The attached document replaces the document previously issued with the above code on 31 March 2020 to correct a typographical error at paragraph [8].

[2020] FWC 1744 [Note: An appeal pursuant to s.604 (C2020/2576) was lodged against this decision.]

Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This decision concerns an application by Rabbi Pinchas Ash for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] Rabbi Ash was a Teacher of Jewish Studies at Yeshivah College, St Kilda East (the School) for more than 40 years. He was dismissed by reason of "a pattern of misconduct and unacceptable behaviour" over a period of time, in each case alleged to amount to a failure to supervise students as required and a failure to follow reasonable and lawful directions. Chabad Institutions of Victoria Limited (CIVL) maintained that the two most recent incidents were "very serious", especially having regard to the School's duty to ensure that risks to health, safety and welfare of its students are properly mitigated.

[3] Rabbi Ash does not agree that the incidents amounted to misconduct or unacceptable behaviour as alleged but, in any event, asks the Commission to determine that dismissal was a disproportionate response to any shortfall in his conduct and performance as a long serving teacher. Rabbi Ash also claims a denial of procedural fairness, his dismissal being a "fait accompli" among other things.

[4] Rabbi Ash insisted that reinstatement is the only appropriate remedy. CIVL strongly opposed.

[5] The matter was initially listed for conciliation, which Rabbi Ash refused.[1] Accordingly, a program was set for arbitration and the exchange of materials in advance.

[6] At the hearing, both parties were granted permission to be represented by lawyers having regard to the matters I am required to consider at s.596 of the Act. There was an initial application by CIVL for the matter to proceed by way of private conference, apparently motivated by its concern about the degree of public attention, which was refused having regard to the number of contested issues in evidence and on the basis that the parties were invited to apply for specific witness evidence to be heard confidentially. No such application was made and the matter proceeded by way of open hearing with agreement that there would be no photography in the hearing. An application by CIVL for an order requiring the production of documents was met with an undertaking that there was nothing to produce and was not pressed by CIVL.

[7] Rabbi Ash filed two witness statements and gave evidence at the hearing. CIVL filed five witness statements from the following witnesses, who also gave evidence at the hearing:

1. Rabbi Yehoshua Smukler, the School Principal;

2. Rabbi Leivi Morozow, Head of Jewish Studies for both the School and its sister school;

3. Rabbi Chaim Dovid Wilhelm, Student Welfare Coordinator at the School;

4. Ms Susan Reuben, Board Member and Co-Chair;

1. Ms Juliette Rosen, Head of Teaching and Learning at the School.[2]

[8] Following two days of hearing, closing submissions were filed in writing. This decision is arranged as follows:

Part B: Was the dismissal harsh, unjust or unreasonable?

III) Consideration of section 387(a) to (h)

IV) Conclusion - is the Commission satisfied that the dismissal of Rabbi Ash was harsh, unjust or unreasonable?

[9] A person who has been dismissed may apply to the Commission for a remedy pursuant to s.394.

[10] The School is operated by Yeshivah-Beth Rivkah Schools Limited (YBRSL) under governance of the YBRSL Board.[3] The School Principal is appointed by the YBRSL Board and has the delegated authority to manage the School including in relation to staffing and structure of the curriculum.[4] CIVL employs religious staff which are supplied to YBRSL and subject to the direction and oversight of the School Principal. [5] Rabbi Ash was employed by CIVL to teach religious studies at the School. [6] The dismissal letter was signed by the School Principal and the YBRSL Board of Directors.[7] Rabbi Ash gave evidence which indicates he doubted whether his dismissal was properly authorised[8] although there is no evidence that he raised this concern during the process which lead to the dismissal and it was not seriously pressed in his materials. In any event, I am satisfied that Rabbi Ash was terminated at the initiative of his employer, consistent with its management structure and delegated authority, and am therefore satisfied that the Applicant has been dismissed within the meaning of ss.385 and 386 of the Act.

[11] Section 396 of the Act sets out four matters which I am required to determine before I consider the merits of the application.

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

1. Rabbi Ash's application for unfair dismissal was made within the 21 day period required by s.394(2) of the Act;

2. Rabbi Ash was a person protected from unfair dismissal, as a modern award covered his employment in accordance with s.382 of the Act;

3. the Small Business Fair Dismissal Code did not apply to Rabbi Ash's dismissal; and

4. Rabbi Ash's dismissal was not a case of genuine redundancy.

PART B: WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?

[13] In 1978, Rabbi Ash commenced employment as Jewish Studies Teacher at the School. The offer of employment is recognised as a religious appointment, called a "Shlichus".[9] From 1989 to 2006, Rabbi Ash was the Director of Jewish Studies in the Primary School. From late 2006 until around 2012, he was the Director of Jewish Studies in the Secondary School.[10]

[14] Since 2014, Rabbi Ash reported to Rabbi Morozow (Head of Jewish Studies).[11] Rabbi Morozow reported directly to Rabbi Smukler (the School Principal).[12] Rabbi Smukler had been in that role since 2010 and ultimately reported to the YBRSL Board.

[15] Rabbi Ash was employed to work 38 ordinary hours per week, comprised of contact teaching hours, non-contact preparation hours (calculated as a factor of the number of contact teaching hours) and, in circumstances of an "underloaded" teaching schedule, the remainder would be other duties such as breakfast supervision, assessment, prayer and relief teaching to cover absences. In the 2019 calendar year, Rabbi Ash was rostered to work 19.75 face to face or contact hours, 14.362 hours in preparation for those contact hours and 2.667 hours undertaking supervisory duties. This equated to an underloaded schedule of 36.779 full time hours.[13]

[16] The contract of employment was not in evidence. However it was not contentious that fundamental requirements of Rabbi Ash's role were to ensure appropriate supervision of students at scheduled times (in doing so, to take reasonable care for their health and safety) and to follow the reasonable and lawful directions of his managers (as or on behalf of his employer).[14]

[17] CIVL contends that there was a valid reason for Rabbi Ash's dismissal. The dismissal letter cited "the reason for this decision" as:

"...due to your misconduct and your unacceptable behaviour over the last several months and your recent conduct, in particular:

• On 19 April 2018, you failed to attend for your scheduled class leaving the students under your care unsupervised; (First Incident)
• Continuously dismissing students early, or allowing them to exit the classroom during scheduled class time, despite repeatedly being asked to ensure the students remain safe, sound and supervised in the class for the duration of the lesson; (Second Incident)
• After being repeatedly reminded in person and in writing of the absolute requirement to attend and supervise your students, on 30 October 2018, you again failed to attend school assembly to accompany your students, once again leaving the students under your care unsupervised; and (Third Incident)
• Despite being reminded of your duty of care, explicitly about breakfast supervision on 15 February 2019, only a few days later on 20 February 2019, without notification you again failed to attend for your rostered duty in the school cafeteria, resulting in the students under your care once again being unsupervised. On this occasion a student was injured. (Fourth Incident)

Following each of the incidents outlined above, amongst numerous others in recent and past years, Rabbi Morozow, Head of Jewish Studies and Mesivtah counselled you to highlight the seriousness of these issues, and to make it clear what was expected. Furthermore, following the final incident on 20 February 2019, Rabbi Morozow specifically advised you that, if there was any further incident where you failed to execute your supervisory duties, disciplinary action may be taken and your employment may be terminated.

Despite this unequivocal warning, on 6 March 2019, without notifying YBR or your colleagues, you failed to attend your Year 7 Chassidus class, leaving your students without supervision. Another staff member eventually stepped into your role to run your scheduled class." (Fifth Incident)

Your conduct evinces a pattern of behaviour that has resulted in at least 5 separate incidents in the previous 12 months where you have failed to comply with the requirements of your role and follow the reasonable and lawful instructions of YBR.

These incidents occurred following similar type incidences during 2017 and prior." (the Prior Conduct)

[18] Rabbi Ash submitted that the "fairness" of his dismissal should be assessed by reference to those events identified in the dismissal letter, totalling five reasons for his dismissal. Further, any minor infractions of Rabbi Ash related to those five incidents (although not accepted) did not individually or collectively justify CIVL's conclusions that he did not fulfil his role, did not follow directions or risked students' health and safety. That is, CIVIL's conclusion did not follow from any conduct or performance shortfall. [15] Before the Commission, CIVL contended that Rabbi Ash's most recent conduct was the "last straw", to be evaluated in light of the history and pattern of behaviour, such that all of the circumstances should be taken into account.[16]

[19] Each incident is addressed further below.

[20] The First Incident involves an allegation of an "extras" class on 19 April 2018 which Rabbi Ash was scheduled to but did not attend, leaving the students in his care unsupervised.

[21] It is common ground that:

1. "extras" are relief teaching classes often scheduled on short notice to cover teaching absences;

2. Rabbi Ash performed regular extras during 2018 because his schedule was underloaded;

3. at 8.55am on 18 April 2018, Rabbi Ash emailed Rabbi Morozow to advise that he was not available for extras on 19 April 2018 due to a pre-arranged eye doctor appointment; and

1. on the morning of 19 April 2018, Rabbi Ash and Rabbi Morozow had a discussion about an extra duty for a class commencing at 11.15am.[17]

[22] The Rabbis disagree on the outcome of their discussion:

• Rabbi Morozow recalled that the discussion had taken place sometime on the morning of 19 April 2018 and the outcome was that Rabbi Ash would take the class from 11.15-11.45am, and deliver the students to the library before he would need to leave the School to attend his appointment.[18] He subsequently wrote an email to Rabbi Ash, sent at 11.04am: "As discussed, you will take Ziggy's class at 11.15 until 11.45 as you mentioned in an email yesterday, since you have an appointment past the city at 12.30, you will need to leave the class room at 11.45. Please take them up to the Library for the last 10 minutes". At 12.27pm, Rabbi Morozow wrote to Rabbi Ash by email again: "I'm not sure what happened, as per our discussion, you agreed to take the class at 11.15 until 11.45 But for some reason, this did not happen Boys were left unattended until it was realized you were not there, and someone else had to drop everything else to take the class.".[19]

• Rabbi Ash recalled that the discussion had taken place at 10.55am on 19 April 2018 and that this was the first he knew of being assigned the extra class for the 11.15am period. He recalled telling Rabbi Morozow that he needed time to gather his papers from home and allow travel time to his appointment.[20] Rabbi Ash said that he had not seen Rabbi Morozow's 11.04am email as he was on recess duty, nor did he see the 12.27pm email until later that day. At 10.11pm, Rabbi Ash replied to those emails including to state (among other things):"You misunderstood me. [...] When I said I would need to leave at 11.45am to be in time for the appt. on the other side of town, that was not an agreement to teach until 11.45am. I still had other things to do to prepare to leave. I never understood that I had to teach an extra till 11.45am.".[21]

[23] In his email of 10.11pm that day Rabbi Ash said: "I am sorry that the class was unsupervised for 30 minutes [and also that someone else had to step in at such short notice] but I do not believe I was at fault here at all", reiterated in the context of these proceedings: "At no time, did I leave any class unattended.".[22] In submissions, Rabbi Ash invited the Commission to put the absence of supervision down to a transient miscommunication of no great moment, representative of a small proportion of the many extra classes that Rabbi Ash performed that year.[23]

[24] On 22 April 2018, Rabbi Morozow forwarded his email exchange with Rabbi Ash to Rabbi Smukler with the word: "FYI".[24] It was not alleged that there was any further communication about the First Incident until the final disciplinary meeting of 29 March 2019 which concluded with Rabbi Ash's dismissal.[25] For his part, Rabbi Ash said that the allegation relating to 19 April 2018 "was never raised before with me".[26]

[25] The Second Incident was described in the dismissal letter in general terms, alleging that Rabbi Ash continuously dismissed students early or allowed them to exit class despite repeatedly being asked to ensure the students remained safe, sound and supervised for the duration of the lesson.

[26] Initially, Rabbi Ash did not give detailed evidence because he had no particulars but he recalled that any dismissal from class that may have occurred five minutes early was expressly permitted by Rabbi Morozow where warranted.[27]

[27] Before the Commission, Rabbi Morozow provided examples of what he described as having counselled Rabbi Ash over this "longstanding issue".[28] The evidence of those examples and Rabbi Ash's responses given in the context of these proceedings, are summarised as follows:

1. On 6 August 2014, Rabbi Morozow emailed Rabbi Ash about concerns with his performance, including an incident on 23 July 2014, where Rabbi Ash released his Year 8 class ten minutes early during which a fight broke out between two boys. The email is in evidence and includes a reminder to Rabbi Ash of his duty of care to his students and the importance of ensuring they are not dismissed early. Rabbi Ash did not dispute the allegation but maintained that it was the only issue of its kind raised and was not addressed as a disciplinary issue until these proceedings.[29]

2. In the 2014 teaching year, Rabbi Morozow kept a record of the instances when Rabbi Ash had released students early consistent with the Second Incident. The record was in evidence and included brief notes alongside each recorded date such as "arrived late" and "took boys for a Free for the last 12 minutes". Rabbi Ash argued that this record did not demonstrate a failure on his part to supervise students and maintained he had not seen this document before and it was not addressed as a disciplinary issue until these proceedings before the Commission.[30]

1. At end of 2016 teaching year, in November 2016, Rabbi Morozow discussed a "team teaching" arrangement to be implemented between Rabbi Ash and Rabbi Wilhelm (Student Welfare Coordinator) the following year. Rabbi Morozow raised concerns with Rabbi Ash about his performance including letting students out from class early, allowing students to depart class for extended periods without explanation and failing to supervise students when outside as well as YBRSL's expectations regarding classroom management and teaching. Rabbi Morozow's meeting notes were emailed to Rabbi Ash on 16 November 2016 and are in evidence. Rabbi Ash did not deny the allegation but maintained that this was addressed contemporaneously and was not revisited again until these proceedings before the Commission.[31]

1. On 29 August 2017, Rabbi Morozow had emailed Rabbi Ash about an incident on or around 28 August 2017 involving Rabbi Ash's students claiming to have been released from class 15 minutes early. The email expressed disbelief that students would have been allowed to leave class fifteen minutes early, and included a direction to "please follow up with them (the students) for leaving class early and skipping class". Rabbi Ash denied that he allowed the students to leave class early, maintaining that these students were released early to attend a special education class and then did not return to his class as expected. He said that he had discussed the issue with the students the next day as directed and it did not happen again.[32]

2. At the end of the 2017 teaching year, in October 2017, when discussing the teaching offer for the following 2018 year, Rabbi Morozow raised ongoing issues with Rabbi Ash's conduct and performance which he said was a similar discussion to that of November 2016. Rabbi Morozow raised the example of students in Rabbi Ash's Girsa class regularly playing outside instead of learning in class and were frequently being released early. Rabbi Morzow again reminded Rabbi Ash of the School's expectations including his duty as a Teacher (as distinct from the duty of the School at large) to ensure the safety of students and to ensure all students are accounted for. He kept meeting notes which were not provided to Rabbi Ash at the time. In cross-examination, Rabbi Ash accepted the notes reflect that this conversation occurred but he did not recall it, although he did recall that Rabbi Morozow had told him of the School's expectation that when a student is late, it is the responsibility of the teacher and not the School at large to follow up regarding that lateness and could recall his response - which was to the effect that he would take a different approach to following up than Rabbi Morozow had suggested.[33]

3. On 15 February 2019 Rabbi Morozow wrote to Rabbi Ash to, among other things, raise a concern that students had been dismissed early on Wednesday of that week (13 February 2019). Rabbi Morozow said he had been informed that Rabbi Ash's students were outside playing cricket, unsupervised.[34] Rabbi Ash denied that specific allegation, saying he had supervised the students as they played cricket for a short period time and that this is something teachers do on occasion and is permitted.[35] Rabbi Morozow's 15 February 2019 email included a reminder of Rabbi Ash's duty to teach students the value of time when learning Torah and further the School's expectation that Rabbi Ash will discharge his duty of care as part of professional practice:

"students need to be supervised, and it is the teachers responsibility to supervise until the end of the lesson, as part of our duty or care. ... if students are unattended and have nothing to do, there is no one to make sure students don't do anything silly, this is a time for disaster to take place, someone can get hurt [..] and we will be negligent. We can also be sued by parents if this is to happen, (the one that will end up needing to defend himself is the teacher in charge) We need to eliminate such a possibility.".[36]

[28] Notwithstanding the individual examples that were denied, Rabbi Ash accepted that there were occasions when he dismissed students from class early.[37] He explained as follows:

1. He believed that since early 2018 he had the permission or Rabbi Morozow to release students early no more than five minutes prior to class end, based on a discussion about a class with particular difficulties;
2. The nature of that particular class was that it involved academically less able and less motivated students in Years 10, 11 and 12 (aged 16 to 18 years); it was not an ATAR subject which did not attract or impact the students' ATAR scores meaning some students rated the subject as less important than other subjects; and

1. Even so, early dismissal within five minutes of the bell did not amount to a failure to ensure safe and sound supervision of the students in his care.[38]

[29] Rabbi Morozow denied having authorised anything other than the early release of students on "rare occasions" and in response to Rabbi Ash's advice that the 2018 class was difficult. He said the 2019 class was different in terms of its learning needs. And, even on those rare authorised occasions, maintained that Rabbi Ash remained responsible at all times to supervise the students for the remainder of the class.[39]

[30] Rabbi Ash agreed that 2019 was a different class and said "as a result I rarely dismissed that class early in 2019". [40] He did not disagree with or dispute Rabbi Morozow's evidence that at all times, even if dismissing from class early, he was required to ensure the students remained supervised. He denied ever having been counselled by Rabbi Morozow, about this or any issue.[41] In submissions, Rabbi Ash asked the Commission to accept that early dismissal within five minutes of the bell sounding to mark the end of class did not amount to his failure to ensure that his students were safe, sound and supervised; and to disregard the older examples as of no assistance; and to otherwise accept that he acted within the scope of the authority that Rabbi Morozow accorded to him.[42]

[31] It was not alleged that there was any further communication in relation to the matters particularised at [27](a) to (f) of this decision until the final disciplinary meeting of 29 March 2019. Rabbi Smukler's evidence of that meeting is that he tried to list all of the allegations but kept being interrupted by Rabbi Ash, which Rabbi Ash disputed.[43] In submissions, CIVL did not seek to emphasise the significance of the examples it said formed part of this Second Incident, other than to paint the backdrop against which it said the Commission should assess whether the dismissal was harsh, unjust or unreasonable.

[32] The Third Incident relates to Rabbi Ash's alleged failure to attend a school assembly on 30 October 2018, leaving the students in his care unsupervised despite repeated reminders of the absolute requirement to attend and supervise his students.

[33] Rabbi Ash initially could not recall the incident and denied the accuracy of the allegation that he left students unsupervised at assembly because his class did not have its own identity and more than one teacher would have been present to supervise on assembly; but ultimately accepted that he was required to attend assembly as part of his timetabled supervisory duties and did not attend on 30 October 2018.[44] In cross-examination, Rabbi Ash could clearly recall that he found the students and brought them in to assembly, but may then have gone to the bathroom because he was unwell.[45]

[34] Also on 30 October 2018, Rabbi Morozow followed up with Rabbi Ash by email, which included a reminder of the School's expectation that "teachers are expected to accompany and supervise their students during assembly" and a direction to "please ensure in the future that you are present in actively supervising the student (sic)".[46] There is no evidence of any response by Rabbi Ash to that 30 October 2018 email or of any formal disciplinary action until the disciplinary meeting of 27 March 2019.[47]

[35] To the extent that the Third Incident as drafted in the dismissal letter inferred prior failures to attend School assembly, the only evidence was a meeting note of Rabbi Smukler dated 22 May 2012 in which he recorded having had a discussion with Rabbi Ash about the standard of his performance and the expectations of him in his role. Those notes are in evidence and reference that Rabbi Ash failed to attend compulsory school assemblies as directed.[48] There is no evidence of that discussion in 2012 being raised again with Rabbi Ash.

[36] In submissions, Rabbi Ash asks the Commission to accept his absence from the School assembly on 30 October 2018 as an isolated incident of not attending assemblies, a minor infraction which is not a significant foundation for the allegation of failure to perform the requirements of his role, following directions and ensuring the health and safety of the students. He considers that, even together, this incident and the reference in Rabbi Smukler's 2012 notes do not establish a pattern of not attending assemblies or to follow directions to do so.[49]

[37] CIVL argues that Rabbi Ash's absence at the assembly on 30 October 2018 is an example of a failure to supervise students as required and to follow reasonable and lawful directions, part of the pattern of behaviour which ultimately justified dismissal.[50]

[38] The Fourth Incident involves an alleged failure by Rabbi Ash to attend breakfast supervision on 20 February 2019, in breach of his obligation to supervise students as scheduled and resulting in students being unsupervised and an injured student. It is alleged that this occurred a few days after a reminder, specific to breakfast supervision, was given to Rabbi Ash on 15 February 2019.

[39] After the commencement of the School year on 29 January 2019, Rabbi Ash was rostered to perform breakfast supervision duty which was published electronically via a learning management system referred to as "SEQTA". Rabbi Smukler and Rabbi Morozow maintained that the School expects teachers to remain abreast of their schedule on a daily basis through the dynamic SEQTA system. Their expectation was that Rabbi Ash would perform three breakfast duties per week on Mondays, Wednesdays and Fridays, when not otherwise scheduled for prayer or other teaching duties.[51]

[40] Rabbi Ash did not dispute that he was familiar with SEQTA. There were examples in evidence of his use of SEQTA. However he denied it was his responsibility to check SEQTA and had not checked SEQTA but rather was operating from a draft schedule of 18 January 2019 (which did not include the breakfast duty supervision).[52] He said he was unaware of his breakfast supervision duty, other than via a discussion with Rabbi Morozow in which Rabbi Morozow said he was required to do the breakfast duty because his schedule was underloaded.[53]

[41] On the afternoon of 15 February 2019, Rabbi Ash received an email from Rabbi Morozow which clarified the number of teaching and supervisory hours he was required to perform to fill his full time role, and that he was required to perform breakfast supervision. The email addressed a number of items but, relevantly, one purpose of the email was described as to "ensure there would not be any confusion" about when supervision is required. The email also stated:

"If you don't want to do the breakfast supervision, then I need to employ someone else, then I have no choice than to take this off your pay and change you to part time if this is what you wish to do.

To clarify times, breakfast time is 20 minutes, this is the last 20 minutes before period 3 (Monday and Thursday 9.30-9.50, Tuesday Wednesday and Friday 9.20-9.40, Rosh Chodesh it will be from 9.40-10.00). It is our professional duty to have students supervised, unfortunately several times I have seen you preparing in a classroom during breakfast supervision. I hope that now that times are clearly specified, there won't be any confusion of when supervision is required."[54]

[42] In the context of another issue, that same 15 February 2019 email concluded by reminding Rabbi Ash of his duty of care to students and the risk if students were not supervised.

[43] Before his breakfast supervision duty on the morning of 18 February 2019, Rabbi Ash responded to the 15 February 2019 email with: "Why have you written such a long email?". There was no further detail in his response.[55]

[44] Also on 18 February 2019, Rabbi Ash attended for breakfast supervision duty. Having performed the duty, Rabbi Ash did not consider the breakfast supervision was the best use of his time; he felt that his forte was teaching and would prefer to teach, influence and educate the boys.[56] He subsequently approached Rabbi Morozow to request alternate arrangements. In his own words, Rabbi Ash recalled saying to Rabbi Morozow "I don't like doing the breakfast duty. Is there an option - is there an alternative option that you can arrange?". The two Rabbis brainstormed a few options and Rabbi Morozow agreed to explore the possibility of alternative arrangements in the future. It is agreed that no conclusion about an alternative was reached arising from that discussion. Rabbi Ash accepted that he was never told that an alternative had been arranged.[57]

[45] On Wednesday 20 February 2019, Rabbi Ash did not attend to supervise breakfast. On 21 February 2019, Rabbi Morozow emailed Rabbi Ash in which he advised of an incident involving students in the cafeteria during breakfast the previous day and that it was alleged there was no teacher supervision. The email went on to remind Rabbi Ash of the times of breakfast duty and further:

"..can you please ensure that you are at the cafeteria during Mesivtah breakfast supervising.

I mentioned in a previous email, that unfortunately I have seen you in class instead of the cafeteria, and requested that this should not be repeated again. It was also mentioned in the email, that should something happen when a teacher is not present, we are negligent, and as mentioned in that email, if you as (sic.) the teacher it will be your responsibility.

Please make sure that this doesn't repeat itself again."[58]

[46] On 22 February 2019, Rabbi Ash responded with:

"So if [student name] would have been in class where he should have been, there would have been no incident. I think that should be followed up too."[59]

[47] On 24 February 2019, Rabbi Morozow replied to reiterate that, notwithstanding any need to follow up with the student(s), it is a "fundamental duty of care" for all teachers to supervise their students whilst on duty, in class or any other time he was responsible for them and, further:

"Please be aware that in the last number of months, this is not the first time that you have abrogated your duty of care.

Unfortunately, I need to state for the record, that should this happen again, this may result in further disciplinary action, or suspension or termination of employment.

Please understand that this is not in my hands, and I do want to see you succeed and look after our children correctly, however, I am obligated to bring this to your attention, as it puts the children, you and the school at risk.

I trust that we won't need to bring this to your attention again, as next time it won't be sufficient to simply have a communication about this matter."[60]

[48] On 25 February 2019, Rabbi Ash responded:

"You have been misinformed. I have never abrogated my duty of care to my students. On the contrary, I have replaced other teachers who have not been able to attend to their class." [61]

[49] There is then an exchange between Rabbi Morozow and Rabbi Ash from 25 to 27 February 2019, in which Rabbi Ash maintains that he has "executed all my duties as required and much more" and further that he believed the reason cited for "commencing a termination process" required clarification because Rabbi Morozow had been misinformed.[62]

[50] In evidence before the Commission, Rabbi Ash explained his failure to attend on 20 February 2019 as being in reliance on the discussion with Rabbi Morozow that took place on 19 February 2019. Rabbi Ash maintained that arising from the 19 February 2019 discussion he believed he was no longer obligated to perform breakfast supervision duty because Rabbi Morozow had said he would be seeking alternative arrangements. He believed Rabbi Morozow had the power to direct someone else to perform the duty whilst in the process of looking into alternative options.[63]

[51] Also in evidence before the Commission, Rabbi Morozow acknowledged that he had agreed to explore alternative options, to see if he could find someone else, but denied that there was any change to Rabbi Ash's breakfast duty roster pending that consideration or arising from the 19 February 2019 discussion. His evidence was that none of the proposed alternatives to Rabbi Ash performing the breakfast supervision duty had been arranged. Rabbi Ash had not been allocated any alternative duty and there had been no agreement to change his employment status and deduct his pay which was the only other alternative as communicated on 15 February 2019. Rabbi Ash agreed that those were the three alternatives that had been discussed prior to the 20 February 2019 duty.[64]

[52] Rabbi Ash accepted that Rabbi Morozow had referenced an incident in his initial email, but gave evidence that the first he knew of a student being injured during the breakfast period on 20 February 2019 was when Rabbi Smukler told him of this in a disciplinary meeting on 27 or 29 March 2019.[65] Before the Commission, Rabbi Smukler described the incident as involving "an altercation with another, older child and he received a minor injury".[66] Rabbi Smukler could not elaborate on the nature of the injury and did not have the incident report with him in the witness box, but could recall that the first aid officer attended to the child, the child returned to class and it was reported to him as a minor injury.[67]

[53] In submissions, Rabbi Ash argued that, on the basis of the 19 February 2019 discussion, it was not clear to him that he was required to perform the 20 February 2019 breakfast supervision duty. He pointed to his email responses in which he maintained that he had discharged all of his duties and much more as supportive of such finding. Rabbi Ash also argued that any injury was apparently minor because, at the time of giving evidence to the Commission, the School Principal did not even know details of its nature and the student continued in his classes that day. There was no medical evidence before the Commission of this. Notwithstanding, Rabbi Ash submitted that "at worst" he should have been more careful in clarifying the situation given his electronic schedule on SEQTA and the email of 15 February 2019. And, even if the Commission preferred Rabbi Morozow's version, Rabbi Ash's absence does not make good the proposition that he failed to comply with lawful and reasonable directions, that he did not comply with the requirements of his role or that he did not ensure the safety of his students. The scale of carelessness warranted no more than a reminder email.[68]

[54] In submissions, CIVL argued that the failure to perform breakfast duty on 20 February 2019 was an important incident, not just because it forms part of its valid reason for the dismissal but also because it is indicative of Rabbi Ash's overall irresponsible and disingenuous approach to his employment, including when dealing with those in authority. It said that Rabbi Ash's excuse that he believed he was not required to perform the 20 February 2019 breakfast duty is a recent invention and disingenuous, not being offered in the emails that were exchanged around the time of the incident. It asked the Commission to infer that the real reason Rabbi Ash did not attend the breakfast duty was because he arrogantly and irresponsibly took the view that it was not a good use of his time to supervise breakfast. CIVL should not have to tolerate a situation where a staff member, not for the first time, was not present supervising when an incident or potential incident affecting a student's health and safety occurs or might occur. Further, that the Commission should accept that this incident resulted in a written warning, including that termination of his employment may follow if there was a further failure to supervise students, as communicated to Rabbi Ash by Rabbi Morozow in his email of 24 February 2019.[69]

[55] The Fifth Incident relates to an allegation that Rabbi Ash missed a scheduled Year 7 Chassidus class on 6 March 2019, leaving his students without supervision despite a prior unequivocal warning.

[56] Rabbi Ash accepts that he did not attend the Year 7 Chassidus class as rostered on 6 March 2019.[70]

[57] On 10 March 2019, the issue was raised by Rabbi Morozow in an email which requested an explanation for his absence. That email acknowledged it was drafted earlier but did not send.[71] That same day, Rabbi Ash responded as follows:

"Sorry about that. My mind was working off the previous few years' timetables that were Monday and Tuesday."[72]

[58] In submissions, Rabbi Ash asked the Commission to accept that he immediately acknowledged his error and explained his oversight. Other teachers had missed classes. Rabbi Ash asked the Commission to accept this incident as a minor infraction which is different in type and character to the Fourth Incident regarding the breakfast supervision. He submitted that a warning was appropriate and termination a disproportionate response.[73]

[59] CIVL considered it a simple task for Rabbi Ash to check his timetable on SEQTA. Rabbi Morozow's evidence was that, in his experience, it is possible for a teacher to miss a class but this occurred very seldomly.[74] CIVL submitted that, by this time, Rabbi Ash had run out of any possible let alone reasonable excuses. His apology was brief and perfunctory and, even at this point, still accompanied by an excuse which revealed his lack of insight into his own conduct and the serious nature of it. It argued this was another opportunity foregone to take responsibility for his own failure to supervise, a failure to demonstrate any prospect that he had reformed.[75]

[60] The dismissal letter referred to the five incidents (described as First to Fifth Incidents above) as having followed "similar type incidences during 2017 and prior". Initially, Rabbi Ash said he had no idea what they were.[76]

[61] By way of explanation as to the other unspecified breaches referred to in the dismissal letter, Rabbi Morozow gave evidence that his letter of 15 February 2019 described the various other ways in which Rabbi Ash had been performing below expectations.[77] That email referred to a number of items, including to raise concerns about student assessments which was denied by Rabbi Ash, and he explained by reference to assisting another teacher with their class.[78] The evidence of the remaining items have been addressed above in the context of the Second and Fourth Incidents.

[62] The 15 February 2019 email included a reminder of Rabbi Ash's duty to teach students the value of time when learning Torah and further the School's expectation that Rabbi Ash will discharge his duty of care as part of professional practice:

"students need to be supervised, and it is the teachers responsibility to supervise until the end of the lesson, as part of our duty or care. ... if students are unattended and have nothing to do, there is no one to make sure students don't do anything silly, this is a time for disaster to take place, someone can get hurt [..] and we will be negligent. We can also be sued by parents if this is to happen, (the one that will end up needing to defend himself is the teacher in charge) We need to eliminate such a possibility.".[79]

[63] It was not alleged that these other items in the 15 February 2019 email (the allegations about early dismissal before Mincah and the assessments) were specifically put to Rabbi Ash as part of the disciplinary process in March 2019, which ultimately resulted in his dismissal.

[64] During the course of these proceedings, CIVL presented additional evidence of Rabbi Ash's alleged unsatisfactory conduct and performance prior to those mentioned in the dismissal letter, dating back to at least 2010 and one example from 2006. These other allegations were summarised as involving Rabbi Ash having: undermined superiors, arrived late to classes and regularly arrived late for work, dismissed students early, regularly cancelled lessons with little or no notice, routinely left children unsupervised in the playground and failed to attend for parent-teacher interviews. It was also alleged that Rabbi Ash generally performed poorly in his role, for example as evidenced by graduating students' exit interviews conducted by the YBRSL Board in 2018, in which feedback included that Rabbi Ash regularly came late to class and let students come and go as they pleased.[80] In cross-examination, Rabbi Smukler conceded that he did not have any paperwork regarding the incidents or concerns that were alleged as having occurred prior to 2010, that he was not privy to any formal performance management regarding those incidents.[81]

[65] In submissions, Rabbi Ash asked the Commission to disregard these other allegations on the basis that historical events do not establish a poor pattern of performance. He strongly denied any suggestion of poor performance as a teacher. He said that CIVL had fine-tooth combed his employment history, going back to 2006 involving the since-deceased Rabbi Groner, to present its narrative of a "pattern of behaviour":

1. The example from 2006 involved the since-deceased Rabbi Groner;
2. The examples from 2010 involved individuals who were not called as witnesses;

1. At best he said that CIVL's evidence demonstrated a formal disciplinary process commenced in 2012 which was on hold by 2013.[82]

[66] Rabbi Ash also submitted that these events were of no assistance to the Commission because they are too old, varied in character, sporadic and too superficially raised in the evidence for the Commission to be satisfied of wrongdoing. They do not provide a solid foundation for the conclusion that the 2018-2019 events constituted the continuation of any "pattern".

[67] CIVL did not allege that these examples prior to 2010 were put to Rabbi Ash as part of the disciplinary process that led to his dismissal, and did not seek to rely on these examples as supportive of a valid reason other than to paint the backdrop against which the more recent conduct is to be assessed.[83]

[68] Rabbi Smukler gave evidence that he is generally responsible for managing staff issues with the input of the YBRSL Board and on advice from management staff (in this case, Rabbi Morozow as Rabbi Ash's direct manager).[84]

[69] Rabbi Ash pointed to the dedicated email address "HRqueries@yeshivahcentre.org" and two dedicated roles HR and Payroll Coordinator (performed by Sandra Kaye) and Payroll Specialist/Manager (performed by Kylie Anderson) and provided emails with their names and titles in the signature.[85] Rabbi Smukler denied that there is a dedicated human resources department. He said that Ms Kay no longer works for the School but was previously employed as an assistant to the payroll office and Ms Anderson was a contractor who had been employed for a few weeks.[86] Rabbi Smukler acknowledged that external human resources support is provided on occasion by Independent Schools Victoria or external legal advisors. He acknowledged that advice was sought from HR Legal about the disciplinary process in relation to Rabbi Ash.[87]

[70] CIVL relied on the evidence summarised above in support of its contention that Rabbi Ash had been counselled and warned about his conduct and performance on a number of occasions, over a period of time prior to the Fourth Incident on 20 February 2019. CIVL submitted the 24 February 2019 email constituted a specific warning that disciplinary consequences including termination of employment may follow if there were further failures to supervise students in breach of his fundamental duty of care to his students.[88] Rabbi Ash said he had never been counselled by Rabbi Morozow as was alleged in the dismissal letter.[89]

[71] There was a delay in raising the Fifth Incident with Rabbi Ash which Rabbi Morozow said was drafted earlier but ultimately not sent until 10 March 2019.[90] Rabbi Smukler said the decision was also made to delay taking any action following the Fifth Incident until after Rabbi Ash's family wedding and the week of seven blessings which Rabbi Ash verified was a reference to his daughter's wedding, which took place on 17 March 2019 and for the period of 7 days thereafter.[91] Rabbi Smukler's evidence was that measures were put in place to ensure Rabbi Ash was meeting his obligations in the intervening period; Rabbi Ash recalled he was told that his performance had been "perfect" during this period.[92] However Rabbi Smukler said it was simply not sustainable for the School to continue that level of supervision to ensure Rabbi Ash performed to the standard required.[93]

[72] At 8.15pm on 25 March 2019, the YBRSL Board had its monthly meeting at which Dr Reuben, Rabbi Smukler and Rabbi Johnson (among others) were present. The minutes of that meeting record that:

1. Rabbi Smukler raised a concern and plan of action regarding a staff member, Rabbi Ash, recorded as "there have been multiple situations whereby Rabbi Ash, a teacher in YS has failed to attend classrooms and associated duties despite repeated reminders and request to do so. Children have thus been left unsupervised. Rabbi Ash has been warned formally on multiple occasions and advised that he will be dismissed for misconduct if the situation occurs again. Most recently a child was injured when a classroom was left unattended due to Rabbi Ash not attending class."

2. Rabbi Smukler advised the Board that Rabbi Ash had "clearly breached his duty of care on multiple times. There is also a repeated pattern of behaviour with no sign of improvement that will result in a risk of serious injury therefore should be dealt with." The Board was advised that there was detailed supporting documentation and warning letters that have been communicated over the years. Further, that Rabbi Smukler considered the ability to ensure the safety of the students to be hindered if Rabbi Ash remained employed.

3. Rabbi Smukler "sought the Board's support in terminating Rabbi Ash's employment".

4. The School's lawyers had suggested that "Rabbi Ash be offered an ex-gratia payment to recognise his years at the School, even though the reason for termination of employment is misconduct".

5. There was discussion about the process that had been followed by the School regarding the misconduct.

6. The Board then "AGREED that full support is given for the letter to be sent to Rabbi Ash, and for RYS (Smukler) to deal with the matter as he sees fit and meet with Rabbi Ash."

1. Rabbi Johnson was "uncomfortable with the outcome as Rabbi Ash is a member of the community and close to RYJ (Rabbi Johnson)".[94]

[73] At 1.25pm on 26 March 2019, Rabbi Ash received an email and letter from Rabbi Smukler with the subject line "Important Letter from the Principal and YBRSL Board".[95] The letter refers to the incident described above as the Fifth Incident, specifically that on 6 March 2019 Rabbi Ash "once again failed to attend to his allocated class, without notifying YBRSL's administration or management in advance", and "this resulted in (his) students being left unsupervised for an unacceptable period of time creating an unacceptable safety risk and is another breach of duty of care".[96] It stated that the allegation is substantiated and that the School considered the matter to be serious and a breach of Rabbi Ash's professional obligations. The letter required Rabbi Ash to attend a meeting scheduled for 9.00am the following day, 27 March 2019, to discuss the Fifth Incident and "other behaviours as will be discussed in our meeting" (not identified in that letter or the cover email). He was invited to bring a support person to the meeting, being someone other than a current employee of the School or a governing member of the School's Board. Rabbi Ash requested to delay the meeting so that he could arrange a support person, which was granted such that the meeting would commence 2 hours later at 11.00am although that did not assist and the meeting proceeded at 9.00am.[97]

[74] On 27 March 2019, Rabbi Ash attended the scheduled meeting along with Rabbi Smukler, Rabbi Johnson (YBRSL Board Member), and Mr David Sztrajt from HR Legal (as legal representative of the School). Rabbi Ash said he did not have a support person because he was not able to arrange one in the time available.[98] In that meeting, the incidents described above as the Third Incident, the Fourth Incident and the Fifth Incident were put to Rabbi Ash, as was the general allegation that there had been a large number of times that Rabbi Ash had been directed not to dismiss students early or leave the unsupervised, and Rabbi Ash responded.[99] There was no evidence and it was not alleged that the First Incident, specifics of the generally described Second Incident (other than to the extent of the Fourth Incident) and the Prior Conduct were put to Rabbi Ash in that meeting. Rabbi Smukler's evidence was that Rabbi Ash regularly interrupted his attempts to raise specific allegations with Rabbi Ash, whereas Rabbi Ash maintained that he sought to respond to each allegation raised and Rabbi Smukler was not prevented from mentioning others.[100]

[75] At 6.29pm on 27 March 2019, the School's lawyer corresponded with Rabbi Ash's lawyer to require his attendance at a follow up meeting at 8.30am on 29 March 2019, to discuss the outcome of the 27 March 2019 meeting. [101] Rabbi Ash was also stood down on full pay with immediate effect from the time of that letter.[102]

[76] On 29 March 2019, Rabbi Ash attended the scheduled meeting along with Mr Rob Jackson (as Rabbi Ash's legal representative), Rabbi Smukler, Dr Reuben and Mr Sztrajt. Rabbi Smukler recalled that, in that meeting, Rabbi Ash accepted that his failure to attend class on 6 March 2019 warranted the issue of a warning.[103] Rabbi Smukler said there was a "one hour plus discussion" before a recess taken, which Rabbi Ash agreed was a recess of ten minutes in duration.[104] Rabbi Ash and Dr Reuben gave evidence that Rabbi Smukler read from a pre-prepared dismissal letter during the meeting (although Rabbi Smukler denied that the meeting commenced with this).[105] At the conclusion of the 29 March 2019 meeting, Rabbi Ash was handed the dismissal letter. The dismissal letter attached a deed of release with an offer.[106] Rabbi Ash's employment was dismissed effective immediately with seven weeks' pay in lieu of notice.[107]

[77] Dr Reuben's evidence was that, in light of the then impending departure of Rabbi Smukler from his role as School Principal, the Board considered it important to make clear that any decision Rabbi Smukler took had full support of the Board, that she fully supported Rabbi Smukler's decision to terminate Rabbi Ash's employment and she attended the final meeting on 29 March 2019 to demonstrate the support of the Board.[108] In cross-examination, Dr Reuben's evidence was that after the meeting on 27 March 2019, there was a discussion about the responses that Rabbi Ash had given in that meeting. Arising from that discussion, she said a decision was taken to terminate Rabbi Ash's employment. Dr Reuben accepted that the purpose of the 29 March 2019 meeting was to "communicate the difficult message to Rabbi Ash", subsequently adding "as a result of that meeting, yes, it was felt that the - that termination would most probably happen".[109] Rabbi Smukler's evidence was that dismissal was "a distinct possibility after the long pattern of behaviours", and maintained that the decision to dismiss Rabbi Ash was his to make, on permission of the YBRSL Board to deal with the matter as he saw fit, and not taken until the recess of the 29 March 2019 meeting when he determined to proceed.[110]

[78] In submissions, Rabbi Ash argued that the Board took a decision to end his employment on 25 March 2019 before he was given a meaningful opportunity to respond to the allegations against him, it was a "fait accompli", meaning that he had no real opportunity to mount a defence or influence the outcome and was a "fairness limitation".[111]

[79] In its closing submissions, CIVL asked the Commission to accept that the person who made the decision to terminate Rabbi Ash's employment was Rabbi Smukler, in whose mind the termination was in prospect or possible once the Fifth Incident had occurred on 6 March 2019. It was therefore unsurprising that the YBRSL Board should be discussing that prospect at its Board meeting on 25 February 2019. CIVL submitted that the Board minutes in evidence were a summary only of that discussion and should not be taken as a complete record and, in any event, the Board resolved that Rabbi Smukler should proceed with the disciplinary process as he saw fit and meet with Rabbi Ash. It cited the evidence that there was a recess in the final disciplinary meeting of 29 March 2019 and that Rabbi Smukler made his decision in that recess. CIVL argued this confirms that no firm decision was made on 25 March 2019 or at any time prior to 29 March 2019. Further, that Rabbi Ash was given opportunity to respond on 27 and 29 March 2019 prior to the decision to dismiss being made.[112]

[80] At the time of the hearing, Rabbi Ash was 66 years of age. He was ordained as a Rabbi in 1977 and had taught Jewish Studies at the School from 1978 until 29 March 2019.[113]

[81] Rabbi Ash holds a religious appointment called a "Shlichus" which translates from Hebrew as "an emissary"; a personal appointment of great honour and privilege.[114]

[82] Immediately prior to his dismissal, Rabbi Ash earned $90,632.48 per annum. The Educational Services (Teachers) Award 2010 applied to his employment.[115] He had no plans to retire.[116]

[83] The School has over 200 staff. There is a sister school (the Beth Rivkah College).[117]

[84] There was a suggestion put to Rabbi Smukler in cross examination that the School may have had an ulterior purpose for Rabbi Ash's termination related to a restructure which would involve redundancies. This was denied by Rabbi Smukler who maintained that Rabbi Ash's role was difficult to replace and was not impacted by the operational restructure.[118] This contention was not ultimately pressed by Rabbi Ash in final submissions.

Student feedback & Rabbi Ash's "effectiveness" as a Teacher

[85] Rabbi Ash presented six student testimonials to the Commission which include expressions of gratitude towards Rabbi Ash and remark favourably on their experiences in Rabbi Ash's classes and a petition with many signatures appearing under the question "Dear Rabbi Smukler, please can we have Rabbi Ash back?".[119]

[86] Each of CIVL's five witnesses also gave evidence of their opinion about Rabbi Ash's lack of suitability for reinstatement (subject to accepting, in cross examination, that they would behave as professionals whatever the outcome of this proceeding). [120] For example, Dr Reuben gave evidence of her concern that Rabbi Ash has not demonstrated any acceptance, understanding or acknowledgement that the behaviour that led to the termination of his employment was unacceptable; and of the loss of her personal trust in Rabbi Ash's ability to fulfil the expectation of teachers at the School. That reinstatement is inappropriate and if ordered would undermine the Board's authority to make decisions relevant to the operation of its schools.[121]

[87] Dr Reuben's evidence included feedback she said was provided to her about Rabbi Ash, from nine graduating students in 2018, and her resultant view that Rabbi Ash was "an ineffective teacher".[122] Rabbi Wilhelm gave evidence about the team teaching arrangement, which he believed was introduced because there was a concern that students were not learning effectively in Jewish studies classes. He also gave evidence about his observations of Rabbi Ash's effectiveness as a Teacher.[123] Rabbi Smukler also gave evidence about having been informed upon his commencement in 2010 that enrolments were in decline and that several teaching staff were falling short of professional expectations including Rabbi Ash.[124]

[88] In submissions, Rabbi Ash asked the Commission to place no weight on the evidence regarding exit interviews of graduating students in 2018. He said the students did not provide this feedback in the knowledge it would be used to justify his dismissal, and sought to rely on the student testimonials which presented to the Commission as more reliable.[125] Further, he argued that the evidence of Dr Reuben and Rabbi Wilhelm about Rabbi Ash's effectiveness as a teacher was second-hand and/or anecdotal and should be disregarded.[126] He strongly opposed the evidence of Rabbi Smukler and asked the Commission not to receive it.[127]

[89] From 29 March 2019 and as at the date of the hearing, Rabbi Ash was unemployed. He had not looked for alternative employment or earned income during this period.[128] Rabbi Ash's evidence was that "the only way I am able to maintain this Shlichus is to be reinstated to my position"; and the appointment could not be replicated if he were to take other employment. In any event, Rabbi Ash was not confident that he could get another job "as good as this" but accepted that he could likely get another job teaching religious studies. He has not looked for other jobs because he is committed to trying to fulfil his Shliach to the best of his ability.[129]

[90] There were two post-employment incidents which, in submissions, Rabbi Ash asked the Commission to regard as relevant to the question of reinstatement only:

1. On 29 March 2019, Rabbi Ash conducted a Torah lesson in his private home which was attended by a number of students of the School.[130] A photo of which was in evidence.[131] There was a dispute about whether the lesson took place during or after school hours. Rabbi Ash gave evidence that the students attended on their own initiative.[132] In submissions, he asked the Commission to accept that there is no impediment to reinstatement based on this expression of solidarity or inherently wrong in Rabbi Ash hosting the students in this way.[133]

2. On 12 April 2019, a video was taken of Rabbi Ash returning school property.[134] Rabbi Ash did not take the video or post it to social media and denies that he had any part in it other than not having sought to exert influence against it being posted on social media.[135] Rabbi Smukler the video was intended to "mock" the School.[136] In submissions, he asks the Commission to regard the "unfairness" of the dismissal as the critical issue not any transient embarrassment as to the video.[137]

[91] In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether on the balance of probabilities the conduct occurred.[138] It is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason.[139] The nature of the relevant issue necessarily affects the "process by which reasonable satisfaction is attained" and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences" or "circumstances pointing with a wavering finger to an affirmative conclusion".[140] The Commission should not lightly make a finding that an employee engaged in the misconduct alleged.[141]

[92] The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour.[142] In Greyhound Racing Authority, Santow JA noted:

"... The notion of "inexact proof, and indefinite testimony or indirect inferences" needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal]." [143]

[93] The "level of comfort" referred to means that the finder of fact must "feel an actual persuasion of the occurrence or existence of the fact in issue"; the "mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact".[144]

[94] Some initial observations about the evidence, which involved a number of strong contests over relatively fine points of distinction:

1. Some of the incidents (particularly that defined as the Second Incident and the Prior Conduct) occurred many months and years prior to the dismissal. There were a number of contemporaneous or proximate emails in evidence. Rabbi Ash relied on his recollection and the emails but he did not rely on any contemporaneous notes. CIVL's witnesses had some notes. Wherever possible I have sought to rely on the contemporaneous emails and documentary records in evidence in preference to the bald recollection of one witness over another.

2. I assessed Rabbi Ash as a strong character. He has had a long career devoted to religious education at the School. In evidence before the Commission, Rabbi Ash presented as defensive, and at times evasive. For example, he rarely gave direct answers to questioning in cross-examination. He was regularly strident in his interpretation of events and prone to seizing on minor matters of detail. This approach challenged his credibility.

3. Similarly, I found Rabbi Smukler to be difficult in cross-examination, at times straining to justify his process. Where there are important contests about process I have sought to rely on instances where Rabbi Smukler's version is corroborated by another witness or supported by the documentary records.

[95] I make the following findings of fact having regard to the evidence that is before the Commission. For completeness, any recitations of non-contentious evidence constitute findings I have made.

[96] Rabbi Ash was scheduled to take an extra on 19 April 2018. It was scheduled on short notice, which is the usual practice.

[97] I find that Rabbi Ash was on notice of the School's expectation that he would perform the extra at 11.15am on 19 April 2018, notwithstanding his stated intention to attend a pre-arranged external appointment with his eye doctor communicated to the School the day prior. In doing so, I accept the evidence of Rabbi Morozow, supported by his email sent after their discussion on the morning of 19 April 2018, at 11.04am. Accepting that Rabbi Ash did not see the email until later that day, there is no question that he did participate in the discussion which in Rabbi Ash's own recollection took place at 10.55am. Rabbi Morozow's email establishes that the outcome of the discussion was that Rabbi Ash was to take the class from 11.15-11.45am. That arrangement represented a modification to the usual duty to accommodate Rabbi Ash's personal appointment.

[98] The email exchange also establishes that Rabbi Ash sought to explain his actions on the basis that it was Rabbi Morozow who had misunderstood the outcome of their discussion and, in any event, Rabbi Ash said he had never understood that he was required to teach the extra until 11.45am. For Rabbi Ash to have left the discussion with that impression, he must have proceeded on the basis that his refusal to perform the duty was the final say on the matter notwithstanding that Rabbi Morozow had provided a modified arrangement to accommodate his external appointment. At best, the evidence reflects that Rabbi Ash approached the discussion just twenty minutes prior to the commencement of the extra class:

1. in the knowledge that he had no intention of performing the duty and that the School had no alternative supervision arranged;

2. by declining to engage in the proposed compromise position to assist with ensuring the supervision of the students, as was his professional obligation,

and instead chose to attend an external appointment of which there is no evidence of any urgency.

[99] On the one hand Rabbi Ash offered an apology for the absence of supervision of the extra class which resulted. However he did not at any time, either contemporaneously or before the Commission, accept any responsibility. On 19 April 2018, he gave a blanket denial in saying "At no time, did I leave any class unattended", which was repeated before the Commission.

[100] On its face, Rabbi Morozow's immediate email follow up is not expressed as a formal warning. However I find that Rabbi Ash was clearly on notice that he had not met Rabbi Morozow's expectation to conduct the extras class which had resulted in an absence of supervision for that extras class on 19 April 2018. Rabbi Morozow forwarded his follow up and Rabbi Ash's response to the School Principal, which I find reflective of the seriousness of the issue and that Rabbi Morozow was at that stage attempting to manage his concerns about Rabbi Ash's conduct.

[101] After the email exchange of February 2018, in which Rabbi Ash provided an immediate response to the allegation, this First Incident was not raised again until the final disciplinary meeting of 29 March 2019 which resulted in the dismissal.

[102] Of the specific examples presented by CIVL in support of the general allegation that Rabbi Ash continuously dismissed students early, or allowed them to exit the classroom during scheduled class time (defined in this decision as the Second Incident) the evidence establishes and I find as follows:

1. There was an incident on 6 August 2014 which involved Rabbi Ash releasing class ten minutes early and a fight broke out amongst students, for which Rabbi Ash was counselled;

2. At the end of the 2016 and 2017 teaching years, Rabbi Ash was counselled about his performance which in both instances included concerns about frequent early release from class and failure to supervise students;

3. There is insufficient evidence to establish the truth of Rabbi Morozow's record of the 2014 year and the record was not raised with Rabbi Ash during his employment; and

4. Rabbi Ash's explanations for the incident recorded in the 29 August 2017 email and the cricket incident recorded in the 15 February 2019 email were not contradicted with first hand evidence. It is not established that Rabbi Ash failed to supervise the students in either case but the email records in evidence demonstrate that Rabbi Ash was counselled in each case.

[103] At least since 2018, Rabbi Ash had a practice of dismissing students from class early on occasion which continued occur, albeit "rarely", in the early part of the 2019 school year. I accept the evidence of Rabbi Morozow (which was not opposed) that, to the extent of his authorisation in 2018 to occasionally release a class earlier for good reason, it remained Rabbi Ash's responsibility to supervise the children. The difficult class in 2018, even if a legitimate basis for early release from class, also does not explain Rabbi Ash's evidence that he continued this practice for an entirely different class in 2019. That classes were released early in the first two months of the School year in 2019, prior to Rabbi Ash's dismissal in March, may not be regarded as "rare".

[104] Excluding Rabbi Morozow's 2014 record which was never put to Rabbi Ash, I find that Rabbi Ash was counselled about his conduct in each of the other examples described as the Second Incident. There is a paper trail (referenced at paragraph [27] of this decision) which leaves no doubt that Rabbi Ash was regularly reminded of his obligations, was aware his performance was not considered to the standard required and on notice that the School expected his conduct to improve. Notwithstanding Rabbi Ash denies a lack of supervision whilst the students played cricket on 15 February 2019, the 15 February 2019 email included a further, more recent example of counselling about the early release of students from class.

[105] Beyond those specific occasions of counselling, the examples related to this Second Incident and the 15 February 2019 cricket incident were not raised again until the final disciplinary meeting of 29 March 2019. I find that Rabbi Smukler's evidence does not establish that each particular was put to Rabbi Ash in the 29 March 2019 meeting.

[106] I accept Rabbi Ash's concession and find that he failed to attend and supervise his class at the assembly on 30 October 2018 as required and scheduled.

[107] Rabbi Ash was sufficiently uncertain about his recollection of this incident that I find his evidence about being in the bathroom and/or unwell to be unsafe for the Commission to accept. The evidence that other teachers were in attendance and supervising on 30 October 2018 was not opposed, however I do not find Rabbi Ash's failure to perform his supervision duty justifiable on the basis that other teachers were where they were supposed to be and performing their duties as required.

[108] I consider Rabbi Morozow's subsequent 30 October 2018 email to constitute counselling of Rabbi Ash about this incident. It includes clarification of the School's expectation that Rabbi Ash would be present and discharge the obligation to supervise the students on assembly and that he will ensure that he is present to supervise at School assembly going forward. There is no evidence that Rabbi Ash elected to respond to that email or that this Third Incident was raised again until the disciplinary meeting of 27 March 2019.

[109] The dismissal letter is drafted as to infer that there were prior instances of Rabbi Ash failing to attend School assembly as required. The only evidence of this was a meeting note of Rabbi Smukler taken in 2012. Accepting the 2012 notes of Rabbi Smukler as accurate (which was not opposed), I find this goes no further than to suggest Rabbi Ash was counselled about an incident of a similar nature almost seven years prior to the Third Incident. There was no evidence that this 2012 example was raised again including in the final disciplinary meetings of 27 and 29 March 2019.

[110] Rabbi Ash considered his time was better utilised on duties other than supervising breakfast and, on 19 February 2019, requested Rabbi Morozow make alternate arrangements. There were three alternatives canvassed but no resolution was reached in that discussion. The next day, on Wednesday 20 February 2019, Rabbi Ash did not perform the breakfast supervision duty and students were unsupervised during that breakfast period.

[111] In the 2019 School year, Rabbi Ash was scheduled for breakfast supervision duty on Mondays, Wednesdays and Fridays and was expected to appraise himself of his schedule via SEQTA. Substantial evidence was devoted to the question of scheduling however, by 15 February 2019, there was a specific discussion and follow up email from Rabbi Morozow confirming that Rabbi Ash was required to perform the breakfast supervision duty. Even if the requirements on Tuesdays and Thursdays remained unclear following that email (because it refers to the times of breakfast supervision every day, whereas Rabbi Ash was scheduled to conduct prayer or other teaching duties in conflict with the breakfast supervision on Tuesdays and Thursday), I am satisfied on the evidence that there was a clear direction and no legitimate basis for confusion as to the requirement to perform breakfast supervision duty on Mondays, Wednesdays and Fridays. Nor was this seriously pressed by Rabbi Ash in these proceedings. Indeed, Rabbi Ash then proceeded to perform the breakfast supervision duty on Monday, 18 February 2019 which would appear to be in accordance with the direction in the 15 February 2019 email.

[112] I am not satisfied that there was a reasonable, credible or acceptable explanation for Rabbi Ash's failure to supervise breakfast on Wednesday 20 February 2019. The immediate and contemporaneous responses offered by Rabbi Ash were initially, on 20 February 2019, directed at the behaviour of the students involved in the incident and did not address his own actions or any misunderstanding; and then, on 25 February 2019, limited to an assertion that it was Rabbi Morozow who was "misinformed" and a blanket denial of any abrogation of his duty of care to his students. Rabbi Ash did not elaborate at the time. Since then, Rabbi Ash has conceded that he did not receive an express direction that an alternative had been arranged or that he was no longer required to perform the breakfast duty on Mondays, Wednesdays and Fridays. Rabbi Ash now says that he understood Rabbi Morozow had the authority to, and therefore would, make an alternate arrangement for the breakfast supervision duty arising from their discussion on 19 February 2019. The explanation that Rabbi Ash now gives does not sit comfortably with his blanket denial of any wrongdoing, given on 25 February 2019. In any event, the explanation now offered by Rabbi Ash requires him to have proceeded on the basis that his unresolved request for an alternative to breakfast supervision duty was the final say on the matter. He relies on what was not expressly said by his manager as a basis for failing to perform his breakfast supervision duty as scheduled.

[113] In his email of 20 February 2019 Rabbi Morozow contemporaneously referred to an "incident" that occurred during the breakfast period on 20 February 2019. There was no incident report in evidence. I accept the evidence of Rabbi Smukler that the incident involved an altercation between two students and one student sustained a minor injury. This is consistent with the information given to Rabbi Ash around the time of his dismissal and does not overstate the matter. The degree of seriousness of the student injury on 20 February 2019 is entirely unpersuasive to, and I find does not, excuse Rabbi Ash's behaviour.

[114] On its face, I consider the email exchange from 20 to 25 February 2019 and specifically the email of 24 February 2019 amounts to a formal disciplinary warning. This exchange included a reminder of Rabbi Ash's obligations, the School's expectations, an allegation that this was not the first time that Rabbi Ash had abrogated his duty of care in recent months. There was a clear statement in the 24 February 2019 email that "further disciplinary action, or suspension or termination of employment" may follow should there be a further failure to supervise the students or perform duties as scheduled.

[115] This Fourth Incident was put to Rabbi Ash in the formal disciplinary meeting of 27 March 2019 and the final disciplinary meeting of 29 March 2019.

[116] It is not controversial that Rabbi Ash failed to attend his Year 7 Chassidus class on 6 March 2019, as scheduled, and the students were left unsupervised as a result.

[117] Rabbi Ash explained this as "an oversight" based on his reliance on an outdated schedule. It has been established that Rabbi Ash was expected to appraise himself of his timetable via SEQTA.

[118] It is acknowledged that, when asked to respond on 10 March 2019, Rabbi Ash quickly offered an apology of sorts "sorry about that" and an excuse that he was working to a previous schedule which had been in place for the past few years. On its face, Rabbi Ash's response is casual and insincere. It does not demonstrate an appreciation of the significance of the issue, any insight into his own conduct and performance, and does not reflect any contrition. This apology and the explanation offered do not reasonably excuse Rabbi Ash's failure to take the Year 7 Chassidus class on 6 March 2019.

[119] At the time of this Fifth Incident, Rabbi Ash was subject of a prior warning issued on 24 February 2019 in response to a failure to supervise the breakfast supervision duty as scheduled (as detailed in the Fourth Incident). I find the conduct or performance to be of the same kind, in that both the failure to attend for breakfast supervision duty and the failure to attend to take the Year 7 Chassidus class both amounted to a failure to supervise students as scheduled. In the circumstances, and having regard to the accepted and fundamental obligation of Rabbi Ash to attend and supervise students as scheduled, I find no legitimate basis for distinction.

[120] Rabbi Morozow explained the broad reference to prior conduct in the dismissal letter by reference to his email of 15 February 2019. One item in that email was the breakfast supervision duty which is addressed in the context of the Fourth Incident. Another item in that email was the early release to play cricket in February 2019 which has been addressed for these purposes as part of the Second Incident. One other matter in that email, not specific to any particular incident or reason for the dismissal, relates to Rabbi Ash's conduct of student assessments. The issue about assessments may relate to Rabbi Ash's conduct and/or performance as Teacher but is the only example of this in evidence. Regardless of whether the conduct in fact occurred, this allegation does not relate to supervision of students or a failure to follow reasonable and lawful directions in that respect. The student assessment issue raised in the 15 February 2019 email was not put to Rabbi Ash as part of the disciplinary process on 27 and 29 March 2019.

[121] Other conduct was raised during the course of these proceedings, defined for these purposes as part of the Prior Conduct (and detailed at paragraphs [64] to [67] of this decision). These matters were alleged to relate to 2010 and prior. There were no records, documents or direct witnesses involved in formal discipline presented by CIVL to give evidence about these matters. I find the evidence insufficient for the Commission to make sound findings as to the truth of those matters. These older examples were not put to Rabbi Ash as part of a disciplinary process including that which occurred on 27 and 29 March 2019.

[122] The evidence of the final disciplinary process establishes and I find that:

1. On 26 March 2019, Rabbi Ash was invited to attend a disciplinary meeting with a support person and notified in writing that the purpose was to discuss the Fifth Incident among other non-specified issues;

2. On 27 March 2019, Rabbi Ash attended the disciplinary meeting without a support person, and was afforded an opportunity to respond to the Third, Fourth and Fifth Incidents;

3. On 29 March 2019, Rabbi Ash attended the final disciplinary meeting with his lawyer as his support person, around an hour of which was spent discussing his further responses to the allegations raised. During that meeting, each of the First, Second, Third, Fourth and Fifth Incidents were put to Rabbi Ash although it is not established that there were any or how many particulars given of the Second Incident;

4. After a ten minute recess, the 29 March 2019 meeting concluded with Rabbi Smukler providing Rabbi Ash with a copy of his dismissal letter; and

5. Rabbi Ash was dismissed effective immediately.

[123] On 26 March 2019 there was an express offer to bring a support person to the discplinary meeting on 27 March 2019 provided that it could not be a Board member or current employee of the School. Rabbi Ash did not request to bring a Board member or current employee of the School. He did request more time to facilitate arranging a support person, and a two hour delay was granted. He ultimately attended the 27 March 2019 disciplinary meeting without a support person and brought his lawyer as support person to the final disciplinary meeting of 29 March 2019.

[124] In terms of the contest about when the dismissal decision was made, the evidence establishes and I find as follows:

1. Rabbi Smukler in his role as the School Principal was the ultimate decision maker;

2. The Board was appraised on 25 March 2019, prior to the commencement of the formal disciplinary process, of Rabbi Smukler's intention to commence a disciplinary process and that termination of Rabbi Ash's employment may result;

3. A Board member attended each of the disciplinary meetings on 27 and 29 March 2019 to indicate their support of the School Principal;

4. Following the 27 March 2019 meeting, the School Principal and the Board assessed Rabbi Ash's responses and considered termination of his employment was most probable;

5. The dismissal letter was prepared in advance of the 29 March 2019 meeting; and

6. I accept the evidence of Rabbi Smukler as the decision maker, corroborated by Dr Reuben who was there, that although he had prepared for dismissal as the likely outcome his final decision to dismiss Rabbi Ash was not made until the recess of the 29 March 2019 meeting.

[125] Rabbi Ash's employment tenure, salary, award coverage and that he had not searched for other work post-dismissal are not in contest and I find accordingly.

[126] Rabbi Ash holds a "Shlichus" which is an appointment of honour within his religious and the School communities. Rabbi Ash accepted that he is employable and holds skills of a kind that he could be usefully engaged elsewhere, albeit another role might not be "as good".

[127] The key evidence in contention regarding other matters is that of the events immediately following Rabbi Ash's dismissal, and of his students and colleagues in reflecting on his character and behaviours.

[128] Regarding the class which Rabbi Ash hosted at his home on 29 March 2019 and the video of 12 April 2019, I accept that these matters were put in issue by CIVL in the context of the question of reinstatement which does not arise for reasons that follow. Similarly, the evidence of CIVL's witnesses about Rabbi Ash's (un)suitability for reinstatement does not arise.

[129] The evidence of student testimonials, student exit interviews and of Rabbi Ash's purported effectiveness as a Teacher (as given by Dr Reuben, Rabbi Wilhelm and Rabbi Smukler) has been received as mere context. I have not attributed any weight to this evidence in reaching my findings or conclusions as I do not consider it to establish the truth of the standard of Rabbi Ash's conduct and performance at the relevant times.

[130] Section 387 requires that I take into account the matters specified in paragraphs (a) to (h) in considering whether Rabbi Ash's dismissal was harsh, unjust and/or unreasonable. Having regard to my findings, I turn now to consider each of the matters at s.387 in turn below.

Section 387(a) - Was there a valid reason for the dismissal related to the capacity or conduct of Rabbi Ash (including its effect on the safety and welfare of other employees)?

[131] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. A valid reason is one that is "sound, defensible and well founded" and should not be "capricious, fanciful, spiteful or prejudiced".[145]

[132] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[146] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees), in the sense that it was both a good reason and a substantiated reason.

[133] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. A pattern of past conduct may not form a valid reason for dismissal if the employee was not properly warned or disciplined in relation to that conduct.[147] However, that same pattern of conduct or behaviour may be considered relevant to an overall assessment of whether the dismissal was "harsh, unjust or unreasonable".[148]

[134] The Act requires consideration of whether there was "a" valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.[149] It is also well established that a valid reason need not necessarily be the one relied upon by the employer.[150]

[135] The Dismissal Letter describes "the reason" for Rabbi Ash's dismissal as being due to his misconduct and unacceptable behaviour over the last several months and his recent conduct, particularised by reference to five incidents which were characterised by Rabbi Ash as five reasons for the dismissal.[151] Having examined each of those reasons to determine whether I am persuaded that Rabbi Ash engaged in some or all of the relevant conduct, I now turn to whether such conduct constitutes a valid reason.

[136] Having regard to my findings above, the most recent conduct of Rabbi Ash (described as the Fourth and Fifth Incidents above) constitutes a valid reason for his dismissal which in each case amounted to a failure to supervise students as scheduled in breach of his duty of care, and a failure to follow reasonable and lawful directions.

[137] I have found that Rabbi Ash was required to and did not supervise his students at the breakfast supervision duty on 20 February 2019 (the Fourth Incident) and the Year 7 Chassidus class on 6 March 2019 (the Fifth Incident). Rabbi Ash does not dispute that the obligation to supervise students was fundamental to his role as a Teacher at the School. I have found that he was scheduled and therefore required to take the breakfast duty on 20 February 2019 and the Year 7 Chassidus class on 6 March 2019. The scheduling itself amounted to a reasonable and lawful direction to conduct these duties. However, in addition to the schedule, Rabbi Morozow was reminded of his scheduled breakfast supervision duty, just five days prior to the Fourth Incident being the 20 February 2019 breakfast duty which he did not perform. The Fifth Incident on 6 March 2019 followed counselling and the 24 February 2019 email which expressly warned of disciplinary action including termination if such conduct was repeated, just ten days prior. I have not accepted Rabbi Ash's explanations for the Fourth and Fifth Incidents as reasonable or acceptable and do not consider they excuse his conduct in either case. I have not accepted the minor nature of the student injury on 20 February 2019 to excuse Rabbi Ash's conduct in the Fourth Incident and, to the contrary, consider the fact of an injury of any magnitude underscores the approach taken by the School in the interests of protecting its students. I have not accepted Rabbi Ash's "sorry about that" apology for the Fifth Incident as appropriate recognition of the seriousness of his conduct let alone contrition.

[138] Accordingly, both the Fourth and Fifth Incidents amount to a failure by Rabbi Ash to discharge his fundamental obligation to supervise students as scheduled and a failure to follow the School's reasonable and lawful direction to perform those duties as rostered. I have found no basis to distinguish the Fourth and Fifth Incidents as to consider these isolated or distinct forms of misconduct because one related to a breakfast supervision duty and another related to a contact teaching duty. The simple fact is that both incidents involve a failure to perform Rabbi Ash's duty as scheduled, resulting in a lack of supervision of the students within his care.

[139] As I am satisfied that that there was a valid reason arising from my findings on the Fourth and Fifth Incidents, it is unnecessary to have regard to every example that was presented as having occurred over the last ten years of a forty year employment relationship. I have found that the conduct subject of the First, Third (and some, not all, of the Second) Incidents did occur and are not subject of a reasonable or acceptable excuse. However, these incidents relate to conduct that occurred at least five months (and more) prior to the dismissal. They resulted in relatively proximate counselling, but not a formal warning, in each case. I do not consider these incidents to properly substantiate a valid reason. Similarly, the findings about what is defined in this decision as the Prior Conduct do not constitute a valid reason. The relevance of those matters to a pattern of behaviour and the proportionality of the decision to dismiss Rabbi Ash are considered further at s.387(h).

[140] In conclusion, for the reasons given, I am satisfied on the evidence adduced that there was a sound, defensible and well-founded reason for Rabbi Ash's dismissal related to his failures to attend for duty and discharge his obligation to supervise students as required in his role as Teacher, on each of 20 February 2019 and 6 March 2019. Accordingly, there was a valid reason for Rabbi Ash's dismissal within the meaning of s 387(a) of the Act.

Section 387(b) and (c) - Was Rabbi Ash notified of that reason and given an opportunity to respond to any reason related to his capacity or conduct?

[141] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[152]

[142] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[153] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[154] Simply "going through the motions" of giving an employee an opportunity to respond when, in substance, a firm decision to terminate has already been made may not constitute an opportunity to defend.[155]

[143] The mere fact that the Respondent has failed to provide the Applicant with an opportunity to respond does not automatically render the dismissal harsh, unjust or unreasonable. It is not the case that a person must be provided with an opportunity to respond to any reason related to conduct or performance. Rather, s.387(c) is a consideration to which the Commission must have regard in its analysis of whether a termination is harsh, unjust or unreasonable.[156]

[144] Having regard to my findings above I am satisfied that Rabbi Ash was notified of, and afforded an opportunity to respond to, the incidents which I have found to constitute a valid reason for the dismissal (the Fourth and Fifth Incidents) as follows:

1. The Fourth Incident was first put to Rabbi Ash on 20 February 2019, and he provided responses on 22, 25 and 27 February 2019. In his 27 February 2019 response, Rabbi Ash acknowledges his understanding that a "termination process" had commenced. Then, on 27 March 2019, in a formal disciplinary meeting to discuss his breaches and possible termination, Rabbi Ash was notified and given an opportunity to respond to this incident;

2. The Fifth Incident was first put to Rabbi Ash on 10 March 2019 and he provided a response that same day. Then, on 26 March 2019, Rabbi Ash was notified in writing that he was required to attend a meeting to discuss this particular incident, and advised termination was possible. Rabbi Ash was given an opportunity to respond in the 27 March 2019 meeting; and

3. There was a further opportunity for Rabbi Ash to respond to the incidents comprising the valid reason in the final disciplinary meeting on 29 March 2019 meeting. The evidence was that there was discussion for around one hour in that meeting prior to the recess.

[145] I have found that the decision to terminate was not ultimately made until during the recess of the 29 March 2019 meeting. The evidence of Rabbi Smukler as the decision maker is consistent with the evidence of Dr Reuben as a Board member who was consulted about the process. Dr Reuben's evidence was that, following an internal discussion after the conclusion of the 27 March 2019 meeting, she considered it was "most probable" that Rabbi Ash would be dismissed. Even if the dismissal was inevitable following the conclusion of the 27 March 2019 meeting, by that time Rabbi Ash was already properly on notice and had been afforded full opportunity to respond to the valid reason for his dismissal in a formal disciplinary meeting on 27 March 2019 and prior to that most probable conclusion being reached. For completeness, I am satisfied that there is nothing untoward about the School Principal having canvassed the views of the governing Board on 25 March 2019, prior to inviting Rabbi Ash to a formal disciplinary meeting, given the potential risk of a significant community reaction, potential legal risk to the School if dismissal was the ultimate outcome of that process and the impending departure of the School Principal as decision maker.

[146] For completeness, I observe as follows regarding the other reasons recorded in the dismissal letter which did not form part of what I have found to be a valid reason for the dismissal:

1. Rabbi Ash was notified of the Third Incident and afforded opportunity to respond to it in a formal disciplinary context, during the 27 and 29 March 2019 meetings;

2. The First Incident was notified contemporaneously in April 2018 and was not raised again until the final disciplinary meeting of 29 March 2019 when an opportunity to respond was provided;

3. I have found that the particulars of the Second Incident were not put to Rabbi Ash in the final disciplinary process including the meetings of 27 and 29 March 2019; and

4. Although there is evidence of prior notice and opportunity to respond in relation to the First, Second and Third Incidents, I do not consider those earlier responses were invited in the context contemplated by this provision, which is intended to allow Rabbi Ash a chance to defend against the prospect of termination and persuade the employer not to terminate his employment.

[147] Accordingly, I do not consider that Rabbi Ash was sufficiently notified and/or given opportunity to respond to the First Incident and Second Incidents for the purposes of s.387(b) and (c), but was sufficiently notified and given an opportunity to respond to the Third Incident.

[148] In any event, having regard to the matters referred to above, I find that the Applicant was notified of and given an opportunity to respond to the conduct which I have found to comprise a valid reason for his dismissal before the decision to dismiss was made, and in explicit and plain and clear terms.

Section 387(d) - Was there any unreasonable refusal by CIVL to allow Rabbi Ash to have a support person present to assist at any discussions related to the dismissal (s.387(d))?

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

[150] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[157]

[151] In closing, Rabbi Ash submitted that the Commission should consider this a neutral factor.[158]

[152] In all of the circumstances, and having regard to my findings above, I find that there was no unreasonable refusal to allow Rabbi Ash to have a support person present at the discussions relating to the dismissal on 27 and 29 March 2019.

Section 387(e) - If the dismissal related to unsatisfactory performance, was Rabbi Ash warned of the unsatisfactory performance before the dismissal?

[153] A dismissal relates to unsatisfactory performance where it refers to "the level at which the employee renders performance, including factors such as diligence, quality, care taken and so on".[159]

[154] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:

• identify the relevant aspect of the employee's performance which is of concern to the employer; and

• make it clear that the employee's employment is at risk unless the performance issue identified is addressed.[160]

[155] Rabbi Ash argued that the reasons in the dismissal letter can be characterised as either conduct or performance issues because it is an incident of the satisfactory performance of a teacher's duties to supervise their class and attend those classes. Further, to the extent that Rabbi Smukler took into account his view that Rabbi Ash was an ineffective teacher, this is a matter of performance (not conduct). Rabbi Ash argued that it was reasonable to expect that the School would have warned him that his employment was at risk unless his performance improved.[161] It was submitted that there was no prior warning.[162]

[156] CIVL did not oppose the characterisation of the reason for Rabbi Ash's dismissal as involving matters of performance and conduct. However it argued that Rabbi Ash was warned about his performance and conduct in relation to supervision of students, in 2012, 2014 and early 2019, as well as counselled in respect of his failure to properly supervise.[163]

[157] I accept that the valid for reason for dismissal involved matters of conduct and performance. I have found that the 24 February 2019 email constituted a warning. It was sent after (and in response to) the Fourth Incident. It preceded the Fifth Incident on 6 March 2019. That warning plainly states that discipline, including termination of employment, may follow if there was a repeat of this behaviour.

[158] I have found a range of prior communications to amount to counselling, such that there is no doubt that Rabbi Ash understood the standard required of him in his role. Other than Rabbi Smukler's notes of a discussion in 2012, these other communications do not expressly state that Rabbi Ash's employment was at risk.

[159] To the extent that the valid reason for dismissal related to Rabbi Ash's performance, I find that he was formally warned of his unsatisfactory performance on 24 February 2019 before the dismissal on 29 March 2019.

Section 387(f) and (g) - The degree to which the size of the Respondent's enterprise, and the absence of dedicated human resources management specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal?

[160] CIVL submitted that CIVL and YBRSL do not operate a large business. The School is an educational institution that does not have human resources management specialists or expertise. There was no detail in its submissions as to how this was likely to impact on the procedures followed in effecting the dismissal.[164]

[161] Rabbi Ash asked the Commission to have regard to the evidence that the School employs over 200 staff and is of a size that would be expected to provide procedural fairness in effecting any dismissal. Further, that the School had access to specialist human resources and/or legal advice.[165]

[162] Having regard to the matters above, I find that neither the size of the enterprise and the absence of in-house human resources expertise was likely to impact on the procedures followed in effecting Rabbi Ash's dismissal.

Section 387(h) - Any other matters that the Commission considers relevant?

[163] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. There are three other matters which are most pertinent to this case and may be taken into consideration for the purposes of s.387(h):

a) A pattern of behaviour, which may be a relevant consideration for the purposes of s.387(h) even where that same behaviour did not substantiate a valid reason for the dismissal;[166]

b) The degree of seriousness of the misconduct, which may be taken into account as a relevant matter under s.387(h) when considering whether "dismissal was a proportionate response to the conduct in question";[167] and

1. An employee's long and satisfactory work performance or history which may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[168]

[164] Rabbi Ash's age, the fact that he worked as a Teacher at the School for his entire teaching career, his specialist skills as a Jewish studies teacher and his career prospects are relevant matters to which I have had regard. I have also considered it to be relevant that Rabbi Ash holds a religious and spiritual appointment which is undoubtedly significant within the School and its community and which Rabbi Ash believes is lost as a result of the dismissal. However, these matters do not outweigh the issues at the heart of the dismissal, as to result in a finding that the dismissal was unfair.

[165] Rabbi Ash appreciates that through his religious appointment or otherwise he is not exempt from following reasonable and lawful directions, or immune from the consequences of failing to meet his duty to supervise the students within his care. In a teaching role, this is a most basic duty.

[166] In addition to the examples forming part of the valid reason (the Fourth and Fifth Incidents), I have also found that Rabbi Ash failed to supervise students as scheduled and without reasonable or acceptable excuse on 30 October 2018 (the Third Incident) and 18 April 2018 (the First Incident). An example of the generally described Second Incident, dating back to 2014, was also found to have occurred. There are records of counselling for Rabbi Ash's failures to supervise the students in 2014, 2016, 2017, 2018 and 2019. Whilst these facts of themselves did not substantiate a valid reason for the dismissal, in the circumstances of this case they are relevant to an overall assessment of whether the dismissal was harsh, unjust or unreasonable.

[167] Throughout his recent career history and these entire proceedings, Rabbi Ash has failed to accept any responsibility for his failures to supervise students within his care. He has sought to explain away his part in these incidents, regularly seeking to place responsibility with others. I have not found these explanations to be plausible or sufficient justification for his failures to supervise students as scheduled. Further, I find the series of excuses and absence of contrition to weigh against a finding of harshness.

[168] The timing of the final disciplinary process from 26 to 29 March 2019 was relatively swift. However the process was adequate and the School was obliged to proceed without delay given the serious nature of the concerns and the risk posed to students (as highlighted by the injury to a student on 20 February 2019, whatever its magnitude). In saying this, I observe that the delay between the Fifth Incident on 6 March 2019 and the commencement of the final disciplinary process on 26 March 2019 was appropriate given Rabbi Ash's family wedding, related celebrations, leave and the evidence of the mitigations the School put in place to ensure his duties were performed with supervision during this period.

[169] It is apparent that the approach to managing these issues since at least April 2018 was reflective of Rabbi Ash's senior role and lengthy service. Rabbi Ash was employed in a professional role and was managed as such. He was in no doubt about the standard required of him in his role, and prior to the Fifth Incident he was on notice that there would likely be disciplinary consequences including termination but his conduct did not improve.

IV) Conclusion - is the Commission satisfied that the dismissal of Rabbi Ash was harsh, unjust or unreasonable?

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

[171] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[169]

[172] I am satisfied there was a valid reason for the dismissal of which Rabbi Ash was properly notified and afforded full opportunity to respond. There was no unreasonable refusal of a support person in discussions related to the dismissal. A warning about the unsatisfactory performance was issued in clear terms prior to the final incident and before the dismissal. The nature of the conduct, the established prior conduct and history of counselling, the absence of an appreciation of the gravity or insight and the serious obligation of the School to protect the safety of its students and discharge its duty of care to the students are paramount to my consideration that the dismissal was not disproportionate to the conduct. The personal circumstances weighing in favour of a conclusion that the dismissal was harsh are significant, but not sufficient to render it harsh, or unjust or unreasonable.

[173] Taking into account all of the circumstances and the considerations in s.387, I consider that the dismissal of Rabbi Ash was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair.

[174] The application for an unfair dismissal remedy is dismissed.

[1] Email from Applicant's representative to Fair Work Commission dated 9 April 2019.

[3] Statement of Dr Reuben, Exhibit R6, at 6 and 7.

[4] Statement of Dr Reuben, Exhibit R6, at 14.

[5] Statement of Rabbi Smukler, Exhibit R2, at 12-14.

[6] Statement of Rabbi Ash, Exhibit A1, at 12, 13, RPA-2.

[7] Statement of Rabbi Ash, Exhibit A1, at RPA-15.

[8] For example, Statement of Rabbi Ash, Exhibit A1, at 37.

[9] Statement of Rabbi Ash, Exhibit A1, at 6-7; acknowledged in Statement of Rabbi Morozow, Exhibit R4, at 34 and Statement of Rabbi Smukler, Exhibit R2, at 80.

[10] Statement of Rabbi Ash, Exhibit A1, at 9; Transcript of Hearing at PN119.

[11] Statement of Rabbi Morozow, Exhibit R4 at 4 and Statement of Rabbi Smukler, Exhibit R2 at 39; Transcript at PN164.

[12] Transcript at PN164-165; Statement of Rabbi Smukler, Exhibit R2, at 1.

[13] Statement of Rabbi Morozow, Exhibit R4 at 5 and 8; which Rabbi Ash accepted on Transcript at PN274 and PN280.

[14] Applicant's Final and Consolidated Submissions at 9; The dismissal letter specifies these as requirements of his role (annexed to the Statement of Rabbi Ash, Exhibit A1 at RPA-15), those requirements were not challenged before the Commission.

[15] Applicant's Submissions, Exhibit A3, at 31 and Applicant's Final and Consolidated Submissions at 8, 9 and 98.

[16] Respondent's Closing Submissions at 5 and 7.

[17] Statement of Rabbi Ash, Exhibit A1, at 63-66, RPA-17; Statement of Rabbi Morozow, Exhibit R4, at 6, 9, 22.

[18] Statement of Rabbi Morozow, Exhibit R4 at 23 and 24.

[19] Part of a chain of email communication at Statement of Rabbi Morozow, Exhibit R4 at RLM-6.

[20] Rabbi Ash on Transcript at PN175 to 177.

[21] Part of a chain of email communication at Statement of Rabbi Morozow, Exhibit R4 at RLM-6.

[22] Ibid (RLM-6); Statement of Rabbi Ash, Exhibit A1, at 68.

[23] Applicant's Final and Consolidated Submissions at 51.

[24] Statement of Rabbi Morozow, Exhibit R4, at RLM-6.

[26] Statement of Rabbi Ash, Exhibit A1, at 62.

[27] Statement of Rabbi Ash, Exhibit A1, at 69 and 71.

[28] Statement of Rabbi Morozow, Exhibit R4 at 12 to 21.

[29] Statement of Rabbi Morozow, Exhibit R4 at 13; Reply Statement of Rabbi Ash, Exhibit A2, at 56.

[30] Statement of Rabbi Morozow, Exhibit R4 at 14 and RLM-2; Reply Statement of Rabbi Ash, Exhibit A2, at 56.

[31] Statement of Rabbi Morozow, Exhibit R4 at 15 to 17 and RLM-3; Reply Statement of Rabbi Ash, Exhibit A2, at 57.

[32] Statement of Rabbi Morozow, Exhibit R4 at 18 to 19 and RLM-4; Reply Statement of Rabbi Ash, Exhibit A2, at 58 to 60.

[33] Statement of Rabbi Morozow, Exhibit R4 at 20 to 21 and RLM-5; Rabbi Ash on Transcript at PN385-387.

[34] Statement of Rabbi Morozow, Exhibit R4 at RLM-12; Rabbi Morozow on Transcript at PN1774 to 1776.

[35] Reply Statement of Rabbi Ash, Exihibit A2, at 72.

[36] Statement of Rabbi Morozow, Exhibit R4 at RLM-12.

[37] Statement of Rabbi Ash, Exhibit A1, at 72.

[38] Statement of Rabbi Ash, Exhibit A1, at 70 to 71; Rabbi Ash on Transcript at PN180-183.

[39] Statement of Rabbi Morozow, Exhibit R4 at 66 and 67; Rabbi Morozow on Transcript at PN1786, 1790 and 1791.

[40] Reply Statement of Rabbi Ash, Exhibit A2, at 73.

[41] Statement of Rabbi Ash, Exhibit A1, at 60.

[42] Applicant's Submissions, Exhibit A3, at 39 and 40; Applicant's Final and Consolidated Submissions at 101.

[43] Rabbi Smukler on Transcript at PN1129; Rabbi Ash on Transcript at PN479.

[44] Statement of Rabbi Ash, Exhibit A1, at 73; Rabbi Ash on Transcript at PN407 to 412.

[45] Rabbi Ash on Transcript at PN413 to 414.

[46] Statement of Rabbi Morozow, Exhibit R4 at RLM-8.

[47] Statement of Rabbi Smukler, Exhibit R2, at 63; see also Rabbi Ash on Transcript at PN461.

[48] Statement of Rabbi Smukler, Exhibit R2, at RYS-5.

[49] Applicant's Final and Consolidated Submissions at 55.

[50] Respondent's Submissions at 7 and 10.

[51] Statement of Rabbi Morozow, Exhibit R4, at 39 to 40; Rabbi Morozow on Transcript at PN1692 to 1696; Statement of Rabbi Smukler, Exhibit R2 at 48 to 49 and RYS-7; Rabbi Smukler on Transcript at PN978-981 and 998 to 999.

[52] Reply Statement of Rabbi Ash, Exhibit A2, at 31.

[53] Statement of Rabbi Ash, Exhibit A1, at 59 and 77, RPA-06; Rabbi Morozow on Transcript at PN1677 to 1681 and 1686 to 1687.

[54] Statement of Rabbi Morozow, Exhibit R4 at RLM-12.

[57]Statement of Rabbi Morozow, Exhibit R4 at 51; Rabbi Morozow on Transcript at PN1703 to 1704; Rabbi Ash on Transcript at PN188 and 191.

[58] Statement of Rabbi Morozow, Exhibit R4 at RLM-13.

[60] Statement of Rabbi Morozow, Exhibit R4, at 56 and RLM-14.

[61] Statement of Rabbi Morozow, Exhibit R4 at RLM-14.

[62] Statement of Rabbi Ash, Exhibit A1, at RPA-8; Rabbi Ash on Transcript at PN301 to 312.

[63] Statement of Rabbi Ash, Exhibit A1 at 29; Rabbi Ash on Transcript at PN172.

[64] Rabbi Morozow on Transcript at PN1718 and 1722; Rabbi Ash on Transcript at PN171.

[66] Rabbi Smukler on Transcript at PN945.

[67] Rabbi Smukler on Transcript at PN947 to 956.

[68] Applicant's Final and Consolidated Submissions at 72.

[69] Respondent's Closing Submissions at 16.

[70] Statement of Rabbi Ash, Exhibit A1, at 32.

[71] Statement of Rabbi Ash, Exhibit A1, at RPA-9.

[73] Applicant's Final and Consolidated Submissions at 75.

[74] Rabbi Morozow on Transcript at PN1754.

[75] Respondent's Closing Submissions at 17.

[76] Statement of Rabbi Ash, Exhibit A1, at 60.

[77] Statement of Rabbi Morozow, Exhibit R4 at 62 and 63 and RLM-12.

[78] Reply Statement of Rabbi Ash, Exhibit A2, at 63 to 67.

[79] Statement of Rabbi Morozow, Exhibit R4 at RLM-12.

[80] Statement of Rabbi Smukler, Exhibit R2 at 20 (excluding first sentence which was not read) to 41; Statement of Dr Reuben, Exhibit R6 at 9 and RS-1.

[81] Rabbi Smukler on Transcript at 1384 to 1387 and 1390.

[82] Applicant's Final and Consolidated Submissions at 12 to 13.

[83] Respondent's Closing Submissions at 5.

[84] Statement of Rabbi Smukler, Exhibit R2 at 55.

[85] Reply Statement of Rabbi Ash, Exhibit A2, at 36 and RPA-21.

[86] Rabbi Smukler on Transcript at PN1110 to 1117.

[87] Statement of Rabbi Smukler, Exhibit R2 at 55-56.

[88] Statement of Rabbi Morozow, Exhibit R4 at RLM-14.

[89] Statement of Rabbi Ash, Exhibit A1, at 60.

[90] Statement of Rabbi Ash, Exhibit A1, at RPA-9.

[91] Statement of Rabbi Smukler, Exhibit R2, at 57; Rabbi Ash on Transcript at PN646 to 647.

[92] Statement of Rabbi Smukler, Exhibit R2, at 57; Reply Statement of Rabbi Ash, Exhibit A2, at 43.

[93] Reply Statement of Rabbi Ash, Exhibit A2, at 44.

[94] Statement of Rabbi Smukler, Exhibit R2 at RYS-8.

[95] Statement of Rabbi Ash, Exhibit A1, at RPA-11 and RPA-12.

[96] Statement of Rabbi Ash, Exhibit A1, at RPA-12.

[97] Statement of Rabbi Ash, Exhibit A1, at 41, RPA-12 and RPA-13.

[98] Statement of Rabbi Ash, Exhibit A1, at 41.

[99] Rabbi Ash on Transcript at PN469 (Third Incident); PN473 (Fourth Incident); PN474 (Fifth Incident); PN478 (general).

[100] Rabbi Ash on Transcript at PN479.

[101] Statement of Rabbi Ash, Exhibit A1, RPA-14.

[102] Statement of Rabbi Smukler, Exhibit R2, at 69.

[103] Statement of Rabbi Smukler, Exhibit R2, at 75; Rabbi Smukler on Transcript at PN1144 to 1145.

[104] Rabbi Smukler on Transcript at PN1141; Rabbi Ash on Transcript at PN497.

[105] Statement of Rabbi Ash, Exhibit A1, at 50 to 52; Dr Reuben on Transcript at PN2030 and 2031.

[106] Statement of Rabbi Ash, Exhibit A1, at 52, 53, RPA-15 and RPA-16 (contents of deed redacted).

[108] Statement of Dr Reuben, Exhibit R6, at 14 to 16.

[109] Dr Reuben on Transcript at PN2019 to 2021 and 2024.

[110] Rabbi Smukler on Transcript at PN1108 and 1109.

[111] Applicant's Final and Consolidated Submissions at 76 to 80.

[112] Respondent's Closing Submissions at 19 to 22.

[113] Statement of Rabbi Ash, Exhibit A1, at 1, 2 and 6.

[114] Statement of Rabbi Ash, Exhibit A1, at 7.

[115] Statement of Rabbi Ash, Exhibit A1, at 17.

[116] Statement of Rabbi Ash, Exhibit A1, at 83.

[117] Statement of Rabbi Ash, Exhibit A1, at 79.

[118] Statement of Rabbi Smukler, Exhibit R2, at 44; Rabbi Smukler on Transcript at PN1305 to 1306.

[119] Reply Statement of Rabbi Ash, Exhibit A2, at RPA-18 and RPA-19.

[120] For example, Rabbi Smukler on Transcript at PN1294; Dr Rosen on Transcript at PN1403 to 1409.

[121] Statement of Dr Reuben, Exhibit R6, at 17 to 19.

[122] Statement of Dr Reuben, Exhibit R6, at 9, 10 and RS-1; Dr Reuben on Transcript at PN2037.

[123] Statement of Rabbi Wilhelm, Exhibit R5, at 12 to 16.

[124] Statement of Rabbi Smukler, Exhibit R2 at 17 (there was an objection this evidence, which was overruled having regard to weight, see Transcript at PN711).

[125] Applicant's Final and Consolidated Submissions at 15 and 16.

[128] Statement of Rabbi Ash, Exhibit A1, at 82; Rabbi Ash on Transcript at PN537 and PN541.

[129] Statement of Rabbi Ash, Exhibit A1, at 7, 8 and 83; Rabbi Ash on Transcript at PN532 and PN536.

[130] Rabbi Ash on Transcript at PN551 to PN559.

[131] Statement of Rabbi Smukler, Exhibit R2, at RYS-11.

[132] Reply Statement of Rabbi Ash, Exhibit A2, at 50.

[133] Applicant's Final and Consolidated Submissions at 94.

[134] Reply Statement of Rabbi Ash, Exhibit A2, at 51 and RPA-22.

[135] Rabbi Ash on Transcript at PN573 and 575.

[136] Rabbi Smukler on Transcript at PN1285.

[137] Applicant's Final and Consolidated Submissions at 95 and 96.

[138] Edwards v Guidice [1999] FCA 1836; (1999) 94 FCR 561, at 564; King v Freshmore (Vic) Pty Ltd, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000, Print S4213 at [24].

[140] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363, 362 and 350.

[141] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216.

[142] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-450.

[143] Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388, [35]; approved in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 306 ALR 125 at [35] - [37].

[144] NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618, [124].

[145] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

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

[147] Toll Transport and Toll Priority v Joseph Johnpulle [2016] FWCFB 108 at [15].

[149] Hatwell and Another v Esso [2018] FWC 2398 at [76].

[151] Applicant's Final and Consolidated Submissions at 98.

[152] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[153] RMIT v Asher (2010) 194 IR 1, 14-15.

[154] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[155] Wadey v YMCA Canberra [1996] IRCA 568.

[156] Etienne v FMG Personnel Services [2017] FWCFB 3864, [33].

[157] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[158] Applicant's Final and Consolidated Submissions at 112.

[159] Annetta v Ansett Australia Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at [16].

[160] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) at [43]-[44].

[161] Fastidia Pty Ltd v Goodwin (unreported, AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280 at [45].

[162] Applicant's Final and Consolidated Submissions at 113 to 116.

[163] Respondent's Closing Submissions at 23 to 24.

[164] Respondent's Outline of Submissions at 25 to 26.

[165] Applicant's Final and Consolidated Submissions at 117 to 119.

[166] Toll Transport and Toll Priority v Joseph Johnpulle [2016] FWCFB 108 at [15].

[167] Gelagotis v Esso Australia Pty Ltd t/a Esso [2018] FWCFB 6092, [117].

[168] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].

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

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