Pintley v Secretary, NSW Department of Education

Background

1. In 2016, CPS had eight mainstream classes and three support unit classes in the ASU. While the number of students at any time would vary, there would typically be up to 21 students within the ASU at any one time. The ASU is a regional resource which takes in students from across the Illawarra area. The students that attend the unit have emotional disturbances, intellectual disabilities, conduct issues, autism and aggressive and/or violent behaviours. The aim of the unit is to manage the children's behaviour and to teach and model the skills required to enable them to return to their home school or to transition to high school.
2. The appellant began working at CPS as Assistant Principal in week 7 of term 2, 2015, working in the ASU. The Principal at that time was David Lamb. Trent Whittaker was an Assistant Principal. Jodi Thompson and Philippa Hyde were classroom teachers at the ASU. Patrick Mathews was appointed as a permanent casual teacher at the ASU in May 2016 and was assigned a temporary classroom teacher position from July 2016 to November 2017 when he took over Ms Hyde's class after she left the school. Tammy Reh was employed as a School Learning Support Officer ("SLSO") at the ASU.
3. According to the appellant, when she began at the ASU, the unit was dysfunctional. The members of staff were not working as a team. The appellant's relationships with some of the staff, in particular Ms Thompson and Ms Hyde, became strained.
4. On or around 4 April 2015, Mr Lamb was promoted to the position of Director of Public Schools NSW for the Griffith Network. Mr Whittaker became the Acting Principal at CPS.
5. Towards the end of June 2016, Debbie Lowe, Director of Public Schools for Wollongong North, contacted Kristina Goldthorp, Network Specialists Facilitator, Wollongong-Illawarra, and asked her to support Mr Whittaker in relation to the ASU which, according to Ms Lowe, was "chaotic and dysfunctional". Ms Goldthorp attended the unit on a number of occasions and held meetings with the staff with the aim of putting in place a framework for behaviour management.
6. On 5 August 2016, the appellant made a formal complaint to Ms Goldthorp about a lack of support from the Acting Principal, Mr Whittaker. This complaint was passed on to Ms Lowe. On 1 February 2017, three months after she had last worked at the school, the appellant received a written response to her complaint from Karen Brown who had been appointed Principal of CPS on 8 August 2016.
7. Ms Brown was the appellant's Principal from that time until the appellant commenced sick leave on Monday, 5 September 2016 and finally left the school on 27 October 2016. During the period while the appellant was off work on sick leave, CPS engaged Ian Luscombe, a private education consultant, to assist in putting in place correct learning and behavioural strategies and procedures for the ASU.
8. The appellant returned to work on Wednesday, 19 October 2016, but did not attend for work on Friday 21 October. She returned to her teacher duties on Monday 24 October 2016 but went off sick again on the morning of Thursday, 27 October and did not return to CPS after that date.
9. Following the appellant's departure from the school, Ms Brown began to receive reports from various teachers about the appellant's behaviour and various issues. Ms Brown asked the staff who reported these matters to document any concerns they had and a number of them did. On 15 December 2016, Ms Brown prepared her own report outlining the concerns she had with the appellant and forwarded this report to EPAC. From this and other reports, the misconduct allegations against the appellant were compiled (at [2]).
10. An investigation into these allegations was conducted by Ms Gallardo and Jane Collins, another EPAC investigator. This investigation involved interviews with a number of staff and former staff from CPS and the Department, as well as a number of students from the school who were described in the report as "Alleged victim, Student".
11. The investigation report was finalised on 17 October 2018. Not all of the allegations were sustained. For example, the first allegation, Allegation 1(a)(i), to the effect that the appellant had developed a personal as opposed to a professional relationship with a Year 4 student, E, by engaging in overly personal contact with E in that she visited E outside of school hours on Mother's Day 2016, was not sustained.
12. The evidence, which was accepted by the investigators, disclosed that E had painted a picture at school for his mother for Mothers' Day, 2016. He asked the appellant if she could drop it off at his house because it was too big for E to carry on the bus. The appellant sought and was granted permission to do this by E's mother and the Acting Principal, Mr Whittaker. According to the appellant, when she dropped the painting off at E's house she did not go inside and did not see E. The appellant gave the painting to E's mother and left. This was confirmed with the investigators in a telephone interview with E's mother.
13. The report recommended as follows:

• Allegations 1(a)(i), 1(b)(i), 1(c)(i)-(ii), 1(d)(i)-(v), 2, 3(d) were not sustained.
• Allegations 1(a)(ii), 1(a)(iii), 1(b)(ii), 1(c)(iii)-(vi), 1(d)(vi), 3(a)-(c), 4, 5(a)-(c) were sustained.
• The sustained conduct 1(a)(iii), 1(b)(ii), 1(c)(iii)-(vi), 1(d)(vi), 4, 5(a)-(c) constituted misconduct.

1. Following receipt of the investigation report by Ms Thorpe and her consideration of the appellant's response, Ms Thorpe did not accept all of the report's recommendations. Contrary to the report's recommendations, Ms Thorpe determined that Allegations 1(a)(ii) and 5(a)-(c) were not sustained. She agreed that Allegations 1(a)(iii), 1(b)(ii), 1(c)(iii)-(vi), 1(d)(vi), 3(a)-(c) and 4 were sustained.

Patrick Mathews

1. Mr Mathews commenced employment with the Department at the end of 2011 as a casual teacher and taught in a variety of schools. He worked with the appellant from May 2016, when he became a permanent casual teacher at the ASU. In July 2016 he was assigned a temporary classroom teacher position and continued to work with the appellant through to October 2016 when she left the school.
2. Mr Mathews gave evidence that, during this time, the ASU did not have any behavioural management strategies in place. The students were very poorly behaved and were not held accountable for their actions. They would often spit and swear at staff.
3. Mr Mathews claimed that the appellant spoke to staff in an aggressive manner and lacked effective communication skills.
4. Mr Mathews gave evidence that he saw the appellant hug students on several occasions, including students N and L. He also claimed to have witnessed the conduct by student T which formed the basis of Allegation 3(d), which was not sustained, and to have been the target of the conduct by student A which formed the basis of Allegations 3(b) and (c), which were sustained.
5. In relation to Allegation 4, Mr Mathews claimed that he received a telephone call from the appellant one evening asking him to work as a casual the next day to cover the appellant's class. He agreed. When he arrived at the ASU, he claimed that the appellant asked him to help her son, who was present in the appellant's classroom on that day, with a school assignment, which Mr Mathews did throughout the day.
6. On 15 December 2016, Mr Mathews prepared a report regarding his concerns about the appellant and provided a copy of this report to Ms Brown.
7. On 23 June 2017, Mr Mathews was interviewed by Ms Gallardo and Georgina Scott of EPAC. During this interview, Mr Mathews claimed that, on the day when the appellant's son was at the ASU and Mr Mathews helped him with his assignment, he was not attending his school that day "because he had fallen off the treadmill or something". However, during the cross-examination of Mr Mathews in these proceedings, the following exchange occurred: Q. Who was on the class then, of that day? A. There was me, because as which you've already, I guess, distinguished or identified for everyone, that Joanne was going to be late; she arrived at school with her son. I was on the class alongside Joanne. I was meant to be on Philippa Hyde's class, but then Joanne kept me up with her, and that's where I stayed, helping her son do the assignment. I still remember the day, her son had got suspended from his school, because he had smashed a window or something. I remember Joanne telling me that. That's exactly what Joanne had said. And I remember that. Q. That's-- A. No, I'm not going to argue. I remember. I recall that. Q. Okay, that's not the case at all, and you'll find that there are no records of suspension, and it was, he fell off a treadmill. A. No, he had smashed a window. I remember, that's what she was saying, he had smashed a window.
8. Also, during the interview on 23 June 2017, Mr Mathews was highly critical of the appellant's personality, her teaching practices and the manner in which she interacted with teachers and students at the ASU. For example, Mr Mathews stated: Well they (the students) weren't engaged in any learning whatsoever. Like as I said, it was a free for all. Honestly, it was at the point where just kids were doing whatever they wanted to do. There was no structure, there was no routine, there was no learning occurring… No communication between staff, or students. And later: Gallardo: You mentioned that another staff member was spoken to in an inappropriate manner. Mathews: Mm-hm. Gallardo: When would that happen? Mathews: Well it was most days, to be honest. Like depends like who - it happened to everyone at one point or another, it really was every single day. So whilst Philippa was there, she was the person, in all honesty, from my observation, she copped it a lot and I think it was due to the fact that - like Joanne would just make these outrageous accusations, like people were bullying kids or they weren't there for the right reason and this and that. In saying that, she would just start screaming. Like she would literally, like the tonality in her voice, it was very harsh. She would say inappropriate things. Like Philippa for example, she - this one day, she was just like start screaming and it was literally over nothing. It ended up and Philippa wasn't arguing, in fact Philippa was asking why, like what the actual problem was. Joanne just couldn't answer it because it wasn't a problem and she just continued to argue and scream and shout. This, to be honest, I happen to be very stable myself and there was one occasion where she had done that to me as well. Scott: So what was the impact on the staff? Mathews: Well to be honest, most days people - well people didn't want to be at work, people didn't want to be here, people - to be honest, it wasn't worth the money. Scott: Yeah, okay. Mathews: Like no one comes to work to be, l guess, mentally drained from someone that's just making outrageous accusations about nothing. So this one day, like an example, this one day, she - a kid - I go into on one of my things that I did write, so a kid - so I was reading - she had come up with this - it was like a pro forma for dealing with - she just wanted to know what kid was outside the classroom and the reason. When I wrote the reason, so she - a kid - and it was T - he - he had left her classroom to come down to my classroom and she followed him and then she disrupted my whole class. She then did this magic trick thing and the kid ended up outside, on the roof, screaming, like all these outrageous escalated behaviours and were caused by Joanne. Then she kind of, later on in the afternoon, she'd come up and she approached me and she said, if you weren't ready - this on the - this bit of paper - I'm trying to find exactly what I did say, because I did write it down here. Sorry, I'm just trying to find it. Gallardo: That's okay. Scott: Take your time. Mathews: Oh yeah, here it is. [Pause] Well the reason l wrote, written on the board, I'd put some result of a card trick, because that was the reason why the behaviour had escalated because Joanne had come down for no reason, she'd left her class unattended, she had come down to my class, to come get a kid which she had later realised had left her class without her knowing and so she's in my classroom and she just didn't - so I'm telling him, probably need to come back to class. She was in there, she put this big commotion about this magic trick and it involves cards, then kids in my class then became disrupted. Then - so then the statement l have written results of the card trick and I didn't mean that in any - like that's what she wanted, she wanted to know what the reason was. Then later on in the afternoon, she wanted to know who wrote that and I said, I wrote that. I was just like, like I didn't have anything to hide and she literally - her demeanour went from being like she was always angry, but she wasn't happy with that or even being put there and literally was screaming at me. There's no other way to put it. She was a stern, aggressive tone. Scott: What was she saying? Mathews: She came - going back that I'm a bully, there was one comment that she actually said she didn't actually know why she had given me a job there as a temporary person. Scott: Okay. Mathews: I actually turned around to her at that point in time and I said to her, I said, you know what, if you want to speak to me, you can speak to me in a professional manner, like when we're talking like staff members, because at the end of the day, I'm not going to be spoken to like that off anyone. Scott: How did that go down? How did she respond to that? Mathews: Well the funny thing is, she continued to scream and do you know what, I actually didn't - I kind of was going to leave it at that and she kept just going and going. Then I'll be honest, I didn't get aggressive, I looked like - l don't understand what the - like can you just elaborate and tell me what the problem is, Joanne. She just continued - and then she started screaming crying. Then she went and she was telling me to leave her, even though she's the one that approached me. Then the next minute, like I went home and the next thing I'm getting messages or I'm pretty sure there and then wanting to meet up for coffee. Like it was like paranoia, like l don't even know the right word, it was just totally outrageous behaviour for someone who's meant to be a professional. Scott: Yes and she was the assistant principal at the time, wasn't she? Mathews: Yeah. Scott: Your supervisor in essence. Mathews: Yeah. Scott: Okay.
9. Mr Mathews also claimed that the appellant invited him and other male staff to her house for dinner but he never heard her say that to another female staff member.
10. During his cross-examination, Mr Mathews was shown a number of screen shots of text message exchanges between him and the appellant including: Monday 13 June 2016 Mathews to appellant 5.45pm Hello dear friend, I am working on that application and yes I did receive it! Haha… I will need u to check it for me tomorrow or the next day if I am able to do so when it is complete. Also, I forgot to ask if there are any arvos or mornings that I need to be at staff meetings, whilst I am at cono? Just something that popped into my head this evening!!! Haha… Appellant to Mathews 7.03pm Oops I should of told you staff meetings Tuesdays afternoon but don't stress if you cant tomorrow. Of course Ill check it. Stage meetings wednesday morning. You will have no class on Wednesday. Parr of the day is rff and we can chat about the rest of the day. See you tomorrow Thursday 7 July 2016 (during school holidays) Mathews to appellant 1.51pm Mrs P, guess who I am bonding with this holidays??? Haha Thursday 14 July 2016 (during school holidays) Mathews to appellant 6.05pm Hey dear friend, I feel like I am being a pain in ur bum! Haha… What day would u like me to be at school next week? Ps. I hope ur holidays have been good! Friday 5 August 2016 Mathews to appellant 8.02pm Hey dear friend, I hope ur arvo has improved and ur knee is not kinked anymore! Also, tell Roxy that I hope all is good! See u guys on Monday! Thanks for lovely week! Friday 12 August 2016 Mathews to appellant 7.19pm Here's my text that I forgot to send last night! Haha… U tops! Appellant to Mathews 7.25pm Haha enjoy your weekend X Wednesday 17 August 2016 Mathews to appellant 3.35pm Jo do u wanna meet and I'll shout u a coffee??? If not, all is good! I hope all is ok and u feel better tomorrow!
11. When asked about these text messages in light of what he had told the EPAC investigators about the appellant, Mr Mathews' responses were to the effect that he was a "nice person" and cared about the way others were treated. He stated: ,,, I was positive and I was very forthcoming and nice to everyone, even people that were rude, they were abusive, they were intrusive into my life. I actually was a positive person. In relation to this, this was me - I'll be honest - trying to bring and establish, I guess, professional relationships amongst staff because Joanne couldn't do it herself.

Ian Luscombe

1. Mr Luscombe is a director and owner of a business called BehaveAbility.
2. Between 1987 and 2014, Mr Luscombe was employed with the Department, initially as a classroom teacher and, ultimately, as a Principal.
3. In or around September 2016, Ms Lowe contacted Mr Luscombe and told him that the ASU was experiencing a lot of violence amongst the students. She indicated that there were no systems or structures in place to deal with the escalating violence and behavioural issues and that staff were highly stressed. Mr Luscombe was asked if he would be willing to assess the management systems and structures in place and recommend any necessary changes.
4. In his witness statement, Mr Luscombe stated that he attended the ASU on 7 September 2016. It became clear to him that there were no behavioural management strategies and systems in place to assist the staff and students. Mr Luscombe attended the ASU for a total of nine days between 7 September 2016 and 8 May 2017. He spent time with the staff creating systems for managing behaviour and creating individual management strategies. He also provided professional learning to the staff regarding behaviour management strategies.
5. On or around 19 October 2016, Mr Luscombe was scheduled to meet with the appellant to discuss the changes that were implemented in the school while she was away on sick leave. He observed a male student run up to the appellant and give her a "big hug" and the appellant embraced him. Mr Luscombe saw the appellant do this on at least two other occasions with two other boys.
6. Mr Luscombe had not met the appellant prior to their meeting on 19 October 2016. He met with her for approximately 30 minutes and discussed the changes that had been made within the ASU.
7. Mr Luscombe took note when he saw the appellant hug students as this indicated to him that there was a possibility that the professional boundaries were being blurred.
8. On 3 August 2017, Mr Luscombe was interviewed by telephone by Ms Gallardo.
9. During his cross-examination, Mr Luscombe was shown a formal letter of complaint dated 14 April 2015 from Yvonne Rowling to Ms Lowe. Ms Rowling worked as an SLSO at the ASU from January to December 2014. The following exchange took place with Mr Luscombe: Q. If, Mr Luscombe, can you read the last paragraph? A. Yeah, oh yeah, "I had worked", that bit? Q. The bit that I've sectioned off for you. Yes? A. "I have worked in special education for 17 years and have enjoyed working in a variety of settings. I have worked with students in schools and units catering for behaviour disorders, emotional disturbances, intellectual/physical disabilities and autism spectrum disorders. I have never encountered such a volatile, dysfunctional environment as I did at Coniston Public School. I feel I need to inform the department of the unprofessional and toxic environment at Auburn Street Unit, part of Coniston Public School." Q. Okay and so would you agree, in your professional opinion, that the observations that Ms Rowling has made of ASU is similar to what you witnessed upon arriving at ASU? A. Yes, it was very - yes, it was very dysfunctional. Q. Okay and can you tell the tribunal the date that Ms Rowling wrote this complaint? A. Yes, sure, 14 April 2015. Q. Okay and are you aware that this was written six weeks prior to Ms Pintley's commencement at Coniston and that the environment Ms Pintley walked into was the same environment that you did? A. No, I wasn't aware of that.

Jodi Thompson

1. Ms Thompson commenced as a casual teacher with the Department in or around 2002 and was appointed as a permanent classroom teacher in 2004. On or about 5 September 2016, Ms Thompson was appointed as Relieving Assistant Principal of CPS overseeing the ASU.
2. Ms Thompson first met the appellant shortly after she was appointed Assistant Principal at the school, working in the ASU.
3. Ms Thompson gave evidence of tension she observed between the appellant and another teacher, Ms Hyde, and between the appellant and Ms Thompson herself. It was claimed that, shortly after the appellant arrived at the ASU, she made a decision to remove the behavioural management protocols and systems that were in place within the ASU that enabled teachers to manage unruly and violent student behaviour.
4. Ms Thompson also claimed that the appellant favoured some children over others which made it increasingly difficult to manage unruly behaviour. She recalled an incident when she asked a student what he was doing and was told by the boy to "fuck off". It was claimed that the appellant called out to Ms Thompson "I told him he could come down here [to her class room]. Leave him alone. Stop telling him what to do". Ms Thompson felt that her authority as a teacher had been undermined by the appellant.
5. It was also claimed that the appellant gave gifts to certain students and placed chocolates into the school bags of some of the children. Ms Thompson stated that there were numerous occasions when a student would tell her that the appellant had purchased them a gift. These included an occasion when a student by the name of E told her that the appellant had given him a pair of shoes. Ms Thompson discussed these matters with Ms Hyde as they were both concerned that the giving of presents by the appellant to a select few students led those students to feel they were favoured by her in circumstances where other students did not receive the same treatment. When these concerns were raised with her, the appellant dismissed them.
6. Ms Thompson also claimed that she observed on a number of occasions the appellant "being very touchy feely with students… She would often put her arm around the student's shoulder in a side hug". On one occasion, the appellant was observed by Ms Thompson to grab a student and pull him into her chest and give him "an embracing hug". Ms Thompson found this very confronting and inappropriate. Similarly, the appellant "would often make comments such as 'Gosh I love him' when standing within earshot of a student she was speaking about".
7. Ms Thompson also gave evidence about Mr Luscombe's role in term 3 of 2016 developing procedures which the teachers could use to assist students in their behaviour management. Ms Thompson's witness statement then continued as follows: 23. One of the behaviour management strategies that we put in place was a reminder system. If a student received three reminders, it signalled that on the third reminder, they were not ready to learn. The student would then be asked to leave the classroom. The student would be taken to either the third classroom (which was now empty) or out to the school playground. Either I or one of the other learning support teachers would sit with the student and when they were ready to talk, they would come up with a plan and then go back to the classroom and discuss that with the teacher, so that they could re-enter the learning environment and reintegrate in the class. 24. Joanne was on a period of sick leave while Ian was working with the ASU to develop these strategies. I recall that following Joanne's return from sick leave, she spent time with Ian, who took her through the procedures and explained the changes. 25. A few days after Joanne's return, Karen Brown was away at a conference. Nicole Flynn was relieving Principal. It was a Thursday and the students had been out in the playground doing fitness. T was being very abusive towards me. This is despite the fact that over the preceding weeks, T's behaviour had turned a corner. On this morning, he called me a "slut" and "cunt". He stuck his middle finger up at me. I issued T with a warning and asked that he speak appropriately. He refused my request and became more verbally aggressive. I issued him with a reminder and told him to go and get some water, so that he could remove himself from the fitness class to calm down. I am aware that one of the other teachers had also issued T with a warning during that class. 26. As the fitness class finished, the students were moving back inside. T became verbally aggressive again. He received a third reminder. Joanne, who had been outside with me and the students during the fitness class, then took T back into the classroom. 27. When we arrived inside, Nicole was in the ASU. She asked Tammy, one of the support teachers and me whether T had now received three reminders. I recall I was standing in the corridor of the ASU about to take a student down to reading program in the third classroom. I saw that Nicole opened the door to Joanne's classroom. I heard her say to Joanne "I don't know if you realise, T has had a third reminder. He needs to go outside". I had paused at this stage and heard Joanne say "I am teaching". She then slammed door where Nicole was standing. Nicole knocked and opened the door to Joanne's classroom. I heard Joanne say loudly "Oh for Gods' sake" and she slammed the door again. I was standing approximately three metres away with another student. I then proceeded to the reading room. Nicole Flynn then also came into the reading room to discuss what to do next. She received a text message from Joanne quickly after which said words to the effect of 'I can't do this. I'm leaving'. Joanne then left ASU.
8. In her interview with Ms Gallardo and Ms Scott of EPAC on 23 June 2017, Ms Thompson spoke about the incident involving the appellant and the student T, referred to above, and claimed that the appellant had told Ms Thompson to leave T alone.

Nicole Flynn

1. Ms Flynn commenced with the Department as a casual teacher at CPS in 1994. She became a full time temporary teacher at the ASU for one year in 1998. In 1999 she was appointed as a permanent classroom teacher and became a Relieving Assistant Principal for K-2. In October 2016, Ms Flynn began relieving as Principal of the school on occasions when Ms Brown, the school Principal was absent. At the end of 2016, Ms Flynn was appointed as Assistant Principal for K-2 in a permanent position.
2. Ms Flynn gave evidence about the appellant's attendance at executive team meetings where she raised issues and concerns, including complaining about other staff members within the ASU. This resulted in the school requiring two executive team meetings, one for the ASU and one for the mainstream school.
3. However, during her cross-examination, Ms Flynn was shown some photographs of school noticeboards which appeared to demonstrate that separate executive meetings were occurring at the time the appellant was appointed as Assistant Principal at the ASU. The following exchange then occurred: Q. So you were untruthful in the affidavit about needing to change the executive to meetings, after a couple of months. So there's always been two meetings, one for the main school and one for ASU? A. It looks like that. From my memory though, I'm unsure.
4. Ms Flynn also gave evidence as to how her Reading Recovery role would be disrupted by the appellant telephoning her and requesting that she come to the ASU to assist her. She claimed that, on the occasions she entered the appellant's classroom, the room looked chaotic, the furniture was regularly misplaced, resources were in a mess and the children were constantly misbehaving, walking around the room and swearing.
5. Ms Flynn claimed that the student T had told her that the appellant had given him her specific computer password and let him use her password to log onto the internet.
6. Ms Flynn also gave evidence about the work Mr Luscombe had done with respect to behaviour management strategies in the ASU. A range of new strategies was implemented which included issuing students with reminders for inappropriate behaviour and, after the third reminder, the student would be processed. This meant giving the student a "time out" by moving the student outside to calm down, sitting the student down and, when ready to talk, discussing with the student what went wrong and the specific strategies they can adopt to improve their behaviour in the future.
7. In relation to the incident described by Ms Thompson at paragraphs 25-27 of her witness statement (at [46]), Ms Flynn gave the following evidence: 20. On 27 October 2016, Karen Brown was attending an out of school event for the day and I was relieving Principal in her place that day. I recall Karen had asked before leaving that I specifically keep an eye out in the ASU, saying "I need you to be present in the ASU because the staff are so broken and require support." 21. On that morning, I attended at the ASU and was assisting one of the students in the unit with their reading as part of my role as Learning Support teacher/Reading Recovery. I was assessing the student's reading ability to individualise reading programs. The other ASU students were outside participating in a fitness class. I had the classroom door open so that I was able to see and hear the staff and students outside. 22. AII students were returning to the classroom and I was returning the reading student back to their classroom. 23. I then heard Tammy Reh give a third reminder to T, one of the ASU students as he had been at the tap squirting water. He then swore at Tammy and spat at the wall as he walked away. He completely ignored Tammy's instruction and I saw T walk into Joanne's classroom. I checked with Jodi Thompson and Tammy Reh to confirm the incidents. I then approached Joanne's classroom door and we had a conversation with words to the following effect: Me: T, can you please come outside? You have had three reminders. JP: He isn't in here. [I saw T sitting on the floor in Joanne's classroom] Me: T, you need to come outside and be processed. That was your third reminder. JP: He doesn't need to be processed! Now just let me teach! Joanne then shut the door very abruptly. 24. During this brief interlude, Joanne spoke to me in a loud and aggressive manner. I felt intimidated by her tone of voice, her refusal to listen to me or acknowledge my direction towards T and the fact that she had shut the door in my face. My hands began to shake and I took a deep breathe. I moved up the corridor to the room I had previously been working in. 25. I walked back down the corridor. Jodi Thompson had seen the incident occur as she was in the hallway with another student. Jodi and I spoke about the incident and she asked if I was ok. 26. Approximately five minutes later, Joanne sent me a text message saying words to the effect of "I am going home". I replied with words to the effect of "I will come back up." As relieving Principal, I needed to first, make sure the students in Joanne's class were supervised and second, confirm whether Joanne was ok. 27. I walked back to the classroom and opened the door. Joanne and I had the following exchange: (Joanne spoke in an aggressive way to me) JP: You shouldn't have asked T out in front of the others. Me: I'm relieving Principal for the day today and it is my role to ensure procedures are followed through. I'm sorry you feel that way but I am following procedures. T had had three reminders and needed to come outside to be processed before he entered the room. JP: I am the Assistant Principal of the Unit and if you have a problem, you shouldn't have spoken to Jodi about it and should have spoken to me. I cannot teach like this and am going home and won't be back tomorrow either. 28. Joanne then walked up to the staffroom. After approximately five minutes, I went into the staffroom to check in with Joanne. She was in the staff room and I said to her: Me: Joanne do you need anything or a lift home? JP: I don't want anything. I recall Joanne seemed flustered, moving abruptly and agitated. 29. As Assistant Principal, Joanne and I were peers. I have never had a peer speak to me the way Joanne did on 27 October 2016. Further, on that day, I was relieving Principal. I found Joanne's refusal to follow set procedures and her shutting of the door in my face entirely disrespectful and threatening. More importantly, it took place in front of the students and undermined the process that was being put in place in respect of T's behaviour.
8. On 16 December 2016, Ms Flynn prepared a written report in which she detailed her concerns over the appellant's behaviour towards her and what she had seen happening in the unit as she believed it to be inappropriate. The report contained the following: After the new procedures had been put in place in ASU I often saw JP ignoring procedures and not addressing inappropriate behaviour of students. JP was observed allowing students to return or stay in her room after receiving 3 reminders from other staff for inappropriate behaviour.
9. On 23 June 2017, Ms Flynn was interviewed by Ms Gallardo and Ms Scott of EPAC.

Trent Whittaker

1. Mr Whittaker commenced as a casual teacher with the Department in 1999. In or around 2001/2002 he became a permanent casual teacher and in 2004 he transferred to CPS as a classroom teacher. In 2016 he was appointed Assistant Principal of the school and was Acting Principal from April until August of that year when Ms Brown was appointed as Principal.
2. Mr Whittaker gave evidence that, prior to him becoming Acting Principal, his interactions with the appellant were mostly limited to executive meetings. He claimed that, during these meetings, the discussion would be dominated by the appellant and happenings at the ASU. As a result of this, it was decided that the executive should meet twice per week, instead of once per week. The meetings would be on Mondays to discuss mainstream school matters and on Wednesdays to discuss ASU matters.
3. However, during his cross-examination, Mr Whittaker was also shown the photographs of school noticeboards which appeared to demonstrate that separate executive meetings were occurring at the time the appellant was appointed as Assistant Principal at the ASU. The following exchange then occurred: Q. I'm just going to pass you some copies. If you can have a look through and tell me on the noticeboards how many meetings per week were being held? A. Can I clarify if you are talking about executive meetings or including staff meetings? Q. Yes? A. And stage (staff) meetings. Q. Executive meetings, please? A. I can see two executive meetings. Q. Per week? A. Per week. Q. And you confirm that that was the same week that Ms Pintley started in ASU, as per the notice board there? A. (No verbal reply) Q. On week 7? A. I can see 'Welcome Joanne Pintley', correct. Q. Can you confirm that in the weeks following this that there were two meeting structures were already in place? A. According to the look of it, correct. Q. So it's fair to say that in your affidavit it was untruthful that the purpose of the two meetings was because of Ms Pintley? A. My conversations with David Lamb was the two meetings were because the ASU was taking up too much of the executive meeting. Q. But at no fault of Ms Pintley as per your affidavit, because they were already in place? A. My conversations with David Lamb was to have the two meetings because Ms Pintley was taking up time.
4. Mr Whittaker claimed that, after he became Acting Principal, the appellant would regularly request his assistance at the ASU which would cause him to stop what he was doing and attend that unit. He also claimed that Ms Thompson and Ms Hyde complained to him that the appellant was not communicating effectively with them and was otherwise rude.
5. Mr Whittaker gave evidence that, following a meeting with Anthony Kaslow, Learning and Wellbeing Officer, on 6 May 2016, a five step procedure was put in place in the ASU whereby students were given five warnings where the fifth step involved the student being sent to the appellant. Ms Thompson and Ms Hyde both reported to Mr Whittaker that the system was not successful because, when a student was sent the appellant's room, she just let them sit on the computer.
6. Mr Whittaker claimed that, during his time as Acting Principal, he spent an overwhelmingly disproportionate amount of time assisting the ASU compared to the mainstream school, which meant he had very limited time to attend to issues and matters arising within the mainstream school. The reason for him spending so much time dealing with the ASU was a direct result of the demands from the appellant requiring his assistance on a daily basis.
7. Mr Whittaker also gave evidence that, throughout term two of 2016, he observed the appellant hug students on several occasions. He observed the appellant put her arms around students when she tried to de-escalate them and get them into her classroom. She would put her arms around their shoulders and lead them in. Mr Whittaker was of the view that this was unnecessary and said to all ASU staff, including the appellant, words to the effect of "we do not need to touch the students".
8. On 15 December 2016, at the request of Ms Brown, Mr Whittaker prepared a report in which he documented his concerns about the appellant. On 23 June 2017, he was interviewed by Ms Gallardo of EPAC. During that interview, he referred to the appellant putting her arms around students as "an unwise decision on her part".

Kristina Goldthorp

1. Ms Goldthorp commenced employment with the Department in January 1991 as a classroom teacher. From 2004 to 2014 she worked with the Northern Territory Department of Education. In 2016 she was appointed as Network Specialists Facilitator, Wollongong-Illawarra, with the Department. In this role she was responsible for supporting Principals of primary schools and high schools with complex student needs and complex cases.
2. Towards the end of June 2016, Ms Goldthorp was asked by Ms Lowe to assist the ASU until a new Principal was appointed. On 29 June 2016, Ms Goldthorp met with Mr Whittaker and discussed issues arising in the ASU, including difficulties between staff and the lack of behavioural management of students.
3. Ms Goldthorp attended the ASU on 30 and 31 June 2016, in term 2, to observe students and staff in class. From these observations, she noticed that the staff seemed disconnected and divided. Ms Goldthorp also attended the ASU on a number of days in term 3, 2016.
4. From her observations, Ms Goldthorp notice that the ASU did not have consistent Positive Behaviour for Learning ("PBL") plans in place. PBL was a Department-wide tool that provided processes that schools used to develop positive reinforcement and a framework for behaviour management.
5. Ms Goldthorp had several meetings with Ms Thompson and Ms Hyde who informed her that there were PBL processes in place prior to the appellant commencing at the ASU and that the appellant had removed them.
6. However, during her cross-examination, Ms Goldthorp was shown ASU meeting minutes dated 16 December 2015. Present at the meeting were the appellant, Mr Lamb, the Principal of the school, Ms Hyde and Ms Thompson. The minutes of the meeting contained the following entries: Consequences * Change in current structure * Positive Behaviour for Learning (PBL) will be the overarching positive consequence * ASU to focus on Catch You Being Good (CYBG) cards * ASU to have a group target, for a whole unit reward * Weekly prizes to be drawn at assembly. 2 prizes of a canteen lunch. * Brainstorm and collate PBL sheets to adapt to ASU. Philippa to gather information * Philippa to join PBL committee with Coniston PS * Reminders - Not to be displayed on targets board. * Individual in-class reward system to be adopted
7. The following exchange occurred: Q. Ms Goldthorp, could you read for the Court the highlighted section of Ms Pintley's minuted minutes of, sorry, of the document that I've just provided you? Would it be fair to say that these minutes reflect PBL being introduced to Auburn Street Unit in the beginning of 2016? A. According to the meeting minutes, it says positive behaviour for learning will be overarching positive consequences. Yes. ……………………………. Q. So would it be fair to say that Ms Pintley did not dismantle the PBL? A. From what the two staff members informed me, I'm just repeating what the two staff members had informed me of, that that's what they had said. Q. But reading those minutes? A. Reading those minutes, prior to I arriving it would indicate that those - the PBL was continuing. Q. And would it be fair to say that if PBL was already in place in ASU prior to Ms Pintley's commencement, there would not be a need to introduce it? A. Sorry, can you repeat the question? Q. Would it be fair to say that if PBL was already in place in ASU prior to Ms Pintley's commencement, there would not be a need to reintroduce it? A. Generally speaking, every 12 months you don't reintroduce the PBL but you do reflect and reassess what you're doing. So you re-evaluate what you're doing all the time in PBL. Q. And would it be fair to say that you would not be privy to any communication regarding PBL between Ms Pintley and the ASU staff prior to your commencement at Coniston? A. Yes, correct
8. Ms Goldthorp had several meetings with the appellant as the Assistant Principal during her time at the ASU. During these meetings, the appellant would regularly make comments in relation to other staff members such as "the staff are never doing things right or listening to me, they are only doing it now because you are here".
9. Ms Goldthorp provided the appellant with examples of plans and strategies to put in place which included home care plans, individual education programs and risk assessments.
10. On several occasions, when a student misbehaved, Ms Goldthorp saw the appellant "approach the student, kneel down to lean on her knees, reach out with her arms and embrace the student with a hug. She would usually then say words to the effect of 'It's ok, it will be fine'." Ms Goldthorp recalled, in particular, the appellant hugging a student called E. In Ms Goldthorp's opinion, this was not appropriate behaviour from an Assistant Principal or for any teacher when a child has misbehaved.
11. It emerged during her cross-examination that Ms Goldthorp had agreed to be the appellant's referee for Assistant Principal roles after she left CPS: Q. Ms Goldthorp, did you agree to be Ms Pintley referee for assistant principal roles after you left Coniston-- A. Yes. Q. --and after Joanne Pintley left Coniston? So based on this, I put it to you that you endorsed Ms Pintley because you believe she was a capable assistant principal? A. I was asked to be a referee and I said yes.

Debbie Lowe

1. Ms Lowe began with the Department as a casual teacher in 1987. She performed a variety of roles, including that of Assistant Principal and Principal, before being appointed Director, Public Schools, NSW for the Wollongong North Network in or about January 2014.
2. Ms Lowe gave evidence about her interactions with the appellant and the other staff of the ASU. Her witness statement contained the following: 20. Due to my conversations with David (Lamb), visits to the ASU, interaction with Philippa Hyde and conversations with staff in the unit, including Joanne, I had several concerns about the ASU. These concerns included: a. frequent incidents of physical violence between students; b. violence from students towards staff; c. lack of coherent leadership in the unit; d. students absconding from the unit by jumping the security fence outside the Unit, often on arrival to school and under supervision; e. the management of students with complex learning, behaviour and mental health support needs; f. teaching and learning for all students within the unit; g. an obvious lack of procedures for the management of incidences of violence and inappropriate behaviour in the unit amongst students and between students and staff; h. the physical environment of the ASU including the locked doorways and the unit's positioning in relation to the staffroom; i. the cleanliness and organisation of the teaching and learning space; and j. the lack of quality in the teaching of literacy and numeracy, programming, curriculum implementation and assessment. 21. Trent Whittaker also expressed concerns to me in his role as relieving Principal in relation to the safety of staff and students, the lack of teaching and learning and the dismantling of procedures within the unit, which he had observed from the time he began relieving as Principal. 22. Joanne Pintley also expressed in my visits to the unit, her concerns in relation to staff interactions, her beliefs about what she thought staff were doing or saying to each other and her concerns over lack of systems and processes in the unit. 23. From all of my interactions with staff there appeared to be a significant disparity of opinion amongst staff within the unit on how and what the correct systems and processes should be and what they were designed to do. 24. Concerned for the wellbeing of staff and students, I brought together expert support to wrap around the ASU. This included: a. John Wilson, a senior psychologist for CPS, to support the development of programs for theASU; b. Joan Gissing, (then) Senior Psychologist; c. Kristie Goldthorp, (then) Networked Specialist Centre Facilitator; d. Tracey Coleman, Learning and Engagement Officer; e. Steve McDonald, STEM consultant to assist with providing an integrated, differentiated, interesting hands on curriculum; and f. Ian Luscombe, Director of BehaveAbility, and previously the Principal of Redbank School for Students with significant mental health disabilities, to provide behavioural management support. ………………………………… 32. From my observations during meetings, and within the ASU, Joanne did not present with the necessary skills or competencies to perform the role of Assistant Principal or Assistant Principal - Special Education at the appropriate level. Joanne presented as being focused on herself and her perceived expertise, and unable or unwilling to communicate effectively with her staff. On one of my visits, I was having a meeting with Jodi Thompson, teacher. The meeting had nothing to do with Joanne. We were interrupted several times by a school learning support officer, Roxanne O'Dea assigned to Joanne, who appeared to be trying to find out what we were talking about. I was later informed that this would have been at Joanne's request because Joanne's regular behaviour indicated that she was very suspicious that she might be being talked about. 33. I also observed Joanne make comments about her relationship with students. She would often make comments such as "I am the only person that really understands what they need, the others don't know how to do it right." From my observations, Joanne perceived herself as some students' 'saviour'.
3. Ms Lowe was interviewed by Ms Gallardo of EPAC on 3 August 2017. At the outset of that interview, Ms Lowe stated: From my conversations with Mr Lamb, it appears that Miss Pintley took it on herself to dismantle a number of processors and strategies at work that were operational within the Auburn Street Unit. But unfortunately did not replace them with anything that was coherent or structurally understood by the staff. There were certainly interpersonal difficulties between Miss Hyde and Miss Pintley pretty much from the outset and, knowing that Mr Lamb was becoming the director and knowing that we were going to be looking for a substantive principal, I was at great pains to support the school during the process. Mr Trent Whittaker was the relieving Principal. He is Assistant Principal at the school and unfortunately, during that period in supporting him and supporting staff in the Unit, it was very obvious that Mr Whittaker was having a very difficult time with interactions with Ms Pintley and often felt quite attacked by her in terms of her demands for support into the Unit. Prior to Miss Brown, the new Principal, coming on board, because there was quite a lag time because the position for principal had to be advertised twice, I made it my business to ensure that there was plenty of wraparound support provided to the Auburn Street Unit. Everybody was - including Miss Pintley, was wanting change but it was also really important that they were - that everybody was heard. …………………………….. The additional thing that I also did was provide a STEM consultant to the Unit to help staff there revisit their need for curriculum. Now, there was a lot of behaviours that I witnessed in the Unit from students that were of concern and I also was concerned at some of the management I saw from Miss Pintley and the assertions she was making. She was quite intransigent about working with Mr Luscombe. She's had a very strong feeling that she was the - she had a bit of a saviour mentality in terms of students and it was also coming to my attention that there were some concerns being raised by students' parents in relation to the way Miss Pintley interacted with them outside school, including turning up to select things like sporting events to support them.

Karen Brown

1. Ms Brown commenced as Principal at CPS on 8 August 2016.
2. Ms Brown's witness statement contained the following: Behaviour management procedures 11. The Department has guidelines on how staff should discipline students when certain issues arise. Each school is then able to implement individualised processes or procedures that are consistent with these guidelines. 12. Individual schools are also able to opt in to a framework known as "Positive Behaviour for Learning" (PBL) which is a framework within the Department guidelines. PBL is a framework that aims to create safe, effective teaching and learning environments. It is a whole school framework that provides policies and procedures to be followed. These are to be followed but slightly amended where necessary by the AP for a special education unit. 13. CPS, including the ASU, is a PBL school and was a PBL school before I was appointed as Principal. The PBL guidelines for CPS were contained within the CPS Student Welfare Policy… 14. There were no PBL processes or procedures in place when I commenced as Principal. It was reported to me by Jodi Thompson, teacher in ASU, that prior to Joanne Pintley starting as AP, policies and procedures were in place that were subsequently withdrawn by Joanne. Interactions with Joanne Pintley 15. Prior to applying for the position of Principal at CPS, on or about June 2016, I attended CPS in an attempt to meet a student that was a shared student with Mount Saint Thomas and ASU. The student was not in attendance on the day I attended ASU. I asked Trent Whittaker, Acting Principal if I could meet with the AP, who I now know was Joanne, for a 'meet and greet' with an opportunity to view the ASU setting and, to discuss the student's progress. I recall Trent said words to the effect of "she might not respond favourably to a visit that is sprung on her." I recall thinking that this was odd. 16. Prior to my commencement at CPS and after confirmation of my appointment as Principal, I was informed by Trent that there had been dysfunction in the ASU and that Kristie Goldthorp had been placed in ASU for approximately 2 weeks to assist with the day to day running of ASU and assist with organisational practices, management and issues with staffing. I was informed by Trent and Debbie Lowe, Director of Public Schools Wollongong North, that there would be wrap­around support to assist me in leading and managing the support setting. 17. I had also received a telephone call from Joanne prior to my commencement and after confirmation of my role. Joanne said words to the effect of "Congratulations on the role, I am looking forward to meeting you and I feel positive about it." 18. I commenced at CPS on 8 August 2016. Within the first three weeks of working at CPS, it became evident to me that Joanne required a significant amount of my time for support and advice. I spent more time with her than I did with the rest of the CPS staff collectively. I was called and requested by Joanne for assistance within the ASU multiple times a day. On almost every day, Joanne would call me by 9.30am at the latest, requesting my assistance or requesting that l attend the ASU immediately for support. This resulted in the majority of my time being spent in ASU and I was not able to have a balance across the other areas of the CPS. From my observations, there were no structures in place for learning and development within the ASU, there was no consistency in relation to management of students, there was a high level of violence being committed by the students (and in turn witnessed by other students in the ASU) and student behaviour was repeatedly escalating unmanageably. By the end of my second week at CPS, it became clear to me that the ASU was in a state of crisis. 19. On 18 August 2016, a team meeting was held between me, Joanne, Jodi Thompson and Patrick Matthews, teachers at ASU. At that meeting we discussed the implementation of the following in an attempt to address the issues within ASU: a. make and review behaviour management plans; b. conduct behavioural meetings; c. have a consistent response plan; d. review the discipline policy; e. examine how skills are being taught to students; f. confirm that Joanne will be provided one full day each week of Relief from Face to Face teaching time, being above the half day required by the Department; g. review the 5 day class system; and h. have an open night to inform parents of practices. 20. On 24 August 2016, I attended a meeting with Joanne, Debbie Lowe, Anthony Kalsow, Learning and Wellbeing Officer and John Wilson, Senior Psychologist. At this meeting, we discussed policies and procedures currently in place, risk assessments, Joanne's wellbeing and the code of conduct. 21. On Friday 2 September 2016, I met with Joanne, Debbie, and John. This meeting was a continuation of the development of the processes as outlined above. Debbie and Joanne had a conversation to the following effect: DL: Jo, how are you? Are you ok emotionally to be at work? JP: I have been to the doctor and the doctor said I am fine to be at school and that I am already on the highest level of medication. DL: We need to break the cycle of what is happening at ASU. Jo, you are part of the problem but can be part of the solution. JP: I am resentful, I struggle with what's happened to me and I don't want to be here. Immediately following the meeting, Joanne stated that she thought the meeting went well. 22. Joanne repeatedly said to Debbie and me that she was physically and mentally fine to be at school. Joanne continued to complain about the treatment towards her and raised her previous complaint. Ms Lowe asked her to stop multiple times in order to try to move forward. Joanne was informed that learning plans must be in place for all students by the end of the term. Joanne said "there are learning plans in my class." She did not take responsibility for assisting to ensure learning plans were in place across the other classes. This was an important part of her role as AP of the ASU. Joanne then said "I don't think I'm the right person for the job."… 23. Joanne commenced sick leave from Monday 5 September 2016. 24. Whilst Joanne was on sick leave during September 2016, CPS engaged Ian Luscombe, Private Education Consultant, to assist in putting in place correct learning and behavioural procedures for the ASU. During his time at the school, he was present, in and out of the classroom, observed teachers as well as modelling teaching strategies. Mr Luscombe put in place various strategies and procedures for behaviour management including flowcharts, scripts and a warning system. Mr Luscombe and all teachers involved also agreed with my suggestion to merge three classes into two to provide extra staff support and assisted with its implementation. 25. On the morning of 12 October 2016, I received an email from Debbie forwarding an email sent by Joanne to Kristie Goldthorp raising issues in relation to Trent Whittaker. On that same day, I had a meeting with Joanne and her return to work case manager to discuss her return to work. We also discussed her email at that meeting which I received that morning. I informed Joanne that an informal resolution would take place with Trent Whittaker. I also addressed each of the points raised in her email and that all had been remedied prior to the meeting. 26. We discussed Joanne's return to work. I recall Joanne making comments in that meeting with words to the effect of: "I am concerned about my role and my ability to make decisions", "staff do not listen to me, they go above me". I told Joanne that there had been a restructure whilst she was away, merging the three classes into two and that Jodi Thompson would be off class but floating between the classes in a learning and behavioural support role. I also told her that new processes and procedures had been put in place which had been adopted with complete staff agreement. Joanne and I then had a conversation to the following effect: JP: I want to be in the Learning and Behaviour Support role instead of Jodi as I am the AP. Me: This is not an executive role, just as it is not an executive role within a mainstream setting. Jodi was heavily involved with the new procedures and is best placed in the role. We can however revisit this at a later date. 27. Towards the end of the meeting, l also raised with Joanne the concerns regarding her physical contact with students. We had a conversation with words to the following effect: Me: It is not appropriate to hug students. JP: I don't hug students. Me: I have seen you walking down the hallway and putting your arm around students. I also saw you hug L as he entered my office for his suspension resolution meeting. JP: Oh ok. Me: This is not to happen anymore. 28. During Joanne's first two days back, 19 and 20 October 2016, I provided her with an outline of tasks for the two days. Joanne had no face-to-face teaching at this time. This included setting up the new computer lab, preparing a grant application, collating scopes and sequences of learning for each Key Learning Area and to look into a newsletter format for the ASU and to meet with Mr Luscombe to discuss and familiarise herself with the changes made in the unit. 29. On the morning of 20 October 2016, I received a text message from Joanne saying "Hi Karen can I speak with you before going in to ASU this morning" to which I replied "Yes but I am also expecting a parent this morning." I met with Joanne and we had a conversation with words to the following effect: JP: I am concerned about my role at the unit. Me: If you have concerns about specific incidences or concerns with students or staff, you need to report this directly to me in a prompt manner. JP: I am not supported in ASU with behaviour, I think my CV has been plagiarised. The kids don't lie, you don't understand, the staff lie. … 30. I am aware that Joanne went to see the students following this meeting. I recall that Mr Luscombe arrived at approximately 10.30am that morning to meet with Joanne. I understand they met for approximately one hour. Later that afternoon, Jodi Thompson came to my office in tears and said she was frustrated by undermining comments made by Joanne and interactions with students. I provided Jodi with strategies to address issues as they arose, for example, draw attention to the behaviour such as saying 'When you speak to me that way in front of students, it undermines my instructions' Lisa reported to me on that afternoon that Joanne said to her words to the effect of "All the students love me and hold little regard for the other staff." 31. Joanne did not attend work between 21 October 2016 and 23 October 2016. 32. Joanne returned to her teacher duties on 24 October 2016. 33. On the morning of 27 October 2016, I was at a Principal's Network Meeting. l asked Nicole Flynn, AP of K-2, to be relieving Principal for the day. I asked Nicole Flynn to monitor ASU and support staff and to be a highly visible presence within ASU to monitor and provide support. I was particularly mindful from the reports of staff that they felt uneasy and there was tension in the unit, I was concerned about how they would be treated on Joanne's return. 34. During the meeting, I noticed that my mobile phone had a number of missed calls, a text and a voice message from Joanne. The voice message was difficult to follow and erratic in nature. The text message from Joanne said "I need to go home do you know a casual" to which I replied "Fine for Jodi to take class. Everything ok?" I telephoned Joanne at approximately 9.50am and we had a conversation to the following effect: Me: Hi Jo, I've just received your message. What's happened? JP crying JP: She won't leave me alone. Me: Who won't leave you alone? JP: Nicole. Me: Nicole is there to provide you with support. You sound like you shouldn't be driving. Can we phone someone to pick you up? JP: I'll be fine to get home. 35. I then telephoned Nicole and asked her to follow up on the details of what occurred and the welfare of those involved. 36. Joanne then commenced sick leave from the morning of 27 October 2016 and has not returned to CPS since. 37. In the period of time that I worked with Joanne, it became evident to me that she was unable to lead and support her staff, implement or cause to have implemented class plans across all classes and that she did not value the opinion of her staff and did not have open communication with staff. I also found that she blurred the line between professional and personal relationships with students and that she cared and provided for favoured students over and above that of a regular teacher/student relationship. Physical contact with students 38. On one occasion, l had a suspension resolution meeting in my office. L, student, attended the meeting with his grandmother. Joanne was also in attendance. As L walked into my office, Joanne walked up to him and put both her arms around him, body to body, and gave him a hug. I found this behaviour entirely inappropriate and unnecessary, potentially compromising her professional boundaries. I did not say anything to Joanne at that meeting, as L's grandmother was in attendance, however I did raise this issue subsequently as outlined at paragraph 26 above. 39. On other occasions, l saw Joanne put her arm around a student, pat them on the shoulder and say words to the effect of "you'll be ok" following a negative incident in the classroom. I saw Joanne do this to A, N, T and G. I do not recall the days that this occurred. However, my observations of her conduct on these occasions were that the action of consoling by physically touching the student, either by wrapping her arms around the student's shoulders or patting them, after they had been reprimanded for inappropriate conduct, undermined the attempt of the teacher who was trying to discipline the student and can cause the student to develop mixed feelings about the seriousness of what they had done. Investigation 40. Whilst Joanne was at ASU and after she went on sick leave, I had reports from various teachers about her behaviour and various issues. As it became evident that various issues were arising, l asked staff that reported incidences to me, to document any issues they had. 41. Whilst Joanne was off work and staff trust was further established and issues were raised which was consistent with the pattern of behaviour I had observed in the short time I worked with Joanne. I prepared a report at this time as Joanne had been on leave for a lengthy period of time and l was unsure about when or if she would return. I wanted the concerns duly noted, especially as I had not had the opportunity to address these concerns prior to her unexpected departure from the workplace. On 15 December 2016, I prepared the report regarding Joanne and provided a copy of same to Employee Performance and Conduct (EPAC). The contents of that report are true and correct to the best of knowledge and recollection… 42. On 23 June 2017, I was interviewed by Susana Gallardo in relation to my report… Reinstatement to AP 43. I am aware Joanne was demoted to class teacher in or around December 2018 and is seeking to have her demotion overturned. It is my professional opinion that Joanne is not able to perform at the level and standard required of an AP. I have formed this view based on my interactions with her and my observations of the dysfunction and myriad of issues facing the ASU under her leadership as AP. 44. I have worked both as an AP and with numerous AP's for many years and it is my professional opinion that Joanne's shortfalls were not solely because she was working in a difficult behavioural environment, but that it is essential for any AP role that the AP be able to communicate and work effectively with staff and behave appropriately in their interactions towards children. She should also have been able to initiate and lead improvement in teaching, learning and classroom practice and develop the capacity of teaching and non-teaching staff. She should also be able to build relationships and engage students, staff and parents. These are key deliverables which are applicable to all executive positions which in my opinion, Joanne was unable to fulfil.
3. Under cross-examination, Ms Brown agreed that she worked with the appellant for a total period of 22 days.

Jane Thorpe

1. Ms Thorpe is the Executive Director of EPAC. She has held this position or a similar role since October 2002. Ms Thorpe was the ultimate decision maker in this matter.
2. In her witness statement, Ms Thorpe made reference to certain parts of the Department's Code of Conduct: 5.1. You are expected to· i. perform your duties to the best of your ability and be accountable for your performance ii. follow reasonable instructions given by a supervisor iii. comply with a lawful direction iv. carry out your duties in a professional, competent and conscientious manner, while seeking suitable opportunities to improve your knowledge and skills, including through participation in relevant professional development vi. act honestly and in good faith in providing advice or service that is honest, impartial and comprehensive, irrespective of your personal views on a matter vii. be courteous and responsive in dealing with your colleagues, students and young people and members of the public viii. work collaboratively with your colleagues ix. be mindful of your duty to the safety of yourself and others and be aware that if your conduct has the potential to damage the reputation of the Department, even if it is in a private capacity, this could lead to disciplinary action. 18.1. As an employee, you have an obligation to: i. use public resources efficiently and effectively for official purposes ii. make decisions relating to the use of public resources that are reasonable, are correctly authorised and can withstand public scrutiny iii. treat departmental property with due care and ensure it is secured against theft and misuse. 22.2. You must not develop a relationship with any student that is, or that can be misinterpreted as having a personal rather than a professional interest in a student. 22.7. The boundaries of the professional relationship will be breached if you: - have a sexual relationship or develop an intimate relationship with a student - use sexual innuendo or inappropriate language and/or material with students - hold conversations of an intimately personal nature, where you disclose private information about yourself - have contact with a student via written or electronic means including email, letters, telephone, text messages or chat lines, without a valid context - give students gifts of a personal nature that encourages them to think they have an individual and special relationship with you
3. In addition, Ms Thorpe also made reference to the Finance in Schools Handbook ("FIS Handbook"), parts of which she summarised at paragraph 10 of her witness statement, which contained the following: Joanne Pintley and the decision 7. On or around 17 October 2018, I received an Investigation Report prepared by Jane Collins and Susana Gallardo in relation to Joanne Pintley. Together with the Investigation Report I received copies of all the evidence relied upon and attached to that report… 8. An investigation was undertaken into 25 allegations against Ms Pintley. I reviewed the materials, considered the evidence and sustained 11 allegations against Ms Pintley which can be grouped into six categories of misconduct. Allegation 1(a)(iii) - purchase of sports shoes 9. I considered that Ms Pintley admitted to purchasing sports shoes for one of the students in her class, E. Ms Pintley said in her evidence that she facilitated the purchase of the shoes using a donation from a relative's business and that the purchase of the shoes was to enable E to compete in the District Cross Country competition. 10. However, I came to the conclusion that Ms Pintley's acceptance of the cash from Wollongong Auto Parts Pty Ltd being a business owned by her son in law, not receipting of same and determining, without authority, to use those funds to purchase sports shoes for one student only, was a breach of the following parts of the FIS Handbook: a. Part 3.2.1.1 which provides that a conflict of interest may arise in areas of purchasing or gifts and benefits particularly when more than one party in the financial process is in a family relationship. In these circumstances, the conflict of interest is required to be declared; b. Part 5.5 which provides that income from sponsorships are to be credited to the school's bank account; c. Part 5.5.1 which states that the authority to negotiate and approve sponsorships rests with the school Principals, Director, Educational Leadership, Executive Directors or Deputy Secretary. Assistant Principals are not included as having authority to negotiate or approve sponsorships; and d. Part 7.2 which states that cash collections must be receipted, transferred to the main office as soon as possible for office banking and that cash collections should always be counted by two staff members. 11. I also found that the provision of a personalised gift from Ms Pintley to E demonstrated favouritism and compromised her professional relationship with him. I found that these actions constituted a breach of clause 22.7 of the Code of Conduct 12. Ms Pintley's failure to follow the processes outlined in the FIS Handbook and her apparent lack pf understanding that what she had done was inappropriate demonstrated to me that Ms Pintley had a lack of understanding of her responsibilities as an Assistant Principal, was not aware of or had complete disregard to the procedures to be followed and resulted in a clear conflict of interest. Her actions were a breach of the requirements of the FIS Handbook and her position as Assistant Principal. Allegation 1(b)(ii) - birthday gifts 13. I reviewed the materials which including statements from the following staff members and students stating that Ms Pintley gave birthday gifts or gifts for completing work to certain students: a. Jodi Thompson; b. E; and c. N. 14. I formed the view that Ms Pintley was providing special and individual gifts to students that resulted in an erosion of professional boundaries. It is not uncommon for classroom teachers to provide a birthday cake for the class to celebrate a student's birthday, or for small prizes such as a lolly to be given to students in class as an incentive for good work. However, secretly placing gifts in students' schoolbags and the purchasing or giving of gifts to a select group of students, erodes the professional boundaries between Ms Pintley and the students. I also concluded that this behaviour was a breach of clause 22.7 of the Code of Conduct. Allegations 1(c)(iii)-(iv) - hugging 15. On my review of the materials and evidence, I concluded that Ms Pintley was actively encouraging students to hug her and was developing relationships with students that were becoming personal rather than professional thereby breaching clause 22.2 of the Code of Conduct. 16. There are circumstances where a teacher may have physical contact with a student which would not result in a breach of the Code of Conduct. These include where a young student runs up to a teacher and hugs them, without prompt or encouragement, and the teacher deals with it appropriately by not initiating like contact or gentle discouraging the contact. Younger school children, most commonly younger than year 3, may need a pat on the back or some reassurance if they have hurt themselves or become upset. 17. I was satisfied Ms Pintley's actions had the potential to erode the professional boundaries set by a school teacher. As an Assistant Principal, I would expect Ms Pintley should have been aware of her conduct as being inappropriate by virtue of the seniority of the Assistant Principal position. 18. Finally, I considered Ms Pintley's behaviour to be unnecessary physical contact because she encouraged the behaviour and used physical contact as a means of responding to bad behaviour. Allegation 1(d)(vi) - "I love you" 19. On the basis of the evidence provided, I was satisfied that Ms Pintley had said "I love you" or words to that effect to some students. Making comments in this manner to children is not appropriate and is a breach of professional boundaries. This is a breach of clause 22.2 of the Code of Conduct. Allegation 3(a)-(c) - behavioural management strategies 20. The evidence revealed that Ian Luscombe, a Private Education Consultant, was engaged to review the processes and procedures in place at Auburn Street Unit (ASU) and put in place new behavioural management strategies whilst Ms Pintley was on leave. 21. The evidence of Ian Luscombe was that the new behaviour management strategies were explained to Ms Pintley on her return to work. 22. The evidence demonstrated that on Ms Pintley's return, Jodi Thompson, Nicole Flynn and Patrick Matthews were attempting to implement these strategies on two separate occasions, however Ms Pintley prevented these teachers from doing so and undermined the authority of those staff members in front of the students. 23. Ms Pintley was therefore refusing to follow instructions in relation to the new behaviour management strategies, and was not working collaboratively with her colleagues. This is a breach of clause 5.1 of the Code of Conduct. Allegation 4 - chicken assignment 24. I reviewed the evidence of Patrick Matthews and of Ms Pintley in relation to this allegation. Mr Matthews' evidence included specific recollections of what occurred. I therefore preferred his evidence over that of Ms Pintley's evidence in relation to this allegation. This included Mr Matthew's contention that while he was employed as a casual teacher, he was directed by Ms Pintley to assist her son complete his assignment in the classroom. 25. Ms Pintley's evidence was that she completed her son's assignment on school time. 26. Regardless of whose evidence is accepted, the use of Ms Pintley's time or the use of Mr Matthews' time to complete Ms Pintley's son's assignment is a breach of clause 18.1 of the Code of Conduct, not using public resources efficiently and effectively for official purposes. The fact that Ms Pintley did not appear to understand the seriousness of her admission concerned me greatly as it demonstrated she did not understand or have regard to the Code of Conduct. 27. Ms Pintley's son should not have been at the school or in the classroom, particularly as he was unwell. He was not a student of the ASU. If there had been an incident of violence in ASU or he had been injured in any way, the Department would have been liable for a significant breach of duty of care towards him. 28. Ms Pintley's failure to understand the inappropriateness of any staff member, including herself, working with her son when they were hired to work for the school or to bring her son on site, whether or not she had sought permission, indicates her failure to make the judgments expected of a school executive. Overall assessment 29. On my review of the materials, it was evident to me that the ASU was operating in a dysfunctional way under Ms Pintley's leadership. According to the evidence of other staff members, Ms Pintley had removed all procedures and rules that were in place prior to her taking up the position and did not put in place any subsequent procedures to enable the ASU to function effectively. The effect of this was that staff reporting to Ms Pintley were unclear of what action should be carried out on a day to day basis. It was also clear that Ms Pintley required significant assistance from the School Principal and that she was unable to manage the ASU. 30. On 25 October 2018, I prepared a letter to Ms Pintley setting out my findings and providing her with 14 days to make a submission to me regarding my findings and any potential disciplinary action. This letter attached a copy of the investigation report and all its attachments… 31 On 23 November 2018, Ms Pintley, through her lawyers provided me with submissions regarding the alleged misconduct and setting out reasons why she should remain in the position of Assistant Principal... 32. I reviewed and considered these submissions. In the submissions, Ms Pintley raised matters including bullying and harassment and a lack of support in her position as Assistant Principal of the ASU. As a result of these matters raised I made further enquiries about the outcomes of the complaints to which she referred to determine whether there was any evidence of bullying. I also arranged for further enquiries to be made to determine whether Mr Luscombe had made a particular disparaging comment Ms Pintley attributed to him. 33. The submissions did not provide me with any evidence or reason to alter the findings made in my letter of 25 October 2018. With respect to my further inquiries, the complaints referred to by Ms Pintley were not upheld and I could find no evidence of bullying. Mr Luscombe denied making the comment attributed to him by Ms Pintley. 34. As a result of the sustained findings and Ms Pintley's clear inability to be a school executive, I determined that the most appropriate form of disciplinary action was to demote Ms Pintley from Assistant Principal to classroom teacher immediately. Demotion was the only action that would prevent Ms Pintley remaining in an executive position, other than dismissal or direction to resign which I considered to be harsh.

Case for the appellant

1. In her witness statement, the appellant was critical of the investigation into her conduct by the EPAC investigators and of the ultimate decision to demote her which was made by Ms Thorpe. She defended her performance and conduct as Assistant Principal at the ASU.
2. The appellant was particularly critical of the length of time that it took for the investigation into her conduct, which occurred in 2016, to be ultimately finalised by Ms Thorpe's decision in December 2018 that she be demoted to classroom teacher.
3. In relation to the specific misconduct allegations against her which were sustained by Ms Thorpe, the appellant's responses are set out below.

Allegation 1(a)(iii) - purchase of sport shoes

1. The appellant admitted that she organised a donation for the purchase of a pair of sport shoes for student E from her stepson's business, Wollongong Auto Parts. The amount involved was $50. E was an indigenous student who had qualified to compete in the district cross country race. The shoes he owned were canvas with holes in them. The appellant sought and gained permission from E's mother to purchase the shoes for E.
2. The appellant was unaware of the requirements of the FIS Handbook. It had never been provided to her. She denied that she had displayed favouritism toward E and claimed that she would have organised the purchase of shoes for any student in need who had reached the same level of competition no matter who the student was.

Allegation 1(b)(ii) - birthday gifts

1. The appellant claimed that she purchased a cake for students in her class to be shared with all the students. This practice was in place when the appellant arrived at CPS. The appellant also made trinkets such as a bookmark or a keyring for students who were having their birthday. The student whose birthday it was would help her make it.
2. The appellant also gave students prizes or rewards for doing something right within the class such as some science and robotics kits that she had in her classroom for students to build and complete. These were not gifts to take home but resources for classroom use.
3. In relation to the allegation that she placed chocolates in students' school bags, the appellant denied this but stated that she did bring chocolates to school at Easter time for every student at the ASU.

Allegation 1(c)(iii)-(vi) - hugging

1. The appellant claimed that she had never instigated a hug with a student at CPS and that she had always conducted herself professionally.
2. According to the appellant, there were a few times when students may have instigated a hug when getting off the bus. She would react professionally by patting them on the shoulder and moving them along with words such as "have a nice day". Her arm went around a student's shoulder if they were about to have a physical confrontation with another student. This was done to direct them away and to keep everyone safe. The appellant would then talk to the student to de-escalate them. Her arm would have been placed around the shoulder of a student when they were under severe duress, sometimes to the point of having difficulty breathing.
3. In particular, the appellant denied that she had got down on her knees and held out her arms to hug student E.

Allegation 1(d)(vi) - "I love you"

1. The appellant denied that she had ever said in a personal sense "I love you" to a student. She claimed that she would use words to the effect of "I love that you are in my class", "I love the effort you are putting into your work", "I love the colours you are using in your artwork" or simply "love it" when a student told a joke.
2. The appellant also relied upon the following extract from the transcript of an interview of student E with Ms Gallardo and Ms Scott of EPAC on 8 August 2018: Gallardo: Okay, so I was told that Miss Pintley would tell students that she loves them. Do you know anything more about that? E: Yeah. Gallardo: Tell me more. E: What do you mean like more? That's all I know. Gallardo: Oh okay... [Over speaking 10:56] Gallardo: ... so what - did it happen often? Yeah? E: Yeah. Gallardo: Why would it happen? When is a better question. When would that happen, that students [inaudible 11:12]... E: When she's in a happy mood and when we walk in in the classroom she says it to everybody. Gallardo: Okay. So when you - do you mean when you're walking in the room in the morning? E: Yeah. Gallardo: Mm-hm, so was, was it as a form of saying hello or... E: Yeah, yeah. Gallardo: Okay. Any other times that she would say it? No? Scott: And would she say like I love you E, or like I love you all [inaudible 11:46]... E: I love youse all.

Allegation 3(a)-(c) - behaviour management strategies

1. The appellant denied that she was unhappy with the presence of Mr Luscombe in the ASU and the behaviour management strategies he was attempting to implement. She claimed that, in the two days after she returned from sick leave and was briefed by Mr Luscombe, she was implementing the new changes and they went smoothly. She had only one student needing to be "processed" and he was.
2. With respect to Allegation 3(a), the appellant stated that on Wednesday 26 October 2016 she was assaulted by a student, L. On Thursday 27 October, student T had been extremely rude to Ms Thompson in a fitness session. The student locked himself in the toilet and said words to the effect "she wouldn't give me my fucking puffer. I need my fucking puffer". The appellant asked the student to come out and said that she would get his puffer which she did. The student was in the classroom when the appellant approach Ms Thompson to inform her that the student needed his puffer. Apparently, the student walked past the two women and stuck his middle finger up at Ms Thompson but the appellant did not see this. Ms Thompson informed the appellant that the student would be receiving another reminder. The appellant claimed that she was not opposed to this. The appellant also claimed that Ms Thompson came to her classroom door and started yelling at her with words to the effect "have you given T another reminder because that will be three and he needs processing". Ms Flynn was at the door as well. The appellant claimed that Ms Thompson began yelling at T and Ms Flynn kept telling the appellant that there were new procedures to follow. The appellant claimed that she asked them to let her settle the students and she would come out to deal with it. She closed the classroom door. She claimed that she was unaware that Ms Flynn was relieving Principal at this time. The appellant started to have high anxiety levels and sent a text to Ms Brown saying she needed to go home.
3. In relation to Allegations 3(b)-(c), the appellant gave the following evidence during her cross-examination: Q. And you observed him, that is, A smudge a peanut butter sandwich-- A. No, I didn't, I was on duty in my classroom at the time. If you look at the duty rosters, you will see that on the day of the incident I'm always in my classroom. Q. You also observed A flick paint on Mr Matthews? A. Yes, I did see the paint. Q. And you laughed, didn't you? A. No, I didn't laugh at all. Q. And what you then did was took A's account according to you and he said to you, "Oh, I did that because I was scared and he told me he would flog me", and that's what you reported to the principal Karen Brown? A. No, I took A into my classroom because it was still lunch time at the time so I had duty of care to other students and A - to de-escalate A, I just sat him down. I know that Patrick said that he went on computers, but A never went on the computers and I gave him time to calm down because I still had other students that I needed to look after and duty of care is really important. When - in that afternoon A remained in my room. In that afternoon when the rest of my class were getting onto their work, that's what I approached him and I spoke to him and at first he wasn't going to say anything because that poor - like he's gone through a lot of trauma and he put his head down and it's a big thing for him to say something. I said to him, "A, you need to tell me. You need to tell me why you did what you did." And he's like this and then I just said, "Look, unless you can tell me what happened or your - I" - that I have to move forward. He then told me, "I did it", and he admitted to what he did and I saw the paint anyway and then when I talked to him he said to me, "Mr Matthews said he didn't care what you or Ms O'Dea thought, but he will flog me", and I questioned him. I said, "A, you know, like that's a big call. Are you sure that's what you heard?" He said, "I will never forget" - he said - for A to say, "I'm scared", I believed that - I actually believed it happened, however, it's not my call. I just said to him - and A did nothing that afternoon other than stay there until his mum D picked him up and I went to Karen Brown and I told her the whole incident and she just said to me, "Leave it with me." Did she follow it up on it? I mean I know she followed it up on it because she ended up going with Mr Matthews and A - she took Mr Matthews over to A because after the incident he said nothing to Ms Brown about it. Q. You walked into Mr Matthews's room and in front of his classroom accused him-- A. Never. Q. You did that, didn't you? A. I would never do that. I would never, ever do that, ever.

Allegation 4 - chicken assignment

1. In answer to Allegation 4, the appellant's affidavit contained the following: 64. This is a complete lie. My son did not complete an assignment with Mr Matthews. My son, Robbie does not know Mr Matthews. Robbie did attend school one day where I was teaching, and he assisted with the students. I had principal, Trent Whittikars permission to have my son there. Teachers did bring their kids to school at Coniston on the odd occasion and it has never been raised that this is an issue, hence why I asked in the first place. Robbie was not sick he was injured and unable to walk around his high school. 65. 66. As a parent I have tried to keep my school concerns out of the family home, however, a few weeks ago I had to approach Robbie and asked him if he remembered coming to Coniston. I told him a teacher said he worked with him on an assignment. Robbie told me words to the effect of "I only remember helping the kids". I asked him to write an affidavit but asked him to do it with someone else so I could not be accused of telling him anything. I instructed him to just tell the truth. 67. I do admit to working on Robbie's chicken assignment for about 20 minutes while Patrick Matthews was on my class. I abanded this because me being in the room was disruptive to students. I didn't not complete the assignment. Robbie did not hand in a completed assignment. Patrick knew about the assignment because we did have a good working relationship and we were laughing about the topic before hand. I realise I should not have used school time to attempt the assignment, however, I had my RFF taken away from me by Trent Whittikar in term two. This saw me having no breaks throughout the week to plan for my class. I had 10 duties a week and was responsible for all suspensions and resolutions. My planning had to occur at home, resulting in my son being neglected in his studies. I am aware this was wrong and would not do this again. 68. I have no idea why Mr Mathews would make up such a story. The same day 14th June, 2016 that my I worked on the chicken assignment, I used my time off class to assist Patrick Mathews with his application for an EOI at Coniston as evidence in text messages where he asked me to assist… 69. EPAC states that Patrick Mathews was deemed a more credible witness than myself. I would like state the lengths that Patrick Mathews was willing to go to make up stories and lie to EPAC in order to discredit me. 70. In paragraph 650, 660 Patrick Mathews in his statement to EPAC states that he approach me to discuss my professionalism. He was calm. I yelled at him. He states he remained calm I cried, screamed and then I inundated him with text messages apologising and then I texted him and asked him out for coffee. The incident he is referring to happened on the 17th August, 2016. A tough day for all when a student E had escalated. At the end of the school day I was exhausted and upset by the day's events, but I felt it my duty as Assistant Principal to ensure everyone was okay. I briefly attended to the debrief meeting, apologise to the staff for not being about to speak clearly as I was about to cry. I check they were okay. I went into my room, sat at my desk and cried. Patrick walked into my room, abused me for speaking to him in his words "like an idiot". I told that was not my intent I just couldn't speak and apologised if he felt that way. He continued to berate and yell at me. I asked if we could talk later. He continued, I was really distraught. Jodi Thompson then entered the room and told Patrick to leave me alone. This was the first time Jodi has ever defended me. Patrick left. I was still at school and he sent me a text asking me for coffee.
2. Some of the text messages which were annexed to the appellant's affidavit are set out at [29] above, including the message sent to the appellant by Mr Mathews at 3.35pm on 17 August 2016, the day of the incident referred to by Mr Mathews in his interview with the EPAC investigators which formed the basis for Allegation 4, in which Mr Mathews asks the appellant if she wants to meet him and he'll shout her a coffee and says he hoped "all is ok and u feel better tomorrow".
3. In addition to her two affidavits, the appellant had tendered into evidence a number of other affidavits, including an affidavit sworn by Roxanne O'Dea who was employed as an SLSO at the ASU during the period when the appellant was the Assistant Principal. Counsel for the respondent objected to much of the content of this affidavit on the grounds of relevance and hearsay. Ms O'Dea was not required for cross-examination. Given counsel's objections, I have given no weight to this affidavit in my consideration of this matter.
4. I have adopted a similar approach to the affidavit of Craig Austin, District Guidance Officer/Senior Psychologist with the Department, and to affidavits from a number of the mothers of students at CPS, which were also admitted into evidence over the objections of counsel for the respondent, and to affidavits of Giovanna Cunningham and Lyndall Byrne, former colleagues of the appellant.
5. Also tendered into evidence by the appellant was an affidavit of her son, Robert Larney. Mr Larney stated that he was in the appellant's classroom on one occasion in 2016 due to injuries he had sustained to his knees and his inability to attend his own school on that day. Mr Larney denied Mr Mathews' claim that Mr Mathews helped him with his chicken assignment on that day. Counsel for the respondent did not object to the admission into evidence of Mr Larney's affidavit and he was not required for cross-examination despite counsel having indicated at the outset of the hearing on 24 June 2019 that Mr Larney would be required for cross-examination.
6. Extensive written submissions were filed by the appellant in which she attacked the credibility and probative value of the evidence given by a number of the witnesses called by the respondent.

Determination

1. The appellant has been demoted from her role as Assistant Principal by the decision of Ms Thorpe based on a number of sustained allegations of misconduct by her in 2016 at the ASU. These are set out at [2]-[4] above.
2. In Marroun v State Transit Authority ([2017] NSWCA 273) the Court of Appeal (Bathurst CJ; Beazley P; Basten JA) upheld an appeal from the Supreme Court (Walton J) exercising the jurisdiction of the Industrial Court with respect to an appeal from a decision of Commissioner Newall in which the Commissioner dismissed an appeal from Mr Marroun, a former employee of the State Transit Authority of NSW ("STA") (Marroun v State Transit Authority [2016] NSWSC 1830). Mr Marroun had been the appellant in a public sector disciplinary appeal under Part 7 of Chapter 2 of the Act which was heard and determined by Commissioner Newall. The Commissioner dismissed Mr Marroun's appeal and upheld his dismissal by the STA, but on grounds that were different from the sustained misconduct allegations for which the STA had dismissed him (Marroun v State Transit Authority [2016] NSWIRComm 1003).
3. The Court of Appeal considered the provisions of Part 7 of Chapter 2 of the Act, the predecessor provisions of previous legislation and the judgement of the High Court in Calman v Commissioner of Police ([1999] HCA 60). The Court then stated as follows: 35 Before turning to the manner in which the Commission purported to exercise its powers, it is convenient to consider further what follows from the characterisation of the process identified in Calman. In colloquial terms, an appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer. One basis for that inference is the use of the term "appeal" to describe what is in substance a fresh hearing.
4. The Court then considered the manner in which Commissioner Newall had followed a previous decision of the Industrial Court (Walton P) in Secretary, Department of Justice v Schoeman ([2014] NSWIRComm 40) and stated as follows (footnotes omitted): 44 The Commissioner stated (correctly) that he was bound by the approach adopted in Schoeman, a decision of the Industrial Court. In that case, the primary judge (then the President of the Commission) held that the Commissioner hearing Ms Schoeman's appeal had erred in confining "the question he was required to consider solely to 'whether the misconduct said to be the basis for punishment [was] made out' (other than the related question, also concerning punishment, that, if misconduct was made out was the punishment imposed appropriate?)." The error, the President held, resulted from treating the jurisdiction as "punitive" rather than "protective", in accordance with s 100C of the Industrial Relations Act. In the reasons which followed this statement of conclusions, the President noted but rejected two steps in the submissions put forward by Ms Schoeman. The first step was that s 46(2) of the Public Sector Employment and Management Act 2002 (NSW) ("the Public Sector Act"), which provided that the department head "may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer", made a finding of misconduct a precondition to the taking of disciplinary action. The second step in Ms Schoeman's argument was that, once the Commission determined that no misconduct had occurred, "the disciplinary action imposed being dismissal could not stand, and nor could any other disciplinary action". 45 In rejecting those submissions, the President stated: "(2) Section 100C(2) of the [Industrial Relations Act] provides the commission a wide power to determine appeals. So much is illustrated by the capacity to 'make such other decision with respect to the appeal as it thinks fit' (see Smith at 61; Murray at 464) …. … (6) There is no requirement for the commission to reach a conclusion as to the misconduct (as charged) in a disciplinary appeal as a prerequisite to the exercise of its powers under s 100C (and the exercise of its discretion). … (7) Further, I am unable to discern a legislative intention to confine an appeal to, as the commissioner found, a review only of the specific allegations of misconduct upon which punishment was based, and by implication only materials which formed the basis for that decision." 46 This approach should not be accepted. It was inconsistent with the understanding of the appellate process outlined above; in a significant respect it misread the legislation and it was unsupported by authority. 47 It is correct to say that s 100C(2) confers powers on the Commission in relation to a disciplinary appeal. Those powers are not at large; they must be exercised in deciding the disciplinary appeal before the Commission. The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employer to take specific disciplinary action. In Schoeman, the Public Sector Act, s 46(2), was unambiguous and unequivocal. It conferred power on the department head to take disciplinary action if the officer had engaged in misconduct. The employer had no power to take disciplinary action unless the officer had engaged in misconduct. It was the exercise of that power which was the subject of a disciplinary appeal and thus the subject matter with respect to which "jurisdiction" was conferred on the Commission. The powers conferred on the Commission were therefore limited to the exercise of that jurisdiction and to the disposal of the appeal. There is no legitimate reading of s 100C(2) which expands the jurisdiction of the Commission. 48 To hold otherwise is inconsistent with the reasoning in Calman, where the High Court succinctly identified the function of the Tribunal hearing an appeal as "a fresh exercise of administrative power". It is not the exercise of a different power for the first time; so much is inherent in the description of the function as an "appeal". 49 In seeking to sustain wider powers than were conferred on the employer, the reasoning in Schoeman relied upon three authorities. The first, chronologically, was Smith v Allan, Secretary, Treasury of New South Wales. That case concerned the scope of an appeal to the Tribunal under the GREAT Act, ss 24 and 48(2). At that time, s 48 of the GREAT Act did not contain subs (2A), now found in s 100C(3) of the Industrial Relations Act, expressly conferring powers in respect of an appeal where the Tribunal was satisfied that the employer had failed to accord the appellant procedural fairness. In Smith v Allan the primary question was whether on a fresh hearing, the Tribunal should simply start afresh, or could address a ground alleging procedural unfairness on the part of the employer in reaching the initial decision. A consequential question was what the Tribunal should properly do in circumstances where such a ground was upheld; should it remit the matter to the employer or deal with the merits of the appeal? 50 Kirby P (with the agreement of Clarke JA and Samuels AJA) accepted that the Tribunal had power to determine an appeal by reference to that ground. With respect to the second issue, the Court appears to have assumed that the matter would be remitted to the employer which would then exercise the power again. Reference was made in that context to the power in s 48(2) to "make such other decision with respect to the appeal as it thinks fit". Although the Court considered it likely that it would be sufficient to allow the appeal, the reasoning of the President continued: "The head of department, as a manifestation of the Crown, can be expected to act in accordance with law as authoritatively stated. Therefore, if the ground for allowing the appeal was the opinion of the Tribunal that the decision, the subject of an appeal, was not validly made because it did not conform to law, it can readily be expected that the head of department would ensure that this determination was faithfully carried into effect. And if there is any doubt, parliament has provided, in the case of disciplinary appeals, the additional power in the Tribunal as referred to in the closing words of s 48(2). Those words are more than sufficient to allow the Tribunal to make other decisions which provide for, for example, the deployment of the employee in question pending the making of a lawful 'decision' by the primary decision-maker and any appeal which might then be brought against that decision by the head of department if still disaffected". 51 This understanding of the scope of the powers conferred on the Tribunal by s 48(2) was entirely conventional; it allowed for consequential orders giving effect to a determination that the decision under appeal had not been validly made. It offered no support for the broad conclusions reached in Schoeman. 52 The second decision, a judgment of this Court handed down only six months after Smith v Allan, was Maritime Services Board v Murray. This case involved an appeal by the employer after the Tribunal had set aside the penalty of dismissal it had imposed, which the Tribunal had described as "excessive for the misconduct alleged against the appellant." The Tribunal had ordered that the appellant be reinstated "as from the date of this decision", but denied him any reimbursement of salary for the period from the date of his dismissal to the date of the decision, which it treated as "sufficient punishment for any misconduct on his part." 53 The employer's appeal was based, first, on the lack of an opportunity to address the Tribunal on penalty. That was identified as procedural unfairness. (The Court noted a doubt as to whether the ground was permissible on an appeal against a decision on a question of law, but, the point not having been taken, assumed that the appeal was valid.) The ground was dismissed on the merits. 54 The second ground, which gave rise to the reasoning relied on in Schoeman, complained that the Tribunal had taken into account "extraneous matters", which had arisen since the date of the dismissal decision. (They included the loss of salary and the rectification by the respondent of the error which had led to his dismissal, namely the failure to pay sales tax on a mobile phone.) 55 Kirby P noted that the post-decision material was "taken into account in determining the order which the Tribunal should make and not in deciding whether or not the appeal should be allowed." In that regard, the President referred to the powers conferred on the Tribunal, set out the passage from the reasons in Smith v Allan considered above, and continued: "For like reasons the words are wide enough, in the appropriate case, to sustain an order that the dismissed employee be reinstated. That this is so is confirmed by provisions of [the predecessor to s 97(1)(f) of the Industrial Relations Act]. That paragraph makes it clear that disciplinary appeals were to include appeal against a decision to dismiss an employee. A simple order allowing the appeal would leave the employee dismissed. It is doubtless for that reason that, in disciplinary appeals, the Tribunal was given a wider mandate and provided with larger powers. Those powers could not easily be exercised without regard to events which had occurred since the dismissal. Therefore, to the extent that the Tribunal referred to those events, in determining how it would make its 'other decision', it committed no error." 56 This reasoning, entirely consistent with that in Smith v Allan, identified the power to make "any other decision it thought fit" as providing for consequential orders to give effect to the basis on which the appeal had been allowed. Murray is also authority for the proposition that post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven. That point of distinction assumed that the first task of the Tribunal was to be satisfied that the charge had been made out. 57 The third case was the more recent decision of this Court in Director-General, Department of Ageing, Disability and Homecare v Lambert. Lambert appears to have been relevant to the reasoning in Schoeman in two ways. One was a statement by Hodgson JA to the effect that an exercise of the powers conferred by s 100C should not derogate from the objects of the relevant part of the Public Sector Act in issue in that case (but not in this case). Secondly, and more generally, the reasoning in Lambert was relied upon for the proposition that the purpose for the exercise of disciplinary powers was not punitive action directed at the individual employee, but was protective of the public, in whose interests the employer exercised its functions. So much was derived from the statement of the objects of the part in the Public Sector Act, as explained by Hodgson JA. 58 Two points should be noted in this regard. First, the statement of objects in the Public Sector Act, Pt 2.7 ("Management of conduct and performance") was as follows: 41 Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance in the Public Service, (b) to protect and enhance the integrity and reputation of the Public Service, (c) to ensure that the public interest is protected. The reasoning in Lambert accepted that the powers (particularly to take "disciplinary action") were to be exercised having regard to those objects. There was no suggestion that the functions were otherwise limited or extended. Relevantly to the circumstances in Lambert, the Tribunal had erred in allowing the proper purposes of disciplinary action to be subverted by taking into account the personal interests of the officer, which might properly have been taken into account were punishment of the officer the primary purpose of the order. 59 Secondly, there was another aspect of the reasoning in Lambert which was not identified in Schoeman, but was directly relevant to its conclusion. The order made by the Tribunal had been to reinstate the officer, but subject to his employment being "on probation" for 12 months. With respect to that order, Basten JA stated (with the agreement of Tobias JA): "[92] Secondly, the [GREAT Act] requires that the decision of the Tribunal 'shall be given effect to by the employer': s 48(3). It is possible that such a provision impliedly gives power to the employer which he or she might not have under any other provision of the Act. The alternative construction is that the Tribunal is not empowered to make an order to which the employer could not give effect. The latter is the preferable approach. [93] Thirdly, the role of the Tribunal is to provide a second tier of administrative (or quasi-judicial) decision-making in relation to public sector employment. In this case, the appeal involved a review of a decision by a department head to take disciplinary action with respect to an officer: see s 46(2) [of the Public Sector Act]. So far as the employer is concerned, his or her powers are constrained by the concept of 'disciplinary action' defined in s 42(1) of the Public Sector Act. There is nothing in either Act which suggests that the Tribunal is intended to have some broader powers with respect to misconduct in the public sector. [94] In this context, the powers of the Tribunal in respect of a finding of misconduct are as broad [as], but no broader than, those of the employer. Accordingly, as explained by Hodgson JA, they did not extend to placing the respondent on 'probation'." (e) conclusions as to excess of power 60 There is no doubt that, in the present case, the Commissioner did not consider that the disciplinary action, namely dismissal, was warranted by the only conduct which formed the basis of the disciplinary charge, namely the conduct of the appellant on 11 April 2015. That finding should have led to an order allowing the appeal. The Commissioner did not take that course, but rather, on the basis that the appellant had given untruthful evidence (as to which more will be said below) and had abused his superiors in the STA by posts on Facebook, found the appellant had destroyed the trust on which the employment relationship was based and therefore the dismissal should stand. 61 In adopting that approach, the Commissioner was applying the principles identified in Schoeman. Because those principles (as set out above) were based on a misconstruction of the statute and a misreading of relevant authorities, they led the Commissioner to exercise a jurisdiction he did not have and to fail to complete the function in fact conferred on him by statute. In respect of these matters Schoeman is wrong and should not be followed. 62 To state the matter affirmatively, the Commissioner was required to determine whether the allegation made in writing, in accordance with cl 30 of the Regulation, had been proven to his satisfaction. If it had not, he was obliged to allow the appeal. If he considered that any of the particulars were established, he would have had to address whether some lesser form of disciplinary action was appropriate. Neither of those tasks was undertaken. 63 As the decision of the Commission must be set aside, it is appropriate to note two other aspects of the manner in which the Commission dealt with the subsequent conduct of the appellant, which might have been relevant to a determination of the appropriate penalty. 64 First, following the submissions of the advocate appearing for the employer, the Commissioner appeared to treat the order which was sought, namely reinstatement, as if such an order had been sought under Ch 2, Pt 6 of the Industrial Relations Act dealing with "unfair dismissals". He also referred to authority dealing with the power of the court to declare void or to vary "unfair contracts". While, broadly speaking, there may be an analogy between an unfair dismissal and a dismissal resulting from the wrongful exercise of disciplinary powers, the latter must be seen as a specific case of the more general classification and, being subject to its own statutory regime, the appellate process will not necessarily be governed by the same principles. In short, it is legally erroneous to rely upon such reasoning with respect to a disciplinary appeal. The question for the Commission was whether, pursuant to s 100C, to confirm the order of dismissal or substitute another order. It was not a question of ordering reinstatement for an unfair dismissal. The order made followed from a misconception as to the nature of the proceedings. 65 Furthermore, there is an irony in insisting that a disciplinary appeal is governed by the specific objects in the former Public Sector Act and yet to import principles relating to the nature of the employment contract as considered in cases dealing with applications for relief under Ch 2, Pt 6. 66 Secondly, in considering the ground relating to procedural unfairness, it will be necessary to address the manner in which the subsequent conduct of the appellant could be dealt with on appeal. It is sufficient for present purposes to note that the Commissioner placed substantial and apparently determinative weight on his assessment of the appellant's responses when the employer made inquiries about the incident ("Mr Marroun actively sought to deceive his employer") and identified that act of deception on his part as "a fundamental breach of his obligations under his contract of employment" and "destructive of the necessary confidence between employer and employee." 67 There was no doubt that the appellant's creditworthiness was in issue at all stages. Nevertheless, and understandably, the adverse finding was only made in the reasons for decision given by the Commission in disposing of the appeal. Orders were made without giving the appellant an opportunity to address the Commission as to how such findings should affect the final order. Further, the phrase "actively sought to deceive" clearly implies a deliberate attempt to deceive. Although the appellant gave evidence and was cross-examined at some length, that proposition was never put to him. While a hearing before the Commission is not to be conducted as if it were a court proceeding, principles of basic fairness require that a party be offered the opportunity to deny or explain any suggestion that he has lied, whether in response to an inquiry from his employer, or on oath in giving evidence. That was not done.
5. I take from the above cited passages from Marroun that, in a public sector disciplinary appeal such as this matter, the Commission is confined to considering the particular misconduct allegations against the appellant which were found to have been sustained by the respondent and the extent, if any, to which those allegations have been proven on appeal. Following the determination of those matters, the appeal will either be allowed or disallowed and, if allowed, consideration will then be given to what other decision, if any, should be made.

Allegation 1(a)(iii) - purchase of sport shoes

1. The appellant has admitted that she organised a $50 donation from her stepson's business in Wollongong for the purchase of pair of sport shoes for E, a Year 6 student at the ASU, who had qualified for the district cross country race. She claimed that she had the permission of E's mother to do this.
2. The EPAC investigation report, referred to at [16]-[19] above contained the following: There is sufficient evidence for the allegation to be sustained. Mrs Pintley was not transparent in her conduct and the source of the funding is irrelevant given the family and student were likely to have felt beholden to Ms Pintley, which erodes professional boundaries. Did the alleged conduct occur? Yes, there is sufficient evidence to sustain the allegation. If the alleged conduct occurred, was it misconduct? Yes, the sustained conduct may meet the threshold of misconduct as it could be considered a breach of the Code of Conduct at 22.8 (sic 22.7) which states boundaries of a professional relationship will be breached if you give students gifts of a personal nature that encourages them to think they have an individual or (sic and) special relationship with you.
3. Following receipt by her of the EPAC investigation report, Ms Thorpe, on 19 October 2018, prepared a document in which she set out her findings in relation to each of the allegations against the appellant ("findings document"). The findings document contained the following: 1 (a) (iii) - Ms Pintley did purchase sports shoes for E with money donated by her son in law's company. What Ms Pintley does not appear to understand is that if a company donates money to the school, this needs to be properly recorded and it would not be up to the AP how that money was spent. She has clearly not managed a conflict of interest situation by arranging a private donation which she then spent on the student. It could also be seen to be preferential treatment although I do understand she did so as a kindness to the student. I sustain the allegation and find the conduct so inappropriate that it may amount to misconduct.
4. At paragraph 10 of her witness statement, Ms Thorpe identified those parts of the FIS Handbook that the appellant has breached (at [84]).
5. I have difficulty in seeing how the appellant's conduct in relation to this allegation could be regarded as a conflict of interest. The FIS Handbook at part 3.2.1.1 defines "conflict of interest" as "any situation where there is, or may appear to be, conflict between an employee's personal interests and the goals, objectives and values of an organisation". Neither the appellant nor her stepson stood to gain any financial benefit from the transaction. Their interests were not in conflict with the goals of the school.
6. Further, it is also difficult to regard the provision of $50 for the purchase of a pair of sport shoes for a student as a "sponsorship" in the sense that this term is used in part 5.5 of the FIS Handbook. The money was never intended to be donated to the school. It was very much a private transaction between the appellant, her stepson, E and his mother.
7. Nevertheless, the Department's Code of Conduct, at clause 22.7, prohibits giving students gifts of a personal nature that encourages them to think they have an individual and special relationship with the staff member (at [83]). The appellant was clearly in breach of this provision of the Code of Conduct.
8. Ms Thorpe understood that the appellant acted out of kindness to the student but her conduct in relation to this allegation was "so inappropriate that it may amount to misconduct". I agree.

Allegation 1(b)(ii) - birthday gifts

1. The appellant claimed that she purchased birthday cakes for students in her class to be shared with the class and that she made trinkets for students having a birthday. She denied giving more substantial birthday gifts to students.
2. In his witness statement, Mr Mathews recalled the appellant purchasing gifts for some children and one particular occasion when the appellant announced to the class that it was one of the students birthday and gave that student a robotic helicopter as a gift. Mr Mathews made no reference to this matter in the report he prepared on 15 December 2016 or during his interview with EPAC investigators on 23 June 2017, although he did refer to being told by two students about the appellant attending their weekend sporting activities and buying them cans of Coke.
3. The EPAC investigation report does not refer to any information from Mr Mathews in relation to this allegation, nor does Ms Thorpe in her findings document or in her witness statement in these proceedings. I attribute no weight to Mr Mathews' evidence in relation to this allegation.
4. The only other witness in the proceedings to give direct evidence in relation this allegation was Ms Thompson. In her witness statement, Ms Thompson stated that, over the course of her working relationship with the appellant, she became aware of the appellant giving gifts to certain students. She claimed to have witnessed on one occasion in or about term 2 2016, the appellant placing "large Caramello Koalas into the school bags of some of the children, but not all of the bags".
5. Ms Thompson also claimed that there were numerous times when a student would tell her that the appellant had purchased them a gift. She referred to one particular instance in which a student pulled a small set of speakers out of his backpack and said "Look what Ms Pintley gave me for my birthday". Other students had told Ms Thompson that the appellant had given them toys, chocolates and, in one case, clothes.
6. The EPAC investigation report contained the following: On balance, it is assessed that Ms Pintley did provide some students, including E, with birthday gifts of a sizable nature. This conduct is not appropriate, particularly given the evidence suggests Ms Pintley only provided gifts for certain students. Certainly E appears to have formed the view he was the only one to receive a birthday gift and this may have led him to form the view his relationship with Ms Pintley was special or individual. Ms Pintley does not appear to be completely forthcoming in her response, and her justification that it was common practice to provide cakes and small gifts is not accepted, given her role as the Assistant Principal and her capacity to change practices if she felt they were inappropriate or inconsistent with the Code of Conduct. Provision of gifts to students can be a means for adults to groom (or manipulate) children so staff must be exceptionally diligent with regard to their actions. It is not being suggested Ms Pintley was grooming (or manipulating) the children, however she should have been acutely aware of how her actions may have been interpreted, and assisted in role modelling appropriate adult/child relationships with highly vulnerable students. Even if Ms Pintley's intentions were harmless, the act of giving gifts sends students the inappropriate message this conduct is acceptable and makes children vulnerable to risk from other predatory individuals. Did the alleged conduct occur? Yes, the alleged conduct is sustained. If the alleged conduct occurred, was it misconduct? Yes, the sustained conduct may meet the threshold of misconduct as it could be considered a breach of the Code of Conduct at 22.8 (sic 22.7) which states boundaries of a professional relationship will be breached if you give students gifts of a personal nature that encourages them to think they have an individual or (sic and) special relationship with you.
7. In her findings document, Mr Thorpe stated: Allegation 1 (b) (ii) - Ms Pintley makes an admission to purchasing small "handmade" gifts for students on their birthday. She advises the school had a practice of buying cakes for students on their birthdays as well. I accept that evidence. However the evidence from other staff and some students is that sometimes the gifts were more sizeable for Ms Pintley's favoured students and that sometimes she placed small gifts in students' bags for good behaviour. The practice of giving gifts is most unwise and is contrary to the Code of Conduct. The allegation is sustained and may amount to misconduct.
8. In her witness statement in these proceedings at paragraphs 13-14, Ms Thorpe stated that the appellant's conduct in relation to this allegation was a breach of clause 22.7 of the Code of Conduct (at [84]).
9. The only direct evidence before the Commission in support of this allegation against the appellant is that of Mr Mathews and Ms Thompson. Ms Thompson's evidence which might have supported a finding that "sometimes the gifts are for Ms Pintley's favoured students" is untested hearsay evidence, being what Ms Thompson claimed she was told by some students. It carries little, if any, weight.
10. Ms Thompson's evidence about seeing the appellant, on one occasion, placing chocolates into the school bags of some students, was firmly refuted by the appellant who stated that, in her 22 years of teaching, she has never opened a student's bag. The appellant was not challenged on this statement under cross-examination.
11. I am unable to find, on the balance of probabilities, that the appellant gave substantial birthday gifts to favoured students or that she placed chocolates in students' school bags.
12. Beyond giving her students "trinkets" on their birthday, which she and the students made, this allegation is not substantiated on the evidence before the Commission. To the extent that the appellant's conduct breached clause 22.7 of the Department's Code of Conduct, I regard it as a minor breach.

Allegations (c)(iii)-(vi) - hugging

1. The appellant claimed that she did not instigate hugs with students and always conducted herself professionally. She conceded that, on occasions when students hugged her, she would pat them on the shoulder and move them along. On other occasions she would place her arm around a student's shoulder if the student was about to have a physical confrontation or was under duress.
2. A number of witnesses claimed to have seen the appellant hugging students. The descriptions of these incidents varied greatly. Mr Mathews stated during his interview with the EPAC investigators that "she was wearing a wrap dress, so it ties up and at one point, she's hugging a kid, but her - her lacy bra was actually out of the dress". Ms Thompson gave evidence that the appellant "grabbed (student G) and pulled him into her chest and gave him an embracing hug". She told the EPAC investigators that the appellant "would often wear low cut tops and when she would hug them it was almost like their face was buried in her breasts". Mr Luscombe stated that: A male student was being brought into the school with their parent. Joanne saw the student, he ran up to Joanne, gave her a big hug and Joanne embraced him. Joanne appeared to encourage this. I saw her do this on at least two other occasions.
3. In the EPAC investigation report it was stated that there was sufficient evidence to say the appellant engaged in inappropriate and/or unnecessary physical contact with the individual students who are referred to in Allegations 1(c)(iii)-(vi). The report stated: Ms Pintley's sustained conduct in relation to physical contact is assessed to be a crossing of professional boundaries. Did the alleged conduct occur? There is insufficient evidence to sustain allegations 1(i) and (ii). There is sufficient evidence to sustain allegations 1(iii), (iv), (v) and (vi). If the alleged conduct occurred, was it misconduct? Yes, the sustained conduct at allegations 1(iii), (iv), (v) may meet the threshold of misconduct being considered a breach of the Code of Conduct with respect to 22.2 which specifies staff must not develop a relationship with any student that is, or that can be misinterpreted as having a personal rather than a professional interest in a student.
4. In her findings document, Ms Thorpe stated: Allegation 1 (c) (i) - (vi) Ms Pintley admits to placing her arm around students when there were safety concerns and states that sometimes students would hug her when they arrived at school and she would "gently encourage" them away from her. I accept there is insufficient evidence to sustain the particulars of Allegations 1 (c) (i) and (ii). I concur there is sufficient evidence to sustain that she has come into unnecessary physical contact with students as outlined in particulars 1 (c) (iii)-(vi). There is evidence from many staff members who observed Ms Pintley accept hugs from students and put her arm around students who were acting out or misbehaving in some way. Staff expressed concern that not only was this contrary to policy, that it gave students who were misbehaving mixed messages, but it also placed her at risk. Indeed, there is an example where Ms Pintley was assaulted by a student after she came up behind them and tried to hold them. Both principals and the R/Principal advised they had spoken to her about not interacting on such a personal level with students. I sustain the overall allegation and find the conduct to be high risk, contrary to policy and to amount to misconduct.
5. However, Mr Lamb, the appellant's original Principal at CPS, who had cautioned the appellant about the manner in which she spoke to the students, which is the basis for Allegation 1(d)(vi) - "I love you", told the EPAC investigators the following with respect to the hugging allegations: Well not that I saw. All I saw was someone you know - no, I wouldn't say I saw unnecessarily, I mean she might hug a child, or a child might hug her. That would be about it… Oh, if you're in the playground. I only ever saw it in a playground setting. Someone might do something, and they might come up and you know I've done well, and give them a hug. It wasn't an everyday thing. I probably can only think of two or three incidents of that. That type of thing. That was about it. I didn't see anything more than that. But I did see a bit, like I said previously, a bit too much of sharing of her personal stuff and getting too involved in the children's personal situations.
6. Mr Whittaker told the EPAC investigators that, when he was Relieving Principal, he had spoken to all ASU staff about not having physical contact with students and the appellant's behaviour continued after that meeting. Ms Brown told the investigators that she raised this issue with the appellant at one of the return to work meetings which occurred in October 2016, very much towards the end of the appellant's time at CPS.
7. Ms Thorpe's evidence in relation to these allegations is set out at paragraphs 15-18 of her witness statement (at [84]).
8. I agree with Ms Thorpe's conclusions and findings with respect to this these allegations. The weight of evidence before the Commission, even after taking into account the possibility of some exaggeration on the part of some of the respondent's witnesses, establishes that the appellant engaged in unnecessary physical contact with students which crossed professional boundaries in breach of clause 22.2 of the Department's Code of Conduct and which constituted misconduct.
9. However, I agree with Ms Brown's statement to the EPAC investigators to the effect that she "didn't think there was anything sinister in terms of child protection as such". I am also not persuaded that the appellant was specifically told to refrain from hugging students until the meeting she had with Ms Brown, which is referred to at [137] above. It is apparent from his statement to the EPAC investigators that Mr Lamb, the first Principal that the appellant worked under at CPS, did not have a particular problem with the appellant hugging students (at [136]).

Allegation 1(d)(vi) - "I love you"

1. The particular sustained misconduct allegation against the appellant is that she developed a personal as opposed to professional relationship with several students, as evidenced by engaging in overly personal and/or unprofessional conduct by regularly telling students that "you 'love' them", including but not limited to E (Year 6).
2. The EPAC investigation report contained the following: Ms Pintley denies use of the exact phrasing "I love you" but does say she would use the word "love" in an appropriate context when talking with or about students. Mr Lamb, Ms Thompson and E all say they had observed Ms Pintley use the phrase "I love you". Mr Lamb said he talked with Ms Pintley about appropriate use of language with students.
3. The report then states that there is insufficient evidence to say the appellant has engaged in overly personal and/or unprofessional conduct by saying "I love you" to the students who are named in Allegations 1(d)(i)-(v). The report then states: Allegation 1d (v) (sic vi) - there is sufficient evidence to say Ms Pintley has engaged in overly personal and/or unprofessional conduct by saying I love you to E based on E's disclosures.
4. E's "disclosures" were recorded in the report as follows: When asked about Ms Pintley telling students she loved them, E said "yeah". He said it would happen "when she's in a happy mood and when we walk in the classroom she said it to everybody" and she would say "I love youse all".
5. The report then stated: Ms Pintley's sustained conduct in relation to saying "I love you" is assessed to be a crossing of professional boundaries. Did the alleged conduct occur? There is insufficient evidence to sustain the alleged conduct at particulars 1(d) (i), (ii), (iii), (iv) and (v). There is sufficient evidence to sustain the alleged conduct at particular 1(d) (vi). If the alleged conduct occurred, was it misconduct? Yes, the sustained conduct at allegations 1(iii), (iv), (v) may meet the threshold of misconduct being considered a breach of the Code of Conduct with respect to 22.2 which specifies staff must not develop a relationship with any student that is, or that can be misinterpreted as having a personal rather than a professional interest in a student.
6. The reference to "the sustained conduct at allegations 1(iii), (iv), (v)" in the passage cited immediately above appears to be erroneous given that the previous passage refers only to "particular 1(d) (vi)" as having been sustained.
7. Ms Thorpe's findings document contained the following: Allegation 1 (d) (i)-(vi) The AP denies telling students she "loved them" but did admit to making lots of positive comments about "loving" what they were doing or in other contexts. I concur there is insufficient evidence to sustain the specific allegations at 1 (d) (i) - (v). I sustain Allegation 1 (d) (vi) as the student also states Mr Pintley told him she loved him. However the overwhelming evidence from colleagues is that she would tell students she loved them. I sustain the overall allegation and find such comments so inappropriate as to amount to misconduct.
8. What student E is actually recorded as stating to the EPAC investigators is set out at [97] and is not precisely the same as a statement that the appellant "told him she loved him".
9. Ms Thorpe's evidence in relation to these allegations is set out at paragraph 19 of her witness statement (at [84]).
10. Mr Lamb was not called to give evidence in the proceedings.
11. Ms Thompson's evidence to the effect that the appellant would often tell students that she loved them is lacking in specifics as to the time, date and place this was said by the appellant to any particular student.
12. The appellant denies saying "I love you" to any student but admits to using the term "love" in other contexts.
13. On the basis of the evidence before the Commission, I am not satisfied, on the balance of probabilities, that the appellant engaged in the conduct which is the subject of Allegation 1(d)(vi), or that the appellant said "I love you" to any other individual student.

Allegations 3(a)-(c) - behaviour management strategies

Allegation 3(a)

1. The appellant's responses to these allegations are set out at [98]-[100] above.
2. Allegation 3(a) is quiet specific. It alleges that the appellant prevented Ms Thompson from implementing behaviour management strategies introduced into the ASU by Mr Luscombe during an incident involving a student, T, by telling Ms Thompson to leave T alone.
3. The behaviour management strategies were introduced into the ASU in September and October 2016 while the appellant was off work on sick leave. Mr Luscombe stated in his evidence that he met with the appellant for approximately 30 minutes on Wednesday 19 October 2016, the appellant's first day back at work, and discussed with her the changes that had been made within the ASU, being the new systems and structures that were in place including the three reminders and processing systems.
4. The EPAC investigators interviewed Ms Flynn and Ms Thompson who were both involved in the incident involving T. The investigation report contained the following: It is not entirely clear if Ms Thompson, Ms Flynn and Ms Pintley are talking about the same incident, or if there were multiple incidences. It is also not helpful that Ms Thompson and Ms Flynn do not provide a date of when the incident/s occurred. Ms Thompson, Ms Flynn and Ms Pintley agree there was at least one occasion where T was swearing and Ms Thompson attempted to discipline him using the newly implemented strategies, and Ms Pintley prevented this occurring. Ms Pintley stated it was because her priority was settling the students and ensuring their safety. The situation appears to have been heightened as both Ms Thompson and Ms Pintley agree that a door was closed on Ms Flynn. Ms Pintley said the situation caused her anxiety levels to escalate and she wasn't able to complete the work day. It is unclear how well Ms Pintley knew the new strategies, but she appears to have at least been familiar with them. In recounting the event Ms Pintley stated Ms Flynn said "Joanne we have new processes. I said I know just let me settled (sic) the students and I would come out and deal with it" and later says that because of her assault and having only recently been made aware of the strategies she should not have been expected to have a thorough understanding of them. Ms Flynn stated the new strategies had been discussed with Ms Pintley upon her return to work and prior to this incident. Ms Pintley stated she was the Assistant Principal of the school and felt Ms Thompson was in breach of the Code of Conduct for not following directions of a supervisor, however Ms Pintley herself disregarded the directions of her supervisor Relieving Principal Ms Flynn. The incident shows an inability for positive collaboration between staff. All staff should have, as Mr Luscombe suggests, provided a united front and dealt with issues of disagreement later and away from the students. Ms Pintley has undermined Ms Thompson who was trying to follow the correct processes. Ms Pintley's view that it was inappropriate for T to be disciplined in front of other students is not accepted given T was acting out in view of the class. Ms Pintley has not been able to manage her emotions in the situation which has contributed to the matter escalating. It is unfortunate that Ms Pintley is unable to recognise the ways in which she contributed to the escalation of the situation and is not apologetic for her role and the possible impact it had on students. Ms Pintley's behaviour of slamming/closing a door is considered inappropriate and unprofessional. Did the alleged conduct occur? Yes, there is sufficient evidence for the alleged conduct to be sustained. If the alleged conduct occurred, was it misconduct? No, the sustained conduct is not considered misconduct as it is not a clear breach of the Code of Conduct or any policy or procedure, and the situation was likely to have been complicated by a number of factors, including the poor working relationship between the parties. Consideration was given to whether or not the sustained conduct was a breach of S5.1(ii) which states that employees are expected to follow the reasonable instructions of their supervisor.
5. Ms Thorpe initially agreed with the EPAC investigators that the appellant's conduct in this incident involving T did not constitute misconduct. Her findings document contained the following: Re Allegation 3 (a) - Ms Pintley provides considerable context to the incident with T, as does Ms Flynn and Ms Thompson. I also note Ms Pintley had just returned from a period of leave and was unfamiliar with the work that had been done in her absence to improve the Unit's behaviour management strategies. It is clear she did prevent Ms Thompson effectively using the strategy by telling her to leave T alone. This effectively undermined the work Ms Thompson was trying to do and undermined her in front of the student. The allegation that should have been put to Ms Pintley was that she failed to following Ms Flynn's direction to allow the student to come out of the class. That conduct would have amounted to misconduct but was not put to her. I find the undermining of Ms Thompson to be very poor behaviour but perhaps not to amount to misconduct.
6. However, the letter from Ms Thorpe to the appellant of 25 October 2018, which is referred to at [4] above, stated that there was sufficient evidence to sustain Allegation 3(a) and that the sustained conduct amounted to misconduct.
7. Ms Thorpe's evidence with respect to this allegation is set out at paragraphs 20-23 of her witness statement (at [84] above).
8. I agree with the findings of the EPAC investigators, and the finding initially made by Ms Thorpe with respect to this allegation, to the effect that the conduct of the appellant during this incident involving T did not amount to misconduct. However, I also agree with the observation of the EPAC investigators that the appellant's behaviour was "inappropriate and unprofessional" and with Ms Thorpe's finding that it was "very poor behaviour but perhaps not to amount to misconduct".
9. There were, nonetheless, a number of mitigating factors which should be taken into account. These include the following: (1) The appellant had a 30 minute meeting with Mr Luscombe on the day she returned to work from sick leave, Wednesday 19 October 2016, and a relatively short period of time to familiarise herself with the new procedures which had been introduced in her absence. (2) The incident occurred on Thursday 27 October, only five working days after the appellant had returned to work after an extended period of sick leave The appellant did not attend work on Friday 21 October. (3) The appellant claimed that she had been assaulted by a student on the day before the incident. This claim was not disputed. (4) The appellant believed she was attempting to settle the students, including T, in the interests of their safety. (5) The appellant was unaware that Ms Flynn was relieving Principal on this day and, as the Assistant Principal at the ASU, the appellant believed that she was not subordinate to Ms Flynn, another Assistant Principal. (6) The incident caused the appellant to experience elevated anxiety levels to the point where she left the school and went home. She did not return to the school after this incident.
10. Further, this is an appeal against findings of misconduct by the appellant, not "very poor behaviour". No explanation was offered by the respondent as to why Ms Thorpe changed her finding in relation to this allegation. Regardless of that, I find that this allegation has not been substantiated on the evidence.

Allegations 3(b)-(c)

1. The appellant denied laughing when student A "had placed a sandwich in Mr Patrick Mathews' face". She claimed that she didn't see the incident.
2. The appellant did see A flick paint at Mr Mathews but denied laughing when this occurred.
3. The only witnesses who gave direct evidence about these incidents were Mr Mathews and the appellant.
4. The EPAC investigation report contained the following: Analysis of evidence Mr Matthews' evidence is not clear as to Ms Pintley's location when the sandwich was smushed in his face, but Ms Pintley says she was in her classroom and she learnt about the incident because Mr Matthews came and told her. Mr Matthews stated Ms Pintley laughed when hearing about the sandwich being smushed in his face. Ms Pintley denies laughing at Mr Matthews. Mr Matthews stated A received no consequence for his behaviour. Mr Matthews is not clear why he believes this but it is presumed it is because he did not see Ms Pintley offer a consequence immediately following the incident. Ms Pintley says she got A to go into her room to calm down and later she tried to talk with A about what he did. In this follow up conversation A disclosed Mr Matthews had said he would "flog him". Ms Pintley does not say if A said Mr Matthews this comment after smushing the sandwich or before, or that she tried to find this out. Ms Pintley then informed Ms Brown, but this appears to be in relation to Mr Matthews comment, rather than for A to receive a consequence for his actions from Ms Brown. Ms Pintley does not say whether or not she put in place any consequence for A as a result of his behaviour. It appears that, having heard A's allegation against Mr Matthews, Ms Pintley has formed a view his behaviour of smushing a sandwich did not warrant a consequence and has not put anything in place. Asking A to go into her room to calm down is not considered a consequence to address the behaviour. Mr Pintley appears to have taken the words of A at face value and it does not appear she has considered the fact that A may have made up this allegation as a means to avoid getting into trouble. Ms Pintley said she left the issue with Ms Brown but does not explain why she did not approach Mr Matthews herself to get his side of the story and form a view on balanced information. There does appear to have been some dialogue between Ms Pintley and Mr Matthews after the incident, but this does not appear to have been a constructive and supportive conversation based on Ms Pintley's comment in her response "I explained to him that I was doing what I had to do". There is no evidence from Ms Brown about this incident. The evidence of Mr Matthews that Ms Pintley laughed is preferred over Ms Pintley's evidence. This is based on the fact Mr Matthews has been assessed to be a credible witness, but also because other staff have made similar comments that Ms Pintley laughed at inappropriate moments when discussing other allegations. On the basis that Ms Pintley does not provide any evidence about a consequence she issued to address A's behaviour, it is considered more likely that no consequence was put in place by her. As such, allegations 3(b) and (c) are sustained. Not only would it have been appropriate for Ms Pintley to give Mr Matthews an opportunity to respond to allegations made against him, but this event would have been a critical opportunity for Ms Pintley, as a leader of the school, to provide Mr Matthews, an inexperienced teacher, with a de-briefing opportunity. Having a sandwich smushed in his face may have been confronting and upsetting. There would have been benefit in discussing the actions leading up to it, during and after, to promote Mr Matthew's learning and understanding. lf Ms Pintley had implemented consequences for A, it would have been important for her to let Mr Matthews know how she managed the situation. Did the alleged conduct occur? Yes, there is sufficient evidence for the allegations 3(b) and (c) to be sustained. If the alleged conduct occurred, was it misconduct? No, the sustained conduct is not assessed to be misconduct. While the laughing may be a breach of the Code of Conduct to treat staff respectfully, it is not assessed to meet the threshold of misconduct. Not putting in place a consequence for a child's behaviour is considered a performance issue.
5. Ms Thorpe formed a contrary opinion in relation to these allegations to that expressed by the EPAC investigators in their report. In her findings document, Ms Thorpe stated: Allegation 3 (b) - Ms Pintley denies laughing at A having mashed the sandwich into the teacher's face and implies she did not see it occur. Mr Matthews' evidence is very clear that she saw the incident, laughed and did not do anything. A number of staff corroborate this type of conduct by stating that Ms Pintley often appeared to side with students when they behaved badly towards staff and did not follow through with consequences. I sustain the allegation and find the conduct so inappropriate and unsupportive as to amount to misconduct. Allegation 3 (c) - Mr Matthews also provides specific details of A going into the classroom and coming back with a container of paint and throwing it on him, again with no intervention by Ms Pintley. Ms Pintley provides some detail about the allegation but also does not provide any detail about imposing a consequence on the student. I sustain this particular and find the lack of action to amount to misconduct.
6. Ms Thorpe's evidence relating to these allegations is at paragraphs 20-23 of her witness statement (at [84]). She states that Mr Luscombe had put in place new behavioural management strategies and that these were explained to the appellant on her return to work, which occurred on Wednesday 19 October 2016. Ms Thorpe further states that, on the appellant's return, Ms Thompson, Ms Flynn and Mr Mathews were attempting to implement strategies on two separate occasions but the appellant prevented them from doing so and undermined the authority of those staff members in front of the students.
7. However, the appellant told the EPAC investigators that the incidents involving Mr Mathews and student A occurred on 18 August 2016, which was well before Mr Luscombe's engagement at the school and before the appellant went on sick leave in September of that year. It appears that the EPAC investigators accepted the date given by the appellant as accurate and there is nothing before the Commission to suggest otherwise.
8. It follows that Ms Thorpe's evidence to the effect that these two allegations relate to incidents where the appellant prevented Mr Mathews from implementing Mr Luscombe's behaviour management strategies, cannot be accepted.
9. I agree with the findings of the EPAC investigators, for the reasons they have stated, to the effect that the appellant's conduct which formed the basis of Allegations 3(b)-(c) "is not assessed to meet the threshold of misconduct. Not putting in place a consequence for a child's behaviour is considered a performance issue".

Allegation 4 - chicken assignment

1. The appellant has denied this allegation. She claimed that her son, Robert Larney, doesn't know Mr Mathews and was not assisted by him, on the day that Mr Larney was present at the ASU in 2016, to complete a school assignment about chickens. In an affidavit which was tendered into evidence without objection, Mr Larney confirmed that he attended CPS with the appellant on one day in 2016 because he was unable go to school that day due to injuries sustained to his knees. He also confirmed that no teacher at CPS assisted him on that day and he did not work on his assignment while he was at the school. Mr Larney was not required for cross-examination.
2. The appellant admitted that she spent about 20 minutes working on her son's assignment on a school computer while Mr Mathews was in the classroom.
3. The EPAC investigation report contained the following: Analysis of evidence Mr Matthew's evidence that he was made to work on her son's assignment is clear and logical, enhanced by his admission that he was reluctant to tell anyone about what happened for fear of professional repercussion. Ms Pintley's denies that she asked Mr Matthews to complete her son's assignment, but does say she spent a portion of a work day completing her son's assignment. Ms Pintley justifies this by saying the circumstances at the school were such that she was not given RFF and she had to work in the evenings, which impacted on her family life. Ms Pintley's evidence implies that Mr Matthews and she may have been in the same room at the time she was completing the assignment, and Mr Matthews was teaching the class. This is just as concerning as the scenario put forward by Mr Matthews and in the allegation; it would be highly inappropriate for Ms Pintley to be working on a personal assignment during work hours and utilising government resources of a casual teacher so that she did not have to teach her class. Even though there are only two accounts, on balance the evidence of Mr Matthews is preferred over Ms Pintley, as he presents as more credible. Ms Pintley's conduct is considered poor role modelling. It is not clear if Ms Pintley hired Mr Matthews for the express purpose of getting him to do her son's assignment, or if this was an afterthought on the day, but her perception of unfair experiences in the school in no way justifies this misuse of Departmental resources. Did the alleged conduct occur? Yes, there is sufficient evidence for the alleged conduct to be sustained. If the alleged conduct occurred, was it misconduct? Yes, the sustained conduct is likely to meet the threshold of misconduct as it is considered a misuse of Departmental resources and a breach of the Code of Conduct at 18.1 which stipulates that public resources must be used efficiently and effectively for official purposes and decisions relating to the use of public resources are reasonable, correctly authorised and can withstand public scrutiny.
4. In her findings document, Ms Thorpe stated: Allegation 4 Ms Pintley admits her son was present in the classroom and was doing an assignment but implies she was helping with the assignment rather than Mr Matthews. However Mr Matthews' evidence is clear and detailed and he appeared quite embarrassed that he had been given a casual day and then expected to help Ms Pintley's son rather than do work for the school. I am unsure why Ms Pintley thought it was appropriate to allow her son to sit in the Support Unit class or that she would think it acceptable to spend her own work time assisting her son. This should have been done in her own time and given the nature of the support unit, her son should not have been there under any circumstances. I sustain the allegation and find the conduct to amount to misconduct.
5. Contrary to what Ms Thorpe stated in her findings document, the appellant did not admit that her son was present in the classroom and was doing an assignment. Mr Larney denied that this had occurred.
6. Ms Thorpe's evidence in relation to this allegation is at paragraphs 24-28 of her witness statement (at [84]).
7. In relation to Ms Thorpe's evidence that the appellant's son should not have been at the school or in the classroom (paragraph 27), Ms Thorpe was cross-examined as follows: Q. Are you aware of the mitigating circumstances surrounding Ms Pintley using the school computers? A. I'm aware that Ms Pintley's son had sustained an injury and that he was at the school in the unit at the time. Q. And so it's your understanding that it was because he sustained an injury and he was not suspended from school? A. I have no idea whether he was suspended from school. The evidence is that he sustained an injury and was at school for the day, at Ms Pintley's school for the day. Q. Teachers have a right to release from face to face, so RFF, is that correct? A. I believe so, yes. Q. Ms Pintley's RFF had been taken from her by Mr Whittaker and she had to do work five days a week, having 10 duties a week, would you say that RFF is needed for teachers to plan for their class? A. It is general for teachers to have some level of RFF but I'm not an expert on RFF or teaching in that respect. Q. Would you state that, that it is that Ms Pintley used her own time to plan for her class, when her son found himself in need of his mother's support that she was not available due to lack of entitlement and made a rash decision? A. I would say that that's Ms Pintley's evidence. Q. Ms Pintley was given permission to have her son at school by Mr Whittaker, is that correct? A. I believe so.
8. It is apparent from this exchange that Ms Thorpe was aware that the appellant had been given permission by the relieving Principal, Mr Whittaker, to bring her son to the school. This somewhat diminishes the force of Ms Thorpe's criticisms of the appellant for her son being there based on safety and other concerns. There is no evidence as to whether or not these concerns were ever raised with Mr Whittaker.
9. Allegation 4 is framed in reasonably precise terms. The allegation is that the appellant instructed Mr Mathews, then a casual teacher, to be present in the classroom for the entire day when her son was also there due to injury in order for Mr Mathews to complete Mr Larney's assignment about chickens, rather than assisting in the class. This is an extraordinary allegation to make. The only witnesses who are able to give evidence relevant to this allegation are Mr Mathews, the appellant and Mr Larney.
10. The EPAC investigators formed the opinion that Mr Mathews' evidence was to be preferred over that of the appellant, as he presented as more credible. Ms Thorpe shares this opinion. I don't.
11. During the EPAC investigation it was essentially Mr Mathews' word against that of the appellant. In these proceedings, the appellant's denial of this allegation has been supported by her son whose evidence was not challenged.
12. I have some concerns about the reliability of some aspects of Mr Mathews' evidence. The picture of the appellant which Mr Mathews attempted to paint in his interview with the EPAC investigators, and in his evidence before this Commission, was of a person who spoke to staff in an accusative and aggressive manner and lacked effective communication skills. She was a person who would ridicule and scream at other staff in front of students, who would make outrageous accusations and single members of staff out for bullying students and who would just continue to "argue and scream and shout" at staff.
13. In his evidence before this Commission, Mr Mathews used the following terms to describe the appellant: "paranoid", "abusive to me" and "quite abusive and vocal, raising her voice". These descriptions do not sit well with the tone and content of the text messages sent by Mr Mathews to the appellant which are reproduced at [29] above.
14. Mr Mathews described, in some detail, the incidents involving himself and student A which formed the basis of Allegations 3(b)-(c). During his interview with the EPAC investigators on 23 June 2017, the following exchange occurred: Gallardo: Okay, so you mentioned in your statement as well that Ms Pintley sat by, encouraged and watched children bully, harass and sexualise staff members thinking it was okay to do. Mathews: Yes, mm-hm. Gallardo: You've mentioned specifically an example... Mathews: Yeah. Gallardo: ... about a student throwing a bin. Mathews: Mm-hm. Gallardo: Sandwich in your face and paint over your clothing for no reason . Mathews: Yeah. Gallardo: So was Ms Pintley present for that example? Mathews: Yes, she was, she was. Gallardo: What was her response to that? Mathews: To be honest, she just - she was just laughing, everything was a joke. Like when I - I was just out in playground duty, there's people there and this kid just walked up and literally smooshed a sandwich into my face and it was just a big joke, like was just laughing, there was no consequences embedded whatsoever and just excuses were made like, it was - like at one point she said in regards to that kid that he was - his name's A - she said that it was me that needed to reflect on my teaching practises if I wanted to teach in here and up here. And even to this day I still can't fathom why I would get that response when I - a child has walked up and smashed a sandwich in a teacher's face and then there was no consequence given whatsoever. Like there was no - even redirection from her, it was just literally my fault. Scott: Yeah. Mathews: Yeah and like even at that time, at that particular time, that also occurred, then the next minute had had thrown a bin and then she ended up saying, oh you can come inside and that's when he walked inside and then still no consequence. She apparently had - she took him inside to go and paint and then the next thing he's walked out with this big paint pot and threw paint all over me. Still there wasn't a consequence from it Scott: So in terms of her behaviour management then of students, it sounds like she didn't really have - she didn't manage. Mathews: Well there was none in place whatsoever, it was just - honestly, the only word I can describe it was a free for all.
15. However, after school at 3.35pm on 17 August 2016, the same day as these alleged incidents occurred, Mr Mathews sent the appellant the following text message (at [29]): Jo do u wanna meet and I'll shout u a coffee??? If not, all is good! I hope all is ok and u feel better tomorrow!
16. It is difficult to accept Mr Mathews' explanation for the apparent inconsistency between his expressed views of the appellant's conduct towards him and the tone and content of the text messages reproduced at [29] above, which was that he is a "nice person" and "nice to everyone".
17. There are some other problems with Mr Mathews' evidence. He told the EPAC investigators that the appellant's son was present in the appellant's classroom "because he had fallen off the treadmill or something, so she'd brought him to school". Under cross-examination, Mr Mathews was adamant that the appellant's son was at CPS because he had been suspended from his own school "because he had smashed a window or something". Mr Mathews maintained that this was the reason even when it was squarely put to him that the reason was "he fell off a treadmill" (at [26]).
18. In light of Mr Larney's evidence, the benefit of which neither the EPAC investigators nor Ms Thorpe had, I am unable to prefer Mr Mathews' version of events over that of the appellant.
19. I am not satisfied, on the balance of probabilities, that the appellant misconducted herself in the manner described in Allegation 4.
20. Ms Thorpe was critical of the appellant for using public resources on her son's school assignment in breach of clause 18.1 of the Department's Code of Conduct. The appellant admitted that she did this by working on her son's assignment on a school computer for about 20 minutes. There is substance in Ms Thorpe's criticism but this was not the misconduct alleged against the appellant which formed the basis of Allegation 4.
21. Allegation 4 has not been substantiated on the evidence before the Commission.

General observations

1. Of all of the misconduct allegations against the appellant, which are set out at [2] above, on the evidence before the Commission, only Allegations 1(a)(iii), 1(b)(ii) and 1(c)(iii)-(vi) have been proven to the requisite standard.
2. With respect to Allegation 1(a)(iii), to the extent that the appellant breached certain provisions of the FIS Handbook, I regard those breaches as minor.
3. Further, I agree with Ms Thorpe that arranging for the purchase of a pair of sport shoes for student E was an act of kindness on the part of the appellant. However, the appellant's breach of clause 22.7 of the Department's Code of Conduct is a serious issue and warranted some form of disciplinary sanction.
4. It is entirely inappropriate for any teacher, especially one in an executive position, to provide an individual student with a gift that might encourage the student to think that he or she has an individual and special relationship with the teacher or is seen as the "teacher's pet". The appellant should also have been more aware of the negative impact that such a perception might have on the other students.
5. In relation to Allegation 1(b)(ii), the EPAC investigators and Ms Thorpe, initially, were equivocal as to whether the appellant's conduct constituted misconduct. The EPAC investigation report stated that "the sustained conduct may meet the threshold of misconduct…" and Ms Thorpe, in her findings document, stated that the allegation "is sustained and may amount misconduct".
6. I am not of the opinion that bringing a birthday cake to school for the whole class or giving a student a "trinket" on his or her birthday, which the student has helped make, constitutes a serious breach of the Department's Code of Conduct. It was not alleged that the appellant only gave "trinkets" to favoured students as was the case with the sport shoes given to E.
7. The conduct of the appellant which formed the basis of Allegations 1(c)(iii)-(vi) is more serious. However, in the respondent's case, the level of seriousness of the appellant hugging students was not consistently assessed. The EPAC investigation report stated that the "physical contact is assessed to be a crossing of professional boundaries" which "may meet the threshold of misconduct", whereas, in her findings document, Ms Thorpe stated that she found the conduct "to be high risk, contrary to policy and to amount to misconduct". I agree with Ms Thorpe.
8. As stated at [140] above, I am not persuaded that the appellant was specifically told to refrain from hugging students until her meeting with Ms Brown which occurred very much towards the end of the appellant's time at CPS, but someone in her position should not have needed to be told. Some form of disciplinary action is warranted for this misconduct.
9. The vast bulk of the evidence in these proceedings dealt with the appellant's approach to the education of the students at the ASU and her behaviour management strategies, or lack thereof. There were, by way of example, significant differences of opinion between the appellant and the respondent's witnesses as to whether PBL plans were being utilised in the unit. I have not canvassed this evidence because I regard it as being more relevant to the appellant's performance in her role as the Assistant Principal at the ASU than to her alleged misconduct.
10. This appeal arose out of disciplinary action taken by the respondent based on sustained allegations of misconduct, not unsatisfactory performance. The Department's "Guidelines for the Management of Conduct and Performance" sets out separate and distinct processes for dealing with misconduct issues and issues of unsatisfactory performance ("Guidelines"), as do sections 93F and 93J of the Teaching Service Act 1980. This matter was dealt with as a misconduct matter, not as a case of unsatisfactory performance.
11. It would be wrong and contrary to the Guidelines to allow what are clearly complaints about unsatisfactory performance to determine the outcome of a misconduct process.
12. The dividing line between misconduct and unsatisfactory performance may not always be clear. Sensible minds might differ as to whether certain behaviour should be regarded as misconduct or unsatisfactory performance. For example, in this case, the EPAC investigators stated that the alleged conduct of the appellant, which formed the basis of Allegations 3(b)-(c), was not assessed to be misconduct but, rather, a performance issue (at [167]). Ms Thorpe found to the contrary that the appellant's behaviour did amount to misconduct (at [168]).
13. In this matter the potential overlap between misconduct and unsatisfactory performance issues arose most notably with respect Allegation 3(a). The allegation was that the appellant had failed in her duty of care to students by not implementing effective behaviour management strategies, by preventing Ms Thompson from utilising the strategies implemented by Mr Luscombe in relation to an incident involving student T. This allegation had elements of misconduct, in actively resisting the new procedures, as well as elements of unsatisfactory performance. The EPAC investigators found that the appellant's behaviour was not misconduct (at [157]). Ms Thorpe initially agreed, stating that the misconduct allegation which should have been put to the appellant was that she failed to follow Ms Flynn's direction to allow the student to come out of the class, but that wasn't what was put to the appellant. Ms Thorpe initially characterised the appellant's conduct in this instance as "very poor behaviour but perhaps not to amount to misconduct" (at [158]). That opinion apparently changed sometime between the preparation of the findings document on 19 October 2018 and the letter from Ms Thorpe to the appellant of 25 October 2018, referred to at [4] above. In any event, for the reasons set out at [161]-[162] above, I have determined that the conduct of the appellant, which formed the basis of this allegation, did not constitute misconduct.
14. Ms Lowe, Ms Brown and Ms Thorpe expressed reservations about the appellant's capacity to adequately fulfil the role of Assistant Principal. I have taken those concerns into account. However, I have also taken into account that the appellant was initially promoted to the role of Assistant Principal at Bankstown Public School and held that position for a number of years. There is no evidence before the Commission of any conduct or performance issues involving the appellant when she held that role. Further, Ms Goldthorp had agreed to be the appellant's referee for Assistant Principal roles after she left CPS (see [75] above).
15. In the letter to the appellant of 6 December 2018 advising her of the decision to demote her, Ms Thorpe stated "I am advised you are currently working above establishment at another school and this is reported to be going well". During her cross-examination, Ms Thorpe was shown an email to the appellant from Leah Pollett, Injury Management Advisor with the Department's Health and Wellbeing Unit, dated 29 September 2018, which contained the following: I have confirm with your current school, they are more than happy for you to remain and said that you have been a real asset to them, so that's nice to hear The following exchange with Ms Thorpe occurred Q. You state that while at Wilton Public School Ms Pintley, who was performing assistant principal duties, was going well? A. Yes, that was the advice that was provided to me. ……………………………… Q. …Would you agree that the department notes the Principal of Wilton states that Ms Pintley was an asset to their school? A. I'm aware that that's what that email says, that the school says that she's an asset to their school. Q. After leaving Coniston and moving to another school, Ms Pintley performed Assistant Principal duties with no complaints or hints of behaviour presented to EPAC from Coniston, would you agree? A. Yes. Q. EPAC also found that in Ms Pintley's 24 year teaching career, including three years at Bankstown Public School as an Assistant Principal, there were no other complaints ever made about her, is that correct? A. I didn't make any findings, if there were, I would only refer to any findings of actual misconduct in any material, so I'm assuming that that's correct.
16. It is my decision that this appeal be allowed. The disciplinary action which was imposed is excessive for the misconduct alleged against the appellant. However, based on the findings I have made with respect to Allegations 1(a)(iii), 1(b)(ii) and 1(c)(iii)-(vi), some disciplinary action against the appellant is warranted. That will be in the form of a demotion to classroom teacher for a period of approximately one year ending on Monday 9 December 2019, from which date the appellant is to be restored to, and paid at the rate of pay applicable to, the classification of Assistant Principal.
17. It is not my intention that the appellant return to Coniston Public School.
18. In coming to this decision, I have born in mind section 5A of the Teaching Service Act 1980, which is in the following terms: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
19. I am confident that the appellant is capable of resuming the role of Assistant Principal and of performing the duties of that role in competent manner. I am also confident that the appellant will take some valuable lessons from her experiences at CPS and will take care to conduct herself in a manner which will not expose her to the sorts of allegations that have been the subject of these proceedings.

Orders

1. I make the following Orders: (1) This disciplinary appeal of Joanne Pintley is allowed. (2) The decision to demote Ms Pintley from Assistant Principal to classroom teacher with effect from 6 December 2018 is varied as set out in Order 3. (3) Ms Pintley is to be restored to the classification of Assistant Principal at the appropriate rate of pay with effect from Monday 9 December 2019. John Murphy Commissioner

Amendments 25 November 2019 - Typographical errors made in paragraphs: 17, 45, 51, 83, 93, 94, 111, 141, 163, and 170. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2019