Michael Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn

[2019] FWC 4643

[2019] FWC 4643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Crowley
v
Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn
(U2018/7289)

DEPUTY PRESIDENT DEAN SYDNEY, 10 JULY 2019

Application for an unfair dismissal remedy – allegation of misconduct – misconduct not proved – dismissal harsh, unjust and unreasonable – reinstatement ordered.

[1] Mr Michael Crowley was employed as a teacher at Lumen Christi Catholic College (the College) until he was dismissed on 22 June 2018. He was employed by Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn (the Archdiocese). His dismissal followed an investigation into an allegation of misconduct which resulted in a finding that he had breached his duty of care to students for whom he was responsible.

[2] The Independent Education Union of Australia (IEU) on behalf of Mr Crowley has made an application for a remedy in respect of his alleged unfair dismissal. In terms of remedy, Mr Crowley seeks reinstatement to his former position.

[3] The hearing was conducted over multiple days, commencing on 22 October 2018, and concluding on 5 December 2018. A site inspection was also conducted at Pambula River on the morning of 5 November 2018.

[4] Both parties were granted permission to be represented pursuant to s.596 of the Act. Mr A Howell of Counsel with Ms C Matthews of the IEU appeared for Mr Crowley. Mr K Brotherson of Counsel with Ms S Meier of Minter Ellison appeared for the Archdiocese.

[5] On application of the Archdiocese, I have agreed to ascribe pseudonyms in this decision to the twelve students who gave evidence in these proceedings.

[6] For the reasons set out below, I find that Mr Crowley’s dismissal was unfair and I have decided to reinstate him to his former position.

Background

[7] Mr Crowley was employed by the Archdiocese as a Personal Development, Health and Physical Education (PDHPE) teacher at the College in Pambula, NSW. Mr Crowley had been a teacher at the College for nearly 17 years, having commenced teaching there in February 2002.

[8] Mr Crowley’s employment was subject to the NSW and ACT 2015 Catholic Systemic Schools Enterprise Agreement 2015 (Enterprise Agreement) and Catholic Education’s Guidelines for Professional Conduct in the Protection of Students and Young People (Guidelines).

[9] On 17 November 2017, Mr Crowley conducted a kayaking practical class at the Pambula River involving 13 students from a Year 9 Physical Activity and Sports Studies (PASS) class. The students were aged between 14 and 15 years old. This was the second kayaking practical class of the Term 4 PASS class. The first took place on 9 November 2017.

[10] Mr Crowley was assisted by Mr Hamish Wenczel, a former student of the College and AFL Sports Ready Trainee, who was working at the College. The 13 students and Mr Wenczel were paired in seven 2-person kayaks and Mr Crowley was in a kayak by himself. The exercise commenced with Mr Crowley leading the group across the River from the northern to the southern shore. This occurred without incident. However what happened on the return to the northern shore is the subject of much dispute between the parties. What is not in dispute is that in the course of returning to the northern shore one of the kayaks capsized, followed by others, including Mr Crowley’s kayak. Subsequently, the ambulance and the police were called and attended the scene (the Incident). All students were driven home after the Incident except one who was taken to hospital and diagnosed with a concussion. That student was also sent home after being examined.

[11] The Incident drew a great deal of local attention and became the subject of a report in the local newspaper that afternoon.

[12] Arising from the Incident, an allegation of misconduct was made against Mr Crowley.

[13] The Archdiocese engaged an independent investigator to commence an investigation. As a result of the investigation report and a subsequent review, the Archdiocese drew the conclusion that Mr Crowley had engaged in serious misconduct. Mr Crowley’s employment was terminated by letter dated 22 June 2018. The termination took effect on 25 June 2018 and Mr Crowley received payment in lieu of notice.

The Allegation

[14] The allegation against Mr Crowley was particularised in a letter from Ms Stacey Ozanne, Head of Human Resources of the Catholic Education Office (CEO), as follows:

“Allegation

It is alleged that on 17 October 2017, you did not act in a professional manner or meet your duty of care requirements in regards to your activities with your Year 9 Activity and Sports Studies class at the mouth of the Pambula River.

The particulars of this allegation are that you conducted a field trip with this class as a practical component of their unit of work on water safety using kayaks in open water on the Pambula River estuary and:

1. Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

2. Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

3. Failed to personally wear a helmet and buoyancy vest

4. Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar)

5. Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treatment for hypothermia

6. Allowing students who had not successfully qualified in swimming competency to take part in the activity

7. Failing to follow appropriate CE Policies and Procedures.”

[15] The letter referred to a potential breach by Mr Crowley of section 4 (Professional Duties and Responsibilities) of Part D of the Enterprise Agreement, and the Guidelines. The letter set out the relevant provisions as follows:

“… teachers have an obligation to:

•  be conscious of their special duty of care to the students of the Catholic Archdiocesan school system in all educational activities in and out of school (a);

•  demonstrate the highest standards of professional behaviour, exercise professional judgement and act in a courteous and sensitive manner when interacting with students, parents or caregivers, staff and members of the community (b);

•  comply with reasonable directions given by a supervisor/Principal and adhere to official guidelines concerning the performance of their duties (k); and

•  conduct themselves in such a manner as to protect and enhance the esteem and standing of Catholic education’: see subsection (r).

5.1 Workers are expected to:

i. be aware of the policies and procedures that apply to the work and in the workplace. If workers are uncertain about the scope or content of a policy with which they are required to comply, they should seek clarification from their principal/supervisor/manager

…

iii. undertake duties in a professional, competent and conscientious manner

…

v. be mindful of their duty to the safety of themselves and others

…

vi. be aware that if their conduct has the potential to damage the school’s reputation, even if it is in a private capacity, this could lead to disciplinary action

…

9.2 Workers have a duty to take reasonable care for the safety and welfare of the students in their care. That duty is to consider and take all reasonable action to protect students from known hazards or risk of harm that can be reasonably predicted. The standard of care that is required needs to take into consideration various factors, such as a student’s maturity and ability.”

[16] The letter further advised that a workplace complaints process into the allegation and the circumstances of the Incident had commenced in line with the CEO’s Complaints and Complaints Intake and Management policies and that an external investigator, Mr Bill Jardine of Nemesis Consultancy, had been appointed to conduct an investigation into the matter.

The investigation process

[17] The investigation process was set out in great detail in the witness statement of Ms Ozanne which can be illustrated as follows:

•  Following a concern raised by Mr Steven Centra (the College Principal) and a discussion between Ms Ozanne and Mr Tim Elliott (Head of School Services), it was agreed that Mr Phil Pettit (School Services Officer) would conduct a preliminary fact finding investigation to determine what had occurred and whether there had been compliance with the Archdiocese policies.

•  On 23 November 2017 Mr Pettit produced a ‘Report on Preliminary Investigation’ (the Preliminary Report) after having interviews with students and staff involved.

•  Mr Pettit’s report raised concerns that Mr Crowley had conducted insufficient pre-checks of helmets and buoyancy vests, that he was not wearing a buoyancy vest or helmet himself, that there was insufficient teacher supervision during the activity, that there was inclement weather closing in at the time of the activity, and that a number of students did not have adequate swimming competency to participate in the class.

•  A separate issue was raised by Mr Jon Sleeman (Child Protection Officer) involving a question of a parent whose child was involved in the incident about whether Mr Crowley had appropriate qualifications for water-based activities.

•  On 27 November 2017, Ms Ozanne met with Mr Sleeman and Ms Pru May (Work, Health and Safety Officer) to discuss the Preliminary Report. It was agreed at this meeting that the Archdiocese would engage Nemesis Consultancy, for which Mr Sleeman also worked as a consultant, to undertake a detailed investigation to determine whether Mr Crowley had potentially breached his duty of care obligations. Mr Bill Jardine from Nemesis was engaged to investigate the Incident.

•  As a result of a letter from a parent raising a concern that Mr Crowley had approached students during the weekend, a letter was sent to Mr Crowley on 30 November 2017 informing him that an investigation had commenced and directing him not to speak with students or parents about the Incident.

•  Mr Jardine had interviews with persons involved in the Incident and produced an investigation report on 16 January 2018.

The investigation report

[18] The investigation report was dated 16 January 2018. It comprised some 40 pages in length and included the following sections: Background, Allegations, Investigation Actions, Witness Evidence Summary, Response to Allegations, Witness Evidence Summary (continued), Analysis and Findings.

[19] The investigation report is not summarised here, except to note that Mr Jardine found that each of the seven particulars of the Allegation were sustained.

Preliminary Findings

[20] On 29 January 2018, Mr Crowley was informed by Ms Ozanne in writing that she had made preliminary findings that each of the seven particulars of the Allegation was sustained. Ms Ozanne found that Mr Crowley did not act in a professional manner or meet the duty of care requirements in regard to the activities with the Year 9 PASS class at the mouth of the River on 17 October 2017.

[21] The letter advised that the preliminary findings constituted misconduct, and taking into account the Final Warning issued to him on 22 December 2016 (not related to the Incident), Mr Crowley was given until 5 February 2018 to provide reasons as to why his employment should not be terminated.

[22] The letter also advised Mr Crowley that he would be suspended with pay from Monday 29 January 2018 until final findings were made.

Review Findings

[23] Mr Crowley attended a meeting with an IEU representative on 9 February 2018 and provided a written response. The Archdiocese subsequently engaged Mr Jon Sleeman and Mr Peter Moroney of Nemeses Consulting to conduct an investigation review.

[24] In a letter dated 5 April 2018, Mr Crowley was advised of the review findings, which were set out as follows:

a. Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

i. Prior to the activity occurring, the weather conditions had been a mix of thunder and rain with the rain a combination of a light to heavy down pour.

ii. At some point during the morning, there was lightning. However, it is not clear at what time this was.

iii. On arrival at the location the conditions were overcast with light rain.

iv. The weather conditions deteriorated from the time of arrival and whilst the students undertook the activity.

v. There is consistent evidence that the swells were up to 1.8 metres with an outward flowing fast tide from where the students were engaged in their activity out to sea.

vi. The sea conditions were considered dangerous.

vii. The risk assessment was completed by you in accordance with Catholic Education Procedures.

viii. However, the risk assessment was conducted in 2011 [ie created by CE] and did not adequately take into consideration the weather conditions of the day and immediately prior to the activity or the skill and experience of the group.

ix. The risk assessment did not adequately take into consideration the requirements as outlined in supporting policy and procedures.

x. The risk assessment did not adequately take into consideration the skill and competency of the students and therefore did not appropriately consider the safety of the students.

xi. It was reasonable for you, based on your 17 years of experience to have identified this and adjusted your actions accordingly.

b. Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

i. You failed to provide an adequate safety briefing.

ii. You failed to sufficiently conduct a pre-safety check for all students who participated in the activity.

iii. Some students had ill-fitting helmets or life vests when they undertook the activity.

iv. Based on the conditions of the day at the location, the failure to provide an adequate safety briefing and sufficiently conduct a pre-safety check of equipment placed the students at risk.

c. Failed to personally wear a helmet and buoyancy vest

i. You failed to wear a buoyance vest and helmet which was not consistent with relevant Policies and Procedures.

d. Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar)

i. Current accreditation documentation has subsequently been provided and accepted.

e. Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treated for hypothermia

i. The above actions (before and during the activity) resulted in you recklessly leading students into a wave zone where multiple students were tipped from their kayak.

ii. The failure to ensure the student safety equipment was adequately fitted created a risk for the students should they need to rely on this. The fact the equipment performed as it was meant to does not mitigate this aspect.

iii. The failure to provide an adequate briefing to the students prior to the activity being conducted meant they were not clear on how they were to conduct the activity. This also caused the students to follow you into the wave area which placed their welfare at risk and resulted in several students capsizing and being required to be rescued. If the students had been briefed appropriately this would have likely meant they would not have followed you into this area and by doing so placing their safety at risk.

iv. Your actions to attend this wave and current area placed students at risk and whilst this may have been to assist other students in difficulty (noting this evidence is inconsistent) it placed other students at risk. This could have been avoided by proper instructions being provided to the students as to what they should do if incidents occurred whilst in the water.

v. Given the weather and sea conditions it was reasonable that you would have a higher awareness level regarding student safety given the additional risks to safety this adverse weather caused.

vi. The incident resulted in such concern by students that they contacted emergency services personnel who were dispatched to respond and assist.

f. Allowing students who had not successfully qualified in swimming competency to take part in the activity

i. Further evidence is required by you to make a final determination regarding the assessment process conducted.

g. Failing to follow appropriate CE Policies and Procedures.

i. The following policies have been identified in which you were obliged to follow:

•  Catholic Education Sport and Physical Safety Policy

•  Excursion Policy

ii. These Policies states that the NSW Department of Education and Training Guideline for the Safe Conduct of Sport and Physical Schools should be followed. This Policy includes the relevant Canoeing and Kayaking and Wave Ski Policies which are referred to.

iii. It follows that not complying with any of these policies would not be complying with the CE Policies. It is reasonable to state, that based on the investigation and the review that the actions, discussed above are not in accordance with these policies and according the CE Policies and Procedures.

[25] The findings concluded that Mr Crowley through his actions failed to comply with the relevant provision of the Enterprise Agreement and sections 5.1(iii), (v), (vi) and 9.2 of the Guidelines. Mr Crowley was invited to provide, by 13 April 2018, any reasons why disciplinary action, which might include the termination of his employment, should not be taken.

Reply by Mr Crowley

[26] A detailed reply, including attachments, was provided to Ms Ozanne by Mr Crowley on 8 May 2018. His reply included the following:

“In any event, I am sorry that the students and their parents went through this ordeal. It was never my intention to cause any distress, harm, fear or embarrassment to the relevant students or their parents, the school or the school system.

I realise even though my intentions were positive I contributed in some part due to the communication confusion. I never did anything knowingly wrong. I certainly did not lead students into danger, and those boys paddled in against direct instructions from me and forced me to put my life at risk ...”

Final Findings

[27] On 25 May 2018, Mr Crowley received a ‘Final Findings Letter’ dated 24 May 2018 from Ms Ozanne which contained in extensive detail the particulars of the allegation, the investigation process, the final findings (with 4 out of 7 of the particulars were sustained) and the reasons for findings. The details of reasons for the findings are set out below:

1. Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

Sustained

Reason for finding:

“I accept the findings in the Investigation Report that:

a. Prior to the activity occurring, the weather conditions had been a mix of thunder and rain with the rain being a combination of a light to heavy down pour.

b. At some point during the morning, there was lightning. However, it is not clear at what time this was.

c. On arrival at the location the conditions were overcast with light rain.

d. The weather conditions deteriorated from the time of arrival and whilst the students undertook the activity.

e. The swells were up to 1.8 metres with an outward flowing fast tide from where the students were to be engaged in their activity out to sea.

f. The conditions where the students were to be engaged in their activity of kayaking were dangerous, with a foreseeable risk that students could find themselves swept out to sea.

g. The risk assessment process you undertook on this day did not adequately account for the conditions and risks posed for yourself and students in entering the water.

h. It was reasonable for you, based on your experience, to have identified the risks associated with entering the water, including a potential risk of kayaks subsiding, students being swept out to sea, and potentially drowning and that you should have adjusted your actions accordingly, including by not allowing students to enter the water.

I therefore find that you did conduct the activity at a time of deteriorating weather, tidal run-out and high sea swell without an adequate risk assessment being conducted by yourself in the field at the time or appropriate consideration for the safety of the students.”

2. Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

Sustained
Reason for finding:

“I accept the findings in the Investigation Report that:

a) You failed to provide an adequate safety briefing given the nature of the conditions on the day.

b) You failed to sufficiently conduct a pre-activity safety check for all students who participated in the activity, for yourself and your assistant.

Based on the conditions on the day at the location, your failure to provide an adequate safety briefing resulted in students going into the water inadequately briefed and underprepared to deal with the dangerous conditions that they were entering into. Your failure to provide an adequate briefing to the students prior to the activity being conducted meant that there was confusion when the students entered the water in their kayaks as they were not clear on:

a) how they were to conduct the activity;

b) where (if anywhere) it was safe to kayak;

c) what areas they should avoid; and

d) what to do if they found themselves having trouble in the water.

This failure was particularly marked in the context of some students having inadequate life-saving safety equipment that would have been noticed by you had adequate pre-activity safety checks been undertaken.

A combination of these two factors, and the conditions on the day, placed students at a foreseeable risk of capsizing, being swept out to sea and/or drowning if they fell into the water.

I therefore find that you did fail to conduct a sufficient pre-activity safety check of helmets and buoyancy vests for students, yourself or your assistant and this placed the students at risk of drowning when entering the water on their kayaks.”

3. Failed to personally wear a helmet and buoyancy vest

Not Sustained

4. Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar)

Not Sustained

5. Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treated for hypothermia

Sustained

Reason for finding:

“I accept the findings in the Investigation Report that:

a) Your actions (before and during the activity) including failing to brief the students clearly on how the activity was to be conducted and what to do should any dangerous situations arise resulted in you recklessly leading students into a wave zone where multiple students were tipped from their kayaks.

b) Your failure to ensure student safety equipment was adequately fitted created a risk for the students of drowning. The fact the students did not drown when they capsized their kayaks does not mitigate the risks you exposed the students to, but merely means that the equipment performed as it was intended to, despite the equipment being inadequate.

The failure to provide an adequate briefing meant that some students followed you into the wave area when they should not have, which placed them at an increased risk of capsizing their kayaks, and potentially drowning, given the weather conditions.

This risk was partially realised when several students did, in fact, capsize their kayaks and enter the water, ultimately requiring rescuing to prevent them from drowning. I am satisfied that the risk was sufficiently apparent to those on the beach that given the weather and sea conditions, the students in the water were at such a serious risk of drowning or being swept out to sea that they deemed it necessary to contact emergency services personnel who were dispatched the beach to render assistance.

I am satisfied that had the students in the water been adequately briefed they would not have entered the wave and current area, and your failure to brief them, and your actions in entering the area yourself, placed those students who followed you into the area at a substantially increased risk of drowning that they would not have otherwise have been exposed to.

Given the weather and sea conditions, the special position of trust you are placed in when taking students on these types of field trips and your extensive experience as a physical education teacher, you are expected to have a high level of awareness regarding student safety. In these circumstances it is incumbent on you to mitigate foreseeable risks for students in your care.

It is not unreasonable to expect that you should have taken appropriate action to mitigate the risks in light of the adverse weather conditions on the day by:

a. not allowing the students to enter the water; or

b. by providing an adequate safety briefing and properly ensuring that the relevant pre-activity safety checks had been undertaken.

I find that your failure to mitigate the risks in light of the adverse weather conditions was reckless and/or negligent in the circumstances.

I therefore find that you recklessly led the students into a wave and current area at the mouth of the river that was dangerous, which resulted in several students, as well as yourself, capsizing their kayaks and having to be assisted by other students, police, ambulance and a Lifeguard from the water.”

6. Allowing students who had not successfully qualified in swimming competency to take part in the activity

Not Sustained

7. Failing to follow appropriate CE Policies and Procedures.

Sustained

Reason for finding:

“The investigation report identified the various Policies which as a teacher taking students on a field trip you were obliged to follow. This includes the CE Sport and Physical Safety Policy and the CE Excursion Policy.

I find, that based on the investigation and the review, your failure to:

a) provide an adequate safety briefing;

b) complete the pre-activity safety checks; and

c) leading students into dangerous water

constitute breaches of the requirements set out in the CE Sport and Physical Policy and the CE Excursion Policy.”

[28] The letter went on to advise that given the findings reached, Mr Crowley was found to have breached his professional obligations under the Enterprise Agreement and the Guideline as follows:

“Given the nature of the findings made in relation to the particulars of the Allegation, I am satisfied that your actions on that day demonstrated a failure to comply with the Enterprise Agreement Clause 4(a) and (b), of Annexure D Professional Duties and Responsibilities, and Section 5.1(iii), (v) and (vi) and Section 9 of the Guidelines.

I find that the evidence identified in the investigation identified that you did not through your actions comply with the relevant provisions of the Enterprise Agreement and, in particular, section 9 of the Guidelines and:

a) Failed to meet your duty of care obligations to the students to maintain their safety when conducting this activity by failing to take action to properly assess and mitigate the risks you were exposing the students to, including the risk of drowning, given the sea and weather conditions;

b) Did not demonstrate the highest standard of professional behaviour and exercise appropriate professional judgement by the way you conduct these activities, in particular by allowing students to enter the water at all, or alternatively, by allowing them to enter the water without an adequate briefing or before adequate pre-activity safety checks had been conducted;

c) Did not adhere with the official guidelines in conducting this activity; and

d) Did not by your actions and how the activity was conducted conduct yourself in such a manner as to protect and enhance the esteem and standing of Catholic Education.”

[29] The letter then went on to address the appropriate sanction, which reads:

“In determining an appropriate sanction, I have considered your responses to the Allegation, as well as the documents you have provided to support your contention that your employment should not be terminated.

I have also considered your recent unfortunate circumstances in the Tathra Fire and the loss of your home.

I have considered the term of your employment with Catholic Education and also your previous workplace misconduct matters where allegations against you have been substantiated. In particular, I have noted that on 22 December 2016 you were issued a final warning in relation to your conduct involving a workplace complaints process.

Taking into account these considerations I have determined that:

a. Given my findings in relation to the serious, life threatening risks that you exposed students in your care to on 17 October (sic) 2017, it is appropriate to terminate your employment.

b. However, given your personal circumstances and service to Catholic Education it is appropriate to offer you the opportunity to propose other positions that you are able and suitably qualified to perform for Catholic Education. If a suitable position is identified, and such a position is available to be filled, I am prepared to consider retaining you in employment with Catholic education with all of your accumulated entitlements preserved.

You should note, however, that Catholic Education will not continue to engage you as a Physical Education teacher at Lumen Christi Catholic College and you will not be considered for a role that will require you to supervise students offsite.”

[30] Mr Crowley was invited to propose other employment positions that he could perform for the Archdiocese and was asked to respond by 6 June 2018.

Subsequent events

[31] On 6 June 2018 Mr Crowley provided Ms Ozanne with a medical certificate certifying him unfit to perform his usual occupation.

[32] Around this time, the College had also been provided with a number of letters in support of Mr Crowley by members of the community, including former students, one of whom was a school captain, a former teacher, and the inaugural Chairperson of the College Board.

[33] On 13 June 2018 Ms Ozanne wrote to Mr Crowley giving him one final opportunity to propose an alternative to the proposed sanction of dismissal. In reply, Mr Crowley sought more time to consider the options, and noted the following:

“My home was destroyed as you know in the Tathra Bushfires, I have this precarious situation with my future hanging over my head and to make matters worse my ex partner witnessed and was chased by the perpetrator of the murders in Bega two Friday’s ago, on the eve of our daughters 18 birthday party. We learnt at the weekend that … my daughter now needs a knee reconstruction following an AFL injury. She is about to embark on her HSC exams. My family is in turmoil, requiring my upmost attention and I am certainly not in the right mental state to rationally make any decisions concerning my future at this present time.”

[34] Mr Crowley also sought a reply to an earlier email requesting he be provided with a copy of the transcript of an interview that had been conducted with Mr Wenczel.

[35] Ms Ozanne replied two days later indicating that the process had already been extended in response to his difficult personal circumstances. Because of the impact that further delays would have on the College and its students, no further extensions would be given to Mr Crowley. He was given until close of business the following day to provide a response, after which Ms Ozanne said she would finalise a recommendation that his employment be terminated.

[36] Some further emails were exchanged between Ms Ozanne and Mr Crowley in the following few days. This included an email from Mr Crowley indicating that the College was aware of his skill set and abilities, and requesting that he be able to meet with Mr Centra to discuss alternative positions. Ms Ozanne’s reply was to the effect that Mr Centra would not meet with him to discuss alternative positions, and Mr Crowley should provide her with a proposal of alternative employment if he wanted such a proposal to be considered by the College.

The Termination

[37] By letter dated 22 June 2018 signed by Mr Ross Fox, the Director of the Archdiocese, Mr Crowley was advised that his employment was terminated. The termination letter reads as follows:

Dear Mr Crowley

Termination of your employment

I am writing to advise you of the termination of your employment with Catholic Education.

The background to his matter is set out extensively in the letter to you of 24 May 2018 from Catholic Education’s People and Culture Leader Ms Stacey Ozanne.

By way of summary I note that:

(a) On 17 October 2017 you embarked on a school excursion with your Year 9 Physical Activity and Sports Studies class to the mouth of the Pambula river;

(b) You were advised on 11 December 2017 that it was possible that you had breached your professional obligations under the NSW and ACT 2015 Catholic Systemic Schools Enterprise Agreement 2015 and Catholic Education’s Guidelines for Professional Conduct in the Protection of Students and Young People as it was alleged that you had not acted in a professional manner or met your duty of care requirements in regards to the activities undertaken at the mouth of the Pambula River on 17 October 2017;

(c) You were also advised on 11 December 2017 that an investigation would be undertaken in relation to the allegations;

(d) You were interviewed as part of the investigation process and you were provided with the opportunity to respond to the investigation analysis, a review of the investigation, the People and Culture Leader’s Preliminary Findings and a Show Cause Letter;

(e) The People and Culture Leader concluded that the allegation was substantiated and that given the serious nature of your misconduct, termination was an appropriate sanction.

I note that in making her decision with respect to sanction, in addition to the seriousness of the misconduct, the People and Culture Leader took into account:

(a) Your responses to the allegations as well as documents provided by you;

(b) Your length of service with Catholic Education;

(c) The final warning issued to you in relation to your conduct involving a workplace complaints process; and

(d) Your recent unfortunate circumstances in the Tathra fire and loss of your home.

Notwithstanding the People and Culture Leader’s view on termination as the appropriate sanction, you were provided with the opportunity to propose alternative employment positions that you could perform at in the People and Culture Leader’s letter to you of 24 May 2018.

You did not propose any alternative positions despite being provided with additional time to do so.

In the absence of any further submissions from you with respect to alternative employment positions you could perform, I agree with the position adopted by the People and Culture Leader and endorse her recommendation that it is appropriate to terminate you employment for misconduct.

While I am satisfied that in breaching your duty of care and your professional obligations you engaged in serious misconduct for the purposes of the Fair Work Act 2009, you will still receive a payment in lieu of notice. The termination of your employment effective as of 25 June 2018.

In addition to your payment in lieu of notice, you will be paid any accrued leave entitlements.

You are reminded of your obligation of confidentiality to the organisation which survives the cessation of your employment.

I wish you well in your future endeavours.

Ross Fox

Director

22 June 2018

Evidence in relation to the Allegation

[38] Four of the seven particulars of the Allegation were sustained, and these formed the basis for Mr Crowley’s dismissal. Accordingly, I now deal with the evidence in relation to each particular.

[39] Before I do, it is important to make an observation about the twelve, 14-15 year old students, who gave evidence. They gave their evidence one year after the Incident took place. From the time the first kayak capsized, the subsequent events could reasonably be described as chaotic and frightening for at least most of those involved. For anyone, let alone students of this age, giving evidence can be a daunting and intimidating experience.

[40] In terms of the evidence of the students, Mr Howell made the following submission in relation to the interview conducted by the investigator, Mr Jardine:

“The students are led very heavily and often when an answer is given that appears either to support something which the applicant had said or which appears to not really follow the line in which the investigator was tracing in his leading questions, the investigator either shuts down the questioning or steers if off in a different direction. It is regrettable and the only reason I mention it is it will come to explain why some of the students’ evidence in these proceedings was quite different to what was before the employer.” 1

[41] It is perhaps unsurprising in light of the above that there were inconsistencies in the evidence of the students, including what they initially told the investigator compared to their answers to questions in cross examination. Their recollections of the Incident, or at least parts of it, were at times vague and unclear. This observation should in no way be construed as criticism. On the contrary, I consider they did their best to explain what had happened from their perspectives.

[42] The evidence also involved at least 14 of the witnesses drawing on and marking an aerial map of the mouth of the River. The map was used to demonstrate the route taken from the north to the south side of the River and back again in the kayaks, the location of various sized waves, and who ended up where in the water at various times during the Incident. I will not attempt to describe in this decision the multiple versions of the markings on the map, because to do so in any meaningful way would be almost impossible.

[43] In its final written submissions, the Archdiocese acknowledged that there was a cross over in the factual matrix relating to the Particulars. I have attempted to deal with each of the Particulars separately, however rather than repeat parts of the evidence, certain matters may be dealt with under the heading of one Particular even though it may additionally relate to another.

[44] In making my findings, I have taken into consideration all of the evidence given in the hearing, even if it is not specifically referred to.

Particular 1 - Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students

[45] As set out earlier, it was accepted by the Archdiocese in finding Particular 1 proved that:

a. Prior to the activity occurring, the weather conditions had been a mix of thunder and rain with the rain being a combination of a light to heavy down pour.

b. At some point during the morning, there was lightning. However, it is not clear at what time this was.

c. On arrival at the location the conditions were overcast with light rain.

d. The weather conditions deteriorated from the time of arrival and whilst the students undertook the activity.

e. The swells were up to 1.8 metres with an outward flowing fast tide from where the students were to be engaged in their activity out to sea.

f. The conditions where the students were to be engaged in their activity of kayaking were dangerous, with a foreseeable risk that students could find themselves swept out to sea.

g. The risk assessment process [Mr Crowley] undertook on this day did not adequately account for the conditions and risks posed for [himself] and students in entering the water.

h. It was reasonable for [Mr Crowley], based on [his] experience, to have identified the risks associated with entering the water, including a potential risk of kayaks subsiding, students being swept out to sea, and potentially drowning and that [he] should have adjusted [his] actions accordingly, including by not allowing students to enter the water.

Mr Crowley

[46] In respect of the weather conditions on the afternoon of 17 November 2017, Mr Crowley said:

“At the time we arrived at the River there was light rain. There had been some storm clouds earlier in the day, but the weather had improved by the time of the lesson at 2.20pm and appeared stable. The temperature was around 21 degrees. I checked the weather forecast at lunchtime to see if there was a risk of lightning - there was no risk. I did not consider the possibility of light rain to create a safety issue for students but rather a convenience issue and given the nature of the activity (they were likely to get wet anyway) and the short period of the class (scheduled to be 30 minutes on the water) I did not think the weather was a reason to cancel the class. The previous class had also been conducted in wet conditions and the students had enjoyed it. … We had conducted kayaking classes in wet conditions on a number of occasions over the years.

There was a swell of about 1.8 metres in the ocean, not the river. There are two sand bars across the mouth of the river and the waves and swell were on the ocean side of the sand bars and at the sand bars. There were reform waves/wind chop, which are very small waves (30 to 50cm at the face) that were reforming at the mouth of the river on the enclosed waters side of the sand bars, but there were no waves as such in the River. There was outgoing tide and an onshore wind.

The outgoing tide did not give rise to a strong outgoing current. I did not see a strong current before entering the water, and did not feel any significant current on either the paddle across to the southern bank or on the return to the northern bank on my line.

I did give consideration to whether the weather and river conditions were appropriate and safe prior to the students getting in the water, just as I always have done. I considered the conditions were safe provided students followed me, as I had instructed (basically, so long as they remained away from the wave zone).”

[47] Mr Crowley said that he was very conscious of the strength of the current on the day. He would never have let the students enter the water if he considered that the weather or River conditions were inappropriate for the activity to be undertaken or were unsafe. Mr Crowley claimed that he had done this same activity on this same stretch of River for many years without incident.

[48] Attached to Mr Crowley’s statement was the risk assessment for Term 1 and Term 4 for water sports and his personal checklist he used for the activity.

[49] Mr Crowley said that the risk assessment he used had been in place in the College for some years and had been endorsed by the Principal and PDHPE faculty as a whole. Mr Crowley said that he assumed the risk assessment had been reviewed as part of the whole College reviews that are conduct by Catholic Education (CE) from time to time, including the most recent one in 2015.

[50] Mr Crowley said that the risk assessment refers to ‘Access beach area before commencing activities’ and ‘Assess beach before entering’. He did both on the day, and asserted that anyone who has any experience of the ocean will always make an assessment of conditions when on the beach before going into the water.

[51] Mr Crowley said that his personal checklist was more detailed than the College risk assessment, given the College uses several venues for kayaking.

[52] Mr Crowley said that Mr Wenczel has a surfing background and is very capable in water scenarios, and he felt very confident having him as his assistant.

Mr Wenczel

[53] Mr Wenczel said the conditions looked quite calm. There was a moderate swell out at the sand bar, of 1.5m faces that were breaking on the bar, and the tide was going out.

[54] He said that the sand bar was about 150 to 200m seaward of the small sandy beach where they entered the water on the northern shore. Inside the River mouth there were small reform waves, but were not breaking and only about 50-60cm on their face. The reform waves were approximately 30 to 50m seaward from where they entered the water on the northern shore.

[55] Mr Wenczel said that at the time everyone entered the water, the weather conditions at that time looked fine to him. He said he and Mr Crowley had a brief chat about how they would cross the River and it was agreed that one would take the lead and the other would take the rear to supervise from the back and keep an eye on any stragglers.

[56] He said that had he thought the conditions were not appropriate or safe, he would definitely have said something to Mr Crowley. In his view, there was nothing that indicated to him that the activity would be dangerous.

[57] In terms of the risk and safety aspects, Mr Wenzel said that before entering the water on the day of the Incident, Mr Crowley told the students to fasten the vests and helmets and use the buddy system to check each other. He also gave evidence that he visually inspected the students to see if they had their vests and helmets on properly and he personally checked a few students. He recalled that Mr Crowley did look over the students when everyone was on the beach and before anyone got in the water.

Mr Evans

[58] Mr Evans said that he considered that Mr Crowley had undertaken the risk assessment in accordance with the usual school risk assessment processes and procedures at the time.

[59] Mr Evans in cross examination said he probably wouldn’t have taken students kayaking on the day in question, not because it was unsafe, but because he was ‘a little bit softer than Mr Crowley’ and given it might have rained, he personally did not like being out in the rain. 2

[60] He also said he would not have relied exclusively on the Bureau of Meterology weather report, and would have had gone down to the location (in this case the River mouth) to see what the conditions were like.

Mr Centra

[61] In terms of the risk assessment process, Mr Centra confirmed during cross examination that he knew that kayaking was an activity undertaken at the College. He confirmed that as the Principal, he had overriding responsibility in terms of managing risk within the College, and otherwise he delegated that responsibility to the Head of the relevant department, in this case being Mr Evans.

[62] Mr Centra acknowledged Mr Evans’ evidence that he was satisfied as to the risk assessment process undertaken by Mr Crowley.

[63] In terms of the risk assessment applicable for the activity taking place on the day of the Incident, Mr Centra said that he had not seen the risk assessment prior to the Incident.

[64] When asked whether there were any changes in the management of risk as a result of the Incident, Mr Centra said that there was now a new CE policy covering specific excursions.

The investigators view of the risk assessment process

[65] The investigation report made comments with regard to the risk assessment undertaken by Mr Crowley. In particular, it was said:

“The static risk assessment was conducted for the activity in 2011. This is all that was required for Mr Crowley to be followed. The risks that were considered were reasonable risks to be considered, but do not accurately permit for the appropriate risk at the actual location the activity was to occur. By today’s standards, it is reasonable to conclude this is not a risk assessment, but a document prepared for use in briefing student about areas which are relevant to consider and which risks to student safety could arise. This appears to be useful document but … does not suffice as a risk assessment.

Whilst this demonstrated an attempt at a risk based approach, clearly an appropriate risk assessment requires initial consideration whether an activity should be conducted prior to determining how the risks are addressed. The risk based approach must take into considerations the relevant factors relating to the location the activity is to occur. For an outdoor activity such as kayaking it would be appropriate to include weather and sea conditions on the day of the activity and at the particular location.

There has been no definitive evidence identified to demonstrate that Mr Crowley did or did not conduct a risk assessment on the day of the incident given the use of a static assessment…

There does not appear to be any requirement within the school to make a note of relevant considerations prior to conducting a specific activity which would provide evidence on both the conduct of and factors considered in a risk assessment.

The CE Risk Management Policy states that there is a requirement to follow an approach, though it is noted that it is not specific to the actual water activity with regard to the relevant time, date and place of the activity, but it did consider general factors.

Equally, it does not indicate specifics of assessment that were conducted to adequately determine the weather and river conditions at the time of the activity to appropriately conduct the activity. Consideration is needed to update this policy to be in line with current risk management practices.

Catholic Education has a risk assessment framework which is utilised. It is noted the investigation identified that the School had an Excursion Risk Management Proforma which was used for this activity. The analysis has identified that whilst it identifies five possible hazards it does not identify any hazards which relate to weather and water conditions. Instead it identifies hazards such as drowning without referring to these risk areas.

It is reasonable to conclude that an appropriate assessment should have also considered the weather-based issues, and other issues that may propose a risk specific to the actual location the activity was being undertaken at.

The risk assessment conducted by Mr Crowley, whilst in accordance with current Catholic Education policy and guidelines, when considered in context with the other stated requirements as per other policies was not appropriate in the circumstances.

The assessment, whilst completed in accordance with policy, was completed in 2011. This risk assessment failed to take into consideration factors such as the physical location and the weather. It would have been reasonable for such factors such as the physical location and the weather (sic). It would have been reasonable for such factors to have been considered over and above the static assessment, completed some 7 years previously. There is a contributing factor based on current Catholic Education policy that requires amendment to avoid this in the future.

(Noting Mr Crowley’s evidence that all activities at the College require a risk assessment as per the Archdiocese rules, which was signed off by the Principal and have been used as a guide in the lessons. Few staff at the College had taken part in Risk Assessment training.)”

Evidence of the students

Student A

[66] Student A said that the weather was overcast and it looked like it was going to rain and storm. She was worried about the waves and the swell. She was ‘a bit concerned’ that they were still going out.

[67] She said: “When we arrived at the river mouth, I remember looking at the ocean and thinking it looked quite rough and had a big swell. The river looked pretty flat. I was feeling quite uneasy. I was worried about falling off my kayak as I had not kayaked before. I thought I might get swept out to sea. I did not say this to anyone.”

Student B

[68] Student B said that she checked the weather forecast in the morning and noticed that rain and wind was expected. She complained to her parents that she did not want to go kayaking because of the poor conditions.

[69] She was reluctant to go out kayaking because she was worried that they had not learnt how to kayak properly. She was concerned about attempting to kayak when it was raining.

[70] It rained on and off throughout that morning. At the end of lunch they went down to meet Mr Crowley for the class and some students asked him if they were still going kayaking due to the rain. Mr Crowley said in response ‘you’re going to get wet anyway in the water so the rain doesn’t matter’.

[71] Three students asked if they could stay at school instead of going kayaking. Mr Crowely told them that if they brought their gear they had to go. She felt annoyed at this as she did not think the weather conditions were appropriate for kayaking.

[72] In cross examination, Student B said it was not until they were out of the water that she heard thunder.

Student C

[73] Student C said that it was raining, freezing and windy. She saw Mr Crowley at lunch time and asked ‘are we still going to go kayaking?’ and Mr Crowley said: ‘yes because it’s not lightning we’ll be right’.

[74] She said she thought it was terrible weather when they got to the beach. It was raining although not heavily.

Student D

[75] Student D said the weather was cloudy and it was raining. He did not recall if it was raining when they got on the bus but it was still overcast.

Student E

[76] Student E said the weather was cloudy and windy in the morning, however it did not rain heavily apart from a sprinkle from time to time.

[77] He recalled that when they arrived at the River mouth the conditions on the water were ‘crap’. He could not recall anything else about the weather conditions when they arrived.

Student F

[78] Student F said weather was cloudy. There were showers on and off all day. Some were heavy, some were fairly light.

[79] He said the class met at the court yard prior to going to the River. He did not recall exactly what was said at the beginning of the lesson but each teacher at school including Mr Crowley would usually explain at the beginning what they were doing that lesson. He said that ‘Mr Crowley would have told us we were going kayaking at the Pambula river mouth’.

[80] He said he was surprised that they were going kayaking that day as he had done an online weather check about the tides in Pambula. He recalled thinking it was a pretty big swell and thinking they would probably not be going kayaking because of the rainy weather.

Student G

[81] Student G gave evidence that the weather was overcast and cold. He did not remember if it was raining.

[82] He recalled that Mr Crowley said something about Pambula Beach being ‘messy’ with big waves, and told the students they were going to the River mouth.

[83] Student G said he was a surfer and he checked the weather for the day. He recalled thinking it was good for surfing but not for kayaking.

[84] When they arrived at the River mouth, the weather was still overcast and cold. He complained to Mr Crowley that it was going to be cold, so Mr Crowley gave him a wetsuit.

Student H

[85] Student H’s evidence was that it was overcast in the morning and there had been quite a few showers. He did not recall what the weather was like for the whole morning. He recalled thinking that they would not be going kayaking because of bad weather.

[86] He and another student asked Mr Crowley at the end of lunch whether they could play basketball instead as they did not want to go kayaking because of the weather. Mr Crowley said ‘it doesn’t matter, we’re going kayaking’. The other student told Mr Crowley he did not have his swimmers and was then asked to stay and do theory.

[87] When they arrived the River, Student H said the water looked like it was moving quickly out to sea although he could not see any waves in the River. The weather was cloudy but there was no rain at that stage.

Student I

[88] Student I said the weather that morning was ‘pretty overcast’. It was spitting but not quite raining. He remembered thinking the practical lesson would be cancelled because of the weather.

Student J

[89] Student J said the weather was rainy. He did not take his board shorts to school because he thought the weather was bad and he also did not want to go out on the water. He recalled talking to other boys that morning and were talking about the weather and saying that the PASS class might be cancelled.

Student K

[90] Student K said the weather was overcast and windy. There was heavy rain in the morning but he did not recall if it was raining at lunch time. In any event he did not get wet.

[91] When they arrived the River mouth, there was light and spitting rain.

Student L

[92] Student L said was cloudy and it rained heavily on and off throughout the morning. When they were in the bus the weather was drizzling and there were dark clouds.

[93] When they arrived the River mouth it was freezing cold outside and the wind was picking up again. He said Student K said to Mr Crowley that ‘it’s too cold’ to which Mr Crowley replied with words to the effect of ‘harden up’.

[94] He recalled a few people complaining about the weather.

[95] When they arrived at the River, he recalled thinking it would be pretty good and sheltered. He could see the River itself was pretty flat. The mouth of the River looked pretty choppy and not very good for a kayak. The weather was windy and overcast. It was spitting rain.

Particular 2 - Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant

[96] In accepting the findings of the investigation report in relation to Particular 2, the Archdiocese was satisfied that Mr Crowley:

a. failed to provide an adequate safety briefing given the nature of the conditions on the day; and

b. failed to sufficiently conduct a pre-activity safety check for all students who participated in the activity, for himself and his assistant.

[97] The reasons for this finding were that:

“Based on the conditions on the day at the location, [Mr Crowley’s] failure to provide an adequate safety briefing resulted in students going into the water inadequately briefed and underprepared to deal with the dangerous conditions that they were entering into. [His] failure to provide an adequate briefing to the students prior to the activity being conducted meant that there was confusion when the students entered the water in their kayaks as they were not clear on:

e) how they were to conduct the activity;

f) where (if anywhere) it was safe to kayak;

g) what areas they should avoid; and

h) what to do if they found themselves having trouble in the water.

This failure was particularly marked in the context of some students having inadequate life-saving safety equipment that would have been noticed by [him] had adequate pre-activity safety checks been undertaken. A combination of these two factors, and the conditions on the day, placed students at a foreseeable risk of capsizing, being swept out to sea and/or drowning if they fell into the water.”

Mr Crowley

[98] According to Mr Crowley, he had given a detailed explanation the previous week about how to fit buoyancy vests and helmets.

[99] On the day of the Incident, before the students changed into their swimwear and put on their buoyancy vests and helmets, he did a brief run through on the need for the vests and helmets to be a snug fit to ensure comfort and safety. He told students who had been absent the previous week to check with their buddy about how to fit their buoyancy vest and helmet and to ask him if they were not sure.

[100] Mr Crowley said he and Mr Wenczel checked a number of students and that all students were wearing properly fitted vests and helmets. He explained that a ‘buddy system’ is used in all water sports at the College, which contemplates all students be accompanied by a buddy in the water and they all check each other’s equipment before entering the water and assist in adjusting it.

[101] He said that the safety gear that the College had purchased was all easy to adjust. The helmets have dial up head cradles (like bike helmets children typically wear from a young age), and the students only needed to adjust their chin strap for comfort. The vests are similar with pull tag mechanisms, and did not involve any complex tying of knots or the like.

[102] He and Mr Wenczel each wore wetsuits as a buoyancy aid rather than vests, because it is easier to rescue a student wearing a wetsuit rather than a vest. They did not wear a helmet as a helmet is not required on flat water which is what they planned to do. Mr Crowley said that he ensured students wear helmets and vests at all venues for added safety.

Mr Wenczel

[103] Mr Wenczel recalled that at the first kayaking class, Mr Crowley told the students how to fit their vests and helmets. He demonstrated how to fit the vest, how to make sure the vest was tight and secure, and he did the same with the helmets. He also explained how the buddy system worked and what was expected. He believed the students were also trained on how to use and fit the life jacket and helmet in Term 1, where they studied a range of water safety equipment. However he understood the students didn’t use them regularly in Term 1 because the instruction was more directed to general surf lifesaving and water safety.

[104] On 17 November 2017 Mr Crowley told the students to fasten the vests and helmets, and to use the buddy system to check each other. He looked around to see if they were done up properly. Mr Wenczel personally checked a couple of students. He recalled that Mr Crowley visually inspected the students when they were on the beach and before anyone got in the water.

Evidence of the students

Student A

[105] Student A did not participate the first lesson but observed from the beach. She recalled Mr Crowley explaining some procedures with the life jackets and helmets but she did not recall any more details about this.

[106] In her witness statement, she said she did not recall her life jacket and helmet being fitted, they just put them on and off they went. No one checked the fit on her life jacket or the fit of her helmet. She did not recall Mr Crowley say anything about how to fit the life jackets or helmets.

[107] In cross examination, she accepted she heard Mr Crowley say something like “make sure they’re tight” in relation to the life jackets.

Student B

[108] In the first practical lesson Student B said that Mr Crowley had shown the class how to fit safety equipment, including how to fit life jackets and tighten the straps.

[109] In her statement, Student B said no one checked if they had put on their life jackets and helmets correctly.

[110] In cross examination, Student B agreed that the buddy system was used to check life jackets. She agreed that Mr Crowley had said words to the effect of “grab your life jackets and helmets and put them on, make sure that they are done up tight, get your buddy to check and if you’re not sure, come and speak to me”. 3

[111] She confirmed she had been taught by Mr Crowley to check the life jacket ‘was done up properly by pulling it to see if it would come up and hit you in the chin’ during the first kayaking lesson the week before. Student B confirmed that the helmets were very similar to a bike helmet, and she knew it needed to be tight to stay on. She said she knew how to tighten it. 4

Student C

[112] Student C said that the first kayak lesson was on Pambula Beach. She forgot her swimmers but still went to observe. Mr Crowley taught the class how to tighten up the life jackets and helmets. On the water, Mr Crowley showed people how to turn in their kayaks and how to paddle. She could not hear exactly what was said as they were too far away. Mr Crowley had also shown students how to get back on to the kayak if they fell off, and how to sit backwards on the kayak when there is a wave breaking behind them so they did not fall off.

[113] She said that on the day of the Incident, Mr Crowley said: “Once you have your life jacket, get your friend to check it.” He then said: “put your helmets on and tighten them up”. She paired with Student B and she checked her life jacket (ie. the buddy check).

Student D

[114] Student D said Mr Crowley helped a few people with their life jackets. He saw a student go up to where Mr Crowley was standing and asked him to check it for them. He believed Mr Crowley checked everyone’s life jackets and helmets but he did not know what he did to check them.

[115] He agreed that prior to entering the water, Mr Crowley said something to the effect that they should ‘follow Hamish [Wenczel] to the other shore. We’re not going near the waves’. 5

Student E

[116] Student E said Mr Crowley and Mr Wenczel looked over the group to generally make sure everyone had put on their life jackets and helmets correctly and pulled the straps to secure them. Mr Crowley checked Student E’s life jacket to see if it was loose.

[117] In cross examination Student E confirmed that Mr Crowley looked over everyone to check their helmets and vests, which was his usual practice when doing water sports. 6

[118] Student E also agreed that in terms of instruction, Mr Crowley gave an instruction to follow Mr Wenczel across the River, and said they were not going near the waves and pointed towards the shore on the other side. 7

Student F

[119] Student F in his witness statement said he did not recall if Mr Crowley had spoken to the class about the safety equipment. He had not used the life jacket before as he did not attend the first lesson.

[120] He recalled Mr Crowley telling them to do a buddy check.

[121] In cross examination, Student F agreed that Mr Crowley said words to the effect of “grab the helmets and life jackets, put them on, tighten them up, get your buddy to check it. If you’ve got any questions come and talk to me or Hamish”. 8

[122] In terms of the briefing given by Mr Crowley, Student F agreed that Mr Crowley said something to the effect of “follow Hamish off to the other shore. We’re not going where the waves are”. 9

Student G

[123] Student G said Mr Crowley had shown the students how to wear the life jacket and helmet at the start of the school term. He was paired with Student I and did a buddy check to see if the life jackets were tight.

[124] He agreed that Mr Crowley said words ‘Grab your helmets and life jackets. Whack them on. Make sure they’re tight. Check with your buddy. If you’re not sure, come and check with me or Hamish’. 10

[125] In terms of a briefing, Student G confirmed in cross examination that Mr Crowley said words to the effect of “follow Hamish [Wenczel] to the other shore. We’re not going into the wave zone”. 11

Student H

[126] Student H said Mr Crowley gave no instructions on how to put on the life jacket and helmet. He did not remember Mr Crowley checking to see if his life jacket was put on properly.

[127] In cross examination, Student H agreed that Mr Crowley told everyone to do their buddy check with respect to the life jacket and helmet, but did not recall him telling the students to ensure they were “nice and tight”. He agreed he knew he could have asked Mr Crowley if he was unsure of what to do. 12

Student I

[128] Student I said Mr Crowley taught students in the first lesson how to fasten the life jackets and to have their helmets on securely. There were two sizes of the life jackets, and Mr Crowley told them to put the larger life jackets on the bigger people.

[129] On 17 November, he saw Mr Crowley helping Student K with his life jacket. He did not recall him saying anything about life jackets or helmets, other than they needed to be tight and the right size.

[130] In cross examination, Student I agreed that Mr Crowley said words to the effect of ‘put on your helmets and life jackets, make sure they’re nice and tight, check with your buddy. If you’re not sure, come and talk to me and Hamish’. 13

[131] In terms of the instruction given by Mr Crowley, Student I said he only vaguely remembered Mr Crowley saying they were to follow Mr Wenczel to the other side and that they were not to go into the wave zone. 14

Student J

[132] Student J said he did not recall having participated in any practical kayaking lessons before 17 November. He did not recall doing any theory lessons on kayaking.

[133] On 17 November, he put on a life jacket and helmet. Student F checked his life jacket and tightened the straps. He checked Student F’s and tightened the straps on his life jacket although he did not really know how to check, or what he was checking for.

[134] He said: “[Student F] is my best friend, but I was not in a pair with [Student F]. No one else in the class wanted to pair up with me because I cannot really swim and am not good in the water. I ended up in a pair with [Student K].”

Student K

[135] Student K said Mr Crowley had told them that they had to wear life jackets and helmets so that if they got hit by a kayak they would not get knocked out. The buddies in the class would check to see if they had them on the right way.

[136] He paired with Student J. He and Student J checked their life jackets and helmets, and he did not recall that anyone else checked them.

[137] During cross examination he said he understood ‘check’ to mean ‘going over your body to see if everything’s tight and not falling – not going to fall off in the water’. He went on to agree that it was Mr Crowley who had taught him to pull up the life jacket to see if it moved and whether it might go over his head. 15

Student L

[138] Student L said Mr Crowley taught the class how to tighten the life jackets and helmets in the first lesson.

[139] On 17 November, Mr Crowley did not say anything else about the gear, or check to see if he had put his on properly. He got Student P to tighten his helmet because it was loose.

[140] In cross examination, Student L said students were given a copy of a document called ‘Crowley Kayak Risk Checklist’ 16 the first time they went kayaking as part of the PASS class. He said they were told to ‘have a good read of this’ by Mr Crowley.17

[141] Student L also explained what had occurred in the first kayaking lesson the week earlier at Pambula Beach, saying: “[Mr Crowley] paddled out first and then, like, told us what to do; how to get in the kayak, how to drag it into the water properly. Then he paddled out and then we paddled out around him and back in, and then we did another exercise out there where, like, we would all connect as one big, like, raft and, like, paddle around in a circle”. He also agreed that they practiced capsizing. He said that not all students were in attendance that day. 18

[142] Student L agreed in cross examination that Mr Crowley said words to the effect of ‘grab your helmets and life jackets. Make sure they’re tight. Get your buddy to check. If you’re not sure what you’re doing, come and talk to me or Hamish’. 19

Particular 5 - Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treated for hypothermia

[143] The findings accepted by the Archdiocese from the investigation report in relation to Particular 5 were that Mr Crowley’s actions (before and during the activity) including failing to brief the students clearly on how the activity was to be conducted and what to do should any dangerous situations arise, resulted in Mr Crowley recklessly leading students into a wave zone where multiple students were tipped from their kayaks. Further, Mr Crowley’s failure to ensure student safety equipment was adequately fitted created a risk for the students of drowning. The fact the students did not drown when they capsized their kayaks did not mitigate the risks Mr Crowley exposed the students to, but merely means that the equipment performed as it was intended to, despite the equipment being inadequate.

[144] The details of Particular 5 went on to find that:

“It is not unreasonable to expect that you should have taken appropriate action to mitigate the risks in light of the adverse weather conditions on the day by:

a. not allowing the students to enter the water; or

b. by providing an adequate safety briefing and properly ensuring that the relevant pre-activity safety checks had been undertaken.

I find that your failure to mitigate the risks in light of the adverse weather conditions was reckless and/or negligent in the circumstances”.

Paddling across river from northern shore to southern shore

Mr Crowley

[145] Mr Crowley said the class started with a warm-up paddle across to the southern shore of the River. He was in a kayak himself. Mr Wenczel was in a kayak with a student, and the remaining 12 students were in six kayaks with two students in each.

[146] Prior to heading from the northern to the southern shore he instructed the students in words to the effect of ‘follow Hamish to the other shore’ and ‘we are not going in the wave zone’. Mr Wenczel was in the lead across the River. Mr Crowley stayed at the back and observed how the students were going.

[147] Everyone reached the southern shore without any difficulty. There was no material outgoing current. It took a short time (5 to 8 minutes) for everyone to cross. On the line everyone took across the river, there was at least 25 metres between the group and the small reform waves towards the mouth of the river (ie, it was about 150 to 180 meters to the sand bars and the much larger waves he referred to earlier). He was looking for a mild current to execute a ferry glide. He decided to cross back to the northern shore as there was no current near the southern shore. He had hoped to find a mild current there as he had in previous years, but because of sand deposition, the channel had changed.

Mr Wenczel

[148] Mr Wenczel’s evidence was that before anyone got in a kayak, Mr Crowley addressed the group whilst everyone was on the beach saying words to the effect of ‘follow me, we are heading across to the southern side’ and he pointed across the river. At that time the river appeared pretty calm. The tide was pretty low and was running out. It was overcast but there was no rain and there was an onshore breeze. The weather conditions at that time looked fine to Mr Wenczel.

[149] Mr Crowley had a brief conversation with him about how the group would cross the River. It was agreed Mr Crowley was to take the front and he was to take the rear to supervise from the back and keep an eye on any stragglers.

[150] There was no issue paddling across the River. There was no current that he noticed. It took around 5 minutes to cross to the southern shore.

[151] The water was very shallow on the southern shore. Mr Wenczel could not recall whether anyone else got out of their kayak. He stepped out briefly before headed back across.

[152] In an email to Mr Sleeman on 24 May 2018, which was later forwarded to Ms Ozanne on the same day 20, Mr Wenczel wrote:

“Whilst the interviews and subsequent transcripts of the interview I had with Mr Jardine are quite extensive, there are a few key points I should reiterate regarding the events at Pambula Rivermouth in late 2017.

1. Mike Crowley’s intention was to never enter the ‘wave zone’ and was always to stay within the confines of flat water.

2. The river mouth is generally a safe area to conduct water activities, the school has used the area for years, unfortunately on the day conditions changed quickly.

3. There were some students who ventured into an area which they were not instructed, in an attempt to catch waves.

4. All children made it back to shore with the help of myself and Mike, before any assistance from emergency services/SLSC members.

I hope the information I’ve provided to Mr Jardine is considered through the decision making process. The points I have made here may assist you further, however I feel that you will have ample information at this stage to refer to throughout your processes.

All the best,

Hamish”.

Evidence of the students

Student A

[153] Student A said that she did not recall Mr Crowley say anything about where they were going. 21 She recalled Mr Crowley pointing across the River.22

[154] She shared the kayak with Mr Wenczel. They kayaked over to the little sandy bank on the southern side of the River. Their kayak was towards the front of the group as they headed across the River. They made it to the other side of the River and were waiting for the other students to catch up. She got out of the kayak into the shallow water. It was about ankle deep.

[155] In cross examination she confirmed the paddle over was ‘pretty quick’ and relatively easy with no significant waves of any kind, nor any significant current pulling her anywhere 23.

Student B

[156] Student B said Mr Crowley instructed them to paddle directly across the River to the beach on the other side. Mr Crowley did not specify if there were any areas they should not go to.

[157] She got in the kayak with Student C and started paddling across the river to the beach on the southern side of the River. They got to the other side and stayed in their kayak.

[158] Student B confirmed in cross examination that the paddle from the northern to the southern shore was easy, with no noticeable current.

Student C

[159] Student C said Mr Crowley told everyone to paddle across to the opposite side of the River. He did not say anything else about where they should or should not go in their kayaks.

[160] She and Student B got in their kayak and paddled across to the other side of the River. When they were paddling she saw that other students had already made it to the other side and stood around on the beach waiting others to arrive. After Students B and C arrived on the southern shore, they sat in their kayak in the water just off the beach.

Student D

[161] Student D said Mr Crowley told them to go to the sand back on the other side of the River. He said words to the effect of ‘go to the other side’, and he said this to the whole class. Student D did not recall Mr Crowley telling them anything about where they should or should not go in their kayaks.

[162] The weather looked stormy at that point. The water was calm where they were on the River but he could see ‘pretty big waves’ at the River mouth. He estimated these waves would have been approximately head height. The current was going out towards the sea.

[163] When Student D headed across the River, Mr Crowley was behind them. He and Students H, F and E got to the southern bank first and they pulled their kayaks onto the sand.

Student E

[164] Student E said Mr Crowley gave instructions for everyone in the class to paddle directly across the River to a beach on the other side. Mr Crowley said he would then signal to us to follow him. He could not recall whether Mr Crowley gave any further instructions to the class or told them where or where not to paddle. Student E said Mr Crowley did not say anything to the class about the waves.

[165] He and Student F paddled across the River to the beach as instructed by Mr Crowley. A kayak shared by Student D and H followed them to the southern bank.

[166] In cross examination, Student E agreed that Mr Crowley called out to the group, ‘Follow Hamish to the other shore.  We're not going to go in the wave zone.’ 24

Student F

[167] Student F gave evidence that Mr Crowley told the class they were going to head over to the other side of the River and pointed to the opposite bank.

[168] In cross examination, Student F agreed that Mr Crowley said something to the effect of ‘Follow Hamish off to the other shore.  We're not going where the waves are.’ 25

[169] He said he was ‘pretty sure’ that Mr Crowley had mentioned a particular kayaking technique during the course but he had no idea what it was. 26

[170] Student F said that the paddle from the northern to the southern shore was easy, with no waves and no noticeable current.

[171] He and Student E were one of the first kayaks across the River. They got to the shallow water on the southern bank. He got out of the kayak and pulled it on the sand to wait for everyone else to get there. He recalled that Student D and H were the other pair who also got out of the kayak. Mr Crowley stopped along his way across to see how everyone was going.

[537] Those students who did follow Mr Crowley’s instruction to ‘follow me’ and stay on his line did not encounter any difficulty while kayaking.

[538] It was the students who did not follow the instruction and instead decided to ‘catch some waves’ that subsequently got into difficulty.

[539] I am satisfied Mr Crowley reached the northern shore (from the southern shore) without entering the wave area. He stopped in shallow water approximately 5-8 meters from the shore line and was not in a current.

[540] Before Mr Crowley left the northern shore to render assistance to those who had deviated off his line and into the wave zone, Mr Wenczel heard Mr Crowley say words to the effect of ‘everyone go to shore’. Given Mr Wenczel was at the rear of the group and heard the instruction to go to shore, it is reasonable to infer that those student who had followed Mr Crowley and had arrived at the northern shore also heard this instruction. Some of these students subsequently decided to assist their classmates who were in the wave area. While their decision to do this was no doubt made with the best of intentions, it remains that they disregarded an instruction from Mr Crowley to go to the shore. It is understandable in the chaos that unfolded that some students may have felt it was more important to assist their classmates, however the fact remains that Mr Crowley issued an instruction that was not followed.

[541] At least six students gave evidence that they were aware of the swell and wave conditions and indicated concern about the conditions for kayaking. In doing so, they showed an awareness and knowledge of the risk of venturing into the wave area. Despite this, some of the students who expressed these concerns were those who deviated into the wave area.

[542] Seven students recalled Mr Crowley saying words to the effect that ‘we are not going in the wave zone’. Another student who did not recall these words, did say that ‘the boys knew not to go into the waves because it was common sense not to paddle out into the bigger waves’.

[543] I am satisfied on the evidence that the students were clear as to the instruction to follow Mr Crowley. I am also satisfied that some of the students deliberately disregarded the instruction and decided instead to ‘catch some waves’. Given the evidence of the majority of the students as to their concerns around the weather and the size of the swell in the vicinity of where the River meets the open ocean, it is difficult to see why any student would have thought it a sensible idea to disregard the instruction. I am satisfied on the evidence that had they followed Mr Crowley, the events that unfolded would not have occurred.

[544] That Mr Crowley had his back to the group when travelling from the southern to the northern shore was reasonable in the circumstances, those being that he had a second supervisor (Mr Wenczel) with him who was endorsed by the College and who was maintaining a position at the rear of the group. I do not accept that this amounted to Mr Crowley failing to be vigilant and not providing constant supervision.

[545] I do not accept the argument that ‘students push boundaries’ as being one which supports a finding of misconduct on the part of Mr Crowley.

[546] There is an inherent risk in water sports. The school and parents accept a level of residual risk when allowing students to engage in this type of activity. This is not to say that all reasonable steps should not be taken to minimise risks – of course this should occur. However, it is not sustainable on the evidence to find that Mr Crowley was reckless. He took reasonable care in the circumstances for the safety of the students in his care.

Particular 4

[547] Given my findings above in relation to Particulars 1 to 3, I am not satisfied that Mr Crowley breached the relevant provisions of the Enterprise Agreement or Guidelines.

Other matters

[548] It is appropriate and responsible for the Archdiocese, in light of the Incident, to have reviewed its policies and procedures to minimise the risk of such events occurring again. I agree with the sentiment of the investigator in his confidential briefing note that the policies applicable at the time of the Incident were lacking, such as to require a full review. Given no action was taken by the Archdiocese against Mr Centra, who had ultimate responsibility for risk management within the College, it is difficult to see how a finding of misconduct could be sustained against Mr Crowley.

[549] As is evident from the evidence of Mr Centra, the response of the College to the Incident was at least in part driven by what might be described as desire to placate some of the parents of the students involved. For example, one parent took it upon herself to make enquiries of Tathra Surf Life Saving Club as to whether Mr Crowley held the qualification of Bronze Medallion in respect of Surf lifesaving. She sent detailed emails and other correspondence as to what she wanted the College to do in respect of the Incident, including making recommendations about matters such as when wetsuits ought be used by students. The need to manage parents or other stakeholders is not in itself a reason to dismiss a teacher.

[550] In making her decision to dismiss Mr Crowley, Ms Ozanne relied in part on the fact that Mr Crowley had not apologised to parents and students. However this ignores the fact that Mr Crowley had been instructed not to talk to parents and students, making an apology effectively impossible.

[551] Ms Ozanne, by her own admission, had no regard for the letters of support submitted to CE on behalf of Mr Crowley. I consider the letters ought to have been given some weight before a decision was made to dismiss him, particularly given his length of service with the College.

[552] The evidence also supports a finding that Mr Crowley was a highly regarded teacher by his PDHPE teaching colleagues and by a number of former students.

[553] Mr Crowley accepted that he ought to have conducted a more thorough briefing, and there was a communication breakdown at the time he went to assist students who had capsized. I agree. However his instructions, as I have already found, were adequate. Instructions such as ‘follow me’ and ‘stay out of the wave area’ are clear and unambiguous. While with the benefit of hindsight he should have done things differently, his role in the Incident was not sufficient to warrant a finding of misconduct such as to justify his dismissal.

[554] In relation to the Final Warning, I agree with the submissions on behalf of Mr Crowley that his role in the Incident was not exaggerated by the existence of the Final Warning. The Final Warning was of a different character to the Incident and could not reasonably be relied upon to validate his dismissal.

[555] Having considered the evidence and submissions before the Commission, I am not satisfied there was a valid reason to dismiss Mr Crowley relating to his conduct.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[556] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,¹²⁸ in explicit terms¹²⁹ and in plain and clear terms.¹³⁰ In Crozier v Palazzo Corporation Pty Ltd¹³¹ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”¹³²

[557] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹³³

[558] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Crowley before his dismissal was effected.

[559] There is no dispute and it is clear in the evidence that Mr Crowley was notified of a reason for his dismissal relating to his conduct and was given an opportunity to respond.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[560] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[561] There is no dispute that Mr Crowley was provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[562] Mr Crowley was not dismissed for unsatisfactory performance and this consideration is therefore neutral.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[563] I am satisfied that the size of the Archdiocese and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and this consideration is neutral.

Other relevant matters - s.387(h)

[564] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[565] I have taken account of the seriousness of the Incident and its impact on the students, along with Mr Crowley’s employment history.

[566] I do not consider that these matters are sufficiently persuasive as to warrant a finding that, on balance, the dismissal was fair.

Conclusion

[567] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Crowley was harsh, unjust and unreasonable. Accordingly, I find Mr Crowley’s dismissal was unfair.

Remedy

[568] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.

(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[569] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied Mr Crowley was protected from unfair dismissal pursuant to s.382 of the Act and that he was dismissed unfairly. Accordingly, I am required to determine whether to order reinstatement or, in circumstances where reinstatement is inappropriate, to order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[570] The Archdiocese argued strongly that reinstatement was not appropriate because of:

a. a history of incidents in addition to the Final Warning and the Incident, in which Mr Crowley was involved;

b. Mr Crowley’s lack of acceptance of errors and willingness to accept responsibility; and

c. his expressed attitude to Mr Centra, parents and students.

[571] Mr Centra’s evidence was that it may be difficult to manage Mr Crowley, and that he had to manage a range of relationships with stakeholders including staff, parents and students in accordance with the values of Catholic education. It was submitted that that was a challenging role and ‘one which inevitably on occasion may require compromise’. He said he does not want Mr Crowley to return to the College as a teacher.

[572] Mr Centra gave evidence that he had offered Mr Crowley mentoring and professional development in the past, and this was not taken up by Mr Crowley.

[573] The Archdiocese properly acknowledged Mr Crowley’s personal circumstances and his service to Catholic Education by giving him the opportunity to propose other positions that he was suitably qualified to perform. The Archdiocese was clearly prepared to retain him in their employ. This supports a finding that reinstatement is not impracticable.

[574] Having considered all of the evidence, I am satisfied that the reinstatement of Mr Crowley to his former position in accordance with s 391(1)(a) is appropriate in all the circumstances. In reaching this conclusion, I have carefully considered the submissions set out above, including Mr Centra’s reluctance to have Mr Crowley return, however I am satisfied that reinstatement is the appropriate remedy.

[575] Mr Crowley’s reinstatement will be effective from 22 July 2019.

[576] Section 391(2) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

(a) the continuity of the Applicant’s employment;

(b) the period of the Applicant’s continuous service with the employer or, if applicable, the associated entity.

[577] In all the circumstances, I consider it appropriate to make an order to maintain Mr Crowley’s continuity of employment and period of continuous service with the Archdiocese.

[578] Section 391(3) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

[579] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

(a) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

[580] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.¹³⁴ Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.¹³⁵

[581] I am satisfied that Mr Crowley has lost wages since his dismissal. He is likely to have lost further wages in the time since the hearing.

[582] I am also satisfied that Mr Crowley’s contribution to the Incident should be taken into account when making an order for lost remuneration. In this regard, he has acknowledged that there was ‘a communication breakdown’ which was his fault and which contributed to the Incident.

[583] I consider that I should only make an order causing the Archdiocese to pay lost remuneration to Mr Crowley from the date of the dismissal until 31 January 2019.

Final observations

[584] It is clear the Archdiocese had a level of concern in relation to Mr Crowley’s conduct, having issued him with a Final Warning. Mr Crowley should not take this decision as in any way relieving him of his obligation to follow CE policies and procedures and conduct himself in a manner consistent with the Guidelines and Enterprise Agreement. This decision does not provide him with immunity from further disciplinary action, including dismissal, if he does not meet those standards.

[585] Mr Crowley should carefully consider the steps he will now take to ensure his return to the College is positive and productive for all involved. If the offer to Mr Crowley of mentoring and professional development is still open to him, he should seriously consider accepting it.

[586] Orders providing for reinstatement with continuity of employment, and lost remuneration, will be issued separately.

DEPUTY PRESIDENT

Appearances:

T Howell, of counsel with C Matthews of IEU for Michael Crowley.

K Brotherson, of counsel, with S Meier, solicitor for Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn.

Hearing details:

2018.

Bega:

November 5, 6, 7 and 8.

Sydney:

August 21;

October 22;

December 5.

Printed by authority of the Commonwealth Government Printer

<PR709993>

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 16   See Attachment MC4 to Exhibit A.

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 20   See Annexure SO-30 to Exhibit AQ.

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 97   In addition to very detailed oral submissions, counsel for the Archdiocese provided comprehensive written submissions. This decision does not attempt to summarise every aspect of the submissions, however they have been taken into account.

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117 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

118 (1993) 49 CLR 66.

119 Ibid at 81-82.

120 Sayer v Melsteel[2011] FWAFB 7498.

121 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

122 (1995) 62 IR 371.

123 Ibid at 373.

124 Edwards v Giudice (1999) 94 FCR 561.

125 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

126 Miller v University of New South Wales (2003) 132 FCR 147.

 127   Transcript PN7519.

128 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

129 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

130 Previsic v Australian Quarantine Inspection Services Print Q3730.

131 (2000) 98 IR 137.

132 Ibid at 151.

133 RMIT v Asher (2010) 194 IR 1, 14-15.

134 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

135 See, eg, Regional Express Holdings Ltd v Richards[2010] FWAFB 8753, [29].