X (a pseudonym) v Secretary, NSW Department of Education

Industrial Relations Commission (NSW)|2022-06-30

decision

This is a case about a teacher ("appellant") dismissed from the Teaching Service on 24 November 2020, after being accused of mistreating students in her care. The seriousness of the allegations against the appellant in this matter is compounded by the vulnerability of the young children she has been accused of mistreating, who have complex educational needs, and are deaf or hard of hearing.
The appellant's employer, the Secretary, NSW Department of Education ("respondent") terminated her employment on the basis that on occasions during the period 2016 to 2020, in her role as a Teacher (Hearing Support) at the School, the appellant engaged in conduct that could amount to misconduct in that: 1. The appellant used unnecessary and inappropriate strategies to manage the behaviour of Jack Andrews [1] when she: 1. Placed a belt around him when he was seated in a chair (the chair), preventing him from moving off the chair; and 2. Removed Jack Andrews' shoes and socks, preventing him from going outside during designated breaks. 1. On a number of occasions, the appellant engaged in unnecessary and inappropriate physical contact with Jack Andrews when she grabbed and pulled him from the canteen line and from school assemblies. 2. In Term 2, 2019 the appellant placed Ruby Lang outside the classroom in inclement weather conditions, causing her stress and anxiety.
The appellant has appealed her dismissal under s 98 of the Industrial Relations Act 1996 (NSW) ("Act"). As attempts to resolve the matter through conciliation were unsuccessful, the matter proceeded to hearing over five consecutive days, with the matter listed for a further day to hear final submissions.
I have found the allegation that the appellant used the unnecessary and inappropriate strategy to manage Jack Andrews' behaviour by removing his socks and shoes as proven. Otherwise, the respondent has failed to establish the allegations of misconduct against the appellant on the balance of probabilities before the Commission. I have allowed the appeal and issued a different disciplinary outcome which will see the appellant returned to a different school, issued with a warning, and placed on a performance improvement plan. My reasons for that outcome follow.

The respondent's evidence and submissions

The respondent relied upon the following written statements in the proceedings: 1. Statements of Daryl Currie (his real name), Acting Executive Director, Professional and Ethical Standards Directorate, filed 16 March 2021 (Ex R1) and 2 June 2021 (Ex R3). Mr Currie made the decision to dismiss the appellant on behalf of the respondent. 2. Statement of Ashley Dickson filed 16 March 2021 (Ex R6). Ms Dickson is a Teacher, Hearing Support at the School. She commenced teaching at the School in Term 1, 2018. Through Ms Dickson, the respondent also tendered four complaints she made in respect of the appellant dated 9 December 2019 (Ex R7). 3. Statement of Jennifer Reid filed 24 March 2021 (Ex R10). During the hearing, the respondent also tendered the statement of Ms Reid that contained highlighting and mark-ups (Ex R11). Ms Reid is a School Learning Support Officer ("SLSO") at the School who worked in the appellant's classroom. 4. Statement of Sarah Hannan filed 16 March 2021 (Ex R8). Ms Hannan is an SLSO at the School working in a job share arrangement with Ms Reid. She is also the mother of Isabella Hannan who was taught by the appellant. 5. Statement of Amanda O'Reilly dated 16 March 2021 (Ex R9). Ms O'Reilly is an SLSO. Ms O'Reilly worked at the School from 2013 to December 2017 in the Infants Deaf Unit. She worked with the appellant for approximately 2 years providing support in her classroom.
The statement of Mr Currie exhibited the respondent's Investigation Report which was also tendered into evidence (Ex R2).
The highchair subject to the allegations was also in evidence and marked as Ex R5.
The respondent also tendered an audio-recording of an interview conducted with Jack Andrews: Ex R12.
All of the respondent's witnesses were cross examined at the hearing.
The respondent filed submission on filed 12 May 2022 (RS) and in reply on 24 June 2022 (RSR). Both parties delivered oral submissions on 30 June 2022.

The appellant's evidence

The appellant relied upon the following written statements in the proceedings: 1. Statements of the appellant filed 4 May 2021 (Ex A4) and 24 August 2021 (Ex A5). 2. Statement of Melissa Bond filed 4 May 2021 (Ex A8). Ms Bond is the Assistant Principal, Hearing of a region of New South Wales and the School was within her portfolio of responsibility at the relevant time. 3. Statement of Stephanie Beard filed 4 May 2021 (Ex A9). Ms Beard is a speech pathologist and business director of a business delivering services within her profession. 4. Statement of Michael Lawless filed 4 May 2021 (Ex A7). Mr Lawless a Disability Support Worker employed by a private company involved in the delivery of services designed to meet the need of people with significant disabilities. He supported a child in the appellant's classroom on a full-time basis from 2015 to 2020.
All of the appellant's witnesses were cross-examined in the proceedings.
The appellant filed submission on 14 June 2022 (AS).

Legislation and legal principals

In this matter, the Commission may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit: s 100C of the Act.
In Marroun v State Transit Authority [2017] NSWCA 273 ("Marroun") the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7 of the Act. A useful summary of the principles from Marroun was recently summarised by Sloan C in Woods v Industrial Relations Secretary on behalf of the Office of the Director of Public Prosecutions [2021] NSWIRComm 1054 as follows at [20]: 1. An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45]-[47] and [62]. 3. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 4. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal, it may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63].
The respondent bears the evidentiary burden of establishing that the appellant engaged in the alleged misconduct: Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at pp 83-84.
The misconduct must be established on the balance of probabilities. As observed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw") at pp 361-362: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. …Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at pp 170-171, Mason CJ, Brennan, Deane and Gaudron JJ stated: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."
The disciplinary powers exercised in relation to public sector employees are protective in nature: Eparaima v Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services) [2020] NSWIRComm 1038 at [25] citing Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173]. Further, in relation to these proceedings, s 5A of the Teaching Service Act 1980 (NSW) ("Teaching Service Act"), provides that the protection of children is a paramount consideration. Section 5A is in the following terms: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
The appellant was terminated pursuant to Part 4A of the Teaching Service Act, which has as its objects: "(a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, (b) to protect and enhance the integrity and reputation of the Teaching Service, (c) to ensure that the public interest is protected."
The meaning of misconduct as alleged in this matter is to be derived from s 93C of the Teaching Service Act, not the common law: see Greig v Director-General Department of Education and Communities [2013] NSWIRComm 1025 at [40]. Relevantly, that section provides: "93C Meaning of "misconduct" (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, …"

Consideration

The outcome of these proceeding depends upon the Commission's findings with respect to the allegations against the appellant made by the respondent.
It is convenient to consider the classroom exclusion allegation first because it requires an analysis of the credibility of Ms Reid, who is also an important witness in respect of the highchair allegation.

"The classroom exclusion allegation" - In Term 2 2019, the appellant placed the student, Ruby Lang, outside the classroom in inclement weather conditions, causing her stress and anxiety.

Ms Reid is deaf, and she identified that her first language is Auslan. She gave evidence before the Commission through a translator. Ms Reid's direct evidence with respect to the allegation relating to Ruby Lang being excluded from the classroom was as follows ([27]-[28] of Ex R10): "27. I remember a time I was working with [Ashley] and I told her I needed to go to the toilet. I saw [Ruby] was sitting outside her classroom on a metal seat and she was crying. It was a cold day and she only had a short-sleave shirt on. I spoke to [Ruby] briefly: Me: "What's wrong?" [Ruby] just pointed to the door and signed, 'I have been told to sit outside.' 28. I went to the bathroom and when I came back, she was still sitting outside. She might have been there for about 15 minutes or so. I thought about saying something but I felt like I couldn't question it."
Ms Reid's evidence of the exchange she had with Ruby changed during cross-examination. Before the Commission, Ms Reid gave the following evidence (Tcpt, 17 February 2022, p 25 (42) - p 26 (8)): "Q. You didn't speak to Ruby when you were walking to the toilet or when you were walking back from the toilet did you? A. INTERPRETER: Yeah I just - I did say "What's wrong" I said one word I said "What's wrong" and then when I came back I just waved, that was it. Sort of smiled and waved and that was it, that was the only exchange. But Ruby she was pointing to the door and that was it, she just pointed to the door and that was all she did. Q. She just pointed to the door and she didn't sign to you anything else? A. INTERPRETER: Nothing else that was it. Maybe she was scared herself - maybe I understand maybe she was scared I don't know. I could just see from her body language she looked like maybe she was scared. She looked fearful. She was very young. Q. Then when you went back to [Ms Dickson's] classroom did you tell her that Ruby was locked outside of [the appellant's] room? A. INTERPRETER: Yes."
Ms Dickson gave a different account of Ms Reid's report of her exchange with Ruby that day. Ms Dickson gave evidence that Ms Reid said to her (Ex R6 at [32]): "I was outside and noticed [Ruby] outside [the appellant's] classroom. I opened the door to take her back inside and [the appellant] yelled at me 'Shut the door! She's in trouble.' I didn't know what to do."
Ms Dickson's account of what was said to her by Ms Reid was consistent with the letter of complaint she made on 9 November 2019: Ex R7. If accepted, Ms Dickson's account demonstrates the unreliability of Ms Reid's evidence who subsequently denied she engaged with the appellant at all during the incident and even provided an explanation why she did not "say anything" about the situation to the appellant: Ex R10 at [28].
Ms Dickson gave evidence that at this time, having received the report from Ms Reid, she looked outside her classroom window situated next to the appellant's classroom and could see Ruby outside her classroom door, and observed that she was clearly upset: Ex R6 at [32]. Under cross-examination, Ms Dickson denied that she was unable to see outside the appellant's classroom door from her classroom: Tcpt, 15 February 2022, p 31 (21).
The respondent submitted Ms Reid's version of events under cross-examination should be accepted and that the Commission should find the allegation substantiated based on Ms Reid's impression that Ruby had been told to sit outside, which she said she inferred from her observation of her body language: RS at [3.105]. The respondent submitted the Commission should not make an adverse finding with respect to Ms Reid's credibility because her evidence changed, as she had provided an explanation for this in her evidence. In making this submission, the respondent referred to Ms Reid's evidence of how she came to give her statement in the proceedings, in circumstances where she required her son to explain the meaning of some of the words and it had not been formally translated to her prior to her signing it: see Tcpt, 17 February 2022, p 29 (20)-(27).
The inconsistencies in Ms Reid's account of the classroom exclusion allegation are concerning. Putting aside the evidence of Ms Dickson about what Ms Reid told her about her exchange with Ruby outside the classroom, it was an important and significant detail in Ms Reid's statement that Ruby signed to her that, "I have been told to sit outside." Not only does her capitulation in respect of this evidence demonstrate that she is an unreliable witness, it also shows that she is willing to give different, yet definite evidence about the same events without a clear reason provided for that change. The appellant's evidence under cross-examination that she did not understand some words in the statement is an inadequate explanation for the differences in her accounts. There is a significant difference between saying that Ruby said that she had been told to sit outside and that she insinuated this from her body language. Ms Reid's change in evidence is particularly concerning given the seriousness of the allegations she has made in these proceeding against the appellant.
For these reasons, I have found the evidence of Ms Reid with respect to the classroom exclusion allegation to be unreliable. I attribute no weight to the evidence of Ms Dickson of what Ms Reid told her about why Ruby was outside. What Ms Dickson said Ms Reid told her, is inconsistent with what Ms Reid says occurred in both her statement and under cross-examination. The evidence of Ms Dickson that she observed Ruby crying outside of the appellant's classroom is an insufficient basis to make out the classroom exclusion allegation. It is of course concerning that Ruby would be outside in inclement weather conditions, upset without an adult supervising or comforting her, without appropriate clothing, irrespective of how she came to be there. However, there could have been a range of reasons why Ruby was outside and crying and there is no reliable evidence that this occurred because the appellant "placed her there" for reasons that were exclusionary or inappropriate.
The respondent did not provide evidence in respect of Ruby's account of the allegation, except for the varying versions of Ms Reid about what she signed to her at the time. There was no explanation given for the respondent's failure to call Ruby or adduce evidence of her account, noting the respondent sought to rely upon the evidence of other students, including those with significant vulnerabilities. The Commission did not receive the benefit of Ruby's explanation for why she was crying outside the classroom. It is plausible that Ruby was crying outside the classroom for a broad range of reasons. There was evidence in the proceedings that Ruby cried often, and for a multitude of reasons: Ex A7 at [25]-[26].
The appellant denied the classroom exclusion allegation: Ex A4 at [87]. She said she had no recollection of Ruby being outside on the occasion referred to by the respondent's witnesses and that she allowed Ruby into the courtyard area by herself from time to time when she elected to do so: Ex A4 at [87]. The appellant was materially prejudiced in responding to the allegation by its lack of particularity, such as the date and time of the incident. Her capacity to respond was also materially impacted by the delay in the complaint being raised with the appellant despite evidence of Ms Dickson having reported the allegation to Ms Christina Williams, Assistant Principal of the Support Unit on 5 June 2019: Ex R2 at p 160.
For the foregoing reasons, I have concluded that the respondent has not discharged its onus to prove, on the balance of probabilities, the classroom exclusion allegation. I am not persuaded on the evidence that the conduct alleged occurred.

"The highchair allegation" - Between 2016 to 2020, the appellant in her role as a Teacher (Hearing Support), engaged in conduct that could amount to misconduct in that she used unnecessary and inappropriate strategies to manage the behaviour of Jack Andrews when she placed a belt around him while he was seated in a chair, preventing him from moving off the chair.

It is uncontroversial that the appellant used the highchair in her classroom for students. It was also not in contest that when children were placed in the highchair by the appellant, the safety strap was utilised and in the case of Jack, this prevented him from moving off the highchair. The point of contention between the parties is whether the appellant placed Jack in the highchair as a means of managing his behaviour. The respondent bears the onus to establish the factual basis of the highchair allegation.

The evidence of Jack Andrews

The respondent relied upon a transcript and recording of and interview with Jack conducted on 2 March 2020, where he was asked questions with respect to the allegations: Ex R2 and Ex R12. The interview was conducted with the assistance of an interpreter and Ms Reid as a support person.
At the time of the interview, Jack was in Year 5, aged 10 years. Jack is profoundly deaf, with vision impairment. When he commenced at the School, he was observed as having significant language and development delay. Several witnesses attested to Jack having complex and challenging behavioural issues, particularly when he started at the School. He was described as acting aggressively towards others, it not being unusual for him to work "himself into a heightened emotional state", and engaging in absconding behaviour: see for example, Ex A4 at [26]-[33]; Ex R9 at [7]-[13]; Ex A7 at [9]. This evidence was consistent with Jack's Individual Behaviour Management Plans ("Behaviour Plans"), which included references to attention seeking and distracting behaviours such as making noises detrimental to other students' learning: see Ex R1 at Exhibit DC3, DC4, DC5 and DC6.
Jack did not give a statement in the proceeding or present for cross-examination. I draw no adverse inference from this. The respondent's submissions extract aspects of Jack's interview, concluding that (RS at [3.67]): "[Jack's] responses are powerful in their expression and clearly very troubling in their content. If accurate, [Jack] was required to sit in Exhibit R5 on multiple occasions against his will in circumstances that it upset him greatly. He complained that he could not loosen the restraint and compared it to the restraint that had been authorised to be used in his transport, which could be loosened. He says the chair hurt and he felt he was going to die. He claimed that he asked to be allowed out of the chair, but his requests were refused. He associated the chair with trouble."
The respondent argued the Commission must place weight on Jack's evidence, particularly given the paramount duty in this matter is to protect children.
Jack's account of events in the interview were not as clear-cut as the respondent's submissions above suggest. During the interview he was often asked leading questions, the same questions more than once, and his answers were frequently non-responsive. For example, when asked about the highchair, Jack responded with information about a new gold chair which he indicated he preferred. At certain stages of the interview, Ms Reid and the interpreter seem confused whether Jack was responding with respect to the highchair or a taxi restraint: Ex R2, p 84 at [135]; p 85 at [158].
I have afforded no weight to the interview in determining whether the highchair allegation can be substantiated. I have decided this is the appropriate course for the following reasons: 1. The respondent did not file any evidence to assist the Commission in forming a view as to the reliability of the account of Jack, given his age and developmental challenges. I have serious concerns about the reliability of Jack's account given the evidence of his intellectual capacities, and the contents of the transcript itself. 2. The interview was conducted with the assistance of a translator, with Ms Reid in attendance as a support person. Putting aside the fact that Ms Reid is also an important witness in these proceedings, there is no evidence of Jack having the contents of the transcript translated back to him or that he agreed with its contents. 3. It would be unfair to the appellant to accept the account of Jack in determining the allegations made against her without having an opportunity to test the reliability of his responses in the interview through cross-examination. I am particularly concerned about this in view of the issues I have identified in respect of the interview and Jack's responses as set out above at [40].
To be clear, the fact that I have decided not to attribute any probative weight to the evidence of the interview for the reasons I have set out does not mean that I have found Jack to be lacking in credibility.

The evidence of Sarah Hannan

Ms Sarah Hannan is an SLSO at the School working in a job share arrangement with Ms Reid. She is also the mother of Isabella Hannan, a former student of the appellant.
Ms Hannan gave evidence that the appellant was frequently heavy handed, mean and not respectful towards students, citing several examples of this in her statement. She gave evidence with respect to the removal of Jack from assemblies which I will consider in the context of that allegation later in this decision.
With respect to the highchair allegation, Ms Hannan gave evidence of a conversation she had with her daughter Isabella in 2020 after she had left the School: Ex R8 at [22]. The evidence was to the effect that when she was in the appellant's class, Jack would be required to sit in a "naughty chair" and only Jack was required to sit in the chair. Her description of the chair is consistent with the highchair, being Ex A5.
The respondent served an Outline of Evidence it intended to adduce from Isabella in the proceedings. Isabella has CHARGE Syndrome and according to the appellant's evidence, experienced significant developmental delays that may impact on the reliability of her account: see Ex A5 at [6]-[11]. Isabella was called to give evidence via videolink. The Commission asked questions of Isabella to establish whether she had the capacity to give truthful evidence in the proceedings. The respondent decided not to rely upon the evidence of Isabella at the conclusion of this process, but prior to her giving any evidence with respect to the substantive matters the subject of the proceedings.
I am unable to afford any weight to the evidence of Ms Hannan with respect to what was reported to her by her daughter, Isabella about Jack being placed in the highchair. That evidence is hearsay and the maker of the statement, Isabella was not available for cross-examination. The Commission is not bound by the rules of evidence. However, it would be unfair to the appellant for the Commission to take that evidence into account, given she did not have an opportunity to test Isabella's version of events through cross-examination.

The evidence of Jennifer Reid

Ms Reid gave evidence through her statement that she believed the appellant came to target Jack unfairly. Ms Reid gave the following evidence in her statement about observing Jack in the highchair (Ex R10 at [11]-[17]): "I went into [the appellant's] classroom and saw [Jack] was sitting in a brown, wooden chair and his shoes were off. He was trying to get out. … When I saw [Jack] sitting in the chair, I asked the teacher's aide, [Amanda O'Reilly] about it: Me: "What happened?" Amanda: "He was naughty." [Jack] looked at me and was crying when I walked into the room. [The appellant] was teaching the rest of the class at the time….. I remember feeling like what I had seen was wrong. But, I was worried if I said something it would have a negative impact on me, I didn't want to get in trouble and I didn't want to dob on a friend and colleague. I was worried that other teachers would think I was an ally for the deaf community. I just wanted it to be fair."
Ms Reid identified the highchair as the equipment she received in 2011 or 2012 due to a back condition she was suffering from. Ms Reid gave evidence that the children did not like being placed in the chair because they considered it to be for babies and when she did use it, she would not use the straps.
Ms Reid gave evidence that she recalls observing an incident when Jack was 6, 7 or 8 years old, (which was between September 2015 to 2018): [11] of Ex R10. During cross-examination, Ms Reid gave evidence that she observed the incident approximately three years after she was provided with the highchair, being 2014 to 2015 and before the appellant moved classrooms in 2016: Tcpt 17 February 2022, p 31 (49).
I have decided that Ms Reid is not a credible witness whose evidence can be relied upon. As I have set out above, Ms Reid's evidence is respect of the classroom exclusion allegation demonstrated her lack of credibility as a witness: see [30]-[31]. In have also decided Ms Reid is not a credible witness for the following reasons: 1. Ms Reid was a reluctant witness. She did not report the highchair incident. While she gave evidence with respect to her reasons for not doing so as set out above, it does not adequately explain why she continued to withhold that information at the time she was interviewed by the respondent on 19 February 2020. This was despite being openly critical of the appellant in other respects during the interview, accusing her of being cruel towards Jack, and targeting him: Ex R2 at pp 57-70. 2. Ms Reid had a tendency to give evidence in the form of conclusions that were adverse to the appellant, that were based on assumptions rather than her actual observations of what had occurred. An example of this was that when she observed Jack without shoes, it was her impression that they had been removed because he was "naughty". However, she had no direct evidence that this was the case: see also Tcpt, 17 February 2022, p 11 (14)-(16). 3. Ms Reid's account on important matters was often unclear, inconsistent, or non-responsive. The following examples, serve to illustrate the point: 1. When interviewed about her observation of Jack in the highchair, in response to being asked how many times she saw this, Ms Reid answered (Ex R2 at p 74 (124) and p 75 at (161)-(169)): "One time. Then maybe two other times. But again, I'm not in there every day. I only need to go in and get things out of the room. Sometimes he's sitting in the corner, once in the chair. But then I think he knows how to take off the restraint in the chair. But I feel like [Ms O'Reilly] would know." Later in the interview when asked how many times she had observed students being restrained, she answered: "[Jack] is the largest percentage. But there was a new girl… she missed eating or something…." 1. Ms Reid sometimes gave answers to questions that were completely non-responsive. An example of this was her response to the question in the interview when asked: "Who told you that [Jack] was restrained in the chair because he had been naughty?" Ms Reid did not respond to this question but instead spoke about Jack's assessments: Ex R2 at p 75. 2. Ms Reid explained during the second interview with the respondent that the highchair was issued due to her back injury so she could work with children at the same height. With respect to when she stopped using the highchair, she stated that (Ex R2 at p 77 (220)-(221)): "When I moved to a different class I thought, well, a highchair the older kids probably don't need that." This seems inconsistent with the account she gave of only using the highchair for about two weeks before putting it away because the children did not like to use it: see for example, Tcpt, 17 February 2020, p 16 (22).
Despite my concerns with the reliability of Ms Reid's evidence, I accept that she may have observed Jack in the highchair. The appellant admitted using the highchair, including in respect of Jack. However, given my concerns with the reliability of Ms Reid's evidence, I am do not accept that Ms O'Reilly signed "naughty" when she saw Jack, given this is not corroborated by any other witness and is denied by Ms O'Reilly.

The evidence of Amanda O'Reilly

Amanda O'Reilly is an SLSO who worked in the appellant's classroom from 2005 until 2016. Ms O'Reilly gave several accounts of the use of the highchair including in her initial interview with the investigator for the respondent, in chief for both the respondent and the appellant and before the Commission when cross-examined by both parties.
During the respondent's investigation, Ms O'Reilly gave the following information in respect of the highchair on 20 July 2020 (Ex R2 at p 89): "Interviewer: Our report says that [Jack] was strapped into a chair at times. Are you aware of that? A belt was put around him into the chair so he couldn't move out of the chair. O'Reilly: At one time, only very briefly, I think I could honestly say it probably happened twice. I did witness [the appellant] - she didn't use a belt. I actually can't remember what she used. Something to tape him to the chair to sit still in the chair, because she couldn't get him to sit. As an SLSO, I witnessed this and we talked about it at the end of the day, we'd sort of, say, look, don't know if this really is the best course of action. And we looked at other alternatives, visuals and things to get him to sit. So, yes, I did witness it happen no more than twice and as I said, as an SLSO, we would reflect on the behaviour management and thought of different ways that we could deal with it, because we acknowledged that that was not the ideal. I think it was just a knee jerk reaction out of frustration. He wasn't upset. I wouldn't say he was - I can't actually even remember because it was so long ago, it was in the very early days of him being at [the School] that I witnessed it and certainly I'd been with [the appellant] and [Jack] for a good three years after that and never witnessed it again. So I can't actually recall what it was that she used but we acknowledged at the time, look, this really is not the best course of action, what else can we do? So, yes, I did witness it, no more than twice and as I said, it would have been a knee jerk reaction out of frustration, not knowing what else to do."
Ms O'Reilly stated in a follow up email to the investigator (Ex R2 at p 158): "Further to our conversation and reflecting on the questions you asked, I remembered how the student was contained. [sic] For some reason, we happened to have a low, wooden chair, similar to a highchair, with a seatbelt style restraint. Can't recall for which student this was introduced, it was a long time ago. [Jack] was clipped into this chair, in an appropriate manner, at the table to encourage him to focus on table work. As the chair was not specifically there for his use, we decided as a team, not to use it on a permanent basis. We were aware of how the use of the chair might look to others, especially as [Jack] was no longer a pre schooler. Any actions we took in the class in regards to behaviour management, were appropriate to his level of understanding. Given the neglect and lack of interaction at home leading up to the start of school, we tried to keep instructions as clear as possible. At no time were they intentionally targeted at [Jack] personally."
Ms O'Reilly's evidence in respect of the highchair for the respondent in chief was, in summary (Ex R9 at [15]-[23]): 1. the chair was used a "handful" of times because she and the appellant could not get [Jack] to sit down and focus on schoolwork, but not as a punishment; 2. this occurred "at the very early stages" when [Jack] was in the class; 3. the highchair was used in conjunction with a timer on a smartboard to show [Jack] how long he "had to stay there" for and he would be taken out after "a few moments, maybe a minute or two"; 4. the straps were used purely to keep [Jack] safe so that he would not fall and the "straps kept him in the chair"; 5. she was uncomfortable with the use of the highchair and spoke to the appellant about this, suggesting "there must be a better way to deal with this"; 6. [Jack] did not like it; and 7. "Our strategies were successful. It did not take long before [Jack] modified his behaviour."
Ms O'Reilly also gave a statement filed by the appellant in response to the Outline of Evidence proposed to be given by Isabella Hannan. Although Isabella did not give the evidence anticipated in the Outline, the appellant tendered the statement of Ms O'Reilly replying to it, which relevantly provided (ExA2 at [5]-[10]): 1. the highchair was used as to elevate students to facilitate learning and group interactions during classroom lessons, whenever required; 2. the safety belt was used by students when they were seated in the highchair; 3. students were not placed in the chair for one to four hours, noting classes only took 15 minutes; and 4. the highchair was not used as a form of punishment.
Ms O'Reilly's account of the use of the highchair was inconsistent in several respects. During the 27 July 2020 interview she stated: 1. It happened, "one time, only very briefly, I think I could honestly say it probably happened twice"; and 2. Jack "wasn't upset. I wouldn't say he was - I can't actually even remember because it was so long ago". 3. "I did witness [the appellant] - she didn't use a belt. I actually can't remember what she used. Something to tape him to the chair to sit still in the chair, because she couldn't get him to sit."
In her follow up email to the investigator, Ms O'Reilly identifies the highchair and states that Jack "was clipped into the chair in an appropriate manner, at the table to encourage him to focus on table work", but then goes on to state that, "We were aware of how the use of the chair might look to others, especially as [Jack] was no longer a pre schooler," suggesting the highchair was used at a time after 2015, when Jack entered Kindergarten.
Ms O'Reilly's evidence in respect of whether Jack did not like the chair, was as follows, under cross-examination (Tcpt, 16 February 2022, p 17 (40) - p 18(1)): "Q. "Sitting in the chair allowed him to be in the group. He did not like it." Now, how did you know he did not like it? A. Did not like being made to sit at the table and he would be quite vocal with noises and thrashing his body about. Q. And in thrashing his body about, did he convey distress in your mind, in being put in the chair? A. Distress at being made to sit at the table with the others. Q. And it says, "He just wanted to be like the other kids" and when you say that, that means sit at the table without a restraint? A. Correct."
Ms O'Reilly gave the following additional evidence in respect of Jack being placed in the highchair, under cross-examination (Tcpt, 16 February 2022, p 18 (35) - p 19 (17)): "Q. You say, "I wouldn't say he was, I can't actually even remember because it was so long ago. It was in the very early days of him being at the School that I witnessed it and certainly I'd been with [the appellant] and [Jack] for a good three years after that and never witnessed it again." So, what you're really saying there is you don't really remember back then. Reflecting upon it now, why do you say you think he was upset and thrashing about? Like, what gives you a stronger memory of it now? A. He did have moments where he would get upset. When I said he was not upset, he, within himself, didn't seem upset. He was more angry that he was having to be restrained. Q. And angry in terms of the actions by thrashing about? A. Correct. Q. Would he verbalise his anger as well, by making noises? A. Correct. Q. Was it uncomfortable for you to watch him be upset, being put in the chair? A. Yes. Q. Did you say anything to [the appellant] at the time when you observed [Jack] appearing to be upset? A. I would've, yes. Q. And what would you have said to [the appellant] at the time? A. Something along the lines of "We need to think of something else to do here". Q. And then [the appellant] agreed that something else should be done? A. She would've, yes. Q. And did she agree that it was inappropriate to use the chair moving forward? A. Yes."
The respondent submitted that Ms O'Reilly had not been forthright and candid in giving her evidence: see RSR at [12.1]-[12.9]. The respondent submitted that the Commission should find that Ms O'Reilly has sought to deflect her own responsibility and minimise the seriousness of what has occurred. The respondent argued that Ms O'Reilly has become trapped by her initial narrative which sought to downplay the time-period and circumstances justifying the use of the restraint on Jack. It was submitted that Ms O'Reilly was trying to meet several objectives in giving her evidence including maintaining her initial statement. These included downplaying the events, but simultaneously acknowledging her own guilt in the part she played in the use of the highchair. The respondent concludes that Ms O'Reilly should be believed as to when the chair was first used, that it was used for Jack to manage his behaviour, (e.g., to get Jack to focus), and that it was used for multiple children. It was submitted that she should not be believed that it was only used occasionally and not after 2014.
The appellant's submissions in respect of the evidence of Ms O'Reilly was to the effect that she had a poor recollection of events, and why would she remember anything about the highchair - it was inconsequential to her, it only being used for the purposes of elevating students when appropriate.
While Ms O'Reilly gave evidence that the highchair was used to elevate students during their learning, she also gave evidence both in chief and under cross-examination that the highchair was utilised in respect of Jack, spontaneously, to assist him in sitting still and or to do his work, and that he did not like it, showing signs of being distressed by being restrained in the highchair. The evidence of Ms O'Reilly that the highchair was used by the appellant to keep Jack still and help him with his learning, is evidence of the highchair being used as a strategy to manage his behaviour.
There are several aspects of Ms O'Reilly's account which are not consistent with the allegation. Firstly, her evidence is that the relevant actions occurred within the early days, the first 3 to 6 months of Jack commencing at the School in mid-2014. The highchair allegation specifically relates to the period 2016 to 2020. There was some suggestion that Ms O'Reilly may have been mistaken in that date, with reference to her email to the investigator stating that there was concern about how the use of the highchair might look like, as Jack was no longer a pre-schooler, meaning he was at least in kindergarten, which placed the events in at least 2015. However, Ms O'Reilly did not resile from her account as to when the conduct she alleges occurred and in fact became more precise in her answers under cross-examination that is happened in the first 3 to 6 months of Jack commencing at the School.
Ms O'Reilly's account of when the alleged conduct occurred is inconsistent with the account of other witnesses. Ms Reid gave evidence before the Commission that the highchair was put away shortly after it was provided to her in 2011 or 2012 and the next time she saw it outside of the storeroom was about 3 years later, being 2014 to 2015: Tcpt, 17 February 2022, at p 31. However, her evidence in chief was that she observed Jack in the highchair when he was 6, 7 or 8 years old, which places the alleged event at the earliest in September 2015. The appellant gave evidence that the highchair was used for a time by Ms Reid, then she retrieved it in anticipation of new students attending in the School in late 2015.
Ms O'Reilly's evidence demonstrated she had little insight into the seriousness of the allegations she was making, or the impact it might have on her own career. It was particularly strange that she gave evidence that even upon reflection, she did not think the use of the highchair, as she described it, should have been reported to the Assistant Principal or Principal by either herself or the appellant: Tcpt, 16 February 2022, p 19 (28)-(36). This evidence suggested that Ms O'Reilly didn't believe the conduct she alleged to be serious and or reportable, even though it was one of the allegations relied upon by the respondent to terminate the appellant's employment. Given this lack of awareness, I reject the respondent's submission that she was underplaying the conduct to protect herself.
Ms O'Reilly's evidence is unreliable, and I am unable to accept her account of the use of the highchair. While there has been a significant passage of time since the alleged events occurred, Ms O'Reilly gave conflicting accounts of the use of the highchair, rather than stating she did not recall. While it may have been that Ms O'Reilly felt bound by her initial accounts, her evidence demonstrated that she is highly suggestable and willing to mould her evidence depending on whether her audience is the appellant, the respondent, or the Commission. Her varying accounts of the use of the highchair demonstrate that she is not a credible witness.

The evidence of the appellant

The appellant denied the highchair allegation and she gave no evidence to support it. The appellant gave evidence of the highchair in her first statement as follows (at Ex A5 at [19]-[25]): "The highchair…. was the property of the school. The highchair was introduced as a WorkCover piece of equipment initiated by [Nicole Cross] and approved by the Work Health and Safety Officer… for use by children to elevate their seated position. The safety straps were included with the highchair, and were mandatory. [Jennifer Reid] had a bad back and found it difficult to bend down to the level of the children. In 2016, [Jennifer Reid] gave the chair to the junior hearing class. She said to me in words to the effect: 'I don't need this chair, as the other class has older students. The highchair is better suited for use with the junior kids.' When [Jennifer] was working as an SLSO in my class during 2016 and 2017, she continued to use the highchair with the students in the classroom. The highchair was also useful for work to be performed at higher tables or to facilitate communication, socialisation and teaching. The 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. I note that the seating in my classes was dynamic based on the learning tasks at hand. Students moved around and did not have allocated seating."
When giving her evidence in chief before the Commission, the appellant sought to clarify her evidence about the timing of Ms Reid giving the chair to the junior hearing class from 2016 to "sometime in 2015 or 2016". She also stated that Ms Reid used the highchair when in her classroom from 2014 and 2016, rather than 2016 and 2017 as provided for in her statement.
The appellant responded to the evidence of Mr Currie about the highchair allegation as follows (at ExA5 at [48]-[66]): "…the highchair was never used to punish any student. It was never used or designated as a chair to place "naughty" students. … 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. …I can recall one (1) occasion in 2016 whereby I placed [Jack] 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. That singular incident looms large in my mind as I was in fear that [Jack] would cause himself serious harm if he continued bashing his head against the classroom wall. One of the students in my classroom by the name of [Charlotte], used a wheelchair with a height adjustable table set at approximately 65cm. Kindergarten tables are usually 45cm, and Year 1 tables are about 50cm. The highchair became useful in providing an opportunity to all students to work with [Charlotte] at her adjusted table. [Jack] and [Charlotte] often worked together, both requiring 1:1 care. To clarify, I should also comment that the highchair could not be lowered to be able to work from the Kindergarten tables or Year 1 standard tables. …I was not aware that I could prepare a Behavioural Plan. …I was not involved in preparing the Behaviour Plan for [Jack] in 2014. In 2015, I amended the Plan in accordance with the direction of [an executive]. I was never asked to create, review nor amend Behaviour Management Plans or Risk Management Plans again during my lengthy employment at [the School]. In 2016, [Jack's] daily behaviours were manageable with ongoing positive strategies. The incident outlined above was atypical. … … I recall debriefing about the incident with my neighbouring teacher... It would be my standard of practice to have also reported the incident to the family [i.e. Jack's mother….], the assisted transport driver, and to have documented the incident in [Jack's] communication book. It would have also been my standard practice to report the incident to [an executive], Assistant Principal - Support and to [an executive], Assistant Principal - Infants. I spoke with these members of the executive on a constant, routine basis about more effective ways of managing student behaviour. …I acknowledge that my response of 17 November 2020 that 'some of the allegations related to incidents many years ago whereby standards of practice and training were different' was unclear and I apologise for the misunderstanding that has resulted. When I made that statement, I was referring to the practices and training provided at [the School], not the Department policies and procedures referred to by Mr Currie. Mr Currie identified that the use of a physical restraint should only be used as a last resort. At the time of the 2016 incident, I initially tried to redirect the behaviour - but this strategy failed. [Jack] continued to heighten biting himself, screaming, removing his cochlear processes. I tried to calm [Jack] by sitting with him on the floor, but he commenced banging his head against the classroom wall. When I tried to move closer to him, he attempted to bite and head-butt me. When I placed [Jack] in the highchair on that occasion in 2016, it was to physically remove him from the wall he was bashing his head against, and to put him at a level whereby I could communicate with him by signing to calm down. He had removed his cochlear devices. If he was not looking at me, apart from touching him which I was unable to do, I was not able to communicate and calm him. I could not 'do nothing', because that would have resulted in harm to [Jack]. When placed in the highchair, [Jack] was no longer able to harm himself and I was able to communicate with him by signing and I was able to calm him down. I am aware that surgery for a cochlear implant requires the thinning of the skull (the thin mastoid bone) to accommodate the implant. Any trauma to this region can result in significant haemorrhaging and fracture at the site of implant. I acted to prevent a medical emergency from occurring. My previous comments have been interpreted by the Department as being completely ignorant and callous as to the harm I caused [Jack] by placing him in the highchair. My motivation for doing so was to prevent harm, rather than to cause it. If placing [Jack] in the highchair on that occasion caused [Jack] harm, then I deeply regret my involvement in causing [Jack] harm. It was never my intention to cause him harm; rather to avert harm and prevent further harm. [Jack] calmed shortly after being placed in the highchair. He was removed from the chair once he calmed. He participated in the classroom activities for the remainder of the day in his usual fashion. I had directed my SLSO, [Amanda O'Reilly] to remove herself and the other students from the classroom for their safety on that occasion. I had wrongly assumed that [Amanda] would have returned or sent for assistance. I should have directed her to do so. I take responsibility for my failings in that regard. …."
The appellant also replied to the evidence of Ms O'Reilly (Ex A5 at [178]-[183]). In her response, she denied that she would say "You sit here" to Jack with reference to the highchair and states that she does not recall if the timer was used in her classroom but notes that she tried a variety of strategies with Jack in the "early days" including the smartboard.
The appellant replies to the evidence of Ms O'Reilly as though her statement was about the 2016 incident described above at [71], stating that this event made her feel uncomfortable and although she didn't specifically recall, she believes she would have conveyed this to Ms O'Reilly. The appellant's evidence was disingenuous in this respect. There is no indication that Ms O'Reilly was giving her evidence about the 2016 event described by the appellant. Ms O'Reilly was making serious allegations that warranted a direct response. Because of her approach, the appellant does not directly respond to Ms O'Reilly's evidence that she placed Jack in the highchair so that he would sit still and that he did not like being in the highchair.
There is other evidence of the appellant being disingenuous in her responses to the allegations made against her. For example, in the response to the show cause letter, the appellant refers to the Student Behaviour Analysis and Prompt Sheet dated 24 March 2014 which states "restraint to keep child safe". However, the Plan was clearly referencing the use of the seat belt for Jack to be conveyed to and from school, not the highchair restraint: see Ex A4 at LF 7 and LF8.
The appellant's second statement was in reply to the Outline of Evidence proposed to be given by Isabella Hannan. The appellant gave the following evidence in the second statement in respect of the highchair (Ex A5): 1. the highchair was used in the room from time to time as an "elevated platform" and there was a safety requirement to use the seat belt when in use; 2. no student would be seated in any chair for four hours at a time in her classroom, noting breaks occur every two hours; and 3. Isabella was not placed in the highchair because she did not finish her food quickly enough; and 4. Jack was not once placed in the highchair when it fell to the ground.
Although I have found aspects or the appellant's evidence unsatisfactory and her uncorroborated account of the 2016 incident unbelievable, this does not lead inexorably to the conclusion that she engaged in the conduct alleged against her by the respondent. For reasons which I will turn to, the respondent has not discharged its onus with sufficient evidence in respect of the highchair allegation.

The evidence of Michael Lawless

Mr Michael Lawless is a Disability Support Worker employed by a business external to the respondent. Mr Lawless was present in the appellant's classroom from the middle of 2015 to 2020 on a full-time basis. Mr Lawless supported a student in the appellant's class, William Johns. He was required to be near William, always, in case he required assistance due to his special medical needs: [5] of Ex A7. He gave evidence that he had not witnessed any ill-treatment by the appellant towards her students during that period. He stated at [7]: "Based on my lengthy exposure to [the appellant's teaching], it is my general observation that [the appellant] was a competent teacher of special needs children and established good, healthy, productive relationships with her student."
With respect to the highchair allegation, Mr Lawless gave evidence that the behaviours of Jack could be difficult, and the appellant managed him extremely well. He stated that he has a "vague memory of seeing [Jack] in the [highchair] on one occasion a really long time ago when he was quite small, probably back in 2016. I can not precisely recall why he was in the chair, but I think it had something to do with elevating him so that [the appellant] could more effectively communicate with him by sign language and provide calming reassurance. I have a visual memory of [the appellant] trying to calm [Jack] down": Ex A7 at [12]. However, he stated that at no time did he ever see the highchair being utilised as a method for restraining and/or punishing any student, including Jack: Ex A7 at [13].
Mr Lawless gave the following evidence in response to a question from the Commission, after reading paragraph [13] of Ex A7 as set out above at [78]: "I take it from that upon reading that it sounds like Jack was upset when he was in the chair is that right? A. Not - well I can't really remember but if it's written down, then possibly yeah. Q. Thank you."
While I formed the impression that Mr Lawless was an honest witness, this response, along with his inability to recall other matters that were put to him during cross-examination has given me some cause to doubt the reliability of his evidence.

Conclusion with respect to the highchair allegation

The respondent has the onus to establish the highchair allegation to the civil standard of proof. The principles in Briginshaw and Neat Holdings are relevant: see above at [17]. In this matter, the paramount consideration is the protection of children: s 5A of the Teaching Service Act. However, the respondent still has the onus of establishing their case to the requisite standard of proof. In this regard, I observe that the respondent's submissions focused considerably on the reliability of the appellant's evidence. However, a finding that the appellant's evidence was not reliable or even that she is not a witness of credit, does not necessarily lead to the conclusion that the Commission should find that the highchair allegations are made out. It is not to be assumed that the appellant had engaged in the conduct, subject to her proving otherwise. To the contrary, the evidence is to be evaluated in the context of the "conventional perception" that teachers caring for children with high needs would not ordinarily engage in the conduct alleged and in fairness, the appropriate approach of the Commission is that it will not lightly make a finding that, on the balance of probabilities, the appellant engaged in such conduct.
The respondent's evidentiary case with respect to the highchair allegation is weak, even taken at its highest. For the reasons set out above, the Commission is unable to place weight upon the evidence of Jack's interview and the account of Ms Hannan with respect to what her daughter, Isabella told her about the use of the highchair in the appellant's classroom: see [36] and [47] above.
Ms Reid's only direct evidence to support the allegation that the highchair was used as an "unnecessary and inappropriate strategy to manage the behaviour of Jack" was that Ms O'Reilly signed to her "naughty" in response to her signing "that's wrong" when she saw Jack in the highchair. Ms O'Reilly denies this interaction, denies that the highchair was used at all after 2014, and was clear in her account that it was never used as a punishment. Whilst I have concerns about the reliability of the evidence of Ms O'Reilly and Ms Reid, I am not inclined to accept Ms Reid's account given the issues I have identified with respect to her evidence as set out above at [51] and the benefit of having observed her give evidence in person.
Ms O'Reilly's evidence does not support the highchair allegation in that the clearest account of the timing of the use of the highchair for Jack was in 2014, not 2016 to 2020. While I have found Ms OReilly's evidence to be unreliable, it is a significant step to draw from those concerns that she is lying, and the conduct occurred during a different time-period and more than once or twice as she said. This is akin to arriving at a conclusion that the allegations are made out based on "indirect inferences". It also note that it is also inherently unlikely that Mr Lawless would not have noticed and remembered this conduct had it occurred over an extended period and on numerous occasions.
The respondent sought to rely upon the appellant's account of events to make out the allegations. The respondent made the following submissions in support of this (RS at [3.6]-[3.10]): "Most of the particulars in this allegation are not disputed by the Appellant. It is not in dispute that the Appellant placed a belt around [Jack] when he was in seated Exhibit R5, preventing him from moving off the chair. It is not in dispute she did this on at least one occasion to manage his behaviour. The Appellant admits doing so in 2016. The Appellant also admits that: (a) in hindsight, having considered training she undertook in 2018, she would have "handled the situation differently"; (b) she was involved in developing behaviour management plans for [Jack], and those documents did not identify this strategy as an approved form of behavioural management; (c) Using the chair without undertaking a proper risk assessment could potentially distress children who were in the chair and she did not think about this at the time. On the Appellant's own admissions, the Commission would be satisfied the alleged conduct occurred. Given that: (a) using Exhibit R5 could not have been necessary if she could have approached the situation differently; and (b) it could not have been ever appropriate to use Exhibit R5 where none of the behavioural management or individual learning plans identified its use as a means of addressing [Jack's] behaviours or learning difficulties."
The appellant's evidence does not make good the highchair allegation. At its highest, the appellant's evidence is that she used the highchair with the restraint to elevate children to work at a higher level in her classroom. It was inappropriate that the appellant would use a chair designed for younger children in her classroom for this purpose. The evidence of Ms Reid that the children did not like the chair because they thought it was for "babies" has the ring of truth. It is foreseeable that primary school children might feel humiliated or undignified by being placed in a highchair, with a safety harness fastened.
However, the appellant did not give evidence to support the allegation that she engaged in conduct that could amount to misconduct in that she used "unnecessary and inappropriate strategies to manage the behaviour of the Jack" when she placed a belt around him while he was seated in a chair, preventing him from moving off the chair. The appellant's account of the 2016 incident can reasonable be summarised as a crisis. Mr Currie conceded, if true, the event would not be an example of the highchair being used to manage Jack's behaviour and would in those circumstances be "understandable": Tcpt, 14 February 2022, p 35 (47) - p 36 (4).
I agree with the respondent that the appellant's account with respect to the 2016 incident was not credible. Neither Mr Lawless nor Ms O'Reilly recalled the events, which seems incredible given the enormity of what was described by the appellant. Despite the appellant's account that she informed those within the School's hierarchy of the event, there was no records of this in evidence. However, I reject the submission that the Commission should conclude, that because the appellant's account of the 2016 incident is not believable, she engaged in the highchair allegations. Again, this is akin to arriving at a conclusion that the allegations are made out based on "indirect inferences".
There is no reliable evidence that the appellant engaged in the highchair allegations. The respondent has not discharged its onus of proof to establish the highchair allegations on the balance of probabilities.

"Shoes and socks allegation" - Between 2016 to 2020, the appellant in her role as a Teacher (Hearing Support), engaged in conduct that could amount to misconduct in that she used unnecessary and inappropriate strategies to manage the behaviour of the Jack Andrews when she removed Jack Andrews' shoes and socks, preventing him from going outside during designated breaks.

The appellant admitted she removed Jack's shoes and socks on occasions but sought to contextualise these actions. The appellant provided the following explanation, in her response to the allegations of the respondent (Ex R2 at p 18): "I accept the allegation and would like to provide some context around this. As stated above, [Jack's] behaviour had been escalating and he would lash out at staff by kicking, screaming, and spitting. To reduce the likelihood of injury to staff when [Jack] was in a heightened state, his shoes would be removed as he would kick staff in their shins. This was a recommendation of the Nonviolent Crisis Intervention (NVCI) training undertaken in 2012 and at the time it was a common occurrence at [the School] when a child was being violent and kicking staff. If he was heightened when the bell sounded for lunch, it was unsafe for [Jack] to enter into the playground as he was a risk to himself and others. The record of [Jack's] focus meeting 2015 stated that "he can be a bit 'hands-on' with other children" (See Appendix 1.15). Once [Jack] became calm his shoes were returned and staff assisted him with replacing and retying them. [Jack] was then able to participate in his outside play. There was a recommendation that NVCI training be undertaken on [Jack's] student behaviour support plan proforma dated 29th January 2014, as the training before this was in 2012. This retraining never occurred. However, a MAPA training program, which replaced NVCI was undertaken in 2018 as the violence was escalating."
Ms O'Reilly gave evidence consistent with the appellant in that both she and the appellant removed Jack's shoes and socks from time to time, although not as a punishment, but because of his propensity to kick others and as a safety measure: see for example, Ex R9 at [24]-[25].
Mr Lawless and Ms Reid also gave evidence of seeing Jack without his shoes and socks, although their evidence did not advance the context within which this occurred any further than the appellant and Ms O'Reilly's account: see Ex A7 at [18]; Ex R9 at [5]-[7].
I accept that there is an insufficient evidentiary basis to conclude that the appellant removed Jack's shoes and socks with the purpose of punishing him or preventing him from going outside during designated breaks. However, that was not the allegation made by the respondent. The allegation was that the removal of the Jack's shoes and socks had the consequence of preventing him from going outside during designated breaks.
In evidence were copies of Jack's Behavioural Plans and Individual Risk Management Plans ("Risk Plans") completed in 2014 and 2015: Ex R1 at Exhibit DC3, DC4, DC5 and DC6. The Plans do not reference the removal of Jack's shoes and socks as a strategy to manage his behaviour.
The appellant argued that she had been shown the technique of removing the shoes and socks of children in a Non Violent Crisis Intervention Course in 2011 and that it was a common strategy utilised in the School. The appellant gave evidence that the School did not require the Risk Plans for individual students but rather, these were "whole school documents": Ex A4 at [39]. The appellant stated that the Assistant Principal (Hearing) Nicole Cross prepared Jack's Behaviour Plans in 2014, on the advice of a Specialist Assistant Principal external to the School. She stated that in 2015, she was asked to update the Plan by a relieving Assistant Principal - Support "to ensure that [Jack] was issued with a seat belt buckle cover in the Assisted Transport Vehicle" and that she "amended the Plan as requested by [the Assistant Principal] for submission to Assisted Transport": Ex A4 at [46]. Further, she stated that she was not aware that she could create a Behavioural Plan and that apart from the 2014 and 2015 plans in respect of Jack, she was "never asked to create, review nor amend Behaviour Management Plans or Risk Management Plans again during my lengthy employment at [the School]": Ex A4 at [51]; [53].
Mr Currie gave evidence with respect to the respondent's practices and process to managing the behaviour of children presenting with challenges, such as Jack: Ex R1 at [10]-[25]. He explained at [11]: "Risk Plans are implemented if we are concerned a student may cause physical or psychological harm to other people, such as other students or teachers. Behaviour Plans are implemented if we observe a student engaging in a pattern of behaviour that upsets themselves or others and/or is disruptive and is impeding learning. ILPs are developed for all students with additional learning and support needs."
Mr Currie gave evidence in respect of the plans, in summary: 1. Generally, a student's teacher or the assistant principal designs the plans in conjunction with relevant stakeholders such as the principal, assistant principal, the student's parents, and medical practitioners. Consultation is important. 2. The plans are not stagnant, and they need to be revisited frequently to ensure they are relevant and effective. 3. Parents are not provided copies of the Risk Plan but are advised of the content and steps that will be taken. Copies of ILPs and Behaviour Plans are provided to parents. 4. When developing a Behaviour Plan, the task is to analyse and identify the triggers, consequences and causes of the identified behaviour that is of concern. 5. The primary focus of a Risk Plan is to reduce the risk of the identified harm to the student and others occurring. The Plan will typically identify crisis point behaviour and what needs to happen to reduce that point being reached. The focus is on that aspect of the behaviour which could result in harm to others and how to avoid that from occurring.
Mr Currie was critical of the Risk and Behaviour Plans prepared for Jack by the School for 2014 and 2015, noting that these lacked the degree of information expected in such plans: Ex R1 at [24].
I accept the evidence of Mr Currie that the plans that were in place in respect of Jack to manage his behaviour were inadequate. They lacked detail and did not accurately reflect how Jack's behaviour was being managed, at least in so far as his shoes and socks being removed by the appellant and Ms O'Reilly. The absence of a detailed plan with respect to Jack's kicking was striking given other behaviours, such as eating foreign objects were identified.
The appellant, as a teaching professional had a responsibility to ensure that the plans were appropriate and accurate and to document strategies to manage the complex behaviours of Jack, in collaboration with other qualified people and his caregiver(s). The inadequacy of the plans is not only a poor reflection upon the professionalism of the appellant as a teacher, but the broader management and oversight at the School in the overall implementation of appropriate systems of oversight and management. It is worrying that the appellant says, as a teacher of children with complex needs at a school for special purposes for a lengthy period, she was not aware that she could create a Behaviour or Risk Plan and she did not create any such plans for students other than Jack.
I accept it may have been a proper and legitimate strategy to remove Jack's shoes and socks in particular circumstances to prevent injury. However, had proper consultation in the development of the Behaviour and Risk Plans occurred, there may have been different ways to manage Jack's behaviour identified that did not require a physical intervention. For example, an alternative strategy may have been to clear the area where he was kicking. There may have been other actions that could be taken to secure the health and safety of others while calming Jack. As Mr Currie identified in his evidence, the planning process also involves an evaluation of the trigger points to avoid or reduce the incidents.
There is no evidence of the appellant collaborating with other in making her decision to remove the shoes and socks of Jack. The need to document the strategy was particularly important because of the physical nature of the intervention, which should be a last resort: see Ex R1 at [42]. The appellant should have given more careful consideration to the impact the strategy could have on Jack.
For the reasons I have set out, I agree with Mr Currie that the appellant's conduct was inappropriate and unfair to Jack and fell short of the standards expected of teachers. I agree that the conduct constituted a breach of the following parts of the Code Conduct: "Section 5, by failing to carry out her responsibilities to: i. keep students safe and support their wellbeing; ii. treat everyone with respect; iii. understand and apply the laws, policies, procedures and guidelines that underpin her work; iv. act with the utmost care and diligence; and v. always uphold the values and good reputation of the department whether on or off duty; vi. be accountable for their actions and decisions, Section 4.6, by failing to model effective leadership with students and by failing in her duty to the safety of others. Section 5.1, by failing to: i. carry out her duties in a professional, competent and conscientious manger; and ii. be courteous to students, and Section 21.3, by failing in her duty to take reasonable care for the safety and welfare of a child in her charge.
I am also satisfied the appellant failed to adhere to Bulletin 9 - Physical Intervention and Restraint of Students by: a. Failing to physically intervene with a student only as a last resort where there is a real and immediate risk of injury to the student or others or to property; and b. Making physical intervention with a student when it was not reasonably necessary to prevent harm."
I am concerned that the appellant took very little responsibility for her failure to ensure the development of accurate Behaviour Plans for Jack.

"The Canteen and school assembly allegation" - On a number of occasions, the appellant engaged in unnecessary and inappropriate physical contact with Jack Andrews when she grabbed and pulled him from the canteen line and from a school assembly.

In 2019, Jack commenced in Ms Dickson's class transferring from the appellant's class. Ms Dickson had a different professional opinion about the educational needs of Jack than the appellant. She was critical of the approach that had been adopted by the appellant in his education, particularly with respect to the focus on developing his spoken English. Ms Dickson is of the view that Jack needed to develop his proficiency in Auslan. Professional staff working at the School gave evidence they were aware Ms Dickson and the appellant had a strained relationship: Ex A9 at [19]; Ex A8 at [10]-[11].
Ms Dickson gave evidence that in 2019, there was an incident between Jack and the appellant at a canteen line. Ms Dickson stated at [10]-[14] of Ex R6: "I recall an incident in 2019 that happened soon after [Jack] joined my class that occurred between he and [the appellant]. It happened at the start of lunch when the kindergarten to year 2 students had started lining up for canteen. All of the primary school year 3 to 6 students were seated in the canteen area and had been told they were not yet allowed to line up for the canteen. [Jack] was sitting amongst the primary school kids. I recall [the appellant] was attempting to interpret what another teacher was saying to the primary school kids for the Deaf children. [Jack] noticed the infants children lining up for the canteen and he stood up from the ground and lined up in the queue also. [Jack] was standing in the line; he was not pressing against the other students in the line. I observed [the appellant] yell at [Jack] in a very direct and terse/loud voice, "[Jack], sit down!'. [Jack] did not sit down and looked at [the appellant] with a confused expression. She kept yelling at him to sit down. I recall whispering to another teacher, "I don't think [the appellant] understands why she is yelling at him." My impression was that, being a child that relies heavily on visual cues from those around him, he saw children lining up for the canteen and had his own money, so he thought it was time to go into the line; he seemed not to understand why [the appellant] was telling him to sit down. I feel he may have felt he was being treated unfairly as other children were lining up for the canteen. [The appellant] appeared very angry, but he seemed to not understand why he was being yelled at. After a few moments, [the appellant] suddenly bounded towards [Jack]. She grabbed him by the wrist and forcefully pulled him away from the line. He was pulling his body weight backwards, seemingly trying to stop her from pulling him, and she dragged him along with his feet sliding across the ground. His position meant that, if she had let go, he would have fallen to the ground. An SLSO, I think [Ms Johnson], went to assist her. [Elizabeth] started to hold [Jack] up to support his weight while he was being pulled away. [Jack] was crying and visibly upset."
In respect of the canteen allegation, when interviewed by the respondent, Ms Dickson stated that she thought "from memory" the appellant was assisted by Ms Johnson in the removal of Jack from the canteen line: Ex R2 at p 106 at (107). When cross-examined, she stated (Tcpt, 14 February 2022, p 79 at (31)-(32)): "From memory, and like back then, from memory, I thought it was [Elizabeth Johnson] but I wasn't certainly (stat) because, you know, it was a little bit of time after it".
However, at a time closer to the event, on 9 December 2019, Ms Dickson was clear in her account and placed Ms Johnson at the scene with the appellant. In her letter of allegation, she stated (Ex R7): "When he refused to sit down, [the appellant] walked across the canteen in full view of all of the primary students, grabbed [Jack] by the arm/wrist and started to drag him across the canteen out of line. At which point [Elizabeth Johnson] assisted her and they physically made him sit down near the fenced side of the canteen."
What is unusual, is that despite Ms Dickson not being able to give clear evidence as to whether Ms Johnson was present during the event at all when cross-examined, she was able to give the following evidence under cross-examination (Tcpt, 14 February 2022, p 79 (42)-(46)): "Q. And do you say also that [Elizabeth Johnson] forcefully pulled him and dragged him out of the line? A. She wasn't being forceful. I think she was actually going to his aid to try and do it proper, like, help him and support him and get him out of the situation that wasn't very good for him at the time.
Ms Dickson also gave evidence that Mr John Green was present at the incident, standing next to her when it occurred. In evidence was an email exchange between the respondent's investigator and Mr Green where he denies having witnessed the incident at all. This was in the context of the investigator reminding him of his obligations to tell the truth and provide relevant information: Ex R2 at pp 164-166.
I have serious concerns about the reliability of Ms Dickson's account. It is not plausible that Mr Green would be next to her as she suggested and not witness the event as described by her, even if he had been distracted. The dragging of a child by his wrists from a canteen line would have been a spectacle. It is unlikely if this occurred, it would be missed. There was no explanation for Ms Johnson not being interviewed or called as a witness in respect of the allegation. The respondent has the onus to establish the allegation and it is reasonable to expect that Ms Johnson would have been called to give evidence in the matter if she could have assisted the respondent's case. I find that if called, she would not have assisted the respondent's case: Jones v Dunkel (1959) 101 CLR 615.
The appellant denied she inappropriately removed Jack from the canteen line as alleged. In her reply to the allegations, she stated (Ex A4 at LF6): "The school canteen is a very poor acoustic environment, with concrete floor, walls, and ceiling. This area had large numbers of students, all talking loudly. Myself and other staff were observing the students (K-6) as they lined up to be served, with each line a mix of grades. I saw [Jack] push forward onto the students in front of him, concertinaing them to the serving counter. I called [Jack's] name but he did not respond, due to the poor acoustic environment and his limited auditory discrimination skills in such a noisy environment, I placed my hand on [Jack's] arm to remove him from the line to reduce the risk of injury to those children waiting in front of him. I then signed to him that it was dangerous to push froward, as the children in front were being squashed and many of them were little. I asked him if he understood why we can't push in lines and he reiterated the reason. At this point, [Jack] was able to re-join the line."
In her statement, the appellant gave evidence that she "guided" Jack away from the canteen line to "remove the risk of injury to the other students": [80] of Ex A4. Under cross-examination the appellant gave the following evidence (Tcpt, 18 February 2022 p 110 (23)-(50)): "Q. Paragraph 12. And then paragraph 13, "After a few moments, [the appellant] suddenly bound towards Jack. She grabbed him by the wrist and forcefully pulled him away from the line." That occurred? A. I did go towards Jack and I did remove him from the line. Q. Forcefully? A. I would've used the appropriate methods of removing him. Q. You grabbed him by the wrist? A. I believe that I turned him by the shoulder. Q. [Ms Dickson] says, "Jack was pulling his body weight backwards, seeming trying to stop her from pulling him". Now, was he resisting you? A. I don't believe so when I first approached him. Q. And then [Ms Dickson] says, "And she dragged him along with his feet sliding across the ground." Now, you dragged him with his feet sliding across the ground, that's right? A. That's what she's written. Q. Do you agree? A. I don't agree with that. Q. I want to put to you that occurred? No? A. (No verbal reply) Q. Disagree? A. I disagree that he was dragged."
The appellant was not asked whether another teacher assisted her with the removal of Jack as alleged by Ms Dickson.
I am not persuaded the appellant removed Jack from the canteen line in the manner described by Ms Dickson. For the reasons set out above, I do not accept the evidence of Ms Dickson given the alleged conduct was not observed by Mr Green and Ms Johnson did not give evidence in the proceedings. The account of the appellant of the relevant event does not disclose that she engaged in misconduct.
The respondent also alleged that the appellant grabbed and pulled Jack during school assemblies.
Ms Reid gave evidence in her statement that she recalls an assembly where Jack was looking up at the ceiling fans and the appellant picked him up from the ground and pulled him away. She said that the appellant was "cranky" and she pulled Jack out the door and took him outside: Ex R10 at [18]. When cross-examined, Ms Reid gave evidence that Jack was often restless during assembly, that he would sometimes be removed and he often would not want to leave and would cry: Tcpt, 16 February 2022 pp 64-65. She also gave evidence in re-examination that Jack would be distracted and then "put out to the corner" during assembly: Tcpt, 17 February 2022 at p 35 (50) - p 36 (2).
Ms Hannan gave the following evidence in respect of her observations of the appellant grabbing and pulling Jack at the assemblies (Ex R8 at [8]-[9]): "After having attended quite a few assemblies, I noticed how one student who was also in my daughter's class, [Jack], never seemed to last an entire assembly. He seemed to always be removed or dragged out by [the appellant]. If [the appellant] were interpreting for the deaf children on that assembly, it would be the SLSO in her class, [Amanda O'Reilly], who would be the one who removed [the appellant], however he was often removed before the assembly began by [the appellant] and [Amanda] would take him back to the classroom. [The appellant] would remove [Jack] from assembly by pulling him up from the ground by his arm and pulling him outside through a nearby door. I could hear [Jack] screaming outside. He was the kid that you would hear nearly every assembly screaming and crying and getting dragged out of the assembly. At the time, I thought [Jack] must have been throwing tantrums to warrant being removed, but I could not see because I was in the back of the room. I would have seen [the appellant] physically remove [Jack] from assembly in this manner around five or six times."
Ms O'Reilly gave evidence in her statement filed for the respondent that she does not recall the appellant removing Jack from the assembly at all. She stated (Ex R9 at [26]-[28]): "At [the School], we had assemblies on Fridays. During assemblies, [Jack] tended to be restless with the other deaf students. He would make noises and sign to other kids. [The appellant] and I would ask him to sit quietly. He would get angry when we asked him to be quiet. On those occasions he refused to sit quietly, we removed him from the assembly. It would always be two teachers who removed [Jack]. [The appellant] would usually be interpreting. It would either be me or the teacher behind me who removed [Jack]. I never saw [the appellant] physically remove [Jack] out of assembly. Apart from removing [Jack] from assemblies and the one or two occasions he needed to be physically touched to get him to return to class after absconding, I never saw anyone touch him. If he needed to be physically touched, it would always be in the authorised manner; being two teachers, one holding under the arms under the back and the other holding his feet. I never saw anyone have to engage in a bear hug kind of restraint on him."
The appellant's evidence was that she recalls removing Jack from assembly when he was inappropriately touching himself and would not stop doing so: Ex A4 at [133]. The appellant was the Auslan interpreter for all primary and infant assemblies from around 2015 to mid-2018. In 2014, she alternated this role with another teacher. She gave evidence that when in this role, she was not at liberty to roam about or to leave the stage: Ex A4 at [134]; [146]. She denied that Jack was unfairly targeted at assemblies and she never "manhandled" Jack, nor did she observe any other person "roughly manhandling him from the assembly." The appellant also gave evidence about the public nature of the assemblies and how her behaviour was witnesses by members of the executive, teachers, SLSOs, parents and community visitors and this issue had never previously been raised with her: Ex A4 at [148].
The respondent's evidentiary case with respect to assembly allegation is weak. The allegation with respect to the removal of Jack from assembly was unparticularised. I have found Ms Reid to be an unreliable witness and I would not accept her account of the removal of Jack by the appellant in the absence of other reliable corroborating evidence.
I have also decided not to accept the evidence of Ms Hannan about the treatment of Jack at assemblies for the following reasons: 1. Ms Hannan is not an objective witness. She is a close personal friend of Ms Dickson who had a troubled relationship with the appellant. 2. Ms O'Reilly, who was willing to give evidence that implicated the appellant in the proceedings, did not support the accounts of Ms Hannan or Ms Reid that the appellant inappropriately removed Jack from assemblies. She stated that she does not recall the appellant ever removing Jack from assembly. 3. Mr Lawless gave evidence that he attended 95% of school assemblies and all morning assemblies and while he recalls Jack being removed from assemblies, he did not recall the appellant being involved in this: Ex A7 at [19]-[22]. 4. When the appellant was in the role of interpreting at assemblies, her capacity to leave the stage would have been limited. 5. It is inherently unlikely that the appellant treated Jack as alleged by the respondent at assemblies without the manner of her conduct being noticed and addressed by an executive member. Apart from Ms Hannan and Ms O'Reilly, there were no other witnesses who gave evidence of the alleged conduct occurring.
For these reasons, the respondent has not proven on the balance of probabilities, the canteen and school assembly allegation.

What is the appropriate outcome?

It is my decision that this appeal be allowed, in accordance with my finding as set out above. However, based on the findings I have made with respect to the shoes and socks allegation, a disciplinary outcome against the appellant is warranted. The disciplinary action of termination is excessive for the misconduct sustained against the appellant.
As I have already stated, I am concerned that the appellant took very little responsibility for her failure to ensure the development of accurate Behaviour and Risk Plans for Jack. However, there was no evidence before the Commission from any Executive working at the School to rebuff her assertions that she had not been required to develop such plans for any student in her care during her tenure there. Whilst the appellant should not require such oversight and she failed in performing her role diligently and professionally, the respondent should have ensured systems of management were in place to make certain the policies and procedures were being implemented. This was a significant contributing factor in the conduct and points to a systemic failure in the respondent's leadership and governance systems at the School.
In determining the appropriate outcome, I have also considered my findings in respect of the appellant's use of the highchair in her classroom: see [86] above. The appellant exercised poor judgement when she decided to use the highchair in her classroom, particularly as she used the straps to secure the children into it. Without a very good reason, primary school children should not be placed in a highchair designed for toddlers unless it is in a formalised plan.
I have considered the evidence of Mr Currie that the prospect of the appellant being reinstated is of great concern to him and that her conduct and responses during the period leading to her dismissal displayed such an alarming degree of lack of insight and concern for the welfare of children that he does not believe children are safe with the appellant: Ex R1 at [76]. That opinion is largely based upon the acceptance of evidence that I have found to be unreliable in these proceedings. I do not have concerns about the welfare and safety of children in the care of the appellant, although her adherence to the respondent's policies and procedures must be addressed. I also disagree with the respondent's submissions that the appellant showed little or no remorse. Although she did not admit that she engaged in misconduct, she clearly indicated her willingness to engage in remedial activities and learn from the allegations: see for example, Ex R2 at [20] and DC7.
The appellant was terminated from her employment on 24 November 2020, over two years ago. The uncontested evidence of the appellant was that she had an unblemished record prior to investigation leading to these proceedings, having worked for the respondent for over 20 years, nine years of which she was a teacher at the School: Ex A4 at [4]. While some of the witnesses were critical of the appellant's teaching capacities, several gave evidence that the appellant was a dedicated and skilled teacher. The respondent did not lead evidence that her supervisors had concerns with respect to her performance.
The appellant gave evidence that after her employment was terminated, she undertook a TAFE course in bookkeeping and accounting and commenced "office work" on 17 August 2021 on a casual basis with psychologists working with children on the autism spectrum. Her evidence was that her remuneration is about half what she received as a teacher: Tcpt, 18 February 2022, pp 116 (39) - p 118 (2). The appellant's evidence suggests that she has lost a significant amount of income because of her dismissal.
I have decided that the appropriate disciplinary and remedial action should be that the appellant is: 1. issued with a written warning in respect of the shoes and socks allegation; 2. placed on a performance improvement plan, which will be designed to addresses the appellant's understanding of the policies and procedures of the respondent, including in respect of Behaviour and Risk Management Plans; and 3. transferred to a role not at the School.
I would expect through the performance improvement plan, the appellant will be provided with training that will equip her to return to her duties and avoid ever being the subject of disciplinary action again. Given the seriousness of the transgressions, I decline to make any order for backpay.
In coming to this decision, I have born in mind s 5A of the Teaching Service Act, requires that the protection of children be the paramount consideration. I have also considered the objects of Part 4A of the Teaching Service Act 1990 (NSW).
I am confident the appellant will become highly attuned to the respondent's practices and policies in respect of managing the behaviour of children with complex needs moving forward.

Orders

I make the following orders: 1. The appeal is allowed. 2. The appellant be issued with a written warning in respect of the shoes and socks allegation. 3. The appellant be placed on a performance improvement plan, which will be designed to addresses the appellant's understanding of the policies and procedures of the respondent, including in respect of Behaviour and Risk Management Plans; and 4. The appellant be transferred to a role not at the School. Janine Webster COMMISSIONER

Endnote

Pseudonyms have been used in this decision. The names of the children and teachers referred to in this decision are not their real names. This decision also refers to the school where the relevant events took place as "the School".

Amendments 06 September 2023 - Replaced 'Ms O'Reilly' to 'The appellant's' at the beginning of the second sentence in paragraph [73]. 22 November 2023 - 1. Correction made at paragraph [128] by replacing "of" with "or" at "…appellant showed little 'or' no remorse". 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: 22 November 2023

Teaching Service Act 1990(NSW)

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Judgment (20 paragraphs)

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