s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - Applicant unfairly dismissed - compensation awarded.

• [1] On 5 October 2024, Mr Michael Friday (the Applicant) applied to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Leaning Tree Steiner School Inc. (the Respondent).

• [2] The Applicant started working for the Respondent on 31 December 2020 and was employed as its Education Manager, a position that is equivalent to a School Principal. On 19 August 2024, one of the Respondent's education assistants - a Ms Helen Yates - was involved in an incident (the Incident) with a pupil, who I will refer to as "Pupil C". The Incident led to a complaint to the Respondent from Pupil C's mother, who I will refer to as "Mrs C". The Applicant received the complaint on behalf of the Respondent and met with Mrs C.

• [3] The Applicant subsequently dealt with the complaint in such manner as he saw fit. However, the Respondent did not accept that the Applicant had dealt with the complaint in an appropriate way. It also took the view that the Applicant had failed to meet what the Respondent saw as its reporting requirements under the Parliamentary Commissioner Amendment (Reportable Conduct) Act 2022 (the RC Act) with respect to the Incident_._ As a result, the Applicant was stood down from duties on 26 August 2024 by means of a letter which advised that the Respondent would be undertaking an investigation into the Incident.

• [4] On 4 September 2024 the Respondent wrote to the Applicant advising him that it had concluded its investigation into the Incident and advised him that it regarded the Incident as involving reportable conduct as defined in the RC Act. The Applicant was invited to show cause as to why his employment should not be terminated. On 9 September 2024 the Applicant's legal representative wrote to the Respondent setting out the Applicant's response to the show cause letter. On 19 September 2024 the Respondent's legal representatives sent a letter to the Applicant's legal representative advising that the Applicant's employment had been summarily terminated.

• [5] Both parties sought to be represented and neither party objected to the other being represented. In addressing s596(2)(a) both parties submitted that the presence of an experienced advocate assists the FWC in dealing with the complexities of a matter such as the present case. I was persuaded that the complexity of the matter was such that the efficient conduct of the hearing would be best served by both parties being granted permission to be represented.

• [6] A threshold issue to determine is whether the Applicant has been dismissed from their employment. There was no dispute between the parties on this issue and I find that the Applicant was an employee of the Respondent, and his employment was terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

a) The application was made within the 21-day period as required under s.394(2); and

b) The Applicant is protected from unfair dismissal under section 382 of the Act in that he has greater than 6 months' service and his annual rate of earnings was below the high-income threshold which is currently $175,000 per annum; and

c) The Respondent is not a small business as defined in the Act; and

d) The dismissal was not a case of genuine redundancy.

I am thus satisfied that the FWC has jurisdiction to deal with the matter.

Was the dismissal harsh, unjust or unreasonable?

• [8] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

• [9] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]

• [10] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

• [11] The Applicant submitted that the Respondent did not have grounds for summarily dismissing him from his employment or indeed dismissing him at all. The Applicant noted that the reasons for his dismissal were to be found in the show cause letter dated 4 September 2024 and the termination letter from Lavan Legal dated 19 September. For ease of reference those reasons are as follows:

• "Although you acknowledged that Helen's actions were not acceptable, your management of the response indicates that you prioritised defending Helen's reputation above minimising the risk of harm to the wellbeing of the student. A bias is reflected in your notes.
• You failed to identify the incident as reportable conduct under the Act and did not do so as required under the Act.
• When it was raised with you that AISWA had advised the incident was reportable conduct and should have been reported immediately, prior to investigating, you disputed this, stating that it did not meet the requirements for reportable conduct.

Additionally, as part of the investigation, it has become clear that you have failed to update LTSS policies to reflect the reporting obligations of staff and the Governing Body required by the Act and the Reportable Conduct Scheme."[2]

"For the sake of completeness, the School re-iterates its position that Mr Friday's management of the incident on 22 August 2024 (sic), his failure to report the incident to the appropriate statutory authority and failure to update School policies, collectively constitute serious misconduct...the Governing Body has lost complete confidence and trust in Mr Friday..."[3]

• [12] In respect of those reasons, the Applicant submitted as follows:

1. "there was no requirement to report the Incident, and the Applicant correctly assessed it as such;

1. the Applicant hadn't prioritised Helen Yates' reputation ahead of child welfare considerations;

1. the Applicant was not obliged to follow advice that the Governing Body Chair allegedly obtained from AISWA;

1. the Applicant had not 'failed' to update the Respondent's relevant policies; and

• e. there is no basis in fact for the Respondent to lose confidence in the Applicant's capacity to satisfactorily perform his role as Education Manager"[4]

• [13] In his evidence, the Applicant explained how he had come to be aware of the Incident and the steps he had taken to investigate it. His evidence explained that he had been made aware of the incident by Ms Yates herself, after he witnessed an exchange between her and Mrs C. Having been made aware, he spoke to Ms Yates about how the Incident had come about and what had actually happened. Mr Friday's evidence was that Ms Yates conceded that, following a joking exchange between herself, Pupil C and Pupil F, she had given a good-natured swat to the shoulder of Pupil C. In response, Pupil C had exclaimed that what she had done was child abuse.

• [14] I should note that the Respondent has issues with how Ms Yates dealt with some subsequent comments from Pupil C and others, including the fact that Ms Yates approached Mrs C directly to complain about Pupil C characterizing her actions as child abuse. However, those issues are in my view issues between Mrs Yates and the Respondent and have been dealt with by those parties. As they do not appear to me to be particularly relevant to the concerns about the Applicant, I do not intend to expand upon or address them directly.

• [15] The Applicant explained that he subsequently met with Mrs C the morning after the Incident, being 20 August 2024. The Applicant describes the demeanour of Mrs C at their meeting as being "very agitated". His evidence is that Mrs C had demanded that Mrs Yates be dismissed for "gaslighting" her son to cover up the fact that she had assaulted him. The Applicant claims that his concern with Mrs C's agitation had been such that he had invited another staff member, Ms Lisa Scamporlino, to join the meeting. The meeting ended with the Applicant advising Mrs C that he would investigate the Incident and call her later in the day.

• [16] From there, the Applicant met with Pupil F to discuss with him what he had seen and his evidence is that while Pupil F confirmed that Ms Yates had hit Pupil C, he also said that it was done quite softly. When asked to demonstrate, the Applicant said that Pupil F pushed him on the shoulder. The Applicant had then spoken to another pupil, Pupil I who had been present at the relevant time. While this pupil had not seen Ms Yates hit Pupil C, the Applicant states that the pupil confirmed that Pupil C had not been upset that afternoon and seemed to be having fun telling other people that he had been abused.

• [17] The Applicant's further evidence is that later that day he spoke with Ms Yates and Ms Kelly Commisso, who was the classroom teacher for the class in which the Incident occurred. He stated that he had asked Ms Yates to demonstrate what she had done to Pupil C, and she had responded by lightly pushing his upper arm. Ms Commisso had commented that Pupil C had not seemed in any way upset after the incident. The Applicant's further evidence is that later that day he had again spoken with Ms Scamporlino and discussed speaking to Pupil C and running a restorative conversation between Ms Yates and Pupil C.

• [18] The Applicant also gave evidence about a meeting he had attended later still that day with Pupil C's father (Mr C), who the Applicant claims was calm about the incident. The Applicant says Mr C indicated that Pupil C's mother was very upset but that he was trying to calm her down. After this meeting, the Applicant states that he met with Ms Scamporlino, Ms Lisa Thackray (the Respondent's Business Manager) and Ms Margaret Robinson (the Chair of the Governing Body of the Respondent). At that meeting the Applicant advised what had happened with Pupil C and Ms Yates, and Ms Robinson had said that she would speak with Mrs C in the morning and that Ms Yates was to be put on paid suspension. The Applicant then rang Ms Yates to confirm the suspension.

• [19] The Applicant states that the following day Ms Robinson rang him and advised that Mrs C still wanted Ms Yates removed and that Mr Nigel Briggs from the Association of Independent Schools of Western Australia (AISWA) had advised her to ask him if he was aware of the Reportable Conduct Scheme (the Scheme). The Applicant advised that he did not think the behaviour was either intentional or reckless and therefore not captured by the Scheme.

• [20] The Applicant further states that the following day he met with Ms Robinson and advised her that he was meeting with Ms Yates to explain to her what was happening, that Ms Yates would be reprimanded for touching Pupil C and also for the manner in which she approached Mrs C. He also explained that Ms Yates would be asked to apologise and that the intention was to hold a reconciliation meeting between Ms Yates and Pupil C.

• [21] In his further evidence, the Applicant says that he met with Ms Scamporlino and Ms Thackray to discuss how the Respondent would proceed with the various items as set out above. He claims that both of them expressed surprise at the intensity of Mrs C's response. After this, the Applicant spoke to Ms Yates and advised her of what would be happening and he states that she expressed difficulty in accepting the fact that the incident had given rise to the situation in which she found herself.

• [22] The Applicant states that he then spoke to Mrs C on the phone and that she was prepared to accept that the incident had been a case of joking, but she was still unhappy, wanted action taken against Ms Yates and was considering moving her children to another school. The Applicant then states that he spoke to Mrs Robinson via telephone. His evidence is that during this conversation it emerged that he and Mrs Robinson did not agree on the validity of Mrs C's reaction, with Mrs Robinson saying that she could understand the reaction as a mother. The Applicant says that during this call the issue of the Scheme was again raised, and again, he advised that he did not think the incident was captured by the Scheme.

• [23] The Applicant gives evidence that the following day Mrs C emailed and advised that she was taking all of her children out of the Respondent's school. He says that he responded expressing regret that this was the case and that he had hoped they could reconcile. He then advised Mrs Robinson and later that day, forwarded Ms Yates' apology to Mr and Mrs C.

• [24] The Applicant then states that on Monday 26 August he was called to a meeting with Mrs Robinson. It is his evidence that at this meeting he was stood down because he had not reported the incident. He says that Mrs Robinson said she had consulted a lawyer about the issue, and that she did not agree with his appraisal of it. The Applicant states he was handed a letter confirming the stand-down and he then left.

• [25] The Applicant states that after being stood down, he played no part in any investigation undertaken by the Respondent, but was simply advised by letter on 6 September 2024 that the Respondent had concluded the incident between Ms Yates and Pupil C was covered by the Scheme. The letter also noted that the Respondent had further concluded that his performance was unsatisfactory and contained the statements as set out above at paragraph 11. The letter asked the Applicant to show cause why he should not be dismissed, and he states that he instructed his lawyer to make a response which was subsequently sent on 9 September. The Applicant concludes by stating that on 19 September 2024 he received - via his lawyer - a letter of termination.

• [26] At hearing, the Applicant gave additional evidence that certain forms of physical contact with students, such a pats on the back and other gentle and supportive contact was common at the Respondent's school.

• [27] Witness evidence was also given on behalf of the Applicant by Ms Commisso. In her evidence, she provided what was essentially a positive character reference for Ms Yates and some commentary about Pupil C. In her evidence she regarded Pupil C as being bright and friendly, albeit prone to some inappropriate joking and a tendency to obscure the truth to avoid accountability.

• [28] With respect to the incident between Ms Yates and Pupil C, Ms Commisso had not witnessed the interaction, but her evidence was that afterwards Pupil C did not appear in any way distressed but rather was happy and relaxed. Her evidence is that none of the pupils appeared upset or concerned. Ms Commisso's evidence about the investigations and actions of the Applicant in the following days are consistent with the Applicant's evidence. Of some note is that Ms Commisso's very clear evidence is that she was not interviewed by the Respondent as part of its investigations.

• [29] At the hearing, I asked Ms Commisso if she was aware of the Scheme and she indicated that she was. I asked her if she thought the interaction between Ms Yates and Pupil C - as she understood it - would be reportable and she stated that she did not think so. She also confirmed that there were times where gentle or supportive touching of students took place.

• [30] The other witness to give evidence to support the Applicant was Ms Yates. For reasons not relevant to this matter, Ms Yates was subject to an order from the FWC to attend so she did not provide a witness statement and her evidence was all given verbally. In her evidence, she confirmed that she had made physical contact with Pupil C but described it as gentle contact to the back of the hand. Much of the evidence given by Ms Yates was not, in my view, directly relevant to the issue of the Applicant's termination, so I do not intend to traverse all of it here. However, I do note that she broadly supported the narrative of the Applicant's investigation of the Incident and also supported the notion that the touching of children in friendly and supportive ways was not uncommon at the Respondent's school.

• [31] In closing submissions on the issue of valid reason, the Applicant proposed that there was no valid reason and noted as follows:

(a) there was no requirement to report the Incident, and the Applicant correctly assessed it as such;

(b) the Applicant hadn't prioritised Helen's reputation ahead of child welfare considerations;

(c) the Applicant was not obliged to follow advice that the Chair allegedly obtained from AISWA;

(d) the Applicant had not 'failed' to review the Respondent's relevant policies; and

(e) there is no basis in fact for the proposition that the Respondent had lost confidence in the Applicant's capacity to satisfactorily perform his role as Education Manager and, even if such evidence had been led, there would not have been any defensible basis for it;

the Respondent did not have a valid reason for dismissing the Applicant, summarily or otherwise.

The closest that the Respondent could get to a valid reason is an unexpressed, unaddressed performance concern about the timeliness of a policy update."[5]

• [32] The Respondent submitted that it had a valid reason to terminate the Applicant, based on his management of the incident between Ms Yates and Pupil C, his failure to report the incident to the relevant statutory authority, and his failure to update the Respondent's policies. It expanded on these points as follows:

The Applicant failed to properly manage the Incident, noting that the evidence demonstrates that he:

(a) Almost immediately dismissed the Incident as a "good humoured"

(b) Demonstrated bias in favour of Ms Yates over his obligations to Child

(c) Was dismissive and denigrating to Child C's mother;

in breach of the Contract, the Child Protection Policy and the PC Act.

The Applicant's decision not to notify the Incident to the statutory authorities goes beyond the exercise of professional judgment. Rather, the Applicant has demonstrated bias in favour of Ms Yates, over the interests of a child both in breach of the Contract, the Child Protection Policy and the PC Act.

Further, the failure of the head of the relevant entity (i.e. the Applicant) to make the notification amounts to an offence under the PC Act.

It was an express term of the Applicant's Contract that he was responsible for updating relevant policies and procedures.

Further, the PC Act provides, at section 19R, that the head of a relevant entity must ensure that the relevant entity has systems in place to deal with reportable conduct (including a process for making and investigation of reports).

In responding to the allegation of having failed to update policies, the Applicant denied "that he has failed to maintain the school's policies to properly reflect relevant reporting obligations." In circumstances where the Child Safety Policy makes no reference to the Reportable Conduct Scheme, this is a curious (and unsustainable) position to take. Indeed, the Applicant's position in this respect is consistent with his refusal to take any accountability and deflection of responsibility onto others.

Notwithstanding that it was squarely the Applicant's responsibility to keep himself abreast of regulations and requirements, which were to be reflected in policies, he was also reminded by his fellow EMT of the need for him to do so."[6]

• [33] Noting that the Applicant had been dismissed for serious misconduct, the Respondent outlined its view as to the seriousness of the Applicant's behaviour. It noted that serious misconduct can include actions that cause imminent and serious risk to the reputation, viability or profitability of the employer's business. It submitted that the Applicant's behaviour had lost the Respondent three students - being all of Mrs C's children - and had placed the Respondent at serious risk of being found in breach of its obligations under the Scheme, threatening its registration.

• [34] Witness evidence for the Respondent was given by Ms Alison Bowdler, Mrs C, Mrs Robinson and Ms Scamporlino. The evidence from Ms Bowdler was that she had, in early 2024, raised the issue of the Scheme with the Applicant and asked if the Respondent's policies had been updated to reflect the requirements of the Scheme. Her evidence is that the Applicant said no but that she further reminded him just prior to July in 2024 that it needed to be included. The remainder of Ms Bowdler's evidence goes to the Applicant's conduct at a meeting called with staff to discuss the suspension of Ms Yates. It was - in essence - her evidence that the Applicant had displayed a bias towards Ms Yates in the comments he made at that meeting.

• [35] Further evidence was given by Ms Scamporlino. She confirmed her attendance at the meeting between the Applicant and Mrs C, noting she had been called in part way through that meeting. It was her evidence that in this meeting the Applicant was expressing some level of disbelief that the contact with Pupil C had been malicious. Ms Scamporlino confirmed the Applicant's narrative about the investigations he undertook with - for example - Pupils F and I. She confirmed that she and the Applicant had discussed speaking with Pupil C directly but that nothing had been arranged.

• [36] With respect to the staff meeting as outlined in paragraph 34 above, Ms Scamporlino's evidence supported the idea that the Applicant had appeared to be biased in favour of Ms Yates. Ms Scamporlino confirms that she did agree with the Applicant's sentiments about Mrs C's reactions - as mentioned in paragraph 21 above - although she did so subject to the caveat that it was hard to know without all of the facts.

• [37] Evidence was also provided by Mrs C. She states that in the meeting between herself and the Applicant, she formed the view that the Applicant was both dismissive and condescending towards her. Her evidence is that the Applicant suggested her son was over-reacting and being a "sook". She states that the Applicant treated her like a hysterical woman and told her to calm down. Mrs C's evidence is that when Ms Scamporlino joined the meeting she brought a more neutral approach and behaved in a professional manner.

• [38] It was Mrs C's further evidence that the Applicant had suggested that she bring Pupil C back to the Respondent's school and perform a re-enactment of what happened with Ms Yates. While she initially agreed, she changed her mind after a conversation with Mrs Robinson. Mrs C also stated that she had contacted AISWA herself and been advised that the incident should have been reported.

• [39] The final witness for the Respondent was Mrs Robinson. Mrs Robinson's timeline of events is consistent with that of the other witnesses. She confirms that the advice she received from AISWA was that the incident was reportable and that she relayed this advice to the Applicant. Her evidence is that the Applicant did not accept this to be correct and had stated that there needed to be intent for conduct to be reportable. She confirmed that she had advised the Applicant that she understood Mrs C's concerns and that the Applicant had nonetheless - in her view - continued to support Ms Yates and suggest that the matter was being over-dramatised.

• [40] With respect to reporting the incident, Mrs Robinson's evidence is that she decided to report it herself because she was convinced that it fell within the scope of the Scheme. However, it was also her evidence that she did not issue a direction to the Applicant to report the incident as she felt he was adamant that it was not reportable. Mrs Robinson's further evidence is that she was concerned that the Applicant was not taking an objective approach to the matter and prioritizing Ms Yates over the Respondent. She also states that she was concerned that the Respondent's policies had not been updated to reflect the requirements of the Scheme.

• [41] Given this, she states that she stood the Applicant down on 26 August, citing failure to comply with reporting requirements. Her evidence is that the Governing Body of the Respondent then met some eight days later and decided that given the facts of the incident were not in dispute, there would be a "show cause" notice issued to the Applicant - being the letter outlined in paragraph 25 above. Mrs Robinson then goes on to outline the response to that letter made by the Applicant's lawyer. The letter was in evidence, and it is suffice to say that Mrs Robinson correctly surmises that the Applicant was denying wrongdoing.

• [42] Mrs Robinson then gives evidence that the responses were considered and conclusions were drawn that the Applicant did not appreciate the seriousness of the matter, did not properly understand the Scheme, was biased towards Ms Yates and was falsely continuing to claim that he had not failed to update the Respondent's relevant policies. In summary, the view was that the Applicant had engaged in serious misconduct and put the Respondent at risk. I note that in her evidence, Mrs Robinson also contrasts the response given by the Applicant with that of Ms Yates, who was not terminated over the incident. She says that Ms Yates expressed remorse but the Applicant was dismissive and showed no insight into the seriousness of the matter.

• [43] Mrs Robinson also provides some evidence regarding behaviour by the Applicant that only came to light after his dismissal. It was her unchallenged evidence that this included uncompleted documentation dealing with behaviour management including suspension and expulsion of students, and excessive use of the Respondent's internet for personal purposes. I note that a printout of the Applicant's browser history was provided and it showed that on one date, being 26 August 2024, the Applicant spent at least one hour between approximately 8.30am and 9.30am on internet sites that - while not inappropriate - were nonetheless hard to reconcile with his duties.

• [44] In closing submissions on the issue of a valid reason, the Respondent made a number of observations regarding the Applicant's lack of knowledge of, and adherence to, the reporting obligations imposed by the Scheme. The Respondent submitted that the Applicant was not in fact sufficiently familiar with the Scheme. It drew attention to issues such as his failure to rely on "trivial and negligible" - being the exemptions in the Scheme - and use of reckless and intentional instead. It also took issue with the manner in which the Applicant conducted his investigation into the Incident, noting that the Scheme makes it clear that the views of the child must be given primacy, but that Pupil C had not been spoken to about his view.

• [45] The Respondent submitted that the Applicant's lack of understanding of the Scheme - and his bias towards to Ms Yates - led to him not reporting an incident that it insists should have been reported. Further, it noted that the Applicant's failure to update the Respondent's policies to make clear the obligations under the Scheme for all of the Respondent's employees was a major failure and one that left the Respondent exposed.

• [46] In further submissions, the Respondent noted that in considering the Applicant's dismissal, it had given weight to a number of other issues, being what it alleged was the Applicant's failure to understand the seriousness of the issue, his treatment of Mrs C and his dishonesty in continuing to deny that he had failed to update policies. The Respondent further submits that all of these issues taken together led to a loss of trust and confidence in the Applicant.

• [47] Having reviewed the evidence and submissions, I have formed the view that this issue is rather more nuanced than either of the parties have submitted. In giving my reasons, I intend to explain what I believe occurred - on balance of probability - and what consequences ought flow as a result.

1. the relayed evidence of Pupil F who witnessed the Incident and said the contact was not serious; and
2. to an extent the relayed evidence of Pupil I who says Pupil C was not in distress; and
3. to an extent the evidence of Ms Commisso who says Pupil C was not in distress; and
4. the evidence of Ms Yates

I find that on balance of probability Ms Yates' contact with Pupil C was negligible. While I recognize that Ms Yates' evidence regarding where she touched Pupil C did vary over her evidence, her claim that her contact was very soft did not. I note the evidence of Mrs C regarding Pupil C's arm being red and itching. However, I cannot find that this outweighs the other evidence provided. As such, I am satisfied that the incident itself was minor contact made in a playful manner.

• [49] I find further that based on his initial investigations - such as they were - it was not unreasonable for the Applicant to conclude that the Incident was a minor matter involving some good-humoured banter. From there, it appears he has formed a view that the matter did not need reporting. It is here that things start to go awry.

• [50] In the first instance, it appears that the Applicant's knowledge of the Scheme may have been somewhat incomplete. Under the Scheme, an action is deemed to be physical assault if it is intentional or reckless. It need not meet both criteria but simply one or the other. The evidence seems to suggest that the Applicant did not believe it to be either[7]. While "intentional" is not defined in the RC Act, it is defined in the information provided by the Ombudsman as meaning the behaviour was engaged in deliberately. I note that such a definition of intentional is not particularly controversial or unusual. If one consults the website www.dictionary.com the British definition of intentional is "performed by or expressing intention; deliberate".

• [51] Had he been aware of this definition from the Ombudsman, it is hard to see how the Applicant could have surmised that the actions of Ms Yates were anything other than intentional - deliberate - albeit that there may have been a complete lack of malice. Malice, however, is not required, merely that the action be intentional, where intentional means deliberate. On that basis, it appears to me that there was a prima facie case that the matter should have been reported. There is a further issue that arises, being the views of Pupil C. The RC Act provides at s.19J(2) as follows:

_"The reportable conduct scheme is based on the principles that - _

_(a) if a child is able to form views on a matter concerning a reportable allegation or reportable conviction and it is appropriate in the circumstances to consult the child - _

(i) the child must be given the opportunity to express the views freely; and

(ii) the views are to be given due weight in the investigation in accordance with the developmental capacity of the child and the circumstances;"

• [52] While I accept that the Applicant had some limited discussions with a colleague about involving Pupil C in a re-enactment, he did so after clearly forming a view that the incident did not need to be reported. I accept that there may have been practical difficulties in interviewing Pupil C because he was removed from the Respondent's school by Mrs C. However, it is clear on my reading of the rationale for the Scheme - which came into being as a result of a Royal Commission into child abuse - that listening to the child is an important part of the process. The Applicant, however, has formed what would appear to be strong views on the true nature of the Incident without having the benefit of those views. This does not appear to be consistent with the intent of the RC Act.

• [53] I note for completeness that there is an exemption to reporting conduct to be found in the RC Act - at s.19G(2)(b) - being that the actions were trivial or negligible and being investigated as part of a workplace procedure. I have examined the Applicant's pleadings and evidence, and it does not appear to me that he at any time prior to the hearing relied on this exemption. That he did not do so but chose instead to rely - incorrectly in my view - on the "not intentional" assessment suggests that he may not have been completely familiar with the workings of the RC Act.

• [54] There is a further issue for the Applicant in terms of his handling of this matter. I find that while the Applicant perhaps had the gist of the Scheme, I do not think he was so well-versed that he could have quoted the Act or the Ombudsman's advice "chapter and verse". In such circumstances and knowing that the Scheme was relatively new and its boundaries thus not likely to have been fully tested, it is passing strange that the Applicant seems to have rejected out of hand the advice from AISWA relayed to him by Mrs Robinson. A far more prudent course of action would have been to speak to AISWA to find out why they believed the incident should be reported.

• [55] In summary, I find that the Applicant has handled the Incident in a manner that was not as cautious and considered as was appropriate in the circumstances and in light of the requirements of the Scheme. I note that the RC Act does allow some discretion to be applied by virtue of the exemption for trivial and negligible actions which are being investigated as part of a workplace process. Given that such discretion exists, it might perhaps be argued that the Applicant's assessment of the situation was appropriate and there was in fact no need to report the Incident.

• [56] However, this must be weighed against the fact that the Applicant had made his decision not to report without speaking to Pupil C, and also in circumstances where I am not satisfied that he did so with a proper understanding of the trivial and negligible exemption, but rather was relying incorrectly on "not intentional". Further, he refused to heed advice that should have at the very least have caused him to reflect and check the process he was following.

• [57] I should note that I do not comment on the motivations of the Applicant. The Respondent made much of his bias towards Ms Yates. There may be some truth to this and it may also be the case that loyalty towards subordinates is a worthy trait. However, the Applicant had a duty as the Education Manager to ensure the Respondent's interests were properly protected. The reason why he may have failed to do that in this case is less important in my view than the fact that he did fail.

• [58] This leads me to the other issue that I believe looms large over this case, being the lack of work done by the Applicant to create and disperse a policy on complying with the Scheme. There is evidence - from Ms Bowdler - that he was reminded twice that he needed to update the Respondent's policies to include information about the Scheme, which had commenced on 1 January 2023. Evidence was given by Ms Scamporlino that she was unaware of the Scheme until after the Incident and that such training as she and other employees received was via a webinar conducted by AISWA well after the Incident.

• [59] This appears to me to be a significant dereliction of duty on behalf of the Applicant. This is not a case of failing to update a nondescript administrative policy. This was failure to implement a policy to deal with a major change in the way schools are required to deal with allegations of misconduct towards a child. The obligation to deal with the Scheme and the responsibilities created by it rests, according to the Ombudsman, with the head of the organisation in question. Although the Applicant tried to make some argument about the responsibility being shared amongst the various Managers at the Respondent's school, I am satisfied that this particular responsibility fell squarely on his shoulders, and it is a responsibility that he has not met.

• [60] As such, I find that the Respondent had a valid reason for termination. In the first instance, the Applicant has not handled the Incident in a measured and cautious way, which is problematic given the strict requirements of the Scheme. In the second instance, he has clearly failed to protect the Respondent by drafting and implementing a policy to ensure that all employees - including himself - were fully aware of the intent and requirements of the Scheme. Notwithstanding this finding, I do not accept that the Applicant's conduct meets the test of serious misconduct entitling the Respondent to summarily terminate him. It is, rather, a case of poor judgment and failure to properly perform his role. I note the Respondent calls upon Regulation 1.07 with respect to conduct that causes serious and imminent risk to reputation, viability or profitability of an employer. Without undertaking an exhaustive examination of what conduct may or may not fall within the scope of Regulation 1.07, I am satisfied that it seeks in the main to capture deliberate and willful acts that create a risk that is both imminent and serious, rather than cases of poor judgment and poor performance.

Was the Applicant notified of the valid reason?

• [61] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[8] In this instance, I am satisfied that the valid reasons I have found correlate to a reasonable degree with what the Respondent advised the Applicant, albeit that there may be different emphasis placed on the two issues.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [62] On this ground I find that the Applicant was given a chance to respond, but in far from ideal circumstances. Specifically, it was put to him that the Respondent had essentially established his guilt and required him to show cause why he should not be terminated. In my view, this process was inadequate, as I will explain further below. In summary, while I accept that an opportunity was given, I would not count this factor as weighing in favour of the dismissal being regarded as fair.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [63] I note that the Respondent correctly observes with respect to this matter that the Applicant had the benefit of legal advice in preparing his written response. However, this was at a point where he was required to make written submissions regarding his dismissal, rather than where he was being interviewed and asked to make his case regarding his actions. It is difficult to know what the Respondent would have done had it undertaken a different process whereby the Applicant was involved and personally interviewed during the investigation process or in response to the "show cause" letter. Given this, I regard this matter as neutral in my consideration of the fairness of the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [64] This matter presents some difficulties. While I have described the failures of the Applicant as being essentially performance related, they are not the typical performance issues in that they only arose or came to the Respondent's attention as a result of the Incident. While there had been some observations from Ms Bowdler about the need to prepare a policy to capture the requirements of the Scheme, these would not in my view count as warnings as there was no sense of consequences for failure raised - if for no other reason that the Applicant was not subordinate to Ms Bowdler.

• [65] Once the Incident occurred, the Applicant's performance failure in not implementing a policy to capture the Scheme became clear to the Respondent. Had this awareness arisen without the catalyst of the Incident, it may perhaps have been the case that a stern performance warning would have been warranted. However, the Applicant's dismissal overtook such a course of action, and no warning was given.

• [66] The other issue, being the Applicant's performance in dealing with the Incident was clearly problematic for Mrs Robinson. However, I note that while she had some conversations with the Applicant that outlined her concerns, she did not instruct the Applicant to report the Incident or in any way suggest that there may be consequences if he did not adopt a different approach. Given this, I do not find that he was warned about this element of his performance but again, such a warning was overtaken by the dismissal. Given all of this, I have resolved to regard this matter as neutral in my consideration.

To what degree would the size of the Respondent's enterprise and the absence of dedicated human resource personnel be likely to impact on the procedures followed in effecting the dismissal?

• [67] The submissions of the parties on this matter were at odds. The Respondent noted that it was a small organisation without dedicated HR employees and that its peak body AISWA, did not offer employee relations advice. The Applicant submitted that the Respondent, while small, had clearly taken legal advice on the Applicant's actions and dismissal and as such should have been in a position to be aware of the requirements of procedural fairness.

• [68] On balance I am inclined to view these matters as neutral. The Respondent' school has no dedicated HR staff and only a small number of employees. As such, it might be said that this would likely impact the procedures followed. In the early stages, I suspect this was the case. However, at a certain point legal advice was sought and presumably followed. While I am not convinced that such advice was completely correct, I nevertheless find that there should be no allowance made for the size or lack of HR staff given the presence of legal advice.

• [69] Section 387(h) requires the FWC to take into account any other matters that it considers relevant.

• [70] The Applicant submitted that I ought to take into account the fact that Ms Yates was not terminated, suggesting that as she had engaged in the conduct, the Respondent was "obliged to dismiss her". The Applicant also submitted that the non-reporting of the incident by Ms Thackray and Ms Scamporlino ought to call into question the action taken against the Applicant, as it showed that other Managers had also failed the Respondent. It was further submitted that I should take into account the fact that there was no instruction given to the Applicant by Mrs Robinson with respect to reporting the incident.

• [71] It was further submitted that I should regard such failing by the Applicant as being in the manner of a "misjudgement or innocent manifestation of a performance deficiency."[9] Finally, the Applicant submitted that the impact of the summary dismissal was disproportionately severe in the circumstances, given the Applicant's age and employment prospects in a regional area.

• [72] The Respondent submitted that even if the procedure adopted was deficient, this should not lead to a finding that the dismissal was unfair. It cited the findings in Michael Albert v Alice Springs Town Council where the Commissioner Wilson noted that previous decisions of the FWC had found that procedural defects will not usually render a dismissal unfair where there is serious misconduct. In that matter, the Commissioner found as follows:

"In Mr Albert's case, I find that the seriousness of his actions outweigh the procedural faults of the Town Council in its decision to dismiss him, and I find that had the procedural faults been remedied, they would have been unlikely to affect or alter the ultimate outcome of the matter."[10]

• [73] In the first instance, I will deal with the Applicant's submissions. I do not accept that there is anything of merit in the submission regarding Ms Yates. The Respondent has provided its view on why there was disparate treatment between the two employees - see paragraph 42 - and I accept that view. Nor am I persuaded that Ms Thackray and Ms Scamporlino are equally culpable. The responsibility for disseminating a policy on the Scheme fell to the Applicant and he failed to meet this responsibility. As Ms Scamporlino noted in her evidence, it was only after the Incident that she even became aware of the Scheme.

• [74] With respect to the issue of no instruction given by Mrs Robinson, I find that this issue is not particularly relevant. There was no instruction from Mrs Robinson, and the Applicant as a consequence, has not failed to follow an instruction. Had there been an instruction and a failure to follow it, this would have cast a different complexion on the matter. However, not following an instruction to report is not part of the valid reason for dismissal and this issue does not need to be further considered. As to the matter being regarded as a misjudgement or performance deficiency, I can understand why the Applicant makes this submission. However, as I have found above, it is in my view a serious misjudgement and a significant performance deficiency. Given this, I am not persuaded that this submission has merit.

• [75] What I find are matters that need careful consideration under this section of the Act are the procedural deficiencies and the impact on the Applicant. In the first instance, I will look to the procedural deficiencies. I have deep concerns regarding the process used by the Respondent when investigating the Applicant. While this is not to suggest that there is a set process that must be rigorously followed in every case, there are nonetheless certain steps that I would regard as essential. Where the Respondent falls into error in my view is the process used to investigate the Applicant. I take no issue with the Respondent standing the Applicant down with pay having advised him what it was doing.

• [76] However, the Respondent then appears to have conducted an investigation into the Applicant's actions that did not involve the Applicant in any way. He was not asked to explain his part or rationale for dealing with the Incident as he did. He was not even interviewed as part of the investigation. Rather, he was presented with the outcome in a letter as a fait accompli and asked to explain - via email - why he should not be dismissed. I cannot accept that this lack of direct engagement with the Applicant both during the investigation and when he was asked to defend his employment, represents a proper and fair process. I also note that as part of the investigation into the Applicant's handling of the Incident, neither Ms Yates nor Ms Commisso were interviewed. I find this to be a very serious omission and is difficult to reconcile with making - as the Respondent did- an assessment that the Incident was required to be reported.

• [77] I am also mindful that the Applicant is an older worker with a career in education. Being summarily dismissed from his position left him in an invidious position of being without an income at a time of year when seeking a position commensurate with his skills and experience in the education sector would be difficult. Given that he lives in regional Western Australia, the options are more limited than what might be found in a major city such as Perth. Combining his age, location and time of year in my view makes the summary termination a factor I should consider in weighing up the fairness of the dismissal.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [78] I have made findings in relation to each matter specified in section 387 as relevant.

• [79] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[11]

• [80] In the first instance, I am satisfied that there was a valid reason for termination and that the Applicant was adequately advised of the valid reason for termination. With respect to the matters found at s.387(c) to (g) inclusive, I have found that they are neutral in my consideration. Turning then to the process employed by the Respondent, I firstly note the Respondent's submissions regarding whether a lack of procedural fairness can render a dismissal unfair where there are serious behavioural issues in play. I agree with the sentiments expressed in previous cases but note that each circumstance needs to be examined on its merits. In this instance, I found that the behaviour of the Applicant did not meet the standard of serious misconduct. As such, when I combine the procedural defects with the impact on the Applicant, I find that the summary dismissal was harsh in the circumstances.

• [81] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

• made an application for an order granting a remedy under section 394;
• was a person protected from unfair dismissal; and
• was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order the Applicant's reinstatement, or the payment of compensation to the Applicant.

• [83] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

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

Is reinstatement of the Applicant inappropriate?

• [84] The Applicant submitted that reinstatement is appropriate because there was no evidence of a loss of trust and confidence by the Governing Body and nothing suggests that he could not be returned to his position.

• [85] The Respondent submitted that reinstatement is inappropriate because there has been a loss of trust and confidence in the Applicant and that the position of Education Manager has been filled.

• [86] I note that previous decisions of the FWC have dealt with the notion of placing a dismissed employee into a precarious and unsustainable work environment. While it may be said that there is no direct evidence that the Governing Body has lost trust and confidence in the Applicant, I note that the Governing Body approved his termination and that - in my assessment at least - there is little chance of a normal working relationship between the Applicant and Mrs Robinson. On this basis, I do not regard reinstatement as appropriate.

Is an order for payment of compensation appropriate in all the circumstances of the case?

• [87] In the circumstances of this case, I am satisfied that an order for compensation is appropriate. However, there is insufficient information in the Applicant's closing submissions to make an assessment of his earnings post dismissal or his efforts at mitigation. As such, I will convene a mention hearing to discuss the issue of remedy with the parties.

C Dowling for Leaning Tree Steiner School Incorporated, the Respondent.

[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[2] Show Cause letter - See Court Book page 69

[3] Termination letter - see Court Book Page 65

[4] Applicant Submissions Page 2 Paragraph 18

[5] Applicant Reply Submissions paragraphs 57 - 58 page 6

[6] Respondent Submissions paragraphs 31 - 38 pages 7 - 8

[7] See for example Witness statement of Michael Friday paragraph 80 page 7

[8] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[9] Applicant submissions paragraph 41 page 4

[10] Michael Albert v Alice Springs Town Council [2017] FWC 73 at [73]

[11] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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