrary, I consider they did their best to explain what had happened from their perspectives.

[42] The evidence also involved at least 14 of the witnesses drawing on and marking an aerial map of the mouth of the River. The map was used to demonstrate the route taken from the north to the south side of the River and back again in the kayaks, the location of various sized waves, and who ended up where in the water at various times during the Incident. I will not attempt to describe in this decision the multiple versions of the markings on the map, because to do so in any meaningful way would be almost impossible.

[43] In its final written submissions, the Archdiocese acknowledged that there was a cross over in the factual matrix relating to the Particulars. I have attempted to deal with each of the Particulars separately, however rather than repeat parts of the evidence, certain matters may be dealt with under the heading of one Particular even though it may additionally relate to another.

[44] In making my findings, I have taken into consideration all of the evidence given in the hearing, even if it is not specifically referred to.

Particular 1 - Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

[45] As set out earlier, it was accepted by the Archdiocese in finding Particular 1 proved that:

1. Prior to the activity occurring, the weather conditions had been a mix of thunder and rain with the rain being a combination of a light to heavy down pour.

2. At some point during the morning, there was lightning. However, it is not clear at what time this was.

3. On arrival at the location the conditions were overcast with light rain.

4. The weather conditions deteriorated from the time of arrival and whilst the students undertook the activity.

5. The swells were up to 1.8 metres with an outward flowing fast tide from where the students were to be engaged in their activity out to sea.

6. The conditions where the students were to be engaged in their activity of kayaking were dangerous, with a foreseeable risk that students could find themselves swept out to sea.

7. The risk assessment process [Mr Crowley] undertook on this day did not adequately account for the conditions and risks posed for [himself] and students in entering the water.

8. It was reasonable for [Mr Crowley], based on [his] experience, to have identified the risks associated with entering the water, including a potential risk of kayaks subsiding, students being swept out to sea, and potentially drowning and that [he] should have adjusted [his] actions accordingly, including by not allowing students to enter the water.

[46] In respect of the weather conditions on the afternoon of 17 November 2017, Mr Crowley said:

"At the time we arrived at the River there was light rain. There had been some storm clouds earlier in the day, but the weather had improved by the time of the lesson at 2.20pm and appeared stable. The temperature was around 21 degrees. I checked the weather forecast at lunchtime to see if there was a risk of lightning - there was no risk. I did not consider the possibility of light rain to create a safety issue for students but rather a convenience issue and given the nature of the activity (they were likely to get wet anyway) and the short period of the class (scheduled to be 30 minutes on the water) I did not think the weather was a reason to cancel the class. The previous class had also been conducted in wet conditions and the students had enjoyed it. ... We had conducted kayaking classes in wet conditions on a number of occasions over the years.

There was a swell of about 1.8 metres in the ocean, not the river. There are two sand bars across the mouth of the river and the waves and swell were on the ocean side of the sand bars and at the sand bars. There were reform waves/wind chop, which are very small waves (30 to 50cm at the face) that were reforming at the mouth of the river on the enclosed waters side of the sand bars, but there were no waves as such in the River. There was outgoing tide and an onshore wind.

The outgoing tide did not give rise to a strong outgoing current. I did not see a strong current before entering the water, and did not feel any significant current on either the paddle across to the southern bank or on the return to the northern bank on my line.

I did give consideration to whether the weather and river conditions were appropriate and safe prior to the students getting in the water, just as I always have done. I considered the conditions were safe provided students followed me, as I had instructed (basically, so long as they remained away from the wave zone)."

[47] Mr Crowley said that he was very conscious of the strength of the current on the day. He would never have let the students enter the water if he considered that the weather or River conditions were inappropriate for the activity to be undertaken or were unsafe. Mr Crowley claimed that he had done this same activity on this same stretch of River for many years without incident.

[48] Attached to Mr Crowley's statement was the risk assessment for Term 1 and Term 4 for water sports and his personal checklist he used for the activity.

[49] Mr Crowley said that the risk assessment he used had been in place in the College for some years and had been endorsed by the Principal and PDHPE faculty as a whole. Mr Crowley said that he assumed the risk assessment had been reviewed as part of the whole College reviews that are conduct by Catholic Education (CE) from time to time, including the most recent one in 2015.

[50] Mr Crowley said that the risk assessment refers to 'Access beach area before commencing activities' and 'Assess beach before entering'. He did both on the day, and asserted that anyone who has any experience of the ocean will always make an assessment of conditions when on the beach before going into the water.

[51] Mr Crowley said that his personal checklist was more detailed than the College risk assessment, given the College uses several venues for kayaking.

[52] Mr Crowley said that Mr Wenczel has a surfing background and is very capable in water scenarios, and he felt very confident having him as his assistant.

[53] Mr Wenczel said the conditions looked quite calm. There was a moderate swell out at the sand bar, of 1.5m faces that were breaking on the bar, and the tide was going out.

[54] He said that the sand bar was about 150 to 200m seaward of the small sandy beach where they entered the water on the northern shore. Inside the River mouth there were small reform waves, but were not breaking and only about 50-60cm on their face. The reform waves were approximately 30 to 50m seaward from where they entered the water on the northern shore.

[55] Mr Wenczel said that at the time everyone entered the water, the weather conditions at that time looked fine to him. He said he and Mr Crowley had a brief chat about how they would cross the River and it was agreed that one would take the lead and the other would take the rear to supervise from the back and keep an eye on any stragglers.

[56] He said that had he thought the conditions were not appropriate or safe, he would definitely have said something to Mr Crowley. In his view, there was nothing that indicated to him that the activity would be dangerous.

[57] In terms of the risk and safety aspects, Mr Wenzel said that before entering the water on the day of the Incident, Mr Crowley told the students to fasten the vests and helmets and use the buddy system to check each other. He also gave evidence that he visually inspected the students to see if they had their vests and helmets on properly and he personally checked a few students. He recalled that Mr Crowley did look over the students when everyone was on the beach and before anyone got in the water.

[58] Mr Evans said that he considered that Mr Crowley had undertaken the risk assessment in accordance with the usual school risk assessment processes and procedures at the time.

[59] Mr Evans in cross examination said he probably wouldn't have taken students kayaking on the day in question, not because it was unsafe, but because he was 'a little bit softer than Mr Crowley' and given it might have rained, he personally did not like being out in the rain.[2]

[60] He also said he would not have relied exclusively on the Bureau of Meterology weather report, and would have had gone down to the location (in this case the River mouth) to see what the conditions were like.

[61] In terms of the risk assessment process, Mr Centra confirmed during cross examination that he knew that kayaking was an activity undertaken at the College. He confirmed that as the Principal, he had overriding responsibility in terms of managing risk within the College, and otherwise he delegated that responsibility to the Head of the relevant department, in this case being Mr Evans.

[62] Mr Centra acknowledged Mr Evans' evidence that he was satisfied as to the risk assessment process undertaken by Mr Crowley.

[63] In terms of the risk assessment applicable for the activity taking place on the day of the Incident, Mr Centra said that he had not seen the risk assessment prior to the Incident.

[64] When asked whether there were any changes in the management of risk as a result of the Incident, Mr Centra said that there was now a new CE policy covering specific excursions.

The investigators view of the risk assessment process

[65] The investigation report made comments with regard to the risk assessment undertaken by Mr Crowley. In particular, it was said:

"The static risk assessment was conducted for the activity in 2011. This is all that was required for Mr Crowley to be followed. The risks that were considered were reasonable risks to be considered, but do not accurately permit for the appropriate risk at the actual location the activity was to occur. By today's standards, it is reasonable to conclude this is not a risk assessment, but a document prepared for use in briefing student about areas which are relevant to consider and which risks to student safety could arise. This appears to be useful document but ... does not suffice as a risk assessment.

Whilst this demonstrated an attempt at a risk based approach, clearly an appropriate risk assessment requires initial consideration whether an activity should be conducted prior to determining how the risks are addressed. The risk based approach must take into considerations the relevant factors relating to the location the activity is to occur. For an outdoor activity such as kayaking it would be appropriate to include weather and sea conditions on the day of the activity and at the particular location.

There has been no definitive evidence identified to demonstrate that Mr Crowley did or did not conduct a risk assessment on the day of the incident given the use of a static assessment...

There does not appear to be any requirement within the school to make a note of relevant considerations prior to conducting a specific activity which would provide evidence on both the conduct of and factors considered in a risk assessment.

The CE Risk Management Policy states that there is a requirement to follow an approach, though it is noted that it is not specific to the actual water activity with regard to the relevant time, date and place of the activity, but it did consider general factors.

Equally, it does not indicate specifics of assessment that were conducted to adequately determine the weather and river conditions at the time of the activity to appropriately conduct the activity. Consideration is needed to update this policy to be in line with current risk management practices.

Catholic Education has a risk assessment framework which is utilised. It is noted the investigation identified that the School had an Excursion Risk Management Proforma which was used for this activity. The analysis has identified that whilst it identifies five possible hazards it does not identify any hazards which relate to weather and water conditions. Instead it identifies hazards such as drowning without referring to these risk areas.

It is reasonable to conclude that an appropriate assessment should have also considered the weather-based issues, and other issues that may propose a risk specific to the actual location the activity was being undertaken at.

The risk assessment conducted by Mr Crowley, whilst in accordance with current Catholic Education policy and guidelines, when considered in context with the other stated requirements as per other policies was not appropriate in the circumstances.

The assessment, whilst completed in accordance with policy, was completed in 2011. This risk assessment failed to take into consideration factors such as the physical location and the weather. It would have been reasonable for such factors such as the physical location and the weather (sic). It would have been reasonable for such factors to have been considered over and above the static assessment, completed some 7 years previously. There is a contributing factor based on current Catholic Education policy that requires amendment to avoid this in the future.

(Noting Mr Crowley's evidence that all activities at the College require a risk assessment as per the Archdiocese rules, which was signed off by the Principal and have been used as a guide in the lessons. Few staff at the College had taken part in Risk Assessment training.)"

[66] Student A said that the weather was overcast and it looked like it was going to rain and storm. She was worried about the waves and the swell. She was 'a bit concerned' that they were still going out.

[67] She said: "When we arrived at the river mouth, I remember looking at the ocean and thinking it looked quite rough and had a big swell. The river looked pretty flat. I was feeling quite uneasy. I was worried about falling off my kayak as I had not kayaked before. I thought I might get swept out to sea. I did not say this to anyone."

[68] Student B said that she checked the weather forecast in the morning and noticed that rain and wind was expected. She complained to her parents that she did not want to go kayaking because of the poor conditions.

[69] She was reluctant to go out kayaking because she was worried that they had not learnt how to kayak properly. She was concerned about attempting to kayak when it was raining.

[70] It rained on and off throughout that morning. At the end of lunch they went down to meet Mr Crowley for the class and some students asked him if they were still going kayaking due to the rain. Mr Crowley said in response 'you're going to get wet anyway in the water so the rain doesn't matter'.

[71] Three students asked if they could stay at school instead of going kayaking. Mr Crowely told them that if they brought their gear they had to go. She felt annoyed at this as she did not think the weather conditions were appropriate for kayaking.

[72] In cross examination, Student B said it was not until they were out of the water that she heard thunder.

[73] Student C said that it was raining, freezing and windy. She saw Mr Crowley at lunch time and asked 'are we still going to go kayaking?' and Mr Crowley said: 'yes because it's not lightning we'll be right'.

[74] She said she thought it was terrible weather when they got to the beach. It was raining although not heavily.

[75] Student D said the weather was cloudy and it was raining. He did not recall if it was raining when they got on the bus but it was still overcast.

[76] Student E said the weather was cloudy and windy in the morning, however it did not rain heavily apart from a sprinkle from time to time.

[77] He recalled that when they arrived at the River mouth the conditions on the water were 'crap'. He could not recall anything else about the weather conditions when they arrived.

[78] Student F said weather was cloudy. There were showers on and off all day. Some were heavy, some were fairly light.

[79] He said the class met at the court yard prior to going to the River. He did not recall exactly what was said at the beginning of the lesson but each teacher at school including Mr Crowley would usually explain at the beginning what they were doing that lesson. He said that 'Mr Crowley would have told us we were going kayaking at the Pambula river mouth'.

[80] He said he was surprised that they were going kayaking that day as he had done an online weather check about the tides in Pambula. He recalled thinking it was a pretty big swell and thinking they would probably not be going kayaking because of the rainy weather.

[81] Student G gave evidence that the weather was overcast and cold. He did not remember if it was raining.

[82] He recalled that Mr Crowley said something about Pambula Beach being 'messy' with big waves, and told the students they were going to the River mouth.

[83] Student G said he was a surfer and he checked the weather for the day. He recalled thinking it was good for surfing but not for kayaking.

[84] When they arrived at the River mouth, the weather was still overcast and cold. He complained to Mr Crowley that it was going to be cold, so Mr Crowley gave him a wetsuit.

[85] Student H's evidence was that it was overcast in the morning and there had been quite a few showers. He did not recall what the weather was like for the whole morning. He recalled thinking that they would not be going kayaking because of bad weather.

[86] He and another student asked Mr Crowley at the end of lunch whether they could play basketball instead as they did not want to go kayaking because of the weather. Mr Crowley said 'it doesn't matter, we're going kayaking'. The other student told Mr Crowley he did not have his swimmers and was then asked to stay and do theory.

[87] When they arrived the River, Student H said the water looked like it was moving quickly out to sea although he could not see any waves in the River. The weather was cloudy but there was no rain at that stage.

[88] Student I said the weather that morning was 'pretty overcast'. It was spitting but not quite raining. He remembered thinking the practical lesson would be cancelled because of the weather.

[89] Student J said the weather was rainy. He did not take his board shorts to school because he thought the weather was bad and he also did not want to go out on the water. He recalled talking to other boys that morning and were talking about the weather and saying that the PASS class might be cancelled.

[90] Student K said the weather was overcast and windy. There was heavy rain in the morning but he did not recall if it was raining at lunch time. In any event he did not get wet.

[91] When they arrived the River mouth, there was light and spitting rain.

[92] Student L said was cloudy and it rained heavily on and off throughout the morning. When they were in the bus the weather was drizzling and there were dark clouds.

[93] When they arrived the River mouth it was freezing cold outside and the wind was picking up again. He said Student K said to Mr Crowley that 'it's too cold' to which Mr Crowley replied with words to the effect of 'harden up'.

[94] He recalled a few people complaining about the weather.

[95] When they arrived at the River, he recalled thinking it would be pretty good and sheltered. He could see the River itself was pretty flat. The mouth of the River looked pretty choppy and not very good for a kayak. The weather was windy and overcast. It was spitting rain.

Particular 2 - Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

[96] In accepting the findings of the investigation report in relation to Particular 2, the Archdiocese was satisfied that Mr Crowley:

1. failed to provide an adequate safety briefing given the nature of the conditions on the day; and

2. failed to sufficiently conduct a pre-activity safety check for all students who participated in the activity, for himself and his assistant.

[97] The reasons for this finding were that:

"Based on the conditions on the day at the location, [Mr Crowley's] failure to provide an adequate safety briefing resulted in students going into the water inadequately briefed and underprepared to deal with the dangerous conditions that they were entering into. [His] failure to provide an adequate briefing to the students prior to the activity being conducted meant that there was confusion when the students entered the water in their kayaks as they were not clear on:

1. how they were to conduct the activity;
2. where (if anywhere) it was safe to kayak;
3. what areas they should avoid; and
4. what to do if they found themselves having trouble in the water.

This failure was particularly marked in the context of some students having inadequate life-saving safety equipment that would have been noticed by [him] had adequate pre-activity safety checks been undertaken. A combination of these two factors, and the conditions on the day, placed students at a foreseeable risk of capsizing, being swept out to sea and/or drowning if they fell into the water."

[98] According to Mr Crowley, he had given a detailed explanation the previous week about how to fit buoyancy vests and helmets.

[99] On the day of the Incident, before the students changed into their swimwear and put on their buoyancy vests and helmets, he did a brief run through on the need for the vests and helmets to be a snug fit to ensure comfort and safety. He told students who had been absent the previous week to check with their buddy about how to fit their buoyancy vest and helmet and to ask him if they were not sure.

[100] Mr Crowley said he and Mr Wenczel checked a number of students and that all students were wearing properly fitted vests and helmets. He explained that a 'buddy system' is used in all water sports at the College, which contemplates all students be accompanied by a buddy in the water and they all check each other's equipment before entering the water and assist in adjusting it.

[101] He said that the safety gear that the College had purchased was all easy to adjust. The helmets have dial up head cradles (like bike helmets children typically wear from a young age), and the students only needed to adjust their chin strap for comfort. The vests are similar with pull tag mechanisms, and did not involve any complex tying of knots or the like.

[102] He and Mr Wenczel each wore wetsuits as a buoyancy aid rather than vests, because it is easier to rescue a student wearing a wetsuit rather than a vest. They did not wear a helmet as a helmet is not required on flat water which is what they planned to do. Mr Crowley said that he ensured students wear helmets and vests at all venues for added safety.

[103] Mr Wenczel recalled that at the first kayaking class, Mr Crowley told the students how to fit their vests and helmets. He demonstrated how to fit the vest, how to make sure the vest was tight and secure, and he did the same with the helmets. He also explained how the buddy system worked and what was expected. He believed the students were also trained on how to use and fit the life jacket and helmet in Term 1, where they studied a range of water safety equipment. However he understood the students didn't use them regularly in Term 1 because the instruction was more directed to general surf lifesaving and water safety.

[104] On 17 November 2017 Mr Crowley told the students to fasten the vests and helmets, and to use the buddy system to check each other. He looked around to see if they were done up properly. Mr Wenczel personally checked a couple of students. He recalled that Mr Crowley visually inspected the students when they were on the beach and before anyone got in the water.

[105] Student A did not participate the first lesson but observed from the beach. She recalled Mr Crowley explaining some procedures with the life jackets and helmets but she did not recall any more details about this.

[106] In her witness statement, she said she did not recall her life jacket and helmet being fitted, they just put them on and off they went. No one checked the fit on her life jacket or the fit of her helmet. She did not recall Mr Crowley say anything about how to fit the life jackets or helmets.

[107] In cross examination, she accepted she heard Mr Crowley say something like "make sure they're tight" in relation to the life jackets.

[108] In the first practical lesson Student B said that Mr Crowley had shown the class how to fit safety equipment, including how to fit life jackets and tighten the straps.

[109] In her statement, Student B said no one checked if they had put on their life jackets and helmets correctly.

[110] In cross examination, Student B agreed that the buddy system was used to check life jackets. She agreed that Mr Crowley had said words to the effect of "grab your life jackets and helmets and put them on, make sure that they are done up tight, get your buddy to check and if you're not sure, come and speak to me".[3]

[111] She confirmed she had been taught by Mr Crowley to check the life jacket 'was done up properly by pulling it to see if it would come up and hit you in the chin' during the first kayaking lesson the week before. Student B confirmed that the helmets were very similar to a bike helmet, and she knew it needed to be tight to stay on. She said she knew how to tighten it.[4]

[112] Student C said that the first kayak lesson was on Pambula Beach. She forgot her swimmers but still went to observe. Mr Crowley taught the class how to tighten up the life jackets and helmets. On the water, Mr Crowley showed people how to turn in their kayaks and how to paddle. She could not hear exactly what was said as they were too far away. Mr Crowley had also shown students how to get back on to the kayak if they fell off, and how to sit backwards on the kayak when there is a wave breaking behind them so they did not fall off.

[113] She said that on the day of the Incident, Mr Crowley said: "Once you have your life jacket, get your friend to check it." He then said: "put your helmets on and tighten them up". She paired with Student B and she checked her life jacket (ie. the buddy check).

[114] Student D said Mr Crowley helped a few people with their life jackets. He saw a student go up to where Mr Crowley was standing and asked him to check it for them. He believed Mr Crowley checked everyone's life jackets and helmets but he did not know what he did to check them.

[115] He agreed that prior to entering the water, Mr Crowley said something to the effect that they should 'follow Hamish [Wenczel] to the other shore. We're not going near the waves'.[5]

[116] Student E said Mr Crowley and Mr Wenczel looked over the group to generally make sure everyone had put on their life jackets and helmets correctly and pulled the straps to secure them. Mr Crowley checked Student E's life jacket to see if it was loose.

[117] In cross examination Student E confirmed that Mr Crowley looked over everyone to check their helmets and vests, which was his usual practice when doing water sports.[6]

[118] Student E also agreed that in terms of instruction, Mr Crowley gave an instruction to follow Mr Wenczel across the River, and said they were not going near the waves and pointed towards the shore on the other side.[7]

[119] Student F in his witness statement said he did not recall if Mr Crowley had spoken to the class about the safety equipment. He had not used the life jacket before as he did not attend the first lesson.

[120] He recalled Mr Crowley telling them to do a buddy check.

[121] In cross examination, Student F agreed that Mr Crowley said words to the effect of "grab the helmets and life jackets, put them on, tighten them up, get your buddy to check it. If you've got any questions come and talk to me or Hamish".[8]

[122] In terms of the briefing given by Mr Crowley, Student F agreed that Mr Crowley said something to the effect of "follow Hamish off to the other shore. We're not going where the waves are".[9]

[123] Student G said Mr Crowley had shown the students how to wear the life jacket and helmet at the start of the school term. He was paired with Student I and did a buddy check to see if the life jackets were tight.

[124] He agreed that Mr Crowley said words 'Grab your helmets and life jackets. Whack them on. Make sure they're tight. Check with your buddy. If you're not sure, come and check with me or Hamish'.[10]

[125] In terms of a briefing, Student G confirmed in cross examination that Mr Crowley said words to the effect of "follow Hamish [Wenczel] to the other shore. We're not going into the wave zone".[11]

[126] Student H said Mr Crowley gave no instructions on how to put on the life jacket and helmet. He did not remember Mr Crowley checking to see if his life jacket was put on properly.

[127] In cross examination, Student H agreed that Mr Crowley told everyone to do their buddy check with respect to the life jacket and helmet, but did not recall him telling the students to ensure they were "nice and tight". He agreed he knew he could have asked Mr Crowley if he was unsure of what to do.[12]

[128] Student I said Mr Crowley taught students in the first lesson how to fasten the life jackets and to have their helmets on securely. There were two sizes of the life jackets, and Mr Crowley told them to put the larger life jackets on the bigger people.

[129] On 17 November, he saw Mr Crowley helping Student K with his life jacket. He did not recall him saying anything about life jackets or helmets, other than they needed to be tight and the right size.

[130] In cross examination, Student I agreed that Mr Crowley said words to the effect of 'put on your helmets and life jackets, make sure they're nice and tight, check with your buddy. If you're not sure, come and talk to me and Hamish'.[13]

[131] In terms of the instruction given by Mr Crowley, Student I said he only vaguely remembered Mr Crowley saying they were to follow Mr Wenczel to the other side and that they were not to go into the wave zone.[14]

[132] Student J said he did not recall having participated in any practical kayaking lessons before 17 November. He did not recall doing any theory lessons on kayaking.

[133] On 17 November, he put on a life jacket and helmet. Student F checked his life jacket and tightened the straps. He checked Student F's and tightened the straps on his life jacket although he did not really know how to check, or what he was checking for.

[134] He said: "[Student F] is my best friend, but I was not in a pair with [Student F]. No one else in the class wanted to pair up with me because I cannot really swim and am not good in the water. I ended up in a pair with [Student K]."

[135] Student K said Mr Crowley had told them that they had to wear life jackets and helmets so that if they got hit by a kayak they would not get knocked out. The buddies in the class would check to see if they had them on the right way.

[136] He paired with Student J. He and Student J checked their life jackets and helmets, and he did not recall that anyone else checked them.

[137] During cross examination he said he understood 'check' to mean 'going over your body to see if everything's tight and not falling - not going to fall off in the water'. He went on to agree that it was Mr Crowley who had taught him to pull up the life jacket to see if it moved and whether it might go over his head.[15]

[138] Student L said Mr Crowley taught the class how to tighten the life jackets and helmets in the first lesson.

[139] On 17 November, Mr Crowley did not say anything else about the gear, or check to see if he had put his on properly. He got Student P to tighten his helmet because it was loose.

[140] In cross examination, Student L said students were given a copy of a document called 'Crowley Kayak Risk Checklist'[16] the first time they went kayaking as part of the PASS class. He said they were told to 'have a good read of this' by Mr Crowley.[17]

[141] Student L also explained what had occurred in the first kayaking lesson the week earlier at Pambula Beach, saying: "[Mr Crowley] paddled out first and then, like, told us what to do; how to get in the kayak, how to drag it into the water properly. Then he paddled out and then we paddled out around him and back in, and then we did another exercise out there where, like, we would all connect as one big, like, raft and, like, paddle around in a circle". He also agreed that they practiced capsizing. He said that not all students were in attendance that day.[18]

[142] Student L agreed in cross examination that Mr Crowley said words to the effect of 'grab your helmets and life jackets. Make sure they're tight. Get your buddy to check. If you're not sure what you're doing, come and talk to me or Hamish'.[19]

Particular 5 - Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treated for hypothermia

[143] The findings accepted by the Archdiocese from the investigation report in relation to Particular 5 were that Mr Crowley's actions (before and during the activity) including failing to brief the students clearly on how the activity was to be conducted and what to do should any dangerous situations arise, resulted in Mr Crowley recklessly leading students into a wave zone where multiple students were tipped from their kayaks. Further, Mr Crowley's failure to ensure student safety equipment was adequately fitted created a risk for the students of drowning. The fact the students did not drown when they capsized their kayaks did not mitigate the risks Mr Crowley exposed the students to, but merely means that the equipment performed as it was intended to, despite the equipment being inadequate.

[144] The details of Particular 5 went on to find that:

"It is not unreasonable to expect that you should have taken appropriate action to mitigate the risks in light of the adverse weather conditions on the day by:

1. not allowing the students to enter the water; or
2. by providing an adequate safety briefing and properly ensuring that the relevant pre-activity safety checks had been undertaken.

I find that your failure to mitigate the risks in light of the adverse weather conditions was reckless and/or negligent in the circumstances".

Paddling across river from northern shore to southern shore

[145] Mr Crowley said the class started with a warm-up paddle across to the southern shore of the River. He was in a kayak himself. Mr Wenczel was in a kayak with a student, and the remaining 12 students were in six kayaks with two students in each.

[146] Prior to heading from the northern to the southern shore he instructed the students in words to the effect of 'follow Hamish to the other shore' and 'we are not going in the wave zone'. Mr Wenczel was in the lead across the River. Mr Crowley stayed at the back and observed how the students were going.

[147] Everyone reached the southern shore without any difficulty. There was no material outgoing current. It took a short time (5 to 8 minutes) for everyone to cross. On the line everyone took across the river, there was at least 25 metres between the group and the small reform waves towards the mouth of the river (ie, it was about 150 to 180 meters to the sand bars and the much larger waves he referred to earlier). He was looking for a mild current to execute a ferry glide. He decided to cross back to the northern shore as there was no current near the southern shore. He had hoped to find a mild current there as he had in previous years, but because of sand deposition, the channel had changed.

[148] Mr Wenczel's evidence was that before anyone got in a kayak, Mr Crowley addressed the group whilst everyone was on the beach saying words to the effect of 'follow me, we are heading across to the southern side' and he pointed across the river. At that time the river appeared pretty calm. The tide was pretty low and was running out. It was overcast but there was no rain and there was an onshore breeze. The weather conditions at that time looked fine to Mr Wenczel.

[149] Mr Crowley had a brief conversation with him about how the group would cross the River. It was agreed Mr Crowley was to take the front and he was to take the rear to supervise from the back and keep an eye on any stragglers.

[150] There was no issue paddling across the River. There was no current that he noticed. It took around 5 minutes to cross to the southern shore.

[151] The water was very shallow on the southern shore. Mr Wenczel could not recall whether anyone else got out of their kayak. He stepped out briefly before headed back across.

[152] In an email to Mr Sleeman on 24 May 2018, which was later forwarded to Ms Ozanne on the same day[20], Mr Wenczel wrote:

"Whilst the interviews and subsequent transcripts of the interview I had with Mr Jardine are quite extensive, there are a few key points I should reiterate regarding the events at Pambula Rivermouth in late 2017.

1. Mike Crowley's intention was to never enter the 'wave zone' and was always to stay within the confines of flat water.
2. The river mouth is generally a safe area to conduct water activities, the school has used the area for years, unfortunately on the day conditions changed quickly.
3. There were some students who ventured into an area which they were not instructed, in an attempt to catch waves.
4. All children made it back to shore with the help of myself and Mike, before any assistance from emergency services/SLSC members.

I hope the information I've provided to Mr Jardine is considered through the decision making process. The points I have made here may assist you further, however I feel that you will have ample information at this stage to refer to throughout your processes.

[153] Student A said that she did not recall Mr Crowley say anything about where they were going.[21] She recalled Mr Crowley pointing across the River.[22]

[154] She shared the kayak with Mr Wenczel. They kayaked over to the little sandy bank on the southern side of the River. Their kayak was towards the front of the group as they headed across the River. They made it to the other side of the River and were waiting for the other students to catch up. She got out of the kayak into the shallow water. It was about ankle deep.

[155] In cross examination she confirmed the paddle over was 'pretty quick' and relatively easy with no significant waves of any kind, nor any significant current pulling her anywhere[23].

[156] Student B said Mr Crowley instructed them to paddle directly across the River to the beach on the other side. Mr Crowley did not specify if there were any areas they should not go to.

[157] She got in the kayak with Student C and started paddling across the river to the beach on the southern side of the River. They got to the other side and stayed in their kayak.

[158] Student B confirmed in cross examination that the paddle from the northern to the southern shore was easy, with no noticeable current.

[159] Student C said Mr Crowley told everyone to paddle across to the opposite side of the River. He did not say anything else about where they should or should not go in their kayaks.

[160] She and Student B got in their kayak and paddled across to the other side of the River. When they were paddling she saw that other students had already made it to the other side and stood around on the beach waiting others to arrive. After Students B and C arrived on the southern shore, they sat in their kayak in the water just off the beach.

[161] Student D said Mr Crowley told them to go to the sand back on the other side of the River. He said words to the effect of 'go to the other side', and he said this to the whole class. Student D did not recall Mr Crowley telling them anything about where they should or should not go in their kayaks.

[162] The weather looked stormy at that point. The water was calm where they were on the River but he could see 'pretty big waves' at the River mouth. He estimated these waves would have been approximately head height. The current was going out towards the sea.

[163] When Student D headed across the River, Mr Crowley was behind them. He and Students H, F and E got to the southern bank first and they pulled their kayaks onto the sand.

[164] Student E said Mr Crowley gave instructions for everyone in the class to paddle directly across the River to a beach on the other side. Mr Crowley said he would then signal to us to follow him. He could not recall whether Mr Crowley gave any further instructions to the class or told them where or where not to paddle. Student E said Mr Crowley did not say anything to the class about the waves.

[165] He and Student F paddled across the River to the beach as instructed by Mr Crowley. A kayak shared by Student D and H followed them to the southern bank.

[166] In cross examination, Student E agreed that Mr Crowley called out to the group, 'Follow Hamish to the other shore. We're not going to go in the wave zone.'[24]

[167] Student F gave evidence that Mr Crowley told the class they were going to head over to the other side of the River and pointed to the opposite bank.

[168] In cross examination, Student F agreed that Mr Crowley said something to the effect of 'Follow Hamish off to the other shore. We're not going where the waves are.'[25]

[169] He said he was 'pretty sure' that Mr Crowley had mentioned a particular kayaking technique during the course but he had no idea what it was.[26]

[170] Student F said that the paddle from the northern to the southern shore was easy, with no waves and no noticeable current.

[171] He and Student E were one of the first kayaks across the River. They got to the shallow water on the southern bank. He got out of the kayak and pulled it on the sand to wait for everyone else to get there. He recalled that Student D and H were the other pair who also got out of the kayak. Mr Crowley stopped along his way across to see how everyone was going.

[172] Student G said he and Student I pushed off from the shore where Mr Crowley was going. He did not remember exactly what was said. Mr Crowley did not say anything about where they were allowed or not allowed to go.

[173] He remembered seeing others reach the beach on the opposite bank of the River. He and Student I did not make it to the other side of the River. Before they got there, Mr Crowley said to follow him. He did not recall exactly what he said. He and Student I were close behind him and followed him.

[174] Student H said that Mr Crowley told everyone to 'paddle across the River to the beach on the other side', but did not recall whether he said this before they started paddling. Mr Crowley gave no other instructions on where the class was to kayak, or how to kayak.

[175] Student E and Student F pushed off from the beach first. Student H paired up with Student D and raced with Students E and F to get to across the river. The four of them got to the beach quickly and well before the rest of the class.

[176] Student I gave evidence that Mr Crowley said something like: "go to the other side of the River". He did not recall if he gave any further or more detailed instructions. He did not hear him say anything about where we should or should not be kayaking.

[177] Student I agreed in cross examination that in term one, Mr Crowley told the class that it was particularly important to follow instructions when in water.[27] He also agreed that Mr Crowley's instructed students to 'follow me' and this meant that students should stay on his line and follow him across the River.[28]

[178] Student J gave evidence that Mr Crowley said words to the effect of 'we're going across the River'. He did not tell them where we were not supposed to go. Mr Crowley pushed off first and the class followed. He and Student K were towards the back of the group of kayaks. They were following others.

[179] He did not remember Mr Crowley motioning with his arm and pointing across the River. He said: "I don't know. I don't think I was paying that much attention."[29]

[180] Many of Student J's answers in cross examination were that he did not remember or did not know.

[181] Student K said Mr Crowley told them to head across to the sandy bank on the other side of the River. He said words to the effect of 'go over there and wait for instructions". He saw Mr Crowley point across the River. He and Student J were at the back of the group. He recalled other kayaks were halfway across the River when he and Student J were pushing off from the shore. He saw two kayaks had already made it to the beach on the southern side.

[182] During cross examination, Student K agreed that in terms of instructions, Mr Crowley told the students to follow Hamish to the other shore, and he gestured with his arm.[30]

[183] In his witness statement, Student L said Mr Crowley told them to hop into their kayaks and paddle across the River. He did not say anything else about where to go.

[184] He paddled across the River with Student P. They sat in their kayaks about 10 metres off the beach from where they had landed.

[185] In cross examination, Student L said that prior to departing from the northern shore, Mr Crowley made it clear that students were not to go where the waves were.[31]

Paddling across from the southern shore to the northern shore

[186] Mr Crowley's account as to this segment was as follows:

"We were not at the southern shore for long. Before departing from the southern shore I told the students to 'follow me exactly and stay away from the waves' and 'stay on my line'. I also used signals (the signal shows students to stay on the Riverside of my position), for those students who may not have heard me when I said this, because I was in my kayak and slightly out from the southern shore when I called out and some students were on the beach at the southern shore.

There was again no significant current as I crossed back to the northern shore, paddling along a semi - circular line, maintaining a distance of at least 25 metres from the reform waves area at all times. I led the students with Hamish now at the rear - his job was to keep an eye on stragglers and keep the rear guard on my line.

When I reached the northern shore I turned my kayak and raised my paddle vertically to signal to the students to assemble on my position. I was sitting across the rear kayak seat with my feet on the sand in shallow water, about 5 or 6 metres off the beach. I was about 40 metres along the beach from our initial entry point on the northern shore. There was no current at that position either. I was intending to then proceed up the River (further away from the River mouth) with the class to do the ferry glide in a location where there was some current.

Most of the group came to me. When I turned around (having traversed the River from south to north), I observed some kayaks who had moved seawards (about 30 meters off the line I had taken across the River) towards the reform waves area, and were riding the waves. I think there were three kayaks in this position. They were significantly off the line I had taken across the River. I think I called out for them to come to me, and signalled for them to come by raising my paddle.

Two of the three kayaks came back out of the reform waves area, surfing the reform waves. The third kayak capsized when it tried to turn. I shouted to the group and Hamish 'Get on the sand, I have to go.' I only shouted to Hamish once the first kayak had capsized.

I paddled towards the kayak that had capsized. It was about 25-35 metres away. To get there I had to paddle through a standing wave at an angle, not at 90 degrees (as you would normally punch through a wave), to reach them. I was in a double kayak on the middle seat by myself. In that position the kayak is less stable than if you have two people in it. My kayak capsized as I traversed the wave.

I am not sure whether some additional kayaks ended up in the reform wave zone because they followed me in, ignored Hamish, or had not heard my instructions when I was on the northern shore telling the students to go onto the sand. I concede that at this point there was a communication breakdown. It could also have been that they saw me capsize and wanted to render assistance. I don't know because I was underwater and then getting myself back on my kayak for a few seconds.

When I re-surfaced I saw that another kayak was in some difficulty. They were in the channel and heading towards an area where the waves grew in size and there was a stronger current. We needed to head in towards Lions Beach to get out of the channel. They struggled to do this and a number of students ended up in the water separated from their kayaks. I gathered those near me, being [Student A, C and D]. Two were able to get onto my kayak and I got into the water to make room and act as a sea anchor to stabilise the kayak. It became clear that [Student C] was struggling to get onto the kayak and was placing weight on the rail and capsizing the kayak. I decided to secure [Student C] in the water hanging onto the rear toggle of the kayak with me.

[Student J] (who I believe was in the first kayak that capsized) was in the water about 12 metres from us, to my right and to the north and appeared to be in difficulty in the water. One of the other students, [Student I], got in the water and stayed with him, and made slow progress swimming towards us. I handed [Student A] and [Student D] who were still on my kayak paddles that were floating in the ocean and they paddled towards [Student J]. My intention was to glide over to [Student J] and get him onto the side handle of my kayak.

Moving over to [Student J] took some time. The kayak capsized a number of times but the students were able to get back onto the kayak each time and continued paddling towards [Student J]. Several capsizes later and with a brilliant effort from [Student D] and [Student I] looking after and swimming to us with [Student J] we managed it. Then Hamish and [Student H] paddled back out and picked up [Student C]. We then managed to get into the safety of the shallows near Lions Beach. [Student J] was exhausted and appeared very cold. The Ambos warmed him and he was later driven home by Mr Evans. All the others were accounted for, and they gathered in the bus to keep warm."

[187] Mr Wenczel gave evidence that he heard Mr Crowley say 'follow me' to the class, instructing them to follow him back to the northern side. Mr Crowley was at the front of the group and Mr Wenczel was to follow and watch from behind.

[188] When Mr Crowley got to the other side he turned and was sitting stationary in his kayak with his paddle in the air, which is a signal that means the class should go to him. He was about 40m seaward from where the class had originally started and about 5 to 8m from the shoreline. He was in line with the first set of rocks near the sandy cove heading from the start point towards the River mouth.

[189] He noticed that a couple of the kayaks had made their way out slightly more seaward towards where the small reform waves were forming in the River. A couple of students were trying to catch and surf these small waves which had a face height of about 50cm or so. These students were in the middle of the River but about 20-25m seaward of where they should have been. They had not followed Mr Crowley directly across the River. They went to play on the waves.

[190] Some of the students were already quite close to where Mr Crowley was on the northern shore. There were the couple of kayaks trying to catch the small waves, and I had a student in my kayak. Mr Crowley was yelling at the students to make their way back towards him in the sheltered water.

[191] On the crossing back toward the northern shore, as the students had moved slightly further out seaward, there was more of a pull out towards the sea. Mr Wenczel believed if the students had crossed directly on Mr Crowley's path they would have been ok. Those who did stay on that path did not have any trouble. The place where Mr Crowley was waiting was out of the current. He believed there were about three or four kayaks with Mr Crowley near the northern shore and about two were slightly more towards the middle of the River mouth playing in the small waves.

[192] He recalled one or two kayaks that were playing in the waves tipped over. When those students were trying to get back to their kayak, the current was moving them seaward. Mr Crowley yelled for everyone to go to shore. He then went to assist. Some of the students had paddled back to shore and got in safely, but other stayed to assist. A couple of the students also went to assist. Within 2 to 3 minutes of Mr Crowley ordering the kayaks that had gone too far out to go back to shore, there were 3 or 4 capsized kayaks.

[193] It then became chaotic and he and Mr Crowley attempted to get the students back to the kayaks and back to shore. All students were wearing life jackets and helmets. As he was trying to rescue the students they drifted further out. He want to get another kayak for students to get into or hang onto so he swam back to shore and grabbed another kayak and paddled it back out to where the students were. At that point they had drifted about 100 to 150 metres seaward of their starting point. They had not reached the sandbar where the waves were breaking. When they paddled back out on the new kayak the students and Mr Crowley were just outside the River mouth where the current turned. The closest the students were to the breakers on the sand bar was about 20-30 metres away.

[194] Eventually they managed to get all students back to shore either by swimming in their life jackets, hanging onto a kayak or paddling a kayak.

[195] Student A said Mr Crowley was the first kayak to head in the direction of the ocean. She said he was leading the group, and thought he was aiming to go to the rocks. She did not recall him saying anything when he got into his kayak and started heading off.

[196] Student A agreed Mr Crowley used hand signals to show where he was going[32] His arm signal indicated they were to head towards the other side. He was heading towards the rocks near the channel.[33]

[197] She agreed that some boys had gone into the wave zone and were playing in the waves.[34]

[198] Student A said the waves out in the wave zone were massive and that the swell was big. She and Mr Wenczel started to follow Mr Crowley and other students. She asked Mr Wenczel 'are we going to follow Crowley' and he said 'yeah, we are just following him'. She recalled thinking 'should we really be doing this?' because the waves were crashing really quickly.

[199] She said students started being swept into the waves and everyone started falling off their kayaks. She fell off the kayak. She remembered she and Mr Wenczel began heading in the direction of Mr Crowley to get him because he had fallen off. They were dragged into the wave zone and were pushed into the water fairly quickly by the waves. The kayak flipped a few times and she got back onto the kayak. Mr Wenczel got off the kayak to scout around and to make sure everyone was alright. She did not recall if he said anything to her before doing this. She was quite scared at this point in time.

[200] Her helmet kept falling down over her face, and her life jacket kept pushing up over her face. She said it felt like she could not breathe properly. After being dumped a few times she started to panic. She said she felt like she was not going to survive and was really scared. She was not crying, but her heart was racing. She could hear the waves and they were crashing fast. The current kept taking her out towards the ocean. She kept thinking it was going to take her longer to get back to shore, if they could even get back to the shore.

[201] Around the same time Mr Wenczel left her kayak, she said Mr Crowley started hanging onto the back of her kayak. They picked up Student D. She then got on the kayak and Student D began paddling. She recalled Mr Crowley helped them to tip the kayak over when it continued to get dumped by the waves. "He [Mr Crowley] did not help me get back onto the kayak at any stage and I do not recall whether he helped [Student D]."

[202] She could see Student J in the water not far from them. She said he looked like he was struggling. She saw Student I swim over to Student J and help him. She did not know if Student D or Mr Crowley saw Student I helping Student J.

[203] Student A said that when Student D was paddling in the kayak, with Mr Crowley hanging on the back, waves kept crashing around them. They fell off and had to tip the kayak back over. Mr Crowley was shouting at them to paddle faster and to keep going.

[204] At one point, Student J came over and hung onto her kayak. Student C was also hanging onto the kayak later on.

[205] When they were about half way in towards the shore, it started pouring with rain, and the lightning and thunder arrived.

[206] Student B said Mr Crowley did not make it all the way to the beach on the southern shore. From a spot in the water, he said 'follow me' and started paddling the other way from the beach, diagonally towards the wave zone. She and Student C followed him. She said she did not know why he paddled into the waves.

[207] Mr Crowley was about 70 meters in front of her when a big set of waves started rolling in at the River mouth. There were about 3 or 4 other kayaks between her and Mr Crowley. She could see Mr Crowley clearly through the waves. She saw kayaks being tipped and people falling into the water. She saw Mr Crowley trying to grab on to one of the boy's kayak.

[208] She was thinking that they should not go any further towards the waves and said to Student C 'it's dangerous there, let's head back to the shore'. Student C said 'good idea' and they turned their kayak around and started to paddle upstream towards the beach where they first launched from. It was hard paddling as the current was very strong and the waves were rough. They started going backwards as they were being sucked back towards the wave zone.

[209] She saw Student H in the water close to them and he fell off his kayak. They tried to help him into their kayak but a wave hit and they all fell into the water. Her helmet tipped over her eyes and she could not see properly as she went underwater.

[210] She saw Students P and L were in their kayaks trying to help people. She later climbed onto a kayak with Student P and they started paddling towards the beach they had first launched from.

[211] She looked back and saw Student C being sucked further away from the place they had capsized and there was a group of people floating in the same path as her.

[212] She saw Mr Crowley with a group of about 4 people struggling in the water. Everyone in the water looked distressed and she saw heads bobbing up and down.

[213] In cross examination, Student B acknowledged that 'the boys' had deviated off the line that Mr Crowley had taken from the southern to the northern shore. She said the boys knew not to go into the waves because it was common sense not to paddle out into the bigger waves, not because she heard Mr Crowley say to stay out of the waves.[35]

[214] In her witness statement, Student C said she saw Mr Crowley sitting in his kayak towards the middle of the River. She heard Mr Crowley say 'follow me'. He said it loudly and made a hand signal. Mr Crowley then started paddling straight up and across the River towards the rocky outcrop at the River mouth on the northern side.

[215] She remembered there were 'really big and scary' waves at the River mouth, probably between 1.5 and 1.8 metres high. She did not want to go into the waves and she felt worried that she might fall off and could drown. She and Student B started paddling towards the northern side of the River to the left of Mr Crowley as there were not as many waves on that side compared to where Mr Crowley was heading.

[216] She and Student B paddled to the start of the wave zone closer to the southern side of the River. She saw 'heaps of big waves' coming towards them. A big wave hit and she fell of the kayak. She was very scared and the water was very cold.

[217] After she fell off she tried to get to Student H's kayak as it was close to them. She and Student B later managed to get hold of Student H's kayak and she and Student B hung on to the sides of his kayak.

[218] She saw other people tipping off from the kayaks and struggling in the water. Her life jacket kept pushing up by the water and covered her mouth. Her helmet also kept going back over her head. This made breathing difficult. She managed at the end to tighten her life jacket so it did not go up over her mouth. She thought at that moment that she should have chosen a life jacket which was a size smaller or tightened the straps more at the start.

[219] At this point the rain was pouring down. A wave hit Student H's kayak and she was separated from Student H and B.

[220] She saw Mr Crowley holding on to a kayak and Mr Crowley yelled to her 'swim to this kayak'. She swam towards them and Mr Crowley said 'hang on to the side of the kayak'.

[221] She said: "Mr Crowley yelled at [Student D] to grab the closest paddle and start paddling. He said it in a big voice, but he was not mad. He sounded sort of scared. He was not wearing a life jacket."

[222] It was very hard to hold on to the kayak and she was dragged away from the kayak four or five times and had to swim really hard to get back to the kayak.

[223] She saw Student J struggling in the water and was helped by Student I. They were about 20 metres from her. Their kayak went over to him and Student J, who got to their kayak and held on to the side.

[224] The kayak capsized again and she had trouble breathing this time. Student I came up to help her by putting his hand over her mouth and ducked her under water until the wave passed. Student I did this for a number of waves then helped her swim over to the kayak.

[225] When approaching the shore, another wave hit and she was dragged back out into the waves. She saw Mr Wenczel in a kayak by himself coming towards her. She got in the kayak but was tipped into the water by another wave. She got stuck underneath the kayak twice and finally the waves had washed them closer to shore and she was able to walk in to the beach.

[226] In cross examination, Student C (who was paired with Student B in a kayak) was told that Student B had agreed that there were boys who had deviated off Mr Crowley's line to the right (ie toward the ocean) and started playing in the waves. Student C then said she did not remember what had happened.[36]

[227] Student C also accepted in cross examination that she did not follow Mr Crowley across the River and instead went 'quite significantly' further out towards the ocean.[37]

[228] In re-examination Student C said she had tried not to go into the wave area.

[229] Student D gave evidence that he turned around and saw the other students in their kayaks going out towards the wave zone. Their kayaks were facing out towards the waves and Mr Crowley was also facing that way. He did not know if Mr Crowley told the students to go out or not but he observed the whole class was going in the same direction.

[230] Once they saw where the class was going, the four of them got back into their kayaks and went out that direction as well. He recalled seeing students in their kayaks catching the smaller waves on the inside of the River mouth.

[231] In cross examination, Student D:

a. Agreed that he saw Students L and P playing in the waves a little further beyond the seaward side of where Mr Crowley was going.[38]

b. Agreed that Mr Crowley was heading towards Student L and P's general area.[39]

c. Agreed that he didn't watch Mr Crowley the whole time and agreed that he was looking for a spot to head off and have some fun.[40]

d. Accepted that he did not follow Mr Crowley's instruction to 'follow me'.[41]

e. Accepted that he was supposed to follow him when engaging in water activities.[42]

f. Agreed that Mr Crowley was heading towards his direction as he was out there playing in the waves.[43]

[232] He and Student H had been catching waves for approximately 10 minutes then everyone started falling off their kayaks and got swept out further out of the River mouth.

[233] He said the waves were strong and he could feel a very strong current. He was scared at this point and he could see people were panicking. Most people were yelling but he did not recall what they were yelling. He heard Mr Crowley yelling trying to get people on their kayaks to go in to shore. He did not recall exactly what he was saying.

[234] He swam over to Mr Crowley's kayak and hung off the back of his kayak. Mr Crowley told people to go to his kayak and other students swam over. Mr Crowley told him to swap with him and paddled so he could stabilize the kayak at the back.

[235] He could see most people were swimming trying to get to kayaks and he was worried about people drowning. The water was rough and he was also worried about people being swept out by the strong current. It took him a long time to paddle in.

[236] He heard Student I yelling at Mr Crowley to help him. He saw that Student J was struggling to keep his head above the water. He saw Student I swim over to Student J and helped him get to a kayak.

[237] He recalled Mr Crowley yelling at him to 'go left' towards the point where the rocks were. He recalled that Students A, C and J and Mr Crowley held onto his kayak. It was very difficult to paddle and everyone else got to shore before them.

[238] As they went towards the shore, he saw ambulance officers waiting for them on the sand. He said that people from surf rescue came a bit later on.

[239] Student E did not recall if Mr Crowley said anything or gave hand signal before he headed back towards the northern shore. "I'm not sure. People were yelling ... he might have said it, he might not have, but I can't remember it."[44]

[240] Student E agreed that he was mucking around with other boys on the beach at the time[45], and that Mr Crowley was leading the group away from the southern shore.[46]

[241] He denied playing in waves. He said he and Student F were just following Mr Crowley out in the waves.[47]

[242] He said he saw everyone grabbing on to their kayaks trying to get back into them. He also saw others trying to swim back to shore without their kayaks. He saw kayaks hitting and bumping into people in the water.

[243] The waves were pounding his kayak and he was thrown out into the water. When he was in the water he could feel the waves hammering him and the current sucking him out towards the sea. He and Student F tried to swim in towards the beach together while holding the kayak but that was not working because they were still getting sucked out by the tide. Eventually they reached the shore after the current had pushed us around for approximately for half an hour.

[244] Whilst Student F and Student E were on the sand of the southern shore, Mr Crowley called something along the lines of 'we're heading out' and pointed towards the River mouth. He headed out towards the waves and towards the open water. He and Student E got in their kayak and followed him. He said they went out behind Mr Crowley and they were going over the waves.

[245] In cross examination, Student F was asked "... I want to suggest to you what [Mr Crowley] says is he yells to the group 'Follow me exactly. Stay away from the waves. Stay on my line' and he used some hand signals. Do you accept that?" and he replied: "I remember he called out something. I don't remember what the words were but something along the lines of that, yes."[48]

[246] Student F said: "we were just trying to like get out as far as we could to get bigger waves and turn around and then catch a wave, come back."[49]

[247] He agreed in cross examination that he headed a little further out to get some bigger waves and accepted that Mr Crowley never led him out there.[50]

[248] Student F gave evidence that the waves in closer to the River were about half a meter in size. The waves further out towards the ocean were bigger. Mr Crowley went out to the side of the waves and had his paddle up, stabilising himself. They all followed him out.

[249] He said that he and other boys were catching waves and most of them fell off the kayaks. More waves came and pushed the kayaks further away. He saw a number of students capsize into the water and had to swim after their kayaks and jumped back on them. He and Student E also capsized and had to get back onto their kayak. He was not worried about his safety as he had a life jacket on.

[250] He and Student E followed Mr Crowley and saw others falling off their kayaks. Mr Crowley was yelling something along the lines of 'right, back to shore'. Mr Crowley told them to head towards Lions Beach and they went in that direction. No one else came into shore with them.

[251] In cross examination, Student F said even though 'heaps of people were falling off', he wasn't really worried because he 'thought everyone was just having fun at that point'.[51]

[252] Student F said it was hard work getting back into shore as there was a pretty strong current going out to sea. He and Student E dragged their kayak onto the sand and back where they first left the beach. He recalled Student B and her partner also got back to shore after him. After waiting for a little while and no one else came back to shore, he and Student E decided to go out again. They saw Mr Wenczel swimming in by himself. He said to them 'head back to shore, call an ambulance, there are people in danger.'

[253] Student E went back to the school bus, got his phone and called an ambulance.

[254] Student F and Mr Wenczel went back out on a kayak. He saw some of the group were off their kayaks and were holding onto other kayaks. Lots of students had let go of their paddles as well. There was a kayak near them and Mr Wenczel said that he would get on that kayak to bring people in. Mr Wenczel asked 'are you right to go back out?' and Student F said 'yeah'.

[255] It was starting to rain by that stage and the waves 'were coming in fairly strong'. People were in the water everywhere in front of Lions Beach. He thought there was a rip nearby as well.

[256] He saw Student D with five people holding onto his kayak. He went towards the location of Student D and a few people started holding onto his kayak. After what felt like a long time, they got into shore.

[257] Student G said that as they were following Mr Crowley, he could feel they were being swept out with the current. The waves were not very big but he recalled there was white wash.

[258] He saw Mr Crowley near the rocks on the northern shore. He was not in the wave zone. He had his legs out over the kayak.

[259] Student G agreed in cross examination that having returned to the northern shore, Mr Crowley called out to those in the waves to 'come back in'.

[260] He said that a strong current swept them and Mr Crowley out into the waves. He saw Mr Crowley get knocked off his kayak, which he described as 'pretty funny' during cross examination. He said Mr Crowley tried to gesture for students to come out of the waves.

[261] He and Student I got tipped out of their kayak by a wave. He heard Mr Crowley tell them to 'catch a wave back in'. He did not recall exactly how he said this. He was in the water at this time. He also said: "Mr Crowley told us to get back to shore".

[262] He and Student I wanted to catch a big wave in towards the shore. They went out further to do this. They then got tipped off by another wave. That wave was between 1.5 and 2 metres. They tried to get back into their kayak. He could see other students scattered in the water. They lost their kayak because they were hit by another wave.

[263] He was swimming around for a little while and saw Student H and Student K struggling with a kayak. He managed to get hold of the kayak but by that time Student H and Student K were swept away.

[264] When he was on the kayak he found Student C in the water. He could see she was panicked. She looked tired and did not look like she was in control. He was worried about her.

[265] Student D came on a kayak with Mr Wenczel. Mr Crowley was hanging onto the back of Student D's kayak. Student C got on to Student D's kayak. Student D was paddling with a few people hanging on to his kayak. Mr Crowley was yelling at Student D but he did not recall what he said. If Student D had not got there, he said, Student C looked like she would have drowned.

[266] He swam in towards the shore. He did not have his helmet on at this stage. It was loose and was going over his eyes. It was difficult to swim with it on so he threw it off.

[267] As he was swimming he could see Mr Wenczel also swimming towards the shore. He was about 10 metres in front of him.

[268] In cross examination, Student G agreed that he and Student I enjoyed catching waves and so that's what they did. He confirmed he did not follow Mr Crowley into the wave zone.

[269] Also in cross examination, Student G agreed that Mr Crowley never said to 'catch a wave back in' and instead said 'get back to shore'.[52]

[270] Student H said he looked out over the water and saw the rest of the class kayaking towards the River mouth and into the wave zone. He and Student D jumped onto their kayak and started paddling towards them. Student E and Student F were in front of them.

[271] He said: "I thought that we must not be doing a proper lesson because everyone was paddling towards the River mouth. I thought that we might be catching a few waves and having some fun. I could see in front of us that Student I and Student G had already caught a few waves."

[272] At this point, the weather was still overcast but it was not raining. The waves were sizeable but not massive. He said: "the waves looked like they were a good size to catch on our kayak. I thought that this was going to be good fun".

[273] As they reached the wave zone, he saw a set of waves coming in which were sizeable, consistent and breaking around where people were kayaking. He recalled seeing a couple of kayaks capsized and people fell into the water.

[274] He and Student D agreed that they were going to try and get out further past the point at which the waves were breaking. However the waves were constantly coming in and pushed them back. As a result, they decided to wait for a break in the wave set and then tried to turn around.

[275] He gave evidence that a large wave came towards them and he and Student D capsized the kayak. The wave broke on top of him and tumbled him around. However he was not scared as he was used to dealing with waves. He grabbed an oar so he would be able to paddle once he got into another kayak. He also thought he should not lose the equipment as they might get in trouble. The oar made it difficult to swim. He started searching for another kayak.

[276] He saw the kayak of Students B and C, and asked if he could get a lift. Before he reached them, another wave came and flipped over their kayak. He reached the kayak and helped them to flip it back over. He helped get Student B into the front of the kayak and told Student C to stay in the water and hold on to the rope at the back. Another wave came and he saw Student C lose her grip, and he lost sight of her in the waves. At this stage, he said the waves were relentless and constant, the kayak capsized and he and Student B became separated. He did not know what happened to her after that. The kayak was swept in further to shore.

[277] He started swimming towards Student K's kayak which he could see in the wave zone. He saw that Student K was in the water near his kayak and was struggling although not flailing.

[278] He saw Student L and Student P standing on the sand bar further up the River. They were tying kayaks together and were sitting on top of them. They did not seem worried by what was happening.

[279] He said he reached a kayak with no one on it and started to drag it towards Student K because he could not swim very fast. A wave came and washed the kayak away. He and Student K later swam towards another kayak and both manage to get into it. They took turns to paddle back on shore with one oar. When they were back on shore, Student K appeared to be mentally shaken up and he did not say much to him when he got off the kayak.

[280] Student H said that he heard Mr Wenczel yelling something like '[Student H] come and help me' so he turned the kayak around with the oar and headed back towards the wave zone. He saw a kayak with five people on it heading towards the rocks at the mouth of the River. Student D was paddling and Student A was sitting in front. Student C, Student J and Mr Crowley were all hanging off the sides.

[281] He said he kayaked out past them and doubled back around to follow them as they moved toward the shore. He tried to get Student J onto his kayak but failed because of the waves. He recalled that Student J was physically shaking and was very quiet. At the end he told Student J to hold on to the back of the kayak and he and Student F paddled towards the shore.

[282] As they were paddling it started to rain heavily. They got Student J to waist-deep water and he asked Student F to take Student J to shore as he went out to help others.

[283] At that point, he said he saw a massive bolt of lightning hit the hill to the south of the River. He heard loud thunder almost immediately. He and Student I started running to get out of the water.

[284] In cross examination, Student H said he understood he was supposed to be following Mr Crowley from the southern to the northern shore. He agreed he didn't follow Mr Crowley, and that instead he travelled seaward so he could catch some waves.[53]

[285] In re-examination, Student H said he did not hear any instruction from Mr Crowley when on the southern shore (and before returning to the northern shore), and that he turned around and realised he had to follow the group. He said he had the impression that the entire class was going out to catch waves. [54]

[286] Student I gave evidence that he recalled seeing Student H and others made it to the other side and had got off their kayaks and were 'mucking around' on the other side. Student G, who shared the kayak with him, wanted to go and join them. They were about two thirds of the way across the River at this point. He recalled Mr Crowley then called out to the people on the other side of the River: 'come back'. He also used words to the effect of 'follow me'.

[287] The students ended up following him out into an area on the River close to the rocks. He recalled Mr Crowley was leading the group. He could see Mr Crowley from his kayak. He and Student G were in the middle of the group of students following Mr Crowley. He could see Mr Crowley close to the rocks.

[288] He and Student G were having a good time catching some waves into the River. The waves were not very big at this point or where they were. He did not think it was good kayaking conditions.

[289] He then saw Mr Crowley get knocked off his kayak near the rocks. Student I did not recall if he was the first person to get knocked off the kayak. He saw other students paddle into a wave which made their kayak tip.

[290] He saw Mr Crowley holding on to his kayak. He heard him call out: 'go back in'. He and Student G tried to catch a wave back in but ended up hitting the kayak of Student D and H. He then fell off the kayak. He and Student G got separated at this point.

[291] He said he was in the water in the wave zone. The water was 'pretty freezing'.

[292] He saw Student J get swept out by the current past the rocks. He could see Student J doing a 'climbing the ladder' motion with his arms and his life jacket was coming up over his chin and mouth. He could see he was swallowing water. He began to swim towards Student J. When he got to Student J he said to him '[Student J] calm down, you're alright. I've got you' and he said 'thank you'. He remembered seeing that Student J was white faced and freezing. At this point he estimated they had been in the water for approximately 20 minutes. He knew from his experience as part of his life saving training that Student J was showing all the signs of someone at risk of drowning, including 'climbing the ladder' motions with his arms, pale, scared and clinging onto him.

[293] He estimated he went under water with Student J up to seven or eight times, to get his breath back and to calm Student J down.

[294] Mr Wenczel swam out to where he and Student J were and asked if they were alright. He told him that '[Student J] is in a bad way'.

[295] Mr Wenczel said to him 'stay here, I'm going to get a kayak' and then he swam away.

[296] He later saw a kayak with Student D on it, and Mr Crowley was in the water with two other people hanging onto the back of the kayak. The kayak was about 10 to 15 metres in front of him.

[297] He said: "I yelled out really loudly, I recall I said something along the lines of 'Oi! Crowley! [Student J's] in fucking trouble.' I do not think Mr Crowley heard me. I saw him looking towards the shore, he did not turn around or respond to me. I remember thinking he looked like a drowned rat, he looked exhausted. I remember thinking why isn't he up paddling. [Student D] responded to me. I did not hear him say anything, but I saw that he turned around towards where Mr Crowley was hanging on, and point towards [Student J] and [Student D] stopped paddling. I managed to pull [Student J] in towards the kayak and got him to hang onto the side. No one helped me do this."

[298] He recalled Mr Crowley asking if he was alright. He responded: 'I'm alright but [Student J] is fucked, we have to get him in'.

[299] He saw Student C had fallen off her kayak and was struggling. He went over to her and swam with her towards Student D's kayak and then left her with Student D.

[300] He saw a number of people had taken off their helmets. The helmets were difficult to swim in.

[301] He said: "It scared the hell out of me because I thought the helmets floating in the water were people just floating there."

[302] He later saw Mr Wenczel on a kayak and he hopped on the kayak with him. We got back on the shore near the rocks where most people were there except those hanging onto Student D's kayak.

[303] In cross examination, Student I agreed that he understood Mr Crowley's instruction of 'follow me' meant that people should stay on his line and follow him across the River.

[304] Student J said that he and Student K were about three quarters of the way across the River when they saw people heading out towards the wave zone. Everyone seemed to be moving out in the same direction, but he could see that the kayaks were scattered. Mr Crowley was way ahead of them. Student J said he did not hear anyone say anything.

[305] He saw a couple of people riding the waves on their kayaks, including Student G and Student L. He saw Mr Crowley was in the waves. He did not remember seeing Mr Crowley using any signals. He said Mr Crowley did not tell him anything about signals or what to do if anyone got into trouble on the water that day.

[306] He and Student K started riding the smaller waves. They were not as far out as Mr Crowley. They were still towards the back of the group. He felt he was being swept out further by the current towards the River mouth at this point and the waves started getting much bigger. He and Student K did not paddle out, they were pulled out by the current. Their kayak tipped over and he fell into water. The waves were big and kept knocking him about continuously. Eventually he was separated from the kayak and he was pulled further out towards the ocean by the current.

[307] He was scared when he looked around and realised he was alone and being pulled further out than the others. He tried to swim towards the shore but could not do it. He got very upset at this point. He said it was the scariest situation he had ever been in.

[308] His life jacket was not tied on properly and it kept coming up over his chin and made it hard for him to breathe. His helmet had come off. He did not tighten it when he was on the beach. He did not hear Mr Crowley say anything to them about tightening their helmets.

[309] Eventually Student I swam over to him. He swam behind him and put his hand over his mouth when waves came in to stop water going into his mouth. Then Mr Wenczel swam over to them. Mr Wenczel asked him to grab his leg and Student I's leg and swim as hard as he could. It did not take them far because of the tides. They kept swimming until they reached a kayak which Mr Crowley and others were hanging onto. Student I and Mr Wenczel helped him to grab hold of the kayak. Mr Crowley said to him 'hold on'. Student D was trying hard to paddle and he kept hitting him in the head with the paddle. It was raining fairly heavily. It was freezing and he was shaking.

[310] Student F swam over to him with another kayak and told him to 'get on'. He pulled himself onto the kayak and they managed to catch a wave back to shore.

[311] In cross examination, he agreed that those people who had gone over riding the waves had not followed the line taken by Mr Crowley and that they had gone further seaward and were playing on the waves.[55]

[312] Student J was unable to answer many of the questions put to him in cross examination, saying he didn't know or could not recall much sequence of events that made up the Incident.

[313] Student K gave evidence that he saw Mr Crowley start heading out towards the rocks. He said something like 'follow me'. At this point he and Student J were the closest to him, about 4 metres behind him.

[314] The waves at the River mouth looked small. The tide was going out, but at this point he could not tell if there was a current. Student J and K kept up with Mr Crowley for the most part. He said he recalled they caught a small wave in towards the shore so they could get back behind Mr Crowley, as 'they had gone a bit out of the way'. The current had been pulling them, including Mr Crowley, out towards the River mouth.

[315] He saw Mr Crowley get close to the rocks. He stopped and was waiting for everyone to come over. Student K was behind Mr Crowley and he and Student J sat in their kayak. Mr Crowley waved for people to come over.

[316] It had started to rain at this time and he could see the waves crashing.

[317] He then saw Mr Crowley going out towards people who were coming across the water towards him. Mr Crowley's kayak overturned first. People started getting pulled out. Mr Crowley then went to get people out of the wave zone after getting back into his kayak.

[318] He saw other students get tipped from their kayaks by the waves. He and Student J turned their kayak to go and get people. Then a big wave came and their kayak flipped. He could not hear anyone shouting.

[319] He got knocked into the water and started trying to swim in towards the shore. He grabbed a kayak which Student H and Student B were hanging onto, trying to stay afloat and stay with the kayak. He remembered hanging onto this kayak and the current was pulling them further out from the shore.

[320] The current was quite fast and strong. The waves were big and there was foam. The waves were coming in quickly, one after the other. A kayak came and hit him on the head. He still had his helmet on, but he felt the kayak knock his head. He could not recall what happened immediately after that. He blacked out for a period of time, though he did not know how long.

[321] He said: "I remember when I woke up, I was trying to look to see where everyone was. I was trying to swim to a kayak to try and get in. I can remember seeing a little rock on the beach and getting onto the beach. I cannot remember what I did before getting onto the beach, I just remember crawling out the water. I was with [Student G] and [Student B]. I remember talking to them, though I do not remember what was said."

[322] In cross examination, Student K agreed that before leaving the southern shore, Mr Crowley said words to the effect of 'follow me exactly. Stay away from the waves, stay on my line'.[56]

[323] He agreed Mr Crowley then headed to the rocks on the northern shore, and when he reached the northern shore, he stopped and turned around and placed his feet in the water. He acknowledged Mr Crowley had indicated that everyone should come to him. He further agreed there was no current at the location Mr Crowley had stopped on the northern shore, and there was no current where he and Student J were at that time.

[324] He agreed Mr Crowley then left the northern shore to help some students who had capsized, then Mr Crowley capsized. He and Student J paddled out to assist Mr Crowley, which is how they came to be paddling in the same direction as the current.

[325] Student L gave evidence that Mr Crowley was about 10 metres behind his kayak towards the centre of the River. He said to all of them 'follow me' and started paddling diagonally to the rocks on the other side of the River towards the mouth.

[326] He saw everyone follow Mr Crowley towards the River mouth. He and Student P hung back and started catching some smaller waves near the beach.

[327] He said that: "I recall that by this point, the conditions had changed and there were now bigger waves in the wave zone. There was thunder and lightning. The swell was big and was breaking further out than usual".

[328] Everyone had paddled closer to Mr Crowley, however Mr Wenczel and Student A were in a kayak about 20 metres away from us. When he and Student P turned back around to face the River mouth, he saw that an undertow had ripped everyone out towards the wave zone and everyone had fallen out of their kayaks.

[329] He and Student P got out of their kayak and stood on a shallow sand bar upstream from the wave zone where there was no swell. They stayed there for approximately 15 minutes. They grabbed kayaks that were floating past and started tying them together to create a raft. As they did this, they watched as wave after wave knocked people out of their kayaks. They saw people's heads disappearing under the waves and popping up again. The weaker swimmers looked like they were gasping for breath. The waves were constant and there was no break for people to get back into their kayaks properly before another wave hit. He saw Student I and Student J were out the furthest. Student I was trying to help Student J get into a kayak.

[330] He saw Student B struggling in the water by herself. She looked like she was in distress and her head kept bobbing up and down. Her life jacket was up around her mouth and her helmet was over her eyes. Student P untied one of the kayaks and paddled over towards Student B to help her. He got her into the kayak and paddled her back to the shore on the north side of the River. Student P then paddled back and picked up Student L in the kayak and took him back to shore. There were already about 3 or 4 people on the beach before he got there.

[331] At this stage the waves in the River mouth appeared to be 2.5 metres high. The rain was pouring heavily. He could hear cracking thunder and saw lightning out on the horizon.

[332] At the beach, he could see that Mr Wenczel was still out on his kayak. Mr Crowley had lost his kayak and was yelling for people to go back into shore. However he felt this was too late as people were already out of their kayaks. Student B, Student K and a few others were on the beach. He also saw a stranger on the beach watching what was happening. Student B, Student K and Student P got towels. They were shivering but otherwise looked okay. He asked if an ambulance had been called and someone (he couldn't recall who) said they had called triple zero.

[333] He stayed on the beach for about five minutes and then went back into the water.

[334] He saw Student D and Student C on a kayak with Student J and Mr Crowley hanging off the sides. Mr Crowley was telling Student D to paddle faster in a stern voice. He could see that Student D was trying really hard to paddle and his arms were straining and he looked distressed. At this point it was raining hard. He could also see lightning and hear thunder.

[335] When asked in cross examination about the instruction given by Mr Crowley before they departed from the southern to the northern shore, Student L said: "[Mr Crowley] said, like, 'follow me', so we followed him, yes, and, like, where he was going to there wasn't really any waves, so we couldn't really get in trouble there". Student L did not recall Mr Crowley saying stay away from the waves but did remember him saying 'follow my line exactly'.[57]

[336] In cross examination Student L also agreed that Mr Crowley's location when he reached the northern shore was not in the waves and was not dangerous. He agreed that some of the students had not followed Mr Crowley from the southern to the northern shore[58].

[337] Mr Crowley said that the lifeguard, ambulance and other personnel were at the shoreline but did not intervene to rescue any of the students. He said all the students got out of the water unaided, and the lifeguards watched from the shoreline. One member of the surf rescue team later tried to recover a kayak swimming out to it, against Mr Wenczel's advice. She went out much further than the students did, and ultimately needed to be rescued by the jet ski. He and Mr Wenzcel helped launch the ski.

[338] After the Incident, Mr Crowley spoke to Mr Centra, Mr Evans and Mr Adrian Wells (Deputy Principal), about what had happened. He also rang some of the parents to reassure them everyone was alright.

[339] Mr Wenczel said a member of the surf club arrived at the shoreline after all the students were back on the shore. One surf club member went to retrieve a kayak but the kayak was beyond the breakers and it was quite dangerous. She went about 150 metres further out than he had been where 1.5 metres waves were breaking. She needed assistance herself. The other kayaks that had been abandoned had washed back into shore.

[340] An ambulance and the police also arrived. All students were on the beach at that stage. One of the students needed assistance and Mr Wenczel thought it was because he was cold and 'in a bit of shock'. The student was checked by the paramedics and they said he was fine. Another student had a small bump on his head. The paramedics checked on him and he was also fine.

[341] The incident had taken about 30 minutes from the time the students were playing in the waves to the time everyone was back onshore.

[342] It was raining by the time they got back on shore but there was no thunder or lightning.

[343] When he arrived back on the beach, he landed near the rocks and dragged the kayak onto to the sand right next to these rocks. Student D was shaking when they got back onto the beach. At this point it was raining and the lightning had eased off, but she could still hear thunder.

[344] She said: "I was in shock and astonished that I had made it back to shore. I had so much doubt. I thought 'I'm not going to be able to come back in.' I thought I was going to die by drowning. I thought 'this is it'."

[345] On the beach she saw a crowd of people around Student J who was lying down on the beach. The ambulance was there. Mr Crowley told her and Student C to go and get warm.

[346] The PASS class went to Merimbula Lake the following week. Student A did not participate in this class. She was too scared and did not want to get back into the water. The River mouth incident was her first experience kayaking.

[347] She got to the beach with Student P and got out of the kayak. She was relieved to be on the sand. She saw Student E was already out of the water.

[348] She also saw a person from the Surf Lifesaving Club watching everyone in the water and he said to her 'why would you even go out there, it's just stupid'.

[349] She looked back into the water and saw that Mr Crowley was still in the water. He did not look in control and appeared to be in distress. She saw Student C and Student A were still in the water and she felt anxious and worried that they might drown. There was thunder and lightning and it was pouring with rain by this time.

[350] He saw Student K on the bus, he was really shaken up and told her 'a kayak hit me in the back of the head. I think I was unconscious. I woke up in the water.' She said 'I've called an ambulance. You should tell the paramedics when they get here.'

[351] She recalled some of the boys were talking to Mr Crowley after they were out of the water. They said to Mr Crowley: 'Why did you make us come out into the waves?' Mr Crowley said 'Why did you even follow me? You were not meant to follow me'. She believed that Mr Crowley had instructed them to follow him.

[352] She said: "I recall that at our next PASS class, Mr Crowley did not talk about what had happened at the Pambula River mouth. I also remember that during the next practical PASS lesson, I did not go kayaking. I did not go kayaking because I didn't want the same thing to happen as the previous lesson. I was scared and did not trust Mr Crowley anymore. I believed it was safer to be in the bus than in the water."

[353] Student C said she started to cry when she told her mum what had happened. She said: "this was the worst experience I have ever had in my life. It felt as though I was going to drown when I was in the waves or that others in my class were going to drown. In the weeks after the incident, I could not talk about it because I did not like thinking about what I went through. I can talk about it now, but I still do not like thinking about it ... I have been in the pool, but not the ocean since it happened."

[354] Student D gave evidence he saw Student J collapse and started to vomit up water. He was shaking because it was cold. He went to the bus to get blankets and put them on Student J. Mr Crowley and the ambulance officers were with Student J and they took Student J to the ambulance. Everyone else was in the bus with blankets.

[355] Student E said he and Student F were the first people to reach the shore. He was exhausted and his arm muscles were killing him. Mr Wenczel approached him and told him to 'call triple-0 because someone's going to die'.

[356] He ran back to the bus and called triple zero. He then ran back to the beach. At this point, the weather was storming and there was thunder and lightning that appeared to be reasonably close. It was also raining heavily.

[357] He said he went back onto the beach and saw that Student G and Student B had made it to shore. Mr Crowley was shouting loudly and was trying to get people back into their kayaks. He was also waving his arms over his head trying to signal to those on shore. He thought Mr Crowley was signaling for him to get help.

[358] He observed that people who were still in the water that appeared to be most in trouble were Student J and most of the girls.

[359] He was concerned for Student C as she was a bad swimmer. Student I and Student G were trying to help her get out of the water and onto a kayak. He worried that Student C and Student J might drown.

[360] Student J was one of the last people to get out of the water. He was shaking on the ground with his eyes rolled back in his head and he thought Student J was having a seizure. He helped push him into the recovery position and put towels on him to keep him warm. He was throwing up water and the ambulance then arrived and took Student J away from the beach.

[361] Student F said he went to the shore with Student J and he saw ambulance officers there. They asked if Student J was okay. He saw Student J collapse in front of him and was shaking and looked really cold. He went back to the bus to get some towels for him. Student L and Student P and a few others were already at the bus.

[362] Student F said the head of the life guards was there with a jetski and asked 'do I need to put the jetski out?' He replied 'no' because everyone was back on shore by that stage.

[363] Everyone went back to the bus. Student F did not observe anyone crying. Mr Centra arrived and the group was driven back to school in the bus by Mr Evans.

[364] He never thought people were really in danger because they had their life jackets but it was 'pretty scary'.

[365] Student G said once he got into shore he saw Students E and K there. They both looked calm. He turned around to look back at the water. He could not see many people as they were out behind the waves. Mr Wenczel said to him and Student E 'ring someone, we're in trouble. Get help'. He understood Mr Wenczel meant for him to call triple zero.

[366] He and Student E headed towards the bus. Student E got there first and got his mobile phone and called triple zero.

[367] It started raining heavily and he saw lightning further out to sea.

[368] When everyone had got back to shore Mr Crowley told them to wait in the bus and get dry.

[369] He recalled Student D looked really frightened and cold and was shivering. He was not crying but looked scared.

[370] Student H gave evidence that he saw a paramedic standing at the edge of the water. He saw Student J lying on the ground next to the rocks. He was having a seizure and was shaking uncontrollably and was not responding to anyone. He was in the recovery position. A paramedic went over and looked at him. He started to run to the bus to grab towels for Student J but he saw that there were others that had towels and were taking them back to him.

[371] For the next 15 minutes, he ran back and forth from the bus and the rocky outcrop at the mouth of the River in order to pass on messages to Mr Crowley. He did not remember what the messages were but it had something to do with 'head counts and stuff'.

[372] He and Student I were at the rocky outcrop at the mouth of the River when they were approached by Mr Crowley who said something like 'wait here as the equipment will wash back in and you will need to grab it when it got close enough to the shore'. Mr Crowley then ran back to the bus leaving them there. He said to Student I that 'there's no way we're doing this' and Student I agreed. They then ran back to the bus.

[373] Student H said he does not feel as comfortable in the water anymore since the Incident.

[374] Student I said the ambulance officers were waiting on the beach. He said they were just standing there and did not do much.

[375] When he got out of the water he heard a big boom of thunder. It was raining consistently from that time on.

[376] He said Mr Crowley seemed okay from this point. He said to him something like 'that was the realest thing I've ever been in.' He did not remember what he said in response.

[377] He thought Student J had got hyperthermia and he had seen him shivering uncontrollably. He got his towel from the bus and gave it to him.

[378] Mr Crowley did a head count. He asked if everyone was alright. He recalled Mr Crowley got on the bus and congratulated everyone for 'keeping their heads' or something similar.

[379] He felt good at the school assembly the following week when Mr Centra said that Mr Crowley, Mr Wenczel, Student D, Student H and himself had helped save others during the Incident. He also felt that Student E and Student G were not recognised for what they did in looking after Student J by putting their towels over him and calling the ambulance.

[380] Student J said he got out of the kayak and walked the rest of the way onto the beach. The water was ankle deep when he got off the kayak. He felt relieved, but his legs hurt and it was hard to walk.

[381] He walked up onto the beach and could see people standing around. He then laid down on the sand. It was raining and the water had been freezing. He felt really cold and was shaking uncontrollably. He did not remember throwing up but he thought he was coughing because of all the water he had swallowed. Everyone was asking if he was okay. He remembered people putting towels on him. He did not feel too sick but he had swallowed a lot of water.

[382] The ambulance officers gave him a silver blanket. After they had checked him out they took him back to the school bus.

[383] Mr Evans took him home later that day. When he got home he immediately got into the shower to warm himself up. After that he felt fine and was able to attend work (at his part time job) later that day.

[384] Student K said that when he was back on the beach he remembered looking out at the water and there were kayaks all over the place. The rain had stopped. Mr Crowley and Mr Wenczel were still in the water and Mr Crowley was pushing a kayak. He saw two girls who appeared to be struggling in the water.

[385] He went to sit in the bus to get warm. He was freezing from being in the water for too long. He was sitting on the bus for between 5 to 15 minutes and more people came onto the bus. He recalled someone running over to the bus and said '[Student J] is having a seizure on the beach'. Mr Crowley also came to the bus and said something like 'could you please go to the ambulance and they will check you out'. When he got to the ambulance, he saw Student P there. He said he was cold and shaky.

[386] He told the ambulance officer that he thought he might have blacked out when he was in the water and the officer said 'okay, we'll take you to hospital'. The ambulance dropped Student P off at his house before taking him to Bega Hospital. He stayed at hospital for about two hours. The doctor said he had a concussion and told him to relax. He went home after that.

[387] He had a lot of headaches in the following week and felt light headed.

[388] Student L said that when he got back to the beach he saw paramedics treating Student J on the sand. His face was purple-blue and the rest of his body was very pale. He was shaking but he calmed down after a few minutes. The paramedics covered him with a silver blanket. Mr Crowley said to them words to the effect of 'get your towels and get warm'. He did not say anything else.

[389] Student L said he walked back to the bus and heard some people calling their parents. Student D called his mother and was crying. He said to his mum words to the effect of 'Mr Crowley is such a fuckwit. He put me under so much pressure. I just saved him and he can't even be grateful. I was trying my hardest.' He remembered seeing Student P talking to the paramedics about his asthma. Everyone on the bus was pretty silent and all seemed to be in shock.

Particular 7- Failing to follow appropriate CE Policies and Procedures.

[390] The findings accepted by the Archdiocese from the investigation report in relation to Particular 7 were that Mr Crowley was obliged to follow various Policies as a teacher taking students on a field trip, including the CE Sport and Physical Safety Policy and the CE Excursion Policy. The College found, on the basis of the investigation and the review, that Mr Crowley:

1. Failed to provide an adequate safety briefing;

2. Failed to complete the pre-activity safety checks; and

3. lead students into dangerous water

and these failures constituted breaches of the requirements set out in the CE Sport and Physical Policy and the CE Excursion Policy.

[391] The confidential briefing note prepared by Mr Jardine on or around 6 December 2017 and provided to Ms Ozanne noted the following with respect to Particular 7:

It is the writer's view that due to the large number of policy documents around excursions and physical activities conducted by schools that have been provided for the file, and the lack of clarity regarding the status and priority of each, that the Subject Co-ordinator Mr Evans and the Principal Mr Centra have a partial defence to a charge of not following and applying policy."

[392] This was said to be supported by the assertion that there was 'a clear need for a policy and compliance audit in the relevant area to allow all schools to comply with the identified policies and procedure and to demonstrate compliance'.

[393] Mr Jardine went on to say that in relation to Mr Crowley, it was likely that an allegation regarding his failure to follow appropriate CE policies and procedures would fail for the same reason, and that a performance management approach for all involved was recommended.

[394] Notwithstanding his own view expressed in the confidential briefing note, Mr Jardine subsequently found that this particular was sustained.

[395] The evidence given in the proceedings confirmed that no action was taken against Mr Centra, and that Mr Evans subsequently changed roles within the College (although the reason for this change was unclear).

[396] Mr Crowley's evidence was that the relevant policies had been the subject of reviews by CE over recent years and their policies, including the risk assessment used in the activity, had always stood up to scrutiny. He gave evidence that he followed all of the PHDPE guidelines for kayaking, including following the risk assessment done by the College as well as his own risk assessment.

[397] The evidence on behalf of the Archdiocese was to the effect that Mr Crowley did not, contrary to the relevant policies, ensure that:

1. the activity was well planned,

2. a risk assessment was undertaken,

3. hazards and dangers were identified (including wind, weather, wave and tide),

4. students were appropriately attired, and

5. students were appropriately briefed on safety issues.

[398] Ms Aitken, a local resident of Pambula, was walking in the area and observed part of the Incident. Having come to a conclusion that the students in the water were at risk, she initiated a triple zero call and requested that emergency services attend.

[399] Ms Aitken has lived in the Pambula Beach area for about 18 months. She said she was very familiar with the Pambula River mouth and walked along Pambula Beach almost every day. She said she was familiar with tides and currents because she was raised near a fishing area and has fished her whole life.

[400] In her evidence, Ms Aitken gave a detailed recollection of what she saw on 17 November 2017. Her evidence as to the circumstances prior to her making the triple zero call was that:

1. When she was considering whether she should go on her daily walk to the Pambula River mouth, she looked out the window and saw dark clouds and it was 'obvious that a big storm was coming'.

2. She thought it might be too dangerous to go walking on the beach because of the risk of lightning strikes.

3. She and her husband decided to do a quick walk along the beach and then cut back through the bushland in order to escape the storm.

4. When they got on the beach, she noticed the clouds were 'as black as the ace of spades'.

5. It appeared that the storm was not far away.

6. She said: "The waves were extremely rough and pounding into the shore as we walked quickly along the beach. The swell had white peaks. There was no rain at this point and I cannot recall if it was windy. I could not see any boats operating on the water. There was also nobody on the beach, which was unusual, although I was not surprised given the conditions."

7. As they walked over the largest set of rocks south of the Beach, she saw a kayak on the water and thought that someone is 'crazy' to be out there in this weather.

8. After walking further towards the River mouth, she saw a whole group of school children kayaking on the water. At that point she could see that there was an outgoing tide with a strong rip pulling out towards large waves at the bar. "I could not believe that they were out in the water on that day."

9. Having felt that the group could end up in trouble due to the current and the weather conditions, they walked to the lookout where they had a full view of the River mouth.

[401] At about 2.30 pm Ms Aitken called triple-zero despite her husband's comment that 'they're not in real trouble yet'. Ms Aitken said that she thought at the time that 'it's only a matter of time before they are in serious trouble'.

[402] Ms Aitken described the scene following as one where students and teachers were being repeatedly knocked off their kayaks, some losing helmets and with them struggling in rough water against the outward rip. The waves were big and frequent, and children were being pushed under the water by the waves. She was worried that some of them could have drowned.

[403] According to Ms Aitken, the students had been struggling in the water for what felt like about 30 minutes and the hazardous situation was alleviated only by a turn of the tide that calmed the waters which allowed the students to make it to shore. With the students making it to the shore of the River, Ms Aitken made her way down to the River and encountered a person who she described as 'the older teacher' (ie. Mr Crowley). Her description of Mr Crowley was that he was not wearing a lifejacket or helmet and looked totally exhausted and in a 'very bad way'.

[404] She became aware that all students were accounted for and were being looked after by an ambulance officer.

[405] After the Incident, she agreed to a request from the police that she would speak to them as part of their investigation, however she never received a call from the police.

[406] In cross examination, Ms Aitken agreed that she had not been contacted in relation to giving evidence until around October 2018, and this was the first time since the Incident she has been asked to give an account of it. She did not resile from her evidence as to the weather conditions on the day.

[407] As set out in Ms Ozanne's evidence, Mr Crowley had been issued with a Final Warning on 22 December 2016. The Final Warning arose from two incidents, one involving a Year 10 PASS camp and the other involving an interaction with a student during a class in November 2016.

[408] Mr Crowley was found to have breached the Guidelines in that his conduct towards two students (one in each of the incidents) was deemed unacceptable. The incidents and the Final Warning were the subject of extensive correspondence between Mr Crowley, the College and various CE employees, and was annexed to Ms Ozanne's statement[59]. The correspondence revealed that a Safework Inspector had become involved in relation to one of the incidents after Mr Crowley made a complaint that the College had not provided him with a safe place of work. While the Inspector did not identify any breaches of safety legislation by the College, he did ask that the Final Warning be 'lifted' from Mr Crowley's file.

[409] Ms Ozanne gave evidence that in reaching her decision she had taken into account that Mr Crowley had not apologised to the students or parents. In cross examination she agreed that Mr Crowley had been directed not to talk to students or parents shortly after the Incident.[60]

[410] Ms Ozanne confirmed that the reason for Mr Crowley's dismissal was his lack of professionalism and his failure to keep students safe.

[411] She was asked in cross examination about the numerous letters of support of Mr Crowley that had been provided by previous students and other persons. The letters in support included sentiments to the following effect:

"Under the guidance of Mr Crowley, I [undertook] many outdoor activities, some of which could be considered risky; surfing and life saving. Never at any point did I feel unsafe or uninformed of the risk...."

"there were of course days where if it was unsafe to do an activity, Mr Crowley always opted for the safe option of choosing not do to the sport and finding alternative activities..."

[412] She said she did not take any of the letters of support into account in coming to her decision to dismiss Mr Crowley.[61]

[413] Mr Matthew Evans gave evidence in support of Mr Crowley. Mr Evans was a PDHPE Teacher at the College and at the time of giving his evidence was the K-12 Sports Coordinator. He said he had taught with Mr Crowley since 2005.

[414] He said he believed what had occurred was unfortunate, but he and other PDHPE teachers believed it was imperative that students were familiar with the ocean and its unpredictability.

[415] He attached a letter signed by all of the PDHPE faculty members at the College in support of Mr Crowley. The letter stated that "Mike's years of exposure to the aquatic environment, along with his training and qualifications, aided him in containing this unfortunate incident with a positive outcome ... The ocean is unpredictable at the best of times, and staff at [the College] ensure that the safety of students is paramount with guidelines, ratios and assessments all being in place according to the College and CE policies ... We as a faculty acknowledge the danger of the surf but we believe it is imperative that coastal students have an extensive knowledge of the ocean and its unpredictability".

[416] Mr Evans went on to say that 'when students don't follow instructions in an unpredictable environment things can go wrong'. He said he had every confidence in Mr Crowley and his skill in water environments.

[417] Mr Howell submitted that the Commission should be mindful that in order to substantiate each of the elements of the Allegation, the Archdiocese has to invite the Commission to accept small portions of the evidence of a number of different students. It was submitted that the findings by the Archdiocese failed to appreciate Mr Crowley' account of the events, which was broadly corroborated by Mr Wenczel, and was also corroborated in many respects by a number of the students.

[418] Mr Howell noted that Mr Crowley was not immediately taken off teaching duties and in fact he taught the class the following week after the Incident. It was not until one of the parents raised issues that the investigation was initiated.[62]

[419] It was submitted that at the time the class attended the River at approximately 2.20 pm on the afternoon of 17 November 2017, there was nothing to indicate that the weather was deteriorating despite it being drizzly and overcast. There was nothing immediately apparent in the River that indicated it was dangerous. Both Mr Crowley and Mr Wenczel said that had there been anything that indicated a dangerous condition, they would not have taken the students in the water.

[420] Mr Crowley had 36 years' experience as a teacher, including approximately 16 years with the College and 12 years' experience doing this particular kayaking activity. He was highly regarded by his other PDHPE colleagues. There was nothing in the evidence which suggested that he conducted any sporting activity, water-based or otherwise, in a manner that was unsafe in the entirety of that time.[63]

[421] Kayaking, like any water-based activity, is an inherently dangerous activity. Mr Evans, the former head of the PDHPE department of the College and the current sports coordinator at the College for Kindergarten to year 12, emphasised this in his oral evidence on a number of occasions.[64]

[422] In terms of the conditions of the water, both Mr Crowley and Mr Wenczel said they checked the conditions when they arrived at the beach. There was no dispute that there were large waves out towards the ocean. The evidence was, despite some inconsistency, that they were at least 150 metres away from where Mr Crowley was conducting the activity at the beach.[65]

[423] Mr Howell submitted there was nothing in the evidence that supported the view that taking the students into the water at that stage was unsafe. More importantly, there was no evidence that kayaking in an outgoing tide was itself unsafe. In fact, the activity that Mr Crowley intended to teach, which is part of what the students learn and have always learned in the PASS Class, is an activity called 'ferry gliding'. It requires a current, and its whole purpose is to enable the students to be able to learn how to deal with a current while kayaking. An outgoing tide might well have been seen as an opportunity rather than a problem and indeed was a necessary part of the activity.[66]

[424] In terms of the risk assessment, Mr Howell submitted that the Commission must be satisfied that Mr Crowley had complied with the risk assessment and as such the assessment done by him could not be said to be inadequate.[67] The evidence of Mr Evans was that he believed Mr Crowley had complied with what was required of him in this regard.

[425] Mr Howell submitted that the way in which the findings of Particular 1 were made by the Archdiocese were 'extremely difficult to understand'. There was a risk assessment developed by the College which Mr Crowley applied. The Archdiocese's finding suggested that Mr Crowley did comply with the risk assessment as it existed but that it was inadequate and he should have done something else as a result.[68] He submitted that the Commission should not make a finding of misconduct built around an allegation of an inadequate risk assessment in circumstances where Mr Crowley did in fact apply the risk assessment that the College had used for years without issue "doing this very activity at this very location".[69]

[426] The evidence, including that of Mr Wenczel, was that the weather had improved by the time they arrived at the River. There was some suggestion there was light drizzle at the time that they arrived, but no one denies the proposition that by the time the class got into the water the rain had stopped.[70] Further, there was no thunder or lightning proximate to the class at the time the class entered the water, notwithstanding there may have been some thunder or lightning earlier in the day.[71]

[427] In his oral evidence[72], Mr Crowley confirmed that he checked satellite images to see if there was a risk of lightning, and it appeared to him that the storm was moving away on the satellite images. Mr Crowley then formed the view that it was worth going down to the River to check and see what the conditions looked like there, which was exactly what the risk assessment document which was in force at the time required him to do.[73]

[428] Mr Howell pointed to the evidence of Mr Wenczel which confirmed he had a conversation with Mr Crowley in the staff room prior to them leaving the College for the kayaking lesson. Mr Wenczel confirmed Mr Crowley was looking at the tides on the computer, and said that the tide would be good for ferry gliding as the tide at that stage was 'going out'. This, Mr Howell submitted, reflected the fact that Mr Crowley was making an assessment.[74]

[429] The pre-water safety test was completed and the students' ability in the water was known to Mr Crowley - the students involved had done surf lifesaving skills in Term One where assessments were made as to their capacity in the water, and to build resilience and skill in dealing with water based scenarios.[75] They all passed the test which was necessary from a fitness and skill perspective to enable them to be surf lifesavers.[76] Further, the twelve to one ratio of teachers to students was met by having Mr Crowley and Mr Wenczel there.

[430] It was argued that Mr Crowley had made a proper assessment, and this was not a case where he was reckless. He complied with the risk assessment process. He did conduct the online weather forecast checks which the canoeing guidelines require and he did perform the assessment which was required of him when he was down at the beach. He assessed the conditions and made a judgement that it was safe to perform the activity.[77]

[431] As to the two components of the control measures set out in the risk assessment document, the students were told to use as much care as possible and the rules were explained. Mr Crowley accepted that the full briefing he would ordinarily do and had intended to do on 17 November was not done before the Incident occurred. He intended to do a full briefing before commencing the activity itself, after the warm-up paddle across the River. As it transpired, events did not unfold that way, but there were instructions given nonetheless.

[432] Mr Howell submitted that as for the contention by the Archdiocese that Mr Crowley had not met the control measure of vigilance by not identifying the students who had gone out to play in the waves earlier than he did, he said Mr Crowley positioned himself and Mr Wenczel at either end of the group to try and 'sandwich' the students between them. The control measure, which he took steps to meet, did not ultimately work, but this did not mean that he failed to comply with the control measure of ensuring vigilance.

[433] In this regard, Mr Howell submitted that: "An obligation to take reasonable care is not an obligation to guarantee that something won't go wrong and it can't be. A counsel to perfection is not what is required in order to meet the obligation of a teacher to provide reasonable care for the students in their charge. What the applicant did on that day, having a teacher at the front and the rear was not a failure to comply with the obligation to control risk by vigilance."[78]

[434] Mr Howell also noted that there was no evidence called from an appropriately qualified and experienced person as to what would have constituted an appropriate risk assessment in the circumstances that were presented to Mr Crowley that day.[79]

[435] As to the impending storm, Mr Crowley accepted that it created difficulty in respect to the activity. It was submitted that the activity was to take about 30 minutes on the water. Mr Crowley's evidence was that he saw dark clouds way out in the ocean and he assessed that he could safely have the students conclude the activity before the storm arrived. Additionally, one of the reasons he picked this particular location was that in the event of any changing weather conditions he could get the students out of the water quickly.[80]

[436] In terms of Mrs Aitken's evidence, her assessment as to the impending storm was made at a point later in time than when Mr Crowley and Mr Wenczel made their assessment about whether it was safe to conduct the class."[81]

[437] It was Mr Crowley's evidence that he was aware of and considered the potential risk associated with an electrical storm. Mr Howell submitted that there was no foundation to this assertion that his assessment at the start of the activity when they got down to the beach was an unreasonable one.[82]

[438] In conclusion, Mr Howell submitted that a finding of misconduct could not be sustained unless the Commission could form the view that the assessment and judgment was so unreasonable that no reasonably prudent, qualified and experienced teacher could form it. Equally, there was no breach of any CE policy, as what was required by the policy or the procedures was that the teacher meets the obligation to provide a reasonable standard of care, including to take all reasonable precautions to ensure safety.

[439] In terms of the safety equipment check, Mr Crowley's evidence, which was corroborated by Mr Wenczel and a majority of the students who gave evidence in the proceedings, was that a check of the life jackets and helmets had in fact been conducted.

[440] In terms of the instructions given to the students, Mr Crowley had used what he described as the KISS principle (Keep it Simple Stupid) and gave clear instructions. He gave instructions including 'Follow Hamish to the other side. We're not going near the waves', 'Stay out of the waves' and 'Everyone get to shore'.[83]

[441] There was no evidence which suggested that any of the students would think it was 'okay to scoot far off to the right and start playing in the waves. They knew they rules and the rules were explained'.[84]

[442] Mr Howell submitted that 'those kids who were out playing on the waves could not possibly have thought they were complying with the applicant's instructions when he said, "Follow me." They just couldn't. And a number of the students who were cross examined in these proceedings accept that proposition.'[85]

[443] One student's evidence was that he remembered Mr Crowley saying 'follow me' and agreed that meant everyone should stay 'on his line' to follow him across the River.[86] The student also agreed that Mr Crowley had told the students in Term One while doing lifesaving that it was particularly important to follow instructions when they were on the water. He agreed Mr Crowley also said the same thing during the first kayaking lesson at the Pambula Beach: "Yes. He said to follow my instructions when we went out".[87]

[444] The confusion came, it was submitted, when Mr Crowley saw a problem developing and moved towards the waves. Mr Crowley accepts that there was a communication breakdown at that point.[88] He said if a similar circumstance was to arise again, he would do the briefing in a different way, either on the bus, or on the beach or using a card.

[445] It was submitted that the simple fact that one learns from mistakes and identifies that things can be improved does not mean that the assessment that was made at the time was an unreasonable assessment, or that no reasonably prudent, qualified teacher could come to the same conclusion.[89]

[446] In terms of Particular 2, it was submitted there was no evidence about what a 'sufficient safety check' meant.[90] The requirement of helmets and life jackets do not apply to kayaking or canoeing on flat water and was not in the College's risk assessment. Notwithstanding, Mr Crowley required all students to wear a life jacket and helmet.

[447] Mr Crowley gave instructions to put the life jackets and helmets on and 'make sure they're snug or tight. Get your buddy to check them and if you're not sure speak to me or Hamish.' The buddy-check system was what the College used, and it was what the canoeing guidelines suggest that be used.

[448] As to the allegation that Mr Crowley recklessly led the students into a wave and current area at the mouth of the River, Mr Howell submitted that there was no evidence to support that conclusion. Mr Howell contended that Mr Crowley took reasonable care in accordance with the system of work that the College had been using in undertaking this activity for a number of years.

[449] Mr Howell submitted that there was no evidence that anyone required treatment for hypothermia. Although there was evidence that one student was particularly cold and treated by ambulance officers on the beach, he ultimately went home and went to work later that night. As for being assisted by police and a lifeguard, there was no evidence that a lifeguard or police assisted in any way. The ambulance officers assessed everyone involved after all the students had been brought in from the beach. It was the students and the teachers that ultimately got themselves out of the water on the day.

[450] As to the allegation that Mr Crowley recklessly led students into an area that was dangerous, it was submitted that it was an extremely serious allegation and the Archdiocese bore the evidential burden of establishing that allegation of misconduct.

[451] Mr Howell took the Commission to the evidence of the students[91] and submitted that the evidence was clearly in favour of the finding that some students went further out towards the sea, and they went there to play in the waves. Mr Crowley went to assist and that is the only point at which he could reasonably said to have led the students towards a wave zone, and at that point it cannot be said that Mr Crowley was acting recklessly by going to assist students who were at that stage in potentially difficult circumstances.[92]

[452] Mr Howell said that the almost ineluctable conclusion was that the dismissal was harsh, unjust or unreasonable.

[453] Mr Howell said that if, however, the Commission took the view that Mr Crowley did not take all reasonable steps to ensure the health, safety and welfare of the students and found that the allegation was proved, it should still come to the conclusion that the dismissal was harsh.

[454] Mr Howell submitted that whilst Mr Crowley accepted that he might well have been able to conduct the activity differently and provide a better briefing, his conduct overall was not so inappropriate or disregarding of the needs of the students and the circumstances that presented themselves on that day to justify his dismissal.[93]

[455] There was no prior safety related concern arising from any water sport or any other inherently dangerous activities that Mr Crowley took the students through whilst he was a teacher at the College.

[456] It was submitted that Mr Crowley is a highly regarded teacher and this was supported by the evidence of Mr Evans. There was a petition signed by each of the PDHPE teachers from the College who describe Mr Crowley as a valued member of the PDHPE Department, who had consistently displayed genuine concern for his students and has been committed to his profession.[94] Mr Crowley also had the support of former students, who provided letters of support to the effect that Mr Crowley was a caring, diligent teacher who had safety as a number one priority and provided great learning opportunities for his students.[95]

[457] Mr Howell argued that the dismissal was a grossly disproportionate sanction, particularly in Mr Crowley's circumstances. Mr Crowley resides in Tathra, a small community, where opportunities for someone with his teaching skills and background, at 59 years of age, are not extensive. Mr Crowley had been looking for work for the previous six months without success.

[458] He had lost his house in March 2018 in the Tathra busfires and was uninsured. He was living off his savings. It was submitted that there was little chance of him finding comparable alternative employment, and his dismissal was a particularly harsh consequence and grossly disproportionate to his role in the Incident.[96]

[459] Mr Howell pointed out that this was not a case in which Mr Crowley blamed the students for the Incident, 'but one will not be able to look at the evidence and not come to the conclusion that some of these children, taking the kayaks into the small wave zone and riding the waves and having some fun, was not a contributory factor to what occurred on this day'.

[460] It was submitted that Mr Crowley's conduct did not amount to serious misconduct. There were things that Mr Crowley could do differently in the event that he was presented with a similar situation again, but that did not equate to a failure to take reasonable care. It was simply a recognition that someone with the benefit of hindsight could appreciate how things might be improved.

[461] Mr Howell submitted that the Final Warning did not exaggerate the circumstances of the Incident, and it could not be said that the evidence in this case enabled a conclusion that Mr Crowley had either disregarded the standards required of him by the Archdiocese, or had engaged in a pattern of behaviour and had been resistant to correction.

[462] It was submitted that the decision to dismiss Mr Crowley was harsh, unjust and unreasonable and, in particular, unjust for the absence of valid reasons. Even if the Commission found that there was a valid reason, it was submitted that the dismissal was nonetheless harsh. It was both disproportionate in terms having regard to the conduct, the disciplinary options available to the Archdiocese and Mr Crowley's personal circumstances.

[463] Mr Howell argued that this was not a case in which trust and confidence had broken down between the parties.

[464] Mr Howell submitted that the fact that Mr Crowley was offered the opportunity by the Archdiocese to identify another position at the College demonstrated that the employment relationship had not broken down to an extent that would impede Mr Crowley's reinstatement.

[465] Mr Crowley had an unblemished safety record. He accepted responsibility for his role in the Incident and expressed remorse as to what had occurred. While he had been issued a Final Warning, it was for alleged conduct of an entirely different character than the Incident.

Submissions on behalf of the Archdiocese[97]

[466] I have had consideration to the detailed and comprehensive oral and written submissions made on behalf of the Archdiocese. Below is a summary of the submissions.

[467] The dismissal of Mr Crowley was not harsh, unjust or unreasonable. The Archdiocese had a valid reason for the dismissal and afforded Mr Crowley all requisite procedural fairness during the investigation of the Incident and in implementing the dismissal. Mr Crowley's failure to act in a professional manner and fulfil his duty of care obligations owed to students under his supervision, together with a Final Warning issued to him in December 2016, warranted his dismissal.

[468] There were four particulars associated with the finding that Mr Crowley failed to act in a professional manner or meet his duty of care obligations. The fourth, being his failure to follow CE Policies and Procedures, followed from the first three particulars.

[469] It was submitted that the Incident must be viewed as a significant safety event. Its significance could not be underestimated, and this was accepted by Mr Crowley. In fact, Mr Crowley accepted in his evidence that it was a chaotic emergency situation in the end.[98]

[470] There was no doubt that students were impacted by the Incident and parents were properly concerned. Additionally, there were reputational issues for the College arising because of the Incident.

[471] Mr Brotherson submitted that the proper exercise of the duty of care teachers have for students is fundamental to the role of a teacher, and Mr Crowley conceded it was a duty that was continually reinforced by the Archdiocese.[99] This duty was confirmed in the Enterprise Agreement and the Guidelines.

[472] It was submitted that Mr Crowley chose to proceed with the activity on the day in question, notwithstanding the Bureau of Meteorology forecast. Mr Brotherson said: "He still takes the view, seemingly in his own mind because he doesn't consult with anybody else about it, that there is sufficient time to get on and off the River inside this 30-minute window. Our position is that he gambled with the safety of the students that that window was going to be wide enough to get in and out without any issue. That's a risk that should not have been taken."[100]

[473] Mr Brotherson said that the excursion risk management pro forma is a document that needs to be applied correctly and with some competence.[101]

[474] Mr Brotherson submitted that there was a failure of Mr Crowley to be vigilant, which was a requirement under the elimination or control measures of the risk assessment, and that this failure was conceded by him.[102] His failure to be vigilant arose when he departed the southern shore and and issued an instruction to the group from his kayak, 30 or 40 metres off the shore. Mr Brotherson said: "Apparently he does that both verbally and via hand signal which on the best understanding of the evidence was, 'Follow me.' But of the four students that are on the beach, only [Student F] has recall of any instruction on the southern shore and the others either don't recall or did not hear or see any instruction ... Those students that were on the beach with their kayaks pulled up on the beach of course also are not in a position to readily respond to him moving off. Mr Crowley gives his instruction and moves off. Apart from the fact those students - three of the four of them - don't recall or didn't hear anything or see anything, they have to then get back in their kayak anyway ...".

[475] Mr Brotherson submitted that Mr Crowley ought to have taken greater steps to ensure that the students understood exactly what was going to happen, including the obvious step of 'getting everybody together in a tight group and explain very clearly what was now going to happen. That wasn't done.' In addition, Mr Crowley had his back to the group when he was required to 'constantly supervise' the students, and he relied on Mr Wenczel to bring up the rear and attend to stragglers, however Mr Wenczel was unaware of his authority."[103]

[476] It was submitted that a fundamental failure in the planning for the activity was the absence of any discussion between Mr Crowley and Mr Wenczel that had Mr Crowley become disabled in some way during the activity, Mr Wenczel would have the responsibility for the group. This failure, it was submitted, materialised later when "Mr Wenczel reacts by instinct, rather than complying with what Mr Crowley seems to be shouting out of, 'Get to the beach, you get everybody to the beach'. He doesn't do that. He goes to assist. The plan should have been very clear. The plan should have been, 'If I have to go to rescue somebody or do something, you make sure you stick with the rest of the group'."[104]

[477] In terms of Mr Crowley's argument that the students involved should have followed his instructions, Mr Brotherson said that it is equally uncontroversial that students of this age may look to push boundaries and as a senior teacher he should have been more alert to that. Mr Brotherson went on to contend that in fact he was alert to that, but he failed to put in place better mechanisms to properly supervise the group.

[478] Mr Brotherson queried whether Mr Crowley ever gave the instruction to 'stay out of the wave zone'. Mr Wenczel confirmed in his evidence that he never heard such instruction at any time[105].

[479] Mr Brotherson argued that Mr Crowley's class plan was 'all in his head'. He only had an opportunity for a brief overview on safety equipment. He failed to explain to Mr Wenczel what was proposed and the only information Mr Wenczel had was that the activity involved ferry gliding and that he was to bring up the rear with the stragglers. Mr Wenczel was not even sure if they are going to the River. He thought they might have been going to the ocean[106]. This was corroborated by some of the students in the group who gave evidence.

[480] The instruction 'follow me' should have been very clear, particularly recognising the nature of the group and the very concept of duty of care.

[481] Mr Crowley's own checklist formed part of his own risk assessment, and relevant aspects of this were not effectively implemented on the day in question."[107] He could have taken other options, such as sitting in the River and ensuring everybody stayed on line as they went across. Given some of his concerns about what the 'stronger lads' might have wanted to do, and his concern about the wave zone, he should have taken this option. He did not give proper consideration to that on the day.[108]

[482] Notwithstanding Mr Crowley's evidence that the wave zone was a significant concern, he had not discussed it with Mr Wenczel or at least not in any way that Mr Wenczel identifies in his evidence.

[483] Mr Brotherson said Mr Crowley also failed in his duty by not pairing the weaker students with stronger, more confident paddlers. Given it was a day where he had some concern about the weather, including about lightning, and that there might be a need to get on and off the water quickly, one would have thought he might look to ensure that the strong go with the weak. Instead it was Mr Crowley's own admission that he allowed a friendship grouping on the day in question."[109]

[484] It was submitted that by the time Mr Crowley reached the rocks on the return to the northern shore, having had his back to the group if not the entire way but most of the way across, he had lost control of this class. At least half the students had not followed him. Mr Brotherson submitted that: "The evidence is that by the time he gets to the other side and supposedly puts the paddle in the air, there are three kayaks that are playing in the waves. In fact the evidence from cross-examination of the students is that there were four kayaks playing in the waves. So where he says there was a breakdown in communication at a point where he goes to the rescue a capsized kayak, again I say the breakdown in communication was much earlier. The control mechanisms weren't there. This class out of control by that stage and he is responsible for that."[110]

[485] As to particular 2, Mr Brotherson noted Mr Crowley's admission that he only conducted a brief run through as to the safety pre-checks of helmets and buoyancy vests for the students.

[486] It was submitted that Mr Crowley's evidence supported the contention that he did not do a thorough briefing because of the weather. Mr Brotherson said: "He tries to say it was adequate but it wasn't as thorough as what he would have done in an ideal world but where he tries to claim that the weather wasn't impacting on this class - it was. It was affecting everything he did. It was in his mind how long he might have to have in the water. It was meaning a brief run through on safety equipment, not the full briefing he would give in an ideal world. He was cutting everything fine and it goes back to the submission I made at the very start, that the primary position has to be this was not a day for this activity to have been undertaken at all."[111]

[487] Not all students had been in attendance at the first practical class where safety equipment was explained.

[488] It was conceded that the students all recalled or acknowledged some instruction was probably given regarding helmets and life jackets, and they were to check those with their buddy. However, not all students recalled the instruction that they be tight. Mr Brotherson contended that there was no reason why Mr Crowley, with the assistance of Mr Wenczel, should not have individually checked each student.

[489] Mr Brotherson said that despite the evidence of the students acknowledged that some instruction was given in relation to the safety equipment, the fundamental issue was that he cut everything too finely on the day in question.

[490] Particular 2, it was submitted, was therefore made out.

[491] As to Particular 3, the Commission should prefer the evidence of Mr Wenczel to that of Mr Crowley in relation to the direction headed by Mr Crowley when returning from the southern shore to the northern shore. The evidence of Mr Wenczel and a majority of students support a finding that Mr Crowley led students into a wave and current area at the mouth of the River.

[492] Mr Crowely was reckless and did not have proper regard for the safety of the students that were in his care."[112]

[493] Mr Brotherson argued that Particular 3 was made out.

[494] As to Particular 4, the key requirement of the policies is that activities be well planned, a risk assessment be not only undertaken but properly implemented. Also, hazards and dangers are identified. The policies require that students be properly attired and well-briefed on safety issues and Mr Crowley had failed on a number of critical aspects in this regard.[113]

[495] Mr Brotherson submitted that a conclusion can be drawn that Mr Crowley had failed to act in a professional manner or meet his duty of care. Mr Brotherson said that the class was poorly planned, poorly executed and the activity simply should not have been undertaken on that day. It was contended that even accepting that a number of student did not fully comply with such instruction (which, he argued, was at most 'follow me'), Mr Crowley should have had an expectation that some students would not follow what he said and 'should have had greater regard for that and had more procedures and been more vigilant about that.[114]

[496] Mr Brotherson contended that it was clear from the failings identified that Mr Crowley did not act in a professional manner or meet his duty of care on 17 November 2018. It was submitted that the misconduct allegation still stands even if any of the four particulars relied upon did not survive. A basis for misconduct would nonetheless remain as a valid reason for the dismissal.

[497] Mr Brotherson argued strongly that reinstatement was inappropriate. He said that consideration needed to be given to the history of incidents involving complaints by students and/or parents in which Mr Crowley has been involved, in addition to the Incident. Mr Brotherson further relied on the final warning issued to Mr Crowley in December 2016[115] and raised issue as to the credibility of Mr Crowley.[116]

[498] Mr Brotherson said that the invitation for Mr Crowley to propose an alternative suitable position was limited to strict boundaries and was consistent with Mr Centra's view as to the loss of trust and confidence. It could not be a basis for an order of reinstatement in terms of remedy.

[499] There is no dispute and I am satisfied that Mr Crowley is a person protected from unfair dismissal by virtue of s.382 of the Act.

[500] I will now consider if the dismissal of Mr Crowley was unfair within the meaning of the Act.

[501] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[502] There is no dispute that Mr Crowley was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[503] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

1. Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[504] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[117] as follows:

'... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'

[505] In Blyth Chemicals Ltd v Bushnell[118] (Blyth Chemicals), Dixon and McTiernan JJ said:

'Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that grounds for uneasiness as to future conduct arises.'[119]

[506] I am required to consider each of these criteria in reaching my conclusion[120], which I now do.

[507] This criteria requires consideration as to whether there was valid reason for the dismissal of Mr Crowley related to his conduct, although it need not be the reason given to him at the time of the dismissal.[121]

[508] The meaning of 'valid reason' in s.387(a) is drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd[122]. This meaning has been applied by this Commission and its predecessors for many years:

'..., the adjective 'valid' should be given the meaning of sound, defensible or well-founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are treated fairly, ...'[123]

[509] In other words, the reasons should be justifiable on an objective analysis of the relevant facts.

[510] The Archdiocese made reference to three decisions outlining the duty owed by teachers to those in their care, which I have had regard to.

[511] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred[124]. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it[125].

[512] Further, the Commission does not 'stand in the shoes' of the employer but will need to be satisfied that the termination of the employee was for a valid reason[126].

[513] There is no mandate for giving the 'valid reason' criterion any greater emphasis or weight than any of the other criterion in s 387. It is well settled that the statutory requirement to 'have regard to' or ' take into account' requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[514] It is well settled that the employer bears the onus of establishing the misconduct upon which it relies to demonstrate a valid reason for the dismissal.

[515] For the reasons set out below, I am not satisfied that the Archdiocese has established misconduct, and I am not satisfied there was a valid reason for Mr Crowley's dismissal.

[516] Perhaps unsurprisingly given the chaos that ensued, it is difficult to determine exactly what occurred from the time the first kayak overturned. In fact, it is in part unnecessary to do so given the nature of the particulars that were found to be sustained in relation to the Allegation. In essence, the particulars relate to Mr Crowley's judgement in conducting the activity in the first place, the adequacy or otherwise of the risk assessment and his consideration (or lack thereof) for the safety of the students, the sufficiency of the safety pre-checks, and whether he recklessly led the students into a dangerous wave and current area at the mouth of the River. Finally, did he follow the various policies that a teacher taking students on a field trip was obliged to follow, including the CE Sport and Physical Safety Policy, and the CE Excursion Policy.

[517] There was an acceptance by the counsel for the Archdiocese that the recollection of the students of the Incident was 'mixed'.[127] I have already expressed a concern as to the leading nature of the questions initially asked of the students by the investigator, and which helped inform the decision of the Archdiocese to dismiss Mr Crowley. Given the issues already noted about the veracity of the students' evidence, I prefer the evidence of Mr Crowley and Mr Wenczel to the extent there is any inconsistency with the evidence of the students.

[518] I am satisfied that the totality of the evidence supports the following findings.

[519] Mr Crowley gave proper consideration to whether the activity could be done safely in light of the weather conditions. His assessment that it was safe was not unreasonable in the circumstances and at the time it was made. The reasonableness of his assessment was supported by checking the weather forecast shortly before going to the River (corroborated by Mr Wenczel), and by assessing the weather conditions when he arrived at the River. Mr Wenczel was not concerned about the weather and if he had been, he would have said something to Mr Crowley. Mr Evans also said he did not consider the weather on the day to be unsafe.

[520] His assessment as to whether the activity was safe was also reasonably informed by his extensive experience in water activities and his knowledge of the students' abilities, having taught them over the course of the year.

[521] Mr Crowley took account of the risk of lightning. This informed his decision as to the location of the activity, particularly because he considered he could get students out of the water quickly if necessary.

[522] A storm did arrive while the students were in the water. However, it arrived after the class ought to have concluded.

[523] There was nothing otherwise to indicate that the weather was deteriorating at the time the class arrived at the River or that the River was dangerous.

[524] The 'high swell' referred to in Particular 1 was on the other side of the sand bar out towards the ocean at least 150m away from where the activity was to be conducted, and not in the River.

[525] There is no evidence to support a finding that kayaking in an outgoing tide was inherently unsafe.

[526] A current was required for the 'ferry gliding' activity that was being taught in the class that day. It is reasonable that Mr Crowley was looking for a current given this was the point of the activity, and a standard part of the course taught by the College for many years without incident.

[527] I do not consider Ms Aitken's evidence as to the weather impacts in any significant way on the matters I need to decide. There was no real dispute as to the overcast conditions at the time the activity commenced, nor that a storm did arrive while the students were still in the water. Apart from accepting her evidence as to her observation of the weather conditions and the chaotic circumstances, I do not consider her evidence assist me in my deliberation of Mr Crowley's conduct on the day of the Incident.

[528] The students were wearing appropriate safety equipment. I am satisfied the instruction given to ensure the life jackets and helmets were secure was adequate. The evidence shows that at least eight students recalled Mr Crowley say words to the effect of "make sure they're tight" in relation to the safety equipment.

[529] Mr Crowley and Mr Wenczel did a visual check of the life jackets and helmets. Mr Crowley did physically check the life jacket of at least one student.

[530] The buddy system of checking safety equipment was endorsed by the College, and was used on the day. In this regard, eleven of the twelve who gave evidence recalled being instructed to use the buddy check system, and the twelfth student saw Mr Crowley checking some students' safety equipment.

[531] In terms of the risk assessment, the initial findings (as set out in the letter to Mr Crowley dated 5 April 2018) by the Archdiocese recognised that the risk assessment was completed by Mr Crowley in accordance with CE procedures, but went on to find that the risk assessment did not adequately take into consideration the weather on the day or the skills and experience of the group. Further, the risk assessment did not adequately take into consideration the requirements outlined in CE's supporting policies and procedures. The final findings did not include this concession.

[532] Mr Crowley was not responsible for the development of the risk assessment that had been endorsed and used by the College for a number of years. I am satisfied that the risk assessment process in place at the relevant time was inadequate, but the responsibility for that does not rest with Mr Crowley. This seems to be a view initially shared by the investigator. I am satisfied that Mr Crowley followed the risk assessment process that was in place at the time of the Incident, and applied it with an appropriate level of diligence. Mr Crowley had developed his own safety checklist to supplement the College's risk assessment, and there is evidence this was provided to students prior to the Incident. Additionally, Mr Evans confirmed that Mr Crowley had complied with the risk processes in place at the time.

[533] Finally, Mr Crowley was aware of the student's capability in the water. It would seem this was accepted by the Archdiocese in that is found Particular 6 was not sustained. I am satisfied that Mr Crowley did take this into account in his decision making process on the day.

[534] Overall, I am satisfied that Mr Crowley's assessment of the risks was adequate and he had appropriate consideration for the safety of the students in his care.

[535] The evidence does not support a finding that Mr Crowley recklessly led students into a wave or current area that was dangerous.

[536] There was no difficulty encountered by any student when travelling from the northern to the southern shore.

[537] Those students who did follow Mr Crowley's instruction to 'follow me' and stay on his line did not encounter any difficulty while kayaking.

[538] It was the students who did not follow the instruction and instead decided to 'catch some waves' that subsequently got into difficulty.

[539] I am satisfied Mr Crowley reached the northern shore (from the southern shore) without entering the wave area. He stopped in shallow water approximately 5-8 meters from the shore line and was not in a current.

[540] Before Mr Crowley left the northern shore to render assistance to those who had deviated off his line and into the wave zone, Mr Wenczel heard Mr Crowley say words to the effect of 'everyone go to shore'. Given Mr Wenczel was at the rear of the group and heard the instruction to go to shore, it is reasonable to infer that those student who had followed Mr Crowley and had arrived at the northern shore also heard this instruction. Some of these students subsequently decided to assist their classmates who were in the wave area. While their decision to do this was no doubt made with the best of intentions, it remains that they disregarded an instruction from Mr Crowley to go to the shore. It is understandable in the chaos that unfolded that some students may have felt it was more important to assist their classmates, however the fact remains that Mr Crowley issued an instruction that was not followed.

[541] At least six students gave evidence that they were aware of the swell and wave conditions and indicated concern about the conditions for kayaking. In doing so, they showed an awareness and knowledge of the risk of venturing into the wave area. Despite this, some of the students who expressed these concerns were those who deviated into the wave area.

[542] Seven students recalled Mr Crowley saying words to the effect that 'we are not going in the wave zone'. Another student who did not recall these words, did say that 'the boys knew not to go into the waves because it was common sense not to paddle out into the bigger waves'.

[543] I am satisfied on the evidence that the students were clear as to the instruction to follow Mr Crowley. I am also satisfied that some of the students deliberately disregarded the instruction and decided instead to 'catch some waves'. Given the evidence of the majority of the students as to their concerns around the weather and the size of the swell in the vicinity of where the River meets the open ocean, it is difficult to see why any student would have thought it a sensible idea to disregard the instruction. I am satisfied on the evidence that had they followed Mr Crowley, the events that unfolded would not have occurred.

[544] That Mr Crowley had his back to the group when travelling from the southern to the northern shore was reasonable in the circumstances, those being that he had a second supervisor (Mr Wenczel) with him who was endorsed by the College and who was maintaining a position at the rear of the group. I do not accept that this amounted to Mr Crowley failing to be vigilant and not providing constant supervision.

[545] I do not accept the argument that 'students push boundaries' as being one which supports a finding of misconduct on the part of Mr Crowley.

[546] There is an inherent risk in water sports. The school and parents accept a level of residual risk when allowing students to engage in this type of activity. This is not to say that all reasonable steps should not be taken to minimise risks - of course this should occur. However, it is not sustainable on the evidence to find that Mr Crowley was reckless. He took reasonable care in the circumstances for the safety of the students in his care.

[547] Given my findings above in relation to Particulars 1 to 3, I am not satisfied that Mr Crowley breached the relevant provisions of the Enterprise Agreement or Guidelines.

[548] It is appropriate and responsible for the Archdiocese, in light of the Incident, to have reviewed its policies and procedures to minimise the risk of such events occurring again. I agree with the sentiment of the investigator in his confidential briefing note that the policies applicable at the time of the Incident were lacking, such as to require a full review. Given no action was taken by the Archdiocese against Mr Centra, who had ultimate responsibility for risk management within the College, it is difficult to see how a finding of misconduct could be sustained against Mr Crowley.

[549] As is evident from the evidence of Mr Centra, the response of the College to the Incident was at least in part driven by what might be described as desire to placate some of the parents of the students involved. For example, one parent took it upon herself to make enquiries of Tathra Surf Life Saving Club as to whether Mr Crowley held the qualification of Bronze Medallion in respect of Surf lifesaving. She sent detailed emails and other correspondence as to what she wanted the College to do in respect of the Incident, including making recommendations about matters such as when wetsuits ought be used by students. The need to manage parents or other stakeholders is not in itself a reason to dismiss a teacher.

[550] In making her decision to dismiss Mr Crowley, Ms Ozanne relied in part on the fact that Mr Crowley had not apologised to parents and students. However this ignores the fact that Mr Crowley had been instructed not to talk to parents and students, making an apology effectively impossible.

[551] Ms Ozanne, by her own admission, had no regard for the letters of support submitted to CE on behalf of Mr Crowley. I consider the letters ought to have been given some weight before a decision was made to dismiss him, particularly given his length of service with the College.

[552] The evidence also supports a finding that Mr Crowley was a highly regarded teacher by his PDHPE teaching colleagues and by a number of former students.

[553] Mr Crowley accepted that he ought to have conducted a more thorough briefing, and there was a communication breakdown at the time he went to assist students who had capsized. I agree. However his instructions, as I have already found, were adequate. Instructions such as 'follow me' and 'stay out of the wave area' are clear and unambiguous. While with the benefit of hindsight he should have done things differently, his role in the Incident was not sufficient to warrant a finding of misconduct such as to justify his dismissal.

[554] In relation to the Final Warning, I agree with the submissions on behalf of Mr Crowley that his role in the Incident was not exaggerated by the existence of the Final Warning. The Final Warning was of a different character to the Incident and could not reasonably be relied upon to validate his dismissal.

[555] Having considered the evidence and submissions before the Commission, I am not satisfied there was a valid reason to dismiss Mr Crowley relating to his conduct.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[556] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[128] in explicit terms[129] and in plain and clear terms.[130] In Crozier v Palazzo Corporation Pty Ltd[131] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[132]

[557] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[133]

[558] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Crowley before his dismissal was effected.

[559] There is no dispute and it is clear in the evidence that Mr Crowley was notified of a reason for his dismissal relating to his conduct and was given an opportunity to respond.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[560] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[561] There is no dispute that Mr Crowley was provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[562] Mr Crowley was not dismissed for unsatisfactory performance and this consideration is therefore neutral.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[563] I am satisfied that the size of the Archdiocese and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and this consideration is neutral.

Other relevant matters - s.387(h)

[564] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[565] I have taken account of the seriousness of the Incident and its impact on the students, along with Mr Crowley's employment history.

[566] I do not consider that these matters are sufficiently persuasive as to warrant a finding that, on balance, the dismissal was fair.

[567] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Crowley was harsh, unjust and unreasonable. Accordingly, I find Mr Crowley's dismissal was unfair.

[568] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[569] I have already dealt with the issues at s.390(1)(a)-(b) above. I am satisfied Mr Crowley was protected from unfair dismissal pursuant to s.382 of the Act and that he was dismissed unfairly. Accordingly, I am required to determine whether to order reinstatement or, in circumstances where reinstatement is inappropriate, to order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[570] The Archdiocese argued strongly that reinstatement was not appropriate because of:

1. a history of incidents in addition to the Final Warning and the Incident, in which Mr Crowley was involved;
2. Mr Crowley's lack of acceptance of errors and willingness to accept responsibility; and

c. his expressed attitude to Mr Centra, parents and students.

[571] Mr Centra's evidence was that it may be difficult to manage Mr Crowley, and that he had to manage a range of relationships with stakeholders including staff, parents and students in accordance with the values of Catholic education. It was submitted that that was a challenging role and 'one which inevitably on occasion may require compromise'. He said he does not want Mr Crowley to return to the College as a teacher.

[572] Mr Centra gave evidence that he had offered Mr Crowley mentoring and professional development in the past, and this was not taken up by Mr Crowley.

[573] The Archdiocese properly acknowledged Mr Crowley's personal circumstances and his service to Catholic Education by giving him the opportunity to propose other positions that he was suitably qualified to perform. The Archdiocese was clearly prepared to retain him in their employ. This supports a finding that reinstatement is not impracticable.

[574] Having considered all of the evidence, I am satisfied that the reinstatement of Mr Crowley to his former position in accordance with s 391(1)(a) is appropriate in all the circumstances. In reaching this conclusion, I have carefully considered the submissions set out above, including Mr Centra's reluctance to have Mr Crowley return, however I am satisfied that reinstatement is the appropriate remedy.

[575] Mr Crowley's reinstatement will be effective from 22 July 2019.

[576] Section 391(2) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

• (a) the continuity of the Applicant's employment;

• (b) the period of the Applicant's continuous service with the employer or, if applicable, the associated entity.

[577] In all the circumstances, I consider it appropriate to make an order to maintain Mr Crowley's continuity of employment and period of continuous service with the Archdiocese.

[578] Section 391(3) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

[579] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

• (a) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

• (b) the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[580] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.[134] Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.[135]

[581] I am satisfied that Mr Crowley has lost wages since his dismissal. He is likely to have lost further wages in the time since the hearing.

[582] I am also satisfied that Mr Crowley's contribution to the Incident should be taken into account when making an order for lost remuneration. In this regard, he has acknowledged that there was 'a communication breakdown' which was his fault and which contributed to the Incident.

[583] I consider that I should only make an order causing the Archdiocese to pay lost remuneration to Mr Crowley from the date of the dismissal until 31 January 2019.

[584] It is clear the Archdiocese had a level of concern in relation to Mr Crowley's conduct, having issued him with a Final Warning. Mr Crowley should not take this decision as in any way relieving him of his obligation to follow CE policies and procedures and conduct himself in a manner consistent with the Guidelines and Enterprise Agreement. This decision does not provide him with immunity from further disciplinary action, including dismissal, if he does not meet those standards.

[585] Mr Crowley should carefully consider the steps he will now take to ensure his return to the College is positive and productive for all involved. If the offer to Mr Crowley of mentoring and professional development is still open to him, he should seriously consider accepting it.

[586] Orders providing for reinstatement with continuity of employment, and lost remuneration, will be issued separately.

T Howell, of counsel with C Matthews of IEU for Michael Crowley.

K Brotherson, of counsel, with S Meier, solicitor for Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn.

[72] Transcript PN348-349, 815-816 and 923.

[97] In addition to very detailed oral submissions, counsel for the Archdiocese provided comprehensive written submissions. This decision does not attempt to summarise every aspect of the submissions, however they have been taken into account.

[117] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

[118] [1933] HCA 8; (1993) 49 CLR 66.

[120] Sayer v Melsteel [2011] FWAFB 7498.

[121] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

[122] (1995) 62 IR 371.

[124] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561.

[125] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[126] Miller v University of New South Wales [2003] FCA 180; (2003) 132 FCR 147.

[128] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[129] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[130] Previsic v Australian Quarantine Inspection Services Print Q3730.

[131] (2000) 98 IR 137.

[133] RMIT v Asher (2010) 194 IR 1, 14-15.

[134] Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

[135] See, eg, Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].

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