Australian International Islamic College Ltd T/A Australian International Islamic v Paramjit Brownson
[2024] FWCFB 465
•20 DECEMBER 2024
| [2024] FWCFB 465 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian International Islamic College Ltd T/A Australian International Islamic
v
Paramjit Brownson
(C2024/4328)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 20 DECEMBER 2024 |
Appeal against decision [2024] FWC 1512 of Commissioner Crawford at Sydney on 14 June 2024 in matter number U2024/314 – permission to appeal granted – appellable error established (failing to take into account relevant considerations) – appeal upheld – decision and order quashed – matter remitted to the Commissioner to rehear.
Introduction and Background
The Australian International Islamic College Ltd (Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) for which permission is required. The appeal related to a decision (Decision)[1] and order (Order) [2] of Commissioner Crawford dated 14 June 2024. In the Decision, the Commissioner found Ms Paramjit Brownson was unfairly dismissed within the meaning of s.385 of the Act and pursuant to the Order, he ordered the Appellant to reinstate Ms Brownson to the position she was employed in immediately before her dismissal, maintain the continuity of her service and restore her lost pay.
On 2 July 2024, Vice President Gibian issued a stay order by consent,[3] by which the Decision and Order of the Commissioner were stayed pending the determination of the appeal. The stay was conditional upon the Appellant making fortnightly monetary payments to Ms Brownson that she was not required to repay, irrespective of the outcome of the appeal. Further, the parties agreed to the amount of compensation to be paid to Ms Brownson pursuant to s.391(3) of the Act, for lost remuneration.
Ms Browson’s commenced employment with the Appellant as a teacher on 21 January 2021 and was subsequently appointed Year 9 Pastoral Coordinator on 17 April 2023. On 23 November 2023, Ms Brownson received a notice of investigation letter[4] informing her that the Appellant had received complaints regarding her alleged conduct and that it would be undertaking a review and investigation. Ms Brownson was stood down on full pay with immediate effect and subsequently received a Letter of Allegation dated 28 November 2023.[5] Ms Brownson was provided an opportunity to respond to the following five allegations, which asserted she had engaged in conduct that:
Was unprofessional and a breach of the Staff Code of Conduct (Allegation 1);
Amounted to physical and emotional harm of students (Allegation 2);
Amounted to being a risk to the health and safety of students (Allegation 3);
Amounts to neglect of professional duties and confidentiality (Allegation 4); and
Amounted to intimidation and harassment of students and staff (Allegation 5).
(together, the Allegations)
Under Allegation 1, the Appellant alleged:
Several students had raised concerns regarding the behaviour and treatment of students by Ms Brownson relating to how they were spoken to, unjust punishment for micro behaviours and an overall disregard “for their well-being and emotional development”, such that they felt “targeted, scared and concern of retribution [sic]”;
A student had stated that Ms Brownson’s behaviours were consistently detrimental to learning and wellbeing, recounting “being yelled and screamed at for not doing homework or understanding the revision sheets…” and feeling that measures taken by Ms Brownson in response were aggressive and disproportionate, such that students felt uncomfortable in her presence.
Under Allegations 2 and 3, the Appellant alleged:
Ms Brownson screamed at a student [Student B] and stated “I’ll make your life a living hell”, causing the student to feel distressed, unsupported and concerned for their safety, resulting in them staying home from school, and prompting one of their parents to advise that they (the child) had been crying, lost their appetite and felt attacked and unsafe and to raise concerns of a potential child safety risk which had necessitated counselling and consultation with a health professional;
Ms Brownson stated “I’ll make your life miserable” to another student [Student C], which caused the child to feel targeted, scared and anxious;
Ms Brownson denied students the opportunity to eat food during a detention session, which the students [including Student C] felt had demonstrated a lack of compassion and care; and
Wellbeing officers had reported that during wellbeing sessions, students had stated that Ms Brownson’s interactions with them were often without kindness and caused some of them to feel humiliated and uncomfortable around her.
Under Allegation 4, the Appellant alleged that Ms Brownson shared contents of the notice of investigation meeting in the staff room on 23 November 2023 and had not followed reasonable directions for her to not breach confidentiality, such that she had “caused concern to the college operations.”
Finally, under Allegation 5, the Appellant alleged:
Ms Brownson “used an intimidatory tone and talked down” to the Middle school coordinator, Mr Hanif Sipho Ramautswa (Mr Hanif), in that she stated “Why do you listen to these students? I’ve told you many times not to listen to them”, leaving him feeling as though she was questioning his integrity. Further, via the complaint of two other staff members, that Ms Brownson took a “deficit approach” and used a “negative tone” to describe students, and in the way she spoke to Mr Hanif;
Ms Brownson publicly stated in the staffroom to Mr Hanif “Between me and Patricia who are you more scared of?”, which left him feeling “intimidated, publicly humiliated and targeted”;
Ms Brownson conducted random searches publicly in a corridor without care, privacy, and compassion that left the students concerned feeling humiliated, intimidated, embarrassed and anxious and further, when it was put to her that she could not take things from their bags without permission, she had replied “Don’t question me, empty your bags.”
Ms Brownson provided a response in writing dated 30 November 2023. This addressed the Allegations and raised procedural fairness concerns.[6] The Appellant responded with a show cause letter dated 11 December 2023,[7] which stated that the Appellant had lost trust and confidence in Ms Brownson, was considering terminating her employment and directed her to attend a show cause meeting. Ms Brownson provided an emailed response.[8] The proposed show cause meeting then took place on 13 December 2023 and was followed by a further letter dated 19 December 2023,[9] in which the Appellant advised Ms Brownson that it had concluded its investigation and had found that her actions amounted to serious misconduct justifying termination without notice. Ms Brownson was invited to a further meeting but in an email sent on 20 December 2023,[10] she stated she was on annual leave and did not see the need for the proposed meeting. Ms Brownson also outlined her belief that the proposed termination was “unreasonable and disproportionate to the gravity of the conduct” and proceeded to outline a response to each of the Allegations and the proposed penalty, albeit she asserted the particulars of the Allegations had not been provided to her in a way that gave her a fair opportunity to respond.
The Respondent sent Ms Brownson a letter dated 21 December 2023, which outlined:
a)It had found the Allegations had been established on the balance of probabilities;
b)It was satisfied the Allegations amounted to misconduct which presented a serious and imminent risk to the health and safety of others and jointly or severally amounted to serious misconduct; and
c)It had reached a decision that they justified the termination of Ms Brownson’s employment without notice.
Decision under appeal
In the Decision, the Commissioner outlined the procedural history of Ms Brownson’s application before addressing, in turn, the evidence relied upon by the parties.
In the case of Ms Brownson, the Commissioner referenced her witness statement and further witness statement, and their various attachments.[11] The Commissioner outlined particulars relating to each attachment that varied in terms of the level of detail. The Commissioner also included parts of Ms Brownson’s testimony that related to her pursuit of reinstatement[12] and the allegations that she had been inappropriately yelling at students.[13] The Commissioner concluded by addressing evidence provided by Ms Catherine Mellor (previously Head of Secondary for the Appellant).[14]
As regards the evidence of the Appellant, the Commissioner referenced the statements of each of its witnesses, noting they had been cross-examined and providing a description of the attachments to their respective witness statements.[15]
The Commissioner then dealt with the matters outlined in s.396 of the Act in an orthodox manner before turning to consideration of the merits of Ms Brownson’s application. The Commissioner outlined his findings on the evidence, observing that none of the complainant students had been called as witnesses and that the Appellant was relying on “hearsay evidence from College staff about what they were told by the relevant students and in some cases their parents”[16] in relation to Allegations 1-3. As regards Allegations 4 and 5, the Commissioner noted that they related “at least in part”[17] to alleged conduct of Ms Brownson towards other members of the Appellant’s staff.
The Commissioner considered Ms Brownson to have been a truthful and credible witness, whose testimony had not been undermined to any significant degree during cross-examination. He noted Ms Brownson had no history of being dishonest during her employment and had made admissions during the investigation process and during the hearing, including that she had raised her voice and yelled at students, but adding that she had also apologised to the students where she considered she may have been too harsh.[18] The Commissioner dealt with the contest of evidence between Ms Brownson and the students by concluding it was not reasonable or appropriate for the Appellant to reject the evidence of “an experienced teacher with no prior conduct or disciplinary issues in favour of uncorroborated evidence by students who had been frequently misbehaving and hence being disciplined by the teacher.”[19] As regards the complaint from ‘Student A’ the Commissioner found it had been investigated but not substantiated.[20] The Commissioner then stated that he accepted Ms Brownson evidence regarding the events associated with each of the Allegations, providing reasons why this was the case. The Commissioner outlined his findings on conduct, satisfied the following had occurred:
Ms Brownson stated to Student B: “why are you making my life a miserable hell? Not
just my life but the other teachers?”
Ms Brownson stated to Student C and other students: “why are you making my life
miserable?”
Ms Brownson told staff members she had been stood down and told to leave the school
immediately on 23 November 2023 and this conduct was contrary to the confidentiality direction in a letter she had been given earlier that day.
Ms Brownson stated: “Why do you listen to these students? I’ve told you many times
not to listen to them” to Mr Hanif on 2 November 2023.
Ms Brownson stated: “Between me and Patricia who are you more scared of?” to
Mr Hanif on 3 November 2023.[21]
As regards these findings, the Commissioner’s conclusion was that none of this conduct identified above “came close” to providing a valid reason for dismissal when considered in isolation, nor when considered collectively. The Commissioner found that the statements made by Ms Brownson to Student B, Student C, and Mr Hanif could not be considered serious enough to provide a valid reason for dismissal when viewed in the context of the misbehaviour Ms Brownson was having to deal with and he considered the breach of confidentiality in relation to the investigation was “extremely minor” and had not caused the Appellant “to suffer any significant prejudice.” The Commissioner concluded that to the extent any of this conduct technically breached any of the Appellant’s policies, the policy breach was not of sufficient gravity to provide a valid reason for dismissal.
The Commissioner then dealt with the other criteria in s.387 of the Act as follows:
a)Sections 387(b) and 387(c) were not relevant in the circumstances of the case;
b)There was no unreasonable refusal by the Appellant to allow Ms Brownson to have a support person present to assist at any discussions relating to the dismissal (s.387(d));
c)As the dismissal related to conduct, s.387(e) was not a relevant factor;
d)He did not consider ss.387(f) or 387(g) relevant because he had not made findings regarding the procedures followed in effecting the dismissal; and
e)There were no other relevant matters (s.387(h)).
The Commissioner concluded the dismissal of Ms Brownson was unjust and unreasonable because there was no valid reason for dismissal related to her conduct and that even if he had found that there was a valid reason for her dismissal, he would have found that the dismissal was harsh. This was because he considered the dismissal was a disproportionate response to the gravity of the conduct and he considered the documentary evidence established that Ms Brownson had been having a very difficult time managing some misbehaving students, about whom she had been notifying her superiors and seeking assistance.
Dealing with the question of remedy, the Commissioner was satisfied reinstatement was appropriate. The Commissioner did not consider the requisite level of trust and confidence could not be restored to make the relationship viable and productive. The Commissioner was also satisfied that he should make orders requiring the Respondent to:
a)reappoint Ms Brownson to the position in which she was employed immediately before the dismissal;
b)maintain the continuity of her employment and period of continuous service; and
c)make a payment to Ms Brownson to restore her lost pay.
Applicable appeal principles
An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[22] There is no right to appeal and an appeal may only be made with the permission of the Commission.
This appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[23] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[24]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[25] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[26]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[27] However it is necessary to engage with those grounds to consider whether they raise an arguable case of appealable error. Here, of course, we have had the benefit of receiving arguments both as to permission to appeal and the merits of the appeal.
The appeal grounds and submissions
The Notice of Appeal raises 16 grounds of appeal, and the Appellant outlined the grounds in a discursive format resembling submissions. We have not set out the appeal grounds seriatim. They are annexed to this Decision (Annexure A). The Appellant suggested, however, that the appeal grounds can be divided into various groupings:
Grounds 1, 2, 5, 6 and 9, which deal with the manner in which the Commissioner reached his conclusions;
Grounds 4, 8, 10 and 12, which assert a failure by the Commissioner to provide adequate reasons;
Grounds 3, 7 and 11, which assert error in that the Commissioner failed to find that the conduct actually found to have been engaged in by Mrs Brownson constituted a valid reason for the dismissal;
Ground 13, which is an assertion that the Commissioner’s assessment as to whether the dismissal was harsh, unjust or unreasonable miscarried; and
Grounds 14, 15, and 16, which assert error in the awarding of a remedy.
The Appellant’s submissions
The Appellant’s broad approach in prosecuting grounds 1, 2, 5, 6 and 9 was to assert that the Commissioner failed to grapple with the entirety of the evidentiary record relevant to the findings of fact that needed to be made, and deal with the manner in which the Commissioner reached his factual conclusions with respect to Allegations 1–3 and 5. The Appellant characterised the alleged conduct of Ms Brownson as being the way in which she dealt with students under her care at the college; either aggressive, unprofessional, threatening or intimidating conduct towards them and, in some cases, other teachers.
The Appellant’s principal allegation was that the Commissioner neither undertook nor completed his core duty, which was “to grapple with” the submissions advanced before him and resolve them. The alternative submission advanced was that the Commissioner failed to deal with “all necessary issues or centrally relevant submissions.”
The Appellant asserted the Commissioner characterised the factual dispute before him as a “student complaint versus teacher case” in which the teacher gave evidence but the students did not, such that everything the students alleged was hearsay and could not be substantiated. The Appellant asserted that it had submitted the dispute was more involved than that and complained that most of its submissions were not dealt with and almost all of them were never referred to. The Appellant charged the Commissioner with either ignoring the invitations to have regard to other aspects of the evidentiary record or failing to address them in his written reasons, arguing that the Commissioner had not explained how he had made his findings of fact in any reasoned or analytical way.
In prosecuting appeal grounds 1 and 2, the Appellant submitted the Commissioner failed to have regard to or consider not only the number, nature and timing of the various student complaints falling within Allegation 1 and other conduct of a like nature, but also the lack of any complaints about the conduct and behaviour of other teachers or the corroboration provided by the evidence as a whole.
In this regard, the Appellant submitted there were various complaints from students about threatening and aggressive behaviour of Ms Brownson that were consistent with the specific complaint made by Student A which, in turn, were consistent with the “strikingly similar” allegations made by Students B and C, which were consistent with the behaviour adopted by Ms Brownson during the bag search involving both students and teachers.
The error asserted was that the Commissioner had assessed the probabilities regarding each allegation in a linear fashion, compartmentalising the evidence relevant to each and then moving onto the next allegation, when what he should have done was decide whether he accepted the evidence of a particular allegation in light of the whole of the evidence.
The Appellant was critical of the Commissioner having dealt with the contested facts in one paragraph of the Decision[28] and contended that only making reference to what was directly relevant to each particular allegation and none of the other evidence was an erroneous approach to the fact-finding task. The Appellant therefore argued that the Commissioner failed to have regard to relevant considerations and/or to deal with necessary issues and centrally relevant submissions, including the corroborative implications of Student A's complaint, the complaints of other students and the corroborative nature of the conduct that comprised Allegations 2 and 3.
In relation to Allegation 1 (that Ms Brownson had engaged in conduct that was unprofessional and in breach of the staff code of conduct), the Appellant submitted the Commissioner made two errors of fact that were significant because they were dispositive of the Commissioner's finding as to the occurrence of the misconduct.
The first error was said to be the finding, in [51] and [53] of the Decision, that the complaint of Student A had been investigated by Ms Mellor and found not to have been substantiated. The Appellant argued that to the extent that there had been an investigation, it had nothing to do with Student A’s complaint about Ms Brownson.
The second error was said to be the finding in [51] of the Decision that the complaints made by Students B and C about things they allege were said to them by Ms Brownson were uncorroborated. The Appellant submitted that the complaints corroborated each other because they were strikingly similar and there had been no submission made that the statements made by the two students to the investigator had been unreliable. More broadly, it was put that these statements were corroborated by:
a)Student A’s complaint that Ms Brownson yelled, screamed and issued a threat;
b)The reports Students B and C made to parents and staff members about the treatment they had been subjected to by Ms Brownson; and
c)The evidence from multiple teachers that Ms Brownson had screamed at students.
The Appellant submitted there was a failure to have regard to all of the relevant evidence that bore upon the finding of fact that was required to be made, i.e. whether the misconduct had been proven on the balance of probabilities. The Appellant submitted that the finding that the complaints of Students B and C were uncorroborated entailed a misapprehension of the evidence and/or significant error of fact and that the failure to have regard to any of this evidence in making the finding as to whether the Allegation 1 conduct occurred was erroneous.
Alternatively, the Appellant advanced appeal ground 4 by submitting that even if it was to be inferred that all of this material was taken into account by the Commissioner in making his findings in relation to Allegation 1, none of it had been mentioned in the Commissioner’s reasons and this constituted a failure to provide adequate reasons.
The Appellant’s appeal grounds 5 and 6 related to Allegations 2 and 3 (that Ms Brownson had engaged in conduct that amounted to both physical and emotional harm of students and a risk to their health and safety). Adopting a similar approach to the approach it adopted for Allegation 1, the Appellant submitted that in treating the complaints of Student B and C as uncorroborated, and preferring the evidence of Ms Brownson as to what she had said to them, the Commissioner failed to take into account:
a)the striking similarity between the comments Ms Brownson was alleged to have made during separate interactions with Students B and C;
b)the evidence of contemporaneous reports of Students B and C to multiple other witnesses, including parents and several staff members, as to the treatment Students B and C had been subjected to by Ms Brownson;
c)Student B’s absence from school for four days following the alleged incident involving him where Student B and Student B’s parents’ both attributed that absence to him suffering psychological distress (and being scared) because of the manner in which he had been treated by Ms Brownson;
d)the Appellant’s wellbeing officers deposing to several students raising concerns about Ms Brownson conducting herself in a manner that left students feeling humiliated and uncomfortable;
e)the similarity in nature to the conduct alleged against Ms Brownson in Allegation 1; and
f)Ms Brownson’s inherent self-interest in protecting her employment, which resulted in her giving a substantially similar, but more benign, account of events.
The Appellant submitted this was all evidence of recent complaint that had to be brought into account in assessing whether a finding of fact ought to have been made one way or another.
In the alternative, the Appellant contended, through appeal ground 8, that there were no (or no adequate) reasons given as to why that evidence was not relevant or did not tip the balance in favour of the Appellant’s case. The Appellant argued the absence of analysis by the Commissioner left open:
(a)Whether the Commissioner had regard to any of the information that emerged during the investigation; and
(b)If he did have regard to it, how did the Commissioner bring it into account and what were his reasons?
In advancing appeal ground 9, which dealt with Allegation 5, the Appellant argued the evidence relating to the bag search was distinguishable from the evidence relating to other allegations because there was competing evidence at the hearing from Ms Brownson and Aboo Baker Mahomed (Mr Mahomed). The Appellant submitted that the Commissioner’s finding in relation to Allegation 5 was both a significant error of fact and an erroneous conclusion premised on other errors, such as:
a)Ms Brownson’s account having been an account of another bag search at a different location;
b)The failure to have regard to Mr Mahomed’s evidence, or at least resolve the conflict between his account and Ms Brownson’s; and
c)The failure to refer to even Ms Brownson’s account, which itself disclosed intimidating, humiliating, harsh and inappropriate conduct, when assessing whether there was a valid reason for the dismissal.
Through appeal ground 10, the Appellant posited that the Commissioner failed to provide any reasons, let alone adequate reasons, for his decision to prefer the evidence of Ms Brownson as to the nature of her conduct during the bag search and to make the findings that he did.
When outlining its position in relation to appeal grounds 3 and 7, the Appellant submitted the Commissioner erred in failing to have regard to Ms Brownson’s admission of having raised her voice and yelling at students and as a consequence, erred by failing to find this admitted behaviour was inappropriate, inconsistent with the Appellant’s “Staff Code of Conduct” and a valid reason for Ms Brownson’s dismissal.
The Appellant asserted that the question of whether an employee’s conduct meets the statutory description of a “valid reason” admits of only one legally correct answer and as such, the correctness standard applies. The Appellant submitted the question of whether there was a valid reason involves an objective evaluation of the relevant conduct against an established statutory threshold and conduct, once found, either is or is not a valid reason for dismissal. The Appellant submitted the Commissioner erred because he failed to conclude that the behaviour he had found Ms Brownson had engaged in within the ambit of Allegations 2 and 3, amounted to a valid reason.
The Appellant submitted appeal grounds 11 and 12 (which concerned the assertion that the Commissioner erred in failing to find that the conduct falling within Allegations 1-5 that he was satisfied Ms Brownson had engaged in constituted a valid reason) were a development of grounds 3 and 7, before describing appeal grounds 13-15 as “consequential grounds” on the basis that the conclusions that the dismissal was harsh, unjust or unreasonable and reinstatement was appropriate were not sustainable if the findings the Commissioner had made in relation to conduct were wrong.
As to appeal ground 16, the Appellant’s broad submission was that the Commissioner failed to have regard to relevant considerations when he determined to reinstate Ms Brownson to her previous role. These were said to have included the fact that the Commissioner was reinstating Ms Brownson to a role that:
a)included separate and distinct pastoral responsibilities, including in relation to a number of the students who had made complaints about Ms Brownson’s conduct, reported being scared of her and/or whose wellbeing had been detrimentally affected by their interactions with Ms Brownson; and
b)placed (or has the very real potential to place) Ms Brownson and the Appellant in conflict with their obligations and duties under the Work, Health and Safety Act 2011 (Qld) and/or the Child Protection Act 1999 (Qld).
The Appellant submitted permission to appeal should be granted because there were significant errors of fact foundational to the Commissioner’s conclusions as to whether the alleged misconduct took place and because the Commissioner made errors that manifest a significant injustice to the Appellant, in that it was deprived of the opportunity of having the submissions properly dealt with and the application determined by reference to all of the available evidence. The Appellant further submitted that the appeal involves the following issues of general application:
a)whether yelling/screaming at students will not in and of itself constitute a valid reason for terminating a teacher;
b)whether the Commissioner can appropriately reinstate a teacher to a role that would have pastoral care responsibilities for multiple students who complained, even if the students’ complaints could not be substantiated on the balance of probabilities; and
c)whether the Commission’s determination of whether an employee’s conduct amounts to a “valid reason” is a discretionary question or a question permitting of only one correct answer.
The Respondent’s submissions
Ms Brownson submitted the approach the Commission was required to adopt was to ask whether or not there was error having regard to the standard principles and House v R and credit type considerations, not one which inquired as to whether or not the Appellant had established a reasonable chance, or any chance, of a different outcome.
In addressing appeal grounds 1, 2 and 4, Ms Brownson submitted that the Commissioner’s findings in relation to Allegation 1 were firmly based in the evidence and the Appellant had not established any glaring improbability or any palpable misuse of the Commissioner’s advantage. Having submitted there was only hearsay evidence before the Commissioner in relation to the allegations raised by Students A, B and C, and that consequently none of the substantive allegations made against Ms Brownson could be tested, Ms Brownson argued that the Commissioner had set out his findings as to why he considered Ms Brownson a more credible witness in paragraph [51] of the Decision.
Ms Brownson also asserted the finding that the students had been exhibiting extremely poor, disruptive behaviour had not been, and could not be, attacked and emphasised the evidence of them having been regularly disciplined by Ms Brownson and other teachers. Ms Brownson proffered that this meant they had an interest in causing trouble for her because it would prevent her from being able to continue disciplining them.
Ms Brownson addressed the Appellant’s arguments regarding corroboration by firstly arguing that the corroborative conduct actually has to have occurred and secondly, that it must be substantive and objectively established. Ms Brownson attacked that which was asserted to have been corroborative of the complaints of Students B and C on the basis that it had not been tested. Ms Brownson submitted the fact that other students described by Student A had made complaints that Ms Brownson had yelled at them or a class at other unspecified times, and in unspecified places, was not corroborative of the specific complaints made by Students B and C. She argued that the adequacy of the Commissioner’s reasons had to be assessed against this background.
Similarly, Ms Brownson argued against the Appellant’s reliance on the evidence from other teachers that she had yelled, suggesting it pertained to unspecified days and in unspecified circumstances. Ms Brownson submitted that on the proper application of the principles of corroboration, this evidence did not rise so high as to corroborate either the specific events described by Students B and C, nor the allegation of yelling contained in the complaint made by Student A.
Permission to appeal
For the reasons that follow, we are persuaded that the Appellant has established an arguable case of appealable error justifying the grant of permission to appeal. In accordance with s.400(1) of the Act, and given the findings that follow in this decision, we consider that it is in the public interest for permission to appeal to be granted, and we do so.
Consideration
Appeal grounds 1 and 2 concern Allegation 1, which was the assertion that Ms Brownson had engaged in conduct that was unprofessional and a breach of its staff code of conduct. The Appellant had relied upon the following two matters when terminating Ms Brownson’s employment:
The statement of Mr Hanif dated 15 November 2023, outlining that during well-being sessions, several students from 9A and 9B had “shared their experiences and concerns regarding the behaviour of Mrs Brownson. They expressed amongst other concerns over how they are spoken to, unjust punishment and an overall disregard for their well-being and emotional development under her care”;[29] and
The written complaint of Student A dated 13 June 2023.[30]
Turning firstly to the written complaint of Student A, the Commissioner’s finding that it had been investigated and found not to have been substantiated was erroneous in the sense that Ms Mellor’s evidence at the hearing revealed that rather than having been charged with investigating the specifics of Student A’s complaint, she had instead been directed to observe Ms Brownson while Ms Brownson was undertaking teaching duties. We do not, however, consider that the Commissioner’s conclusion regarding the evidence of Ms Mellor rises to the level of a significant error of fact. Although the Commissioner’s acceptance that Student A’s complaint had not been substantiated was based on the erroneous premise of the outcome of Ms Mellor’s investigation, we are not persuaded the other evidence before the Commission was sufficient to substantiate Student A’s complaint.
We find no error in the Commissioner’s conclusion at [53] that Mr Hanif’s 15 November 2023 statement was not sufficient to establish misconduct by Ms Brownson. In his evidence before the Commissioner, Mr Hanif did not expand upon what the “several students from 9A and 9B” had told him and nor did he attest to having investigated their concerns. Mr Hanif’s evidence going to what these students said to him was accurately characterised by the Commissioner as having been hearsay. Indeed, much of the Appellant’s case on appeal was reliant on hearsay evidence given by witnesses who outlined the various statements made to them by Students A, B, C and “several students from 9A and B”, none of whom gave evidence before the Commissioner.
The rationale for the hearsay rule was outlined by McHugh J in Pollitt v R:
“A statement is ‘hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement’.[31] The objection to hearsay evidence is that it is unreliable – the declarant is not subject to cross examination and his or her truthfulness and powers of memory, recall, perception and narration cannot be tested.”[32]
While s.577(a) of the Act obliges the Commission to perform its functions in a manner that is fair and just and the Commission is not bound by the rules of evidence and procedure, it is well established that Commission tends to follow the rules of evidence as a general guide to good procedure.[33] We do not consider the Commissioner’s suggestion that this aspect of Mr Hanif’s evidence was “vague hearsay” to have been misplaced.
When prosecuting Allegation 1, the Appellant further relied upon the complaints made by Students B and C, the parents of Student B and various members of the Appellant’s staff about the treatment Students B and C received from Ms Brownson in order to assert that Ms Brownson had engaged in conduct that was both unprofessional and in breach of the staff code of conduct. The Appellant also relied on these factors when prosecuting appeal grounds 5 and 6, which concerned the Commissioner’s treatment of the allegations that Ms Brownson had engaged in conduct that amounted to physical and emotional harm of students and a risk to their health and safety (Allegations 2 and 3).
Dealing, therefore, with appeal grounds 1, 2, 5 and 6 together, we observe that the evidence of the Appellant in relation to Allegations 1, 2 and 3 was almost entirely hearsay. While the Appellant’s submissions were replete with references to corroboration and the Appellant made the complaint that there was an absence of findings from the Commissioner as to the facts it had asserted were corroborative, the Appellant explained that when it submitted that the various student complaints made about Ms Brownson corroborated each other, the submission of ‘corroboration’ was advanced in the “non-technical sense”, in that it was contending the various pieces of evidence supported one another.[34] As to this, we consider it was entirely open to the Commissioner to prefer the evidence of Ms Brownson, whose testimony he had observed and whose credibility he was in a position to evaluate, over the compilation of hearsay evidence from the various members of the Appellant’s staff, who had simply outlined what had been said/reported to them by Students A, B, C and “several students from 9A and B”, and the parents of Student B.
However, we also note that at paragraphs [26]-[27] and [30]-[33] of the Decision, the Commissioner referred to the Appellant’s reliance on witness statements from Younos Mahamat Abderahman (Mr Abderahman), Mr Mahomed and Ms Renee Lazarus (Ms Lazarus) and recorded that they were each cross-examined during the hearing.
Mr Abderahman gave unchallenged evidence that he witnessed Ms Brownson screaming at students while performing yard duty during Term 4 of 2023.[35]
Mr Mahomed attested to having commonly witnessed Ms Brownson scream and speak harshly to students in common areas during the period after she had been appointed Year 9 Pastoral Coordinator in Term 2 of 2023.[36] While Mr Mahomed was cross examined in relation to the action that he took in response, his assertion as to what he himself had witnessed was not challenged.
Ms Lazarus gave unchallenged evidence that in or around the end of Term 3 or start of Term 4 in 2023, she often heard Ms Brownson speak to students in a raised and forceful voice when called into the Year 9 classroom, in phrases that she considered to be intimidating and a voice that was so loud that she could hear the comments from where she was situated approximately two classrooms down the corridor from the Year 9 block.[37]
We also observe that Ms Brownson was obligated to comply with the Appellant’s Code of Conduct, which imposed requirements that she:
a)Present herself as an appropriate role model;
b)Treat her colleagues and students with respect;
c)Avoid rude or insulting behaviour, verbal aggression, threatening, intimidating or derogatory language;
d)Uphold a duty of care to take all reasonable steps to protect students from risks of harm;
e)Promote the safety, welfare and well-being of students;
f)Prevent harm to children; and
g)Take care to use appropriate language when speaking with students.[38]
In circumstances where the Code of Conduct applied and allegations in the nature of Allegations 1-3 were pressed, we consider the abovementioned evidence of Mr Abderahman, Mr Mahomed and Ms Lazarus was a relevant consideration to be weighed in the balance in assessing whether the dismissal of Ms Brownson was unfair, particularly in circumstances where Ms Brownson was employed in the position of Pastoral Co-ordinator and subject to a position description requiring her to implement a model of care that supported a culture of learning, promoted the safety and wellbeing of all students and exhibited a commitment to protecting students from abuse or harm in the school environment.[39]
If the behaviour described by Mr Abderahman, Mr Mahomed and Ms Lazarus occurred, it is arguably serious. However, on the face of the Decision, these particular aspects of their evidence do not appear to have been taken into account. A failure to have regard to relevant considerations is an appellable error. In a case where they could have affected the outcome, such an error becomes significant.
Further, while the Commissioner noted Ms Brownson’s admission that she had raised her voice and yelled at students, he appeared to draw no adverse inference. The Commissioner instead accepted that these actions were a necessary part of being a teacher, and excusable through an apology “where she considered she may have been too harsh.”[40]
It would appear that the Commissioner did not consider the admission of yelling to be relevant to his consideration as to whether there was a valid reason for Ms Brownson’s dismissal.[41] Nor is it apparent that the Commissioner gave consideration to the applicability of the Code of Conduct to Ms Brownson’s admitted yelling. This would have been more than a technical breach of the Code. We consider that the Commissioner’s failure to consider and give appropriate weight to this further, arguable breach of the Appellant’s Code of Conduct was a further failure to take into account a relevant consideration. The Commissioner should have considered the significance of his finding of yelling and dealt with the implications of the direct evidence of other staff on this aspect, as part of the assessment required by s.387(a) of the Act.
For these reasons, we consider that appeal grounds 2 and 6 are made out. Given this finding, it is unnecessary for us to determine either appeal grounds 1 or 5. Nor do we consider it necessary to deal further with grounds 3 and 7, which the Appellant suggested only required consideration if we were against it “on the earlier grounds,”[42] and which we have noted were advanced in the alternative to grounds 1, 2, 5 and 6. It is also unnecessary to determine grounds 4 and 8, which assert a failure by the Commissioner to provide adequate reasons in relation to the findings made. They were also advanced in the alternative.
Appeal ground 9 deals with Allegation 5 and more particularly, the Commissioner’s conclusion in relation to Ms Brownson’s conduct during a search of student school bags. In the Decision at [53], the Commissioner simply outlined his conclusion that he had accepted Ms Brownson’s evidence regarding what occurred with a bag search she says she conducted and what she stated to the students on that occasion. However, this conclusion was reached without any reference to the conflicting evidence of Mr Mahomed regarding a bag search he said he had observed Ms Brownson conducting. Whether Ms Brownson engaged in conduct of the kind that fell within Allegation 5 (conduct that amounted to intimidation and harassment of students) was a relevant consideration in assessing whether Ms Brownson’s dismissal was unfair. The Commissioner’s failure to deal with Mr Mahomed’s evidence leaves open the possibility that in reaching his conclusion regarding the bag search, he either mistook the facts or failed to have regard to the whole of the evidence.
We emphasise that in any given case it will not always be necessary for the Commission to deal with every factual dispute or to grapple with the basis for preferring some evidence over other testimony. However, in this case, the factual disputes were the subject of direct and competing evidence and the consequences were significant for the findings that were required by the Act. The findings about the absence of a valid reason were also critical to the consequential findings made by the Commissioner, including remedy.
Having concluded that appeal grounds 2, 6 and 9 have been made out, we do not need to deal with the balance of the appeal grounds.
Conclusion
It follows from the above that we are satisfied that there has been error in the exercise of the Commissioner’s discretion by reason of the matters we have identified. In these circumstances and having regard to the significance of the Commissioner’s errors in the exercise of his discretion, it would be unsafe to allow the Decision to stand and the appropriate course is to uphold the appeal, quash the Decision and Order and remit the matter back to the Commissioner for rehearing.
Should the parties wish to engage in discussions to see whether an agreed resolution of the matters in dispute might be reached, we will facilitate making available a Member of the Commission to assist the parties if the parties so request. Such arrangements can be made by contacting the Chambers of Deputy President Clancy.
Disposition
For the foregoing reasons we have decided to:
a)Grant permission to appeal;
b)Uphold the appeal;
c)Quash the Decision in [2024] FWC 1512 and the Order in PR775857; and
d)Remit the matter for a rehearing to Commissioner Crawford.
DEPUTY PRESIDENT
Appearances:
M Follett, Senior Counsel, and J McLean, Counsel, for the Appellant
E White, Counsel, for the Respondent
Hearing details:
Melbourne.
2024.
12 August.
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[1] [2024] FWC 1512.
[2] PR775857.
[3] PR776641.
[4] AB219–AB220.
[5] AB170–AB172.
[6] AB173-AB176.
[7] AB431-AB432.
[8] AB472; AB469.
[9] AB177-AB178.
[10] AB179-AB181; AB230-AB232.
[11] [2024] FWC at [11] and [14].
[12] Ibid at [12].
[13] Ibid at [16].
[14] Ibid at [17].
[15] Ibid at [22]–[33].
[16] Ibid at [49].
[17] Ibid.
[18] Ibid at [50].
[19] Ibid at [51].
[20] Ibid.
[21] Ibid at [56].
[22] This is so because on appeal the Commission has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[23] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[24] [2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[25] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[26] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[27] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[28] [2024] FWC 1512 at [52].
[29] AB534.
[30] AB 406
[31] Subramaniam v Public Prosecutor [1956] 1 W.L.R. 965 at 970.
[32] (1992) 174 CLR 558 at 620.
[33] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]).
[34] Transcript 12 August 2024 at PN304-305.
[35] AB535 at [14].
[36] AB538 at [12].
[37] AB542-543 at [11]
[38] MK19 at AB449 at clauses 10.1, 10.2, 11.1, 11.2, 12.1 and 12.4 (iv).
[39] MK 1 at AB396-397.
[40] [2024] FWC 1512 at [50]
[41] Ibid at [56] and [57].
[42] Transcript 12 August 2024 at PN184.
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