X (a pseudonym) v Secretary, Department of Education

Consideration

The appellant submitted that the judgement of Marroun makes clear that the Commission does not have a broad discretion in determining public sector appeals and cannot consider a specific charge or complaint that was not before the employer. It was asserted that the proposed evidence of Student AB constituted new allegations against the appellant, which could not be made in the proceedings before the Commission. The appellant's outline of submissions stated at [12]-[15]: "12. The employer cannot, according to the authority in Marroun and on a plain reading of Pt 7 of Ch 2 of the IR Act rely on purported evidence in reply to assert new allegations against the Appellant. 13. Marroun overruled the decision in Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40. The Court of Appeal specifically rejected the approach in Shoeman (sic) that gave the Commission an expansive jurisdiction beyond "specific allegations of misconduct upon which punishment was based and by implication the materials which formed the basis for the decision.''[46] 14. As set out in Marroun [47]: ... The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employer to take specific disciplinary action... 15. The Commission must determine whether the employee engaged in misconduct as set out in the 'appealable decision'. Consideration of other evidence, materials or allegations not subject to the 'appealable decision' is not within the jurisdiction conferred on the Commission. As explained in Marroun at [48], the Commission's power is a 'fresh exercise of administrative power', it is not the exercise of a different power for the first time. The Commission must determine whether the 'appealable decision' was validly made by the decision-maker." (emphasis added)
This argument overlapped with the appellant's submissions with respect to the admissibility of new evidence in public sector disciplinary appeals which I will turn to separately.
The respondent submitted that they can make new allegations against the appellant in these proceedings, but they are not doing so. The respondent stated that it intends to rely upon the evidence of Student AB for the following reasons ([11] of the respondent's outline of submissions): "(a) The anticipated evidence outlined in paragraphs 4, 5, 6, 8 and 9 constitute 'similar fact evidence' or tendency evidence as well as the Appellant's credit in demonstrating that other children were similarly restrained in the chair supporting the probability that the Appellant had placed [Student A] in a chair while in her classroom. (b) The same anticipated evidence is also relevant to the Commission's second task of considering penalty in the event that one or more of the allegations that were in fact relied upon are ultimately substantiated to the Commission's satisfaction. (c) The anticipated evidence in paragraph 7 is not a new allegation but [Student AB] observation of what she had observed when [Student A] when he was placed in the chair. (d) The anticipated evidence is made in reply (see below)."
The respondent argued that the fact that Student AB is expected to give evidence of matters that would also constitute misconduct, including alleged corporal punishment, is not fatal to the admission of the evidence but rather, it weighs heavily in favour of the evidence being admitted given its "obvious probative value" and in any event, the Commission can hear fresh allegations laid by the employer: see [12] of the respondent's outline of submissions.
The respondent submitted that consistent with s 163(1)(c) of the Act the Commission would admit the evidence of Student AB because her evidence is relevant to the allegations and, if accepted, would be relevant to any question of remedy: see [15] of the respondent's outline of submissions.
Given the basis upon which the respondent intends to rely upon the evidence, the appellant's argument that the respondent is introducing new allegations is unable to be sustained. The task of the Commission remains a determination of whether the particular allegations sustained and relied upon by the original decision-maker as set out at [3] above have been made out. Accordingly, I find that the respondent is not making new allegations in these proceedings that require determination for the purposes of the Commission conducting the appeal.
As I have decided the Commission is not being asked to consider a new allegation or charge against the appellant, I have found it unnecessary to consider the issue of whether it would be inconsistent with the decision in Marroun to allow an employer to introduce new allegations in the context of a public sector disciplinary appeal. I do, however, note that in Marroun, the Court of Appeal stated at [29]: "It was common ground that the proceeding before the Commission was a fresh hearing of the allegation of misconduct. Whether any further allegation could have been laid by the employer was not raised, because no further allegation was laid."
In Marroun, the Commissioner at first instance allowed the dismissal to stand, not because of the findings of allegations upheld by the employer and forming the basis of the dismissal, but because the Commissioner was satisfied that the appellant had, in other respects, acted in such a way as to destroy a fundamental aspect of the employment relationship. Importantly, the Court of Appeal held that although the credibility of the appellant was in issue at all stages, he was not put on notice that if findings were to be made against him of the kind, in fact, made by the Commissioner, his dismissal might be justified on that basis: see [68] of Marroun. After referring to the High Court decision in Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36, the Court of Appeal held that there was a denial of procedural fairness which vitiated the order made in the Commission.
The appellant also argued that the respondent was not permitted to rely upon fresh evidence or material in public sector disciplinary proceedings. This argument was set out at [18]-[28] of the appellant's outline of submissions: "18. A public sector appeal is a creature of statute. The right to appeal and the powers of the Commission are defined by the IR Act. A public sector appeal is not a merits review by way of rehearing de novo, in which the Commission is not confined to the evidence, other material submissions and arguments that were before the primary decision maker. 19. In contract (sic) to a de novo rehearing, the Commission is restricted to deciding whether the 'appealable decision' should be allowed or disallowed or make "such other decision with respect to the appeal as it thinks fit." 20. The Commission 'stands in the shoes of' the original decision-maker. It is necessary for the Commission to consider the specific charge or complaint considered by the original decision-maker and determine what disciplinary action, if any, is to be imposed: Marroun [35]. The Commission's jurisdiction is to conduct a fresh hearing. However, that fresh hearing is confined to the 'specific charges or complaints' that led the decision-maker to make the 'appealable decision'. 21. The procedural powers in s100G provides for the employer to present its case before the appellant, so that there is no procedural unfairness and that the appellant knows the case she or he has to meet. 22. The Appellant's primary position is that new evidence is not permitted in a public sector appeal in regard to the Commission determining whether the disciplinary action was warranted by the conduct which formed the basis of the disciplinary charge. 23. The Commission's jurisdiction in Part 7 of Ch 2 of the IR Act is of a different character to that under Part 7 of Chapter 4 of the IR Act. In Commissioner of Police v Robbs [2021] NSWIRComm 1017, the Full Bench dealt with a motion to admit fresh evidence pursuant to s187 of the IR Act Appeal. Section 191(2) of the IR Act explicitly permits the Full Bench by leave to receive further evidence. No such power exists in Part 7 of Ch 2 of the IR Act. 24. In Marroun, no new evidence was relied on, however the primary commissioner considered that Marroun's failure to be honest with the employer during the investigation was relevant in determining to not reinstate him despite finding that the decision to terminate his employment was too harsh. 25. The Court of Appeal found the Commission's decision to be in excess of power [60]. At [56] the Court held that "post-decision" evidence was admissible where it is taken into account in determining the order but not whether the appeal should be allowed. (emphasis added). 26. As Webster C observed in Doyle v Taronga Conservation Society Australia [2021] NSWIRComm 1005 at [17] in reliance on Maritime Services Board v Murray (1993) 52 IR 455, post-decision events or conduct are not relevant to the consideration of the essential precondition to the imposition of a penalty. 27. However, if the Commission finds that fresh evidence is permitted in a public sector appeal in regard to an existing allegation, the Respondent should seek leave to rely on the fresh evidence in accordance with the principles set out in Akins v National Australia Bank (1994) 34 NSWLR 155 per Clarke JA at 160 as referred to by Sloan C in SafeWork NSW v Visscher [2021] NSWIRComm 1051 [15]: .. Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible."
From the appellant's submission in reply, the new evidence of Student AB to which she objects (including on the basis that it is not in reply) is that: 1. Students sat in the high chair for up to four hours at a time [2]; 2. Student A fell out of the high chair [7]; 3. She was punished by the Appellant including by corporal punishment [8]; and 4. That the support teachers did not agree with the appellant's use of the high chair and tried unsuccessfully to stop her doing so [9].
The appellant submitted that the reference to 'de novo hearing' in Evans is a reference to the fact that the Commission conducts a fresh hearing of the allegations of misconduct and that there was no issue of the respondent relying on new evidence in that matter.
The appellant also argued that the respondent had not pointed to any public sector disciplinary appeal where new evidence was sought to be relied on and that this is because it is a procedural irregularity and it is contrary to the manner in which the jurisdiction operates: [26] of the appellant's reply submissions.
During the hearing of the matter, counsel for the appellant was asked to elaborate upon her submission that the Court of Appeal in Marroun was authority for the proposition that no new materials or evidence could be relied upon by a respondent in public sector disciplinary appeals. Counsel for the appellant referred the Commission to the Court of Appeal's analysis and rejection of the decision in Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 (Schoeman). In considering this argument, it is necessary to set out the relevant passages from Marroun, where the decision of Schoeman was considered (footnotes omitted): "44. The Commissioner stated (correctly) that he was bound by the approach adopted in Schoeman, a decision of the Industrial Court. In that case, the primary judge (then the President of the Commission) held that the Commissioner hearing Ms Schoeman's appeal had erred in confining "the question he was required to consider solely to 'whether the misconduct said to be the basis for punishment [was] made out' (other than the related question, also concerning punishment, that, if misconduct was made out was the punishment imposed appropriate?)." The error, the President held, resulted from treating the jurisdiction as "punitive" rather than "protective", in accordance with s 100C of the Industrial Relations Act. In the reasons which followed this statement of conclusions, the President noted but rejected two steps in the submissions put forward by Ms Schoeman. The first step was that s 46(2) of the Public Sector Employment and Management Act 2002 (NSW) ("the Public Sector Act"), which provided that the department head "may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer", made a finding of misconduct a precondition to the taking of disciplinary action. The second step in Ms Schoeman's argument was that, once the Commission determined that no misconduct had occurred, "the disciplinary action imposed being dismissal could not stand, and nor could any other disciplinary action". 45. In rejecting those submissions, the President stated: "(2) Section 100C(2) of the [Industrial Relations Act] provides the commission a wide power to determine appeals. So much is illustrated by the capacity to 'make such other decision with respect to the appeal as it thinks fit' (see Smith at 61; Murray at 464) …. … (6) There is no requirement for the commission to reach a conclusion as to the misconduct (as charged) in a disciplinary appeal as a prerequisite to the exercise of its powers under s 100C (and the exercise of its discretion). … (7) Further, I am unable to discern a legislative intention to confine an appeal to, as the commissioner found, a review only of the specific allegations of misconduct upon which punishment was based, and by implication only materials which formed the basis for that decision." 46. This approach should not be accepted. It was inconsistent with the understanding of the appellate process outlined above; in a significant respect it misread the legislation and it was unsupported by authority. 47. It is correct to say that s 100C(2) confers powers on the Commission in relation to a disciplinary appeal. Those powers are not at large; they must be exercised in deciding the disciplinary appeal before the Commission. The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employer to take specific disciplinary action. In Schoeman, the Public Sector Act, s 46(2), was unambiguous and unequivocal. It conferred power on the department head to take disciplinary action if the officer had engaged in misconduct. The employer had no power to take disciplinary action unless the officer had engaged in misconduct. It was the exercise of that power which was the subject of a disciplinary appeal and thus the subject matter with respect to which "jurisdiction" was conferred on the Commission. The powers conferred on the Commission were therefore limited to the exercise of that jurisdiction and to the disposal of the appeal. There is no legitimate reading of s 100C(2) which expands the jurisdiction of the Commission. 48. To hold otherwise is inconsistent with the reasoning in Calman, where the High Court succinctly identified the function of the Tribunal hearing an appeal as "a fresh exercise of administrative power". [24] It is not the exercise of a different power for the first time; so much is inherent in the description of the function as an "appeal"."
Counsel for the appellant pointed to the Court of Appeal's quote of Schoeman in Marroun at [45] where Kirby P stated (at [184]), "Further, I am unable to discern a legislative intention to confine an appeal to, as the commissioner found, a review only of the specific allegations of misconduct upon which punishment was based, and by implication only materials which formed the basis for that decision." The appellant's argument was that because the Court of Appeal stated immediately after that quote that the approach in Schoeman should not be accepted ([46]), it was expressly rejecting the permissibility of new materials or evidence in public sector disciplinary appeals: see Tcpt, 14 October 2021, p 4 (40) - p 5 (1); (15)-(36).
It was unclear how the approach suggested by the appellant to conducting a public sector disciplinary appeal would be approached by the Commission. Counsel for the appellant argued that the rule that new evidence or new material is not permitted does not apply to the appellant in the proceedings who would be at liberty to put before the Commission any material. Only after some questioning from the Commission did the appellant's counsel concede that the respondent would be able to reply to that evidence, although this was qualified as a right "to respond to the appellant's evidence in regard to the allegations": Tcpt, 14 October 2021, p 9 (39)-(50)- p 10 (28).
When the Court of Appeal's rejection of the approach in Schoeman at [46] is read in context of the paragraphs of the decision that follow, it is clear it was not stating that new material or evidence could not be relied upon in public sector disciplinary appeals. In particular, the discussion that follows in [47] makes clear that the Court of Appeal was rejecting the approach in Schoeman which allowed for the expansion of the misconduct allegations relied upon. There is no other aspect of Marroun that counsel for the appellant was able to point to in support of the proposition that that no new materials or evidence is permitted in a public sector disciplinary appeal. To the contrary, the Court of Appeal's reference to the High Court's statement in Calman that the function of the Tribunal is to conduct a "fresh exercise of administrative power" clearly demonstrates that the Court of Appeal intended to convey that fresh evidence and material can be relied upon in a public sector disciplinary appeal: see [48].
Marroun is authority for the proposition that in a public sector disciplinary appeal, the Commission is required to consider whether the appellant engaged in the misconduct alleged. This is a pre-condition to the Commission considering the second aspect of a public sector disciplinary appeal, namely whether the disciplinary outcome was appropriate in the circumstances.
Given the appeal proceedings are a hearing "de novo", prima facie and subject to the Commission's considerations of the requirements of s 163 of the Act, both the appellant and the respondent are able to rely upon any evidence that could rationally affect (directly or indirectly) the assessment of the existence of a fact in issue in the proceeding. The facts in issue in a public sector disciplinary proceeding are the particulars of any allegation of misconduct and those matters that are relevant to the Commission's consideration of an appropriate disciplinary outcome. In these proceedings, the allegations against the appellant are contained in [2] above.
The respondent has set out the basis upon which it intends to rely on the evidence it anticipates will be given by Student AB and although the evidence may ultimately not be accepted for one or more of the reasons submitted by the appellant in this application, it is not inadmissible because it is fresh evidence.
The proposition that the Commission is unable to consider fresh evidence to prove an allegation is contrary to the express provisions of s163(1)(b) and (c) where it states the Commission may inform itself on any matter in any way that it considers to be just, and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Support for this approach can be found in Calman, in which the Court dealt with the nature of an appeal under s 24 and s 48 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("the GREAT Act"), which were the predecessors of s 98(1) and s 100C respectively of the Act which were in significantly the same terms. At [28]- [30], the High Court stated: "[28] Various provisions of the statute disclose that the Tribunal is empowered to inquire into the merits of the matter before it, at a formal hearing and in a manner which is distinct from the process adopted by the administrative decision-maker at first instance. The effect of these provisions is as follows. [29] The sitting of the Tribunal was 'formal' (s 36), as opposed to an 'informal' hearing for promotion appeals under s 20 of the GREAT Act (s 35(1)). Evidence at such a sitting of the Tribunal is given on oath and is subject to cross-examination (s 38(1)). The scope of the evidence available to the Tribunal is not bound by the rules or practice as to evidence (s 43(1)). Further, the Tribunal, subject to an exception in s 43(2), may inform itself on 'any matter in such manner as it thinks fit' (s 43(1)). Section 43(2) prohibits the Tribunal informing itself on, or taking into consideration, 'any matter which has not been disclosed in evidence at a sitting of the Tribunal if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting'. Moreover, s 44 confers power on the Senior Chairperson or Chairperson of the Tribunal to compel discovery of documents and the attendance of witnesses. [30] Thus the proceeding which the appellant initiated in the Tribunal, pursuant to s 186(1) of the Police Service Act, was, by the operation of s 48(2) of the GREAT Act, in substance, a fresh exercise of administrative power, this now being pursuant to the criteria laid down in s 186(1) of the Police Service Act. In that sense, the 'appeal' may be described as an administrative hearing de novo." (emphasis added)
It is clear that there is no limitation on the Commission to only receive evidence or material that was before the decision-maker at first instance, consistent with the concept of a hearing de novo. This passage from Calman was cited in Marroun at [32]. For completeness, I am also of the view that there is no constraint on either the employee or employer relying upon evidence in the appeal that pre-dated the termination of employment for the purposes of establishing the material facts the Commission is required to determine in the proceedings. It would be unrealistic and inconsistent with the requirements of the Commission to act with equity, good conscious, and the substantial merits of the case to disallow relevant evidence only because it was not previously relied upon or referred to in the context of the original decision.
The appellant's reliance upon the principles applying to the admission of fresh evidence in appeals as espoused in Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins) and SafeWork NSW v Visscher [2021] NSWIRComm 1051 (Visscher) was misplaced. In Akins the Court of Appeal (Clarke JA, Sheller JA and Powell JA) considered the circumstances within which fresh evidence could be adduced in the context of s 75A(7) of the Supreme Court Act 1970 (NSW) and in particular sub-s (8) which provides that where the appeal is from a judgement after a trial or hearing on the merits, "the Court shall not receive further evidence except on special grounds". The principles espoused in Akins have been considered and adopted by the Commission, including in Visscher in the context of applications to admit fresh evidence pursuant to sub-s 191(2) of the Act which requires the existence of "special grounds" in an appeal to a Full Bench which is stated by sub-s 191(1) as "not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against."
The legislative contexts of those decisions sits in contrast to a public sector disciplinary appeal where not only is there no statutory requirement to find "special grounds" to admit fresh evidence, but the legislation clearly provides for the parties to present their cases in s 100G of the Act. The fact that there is no analogous legislative provision in the context of public sector disciplinary proceedings providing for the admission of fresh evidence if there are special grounds does not mean there is no capacity for the Commission to receive any evidence in those matters. It is also difficult to reconcile this submission with the appellant's case that she was not precluded from relying upon fresh evidence.
I agree with the appellant that the evidence proposed to be given by Student AB includes allegations that are of a serious nature and not the subject of the investigation that led to the decision to terminate her employment: see [29] above. However, I do not agree that this means that the evidence is not able to be adduced in the proceedings. Importantly, the appellant is on notice of the respondent's intention to adduce that evidence and has had an opportunity to respond to it and has done so in her statement in this application filed on 24 August 2021. The respondent has also been clear with respect to the purpose for which it intends to adduce the evidence and it is not to issue "new charges" against the appellant. Again, I have been unable to find authority for the proposition that the respondent is precluded from introducing evidence that could have, but did not, form the basis of further or different allegations of misconduct in public sector disciplinary appeal proceedings. Indeed, on one view, these are matters the Commission is obliged to take account of in the context of the appropriateness of the penalty imposed, given the protective nature of the jurisdiction, particularly in view of s 5A of the TA Act as set out above at [16]. I reject the oral submission of the appellant that such evidence can only be led if the original decision was quashed and a new investigation instigated by the respondent: Tcpt, 14 October 2021, p 10 (26)-(33). Such an approach would be impractical.
The appellant also advanced a number of other reasons why the Commission should exclude the evidence of Student AB including on the basis that it is not relevant, was not properly in reply, it is highly prejudicial and lacks probative value and it is not reliable or credible evidence.
For reasons I have already articulated, I am of the view that the proposed evidence of Student AB, if accepted, is probative to facts that need to be determined in these proceedings. Accordingly, it is relevant and prima facie, admissible.
The respondent resisted the appellant's argument that the evidence is not in reply with particular reference to the appellant's witness statement of 4 May 2021 as follows (at [16] of the respondent's submissions): 1. "[T]he highchair was available for use by any student in the classroom whenever required. It was not used specifically for any particular student and was used very sporadically." [22] 2. "The highchair was never used to punish any student. It was never used or designated as a chair to place "naughty" students." [48] 3. "The highchair was used on sporadic occasions if a student required to be seated at an elevated level. It was mandatory for safety reasons to apply the safety belt whenever the highchair was in use." [48] 4. "I can recall one (1) occasion in 2016 whereby I placed [Student A] in the highchair for a brief period of time so that I could more effectively communicate with him and try to calm him whilst he was self-harming." [48] 5. "The highchair became useful in providing an opportunity to all students to work with [a student] at her adjusted table." [49]
With respect to [10] of the outline of evidence of Student AB, the respondent referred to [26] of the witness statement of Disability Support Worker A, (which the appellant relies upon) which states: "The classroom door was never locked during lessons. If a student left the classroom, it is simply improbable that they could not return to the classroom."
The respondent also argued that many of the appellant's claims as contained in her statement were new to the respondent and that the proposed evidence of Student AB goes to the matters raised by her as set out above, including the circumstances the chair was used on children other than Student AB.
In reply to this, the appellant submitted, in summary:

Evidence by the respondent that simply confirms the appellant's evidence is not relevant evidence as there is simply no disagreement between the parties. Reference was made to the appellant's admission that the high chair was used in the classroom with the safety belt.
Complained that there was no cross-referencing of the paragraphs or parts of the appellant's outline of proposed evidence of Student AB and no evidence of Student AB being provided with a copy of the appellant's statement filed on 24 August 2021.
Student AB does not give evidence that: ○ the safety belt was not used for safety reasons; ○ the high chair was not useful for student to work with [another student]; ○ the high chair was used to punish students; ○ Student A was in the high chair because he was being punished;
Student AB's evidence is not relevant because it relates to a different time period than the allegations.

The appellant concluded at [27] of the appellant's outline of submissions: "In summary, paragraphs 1 to 6 of [Student AB's] evidence confirm the Appellant's evidence that multiple children used the high chair and that all times the safety belt was used. The only evidence that can be considered to be in reply is paragraph 10 and that is that the Appellant locked the door to the classroom. However, the Commission must consider whether to permit a child to be cross examined in a proceeding where six other witnesses could give direct and cogent evidence about this fact in dispute which is not an Allegation."
In my view, [1]-[9] of the outline of evidence of Student AB, if given, is properly in reply to the appellant's evidence, in particular those paragraphs of the appellant's statement of 4 May 2021 as set out above at [47]. The outline of evidence of Student AB is evidence that is relevant to the frequency, duration and purpose for which the high chair was used in the appellant's classroom. The outline of evidence of Student AB at [10] directly contradicts the evidence that the appellant's classroom was not locked. The proposed evidence at [8] relating to Student A's appearance of being upset while in the high chair, if accepted, may be relevant for the purposes of establishing whether, as alleged, the appellant used unnecessary and inappropriate strategies to manage the behaviour of Student A. The fact that there is no cross-referencing with specific paragraphs of the appellant's witness statements or that it might not directly contradict the appellant's evidence in parts does not make the evidence not in reply nor irrelevant.
The appellant also raised a range of arguments with respect to the credibility and reliability of the evidence of Student AB. For example, the appellant submitted that Student AB may have been consciously or unconsciously coached by her mother in making the relevant allegations, her health condition and age would make her an unreliable witness, that she had not been a student of the appellant at the times she indicated she had been and that her evidence in August 2020 was at odds with her proposed evidence.
Some of the issues raised by the appellant with respect to the credibility and reliability of the evidence of Student AB may be meritorious and will need to be addressed by the respondent in the proceedings, should they choose to call Student AB. It was not surprising that the respondent did not seek to address the matters raised by the appellant in her evidence in support of the application given the preliminary nature of the proceedings. The Commission is not in a position to make an assessment of the reliability or credibility of any evidence that may be given by Student AB at this stage of the proceedings. Given the nature of the evidence led by the appellant in the application with respect to the vulnerabilities of Student AB, the Commission has requested that the parties give consideration to her capacity to give evidence under oath. The evidence of the appellant on these matters is not a sufficient or proper basis for the Commission to not allow Student AB to give evidence.

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