s.394 - Unfair dismissal

Application for relief from unfair dismissal - valid reason for dismissal - no prior warnings or disciplinary action - dismissal harsh, unjust and unreasonable - reinstatement appropriate.

• [1] Mr Nigel Haslam was employed by SAE Institute Pty Ltd as a full time Associate Lecturer from 20 May 2019 until his dismissal on 27 August 2025. Prior to his dismissal, Mr Haslam's employment record with SAE was unblemished. SAE dismissed Mr Haslam following a complaint from a student (Student A). Mr Haslam contends that his dismissal was harsh, unjust and unreasonable. SAE denies those allegations.

• [2] Mr Haslam filed his unfair dismissal application in the Commission prior to his dismissal. I consider it appropriate to exercise my discretion under s 586(b) of the Fair Work Act 2009 (Cth) to waive the irregularity in the manner in which Mr Haslam made his application for an unfair dismissal remedy.[1]

• [3] SAE, which is part of the Navitas Group, is a University College that offers tertiary programs for certificate, diploma, bachelors degree and masters degree qualifications in a range of creative, media and technology studies. In Australia, SAE operates across six campuses including Byron Bay (where Mr Haslam worked), as well as online courses. There are around 300 academic and other staff employed at SAE.

• [4] In July 2025, there were around 180 students enrolled at the Byron Bay campus of SAE, together with about 40 staff, including Mr Haslam. SAE has announced that it will be winding back the Byron Bay campus, with the last cohort of students expected to complete their studies by February 2028 and the Byron Bay campus to close at around that time.

• [5] I heard Mr Haslam's unfair dismissal case against SAE on 4 and 5 December 2025. Mr Haslam gave evidence in support of his case. He also adduced evidence from Ms Marie Makinson, a former student, who was not required for cross examination, and Ms Jemma Osmond, Student Support Advisor of SAE. SAE adduced evidence from Mr Matthew Evans, Executive General Manager of SAE Global, Mr Ben Funnell, Campus Manager, and Ms Jelena Stefanovic Mudric, Human Resource Business Partner.

• [6] At the request of SAE, I made an order requiring Student A to attend the hearing, by video conference, to give evidence. Shortly before the hearing, an application was made by solicitors acting for Student A to set aside the order requiring her to attend the hearing, by video conference, to give evidence. The basis of the application was that there was a serious risk that Student A would suffer grave psychological harm if she was required to give evidence before the Commission. The application to set aside the order was supported by medical reports from Student A's treating psychiatrist, explaining the nature and effect of Student A's complex mental health conditions. Neither Mr Haslam nor SAE opposed the application to set aside the order requiring Student A to attend the hearing to give evidence. I set aside the order on the basis that it was in the interests of justice and fairness to avoid the risk of harm to which Student A's psychiatrist referred in his reports.

• [7] I did, however, permit SAE to tender a witness statement made by Student A. While the Commission is not bound by the rules of evidence, it tends to follow them as a general guide. What is ultimately required is judicial fairness.[2] Hearsay evidence is not ordinarily permitted to be relied upon in circumstances where the opposing party is denied an opportunity to contradict that evidence by presenting their own evidence to the contrary.[3] In the present case, I am satisfied that Student A was unavailable within the meaning of the Evidence Act.[4] This provided an exception to the hearsay rule. I am also satisfied that Mr Haslam was given the opportunity to contradict Student A's evidence by presenting his own evidence to the contrary. What Mr Haslam missed out on was the opportunity to challenge Student A on her version of what happened. That was significant in circumstances where Student A and Mr Haslam were the only persons present during the lesson in which the conduct in question allegedly occurred on 24 June 2025. Ultimately, I determined that judicial fairness meant that SAE ought be permitted to tender the witness statement of Student A, but the weight to be given to that statement will be reduced on account of the fact that Mr Haslam was not given an opportunity to challenge or test Student A's evidence in cross examination.

• [8] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

• [9] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Haslam's application for unfair dismissal was made within the period required in s 394(2) of the Act;

(b) Mr Haslam was a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Mr Haslam's dismissal; and

(d) Mr Haslam's dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

• [10] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Haslam's dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

• [11] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[5] In order to be "valid", the reason for the dismissal should be "sound, defensible and well founded"[6] and should not be "capricious, fanciful, spiteful or prejudiced."[7]

• [12] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[8] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[9]

• [13] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[10] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[11]

• [14] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[12] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[13]

• [15] In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[14] Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:

"Fact Finding and the State of Satisfaction Required

1. It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.

1. Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.

1. It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

Even though he spoke of the common law position, Dixon J's classic discussion in _Briginshaw..._at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):

'No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).

1. It is also clear that so-called "Briginshaw principles" apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)..."

• [16] It follows that for SAE to succeed in relation to its allegations of misconduct against Mr Haslam I am required to reach a state of satisfaction or an actual persuasion that SAE has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.[15]

• [17] SAE contends that it had a valid reason to terminate Mr Haslam's employment because he engaged in the following conduct, which was contrary to SAE's Code of Conduct and policies, creating an unsafe learning environment for Student A, and could cause harm to SAE's reputation:

(a) Allegation 1 - on 24 June 2025, Mr Haslam inappropriately touched Student A's hair by reaching out and tucking her fringe behind her ear without her consent; and

(b) Allegation 2 - on an unknown date in trimester 1 of 2025, Mr Haslam told Student A, "you look cute", while reaching down to touch the stockings above her knee and commenting that he liked the pattern on her stockings.

• [18] Mr Haslam has always admitted that he touched Student A's hair but denies tucking it behind her ear. Mr Haslam denies any sexual element to this conduct.

• [19] I accept, as contended by SAE,[16] that on the balance of probabilities the following matters have been established on the evidence before the Commission:

(a) on 24 June 2025, Mr Haslam and Student A were together in a classroom at SAE's Byron Bay campus;

(b) Mr Haslam is an adult male, who was employed as an academic teacher to teach an Animation class to students on campus;

(c) Student A was at that time a young adult student enrolled in the class being taught by Mr Haslam;

(d) no one else was in the classroom at this time, and the door to the classroom was closed;

(e) there was an inherent power imbalance between Mr Haslam, as an older adult male and in his capacity as a teacher, and the younger female - Student A;

(g) Mr Haslam's conduct in physically touching Student A was without her consent and also offended, humiliated and/or intimidated her.

• [20] During an interview on 1 July 2025, Mr Haslam gave the following account of his interaction with Student A on 24 June 2025:[17]

"... Yes, it was only myself and [Student A] as the other two students who were meant to be in class were sick and away. One was having an eye operation I believe and the other one was ill. Yes, I was in close proximity as she works off her iPad and it was on her lap. That is how I can see her work by being close. I moved from the sofa, we have a small sofa in the classroom. I moved from the sofa to the office chair which had wheels and I was sitting beside her. I felt that we had a positive conversation during that time. I congratulated her on her recent grade, a HD which is her first time. She had previously made some mistakes in her work, so this time around, with her HD grade, I congratulated her on the good work she had done. While we were talking there was a piece of hair that was in front of her eye. I was looking at that eye while talking to her, so I inadvertently reached forward to flick her hair with my finger (pointing an index finger). I didn't tuck her hair, no I did not. I just moved forward and moved her hair (out of her face). The hair came back in front of her face and at that moment, she tucked her hair behind her ear. I realise now that she felt offended by it, and I feel dreadful. I like to have a friendly relationship with my students, and this is... my recount of this (the incident).

After that, we had a very nice chat. I had then asked her if her situation had improved, as she missed classes because ... She had previously mentioned to me about the challenging time she has been having ... I asked if she had someone to speak to about this, like a support person and she said she was speaking to someone. Also, I told her that I had gone through something very similar and was able to understand what she was going through. It was a good conversation I thought, and then after that she said she was going to go home to do the work and I bid her farewell."

• [21] Mr Haslam also described the relevant events of 24 June 2025 in the following way in his witness statement in reply:

"16. I don't agree with [Student A's] description of what happened in annexure C-3 of her witness statement.

1. The incident occurred on Tuesday, 24 June 2025. The class was small because there were only three students enrolled. That day, only [Student A] attended class.

1. Because it was only [Student A] who attended class that day, it gave me an opportunity to give her some positive feedback about a project she'd just completed where, for the first time, she hadn't made any silly mistakes. This was very good progress. I encouraged her and gave her praise for her work.

1. I generally wouldn't provide such positive feedback to an individual student if other students were around because it could risk making the others feel worse about their work.

1. In the complaint at Annexure C-3 to her witness statement, [Student A] says I "overly praised" her. I didn't feel I was doing that, I believed the positive feedback was warranted.

21. I mentor a group of past students who are undertaking a gaming development project

together. I wanted to let [Student A] know that there could be an opportunity for her to work with them, given the progress she'd made in her project if that was something she'd be interested in.

1. I recall [Student A] was sitting on the couch in the room and she asked to show me a bouncing ball animation she had on her iPad. I sat next to her on the couch so I could see the bouncing ball animation and we talked about it.

1. I distinctly remember leaving the couch and going over to my desk, which is opposite the couch. I then brought up the materials for the coursework that day on the big screen. I did not sit on the couch with [Student A] at any other point.

1. After the coursework was on the screen, I wheeled back over to [Student A] to talk about it while I was sitting on my wheelie office chair and she was sitting on the couch. We were sitting opposite one another.

1. As I was talking to her about the assessment, I noticed a lock of hair hanging down in front of her eye. And it was across the eye that I was looking at. I ignored it for a few moments but it was a little frustrating because I was talking and she, for some reason, was not meeting my eye contact. So, in the spur of the moment, without really thinking, I thought oh, I'll move it. So I reached over and gently moved it with my index finger. The hair sprang straight back in front of her eye, so she reached up and tucked it behind her ear.

1. I am truly sorry doing this has caused [Student A] so much upset. She did not appear upset or uncomfortable in the class. If she had, I would have apologised for it immediately. I did not intend anything sexual in the act at all and am devastated that is how it has been perceived. I will never place myself in this position with a student again. I would certainly never touch their hair if it was in their eye or even place myself in any close proximity to them where physical contact would even be possible.

1. [Student A] and I carried on talking after she tucked her hair behind her ear. Shortly after this occurred, I asked how things were at home...

1. I asked [Student A] something along the lines of how are things at home and whether the situation had improved. At that point, [Student A] went into a lot of detail, more than I felt comfortable being disclosed to me...

1. Once that conversation had concluded, we moved on to the task at hand in project 2, which was an exercise called the 'Saw Man'.

31. I gave [Student A] a template I had prepared, talked about how to approach the task and

discussed a few techniques used when doing 'in-betweening', which is the focus of the Saw Man exercise.

1. [Student A] set about starting the task. In [Student A's] complaint, she says I "left the room for reasons unknown to me". It was around the time [Student A] started doing the exercise that I may have left the classroom on and off, whether it was to make a cup of tea, go to the bathroom or speak to a colleague or other student, as I sometimes do.

1. After around an hour or so, I asked how she was going with the Saw Man, she showed me her work and I saw she'd made a mistake. She'd started with a drawing technique called Simplified Skeleton which is appropriate for designing characters or blocking out very early stages of an animation but not what you do when you're in-betweening. When in-betweening, the lead animator provides a clean drawing of the first key frame and a clean drawing of the last frame, in this case this came from the template that I gave her. And as an inbetweener, your job is to make clean in-between drawings to fill in the gaps, not the rough sketchy basic shapes of a Simplified Skeleton. So basically, she'd misunderstood the approach, so I corrected her.

1. After that, she spent a little while longer on restarting it and then she said that she felt that she would go and continue at home and that she had got the idea, knew what she was doing, and would carry on with it at home. It was around that time she left.

1. [Student A] left class slightly earlier than it was due to end but she'd indicated on arrival that she almost hadn't come in at all because of the situation at home and wasn't sure if she was going to stay the whole class."

• [22] SAE contends that Mr Haslam's evidence changed over time. It submits that Mr Haslam initially stated, in his interview on 1 July 2025, that he flicked Student A's hair with his index finger, yet in his reply statement he said that he gently moved Student A's hair with his index finger. SAE also submits that Mr Haslam claimed in his interview on 1 July 2025 that his action in moving Student A's hair was inadvertent, but in his reply witness statement he said that he thought he would move Student A's hair, so he did so.

• [23] I do not accept these criticisms of Mr Haslam's evidence. In my view, they amount to unfair cherry picking of select words from each account. In his interview on 1 July 2025, Mr Haslam said that he "flick[ed] her hair with my finger (pointing an index finger). I didn't tuck her hair, no I did not. I just moved forward and moved her hair (out of her face). The hair came back in front of her face and at that moment, she tucked her hair behind her ear". It is apparent from this longer extract of Mr Haslam's account that he described his movement of Student A's hair as both a flick and a movement with his index finger. This is consistent with Mr Haslam's reply statement where he said that he "reached over and gently moved it with my index finger".

• [24] As to the deliberate nature of his conduct, Mr Haslam said in his initial interview that he "inadvertently reached forward to flick her hair with my finger". In his reply witness statement, Mr Haslam said:

"As I was talking to her about the assessment, I noticed a lock of hair hanging down in front of her eye. And it was across the eye that I was looking at. I ignored it for a few moments but it was a little frustrating because I was talking and she, for some reason, was not meeting my eye contact. So, in the spur of the moment, without really thinking, I thought oh, I'll move it. So I reached over and gently moved it with my index finger."

• [25] There is no doubt that Mr Haslam's conduct in touching Student A's hair was deliberate; his index finger did not come into contact with her hair by accident. In my view, what Mr Haslam was seeking to convey by saying, initially, that he "inadvertently reached forward to flick her hair" and, later, that "without really thinking, I thought oh, I'll move it. So I reached over and gently moved it with my index finger" was that his conduct in touching Student A's hair was not pre-planned or premeditated; it was a one-off act, without much thought, taken in response to a lock of Student A's hair hanging down in front of her eye.

• [26] I prefer Mr Haslam's evidence that he did not tuck Student A's hair behind her ear over Student A's account, in both her contemporaneous complaint[18] and her witness statement,[19] that he did so. I have had the benefit of observing Mr Haslam give evidence and be asked many questions about these matters. Although Mr Haslam was, at times, advocating his case in his response to the many questions put to him during his evidence, his evidence was detailed, consistent, and demonstrated contrition as well as a willingness to accept propositions, even when they were contrary to his interests. For example, Mr Haslam accepted that what he did by touching Student A's hair was wrong, unnecessarily familiar, and "very, very mildly" intimate in nature. Mr Haslam also accepted that although he did not think at the time that Student A was upset or offended by his conduct in touching her hair, Student A was, in fact, very upset, so much so that she went home and cut off her fringe where Mr Haslam had touched her. I accept that Mr Haslam is truly sorry for touching Student A's hair and has asked on numerous occasions to be able to apologise to her for his conduct. I found Mr Haslam to be a reliable and credible witness. In contrast, I have not, for good reasons related to Student A's complex mental health conditions, had the benefit of hearing or seeing Student A give evidence. As a result, Mr Haslam has not been able to challenge or test Student A's account of the relevant events. This means that I am not in a position to give as much weight to Student A's written complaint and witness statement as I might have if she had given evidence in the hearing.

• [27] Looking at the matter objectively, I do not consider that there was any sexual element to Mr Haslam's conduct in touching Student A's hair. Some of the circumstances point to the potential for there to be a sexual element to the conduct, including that the door to the classroom was closed, only Mr Haslam and Student A were present at the time, Mr Haslam was sitting in close proximity to Student A, there was a power imbalance between Mr Haslam as an older male teacher and Student A as a younger female student, and the act of gently moving hair from in front of a person's eye may, in some circumstances, be intimate in nature. However, I accept that (a) Mr Haslam usually keeps the door to his classroom closed when he is teaching to limit noise, (b) the only reason Mr Haslam was alone with Student A is because the other students in the class were not present on the day in question, (c) Mr Haslam needed to be in close proximity to Student A to assist her with the work she was doing, and (d) Mr Haslam moved a lock of hair that was hanging down in front of Student A's eye to be able to have eye contact with her when he was speaking with her about the work she was doing. Having regard to all the circumstances, I do not consider that a reasonable bystander would consider Mr Haslam's conduct in moving a lock of hair from in front of Student A's eye to be of a sexual nature. It follows that Mr Haslam's conduct does not meet the definition of sexual harassment in the Sex Discrimination Act 1984 (Cth)[20] or SAE's policies.[21]

• [28] I am satisfied, however, that Mr Haslam's conduct in touching Student A's hair breached his obligation under SAE's Staff-Student Relationships Policy to ensure that all interactions with students must be professional and appropriate. One example in SAE's Staff-Student Relationships Policy of a situation which would not be regarded as professional or appropriate conduct is "engaging in any other conduct towards a student which is unreasonable and unwelcome and could reasonably be expected to make the student feel offended, humiliated or intimidated.[22]

• [29] Ms Osmond, who I consider gave clear, persuasive, balanced and reliable evidence, said that many young women would be offended by Mr Haslam's conduct in using his finger to move their hair, regardless of whether they had any mental health conditions. I agree with this opinion. Ms Osmond is well qualified to give such an opinion. Ms Osmond's role at SAE involves providing wellbeing, welfare and academic support to students, including students with disabilities. Ms Osmond has professional training in these activities.

• [30] I am satisfied that Mr Haslam's conduct in using his index finger to move hair from in front of Student A's eye was unreasonable and unwelcome, and could reasonably be expected to make Student A, or any other student, feel offended or intimidated. Mr Haslam therefore breached his obligation under SAE's Staff-Student Relationships Policy to ensure that all interactions with students must be professional and appropriate, as well as his obligation under his contract of employment to comply with applicable policies and procedures.

• [31] I also prefer Mr Haslam's evidence that he did not say to Student A "you look cute", nor did he touch, or reach down to touch, Student A's stockings, over Student A's account, in both her contemporaneous complaint[23] and her witness statement,[24] that he did so. First, for the reasons explained above, I have had the benefit of hearing and seeing Mr Haslam give evidence, whereas I only have the written accounts from Student A. Secondly, Student A did not mention, or make any complaint, to SAE, her mother,[25] or Ms Osmond, with whom Student A was in regular contact during trimester 1 of 2025, about this alleged incident at the time it happened. Thirdly, other students who were present in the class at the time were interviewed and none of them recalled the alleged conduct, although one student recalled Mr Haslam making comments about the appearance of various students from time to time. Fourthly, Mr Haslam's evidence that he does not use the expression "you look cute" has a ring of truth to it. Mr Haslam was raised in England and says that the expression "you look cute" is an American one, and not one that he uses. Fifthly, although Mr Haslam admits that he made a comment such as "great pattern" or "cool pattern" about Student A's stockings because they had a striking design and he admits touching Student A's hair on 24 June 2025, these matters do not establish, on the balance of probabilities and having regard to the Briginshaw standard, that on an earlier occasion during trimester 1 of 2025 Mr Haslam said to Student A "you look cute" and touched, or reached down to touch, Student A's stockings.

• [32] Accordingly, I find that allegation 2 is not substantiated on the evidence before the Commission.

• [33] Mr Haslam's conduct in using his index finger to move hair from in front of Student A's eye was a material breach of SAE's Staff-Student Relationships Policy, as well as his obligation under his contract of employment to comply with applicable policies and procedures. Accordingly, SAE had a valid reason to terminate his employment.

• [34] Mr Haslam was notified of the reason for his dismissal during the investigation process and in the letter of termination.

• [35] During the investigation process Mr Haslam was given opportunities to respond, and did in fact respond, to the reason for his dismissal.

Unreasonable refusal to allow a support person (s 387(d))

• [36] Mr Haslam elected not to have a support person with him in the meeting on 1 July 2025.

• [37] On 1 August 2025, Mr Haslam asked if he could have a person attend a meeting as his support person. Mr Funnell agreed on behalf of SAE. At the time of the meeting (4 August 2025), Mr Haslam said that he could not find a support person to attend the meeting, but he did not object to the meeting proceeding without a support person.

• [38] Having regard to all the circumstances, I am satisfied that there was not any unreasonable refusal by SAE to allow Mr Haslam to have a support person present to assist in any discussions relating to his dismissal.

Warnings of unsatisfactory performance (s 387(e))

• [39] Mr Haslam was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

• [40] SAE is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of SAE's enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Haslam's dismissal.

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

• [42] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:[26]

"[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" for the dismissal": Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee's disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a "valid reason" proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as "substantive fairness" from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason".

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] FCA 209; (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

"Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer's policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13]."

• [43] I accept SAE's submission that I should have regard to the following matters in assessing whether the termination of Mr Haslam's employment was harsh, unjust or unreasonable:[27]

(a) the legal and ethical framework that applies to SAE in the conduct of its Byron Bay campus, within the context of a tertiary education environment in which its employees engage with younger students to whom SAE owes a duty of care;

(b) SAE is subject to a Navitas policy and practice to be committed to student and staff safety and wellbeing, including in relation to sexual harassment;

(c) Student A was so distraught by Mr Haslam's conduct that she did not wish to return to complete her studies, which SAE says presented an outcome in which Student A and Mr Haslam could not co-exist;

(d) Student A remains a student at SAE's Byron Bay campus;

(e) the essential requirement for SAE to have a high degree of trust and confidence in the incumbent in the role of a lecturer and the actual loss of trust and confidence in Mr Haslam realised by SAE as a result of his misconduct; and

(f) the fact that a five week payment in lieu of notice was made to Mr Haslam and the impact such a payment should have on the argument that the dismissal 'penalty' was disproportionate to the conduct complained of.

• [44] In my assessment, Mr Haslam's dismissal was "harsh" in both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd.[28] That is, the dismissal was "harsh in its consequences for the personal and economic situation of the employee" and "because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." I have reached that conclusion by having regard to the facts and circumstances set out above, together with the other "relevant matters" discussed above and below.

• [45] The first relevant matter is the length and quality of Mr Haslam's employment record with SAE. Mr Haslam had about 6 years' service with SAE prior to his dismissal. He had an exemplary employment record throughout that time. Mr Funnell, the Campus Manager at the Byron Bay campus where Mr Haslam worked for SAE, gave evidence, which I accept, that Mr Haslam was a very good employee, and was very well respected by staff and students. In all the circumstances, the length and quality of Mr Haslam's employment record with SAE weighs in favour of his argument that his dismissal was harsh.

• [46] The second relevant matter is the gravity of Mr Haslam's misconduct on 24 June 2025. Mr Haslam should not have touched Student A's hair. I have found that his conduct in doing so was unreasonable and unwelcome, and could reasonably be expected to make Student A, or any other student, feel offended or intimidated. As a result, he breached his obligation under SAE's Staff-Student Relationships Policy to ensure that all interactions with students must be professional and appropriate, as well as his contractual obligation to comply with applicable policies and procedures. However, when considering whether Mr Haslam's dismissal was disproportionate to the gravity of his misconduct, it is relevant to have regard to the following factors which bear on the seriousness of the matter and establish to my satisfaction that Mr Haslam's conduct did not constitute serious misconduct:

• Mr Haslam's conduct in touching Student A's hair was a one-off, unplanned act that was not in any way premeditated or intended to offend or upset Student A;

• the physical contact was not of a sexual nature;

• while I have found that Mr Haslam should reasonably have expected that Student A might have been offended or intimidated by his conduct, Mr Haslam was not aware of the nature of Student A's disability; he was only aware that she had a disability. In the circumstances, I do not consider that Mr Haslam could reasonably have anticipated that Student A would have reacted as strongly as she did to his contact, including by cutting off her fringe where Mr Haslam had touched her hair; and

• Mr Haslam showed genuine, deep remorse as soon as he found out that Student A was upset by his conduct in touching her hair.

• [47] The third relevant matter is that the personal and economic consequences for Mr Haslam of the dismissal have been significant. Mr Haslam lives in the Byron Shire in the Northern Rivers region of New South Wales with his wife and his 19 year old daughter. Mr Haslam has not been able to obtain alternative employment since his dismissal by SAE. Within Mr Haslam's local area, TAFE is the only educational institution where he could teach. Mr Haslam applied for a job with TAFE after his dismissal from SAE. He disclosed the circumstances of his dismissal from SAE and was told that TAFE would wait until the outcome of Mr Haslam's unfair dismissal case before deciding whether to offer him employment. If Mr Haslam is not reinstated and is not successful in obtaining employment at TAFE, his wife will need to resign from her employment and the family will need to relocate to a different area. This would be extremely disruptive for Mr Haslam's family and would cause a significant amount of financial and personal strain for each member of his family. Coupled with this is the personal devastation Mr Haslam feels about what has happened. The dismissal has adversely impacted Mr Haslam's mental health.

• [48] Mr Haslam contends two further grounds why his dismissal was unreasonable and unjust. First, he submits that SAE's investigation and decision was not unbiased and impartial, which contravened the applicable enterprise agreement. Secondly, he submits that Student A had vulnerabilities of which SAE ought to have made him aware, as well as guidance on how to teach her taking these into account.

• [49] As to the first of these two arguments, the SAE Institute Enterprise Agreement 2025 applied to Mr Haslam in relation to his employment with SAE. Clause 35 of the Enterprise Agreement provides:

35.1 The purpose of this Clause 35 is to provide the procedure for managing an Employee's unsatisfactory performance or conduct when they have not met expectations.

35.2 Procedural fairness and natural justice will apply throughout this procedure. Those involved in any disciplinary action have a duty to act without favouritism, bias or conflict of interest and must act fairly and impartially.

35.3 Employees may be assisted by a representative (including a Union) and/or support person at any stage throughout these procedures.

35.4 These procedures do not apply to action in relation to unsatisfactory performance during a probation period, or to termination of employment under the probationary procedures.

35.5 Any disciplinary action taken in respect of an Employee shall be recorded on the Employee's personnel file. If there is no recurrence of the performance issue within 18 months, the matter will not be used in any future disciplinary case against the Employee.

35.6 Disciplinary action may take the form of written warnings, loss of an incrementor any other reasonable administrative action deemed necessary in the circumstances depending on the seriousness of the issue. A decision to terminate the employment of an Employee (in the case of underperformance, repeated misconduct or serious misconduct) may only occur after SAE Institute has followed the procedure in this Clause and taken into consideration any factors known to SAE Institute (internal or external to SAE Institute) that may reasonably mitigate a decision to dismiss the Employee.

35.7 Where SAE Institute has concerns regarding an Employee's performance, the manager shall notify the Employee of the concern/s and reason/s for it as soon as practicable to do so, and the Employee shall be provided with an opportunity to respond to any such concern/s, within a reasonable timeframe. The matter will be initially dealt with by informal counselling of the Employee as the first option.

35.8 Where informal counselling has not led to sufficient improvement in performance within a reasonable timeframe, SAE Institute will advise the Employee, in writing, of the aspects of performance that are unsatisfactory and will propose a reasonable timeframe for formally monitoring the progress required of the Employee. SAE Institute and the Employee will meet to discuss and amend the performance plan as necessary before it is adopted. File notes will be kept throughout the monitoring period and will be available to the Employee.

35.9 Where disciplinary action is proposed in relation to an Employee's performance due to failure to adequately complete the requirements of the performance plan, SAE Institute shall provide the Employee notification in writing as soon as practicable. This notification will advise that disciplinary action may result, as well as identifying the nature of the concern/s in sufficient detail to enable the Employee to understand them. Before any disciplinary action is taken, the Employee will be provided with an opportunity to properly consider and respond to the concern/s raised within a reasonable time frame. SAE Institute will consider any mitigating factors that are raised by the Employee before determining whether to take disciplinary action.

35.10 Where an Employee is accused of misconduct and/or serious misconduct the employer will put the allegations to the Employee in writing, in sufficient detail to enable the Employee to understand them.

35.11 Before any disciplinary action is taken, the Employee shall be provided with an opportunity to properly consider and respond to the concern/s raised within a reasonable timeframe. The employer will consider any mitigating factors that are raised by the Employee before determining whether or not to take disciplinary action.

35.12 An Employee may be suspended from work with pay, pending an investigation into an allegation of serious misconduct or where it is reasonably required for the integrity of the investigation.

35.13 Where there is an established case of serious misconduct warranting instant dismissal, an Employee's services may be terminated without notice in accordance with the requirements of the Act."

• [50] Mr Haslam submits that clause 35 of the Enterprise Agreement requires:

(a) procedural fairness and natural justice to apply throughout the disciplinary process;

(b) those involved in any disciplinary action have a duty to act without favouritism, bias or conflict of interest and must act fairly and impartially; and

(c) SAE must consider any factors known to it that may reasonably mitigate a decision to dismiss the employee before dismissing them.

• [51] Mr Haslam contends that SAE did not act in accordance with these obligations, with the result that his dismissal was unreasonable and unjust. It is submitted that this is evident from the following timeline of the investigation:

(a) On 10 July 2025, the investigator concluded her investigation. The investigator partially substantiated the first allegation (being those elements the applicant admitted) and did not substantiate any of the other allegations. The investigator recommended a written warning.

(b) On 15 July 2025, the decision maker, Mr Evans, said, before any decisions were made, the complainant and her family should be advised of Mr Haslam's response so she could respond.

(c) On 16 July 2025, Mr Evans emailed the investigator saying, "I suppose we should also let Nigel know about this next step and let him know we are not yet ready to finalise our findings". The same day, Mr Funnell wrote to the complainant and her family saying, "I have now received a report related to your complaint and I would like to share a summary of that with you before we proceed any further."

(d) On 17 July 2025, Mr Funnell met with the complainant and her family.

(e) On Monday, 21 July 2025, Mr Funnell wrote to the complainant and her family asking if she would like to expand on the outcome she was seeking by way of the complaint. He asked whether she would like a mediated apology, for Mr Haslam to undertake training or other appropriate measures to be put in place.

(f) The complainant's mother responded shortly thereafter to Mr Evans saying Student A "doesn't want to have anything to do with Nigel. She doesn't want to have him as a lecturer on campus. She doesn't want an apology or anything to do with him. Are you saying that he is being allowed to continue to lecture?...We need to know the outcome. This is [Student A's] future here. It's really important."

(g) Two days later, on 23 July 2025, the investigator submitted an "updated outcome recommendation for your consideration as a decision maker" to Mr Evans. Mr Evans responded saying:

"I think the report still needs some work and I'm keen for Stef's input.

The report needs additional narrative around how Nigel's initial responses to the first two allegations as well as our other investigations were put back to [Student A], and how [Student A] doubled-down on some of her recollections with more detail.

In terms of the recommendation, we need to also recognise and document [Student A's] position that she is not willing to be taught by Nigel under any circumstances, nor interact with - or even see - him on campus in any way. If it wasn't for this, and if there were alternative measures to avoid [Student A] being taught by Nigel, then a milder disciplinary action might be appropriate.

This is a serious matter with grave consequences for Nigel, so let's make sure our report is watertight and sets out a comprehensive basis for the recommendation."

(h) Then, on 31 July 2025, the investigator submitted a third investigation report. That report relevantly substantiated the second allegation and recommended Mr Haslam's employment be terminated.

• [52] This sequence demonstrates, so Mr Haslam submits, that the investigation and the decision was not impartial or unbiased. It also demonstrates the decision to dismiss Mr Haslam occurred on or before 23 July 2025. Mr Haslam submits that this is evident because the decision maker was telling the investigator that the report needed to provide a comprehensive basis for the recommendation. In other words, it is contended that Mr Evans was reverse engineering the outcome he was seeking, which was to recommend termination of employment.

• [53] Mr Haslam submits that the decision and investigation were not impartial and unbiased for three reasons. First, the findings and recommendations changed because of pressure that was applied to Mr Evans by Student A's mother. That is what led to the investigator redrafting the investigation report, changing her findings and recommending termination where she had previously recommended a warning. Secondly, the decision maker's involvement and direction as to the findings and recommendation in the report show that he was not acting impartially. Thirdly, the evidence reveals a bias in Student A's favour. This is most clear from Mr Evans' statement that "we are taking a victim-centric approach" in his justification for reopening the investigation and changing the findings and recommendation. It is also evident from the statement that if it were not for Student A saying she did not want to be taught by Mr Haslam or see him, then a less severe penalty would be imposed. Mr Haslam submits that, putting to one side that Student A never said that (her mother did in an email and SAE never sought to verify it), it demonstrates a bias in favour of the complainant and her mother.

• [54] SAE submits that Mr Evans made the decision to dismiss Mr Haslam from his employment. In cross examination, Mr Evans gave evidence he was aware Student A was neuro-diverse but disregarded that attribute in coming to his decision. There is no criticism to be made for this. To have taken it into account would have mis-characterised the "reasonable person" test in s 28A of the Sex Discrimination Act 1984, and to have applied some different standard to Mr Haslam's misconduct in relation to SAE's policies than it would with another student who did not have that same attribute. The cross examination of Mr Evans discloses that any other factors that may reasonably have mitigated against the dismissal decision were taken in consideration, as were factors that mitigated in favour of the dismissal decision.

• [55] SAE further submits that Mr Haslam acknowledged in cross examination that the two allegations relied on by SAE were put to him in writing (on 30 June 2025), in interview (on 1 July 2025) where he indicated he was okay to proceed and respond to those allegations. Those allegations were again put to Mr Haslam in interview on 4 August 2025, and again in writing on 5 August 2025. In the circumstances, where Mr Haslam was stood down on pay, SAE submits that Mr Haslam was provided with a reasonable opportunity to consider and respond to those allegations.

• [56] For these reasons, SAE contends that it did not contravene the procedure in clause 35 of the Enterprise Agreement.

• [57] I am satisfied that Mr Evans was the decision maker, but it is clear from the evidence that he was also heavily involved in the findings made by the investigator in her report. So much is clear from the fact that the investigator's first report recommended a written warning, having found that Mr Haslam touched Student A's hair (allegation 1) but he did not tell Student A that she "looked cute" or touch her leg (allegation 2). Mr Evans was not satisfied with this report. Even though the investigator had considered both Student A's and Mr Haslam's account of what happened and made findings in her report, Mr Evans instructed the investigator to go back to Student A and seek more information, including responding to Mr Haslam's account of the alleged events. Mr Funnell did meet with Student A and her family again. The only substantive new information obtained from Student A was her contention that Mr Haslam "tugged" at her stockings. Otherwise, Student A effectively repeated ("doubled-down") her version of events. On any objective analysis of all the facts and circumstances, there was no proper or fair basis to change the finding in relation to allegation 2 (telling Student A she was cute and touching her stockings) from unsubstantiated to substantiated. But that is what the investigator did in her final report. I am satisfied on the evidence that the investigator made this change on the basis of strong encouragement from Mr Evans to do so.

• [58] Mr Evans accepted in his evidence that he prioritised Student A's ongoing ability to study at SAE over the employment of Mr Haslam. While it was appropriate for Mr Evans to consider and take into account the impact that Mr Haslam continuing to teach at the Byron Bay campus would have on Student A and her willingness to continue her studies with SAE, Mr Evans was also obliged by clause 35 of the Enterprise Agreement to ensure that he acted fairly and impartially during the disciplinary procedure. This required Mr Evans to consider all the evidence carefully and take into account the impact that a decision to terminate Mr Haslam's employment on the basis of his interactions with Student A would have on Mr Haslam and his future career as a teacher. My assessment of Mr Evans' evidence is that he did not make a proper or fair assessment of either the evidence in relation to allegation 2 or the objective seriousness of Mr Haslam's conduct in relation to allegation 1, and instead placed excessive reliance on Student A's wish to continue studying with SAE at its Byron Bay campus (without Mr Haslam being present) and paid very little attention to Mr Haslam's interest in remaining employed by SAE. One example of this is Mr Evans' email to the investigator on 23 July 2025, where he stated, "if there were alternative measures to avoid [Student A] being taught by Nigel, then a milder disciplinary action might be appropriate". This led to a change in the investigator's finding of unsubstantiated to substantiated for allegation 2 and a consequential change in the recommendation from written warning to termination of Mr Haslam's employment. Having regard to all the circumstances, I am satisfied that Mr Evans did not act fairly or impartially in making his decision to terminate Mr Haslam's employment. This was inconsistent with SAE's obligations under clause 35 of the Enterprise Agreement.

• [59] I do not accept Mr Haslam's contention that SAE breached its obligations under clause 35 of the Enterprise Agreement by making its decision before it gave Mr Haslam an opportunity to respond. Although Mr Evans had made a preliminary decision on about 24 July 2025 to terminate Mr Haslam's employment, this was subject to any information Mr Haslam might provide during the show cause process.

• [60] The argument concerning Student A's vulnerabilities can be dealt with briefly. As Ms Osmond explained, and I have accepted, many young women would have been offended by Mr Haslam touching their hair, whether or not they had any mental health conditions. It follows that Mr Haslam would have complied with his obligations under SAE's Staff-Student Relationships Policy if he had not touched Student A. It was not Student A's vulnerabilities that caused the problem. It was Mr Haslam's failure to comply with his obligations. I reject this argument.

• [61] Nor do I accept Mr Haslam's argument that SAE failed to comply with its obligation under the Enterprise Agreement to consider Student A's medical condition, being a factor known to SAE that may reasonably have mitigated its decision to terminate his employment. In light of my finding that many young women would have been offended by Mr Haslam touching their hair, whether or not they had any mental health conditions, I do not consider that SAE failed to have regard to a factor that may have reasonably mitigated its decision to dismiss.

Conclusion as to harsh, unjust or unreasonable dismissal

• [62] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that SAE's dismissal of Mr Haslam was unfair because:

(a) the dismissal was harsh in its consequences for the personal and economic situation of Mr Haslam and because it is disproportionate to the gravity of Mr Haslam's misconduct; and

(b) the dismissal was unjust and unreasonable because SAE did not comply with its obligation to act fairly and impartially in relation to its disciplinary procedure.

• [63] Even if I had found that SAE had not contravened clause 35 of the Enterprise Agreement, I would still have concluded that Mr Haslam's dismissal was harsh and therefore unfair.

• [64] Having found that Mr Haslam was protected from unfair dismissal, and that his dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. Mr Haslam seeks the remedy of reinstatement. As a result, I need to consider whether reinstatement of Mr Haslam would be appropriate or inappropriate.

• [65] SAE submits that an order for reinstatement would not be appropriate in circumstances where Student A is currently enrolled in a course at SAE's Byron Bay campus and has also enrolled in an Associate Degree course which is due to commence in trimester 1 of 2026 at the Byron Bay campus. If Mr Haslam were employed by SAE, he would ordinarily teach in the course in which Student A is enrolled in 2026.

• [66] Student A included the following relevant statements in her witness statement in relation to the potential reinstatement of Mr Haslam:[29]

(a) Initially after the incident on 24 June 2025, Student A did not want to return to campus and continue her studies while Mr Haslam was teaching. She only felt able to do so after Mr Funnell told her that there was a replacement lecturer.

(b) Student A would not feel safe to be at the Byron Bay campus if Mr Haslam were to return to teach there. This is because Student A believes she has had two interactions with Mr Haslam which involved him touching her without her consent. Student A was really concerned that if she reported it, it would impact her grades. At the time, Student A felt that if Mr Haslam had been allowed back on campus, she would have probably dropped out and moved to the Brisbane campus.

(c) Student A hopes that Mr Haslam does not come back to the Byron Bay campus of SAE. If he does, Student A will have to figure out a plan on how she can still complete an Associate Degree in her chosen course somewhere other than the SAE Byron Bay campus.

• [67] Submissions were made on behalf of Mr Haslam that there is not enough evidence before the Commission to warrant a finding that Student A actually feels the way set out in her witness statement, as summarised in the previous paragraph. I do not accept this submission. Not only did Student A address these matters in her witness statement, Ms Osmond gave evidence that Student A had discussed her concerns about returning to the Byron Bay campus if Mr Haslam were there. Further, Mr Funnell gave evidence that Student A's mother had discussed similar concerns with him, and Student A was present (and did not voice any objection) when her mother expressed concerns to SAE about Mr Haslam returning to the Byron Bay campus.

• [68] In the alternative, Mr Haslam submits that Student A's concerns about Mr Haslam returning to the Byron Bay campus could be addressed by SAE, including by taking measures such as Mr Haslam not teaching a course being taken by Student A.

• [69] It is relevant when assessing the appropriateness of an order for reinstatement to consider whether Mr Haslam has demonstrated sufficient understanding that his behaviour during the incident on 24 June 2025 was inappropriate and unacceptable such as to give rise to a sufficient level of confidence that conduct of that type will not recur if he is reinstated and the employment relationship will be viable and productive.[30]

• [70] Having seen and heard Mr Haslam give evidence, I am persuaded that he understands that his conduct on 24 June 2025 was inappropriate, unacceptable and not to be repeated. During the investigation process Mr Haslam showed genuine contrition and asked to be able to apologise to Student A.

• [71] Mr Haslam's excellent record of service with SAE also supports my satisfaction that there is a sufficient level of trust and confidence to enable the employment relationship between SAE and Mr Haslam to be viable and productive. There is no suggestion that in the period of about six years during which Mr Haslam worked for SAE that he had anything other than an excellent relationship with staff and students at the Byron Bay campus.

• [72] Mr Funnell gave evidence, which I accept, that he would not have any concerns about Mr Haslam coming back on staff to teach at the Byron Bay campus of SAE, other than the concerns raised by Student A. Ms Osmond also gave evidence, which I accept, that she would not have any concerns about Mr Haslam's capacity to teach students in an appropriate way if he were reinstated.

• [73] Having regard to all the circumstances, I am satisfied that it would be appropriate to reinstate Mr Haslam to his former position. I am satisfied that sensible and appropriate measures could be put in place to ensure that Student A feels safe at the Byron Bay campus and Mr Haslam is able to continue teaching at that campus. Those measures are a matter for SAE to determine, but they are likely to include things such as arranging for another teacher to teach the subjects being taken by Student A (as SAE did when Mr Haslam was suspended during the investigation), keeping Mr Haslam informed of the times at which Student A will be in particular classrooms on campus, instructing Mr Haslam not to have any communications with Student A and not to approach her, and encouraging Student A to continue to meet with Ms Osmond on a regular basis and seek her support about her concerns regarding Mr Haslam returning to campus. Mr Haslam has expressed a willingness to work with SAE to enable his reinstatement to take place. I am confident that he would do so. SAE did not adduce any persuasive evidence to suggest that it would not be practical or appropriate for measures to be put in place to permit Student A to continue studying at the Byron Bay campus at the same time as Mr Haslam is employed at that campus.

• [74] For the reasons given, my evaluative assessment is that the appropriate remedy in this case is an order under s 391 of the Act reinstating Mr Haslam to the position in which was employed immediately before the dismissal. I also consider it appropriate to make an order under s 391(2)(a) of the Act to maintain the continuity of Mr Haslam's employment.

• [75] As to an order for lost pay under s 391(3) of the Act, Mr Haslam has been out of work since his dismissal on 27 August 2025. Even having regard to the five week payment in lieu of notice made to Mr Haslam on his dismissal, he has foregone a significant amount of earnings since his dismissal. In light of Mr Haslam's misconduct, I consider it appropriate that he bear a degree of responsibility for the financial consequences of his dismissal. SAE submits that any order for lost pay should (a) be reduced by the payment for notice already made by SAE (5 weeks) and (b) be further discounted by not less than 25% and more appropriately 50% of the remaining 10 week period on account of Mr Haslam's misconduct, leaving an order for 5 - 7.5 weeks lost pay. Mr Haslam submits that an appropriate discount is in the range of 10-25%.

• [76] Having regard to all the circumstances, I consider it appropriate to make an order under s 391(3) of the Act for SAE to pay Mr Haslam an amount for the remuneration lost by him because of his dismissal in the period from 27 October 2025 until the date of his reinstatement. The absence of an order for lost pay in respect of the period from 27 August 2025 to 26 October 2025 (part of which was covered by the five week payment in lieu of notice) will reinforce to Mr Haslam that his conduct in touching Student A's hair was inappropriate and must not happen again.

• [77] A separate order PR795006 will be issued giving effect to this decision.

[1] Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [42]

[2] Emery v City of Sterling [2019] FWCFB 4015 at [18]

[4] The Queen v Nona [2015] ACTSC 175 at [143]- [144]

[5] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

[6] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373

[8] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685

[10] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[13] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

[14] [2019] FCA 451

[26] [2013] FWCFB 6191

[29] Hearing Book at p 382[22]-[23]

[30] Gurdil v The Star Pty Ltd [2013] FWC 6780 at [101]

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