Kendrick v State of Queensland (Department of Education)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION PARTIES:	Kendrick v State of Queensland (Department of Education) [2023] QIRC 108 Kendrick, Neil (Appellant) v State of Queensland (Department of Education) (Respondent)
CASE NO:	PSA/2022/1026
PROCEEDING:	Public Sector Appeal – Appeal against a fair treatment decision
DELIVERED ON:	12 April 2023
HEARD AT: MEMBER:	On the papers Pidgeon IC
ORDERS:	1. The decision-maker’s disciplinary finding with regard to Allegation One is set aside. 2. The decision-maker’s disciplinary finding with regard to Allegation Two is confirmed. 3. The decision-maker’s disciplinary finding with regard to Allegation Three is upheld in part. Allegation Three is substituted with the following wording: ‘Throughout 2019, you used inappropriate language in front of students on a number of occasions.’ 4. That Mr Kendrick be issued with a new disciplinary findings decision and notice to show cause on disciplinary action reflective of the orders made in this decision.
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –PUBLIC SECTOR APPEAL – appellant employed as a senior teacher at a state high school – allegations of inappropriate conduct made against the appellant – findings made by decision-maker to substantiate certain allegations – fair treatment appeal against a disciplinary finding decision – where disciplinary action has not yet been taken – whether disciplinary finding decision was fair and reasonable – decision-maker’s disciplinary finding with regard to Allegation One not fair and reasonable – decision-maker’s disciplinary finding with regard to Allegation One set aside – decision-maker’s disciplinary finding with regard to Allegation Two confirmed – decision-maker’s disciplinary finding with regard to Allegation Three substituted – decision returned to decision-maker to issue a fresh disciplinary findings decision and notice to show cause on disciplinary action reflective of the orders made in this decision
LEGISLATION:	Department of Education and Training’s Standard of Practice cl 1 Human Rights Act 2019 (Qld) ss 19, 20 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 91, 289, 324 Public Sector Ethics Act 1994 Public Service Act 2008 (Qld) ss 187 (repealed) Student Protection Implementation Guidelines
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336

Reasons for Decision

Introduction

Mr Neil Kendrick (the Appellant) is employed by the State of Queensland (Department of Education) (the Respondent) as a permanent Experienced Senior Teacher. At the time of the events relevant to this matter, Mr Kendrick was employed at Northern Peninsula Area State College (NPASC).
Mr Kendrick appeals the decision of Ms Anne Crowley, Assistant Director-General and Chief People Officer (the decision-maker), dated 14 December 2022, to make disciplinary findings against him in relation to the following substantiated allegations:
Allegation One:     On 8 November 2019, at Northern Peninsula Area State College, you engaged in inappropriate physical contact with student A[1] by holding him by the shirt and/or pushing him forward.
…
Allegation Two:    On 12 November 2019, at Northern Peninsula Area State College you interacted in an inappropriate and unprofessional manner by hitting a stick or ruler on a desk in close vicinity of students within your care.
…
Allegation Three:   On one or more occasions in 2019, at Northern Peninsula Area State College, you made inappropriate comments to and/or in the presence of students in your care, including ‘fuck’, ‘fuck you’, ‘do the fucking work’, ‘stand the fuck up’, ‘fuck up’, ‘fuck head’, ‘fuck off’, ‘shut up you shithead’, ‘if you don’t stop, I’ll bash you in the face’, and ‘bitch’.
[1] Students’ names will not be used in this decision.
In the decision letter, Ms Crowley sets out her findings and concludes with respect to each of the allegations:
I have determined that pursuant to section 187(1)(g) of the PS Act, you contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely Clause 1.5 of the Department of Education and Training’s Standard of Practice (Standard of Practice) in a way that is sufficiently serious to warrant disciplinary action.
In consideration of these substantiated allegations, the decision-maker requested that Mr Kendrick show cause with regard to the proposed disciplinary action of terminating his employment.
Mr Kendrick’s Appeal Notice
Mr Kendrick filed an appeal notice on 21 December 2022, within 21 days of receiving the decision letter.
In Part C of his appeal notice, Mr Kendrick outlines his grounds of appeal as follows:

1. The wrong legal tests were applied to the assessment and analysis of the evidence. The incorrect approach was taken to assessments of credit and the assessment of the evidence.
2. The decision relied on irrelevant considerations and failed to take into account relevant considerations.

3. The findings were not open or reasonably open on the evidence.

4. The decision was not fair and reasonable because of inordinate and unjustifiable delay for which there was no satisfactory explanation.

5. The decision was affected by bias or a reasonable apprehension of bias on review of the reasons for the decision.

6. The decision relied on and was based on a flawed investigation.

7. The decision was affected by legal error.

Disciplinary action has not yet been taken against Mr Kendrick, and he has therefore filed a fair treatment appeal against the disciplinary finding decision. For this reason, I will not address the proposed disciplinary action of termination in this appeal.

Background
Alternative duties

Following a number of concerns being raised regarding his conduct, Mr Kendrick was directed to perform alternative duties as a Manual Arts Teacher at another school from 10 February 2020.
He performed these alternative duties on normal remuneration until 24 January 2022 when he commenced a period of special leave without pay. At the time of this appeal, Mr Kendrick remains on special leave without pay.
The allegation letter
The decision letter of 14 December 2022 was preceded by a letter dated 23 June 2022. The investigation concluded that of seven allegations, three were found not capable of substantiation and four were substantiated. The decision-maker provided the appellant with 14 days from receipt of the allegation letter to show cause why disciplinary findings should not be made against him in relation to three of the substantiated allegations.

Appeal Principles

Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(c) For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative Framework and Other Instruments

The Appellant filed his appeal before the commencement of the new Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time of the disciplinary finding decision and when Mr Kendrick filed his appeal.
Section 324 of the PS Act relevantly provides:
(1)     This section applies if—
(a)before the commencement, a person appealed against a decision under the repealed Act, section 194; and
(b)      immediately before the commencement, the appeal had not been decided.
(2)     From the commencement, the appeal must be heard and decided under chapter 3, part 10.

Immediately before the commencement of the new PS Act, Mr Kendrick’s appeal had not been decided. I will therefore decide Mr Kendrick’s appeal under ch 3, pt 10 of the new PS Act.
Section 91 of the PS Act relevantly provides:

91      Grounds for discipline
(1)     A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
…
(h)       contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

The Appellant is subject to the Respondent’s Standard of Practice which contextualises the Queensland Public Sector to the occupational circumstances of the Respondent and provides:
All students have a fundamental right to a safe and trusted physical and emotional environment that is free from harm. Departmental employees hold a special position of trust arising from the nature of their work. As employees, we exercise powers that have significant impact on the lives of students and consequently, there is a community expectation that these powers will be properly and prudently used. Therefore, employees should strive to establish, build and maintain positive professional relationships with students to enhance the self esteem and social development of students. Employees must actively seek to prevent harm to students and support those students who have been harmed.
Employees must read, understand and comply with the department’s Allegations against Employees in the Area of Student Protection procedure and the Student Protection procedure, and be aware of their duty of care at common law. Employees must be aware of their responsibilities in preventing and responding to harm or risk of harm to all students.
An employee must not impose corporal punishment on a student in the course of their professional duties, or misuse their professional relationship with a student for personal or private gain.
…
Employee interactions with students must be, and seen to be, professional at all times. For clarification, this includes outside school hours.
Consideration must also be given to the Respondent’s Student Protection Implementation Guidelines (the Guidelines) which provide guidance for employees about appropriate and inappropriate employee-student interactions.
The Guidelines categorise the types of employee conduct that have the potential to cause student harm as follows:[2]
1. Physical harm by way of contact, intervention or restraint (directly or indirectly).
2. Psychological harm by way of inappropriate verbal or unauthorised communication.

3. Sexualised harm by way of sexual abuse, including grooming.
[2] Student Protection and Implementation Guidelines, 1 (‘the Guidelines’).

In relation to the use of physical intervention and restraint by teachers with students, the Guidelines relevantly provide:
Reasonable physical intervention/restraint is an option when:
·        A student threatens or engages in acts of violence towards another student, students or employees
·        A student threatens to or engages in harm to themself
·        A student threatens to or engages in significant damage to property, or

· Other strategies including de-escalation communication strategies have been tried and have been unsuccessful, or are not practical in the circumstances.[3]

[3] Ibid 2.

In terms of verbal communication used by teachers with students, the Guidelines state:

Employees of a state educational institution will occasionally need to raise their voices to restore order to a disruptive group or individual student. This type of interaction should be occasional, should incorporate an appropriate response and should not be demeaning, intimidating, insulting or overbearing.[4]

[4] Ibid.

Mr Kendrick’s submissions
Unreasonable delays

Mr Kendrick says that he had been suspended for two and a half or more years when he received the first show cause letter and that the suspension has caused a deleterious effect on him.
Mr Kendrick says that he was not made aware of the particulars of the allegations and was not interviewed in relation to the allegations against him until 5 May 2022, while the relevant children were interviewed on or around November 2020. However, the alleged events are said to have occurred in November 2019.
Mr Kendrick says that there is no plausible reason for the extended delay in investigating the matter and that the delay has ‘irreparably’ tainted the fairness of the investigation, the accuracy and reliability of the evidence, and the decision itself.
Mr Kendrick submits that the delays in the investigation and receiving the final decision is contrary to his human rights under the Human Rights Act 2019 (Qld). Mr Kendrick says that he has a right to take part in public life through his long-term employment in the public service,[5] and that the conditions imposed on him have affected his right to freedom of movement.[6]
[5] Human Rights Act 2019 (Qld) s 23.
[6] Ibid s 19.
Assessment of the evidence is unfair and unreasonable
With regard to Allegation One, Mr Kendrick says that the decision-maker found the allegations were substantiated on the balance of probabilities and while acknowledging ‘some inconsistency in the versions provided by the students’ found that ‘all of the students describe you initiating physical contact with student A, who was misbehaving, by grabbing student A by the collar of his shirt, and hurting and/or choking him’.[7]
[7] Letter from Ms Anne Crowley, Assistant Director-General and Chief People Officer to Mr Neil Kendrick dated 14 December 2022, 2 (‘the disciplinary finding decision’).
Mr Kendrick says that the decision-maker did not accept his explanation that student A had been chasing another student with a chisel at the time of the incident and that Mr Kendrick grabbed him to avoid injury to himself or others. However, Mr Kendrick points out that the witness students agreed that student A had been ‘mucking around with a chisel’ at the time of the incident and the decision-maker accepts that student A had been ‘misbehaving, including by running with a chisel’.
Mr Kendrick says that the decision-maker has relied on minor inconsistencies between his interview (which occurred 19 months after the event) and his written response (which he provided two years after the event) to undermine the credibility of his evidence and then make a finding that his version is not truthful or accurate. Relevantly, the decision-maker said:[8]
… In reaching this view I have had regard to the transcripts of the interviews with students A, B, C, and D. The students do not say that student A was chasing a female student (or any other student) with a chisel. I have carefully considered whether the students may have been dishonest about this issue at their interviews, but having regard to all of the information before me, I do not believe so. Students A and C were both candid in their interviews about the fact they were ‘mucking around with tools’ and ‘running around across the room’. Students B and D were also candid that student A was not doing his work. If the students had lied in their interviews, I would have expected them to deny, or at least seek to justify, the misbehaviour of students A and C. They did not do this, and for that reason, I accept their versions (notwithstanding there some [sic] inconsistencies in the details of their statements) as truthful.
[8] Ibid Enclosure 1, 3-4.
Mr Kendrick says that the decision-maker accepts that student A had been running in class with a chisel, but does not consider the possibility that other witness children had simply not been aware that student A was chasing another student or that Mr Kendrick may have witnessed the student running with the chisel in the direction of another student and wrongly believed he was chasing the student.
Mr Kendrick also says that the decision-maker ignored the fact that two of the students had themselves made allegations against him which were unsubstantiated and did not take this into account when assessing the credibility of their evidence.
With reference to the standard of proof in civil proceedings articulated by the High Court of Australia in Briginshaw v Briginshaw,[9] Mr Kendrick says that the decision-maker’s approach to the assessment of evidence is unfair and unreasonable because in a case of seriously contested versions of events on serious allegations, the decision-maker failed to have regard to: the nature and consequence of the fact or facts to be proved; the seriousness of the allegation made and the inherent unlikelihood of an occurrence of a given description; or the gravity of the consequences flowing from a particular finding. Further, Mr Kendrick says that the result was produced ‘by inexact proofs, indefinite testimony, or indirect inferences’.[10]
[9] (1938) 60 CLR 336.
[10] Ibid 362.
Mr Kendrick says that the decision-maker failed to apply the rigour required by law for a fair and reasonable process and decision for such a serious allegation.
With regard to allegations two and three, Mr Kendrick says that the decision-maker has similarly preferred the evidence of the students over that provided by him. This is despite the fact that the students involved each had poor behaviour records and had made other unsubstantiated allegations against him.
Respondent’s submissions

The Respondent makes its submissions with reference to the Standard of Practice which ‘establishes a common understanding of the minimum standards of behaviours expected of all employees of the Respondent’.
Finding One
The Respondent says that under the Standard of Practice, there is an obligation for teachers to actively seek to prevent harm to students and support those students who have been harmed. The Respondent refers to the Guidelines which it says provides guidance for employees about appropriate and inappropriate employee-student interaction.
The Guidelines acknowledge that there are situations in which ‘reasonable physical intervention/restraint is an option’ (see [22] above).
The Respondent says that the disciplinary findings decision letter addresses the justification for physical restraint provided by Mr Kendrick at the interview on 5 May 2022 and in his response letter that student A was chasing a female student in the classroom with a chisel. The Respondent says that if this behaviour amounted to a threat of violence toward another student, then Mr Kendrick’s conduct may be seen as reasonable in the circumstances. However the Respondent says that Ms Crowley has provided extensive explanation in the decision letter as to why she does not accept Mr Kendrick’s submissions on this matter: no student witnesses recalled seeing student A chasing another student and Mr Kendrick did not report the incident in a contemporaneous record. The Respondent says that the explanation provided by witnesses and corroborated in contemporaneous records was that student A was misbehaving and this is what appears to have provoked Mr Kendrick to grab student A.
Finding Two
The Respondent says the Standard of Practice recognises that ‘students have a fundamental right to a safe and trusted physical and emotional environment that is free from harm’ and accordingly, employees are obligated to actively seek to prevent harm to students.
According to the Guidelines, the Finding Two conduct would amount to ‘psychological harm by way of inappropriate verbal or unauthorised communication’. The Guidelines recognise that there will be the occasional need for employees to raise their voices to restore order to a disruptive group or individual student, however, it says that this type of interaction should be ‘occasional, should incorporate an appropriate response and should not be demeaning, intimidating or overbearing’.[11]
[11] Student Protection and Implementation Guidelines, 2.

The Respondent says that Finding Two was substantiated on the basis of interviews conducted with student witnesses as well as Mr Kendrick’s evidence that he found it necessary to make loud noises to attract the attention of students in a workshop setting.
The Respondent recognises that it is sometimes necessary for teachers to raise their voices to regain the attention of students, and also accepts that in a workshop setting, alternative methods of re-establishing classroom attention are necessary, for example, Mr Kendrick’s example of using a whistle or turning off the power for the workstations.[12]
[12] Letter from Ms Anne Crowley, Assistant Director-General and Chief People Officer to Mr Neil Kendrick dated 14 December 2022, Enclosure 1, ‘Allegation 2’, [5].
The Respondent says notwithstanding the above, Mr Kendrick’s actions in hitting a ruler or stick on a surface near a student was ‘intimidating’ or ‘overbearing’ and that the action inherently created a risk to the safety of students. The Respondent says that the ruler/stick breaking upon contact with the desk with a piece hitting a student on the head is a direct consequence of Mr Kendrick’s actions and the risk he exposed students to. I note below in paragraphs [60] to [62], Mr Kendrick both denies that this occurred and notes that reference to a piece breaking off the stick/ruler was removed from the allegation put to him.
Finding Three
The Respondent says that under the Standard of Practice, employee interactions with students must be, and be seen to be, professional at all times.
The Respondent submits that Finding Three was substantiated on a significant body of evidence provided by student witnesses. The Respondent says the finding was also supported by Mr Kendrick’s own concession in the interview that he has ‘used the F bomb as an adjective, occasionally, in class to get a point across’ but notes that Mr Kendrick denied making the comments detailed in the allegation and disciplinary finding decision.
The Respondent notes that Mr Kendrick questions the credibility of the evidence of students concerning this allegation, pointing to their poor behaviour records. Ultimately, Ms Crowley preferred the consistent evidence of multiple students to Mr Kendrick’s suggestion that the evidence of the students was fabricated or lacking credibility.
Reply to Mr Kendrick’s submissions
The Respondent acknowledges that Mr Kendrick was interviewed in relation to the allegations in May 2021 when the conduct subject of the interview occurred in 2019. The Respondent says that this delay was caused, at least in part, by the impacts of the COVID-19 pandemic upon scheduling of the student interviews, travel restrictions and transitioning to remote work/interviews, as well as the usual time committed to investigations involving allegations of student harm. The Respondent says that the impact of the passing of time was a factor considered and weighed by Ms Crowley in making the disciplinary finding decision.[13]
[13] Ibid [12].
The Respondent says that Mr Kendrick’s rights to take part in public life, privacy and reputation, as well as the right to freedom of movement, have only been limited by the disciplinary finding decision to an extent that is demonstrably justified in view of the importance of ensuring that employees comply with the guidelines and procedures relevant to their roles, particularly as it relates to student safety.
With regard to Mr Kendrick’s submissions questioning the credibility of the student witnesses, the Respondent says that Mr Kendrick’s submissions fail to engage with the consistency of the student evidence with a contemporaneous record in IRefer recording student A’s reporting of the grabbing incident (Finding One).[14] The Respondent says there is a notable absence of contemporaneous records in support of Mr Kendrick’s recollection of the incident. The Respondent says that this is of particular concern when Mr Kendrick’s recollection involves a significant safety incident where student A was purportedly chasing a female student with a chisel. Mr Kendrick’s OneSchool recording on that day did not record student A’s actions or the physical restraint measures adopted by Mr Kendrick. The record for that day merely notes that student A was one of six boys given detention for refusing to complete their directed work.
[14] Ibid [16].
The Respondent also says that Mr Kendrick’s submissions fail to explain how his recollection of the incident (Finding One) evolved from having grabbed student A in a manner he describes as ‘spur of the moment’ to having applied physical restraint only after verbal de-escalation techniques had been exhausted.[15]
[15] Ibid [11]-[12].
Mr Kendrick makes submissions that the credibility of two student witnesses was weakened due to the Respondent finding that two separate allegations were not capable of substantiation. The Respondent says that neither allegation involved a conclusion that the evidence provided by either student was demonstrably false, contrived or otherwise dishonest. The Respondent says that there were either inconsistencies in the evidence or a lack of corroborating evidence such that the investigator could not be satisfied that there was sufficient evidence to substantiate the allegations. The Respondent said that the decision not to substantiate those allegations did not mean that Ms Crowley was obliged to give the evidence of those students little weighting.

Mr Kendrick’s submissions in reply
Finding One

Mr Kendrick submits that a child running or ‘mucking around’ while holding a chisel in a busy class full of students constitutes a student threatening to harm themselves, other students or property, regardless of whether such a threat was made verbally. Mr Kendrick says it is not in dispute that the student was holding a chisel and that he had not complied with instructions given to him. Mr Kendrick notes that the Respondent’s own finding was that the student was ‘misbehaving’ at the time he was restrained.
Mr Kendrick says that the Respondent’s own Guidelines confirm that reasonable physical intervention and restraint was within his discretion upon seeing the student ‘wielding’ the chisel in class. Mr Kendrick says that this should be the case regardless of whether the Respondent believes his recollection that the student holding the chisel was chasing another student at the time he was restrained.
Mr Kendrick maintains that verbal prompts were used by him before the student was restrained. Mr Kendrick says that the Respondent has relied upon minor discrepancies between his statement during the record of interview one and half years after the incident and the written statement provided during the show cause process to undermine his position that he had used verbal prompts before restraining the student.
Mr Kendrick says that at the start of every lesson, students were briefed regarding health and safety procedures. He says that students were fully aware of what was and was not acceptable behaviour in a practical workshop and this was regularly reinforced in class with verbal prompts.
Mr Kendrick recalls making a ‘spur of the moment’ decision to ultimately restrain the student, but that this was in the context of having given repeated instructions to the class and to the student not to use tools outside of their intended purpose.
Mr Kendrick says that the semantics employed by the Respondent with regard to his interview and written response on this point is in stark contrast to the Respondent’s view that the countless discrepancies in the evidence of the students is of no relevance.
Mr Kendrick says the Respondent appears not to have considered the inherent danger in having a misbehaving student wielding a chisel in the classroom, despite the student being fully aware of the fact that he was not permitted to do so.
Finding Two
Mr Kendrick says that the Respondent fails to mention that the student witnesses variously describe him as using a ruler, a stick and a plastic pipe to hit the desk and gain the class’s attention. Further, Mr Kendrick says that some, but not all, accounts state that the implement shattered and broke when it hit the desk with shards hitting a student (though Mr Kendrick says that claim has now been removed from the text of the Allegation).
Mr Kendrick does not recall the incident occurring but says that if it had occurred, it is unlikely that so many different versions of the event would have been submitted by the student witnesses.
While the Respondent says it is a ‘fact’ that the implement ‘broke upon contact with the desk with a piece hitting the student in the head’. Mr Kendrick says this is not a ‘fact’ but an allegation and if a student had been hit with a shard of wood as alleged, it is very likely that the Appellant would have faced a criminal charge but he did not.
Mr Kendrick further notes that the Respondent submits that hitting a desk with a ruler ‘inherently created a risk to the safety of students’ but that it does not make the same submission regarding a student refusing instruction and wielding a chisel in class.
Finding Three
Mr Kendrick agrees that at the interview he stated that he has ‘used the F bomb as an adjective, occasionally, in class to get a point across’ and says that this was in the context of an extremely challenging class with many students exhibiting behavioural problems.
Mr Kendrick accepts that such language is not appropriate, but submits that appropriate discipline for the admission should not reach the threshold of termination. Mr Kendrick notes the inherent unlikelihood of any teacher in the state system using the alleged terms openly and regularly in a classroom setting, as all teachers are aware that to do so could result in serious disciplinary action.
Delay and credibility of evidence
Mr Kendrick says that the explanation for the delay in investigating the matter is not sufficient in an age of easy access to online interviewing tools and does not explain the passage of time between student interviews and his interview. Mr Kendrick says that the explanation does not address the disadvantage to him arising from the unreasonable delay before learning of the content of the allegations.
Mr Kendrick notes that one student who corroborated Allegation One had made a strikingly similar allegation (originally allegation 4) and claimed he had also been assaulted in class in almost exactly the same manner as student A. Mr Kendrick says that if this allegation was unable to be corroborated by other student witnesses, it is very likely on the ‘balance of probabilities’ that the student was simply being untruthful.
Consideration
I have considered the submissions of the parties and all material provided to me in support of the submissions. I also requested a copy of the Investigation Report and the Respondent provided it along with a number of Behaviour Records extracted from OneSchool. I have read the transcripts of all interviews and all other material attached to the Investigation Report.[16]
[16] Department of Education, Investigation Report (Report, August 2021).
Delays in commencing investigation, concluding investigation and issuing the show cause notice
The delay in concluding the investigation and issuing the show cause notice was substantial and I do not doubt Mr Kendrick’s submission that the delay has had a significant effect on him. However, it is the case that investigations of this nature often involve a lengthy process. When the outcome of such an investigation may have serious consequences for the individual or individuals involved, following a proper procedure and ensuring that matters have been comprehensively considered is paramount. For this reason, I also accept the Respondent’s submissions regarding and impact of the process on Mr Kendrick’s human rights.
The allegations involve conduct said to have occurred on dates ranging from July 2019 to November 2019 and in the case of Allegation Three, ‘on one or more occasions in 2019’. It is a matter of public knowledge that travel restrictions were put in place during the COVID-19 pandemic. While I acknowledge Mr Kendrick’s suggestion that there must be ways to conduct interviews remotely, it is reasonable to conclude that at the relevant time the Department was not equipped to conduct interviews remotely and that it may not have been appropriate to conduct interviews with children regarding allegations of this nature via videoconferencing.
For completeness, pages 4 and 5 of the Investigation Report sets out the evidence relied upon by the Investigator. The table at Section 5.1 titled ‘Witness Evidence’ shows that interviews with seven of the student witnesses took place on 10 November 2020, an interview with one other student occurred on 1 December 2020, and Mr Kendrick was interviewed on 5 May 2021. While it may seem obvious based on the dates set out throughout this decision, it must be noted that a) the student interviews occurred some 12 – 18 months after the alleged events took place and b) Mr Kendrick was interviewed and responded to the show cause notice approximately 18 to 24 months after the alleged events took place.
In the show cause letter of 23 June 2022, Ms Crowley informs Mr Kendrick that the Investigation Report was dated August 2021. The show cause letter offers no explanation for the significant delay in provision of the notice following receipt of the investigation report, but states that Mr Kendrick is provided with 14 days to respond and that if his response is received later than the required timeframe, the decision will be made on the material available to Ms Crowley. Mr Kendrick subsequently requested an extension of time to file his response and the disciplinary findings letter notes that it was received on 16 September 2022.
The delays in this matter are significant and most unfortunate, however I do not find that on its own, the delay is such that it renders the decision of 14 December 2022 not fair and reasonable. I accept that the delay may impact on reliability of student accounts of the event and that it has put Mr Kendrick at a potential disadvantage regarding his own recollection of events and I will address this as I consider each finding and the evidence relied upon. However, having reviewed all of the material, I find that Mr Kendrick has been able to adequately and cogently respond to each of the allegations.
It is impossible to know whether or to what extent the students may have had conversations about the matters under investigation in the time between the alleged events and the interviews they attended with the investigator. However, it seems to me that if the students had colluded about their responses, there would likely have been greater consistency between their statements. I disagree with Mr Kendrick’s submission that the delay has ‘irreparably’ tainted the investigation, the evidence or the decision itself.
The wrong legal tests were applied to the assessment and analysis of the evidence. The incorrect approach was taken to assessments of credit and the assessment of the evidence. The decision was infected by legal error.
Mr Kendrick’s submissions regarding the assessment of the evidence are set out above from [28]-[35]. I also note that Mr Kendrick has made submissions regarding the application of Briginshaw to evidence in matters such as this one. As I understand Mr Kendrick’s submissions, the decision-maker rejected his submissions that a student was chasing another student while holding a chisel and did not consider the possibility that the other students were simply not aware that student A was chasing another student or that Mr Kendrick may have witnessed the student running and wrongly believed he was chasing the student. It seems to me that the decision-maker considered all of the evidence available and Mr Kendrick’s submission that student A was chasing another student, thereby threatening harm, and determined that this was not what happened. The decision-maker explains her reasoning and says that she has accepted the students’ versions as truthful. Importantly, the decision-maker, while rejecting Mr Kendrick’s version involving a student being chased, does not appear to conclude that student A was not running with a chisel in this hand.
I have considered Mr Kendrick’s submissions regarding the poor behaviour records of the students who were involved and that there were unsubstantiated allegations made against him by some of the same students who provided witness statements in relation to the three remaining allegations. The Respondent addresses this matter in its reply submissions and says that those allegations were not unsubstantiated on the basis that the students’ evidence was false or dishonest, rather, there were inconsistencies in the evidence or a lack of corroborating evidence and therefore the investigator was not satisfied that there was sufficient evidence to substantiate the allegations. Having reviewed all of the behaviour reports available, it is clear that the behaviour of the relevant students was extremely challenging. Further to this, the students self-report their inappropriate behaviour and non-compliance in the investigation interviews, including some who describe swearing at Mr Kendrick and refusing to follow his directions. In circumstances where the student’s evidence was not found to be false or contrived, there is no reason why the decision-maker should afford it little weight. A student’s behaviour record should not automatically serve to undermine their capacity to recall events or give an honest account of something they witnessed to the best of their recollection. However, the long passage of time between the events and the investigation interviews cannot be overlooked. As I note below with regard to Finding 3, while the students may have attempted to recall events and faithfully report what occurred, it is also the case that the students may not have recalled events with precision.
The decision relied on irrelevant considerations and failed to take into account relevant considerations

Mr Kendrick’s written submissions do not address this ground of appeal.

The findings were not open or reasonably open on the evidence

I will consider this ground of appeal in considering the appeal as a whole, given Mr Kendrick challenges the disciplinary finding on the basis of the decision-maker’s analysis of the evidence.
The decision was affected by bias or a reasonable apprehension of bias on review of the reasons for the decision

Mr Kendrick does not address this matter in his submissions. It is possible this ground of appeal relates to Mr Kendrick’s concern that the decision-maker has accepted the student’s evidence over Mr Kendrick’s evidence. I understand that Mr Kendrick believes the decision-maker should have preferred his evidence, however this does not mean that the decision-maker is biased. There is no evidence before me to suggest that the decision-maker was biased or that bias is evident when reviewing the reasons for decision.

The decision relied on and was based on a flawed investigation

I understand that Mr Kendrick is concerned at the length of time it took for interviews to be undertaken by the investigator. As discussed above, I do not find that the time it took to complete the investigation serves to make it ‘flawed’.

Was the disciplinary finding fair and reasonable?

Finding 1

It is not in dispute that Mr Kendrick grabbed student A while student A was either running in the classroom with a chisel (whether chasing another student or playing around with tools) and certainly not behaving safely as expected in an Industrial Technology workshop. Both the student evidence and Mr Kendrick’s evidence identifies that student A was misbehaving. Ms Ropeyarn, a Teacher at NPASC, has given a contemporaneous account that the events which occurred were reported to her. It does not appear that the investigator returned to seek further evidence from the student witnesses about Mr Kendrick’s version of events involving a female student or student A chasing another student.

Mr Kendrick contends that student A was in fact chasing an unnamed female student with the chisel and that that his intervention was therefore permissible under the Guidelines (see [22] above). Mr Kendrick submits that the act of chasing a student with the chisel was threatening to that student and also that he had employed other strategies which were unsuccessful and not practical in the circumstances.
It is absolutely clear that student A was not following direction and was misbehaving in the classroom by running with a chisel in his hand. Mr Kendrick says that he determined that student A’s behaviour was threatening or dangerous, and decided to intervene to physically restrain student A. However, the contemporaneous evidence does not make any mention of either a major safety issue involving a student threatening another student by chasing them with a sharp tool or of Mr Kendrick reporting either this behaviour or his physical intervention.
There is a OneSchool record for this day regarding this class, however it refers only to a group of students, including student A, being given a detention as a consequence for their refusal to complete their work as directed.
It seems to me that the classroom environment Mr Kendrick was working in featured a range of complexities. The evidence indicates that some of the students involved had poor attendance records and OneSchool records attached to the investigation report reveal a range of behavioural issues and incidents. Mr Kendrick submits that there were limited support resources available to address behavioural problems in class. I understand that a teacher’s day can be very busy and that dealing with complex behaviour can be exhausting. The additional administrative load of writing reports about classroom behaviour and incidents may seem like an impost added to an already heavy workload, and yet the importance of contemporaneous reporting of behaviour or safety incidents means that teachers are required to find time to record incidents as soon as practicable after they occur.
However, this is not a situation where Mr Kendrick omitted to report anything in OneSchool at all due to workload or busyness. Mr Kendrick logged in and made an entry regarding the class. Physical intervention or restraint of a student is a serious matter, as is very unsafe student behaviour which a teacher has deemed threatening enough that there was a need to intervene in such a way. The lack of any record of reporting of this matter at the time that it occurred was a matter taken into account by the decision-maker in determining that this allegation was substantiated. It is trite to say, but the interaction between Mr Kendrick and student A may have been able to be dealt with in an entirely different way, had Mr Kendrick made a detailed contemporaneous report of the major incident on OneSchool following the end of the lesson or at the end of the school day. Whether an incident was recorded in OneSchool or not, two things are clear to me, firstly, student A was behaving unsafely with the tool and secondly, Mr Kendrick physically intervened to stop this behaviour. The fact that the incident was not recorded on OneSchool does not mean that it did not occur. I do not think it likely that Mr Kendrick deliberately failed to record the incident.
With regard to the student evidence, each of the students openly admit to either misbehaving or witnessing misbehaviour. There is no attempt by the students to claim that there was no misbehaviour and that any intervention was unprompted. I agree with the decision-maker that the candid answers provided by the students to the investigators may have contained inconsistencies but were not untruthful.
Mr Kendrick’s response regarding this allegation was that he acted on instinct in reaching out to physically restrain student A and that his ‘spur of the moment’ decision to restrain the student only occurred following repeated instructions to the class. I note that in the excerpts of the student’s statements set out in the decision letter in Enclosure 1 – Findings, students make reference to Mr Kendrick attempting to redirect the students to do their work and stop playing around
While I accept that Mr Kendrick did grab student A as alleged, I also accept that whether the student was chasing another student with the chisel, as stated by Mr Kendrick, or simply running around with the chisel in an act of tomfoolery, it was reasonable in the circumstances for Mr Kendrick to consider that the behaviour posed a safety threat to other students, Mr Kendrick or student A himself.
While there is no OneSchool report of the matter, Mr Kendrick claims that he reported the incident to Mr Geoffrey Moore, Head of Campus at NPASC. Mr Moore claims that this did not occur and the matter was not reported to him by Mr Kendrick but by Ms Ropeyarn. I note that the decision-maker determined not to place weight on the email statement of Mr Moore because it was not attached to the Investigation Report.[17] I also note that at some point, Mr Moore provided information that he held some concerns about what he said was Mr Kendrick’s escalating behaviour and the safety and wellbeing of the students.[18] There is no evidence before me about what intervention or support Mr Moore or the school administration sought to put in place in response to the concerns Mr Moore apparently held, though this may be a matter to be considered when determining the appropriate disciplinary action to be taken against Mr Kendrick. To be clear, I am addressing this matter for completeness. Mr Kendrick’s evidence regarding reporting the matter to Mr Moore and Mr Moore’s email are not something I am factoring into my reasoning.
[17] Letter from Ms Anne Crowley, Assistant Director-General and Chief People Officer to Mr Neil Kendrick dated 14 December 2022, Enclosure 1, [15].
[18] Department of Education, Investigation Report (Report, August 2021) 18.
On any view of the interview transcripts, the behaviour of several students in the class was completely inappropriate. Industrial Technology workshops are places where there are hazards present in every lesson. Even in a classroom where all students are behaving and engaged in the lesson, the teacher must remain vigilant, while doing their core work of delivering a lesson, to ensure students remain safe. The consequences of student misuse of tools and machinery can be, and occasionally are, very serious. It is not unrealistic to imagine a catastrophic eye injury or puncture wound occurring in circumstances where someone is running and carrying a chisel in an unsafe way. Mr Kendrick’s observation in his investigation interview that had he not intervened and someone had been injured as a result of the misuse of the chisel, he may be ‘in a lot more trouble than I am now’ is a reasonable reflection of the difficult position he found himself in.
I understand that the decision-maker determined that Mr Kendrick had not attempted verbal de-escalation strategies prior to the physical intervention, however, I note the discussion of evidence on page 18 of the Investigation Report which states:
Student A’s evidence revealed he was playing with student E and student C when he was supposed to be working in class and that when he ran past Mr Kendrick, Mr Kendrick grabbed him by the shirt collar, raised him up and slapped him on the back. Student C corroborated this version, acknowledging that he and student A were mucking around with the tools in class and didn’t stop when Mr Kendrick asked them to…[19]
[19] Emphasis added.
I understand that the decision-maker relied on Mr Kendrick’s inability to recollect what he said to student A and the seeming inconsistency with his other recollection that reaching out and grabbing student A on the spur of the moment with a view to protecting student A. In circumstances where the rules in the classroom would have been clear, the students reported that Mr Kendrick had been verbally addressing misbehaviour throughout the class, and Mr Kendrick’s interview did not occur until many months after these events took place, I do not think it was fair and reasonable for the decision-maker to determine that no verbal de-escalation strategies had been employed.
The relevant part of the Guidelines refers to threatening or engaging in an act of violence towards others, threatening or engaging in harm to oneself, or threatening or engaging in significant damage to property. I accept that student A may not have announced violent intent against others, or an intent to harm himself or damage property, but the outcome of his unsafe behaviour is such that it may have resulted in physical injury to an individual or harm to himself, or damage to the property within the classroom. In any case, the final dot point of the list of circumstances where reasonable physical intervention or restraint follows the word ‘or’. It is to be read as a circumstance giving rise to reasonable physical intervention or restraint, even in the absence of the three circumstances which appear on the list before it. Clearly, in the context of the Guidelines, it is not permissible to exercise physical intervention or restraint in response to any incident where a student does not respond to de-escalation strategies. The inclusion of this circumstance in a list involving serious matters of violence, harm or damage clearly indicates that physical intervention is only an option in circumstances where there is a serious safety concern. In this case, Mr Kendrick was responding to unsafe behaviour in circumstances where other ‘strategies had been tried and have been unsuccessful, or are not practical in the circumstances’.
Where I find that student A’s misbehaviour continued after he was given verbal directions regarding his behaviour and running and mucking around with tools, I am unable to find that it was fair and reasonable for the decision-maker to determine that the contact was inappropriate in that it breached the Guidelines regarding reasonable physical intervention or restraint.
As stated in [94], the Guidelines envisage a situation where ‘other strategies including de-escalation communication strategies have been tried and have been unsuccessful or are not practical in the circumstances’. I accept, on the balance of probabilities, that Mr Kendrick attempted de-escalation strategies throughout the lesson, that such strategies were unsuccessful and it was not practical to attempt further verbal de-escalation strategies. I find that Mr Kendrick used physical intervention with student A out of concern for unsafe behaviour after he attempted verbal de-escalation strategies to no avail.

The Respondent states that according to the Guidelines, the physical contact may have been permissible had there been a safety threat. I find that the student’s behaviour in running with a chisel in a workshop where there were other students present constitutes a safety threat warranting physical contact. Further, I am satisfied that in accordance with the Guidelines, Mr Kendrick only used physical intervention following failed attempts to verbally de-escalate student A’s unsafe behaviour. Therefore, I do not find that Mr Kendrick’s conduct breached the Guidelines and I am unwilling to uphold the disciplinary finding that Allegation One is substantiated.
I understand and accept the decision-maker’s finding that ‘The department’s expectation is that such an incident would have been reported on OneSchool and appropriate action taken against the students involved’. However, Allegation One is not about a failure to report the incident on OneSchool. It is a finding that the physical contact with the student was inappropriate.
If I am wrong on that, and Mr Kendrick’s verbal interventions were not found to be sufficient prior to intervening in the behaviour, and the Guidelines require that a student not just be participating in unsafe behaviour that poses a threat to other students but that the student must announce such an intention and name the person or people they intend to harm, then Mr Kendrick would be in breach of the Guidelines. I find that in the circumstances, where the behaviour of student A was unsafe and posed a risk to student A himself and others in the room, Mr Kendrick had a reasonable excuse for breaching the Guidelines and the allegation is unsubstantiated in any case.

[100]For the reasons given above, the finding that Allegation One is substantiated and gives rise to a ground for discipline was not fair and reasonable and is set aside.

Finding 2

[101]Mr Kendrick states that from time to time, he finds himself needing to take steps to regain the attention of students in a noisy workshop setting. While there may be many more appropriate strategies one may use to gain the attention of a class, there is nothing inherently wrong with hitting a stick, a ruler, or a piece of white plastic drain piping or some other item on a surface at a safe distance from students to make a noise that regains the students’ attention. However, on the occasion in question, the student witness statements are that Mr Kendrick moved himself toward the desk of a student, and hit the desk with such force that the stick or ruler broke, and a piece of it hit a student.
[102]Mr Kendrick says that he has no memory of the events subject of Allegation Two. Mr Kendrick rightly points out that the student witnesses provide different reports about the item he was hitting on the surface to gain the class’s attention. It seems to me that one of the reasons the students may have reported different items being used may be that Mr Kendrick has used different items on occasion in class to hit a surface and gain attention. The witness evidence summarised on page 20 of the Investigation Report makes the classroom environment Mr Kendrick was working in sound very challenging: ‘… The boys in the class made him wild because they would run around playing, swearing at each other and play fighting…’; and ‘When Mr Kendrick was yelling at the boys, he told them to fucking sit down, be quiet and stop running around. Some of the boys sat down, some of them kept running around, swearing at each other’. On page 21 of the Investigation Report, another witness’s summarised evidence included: ‘The students misbehaved for Mr Kendrick in ITD class for many lessons. They yelled out, swore and stood at the door…’; ‘Student [redacted] was acting like a clown in the class and stood up on a chair and yelled. He did not listen to instructions and had taken the student’s attention… Mr Kendrick yelled at [redacted] to sit down, so he sat down but kept talking’.
[103]I have reviewed all of the available evidence regarding Allegation Two. In circumstances where Mr Kendrick admits to employing various techniques to gain student Attention from his teacher desk, and does not appear to deny that one of those techniques is hitting an object on the desk, I find that on the balance of probabilities, it was open to the decision-maker to find that on this occasion, Mr Kendrick had moved from the teacher desk closer to a student who was misbehaving and hit the desk in the vicinity of the student.
[104]In order to make a noise which would gain the class’s attention, I imagine a stick or ruler would have to hit the desk with some force. Even if the stick or ruler did not split or break, or hit the student on his head or elbow, it was open to the decision-maker to find that hitting a ruler or a stick on a student desk while the student was sitting at the desk was a breach of the Standard of Practice and was sufficiently serious to warrant disciplinary action. I accept that students may have found Mr Kendrick’s action concerning. However, I also note that the investigator found that Mr Kendrick’s explanation of his actions was plausible and worthy of belief and acknowledged that he did not intend to cause harm or fear to the students, but rather was trying to get their attention. Regardless of Mr Kendrick’s intention, it was open to the decision-maker to accept the investigator’s finding that the actions were inappropriate and unprofessional, despite there being no malice or intent to cause harm or fear.
[105]It was fair and reasonable for the decision-maker to find that Allegation Two was substantiated and is sufficiently serious to warrant disciplinary action. I note that the investigator suggests that it may be appropriate for Mr Kendrick to consider other ways to gather the attention of students when required. This may be management action which can be considered following the issuing of the new second show cause notice following this appeal.

Finding 3

[106]I understand that Mr Kendrick denies making the comments detailed in the allegation. However, the student evidence overwhelmingly indicated that inappropriate language was employed by Mr Kendrick. This is not a situation where students have only recalled this use of language at the time of the interview, many months after the alleged use of the language during 2019. There is a contemporaneous report of Mr Kendrick using the language and Mr Kendrick states that he has, on occasion, used such language.
[107]For the reasons given above at [76], I do not find that the decision-maker should have dismissed or give little weight to the students’ evidence on the basis of the students’ record of misbehaviour. It was open to the decision-maker to accept the students’ evidence regarding Mr Kendrick’s use of language.
[108]Mr Kendrick admits that he has ‘used the F bomb’ occasionally in class to get a point across. Whether it is because a class is challenging, a teacher is frustrated at student non-compliance, or out of a misguided attempt to build rapport, it is not appropriate to use language such as ‘fuck’ when speaking to or with students. Mr Kendrick submits that it is inherently unlikely that he would use such language openly when knowing that doing so could result in serious disciplinary action. Further, in the investigation interview, Mr Kendrick stated that he would never say the things that it is alleged he said. This submission seems at odds with his admission that he had used such language, apparently deliberately or with forethought, in a challenging classroom.
[109]While I accept that on the balance of probabilities, Mr Kendrick used inappropriate language with students during 2019, I note that a number of the words or phrases listed in the allegation appear to have arisen from the student interviews rather than any complaints or reporting in 2019 (noting that there was at least one contemporaneous report made by a parent of a student by email on 12 November 2019).[20] I am not satisfied that on the balance of probabilities, Mr Kendrick used each and every one of the words or phrases listed in Allegation Three. I accept that the students have recollected inappropriate language being used by Mr Kendrick, but I do not accept that after the long passage of time which elapsed between the alleged use of the language and the investigation interview, that the students have retained a meticulous memory of the actual words used by Mr Kendrick.
[20] Department of Education, Investigation Report (Report, August 2021) attachment 20.
[110]Therefore, I find that Allegation Three is substantiated in part, that is, ‘that throughout 2019, you used inappropriate language in front of students on a number of occasions.’
[111]I find that the partly substantiated allegation still represents a contravention of the Standard of Conduct such that it was sufficiently serious to warrant disciplinary action. I note that Mr Kendrick says that a contravention of the Standard of Practice regarding the use of such language is not sufficient to warrant disciplinary action of termination. This is a matter Mr Kendrick can address when responding to the fresh second show cause notice he will be issued with following the conclusion of this appeal.

Conclusion
[112]As this decision is in relation to the disciplinary findings, I will not make comment on the proposed disciplinary action of termination. It is a matter for the decision-maker to determine if after the setting aside of Allegation One, that Allegation Two and partly substantiated Allegation Three are such that they warrant a proposed termination of Mr Kendrick’s employment or if another form of disciplinary action is to be proposed.
Orders
[113]For the foregoing reasons, I make the following orders:
1.The decision-maker’s disciplinary finding with regard to Allegation One is set aside.
2.The decision-maker’s disciplinary finding with regard to Allegation Two is confirmed.
3.The decision-maker’s disciplinary finding with regard to Allegation Three is upheld in part. Allegation Three is substituted with the following wording: ‘Throughout 2019, you used inappropriate language in front of students on a number of occasions.’
4.That Mr Kendrick be issued with a new disciplinary findings decision and notice to show cause on disciplinary action reflective of the orders made in this decision.

[2023] QIRC 108

12 April 2023