Semaan v Secretary, Department of Education

(iii) The disclosure of the name, address, picture of any other material that identifies, or may lead to the identification of the school, namely [the School].

2. An order pursuant to s. 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of:

a. Student A; b. Student B; c. Student C; d. Student D; e. Student E; f. Student F; g. Student G; h. Student H; and i. Student I.

3. An order pursuant to s. 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of the school, namely [the School].

4. An order pursuant to s. 164A(1)(a) of the Industrial Relations Act 1996, that access to the Commission file in the matter of Adam Semaan v Secretary New South Wales Department of Education (File no 2023/22775) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access.

Ex Tempore DECISION

1. Before the Commission is a Notice of Motion filed by Mr Adam Semaan (the applicant) on 13 April 2023 seeking the following orders: 1. The Proceedings No IRC 22775 of 2023 (Proceedings) be stayed pending finalisation of the applicants Working with Children Check application and the finalisation of any review of that decision by the NSW Civil and Administrative Tribunal, upon the applicant giving the undertaking that: a. the applicant will discontinue the Proceeding if the Review affirms a decision to bar the applicant; and b. if the applicant is successful in the Proceedings, then any orders sought for lost remuneration will exclude the period between the date on which the stay was granted and the date on which the stay was dissolved.
2. The orders sought are opposed by the Secretary, Department of Education (respondent).
3. The Notice of Motion arises in the context of unfair dismissal proceedings commenced by the applicant pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the Act) following the termination of his employment by the respondent effective 7 February 2023.
4. It is convenient to set out the background to the Notice of Motion at this point. The applicant has been employed by the respondent from 1 January 2008. He was employed as a Head Teacher at the School [1] . The applicant held the position substantively since 21 November 2016.
5. The applicant's employment was terminated following a finding by the respondent that he engaged in serious misconduct, as follows: 1. Allegation 1: Between May 2019 and June 2019, Mr Adam Semaan utilised the Grindr app to contact 16-year old student Jimmy Smith and to arrange face to face contact. 2. Allegation 2: In June 2019, Mr Adam Semaan engaged in inappropriate physical contact including kissing, oral sex and penetrative sex with Jimmy Smith, on multiple occasions in the store room near classroom K13. 3. Allegation 3: Between 25 September 2020 and 2 October 2020, Mr Adam Semaan exchanged numerous electronic text messages with Jimmy Smith without a legitimate educational purpose.
6. The applicant maintains that he has not engaged in misconduct.
7. The parties were provided with an opportunity to file submissions and evidence in the Notice of Motion. The applicant relied upon his affidavit filed 13 April 2023. Mr Britt of counsel cross-examined the applicant at the hearing of the Notice of Motion.
8. On 28 April 2023, the applicant filed written submissions in reply to the respondent's written submissions. The applicant also relied upon an email letter from the Office of the Children's Guardian (OCG) dated 26 April 2023: Ex A2. In that email the officer states to the applicant that, "Your report is being finalised and a timeframe is not possible at this stage of the process."
9. The respondent relied upon the affidavit of Ms Kaitlyn Maia, Legal Officer filed 21 April 2023: Ex R1. The respondent also relied upon an Exhibit to the affidavit of Ms Maia which included the respondent's investigation file: Ex R2.
10. Both parties delivered oral submissions to the Commission on 2 May 2023.
11. During the hearing the applicant indicated to the Commission that he did not oppose an order for a stay of the proceeding for a specific period of time, rather than a stay in the form of the orders sought in the Notice of Motion.
12. The respondent was provided with an opportunity to be heard with respect to the Commission making any such orders, alternative to those sought in the Notice of Motion. It opposed the making of any orders staying the proceedings.

Legislation and legal principals

1. The Commission can stay the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). It is settled that the Commission should determine the matter with the overriding objective in civil proceedings in mind, namely to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court, or in this case, the Commission.
2. In Sanford v Austin Clothing Company Pty Ltd (2000) S8287 (Sanford), the Fair Work Commission considered an application for an indefinite stay, pending the outcome of criminal proceedings, relating to essentially the same allegations that formed the basis of the reasons for the applicant's termination. The circumstances of that case are factually different from this matter. However, the principles are applicable to a proper consideration of this case.
3. In Sanford, Watson SDP observed the statutory presumption under the Workplace Relations Act 1996 (Cth) that the matter would be dealt with expeditiously: see [23]-[26]. Further, Watson SDP cited with approval the principles set out by Wootten J in McMahon v Gould (1982) 1 ACLC 98 in analogous circumstances, relevantly as follows: "(a) prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court; (b) it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds; (c) the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with; … (e) this court's task is one of the `balancing of justice between the parties', taking account of all relevant factors; (f) each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors; … (k) the effect on the plaintiff must also be considered and weighed against the effect on the defendant; and (l) in an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed."
4. While the above principles serve as useful guidance, ultimately, the decision with respect to the Notice of Motion must be determined on its own facts: Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084 at [27].
5. The respondent is entitled to expect that the matter will be determined as quickly as practicable: see s 162 (2)(a) of the Act and s 67 of the Civil Procedure Act. However, both parties are also entitled to expect that the Commission will balance this objective with the need to determine proceeding in a manner that is fair and just (s 3(a)) and will act in accordance with equity, good conscience, and the substantial merits of the case, albeit without regard to technicalities or legal forms (s 163(1)(c)).
6. There is a need to balance all of the factors in the case, including the competing interests of the parties to determine whether it is appropriate to exercise the discretion to grant the stay sought. In this regard, the applicant bears the onus to demonstrate that it is appropriate to depart from the usual practices adopted by the Commission in managing the proceedings: Dadley at [29].
7. In determining the Notice of Motion, the Commission is exercising a discretion which necessarily requires the balancing of competing interests of the parties and a consideration of the interests of justice and the public interest: Dadley at [35].
8. The applicant also referred the Commission to the matter of Creighton v NSW Department of Education and Communities [2016] NSWIRComm 1015. Although Commissioner Stanton's analysis of the relevant factors in this decision were instructive, the circumstances were slightly different in that matter, a review had commenced in New South Wales Civil and Administrative Tribunal (NCAT) with respect to the relevant officers Working with children Check (WWCC).
9. Also relevant to this matter are the terms of s 47 of the Child Protection (Working with Children) Act 2012 which provides: "47 Relationship with other Acts and laws (1) A prohibition on employment under this Act prevails to the extent of any inconsistency between it and any other Act or law. (2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or worker contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment of a person from employment prohibited under this Act."
10. The capacity of the Commission to issue a remedy in this matter may be impacted by the applicant having a valid WWCC. It did not seem to be controversial that the Commission can not make an order for reinstatement if the applicant does not have a WWCC. However, the issue of whether the applicant could be awarded compensation if he does not have a WWCC was not explored in any depth by the parties, with the respondent choosing to reserve its position on this issue.

The parties' submissions on the relevant factors

1. The basis upon which the applicant sought to advance the Notice of Motion was clear and succinct. In his affidavit filed 13 April 2023 he stated (at [9]-[12]): "[9] The OCG and the IRC will be required to make findings of fact based on an consideration of a substantially similar factual matrix and relevant evidence. [10] Further, the outcome of the OCG Application is material evidence in the Proceedings. In this regard, the determination of the OCG Application will have a material effect on the Proceedings. [11] At this stage in the Proceedings, the Department of Education has not yet been put to the task of filing its evidence and costs have been confirmed to a response to the Proceedings and attendance at the conciliation. [12] I believe I have a genuine claim against the Department of Education in the Proceedings. However, I do not wish to be disadvantaged or prejudiced by the Pending OCG Application."
2. The respondent set out the basis for opposing the Notice of Motion at [13]-[26] of their written outline of submissions (footnotes omitted): "The Respondent's submission is that it is neither necessary nor desirable that the Commission grant the stay sought. The Applicant's evidence is that the outcome of the OCG Application is material evidence in the Proceedings. This is incorrect. The Applicant's WWCC status is only relevant to the question of remedy. The question of the "fairness" of the Applicant's dismissal is distinct and severable from the question of remedy (should that question arise). If the Commission concludes that the Applicant's dismissal was not harsh, unreasonable or unjust the question of remedy (if any) becomes futile. This is especially the case given even if the Applicant obtained a WWCC as a volunteer it would not impact on the issue of remedy. This is relevant in relation to these proceedings, where the Applicant was dismissed following findings by Mr Daryl Currie, Executive Director, Professional and Ethical Standards Directorate of the Respondent that the Applicant engaged in the following misconduct: Allegation 1- Between May 2019 and June 2019, you utilised the Grindr app to contact 16-year old Student A and to arrange face to face contact. Allegation 2 - In June 2019, you engaged in inappropriate physical contact including kissing, oral sex and penetrative sex with Student A, on multiple occasions in the store room near classroom K13. Allegation 3 - Between 25 September 2020 and 2 October 2020, you exchanged numerous electronic text messages with Student A without a legitimate educational purpose. The Applicant has made admissions to engaging in the misconduct put at Allegation 3. The phone records show text messages exchanged between these two numbers starting on 26 September 2020 at 7.42am. Between 26 September 2020 and 28 September 2020 approximately 253 messages are exchanged. The Applicant agrees that he engaged in electronic communication with the student immediately after the student's graduation date in September 2020. The Applicant's suggestion that this conduct is mitigated as the student had graduated and as such was no longer a student is incorrect. Even if this were the case, the Applicant's failure to acknowledge that such communications are a breach of professional boundaries and the Code of Conduct highlights the Applicant's lack of insight and the risk posed by the Applicant. Further, the present WWCC application made by the Applicant has no relevance to the proceedings. This is because he has submitted an application for a WWCC for the unpaid, volunteer class, rather than the paid class. His former role of Head Teacher requires that he hold a WWCC for the paid class to enable him to engage in paid, child-related work. Even if the Applicant had made the correct application, a WWCC is not a precondition to the determination of whether the dismissal was harsh, unreasonable or unjust. The Applicant's evidence is also that the OCG and NSW Industrial Relations Commission (the 'IRC') will be required to make findings of fact based on a substantially similar factual matrix and relevant evidence. Whilst, this may be true to some extent, the statutory questions that the Commission and the Tribunal are ultimately required to determine are fundamentally different. Granting the temporary stay sought by the Applicant will result in delay. The Applicant has not provided a timeframe as to when the OCG will be in a position to determine whether or not to grant the Applicant with a WWCC. The Applicant suggests that his OCG Application is well advanced, but does not provide evidence to support this assertion. Merely because the process has been prolonged does not suggest that the Application progress is well progressed and near completion. Further, should the OCG refuse his application and not grant the Applicant with a WWCC, the Applicant will then have 28 days to file an appeal with NCAT. Any administrative review before NCAT will result in further delay. Most importantly, delay is significant as it could have adverse implications for the Respondent's witnesses' memory and have implications for their ability to recollect events underpinning and related to the misconduct findings. The passage of time has an impact on the quality of evidence before the Commission and as such, it is in the public interest to dispose of matters as quickly as practicable. Delay may also result in witnesses being unavailable, given that many of the witnesses for [the] Respondent that assisted and provided evidence in the disciplinary process are former students of the Respondent. The granting of a temporary stay in these proceedings is inconsistent with the Commission's statutory obligation is to act as quickly as is practicable, and s 67 of the Civil Procedure Act which enables the Commission to stay the proceeding noting the overriding objective in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court (and Commission)."
3. The respondent concluded that the Commission should not make the orders sought by the applicant and proceed to determine the question of whether the applicant's dismissal was harsh, unreasonable or unjust.
4. The applicant relied upon written submissions in response filed 28 April 2023 which were in the following terms: "The Applicant currently has the ability to commence proceedings at NCAT for a decision regarding the WWCC. This is in accordance with Section 27(3) of the Child Protection (Working with Children) Act 2012. Consideration should be given to the Respondent's submission at [6] regarding the appropriateness of the the principles outlined in L & W Developments Ply Ltd v Della [2003) NSWCA 140. In analogous circumstances, Commissioner Stanton relied on these principles when ordering a stay of proceedings in his decision Benjamin James Creighton v NSW Department of Education and Communities [2016) NSWIRComm 1015 [Annexure A]. The Applicant argues that these principles are appropriate and applicable in this case. The Respondents submission at [14] that "the present WWCC application made by the Applicant has no relevance to the proceedings" seems at odds with the Respondents submission at [3f] that the protection of children is to be the paramount consideration. It also seems at odds with the Respondents request to produce documents related to the WWCC application. If the documents are relevant to proceedings then it follows that the WWCC application is relevant. The Applicant argues that a WWCC is material evidence with respect to the Teaching Service Act cited by the Respondent. This is especially the case given the requirements of Section 15(4A) of Child Protection (Working with Children) Act 2012. With respect to the Respondent's submission at [18] I refer to Section 12(2) of the Child Protection (Working with Children) Act 2012. This would allow the Applicant to undertake child related work. The Act requires that the WWCC class be upgraded to "Paid" before 30 days of consecutive work. The Applicant gives an undertaking that this will indeed be done as soon as the WWCC is granted. The Respondent is aware of the above requirements and outlines the details in its own advice [Annexure B] hosted on its website. The process of changing the class of a WWCC is outlined by Services NSW [Annexure C] and includes paying a fee and updating the WWCC register. There is no additional or different risk assessment process for approval or upgrade of different classes. The Respondents submission at [3e] regarding NESA accreditation should be viewed with regard to [Annexure D]. NESA has a process for Re-accreditation after revocation. One would assume that if such a process exists then it is possible for the Applicant to gain the required accreditation. When the Applicant is granted a WWCC the grounds for the revocation of his NESA accreditation will cease and he will be eligible for re-accreditation. The Applicant gives an undertaking that upon being granted a WWCC the Applicant will immediately apply for re-accreditation with NESA."
5. I have considered the parties' written and oral submissions in forming my decision.

Consideration

1. In determining the Notice of Motion, the Commission is exercising a discretion. In deciding the appropriate outcome, it is necessarily to balance the competing interests of the parties in considering the interests of justice. It is also appropriate to consider the dictates of what is in the public interest.
2. It is in the public interest that the Commission conduct proceedings consistent with s 67 of the Civil Procedure Act which enables the Commission to stay the proceedings noting the overriding objective in civil proceedings is to facilitate the just, quick, and cheap resolution of the real issues in dispute, having regard to the dictates of justice, including the efficient disposal of the business of the Court (and Commission).
3. The need to resolve the proceedings quickly is not always consistent with the need for the Commission to adopt an approach that is just. The need to do justice to the parties and conduct the proceedings in a fair manner is also in the public interest.
4. In considering the Notice of Motion, the nature of the stay that it sought and the likely length of the delay this will cause are relevant both in terms of the public interest, but also in respect of the interests of the respondent. There is limited evidence before the Commission to assess how long the OCG may take to determine the applicant's WWCC application. Further, there is no probative evidence in respect to time, any review of the OCG's decision might take before NCAT.
5. In his affidavit, the applicant states that the application with the OCG is "well advanced", noting that he filed his submission on 20 December and that he has been informed by the OCG that the submissions have been filed by New South Wales Police and the Department of Communities and Justice: [8] of the ExA1. This evidence does not assist to understand how long the OCG will take to make its decision, let alone the NCAT if he were to seek a review of any decision. This is no criticism of the applicant. As he stated in his evidence, this is not something that can be known to anyone.
6. The respondent pointed to the impact the delay may have upon the quality of the evidence the witnesses are able to give in the proceedings before the Commission. To his credit, the applicant acknowledged that this is a relevant factor in my determination of the Notice of Motion. It is generally desirable that witnesses provide their evidence as proximate to the relevant events they are deposing to so that the passage of time does not erode their memory and the quality of their evidence. However, I can see no reason why this is of concern with respect to Allegation 3, given the factual matters relating to that allegation are not materially contested.
7. Further, given the subject matter of Allegations 1 and 2, this is less of a risk than it might be in some other matters. The complainant would remember the essential elements of the conduct he alleges if it occurred, given the nature of the allegations. The respondent has indicated it may rely upon other witness evidence in respect of these events. The respondent referred to the witness evidence it proposes be given by former students that the complainant told them about allegations 1 and 2 about 15 months after the alleged events were said to have occurred. It is not yet known if that evidence, already captured through the respondent's investigation process will even be in contest, in terms of the truth of those statements having been made by the complainant to those witnesses.
8. Moreover, contemporaneous versions of the relevant events have already been captured through the Police and the respondent's investigation processes. It is not as though the witnesses will be turning their minds to the relevant events for the first time when they prepare their witness statements for the proceedings before the Commission. That is not to say the passage of time will have no impact on the quality of the evidence before the Commission, as it may. This is a reason why it is in the public interest to dispose of matters as quickly as is practicable. This is a matter I have taken into account and it supports the respondent's case that no stay should be ordered.
9. I have also taken into account the undertakings proposed by the applicant that back pay will not be sought for the duration of the stay. It neutralises the potential direct financial impact of the delay caused by the stay that he seeks.
10. The applicant submitted that the outcome of the OCG application is material evidence in the proceedings. The determination being made by the OCG is different to the task of the Commission in these proceedings. Evidence in one matter will not be evidence in the other. This is also true of any review in NCAT. However, in this matter, the applicant has indicated that should the stay be granted, he will discontinue these proceedings if he is unsuccessful in obtaining his WWCC. Therefore, the outcome of the application process for the applicant's WWCC will have a direct and significant impact upon this matter because of his undertaking, and this is a relevant matter to be considered in the context of the Notice of Motion: see Environmental Group Ltd v Croudace (unreported, Supreme Court, NSW, Santow J, No 1468/98, 7 August 1998) at pp 41- 42.
11. If the matter is stayed and the applicant is unsuccessful in his pursuit to obtain his WWCC prior to the expiration of the stay, these proceedings will not continue as a consequence of the undertaking he has indicated he will give to discontinue the proceedings. If the applicant's efforts to obtain his WWCC is unsuccessful prior to the expiration of the stay, any costs in preparing this matter for hearing will be lost. In this regard, I note the evidence of the applicant that although self-represented, he has had the assistance of legally qualified persons in preparing for this Notice of Motion and he intends to be represented in the future.
12. The respondent suggests the Commission could proceed to determine the issue of whether the dismissal was harsh, unreasonable, or unjust separate to the question of remedy. I consider the applicant would be materially prejudiced if the Commission adopted this process. If the applicant is successful prior to him having an opportunity to pursue his WWCC, the Commission will not be able to consider the remedy he seeks of reinstatement and possibly compensation. This will no doubt lead to another application to stay the matter at that point of time.
13. Balancing the interests of the parties, the interests of justice and the public interest, though they are no longer pressed by him, I would be disinclined to make the orders sought by the applicant in his Notice of Motion. They are too broad and there is too much potential for the delay to become inordinate. However, I consider it appropriate to make orders staying the matter for a period of 6 months. Should his WWCC be granted within that timeframe, or his application fail, the stay should be lifted.
14. I have decided to make a stay in these terms on the basis of the undertakings offered by the applicant which are reflected in the orders I have made in the Notice of Motion.
15. While I have carefully considered the interests of the respondent, I am particularly concerned with the prejudice to the applicant if he is required to prepare for his application and potential review to obtain his WWCC and the waste of the parties and the public's resources that will be realised if he is unsuccessful. However, it may be that the prejudice caused by the actual delay is outweighed by this prejudice. This is why I have decided to stay the matter for a period of six months only.
16. I have also decided that the respondent should not be precluded from continuing to prepare its case. The respondent has asked that any stay not prevent it from issuing summons for the production of documents upon third parties. The applicant only objected to this on the basis that the respondent may complain about its costs in preparing the case in any future stay application. The respondent indicated that it would not make that submission.
17. The parties should expect that if the matter is to proceed upon the applicant receiving his WWCC, the Commission will issue the standard directions for unfair dismissal proceedings and the expectation is that they will be strictly complied with. If the applicant wishes to pursue these proceedings after the stay has expired in 6 months, he will need to either engage with them or otherwise seek a further stay. Any such application will need to be accompanied by evidence of the status of the WWCC processes. The applicant should not assume that a further application for a stay of these proceedings will be granted if his application for a WWCC has not been finalised.

Orders

1. I made the following orders, in accordance with this decision: 1. The proceedings in the IRC Matter No. 2023/22775 (the Proceedings) shall be stayed temporarily for the lesser of a period of 6 months from the date of this decision (2 May 2023) or the applicant being granted a Working with Children Check Clearance, conditional upon the following undertakings being given by the applicant to the Commission: 1. The applicant will discontinue the Proceedings in the IRC Matter No. 2023/22775 if the NSW Civil Administrative Tribunal affirms a decision by the Children's Guardian to refuse (or not grant) the applicant's application for a working with children check clearance; and 2. If the applicant is successful in the Proceedings, then any orders sought for lost remuneration will exclude the period between the date on which the stay was granted and the date on which the stay was dissolved. 3. The applicant will proceed with his Working with Children Check Application and pursue any administrative review of the Office of Children's Guardian's decision with due dispatch. 4. Should the applicant be granted a Working with Children Check Clearance for the volunteer class, he will make an application to upgrade his clearance from a volunteer class to a paid class within 7 days. 5. The applicant will notify the Respondent of any outcome of his Working with Children Check application or any decision made by the Office of Children's Guardian and NCAT within 7 days of the decision. 1. Notwithstanding Order 1, the Respondent can file summonses to produce to third parties whilst the proceedings are stayed. 2. No order as to costs. Janine Webster COMMISSIONER

Endnote

1. Pseudonyms have been applied to the name of the School and student named in this decision in accordance with the Commission's orders made pursuant to s 164A of the Act in this matter. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2023