Mr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College - [2018] FWC 7620

[2018] FWC 7620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Mr Joshua Brewer

St Columba College Munno Para Inc T/A St Columba College

(U2018/5357)

Deputy President Anderson

ADELAIDE, 20 DECEMBER 2018

Unfair dismissal application – summary dismissal - alleged serious and wilful misconduct – misconduct found – valid reason – procedural fairness - fair go all round – dismissal not harsh, unjust or unreasonable - application dismissed

Mr Joshua Brewer (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by St Columba College Munno Para Incorporated (“the College” or ‘the employer’). He claims to have been unfairly dismissed on 14 May 2018. At the date of dismissal he was employed by the College as a middle school teacher.

Mr Brewer claims that his dismissal was harsh, unjust or unreasonable. He seeks reinstatement to his former position and ancillary orders for foregone wages and lost benefits.

St Columba College is a private school with adjoining junior, middle and senior campuses in Adelaide’s northern suburbs. The school was jointly founded by the Anglican and Catholic churches. It is not a Catholic diocesan school.

The College opposes the application. It says that on 14 May 2018 it summarily terminated Mr Brewer’s employment on the ground of serious misconduct, exercising its powers under clause 35 of the SA Catholic Schools Enterprise Agreement 2017. Albeit a summary dismissal, it provided Mr Brewer six week’s pay in lieu of notice in recognition of service. It contends that its dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

No jurisdictional issues arise in determining this matter. Mr Brewer was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.

On 12 July 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

This matter concerns serious allegations of a sensitive nature involving alleged misconduct by a teacher towards a female Year 11 student (Person A) who was at relevant times a minor (16 years). Pre-hearing interlocutory proceedings arose on the application, largely over issues concerning the production of documents by third parties (including historical medical records of Person A), and matters relating to the manner in which Person A would give evidence, and the de-identification of Person A and other persons who may tend to identify her.

I issued general directions on 12 July 2018. I conducted further interlocutory proceedings on 8 August, 24 August, 30 August, 31 August and 7 September 2018.

By decision dated 3 August 2018[1] I granted permission under section 596 of the FW Act for both Mr Brewer and the College to be represented by external legal practitioners.

On Mr Brewer’s application, by decision dated 9 August 2018[2] I made orders under section 590(2)(c) of the FW Act for the production of documents by a third party, Woolworths Limited. These were produced by Woolworths Limited on 15 August 2018 and made available to both parties.

On the College’s application, by decision dated 9 August 2018[3] I issued a direction, by consent, under sections 589 and 593 of the FW Act that Mr Brewer not be present in the hearing room whilst Person A gave evidence. My direction did not preclude Mr Brewer’s legal representative from being present, nor did it preclude Mr Brewer observing proceedings by video link from an adjoining room.

Also on the application of the College, on 9 August 2018 and at the hearing I issued directions, by consent, for the de-identification in the record of these proceedings of Person A, of her mother (Person B) and of her sister (Person C) on the grounds that the identification of Persons B and C may tend to identify Person A.

On 24 August 2018 I issued directions concerning the production of further documents (including credit card transactions) by Mr Brewer, and other matters.

On Mr Brewer’s application, on 27 August 2018 I made orders[4] under section 590(2)(c) of the FW Act for the production of documents by a third party medical practice. These were produced on 28 August 2018 and made available to both parties.

I conducted hearings on 30 and 31 August, 2 and 8 November.

In advance of and during the hearing, and consistent with my directions and orders, I received witness statements, documents (including those produced in consequence of my directions and orders) and outlines of submissions from both Mr Brewer and the College.

The Evidence

Mr Brewer filed three witness statements which appended a substantial number of documents.[5] Mr Brewer gave oral evidence in support of his application. He also filed a statement from his wife, Marnie Brewer. Mrs Brewer’s statement was received into evidence[6], by consent, without the need for oral evidence or cross examination.
Mr Brewer also brought into evidence certain records of his credit card transactions[7], historical medical records of Person A[8], and rosters of Person A working at the Woolworths Playford store between 1 January 2018 and 9 March 2018[9].

The College filed six witness statements and each witness gave oral evidence:

Leanne Carr, Principal[10];
Bruno Vieceli, Chairperson of College Board[11];
Susan Young, Assistant Director, Catholic Education Office[12];
Louis De Jager, Head of Senior School[13];
Person A, a Year 11 student at the College[14]; and
Person B, mother of Person A[15].

No agreed statement of facts was submitted in advance of the hearing.

Substantial disputes of fact arose on the evidence. They are material to the determination of this matter. Issues of credit are relevant.

Mr Brewer gave his evidence in a considered manner. He was however hesitant and inconsistent on some specifics concerning his conduct. He claimed to recall some very specific detail of events on the relevant days, yet no recall or only very general recall of other events on those same days. Those generalities conveyed an impression of selective evasiveness. I treat his evidence with a degree of caution.

Person A was a student who gave evidence nervously in the environment of a court room. Her evidence was largely clear and presented attentively. She displayed a tendency to readily agree to propositions put but largely remained consistent in her evidence concerning interactions with Mr Brewer. However, some degree of caution is also required when considering her evidence. She was not truthful when initially saying that she had never consumed alcohol, and there were inconsistencies in recall on some matters of detail.

Person B gave evidence clearly. Her recall of events and conversations was generally assured though she was uncertain about the date certain relevant conversations with her daughter occurred[16]. She readily conceded that she had consciously lied to the College about whether her daughter had attended a particular medical appointment, and provided an explanation as to why she did so[17]. Given the plausibility of that explanation, I do not consider her as a witness lacking credit. By and large, her evidence is reliable.

Mr De Jager was clear in his oral evidence which was largely corroborated by the documentary records of the day. Except in one respect where I prefer Person A’s recall, his evidence is reliable.

Mrs Carr was a conscientious witness. She was measured in her evidence throughout lengthy cross examination albeit somewhat cautious to make concessions. She displayed good recollection of detail. Notwithstanding being conversational in some answers, her evidence of factual matters was honestly presented without embellishment. It was reliable.

Mrs Young was an impressive witness. She was attentive, direct and instinctive in her answers. She displayed specific recall of the investigation into Mr Brewer’s alleged conduct. She was respectful to the cross examiner but firm in her responses, which were largely consistent with the documentary evidence before me. She was a witness of truth.

Mr Vieceli’s evidence was succinct and to the point. It is able to be relied upon.

Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.”[18]

Where relevant to my determination, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence, and the inherent plausibility of versions of events.

The most factually significant evidentiary dispute before me is between the evidence of Mr Brewer and Person A concerning Mr Brewer’s conduct during the College sports day on 8 March 2018, and between the evidence of Mr Brewer and Person A concerning his frequency of visits to the Woolworths Playford store where Person A worked and his conduct whilst making purchases at the store.

Some of those factual differences may be consistent with fading recollections of events that occurred months prior but the more pronounced are the product of evidence that is either truthful or not.

For reasons set out in this decision, on matters of significant factual difference between the evidence of Mr Brewer and Person A (and particularly concerning the interactions between Mr Brewer and Person A on 8 March 2018) I generally prefer the evidence of Person A.

The Facts

I make the following findings.

Employment History

In 2008, at the age of 39, Mr Brewer commenced a teaching career. He had previously operated his own business as a remedial massage therapist. He left that industry, married and as a mature-aged student obtained a Bachelor of Psychology and post graduate teaching degree immediately prior to commencing work as a teacher.

After three years working as a teacher, in 2011 he secured a permanent full time role at St Columba College[19]. He worked continuously in that position until dismissed on 14 May 2018.

Mr Brewer lives in suburban Hillbank. His evidence was that Hillbank is approximately twelve kilometres to the south-east of suburban Munno Para where the College is located[20].

Mr Brewer owns an investment property in very near proximity (almost adjacent to) to the College in suburban Andrews Farm[21].

In his near seven years of service, Mr Brewer primarily taught middle school (Years 6 to 9 inclusive) science and physical education. For the 2018 year, he was assigned to teach middle school physical education only and a Year 9 student development course (‘The Right Journey’) and jointly oversee the Year 9 Mitchell House home-group.

Mr Brewer taught Person A Year 9 physical education in 2016[22]. He knew Person A from that time. He had previously taught her elder sister, Person C.

Mr Brewer did not teach Person A in 2017 or in 2018.

During 2017 and 2018 Mr Brewer and Person A had a number of conversations on school grounds[23]. These generally arose whilst Person A was walking between buildings to or from lessons in the company of other students. Her evidence[24], which I accept, is that Mr Brewer would call her over as he passed her in the school grounds or corridors, interrupt her travel and have a general chat to her.

In late 2017 Mr Brewer supervised students on a religious education excursion. He was seated near and spoke to Person A on the bus during that excursion[25].

In 2018 Mr Brewer also had a number of conversations with Person A on weekends (usually Sundays) at her place of work. Person A had secured a retail assistant position at Woolworths Playford, which is located approximately one kilometre from the school. The circumstances concerning those interactions at her place of work are the subject of specific findings below.

Mr Brewer had been provided with College policies applicable to his employment, including its ‘Protective Practices for Staff in their Interactions with Children’[26], the College’s ‘Child Protection Policy’[27] and the School’s ‘Code of Conduct for Staff’[28]. These policies were known to Mr Brewer, received by or accessible to him and communicated to staff (including Mr Brewer) by the College Principal[29].

Prior to 2018, three formal disciplinary incidents had arisen concerning Mr Brewer during his employment at the College:

In 2011 an investigation occurred into alleged inappropriate conduct (alleged physical and verbal contact) by Mr Brewer towards two students. The College received disputed versions of events. By letter dated 7 November 2011 the then College Principal wrote to Mr Brewer as follows:[30]

“…you understand the serious nature of your actions and you have agreed that this kind of behaviour will not occur again…you are prepared to meet with selected colleagues for ongoing discussion, mentoring and support…I conclude by cautioning you not to engage with students in any inappropriate manner…”

In his evidence, Mr Brewer claimed that the then allegations were “substantially false” but that he took no specific action to dispute the caution other than “put it behind me” and proceed with mentoring[31].

In 2013 an investigation occurred into alleged inappropriate conduct by Mr Brewer towards a student (allegedly tossing a sash at a student and acting indifferently to the student’s distress who believed a spider was on it). The College received disputed versions of events. By letter dated 3 December 2013 the then College Principal wrote to Mr Brewer as follows:[32]

“your action…was an inappropriate act lacking in your responsibility to demonstrate duty of care towards the student…I accept that…you acted without malice…Nevertheless I have found…a breach of your responsibility…I consider this a serious matter…Accordingly, I am issuing you with a formal warning…”
In his evidence, Mr Brewer claimed that the then allegation was “false”, the warning “unfair” but that he took no specific action to dispute the warning other than “simply to move on”[33].

In 2016 Mr Brewer was the subject of a complaint that he had, some months prior, made inappropriate remarks of a suggestive nature towards a female Year 10 student and that the student had subsequently sought counselling[34]. Mr Brewer denied the allegation at the time. He emphatically denied it in his evidence before the Commission. He was spoken to by the School Principal but in light of the disputed versions of events, the matter did not proceed beyond the letter of allegation and discussion with the Principal. I make no findings adverse to Mr Brewer in this regard other than noting that this alleged incident, by virtue of it being raised ought to have caused him to again reflect on the boundaries of appropriate conduct and the need for care and attention in words or actions that could be misconstrued by students.

Mr Brewer enjoyed his work at the College and from time to time undertook or oversaw on a voluntary basis extra curriculum personal development activities and representative student sports activities[35].

Person A is a 16 year old Year 11 student at the College.

She has attended the College throughout her secondary school.

She has an auto immune disease for which she developed serious symptoms in 2015 and for which she was treated, successfully, by medical specialists in 2015 and 2016. She has recovered and subsequently resumed a normal life.

At the relevant times, she had a boyfriend, a student of the College (who, for the purposes of not tending to identify Person A via this decision, I will refer to as ‘Boyfriend A’[36]).

Conduct at Woolworths Playford

On Sundays, Person A worked as a retail assistant on the checkout at Woolworths Playford. Her shifts were usually 11am to 2pm (‘morning shift’) or 2pm to 5pm (‘afternoon shift’).

Woolworths Playford is situated approximately twelve kilometres from Mr Brewer’s home[37]. There are multiple Woolworths stores in closer proximity to Mr Brewer’s home than Woolworths Playford. Approximately three or four are en-route when travelling between his residence and Woolworths Playford[38].

From time to time, Mr Brewer attended the Woolworths Playford store during the first three months of 2018 including (but not exclusively) on Sundays. When he did so, he was alone. When he did so, he usually made small purchases (though there is evidentiary conflict over whether he had also made a larger shop at that store). He usually but not always made purchases by credit card. Occasionally he would use cash. By and large, these facts are not in dispute.

There is conflicting evidence before me concerning the frequency of visits by Mr Brewer to the store in 2018. Person A says it was regular, on most Sundays. Mr Brewer says it was occasional, when he had cause to be in the locality.

There is also conflicting evidence as to the conduct of Mr Brewer whilst in the store. Person A says that Mr Brewer would commonly seek to be served at Person A’s checkout even though there were checkouts with shorter queues or checkouts for customers with few purchases or self-service checkouts. In essence, she says that Mr Brewer deliberately transacted his purchases through her checkout in order to have a conversation with her. Mr Brewer says that whilst he did not deliberately proceed to her checkout, he did see her working in the store from time to time and was occasionally but not always served by her.

In considering these matters, I have had regard to the oral evidence of both Person A and Mr Brewer. I have also had regard to the documentary evidence produced by Woolworths (work rosters[39]) and evidence from Mr Brewer’s credit card statements.

This documentary evidence is not particularly helpful. It informs me that Person A did in fact work on a regular basis on Sundays at Woolworths Playford in the first three months of 2018. It does not inform me which checkout Person A worked at or at which checkout Mr Brewer made purchases. Nor do the credit card statements provide a complete picture of Mr Brewer’s purchases at Woolworths Playford. His evidence was that he usually made purchases by credit card. He says that occasionally but only rarely did he make purchases in cash. Where cash purchases were made, there is no record before me of what was purchased or how frequently cash purchases were made. Nor do the credit card statements record which employee transacted those purchases[40]. Nor do they necessarily record the date an in-store transaction was made. Depending on arrangements between a financial institution and a merchant, the date a customer’s statement records a transaction may or may not be the actual date of the transaction[41].

I accept Mr Brewer’s evidence that he visited the Woolworths Playford store to make small purchases not just on weekends but also during the week sometimes before school, sometimes afterwards. I also accept Mr Brewer’s evidence that he has a rental property near the College (and thereby near the supermarket) and a friend living in Craigmore. Craigmore is approximately seven kilometres from the College.

I accept (and prefer) Person A’s evidence concerning Mr Brewer’s conduct in the Woolworths Playford store, insofar as that evidence goes. Her evidence was presented clearly and there is no reason why she would fabricate such evidence. His presence in the store and being served by her was information she communicated to her mother in the days following the sports day incident, and both Person A and Person B’s evidence was that his presence in the store had occasionally been the subject of casual comment by Person A to her mother when her mother had picked her up from work[42]. It is plausible that a student such as Person A would recognise a teacher who was present in the store making purchases and transacting through their checkout.

I accept Person A’s evidence that Mr Brewer’s attendance at the store on Sundays between 1 January 2018 and 4 March 2018 was frequent. I accept her evidence that he was regularly served by her. I also accept her evidence that when she saw him in the store she observed that he would usually proceed to her checkout lane to be served by her, and would not move to shorter or other queues in advance of being served by her. These are matters within Person A’s knowledge based on her observations; observations I consider reliable. However, Person A cannot reliably say that on each and every occasion Mr Brewer attended the store he was served by her and only her. Whilst I have no evidence that this was not so, I do not discount the possibility that on occasion Mr Brewer was in the store on a Sunday and was served by someone else. However, in light of the fact that there are only a limited number of Sundays between 1 January and 4 March 2018, and given Person A’s evidence (which I accept) that she frequently served Mr Brewer on Sundays during this period, the number of occasions when Mr Brewer could have been served by another person is low.

More relevant to this matter is what occurred on Sunday 4 March 2018.

Person A’s evidence is that in the week prior, at school, whilst passing between classes Mr Brewer had called Person A aside and in casual conversation asked her if she was working the following weekend. Person A replied in the affirmative, advising that she was working the Sunday morning shift at Woolworths Playford.

A day or so prior to 4 March, Woolworths advised Person A that starting times for her Sunday 4 March shift had been changed, and that she would work the afternoon shift, not the morning shift.

Person A’s evidence is that she started working at about 2pm on Sunday 4 March. She says that Mr Brewer entered the store during the afternoon, and stood in the queue of her checkout lane with very few purchases (one or two packets of chips). Although she was operating a larger checkout and although he had a small number of items, he remained in her queue and did not move to a lane that transacted fewer items. Person A’s evidence was that, after exchanging pleasantries:[43]

“he said that he had done his big shop that morning, but had not seen me, and had come back hoping he would see me. I did not say anything in response to that…he asked me what I was doing that night and what I had been up to over the weekend, and I said I was seeing Boyfriend A.”

Person A’s mother picked up Person A from Woolworths Playford after the completion of her shift on 4 March. Whilst being driven home, Person A told her mother that Mr Brewer had been in the store that afternoon and had told her that he had also been in the store earlier but returned in the afternoon. Person A did not expand on the conversation she had had with Mr Brewer.

Events at the sandpit on College sports day

The College held a sports carnival on Thursday 8 March 2018.

Person A was scheduled to compete in Year 11 activities. Her evidence, which I accept, was that she enjoyed sports day and was looking forward to participating and competing. Her first event was scheduled to commence at 10am, the long jump.

Mr Brewer was assigned to oversee the triple jump pit. There were three jump pits on the middle school oval. Mr Brewer was assigned to one of these. Another teacher, Mr Stork, was assigned to work with him.

By the start of the day’s events, around 9.15am to 9.30am, Mr Brewer had set up the pit. The first event he oversaw was Year 7 triple jump. It was not a Year 11 event. He decided he wanted a student to perform the task of raking sand after the jumps as he considered that he would be too busy to do that task. He looked around. He didn’t select a Year 7 student. Other students were nearby. He saw Person A passing by, some distance away. He says she was standing alone under a marquee tent; she says she was walking towards her event location through the marquee tent with two student friends, a female student I refer to as Student A (in order to not identify Person A via this decision[44]) and Boyfriend A. I do not consider much turns on that factual dispute; the relevant facts are that Mr Brewer selected Person A from amongst students, called her over to where he was, and asked her to hold the rake. Person A complied with the teacher’s instruction.

During the course of the Year 7 event (which lasted approximately 30 minutes) a series of conversations occurred between Person A and Mr Brewer, interrupted on multiple occasions by Mr Brewer overseeing the Year 7 event and moving around the sandpit as a result. After doing a task (such as checking a jump distance, or a foul jump) Mr Brewer would return to Person A, who was still holding the rake, and continue the conversation. Both Person A and Mr Brewer agree that the conversation was disjointed by these gaps.

No-one but Person A and Mr Brewer were party to those conversations or overheard them.

This matter primarily concerns what was said between Mr Brewer and Person A in those conversations at the sandpit during that half hour.

There is a significant discrepancy between the evidence of Person A and the evidence of Mr Brewer as to what was said by Mr Brewer.

There is agreement between Mr Brewer and Person A that certain subjects of conversation arose. Those subjects concerned private interests, not school matters. What differs is what precisely was said by Mr Brewer about each subject and the context in which the subject matters arose.

Person A’s evidence[45] is that:

Mr Brewer called out ‘Person A, come here, can you rake the sand for me’. She walked over to Mr Brewer and told him that she had an event to do. He replied words to the effect ‘I don’t care’;
Mr Brewer raised the topic of Boyfriend A. He said that he knew that she was seeing Boyfriend A and then said words to the effect (interrupted by some gaps) “He’s not nice enough for you. I can treat you better. I can be your sugar daddy. I can pay you small allowances. We can drink red wine. You can give me neck massages”. He said things that showed he thought my boyfriend was not good enough for me;
In her evidence (but not in her witness statement) Person A says that Mr Brewer also said that Boyfriend A was too rich, and further said that he could go shopping with her;
Person A felt uncomfortable. She felt Mr Brewer was disrespecting his family so she tried to change the subject and asked about his wife and children. He said words to the effect ‘They’re not important right now, you are’. Person A again felt uncomfortable and did not reply.
While raking the sand Person A had to bend over. Mr Brewer stood close to her as she bent over. This made her feel uncomfortable.
She remained until the Year 7 event finished. It resulted in Person A missing her Year 11 long jump event.

Mr Brewer’s evidence[46] is that:

In order to make conversation, he asked Person A ‘how’s your weekend looking’ and was told by Person A that she was working on the following Sunday;
There was a conversation about Mr Brewer’s wife to the effect that he said that his wife does not like shopping and that was why he often did the shopping;
There was a conversation about his wife to the effect that he said that his wife gets massages on weekends;
He said words in Person A’s direction “but not directed at Person A” to the effect ‘my shoulders are killing me – I could do with a shoulder massage myself’;
There was a conversation “thinking out loud but not directed to Person A” about personal wealth in which he said words to the effect ‘If I were rich I wouldn’t have to do this stuff’ and that it was Person A who then raised the subject of Boyfriend A being rich;
There was a conversation about wealth, love and marriage in which he said ‘If I’d married a rich lady I’d be laughing but I married for love and at the end of the day money can’t buy happiness’;
There was a conversation about his family and how many children he had but only after Person A asked him;
There was a conversation about Person A’s family but only after Person A raised the topic of her sister.

Mr Brewer emphatically denied any conversation in which the subject matter of a “sugar daddy” was mentioned in any context or that he offered to pay Person A an allowance.

Mr Brewer emphatically denied any conversation in which the subject matter of drinking wine with Person A or buying wine to drink was mentioned in any context.

Mr Brewer emphatically denied any conversation in which Boyfriend A was mentioned by name or in which he disparaged Boyfriend A or said that he could treat Person A better than Boyfriend A. He said that he had said that a group of boys in a nearby sandpit were being unruly and he had told them off in Person A’s presence and that Person A may have misconstrued this as a criticism of Boyfriend A. His evidence was not specific as to whether Boyfriend A was one of these boys[47].

I deal with whose version of events about the sandpit conversation I believe (if either) when considering is there was a valid reason for dismissal.

The reporting of alleged misconduct on 8 March

The events which occurred after Person A left the sandpit are generally not the subject of disputed evidence (though require findings in part based on credit taking into account whether oral evidence was consistent with documentary material and/or is inherently plausible).

When the Year 7 event finished, Person A located her friends Student A and Boyfriend A on the oval. They had completed their event, which Person A had missed.

Person A told them that Mr Brewer had asked her if she would like him to be her sugar daddy, to go shopping with her, to drink wine with her and that Boyfriend A was bad for her. She told them that she had tried to change the subject of conversation to his wife and children.[48]

Student A told Person A that she should talk to her mother about what had happened and that she should speak up about it.

Person A texted her mother (Person B) at 10.52am:[49]

“mr brewer was acting really weird to me today, I’ll ring you but then you would pick me up…and I don’t wanna leave yet”

Person B replied “weird like how?”

Person A and Person B then had a phone conversation within the next hour lasting about 45 minutes. Person B’s evidence, which I accept, was as follows:

“She said that she was supposed to be going to her own long jump event but Mr Brewer called her over to rake the pit on his long jump event. She told me that she told him at that point that she had an event to go to herself at the same time, but he told her that he wanted her to stay with him and not and not go to her own event. Person A said Mr Brewer was quite insistent that she stay with him and then while she was raking the pit he tried to engage her in conversation about her new boyfriend. Person A said Mr Brewer said that he had heard it along the grapevine that she was seeing him and that he was no good for her because he was too short, too much money, wasn't good looking enough, she was too good for him. Person A told me that she was quite shocked by the conversation that was unfolding and she told him that it was none of his business about who she was seeing and who she wasn't seeing, he then verbally offered to be her sugar daddy. Person A told me that Mr Brewer said that he would pay her a small allowance, that he would buy her wine, and that she could come and rub his shoulders at his house.”[50]

Person A’s mother told her daughter that she should report the incident to the school, and would give her daughter 24 hours to do so before she (Person B) would herself become involved. By the end of the call, Person A agreed to report the incident.

Student A accompanied Person A to locate a senior teacher. They located the Head of Senior School Mr Louis De Jager on an oval around lunchtime. Person A asked to talk to him in private away from other students. Mr De Jager’s evidence (which I accept with one caveat) was:

“Person A then said to me that Mr Brewer has asked her to help him at the long jump, to rake clear the sandpit. She said that she agreed to do so, because she wanted to help the teacher.

Person A said that Mr Brewer then started talking about her boyfriend, and saying that he (Mr Brewer) could do much better than her boyfriend could, that he could be a better “sugar daddy” than her boyfriend. When Person A mentioned this, I immediately thought that this was a red flag, because that is not an appropriate way to speak with a student.

Person A then told me that Mr Brewer said that she could give him a massage, and that they could enjoy time together at his home, and that they could have some drinks.

Person A told me that she had wanted to deviate the conversation, and that she then asked Mr Brewer how his kids were going, how his wife was going. She told me that she was feeling immediately uncomfortable about the conversation.

I said words to the effect of, ‘Okay, thank you for that. Could you go to Ms Evans and ask for a piece of paper to write down everything you just told me”. Ms Evans works in the Middle School Student Services. I asked Person A to do this because I could not leave the discus event, because I was supervising to ensure the students participating were safe.”[51]

Person A agreed to do so.

Person A then texted her mother at 12.40pm. She advised that she had spoken to Mr De Jager and that he had asked her to write it down and he would take it to the Principal.

Person A then went to school office, saw Ms Evans, and was given paper to write down what had occurred. Person A then sat in the office at around 1pm that day and wrote a record. That record is in evidence[52]. It reads:

“Asked to rake sand for the year 9’s
Told he can be my sugar daddy and get paid allowences, rubbed neck, drink wine
I asked him about his wife and kids to change the subject”

There is a relevant discrepancy between the evidence of Person A and Mr De Jager. Person A says that Mr De Jager said at the outset, when told the incident concerned Mr Brewer, words to the effect ‘oh again’[53]. In his evidence, Mr De Jager denied saying so. Although little turns on this dispute, I prefer Person A’s evidence on this point. She was clear this was said. Although Mr De Jager was equally clear that he did not say so, his evidence when pressed was that he did not recall saying so. This is what he also told Mrs Carr some weeks later[54]. It is plausible that Mr De Jager would not recall a specific aside such as this, months later. It is however the type of remark that a student is likely to recall a senior teacher making. More particularly, Person A made specific reference to this comment in her text to her mother at 12.40pm on the day, very soon after speaking to Mr De Jager[55]. It is implausible she would record that comment in a text message moments later if it had not been made by the senior teacher moments earlier.

Person A took her written note back to Mr De Jager as he had requested. Mr De Jager phoned the College Principal Mrs Carr from the oval. He advised her that an issue of concern had been reported and asked her to see him. Mrs Carr proceeded to the oval and met Mr De Jager. He told her what Person A had told him and showed Person A’s note to her. Mrs Carr asked Mr De Jager to ask Person A to meet her. Mr De Jager did so.

Person A was located and taken by Mr De Jager to meet the Principal. Mrs Carr met Person A in her office. According to Mrs Carr’s evidence (which I accept) Person A “did not want to talk a lot about what had happened beyond saying that Mr Brewer had called her over at the long jump pit and that he had said the things that she wrote down…She also mentioned that Mr Brewer calls out to her when she is walking to lessons, calling her by name but not talking to anyone else. She said she found this weird.”[56]

Mrs Carr considered the alleged incident serious. She sought advice from Mrs Young of the Catholic Education Office. They decided that Mr Brewer should be sent home with pay, pending an investigation under the Misconduct Procedures[57] issued by Catholic Education South Australia (to which the College subscribed). Mrs Carr contacted the College chairperson Mr Vieceli, informing him of the reported incident, of the intention to stand the teacher down with pay, that an investigation would be commenced and that he (Mr Vieceli) would be the person to whom the investigation panel would report.

In the meantime, Person A (at 2.07pm) further texted her mother to the effect that she had spoken to the Principal adding “I’m mad I miss out on half my sports day for a stupid situation” and further adding, in reference to the Principal, “she was so mad”.[58]

The Principal called Mr Brewer to her office. She told Mr Brewer that a report had been made concerning his interaction with another student. She provided no further details in this initial conversation. She advised that the issue was to be investigated, that it was best he not further participate in sports day.

The Principal decided to again speak directly to Person A and to also receive a statement from Student A and from Boyfriend A. She called them to her office. At about 3pm, she placed each in separate rooms. She met each individually. She asked each to write what had occurred that morning.

Person A wrote a (second) handwritten written note for Mrs Carr.[59] It was somewhat more detailed than the first note.

Student A wrote a handwritten note for the Principal[60].

Boyfriend A wrote a handwritten note for the Principal[61].

The Principal then phoned Person A’s mother and advised that an incident had occurred concerning her daughter which would be investigated. Person B said that she knew of the incident from her daughter and agreed to forward to Mrs Carr the texts the mother had received that day from her daughter. The texts were then sent to Mrs Carr. In this conversation Person B informed Mrs Carr that Mr Brewer had frequented her daughter’s place of work at Woolworths Playford, and that now concerned Person B. This was the first Mrs Carr knew of that allegation. She asked Person B to write down what she knew about the Woolworths Playford issue. Person B agreed to do so. Later that day (at 4.24pm) Person B sent Mrs Carr a lengthy email[62] setting out what she knew about the day’s events and about other concerns with Mr Brewer’s alleged conduct with Person A including at Woolworths Playford and on a bus during a school excursion, and her other daughter (Person C). She also expressed concern that the incident may cause Person A’s medical condition to “flare-up”.

Assisted by Mrs Young, Mrs Carr prepared a letter standing down Mr Brewer on pay pending investigation. She emailed Mr Brewer at 5.52pm that day[63] advising of his suspension, advising that she would shortly provide full details of the allegations, that the investigation would be conducted under the Misconduct Procedures and that his response would be sought “before making any conclusions about this matter”. The content of Mrs Carr’s email of 8 March was incorporated into a formal letter dated 9 March 2018 which Mrs Carr sent to Mr Brewer[64].

At day’s end, Mrs Carr made a typewritten file note of her actions that day concerning the alleged incident[65].

The following day, 9 March at 12.41pm, Person B sent a further email[66] to Mrs Carr with additional information about her daughter’s alleged interactions with Mr Brewer at Woolworths Playford, based on discussions between mother and daughter that morning.

The investigation and decision to dismiss

An investigation panel was formed under the Misconduct Procedures. It comprised Mrs Carr and Mrs Young.

By letter of 9 March 2018[67] (‘the allegations letter’) Mrs Carr wrote to Mr Brewer setting out two allegations (the sandpit incident, and attendance at Person A’s place of work), inviting a response, advising that a meeting would be held with Mrs Carr and Mrs Young on 16 March, advising that Mr Brewer could bring a support person and advising that he would remain suspended with pay until further notice. He was also provided a summary of the procedures for investigating misconduct allegations.

Mrs Carr also made a mandatory written notification to the Child Abuse Report Line[68], which as a matter of course notifies the relevant State government department and the South Australian Police.

Mr Brewer sought advice from the Independent Education Union SA Branch (IEU). Between 13 March and 20 March email correspondence was exchanged between Mr Bernardi of the IEU and Mrs Carr. At Mr Bernardi’s request and after foreshadowing a dispute notification to the Commission the meeting with Mr Brewer was deferred to 21 March.

On 19 March 2018 a sergeant of the South Australian police force advised Mrs Carr that they had made contact with Mr Brewer, proposed to interview him and proposed to issue Mr Brewer a caution not to attend the Woolworths Playford store. Mrs Carr was advised by the sergeant that police action did not preclude the College proceeding with its investigation.

On 21 March 2018 Mr Brewer accompanied by Mr Bernardi met with the investigation panel (Mrs Carr and Mrs Young). Mr Brewer responded to questions by reading from a pre-prepared statement. That statement[69] concerned allegation 1 only (the sandpit allegation). Mr Brewer’s full statement in response was not provided to the College at that time. Mrs Young took notes of the meeting[70]. Following the meeting Mrs Young prepared a working document of the allegations and evidence for her purposes[71]. Mrs Young and Mrs Carr also prepared a formal record of the meeting[72] which was subsequently provided to Mr Bernardi (on 29 March).

On 21 March Mr Bernardi sought further particulars of the allegations including copies of statements from other persons including Person A. Mr Bernardi indicated that Mr Brewer’s full statement of response could not be provided until that further information was provided by the College. The College declined to provide the statements of Person A.

On 27 March Mr Bernardi notified a dispute to the Commission.

On 28 March a conciliation conference was conducted (by telephone) by Commissioner Platt.

Arising from that conference, Mr Brewer’s full statement[73] was provided by the IEU to the College (at 4.58pm on 28 March), the College agreed to interview Mr Stork, the College declined to interview the Year 7 students who were competing or generally in the vicinity of the sandpit, the College maintained its view that it would not provide statements made by Person A and the College declined to seek CCTV footage from Woolworths Playford for 4 March or to interview other students as ‘character witnesses’.

Mrs Carr interviewed Mr Stork on 23 March[74]. He had no recollection of and had not overheard Mr Brewer’s discussion with Person A.

Mrs Carr also obtained a statement from Mr De Jager[75] which he had prepared following sports day.

On 28 March Mrs Carr decided to again meet with Person A. Mrs Carr was particularly interested to obtain first-hand Person A’s position on allegation 2 (Woolworths Playford) because “that matter had, at that stage, only been specifically raised by [her] mother”[76]. Person A provided handwritten answers to seven pre-prepared questions asked by Mrs Carr[77].

Between 29 March and 9 April further email correspondence was exchanged between Mrs Carr and Mr Bernardi concerning the meeting notes (of 21 March) and other matters.

On 28 March the investigation panel met to discuss the investigation report. Mrs Young had in the weeks prior commenced preparing a draft report from a template. It was a collaborative process whereby Mrs Young was the primary author and Mrs Carr suggested amendments. The investigation report was finalised on 12 April 2018[78]. Mrs Carr sent it that day to Mr Vieceli.

The investigation report found both allegation 1 (the sandpit incident) and allegation 2 (Woolworths Playford) sustained. It concluded that there was no reason to believe that Person A had made a vexatious complaint against a teacher. The panel concluded:

“The panel note that Mr Brewer’s conduct includes asking and disclosing personal information and lifestyle details and targeting an individual student. The Panel are deeply concerned about Mr Brewer’s harassment of the student Person A for no legitimate reason. The panel find Mr Brewer’s behaviours to be consistent with grooming and stalking. His actions have had serious implications for the wellbeing of Person A.

The panel note that Mr Brewer has breached professional role boundaries and compromised the trust between Person A and her right to feel safe with staff at the school. The panel believe that Mr Brewer has lied under investigation. This and his behaviours have seriously compromised the existing trust between him and the Principal. As an outcome of previous investigations, significant professional development has been offered over the past year to support Mr Brewer. The panel note that Mr Brewer would be in no doubt about the expectations of him, in his professional capacity as a teacher of young people.”[79]

Mr Vieceli considered the report over a number of days. He concluded that the findings of the investigation panel were sound but conducted no further investigation of his own. Until he received the report he was unaware that the allegations also concerned conduct at Woolworths Playford.

On 30 April Mr Vieceli wrote to Mr Brewer[80] (‘the show cause letter’) advising of the panel’s findings, that he in his own right adopted their findings, considered them “sound” and “compelling”, and had drawn a conclusion that Mr Brewer had engaged in serious and wilful misconduct. He advised Mr Brewer that he was considering summarily dismissing him, but in advance of making a final decision would provide Mr Brewer with a further opportunity to place any further information or submissions before the decision-maker.

On 8 May 2018 Mr Brewer wrote to Mr Vieceli[81] maintaining his denials, asserting his truthfulness to the investigators and requesting all of the first-hand evidence they had received.

Mr Vieceli considered Mr Brewer’s response for a couple of days. He concluded that it did not alter his intended course of action. On 14 May 2018 Mr Vieceli wrote to Mr Brewer[82] (‘the termination letter’) addressing aspects of Mr Brewer’s response and advising that he had decided to terminate his employment “effective from the date of this letter on the grounds of serious and wilful misconduct and for the dereliction of your professional obligations as a teacher”[83]. Mr Vieceli further advised “you have no entitlement to notice of termination or pay in lieu of notice. However, I have decided to pay you six weeks salary in recognition of your service at the College.”

Mr Brewer then commenced these proceedings on 24 May 2018.

Consideration

The issue for determination is simply put: was Mr Brewer’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

Section 387 of the FW Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)   whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)   whether the person was notified of that reason; and
(c)   whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)   any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)   if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)    the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)   the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)   any other matters that the FWC considers relevant.”

I am under a duty to consider each of the criteria in section 387 of the FW Act,[84] and now do so. In so doing, I take into account all of the evidence and submissions before me. Given the breadth of issues raised, in this decision I specifically deal with evidence that is most material to arriving at a decision in this matter. Some evidence is not referenced, not because I have not considered it, but because I do not need to make specific reference to it. Similarly, I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.

Valid Reason (section 387(a))

An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded”[85] and should not be “capricious, fanciful, spiteful or prejudiced.”[86]

In a conduct-based dismissal (except where the Small Business Fair Dismissal Code applies), the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.[87]

Where an employee is dismissed for misconduct, an evidentiary onus rests on an employer to establish that, on the balance of probabilities, the misconduct occurred.[88]

It is also well settled that where, as in this case, an employer dismisses for serious misconduct, the standard of proof requires “a proper level of satisfaction”[89] that the conduct did in fact occur having regard to the seriousness of the allegations. This is commonly referred to as the Briginshaw standard[90]. This requires more than mere satisfaction that it is more likely than not that conduct occurred. Rather it requires a proper degree of satisfaction that the conduct did in fact occur. Having regard to the nature of the allegations against Mr Brewer and the seriousness of potential findings I am satisfied that the Briginshaw standard is the approach to be applied in this matter.

In applying that approach I recognise that the standard of proof remains a civil standard. The allegations are allegations of dereliction of professional obligations as a teacher. Serious though they are, they are not criminal charges. I adopt the approach set out in the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others:[91]

“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”.

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” [footnotes omitted]

When considering applications alleging unfair dismissal, this approach has been endorsed by the Federal Court of Australia[92] and by full benches of this Commission.[93]

In this matter Mr Brewer is alleged to have acted inappropriately towards a female Year 11 student (Person A) both in the course of that student’s schooling (and in particular in conversation with her during sports day on 8 March 2018) and in the course of that student’s private life (whilst she worked at Woolworths Playford during 2018).

Findings on disputed facts

As noted, there are substantial factual discrepancies between the evidence of Mr Brewer and Person A concerning each of the above allegations. It is relevant to note however that Mr Brewer’s evidence in chief and in cross examination included a number of admissions and concessions about what he did and said. These, together with my findings as to which version to believe, are relevant to making a conclusion about valid reason.

There are some elements of vagueness, inconsistency and poor recall in the versions of both Mr Brewer and Person A. Taking this into account, for reasons set forth I have come to the firm conclusion that in most respects I prefer the evidence of Person A over the evidence of Mr Brewer where there are inconsistencies. Having regard to my notes of caution concerning the evidence of each, Person A’s evidence was presented with less evasion, is more credible, was more consistent with objectively established and uncontested facts, and is more plausible having regard to the evidence as a whole including contemporaneous documentary material.

I find Person A’s evidence of the conversation at the sandpit on 8 March 2018 to be reliable in substance. This does not mean that the conversation was exact in every respect as put by Person A in her evidence. Her evidence (and Mr Brewer’s) was given almost six months after the event, and some allowance must be given to blurred or faded recollections. However, her evidence was generally clearly put and remained largely constant in cross examination.

I take into account the fact that Person A admitted that at least one aspect of her evidence to the Commission had not been truthful, that is that she did not drink alcohol. Under cross examination, when presented with a facebook post and photograph, she admitted that she had done so[94]. As false as her denial was, it was a statement by a 16 year old not wishing to admit something she might not have wanted to reveal. This has led me to carefully consider her evidence specifically and as a whole and subject it to particular scrutiny. I am not satisfied that this false statement tainted her evidence on other matters.

I also take into account some areas of vagueness in Person A’s version of events. Some lack of clarity is not surprising given the effluxion of time and the self-evident stressful impact of the events of 8 March and these subsequent proceedings. For example, her evidence about whether she had expressed concern at Mr Brewer potentially losing his job (and to whom) was imprecise[95], her evidence about whether her mother collected her from Woolworths Playford on 4 March was vague[96] as was her evidence whether it was Year 7s or Year 9s who were jumping during the sandpit conversation and how that jumping was structured[97].

In one respect[98] (whether she said anything about Boyfriend A) I consider her evidence about the sandpit conversation to be wrong. I do find that she said Boyfriend A was rich in response to Mr Brewer saying to her that he could do better for her than Boyfriend A. I also find (as conceded by Mr Brewer in his evidence[99] but either denied or not recalled by Person A) that Mr Brewer said that if he was rich he (Mr Brewer) would not have to be doing this, that he married for love and that money can’t buy happiness (or words to that effect). For whatever reason, Person A downplayed her reference to Boyfriend A. Equally I find (based on Person A’s evidence) that Mr Brewer, despite his denial, did say that he could do better for her than Boyfriend A (or words to that effect) and that Boyfriend A was not good enough for her. This is what Mr De Jager said in his evidence had been said to him by Person A when she reported the incident to him shortly after[100]. For reasons set out below, I have also found it implausible that Mr Brewer was speaking to no-one in particular when he said that it would be nice to be rich and equally implausible that this was not said in the context of a conversation about Boyfriend A.

Person A’s evidence of the conversation is also substantially consistent with the following:

What she told her mother by text within approximately an hour of the sandpit conversation;
What she told her mother over the phone within approximately an hour of the sandpit conversation;
What she told Mr De Jager the Head of Senior School within approximately three hours of the sandpit conversation;
What she hand-wrote for Mr De Jager in the school office within approximately three hours of the sandpit conversation;
What she told Mrs Carr the Principal within approximately three hours of the sandpit conversation;
What she further hand-wrote for the Principal within approximately four hours of the conversation;
What she told Mrs Carr and Mrs Young in writing and orally a number of weeks later as part of the investigation.

I take into account that (other than the evidence of Mr Brewer and Person A) the evidence before me about the content of the sandpit conversation is hearsay; for example, the evidence of Person B about what her daughter told her that day and the following morning, the evidence of Mrs Carr and Mr De Jager of what Person A said to each of them on 8 March, and the evidence of Mrs Carr and Mrs Young about what Person A said during the investigation. Also by way of hearsay is the evidence of the sandpit conversation in documentary records of these conversations. Those records are evidence of the fact that (for example) certain texts were sent and certain handwritten or typewritten records were made at certain times on that day. They are primary evidence of those facts (the making of those documentary records). Those facts are relevant to my findings as they inform the sequence of events. However, whilst I find there is no reason for those who made those records to have not truthfully recorded what was being said to them, they are not evidence of the truth of the sandpit conversation. Relevantly though, I am not reliant on those documents or subsequent conversations alone to make my findings. I have primary evidence from both Mr Brewer and from Person A about the sandpit conversation. It is principally that primary evidence on which I make my findings.

I do not approach Person A’s evidence with caution on account of the serious illness she had in 2015. I have the evidence of Person A and her mother Person B on that matter. I also have in evidence some of Person A’s medical records from that period. The evidence suggests that Person A was treated successfully by medical specialists in 2015 and 2016 and has resumed a normal life. There is no evidence to suggest that on medical grounds her evidence should be treated with caution or that her memory was deficient. As noted, her memory in her evidence six months later was largely consistent with her written notes made on the day of the sandpit conversation.

I reject key elements of Mr Brewer’s evidence (including his denials that he said what was claimed by Person A during the sandpit conversation) for the following reasons:

Firstly, it contained evasion and inconsistency. For example:

Mr Brewer claimed to not remember when or how he first became aware that Person A worked at Woolworths Playford[101] and denied that he had called out to Person A across the school yard and in conversation asked if she was working on weekends[102]. He claimed to not know if he called out to any students in the school yard to come over for a conversation[103] but then conceded that he did have conversations in the school yard with Person A and other students but only in generic terms ‘are you working on the weekend’. He claimed not to ask the specific time Person A was working nor to have “initiated every conversation” but then conceded he did initiate some[104]. Overall his evidence on this point[105] was evasive. I prefer Person A’s evidence that Mr Brewer did call her over in the school grounds on multiple occasions and in conversation ascertained that she worked at Woolworths Playford and would ask whether she was working at weekends and at what time, to which she responded with those details[106].

Mr Brewer’s evidence about his movements on Sunday 4 March 2018 was selective, vague and inconsistent. He denied having shopped at Woolworths Elizabeth and made purchases of $342.79 on that Sunday claiming he did so on the Saturday not the Sunday[107] but then conceded that he had done so on the Sunday[108]. He claimed to have visited Bunnings Munno Para and made a purchase that Sunday but then only later in cross examination said that he appeared to have also shopped at Bunnings Modbury that day but had no recollection of doing so. He initially made no reference to having taken his daughter to work that Sunday at Subway Modbury or having shopped at the adjacent Bunnings in Modbury but then variously claimed that he did so[109], but that he did not recall doing so[110].

Mr Brewer’s evidence about why he came to ask Person A to rake the sandpit and did not ask another student or students (including from the Year 7 group he was responsible for overseeing during the first event) was littered with evasion. Mr Brewer frequently resorted to general language: “may have”, “might have been”, “I might have had”, “Sometimes it was”, “Sometimes there were”, “may have been asked”, “would have raked”, “might have been numerous students asking”, “would have been”, “might have been hanging around” and “might have been asked to rake”[111]. He tended to avoid specifics. He denied he was able to rake both pits himself but conceded he did rake his pit later in the day. He claimed it was a “safety concern”[112] to have students passing the rake between them but there is no evidence he raised that explanation with any other person.

Mr Brewer claimed that whilst in the presence of Person A at the sandpit he observed Year 11 boys in the adjoining pit misbehaving but claimed he didn’t notice if one of them was Boyfriend A. He claimed he yelled that ‘those boys are being stupid’ but “didn’t yell out to the group of boys specifically”[113]. Yet later in his evidence he claimed that he did “try to get their attention”[114].

Secondly, important aspects of Mr Brewer’s evidence were implausible. For example:

Mr Brewer claims that he said in the presence of Person A whilst at the sandpit words to the effect “my shoulders are killing me – I could do with a shoulder massage myself” but that he said this out loud and to no-one in particular. He specifically denied it was directed at Person A[115]. I find that Mr Brewer said this and said it to Person A. To contend that it was said to no-one in particular is to stretch credulity. Mr Brewer’s evidence is that he was in conversation with Person A at the relevant time, albeit a series of disjointed conversations. His evidence was that he had also told Person A that he gives his wife massages. No-one else was in earshot of the conversation. A statement of this type was designed to be heard and the hearer was, in effect, being provided an opportunity to respond to the topic of Mr Brewer wanting a massage. I do not believe Mr Brewer’s claim that he said this to no-one in particular or for no particular purpose. Nor do I believe Mr Brewer claiming a lack of recall whether Person A was standing next to him at the time[116]. His evidence was that he was standing about one metre away from Person A whilst conversing. This reference to wanting a massage was part of their interrupted conversation. I prefer Person A’s evidence that this was directed at her and was said whilst he was speaking to her[117].

Mr Brewer claims that he said in the presence of Person A whilst at the sandpit words to the effect “If I were rich I wouldn’t have to do this stuff” and “If I’d married a rich lady I’d be laughing but I married for love and at the end of the day money can’t buy happiness” but that he said this out loud and to no-one in particular: “I was just thinking to myself”[118]. This too stretches credulity. Mr Brewer was not engaging in a Shakespearian soliloquy whilst at the sandpit. He was in conversation with Person A. His evidence was that at least at this point Person A was in earshot as he claims (and I have found) that she made reference to Boyfriend A being rich. Mr Brewer’s claim that he was again speaking to no-one in particular is implausible, and damaging to the credibility of his evidence as a whole.

Mr Brewer claims that he had “no idea” what items he purchased at Woolworths Playford on 4 March 2018 totalling $10.99 but claimed there were between three and five items[119]. Yet later in his evidence he had very specific recall that “I had to go down a couple of aisles to grab them and didn’t have just one thing in my hand I was holding a couple of things when I placed them on the checkout”[120]. It is implausible that Mr Brewer could specifically recall “a sticky note from my wife having those three or four things on it”[121] and that he walked down not one but “a couple of aisles” to make those purchases but then have “no idea” what he purchased. His recall was conveniently selective and evidence not persuasive[122]:

“DEPUTY PRESIDENT: How can you recall very specifically that you were holding two or three different items when you were making purchases in the Woolworths Playford store on that day but not recall whether on that day you went to two Bunnings stores?

MR BREWER: I don’t have an answer for that.”

Thirdly, Person A’s version is substantially consistent with the objectively established surrounding circumstances including her overall conduct on the sports day. She did not seek out Mr Brewer; he selected her. She was looking forward to participating in sports day events[123]. Yet, as a consequence of telling her friends of the sandpit conversation immediately after it had occurred and (after completing the next event) agreeing to speak to a teacher (Mr De Jager) about it, she caused herself to spend the bulk of the remainder of the day speaking to senior teachers including the College Principal and writing notes about what had occurred, and speaking to her mother about the same matters[124]. This is not conduct consistent with an orthodox or neutral student/teacher conversation having occurred at the sandpit. It is consistent with a conversation which the student considered sufficiently troubling to fundamentally disrupt her day of competitive sport and recreation. That she did so within a short time of the conversation having occurred is also a factor of some significance.

Fourthly, there is no evidence that might explain a motivation for Person A to make a false report or advance trumped up allegations against Mr Brewer. She had not sought him out. He was not her current teacher and had not been for nearly two years. He had not marked her down or held back her schooling in any way. He was a middle school teacher and Person A was now in senior school. Her sister Person C had been taught by Mr Brewer but years earlier than when he taught Person A. Whilst Person C may have had a negative view about Mr Brewer (a matter on which I have insufficient evidence to make a finding[125]), Person A displayed no animus. In fact, I accept Person A’s evidence that she was reluctant to initially report the sandpit conversation to a teacher, was only persuaded to do so by her friends and then her mother[126]. I also accept Mrs Carr’s evidence[127] and Person B’s evidence[128] that Person A didn’t want Mr Brewer to get into trouble.

The pattern of Mr Brewer’s evidence was that, when pressed, he accepted that he had dealings with Person A that ventured into personal or private subject matters but advanced an alternate and less incriminating version of what had occurred. For example:

That he did speak to Person A in the school yard whilst on the way to lessons but didn’t call her over to him;
That he did ask Person A if she was working the next weekend but didn’t ask for a specific time;
That he did shop at Woolworths Playford on Sunday 4 March 2018 but did so only once that day;
That he did queue for checkout service by Person A on 4 March 2018 but that happened to just be the quickest queue;
That he did ask Person A whilst she transacted his purchases on 4 March 2018 what she was doing that night but it was just small talk, and that she told him that she was seeing Boyfriend A;
That he did ask Person A over to rake the sand on sports day but she just happened to be the student who was standing around alone doing nothing in particular;
That at the sandpit he did discuss the subject matters of his family, his wife, his reason for marriage, his preference to be rich and not work, and wanting a massage but not in the terms portrayed by Person A;
That whilst he had been told by Person A on 4 March 2018 that she was going out with Boyfriend A[129], he made no critical comment about Boyfriend A during the sandpit conversation.

Overall the character of this evidence was evasive; designed to avoid making a damaging admission but to appear reasonable by not denying all elements of the allegations except the most grave.

There are further significant areas where Mr Brewer denied entering into conversation at the sandpit on a subject matter as alleged: a conversation about drinking wine with Person A, a conversation about becoming Person A’s sugar daddy, a conversation about paying Person A an allowance and a conversation to the effect that that he could treat her better than her boyfriend.

I do not accept Mr Brewer’s denials. Having considered the matter carefully, I accept Person’s A’s evidence in each respect. Person A’s evidence to the Commission on these topics was credible and plausible. It was also consistent with the contents of the two handwritten notes she made in the administration offices on 8 March 2018, consistent with her handwritten notes made during the investigation interview and consistent with what she told her mother that morning.

It is correct, as counsel for Mr Brewer contended, that the College investigation report alleged that Mr Brewer had told Person A that he could “buy her wine” whereas Person A’s evidence was that he had said they could “drink wine”. My finding is that Mr Brewer suggested to Person A that they could “drink wine” together. I am satisfied that the College made an error in framing this particular of its allegation. The Commission’s role in determining valid reason is not to assess the reasonableness of the employer’s decision but to make its own findings of fact as to whether misconduct occurred. Whilst there is a distinction between drinking wine and buying wine, for current purposes that distinction is immaterial. Both would be inappropriate and unprofessional remarks to make to a student, particularly in the context of a private conversation about wanting a massage, offering to be a sugar daddy and paying an allowance.

I specifically find that Mr Brewer suggested to Person A that he could be her sugar daddy. I am well satisfied that Mr Brewer used the words “sugar daddy”. I also find that Mr Brewer suggested to Person A that he could pay her an allowance. This was almost certainly said in conjunction with or immediately following his suggestion that he could be her sugar daddy. Person A’s evidence on these two matters was firm and consistent. It was also consistent with the contents of the two handwritten notes she made in the administration offices on 8 March 2018, and consistent with her handwritten notes made during the investigation interview.

I take into account, as contended by counsel for Mr Brewer, that Mr De Jager’s written report did not contain any reference to Person A having been told that she could be Mr Brewer’s sugar daddy. This does not however mean that this is not what was said by Person A to Mr De Jager, and even less so that it was not said by Mr Brewer to Person A. Person A’s evidence that she did in fact say this to Mr De Jager was unequivocal and credible[130]. Mr De Jager’s evidence was that he could not recall “exactly the words” used by Person A to him[131] and that he wrote his notes some hours later at the end of the day, without reference to the handwritten note made by Person A. Mr De Jager’s evidence also was that on subsequently re-reading Person A’s handwritten note that he did recall her saying to him the words “sugar daddy” in their conversation on the sports field on 8 March[132]. In these circumstances, the absence of the “sugar daddy” reference in Mr De Jager’s notes does not dissuade me from finding that this is what was said by Mr Brewer. It not only is the oral evidence of Person A but was also included in her handwritten notes, the account given to her mother, the notes made that day by Mrs Carr and the evidence of Person B.

I also accept Person A’s evidence that her interaction with Mr Brewer at the sandpit made her feel uncomfortable[133].

Based upon the aforementioned findings I conclude that Mr Brewer’s conduct at the sandpit on 8 March 2018 was a valid reason for dismissal. An open suggestion by a teacher to a female Year 11 student that he (the teacher) could do with a neck or head massage is inappropriate. A comment by a teacher to a student that they could drink wine in private is similarly inappropriate. So too is a suggestion by a teacher that he could do or be better for a student that her boyfriend. The suggestion that he (the teacher) could be the student’s sugar daddy is not just wholly inappropriate and unprofessional but veers towards the lurid. That this suggestion was accompanied or followed by a further suggestion that an allowance could be paid is appalling. Each of these statements in conversation was a serious breach of duty. In combination they are fundamentally inconsistent with maintaining a contract of employment as a teacher.

Counsel for Mr Brewer submitted that the term “sugar daddy” is a term still in modern usage and not, as claimed by the College during its investigation[134], an old fashioned term. It was contended that this would make it possible that a 16 year old could be sufficiently familiar with the term so as to include it in a false allegation against a teacher and conversely that it would be wrong to assume that it could only come from a teacher. I have found that the term was said by Mr Brewer during the sandpit conversation and said in the context of a suggestion on his part. It is irrelevant whether the term is in the modern lexicon or not. It is a term that propositions companionship or sexual favours in return for gifts or payments. The examples of its modern usage provided by Mr Brewer’s counsel simply assert this to be a practice that continues to this day. This neither explains nor mitigates the seriousness of Mr Brewer’s suggestion to Person A, nor makes Person A’s evidence on this point any less credible.

Whilst these were the most serious aspects of Mr Brewer’s conduct warranting dismissal, other aspects of his conduct during the sandpit conversation were unbecoming of a teacher when viewed in context. Whilst the line between social discussion and discussion of schooling matters between a teacher and student may not be black and white, Mr Brewer crossed that line in discussing his marriage, his wife, his desire to be rich and be elsewhere enjoying life rather than working at the school and passing critical observations about Person A’s boyfriend. This is particularly so given that Mr Brewer had been previously cautioned that comments by him to students were capable of being misinterpreted.

I am also satisfied that in selecting Person A to rake the sand for him, Mr Brewer was reckless to Person A’s interests. I do not accept his evidence in chief that Person A “was just the first student that I saw when I looked up”[135]. Students were moving on and around the oval at the start of sports day. Mr Brewer’s evidence is too convenient a proposition and is implausible. Given my findings of their previous interactions at school and at her place of work, it is far more likely that Mr Brewer’s eye was drawn to Person A. Mr Brewer did not ask any student other than Person A to rake the pit during this first event of the day notwithstanding Person A’s evidence (which I accept) that there were other students around including some not participating in jumping[136]. He selected her when there were other alternatives available to him, as he conceded in his evidence[137]. He was indifferent to her commitments that morning, resulting in her missing her first event.

Mr Brewer’s evidence was that the conversation he had with Person A was “limited” and “pretty mundane”[138]. I reject each of these characterisations. On either version, the subject matters discussed were not orthodox topics of discussion between a teacher and a student. I deliberately refer to “either version”. Given my findings, I need not determine the matter on the basis of Mr Brewer’s version about what was said during the conversations at the sandpit. Nonetheless, there is good reason to conclude that even on Mr Brewer’s version of events he was dismissed for a valid reason in that he engaged in conversation that was a breach of his professional duty.

Having found a valid reason for dismissal arising from conduct on sports day it is not necessary to determine whether Mr Brewer’s conduct in relation to Person A working at Woolworths Playford was also a valid reason for dismissal. However, for the sake of completeness I determine that matter.

I have made findings of fact to the effect that:

Woolworths Playford is 12km from Mr Brewer’s residence and multiple alternate Woolworths stores are closer to his home than Woolworths Playford including stores that are passed or bypassed en-route to the Playford store;
Mr Brewer has a rental property near the College (and thereby near the supermarket) and also has a friend living in Craigmore;
Mr Brewer frequently made small purchases at Woolworths Playford on Sundays in the months leading to his dismissal, usually by electronic means but sometimes by cash;
Mr Brewer also made small purchases at Woolworths Playford on weekdays; and
When shopping at Woolworths Playford on Sundays Mr Brewer would often if not always proceed to the checkout where Person A was working and engage in casual conversation with her.

These facts alone do not establish misconduct. Whilst a teacher should exercise caution about interactions with students outside of the school environment lest they become too familiar in a non-school setting, there is nothing improper in a teacher shopping for legitimate purposes at a supermarket (even a distant supermarket) in their private time irrespective of whether they know students of their school are working or may be working at that store. A supermarket is a place frequented by the public, not a private setting.

The allegation of misconduct against Mr Brewer is not that he shopped at the store but that he was shopping at the store to seek out Person A.

It is true that, in part, the material before the investigators was hearsay – as is some of the evidence before this Commission. It is also apparent from the investigation report that some of the hearsay evidence (such as the content of the written statements of Student A and Boyfriend A as to what Person A told them on 8 March) formed a material element of the conclusions drawn and recommendations made by the investigation panel.

However, it is also apparent that the College had before it, and had sought out, primary evidence from both Person A and Mr Brewer. To a material extent the investigator’s conclusions and recommendations were influenced by this primary evidence and the views they formed about the reliability of the respective conflicting versions.

In circumstances where only two persons are party to a conversation and where one or other of those persons report the conversation to others, it is understandable indeed almost inevitable that the overall body of evidence will include hearsay in statements made by the non-parties. There is no reason why an investigator should disregard such material. Reports made by others are relevant, albeit the content may have lesser weight than primary evidence. A conduct investigation is not a court of law or a quasi-judicial proceeding. It is an internal disciplinary process guided by the principle of fairness.

I do not consider that the investigators taking into account hearsay material was unreasonable. Nor do I consider that the College gave unfair weight to such material. I consider that the College acted wisely in asking for written records of the 8 March events to be made in writing quickly and independently on that day by Person A (twice), by Student A, by Boyfriend A, by Mr De Jager and by Mrs Carr. Irrespective of whether such records contained hearsay, they were legitimately part of the body of material on which conclusions could be drawn, together with the primary evidence of the complainant student and the accused teacher.

Mr Brewer was not denied procedural fairness on this ground.

Procedural Fairness: investigation panel’s views were predetermined

Mr Brewer contended that the investigator’s conclusions were not objectively formed but predetermined.

In support of this submission Mr Brewer asserts that the investigators took Person A’s statement first but delayed taking a statement from him. Mr Brewer also asserts that the investigation report in its draft form presumed wrongdoing on his part.

I do not agree.

The evidence of both Mrs Young and Mrs Carr was clearly to the effect that they were conducting an investigation according to established protocols and policies which were made known to Mr Brewer at the outset. Each explained that they considered it appropriate to obtain statements from Person A in advance of interviewing Mr Brewer. I am satisfied that this was neither unfair nor prejudicial. Indeed, it had the effect that the College could provide sufficient particulars of the allegations to Mr Brewer before seeking his response. There is nothing illogical in speaking to a complainant first before seeking a response from the accused. Had the College done so in reverse order, it could have reasonably been criticised for requiring the accused to explain his innocence before being satisfied that it had sufficient material to escalate a student complaint.

I also accept the evidence of Mrs Carr and Mrs Young that they brought an independent mind to the investigation and did not presume wrongdoing[148]. The evidence of their investigation (including the final report[149]) is that they contemplated the possibility that a student could make a complaint against a teacher for vexatious or ulterior purposes[150]. The fact that they considered this matter including in their final report is evidence that they did not prejudge or presume wrongdoing.

It is true that an early version of the draft report prepared by Mrs Young and exchanged with Mrs Carr referred to an allegation as “substantiated”. I accept Mrs Carr and Mrs Young’s evidence[151] that Mrs Young was populating a pro-forma report skeleton with information as it came to hand and failed to delete or alter this reference. Given the evidence of the exchanges between Mrs Carr and Mrs Young of versions of the draft and amendments to the draft, I am satisfied that this was inadvertence but not evidence of presumed wrongdoing. The early drafts of the investigation report before Mr Brewer’s version was received were populated by Mrs Young by and large with the complainant’s version only. This is not evidence of prejudgement but rather a consequence of the sequence in which material was sought and a desire to start working on a draft report. Failing to eliminate the word “substantiated” from the pro forma was an error of process but not an error of prejudgment.

Relevant conclusions about wrongdoing were not made by Mrs Carr and Mrs Young until after both versions and other statements (including from Mr De Jager and Mr Stork) were before them.

Mr Brewer was not denied procedural fairness on this ground.

Procedural Fairness: formal investigation rather than conciliation

Mr Brewer submitted that he was denied procedural fairness because the College’s response was misplaced; it conducted a formal conduct investigation rather than undertake informal conciliation with him or between him and Person A.

This submission fails to take into account the serious nature of the alleged misconduct and the duty of care the College held to investigate such matters and not put students in a position of risk or continuing risk.

Whilst certain workplace matters may lend themselves appropriately to conciliation, serious conduct matters generally require fact finding, investigation and response. This is particularly (but not exclusively) so in instances involving minors or where power imbalances exist in a workplace. Conciliation of Person A’s complaint would have run the risk of the College failing to uncover the essential facts about what had occurred between a teacher and a student and may have simply swept the issue under the carpet without risk factors being appropriately dealt with. Avoiding dealing with difficult issues such as these can also contribute to poor workplace cultures and may also be unfair to a complainant or an accused if the processes do not permit clear findings of fact to be made.

Mr Brewer was not denied procedural fairness on this ground.

Conclusion on procedural fairness

Taking all of these factors into account, I conclude that whilst there were minor failures in procedure by the College, those matters when considered in the context of the investigation and decision-making processes of the College as a whole did not individually or collectively deny Mr Brewer procedural fairness. The College’s investigation and decision-making processes were consistent with established procedures made known to Mr Brewer at the outset of the investigation, were professionally conducted and they afforded Mr Brewer a fair-go all round. They were neither unfair nor rendered the dismissal harsh or unjust.

Opportunity for support person (section 387(d))

Mr Brewer was afforded the opportunity to take advice, to have a support person assist him, and for that person to make representations on his behalf and attend meetings with him. Mr Brewer availed himself of those opportunities through Mr Bernardi of the IEU who acted (appropriately so) as more than simply Mr Brewer’s support person.

I conclude that the College did not unreasonably refuse Mr Brewer a support person.

Warnings concerning performance (section 387(e))

I have made findings that this matter concerned conduct, not performance.

Mr Brewer had received three previous letters in preceding years from his College Principal concerning misconduct or alleged misconduct[152]. One was a formal warning for conduct towards a student in breach of his duty of care, and one a “caution” for inappropriate action and language towards two students. One was inconclusive. Some retraining had been recommended and willingly undertaken by Mr Brewer arising from past events. Each letter formed an active part of his disciplinary history with the College and was referred to in the initial letter of allegation of 9 March 2018.

Although Mr Vieceli’s show cause letter of 30 April 2018 referred broadly to having “taken into account your past disciplinary history” his evidence as a whole leads me to conclude that it was Mr Brewer’s conduct concerning Person A as found by the investigation panel to have been sustained which was the operating basis for his dismissal, not his prior disciplinary record.

I have made findings concerning that conduct and concluded that Mr Brewer’s conduct constituted a valid reason for dismissal.

I have not taken into account Mr Brewer’s past disciplinary history save that the evidence establishes that Mr Brewer was on notice that care and attention was required in the manner in which he dealt with students and that his conduct could from time to time be misinterpreted as inappropriate. Some retraining occurred, though there is dispute over the characterisation of the follow-up action which was taken. The College referred to it as guidance on policy and relationship training; Mr Brewer referred to it as training about establishing rapport with students.

In any event, irrespective of whether previous incidents had led to mentoring or training (howsoever characterised) there was one formal disciplinary warning on his record, and a caution. A teacher (especially one with years of experience) engaging in conduct of the type I have found to have occurred needs no prior warning, cautioning or mentoring on their disciplinary record for a conclusion to be drawn that they have engaged in serious misconduct.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

The College is an educational institution of substantial size employing approximately 200 persons across teaching and non-teaching roles.

It has human resources capability and, as an independent entity rather than a Diocesan school, is entitled to access support on industrial matters (such as conduct investigations) from Catholic Education South Australia. An Assistant Director of that Office is allocated to that role.

The College has well-developed induction and training programmes and policies, some of which are specific to the school, but most of which are drawn from the sector as a whole. With the assistance it is able to access, it is equipped to undertake and commission disciplinary processes and workplace investigations.

Other matters (section 387(h))

Mitigation: harsh impact on Mr Brewer

It was submitted by Mr Brewer that his dismissal was harsh because of the impact it has had on him and the likely impact on his teaching career.

The evidence of Mrs Young is that the findings made against Mr Brewer would preclude him being re-employed as a teacher in the Catholic education system. The evidence also suggests that the Teacher’s Registration Board of South Australia has been alerted by the College and by Mr Brewer[153] (as is required) to the dismissal (and allegations) and is considering Mr Brewer’s registration. Mr Brewer has an apprehension that should his application to the Commission be dismissed, the Teacher’s Registration Board is likely to cancel his registration[154]. He has not applied for other jobs as a teacher whilst these proceedings are on foot, anticipating that a prospective school would not employ him in light of the alleged conduct and his dismissal.

He has skills as a massage therapist and previously worked in that role but says he would find it difficult to return to that industry after a prolonged period of absence[155]. He says that his skills as a teacher are not readily transferrable to other occupations[156].

He says he has been emotionally distressed by his dismissal and, with his wife, has a family of three children of school and university age to support. Although the College did not need to do so, it paid Mr Brewer six week’s pay in recognition of service. To a degree, albeit to a limited degree, this softened the financial blow of dismissal but only in the very short term.

Although these impacts on Mr Brewer are very real, they are not unique amongst other dismissed employees of his age and work history. Such factors alone do not outweigh conduct in breach of policy or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh.[157]

In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of the conduct, as well as my overall findings concerning procedural fairness.

I am not satisfied that the impact of dismissal on Mr Brewer renders the dismissal harsh.

Conclusion

This matter concerns summary dismissal for serious misconduct.

My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Brewer was harsh, unjust or unreasonable.

The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Brewer.

However, in cases such as this, the employer carries a considerable evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.

The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[158] as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

In reaching my conclusion, I adopt the approach set out by a full bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post:[159]
“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

I have found that in the course of his employment Mr Brewer acted inappropriately towards a female Year 11 student (Person A) both in the course of that student’s schooling and in the course of that student’s private working life. I have found that the conduct was recklessly indifferent to the legitimate rights of the student to not be subject to inappropriate and intrusive conversation about her private life and that of the teacher, and to not be subject to lurid and inappropriate suggestions about conduct the teacher could initiate between them.

I have also concluded that in their own right, each element of this behaviour was inappropriate, unprofessional, a breach of duty and a valid reason for summary dismissal.

Even without taking into account his past disciplinary history in which Mr Brewer was cautioned and put on notice that his behaviours towards students could be misinterpreted, dismissal was warranted. That a teacher with experience and who had (whether rightly or wrongly in their view) been cautioned about past behaviours, would nonetheless undertake such conduct suggests a cavalier disregard of professional obligations owed to his employer and to the students entrusted to its education and into his care.

These factors weigh heavily in favour of not disturbing what is a valid reason for dismissal.

Despite minor criticisms associated with the investigative and decision-making processes which can reasonably be levelled at the College, Mr Brewer was afforded a fair go all-round. Neither those factors nor the understandably severe impact of dismissal on Mr Brewer’s personal life (including the set-back to his career and career prospects) render the dismissal harsh, unjust or unreasonable.

The application is dismissed. I issue an order to that effect in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

J. Abbey with P. McCabe and A. Oehme, with permission, for the Applicant
K. Stewart with E. Haar, with permission, for the Respondent

Hearing details:
2018.
Adelaide.

30 and 31 August, 2 and 8 November.

[1] [2018] FWC 4580

[2] [2018] FWC 4661 and PR609787

[3] [2018] FWC 4661 and PR609788

[4] PR620227

[5] Statement of Joshua Brewer 26 July 2018 attaching documents JB1 to JB17 (A1); Supplementary Statement of Joshua Brewer 16 August 2018 (A2); Further Supplementary Statement of Joshua Brewer 28 August 2018 (A3)

[6] A7 Statement of Marine Brewer 16 August 2018

[7] A6 (People’s Choice), A9 (Mastercard), A10 (St George)

[8] A14

[9] A8

[10] R7 Statement of Leanne Carr 2 August 2018 attaching documents LC1 to LC15

[11] R9 Statement of Bruno Vieceli 2 August 2018 attaching documents BV1 to BV5

[12] R8 Statement of Susan Young 2 August 2018 attaching documents SY1 to SY6

[13] R6 Statement of Louis De Jager 1 August 2018 attaching documents LDJ1 to LDJ2

[14] R4 Statement of Person A 2 August 2018 attaching documents PersonA1 to Person A4

[15] R5 Statement of Person B 2 August 2018 attaching documents PersonB1 to Person B4

[16] For example, whether a conversation about events at Woolworths Playford on 4 March 2018 occurred on 4 March 2018 or on 9 March 2018 or both: Person B PN 2464 - 2491

[17] Person B PN 2396 - 2418

[18] Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

[19] LC1 Letter of Appointment 24.09.2010

[20] PN 384 - 385

[21] Brewer PN 92

[22] Brewer PN 367 – 370. A difference exists on the evidence of Mr Brewer and Mrs Carr as to whether it was for a single semester or a full year.

[23] Brewer PN 286 - 290

[24] Person A PN 1914 - 1957

[25] Brewer PN 277 - 279

[26] LC12

[27] LC13

[28] LC14

[29] LC 15; LC12A; R7 Statement of Leanne Carr paragraphs 52 and 54

[30] JB13

[31] A1 Statement of Joshua Brewer 26 July 2018 paragraph 131

[32] JB14

[33] A1 Statement of Joshua Brewer 26 July 2018 paragraph 136

[34] JB15 Letter 11.04.2016

[35] A1 Statement of Joshua Brewer 26 July 2018 paragraphs 24 - 27

[36] For similar reasons, this decision also substitutes the term ‘Boyfriend A’ when it refers to documentary or oral evidence which references that person’s given or surname

[37] Brewer PN 384 - 385

[38] Brewer PN 386

[39] Exhibit A8

[40] Brewer PN 419

[41] A2 Supplementary Statement of Joshua Brewer 16 August 2018 paragraphs 166 and 123; A3 Further Supplementary Statement of Joshua Brewer 28 August 2018 paragraph 264

[42] R5 Statement of Person B 2 August 2018 paragraph 6

[43] R4 Statement of Person A 2 August 2018 paragraph 37

[44] For similar reasons, this decision also substitutes the term ‘Student A’ when it refers to documentary or oral evidence which references that female student’s given or surname

[45] Ibid paragraphs 7 to 13

[46] A1 Statement of Joshua Brewer 26 July 2018 paragraphs 72 to 107

[47] Brewer PN 654

[48] R4 Statement of Person A 2 August 2018 paragraph 14; Person A PN 1287 - 1304

[49] LC11 Annexure 1; Person B1

[50] R5 Statement of Person B 2 August 2018 paragraph 10

[51] R6 Statement of Louis De Jager 1 August 2018 paragraphs 6, 7, 8, 9 and 10

[52] LC11 Annexure 2 page 2; Person A2

[53] Person A PN 1461 - 1468

[54] Carr PN 87, 94

[55] LC11 Annexure 1; Person B1 page 2

[56] R7 Statement of Leanne Carr 2 August 2018 paragraph 5

[57] LC2

[58] LC11 Annexure 1; Person B1 page 4

[59] LC11 Annexure 2 page 1

[60] LC11 Annexure 4 page 2

[61] LC11 Annexure 4 page 1

[62] LC11 Annexure 5; Person B2 pages 2 - 5

[63] JB2

[64] JB3

[65] LC3

[66] LC11 Annexure 5; Person B2 page 1

[67] JB4

[68] LC6

[69] JB6

[70] SY3

[71] SY4

[72] SY6 Annexure 9

[73] Of 12 pages: JB7 and LC11 Annexure 8

[74] LC8

[75] LC5A and LDJ2

[76] R7 Statement of Leanne Carr 2 August 2018 paragraph 35

[77] LC11 Annexure 2a

[78] LC11

[79] LC11

[80] BV3

[81] BV4

[82] BV5

[83] BV5 paragraph 5

[84] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]

[85] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

[86] Ibid

[87] King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]

[88] Edwards v Guidice (1999) 94 FCR 561 [6]-[7]

[89] Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16

[90] Briginshaw v Briginshaw (1938) 60 CLR 336

[91] (1992) 110 ALR 449

[92] Edwards v Guidice (1999) 169 ALR 89 at 92 per Moore J

[93] Parker v Garry Crick’s (Nambour) Pty Ltd t/as Crick’s Volkswagen[2018] FWCFB 279 at [124] – [125]; Hill v Peabody Energy Australia PCI Pty Ltd[2017] FWCFB 4944 at [15]; Heinz Company Australia Ltd v Green[2014] FWCFB 6031 at [14] – [15]; Budd v Dampier Salt Ltd (2007) 166 IR 407 at 14 - 16

[94] Person A PN 1591 - 1613

[95] Person A PN 1557 – 1569 and PN 1966 - 1969

[96] Person A PN 2077 – 2082 and PN 2127 - 2150

[97] Person A PN 1620 - 1632

[98] Person A PN 1810 – 1811 and PN 1816 - 1821

[99] Brewer PN 638, PN 642, PN 645

[100] De Jager PN 2742

[101] Brewer PN 378 - 380

[102] Brewer PN 549

[103] Brewer PN 548

[104] Brewer PN 555 - 556

[105] Brewer 532 - 556

[106] Person A PN 1075 - 1092

[107] Brewer PN 684

[108] Brewer PN 667 – 668; PN 688 – 689; PN 726

[109] Brewer PN 717, 721, 796

[110] Brewer PN 720, 791, 780

[111] Brewer PN 593 - 598

[112] Brewer PN 606

[113] Brewer PN 659 - 660

[114] Brewer PN 926

[115] Brewer PN 624 - 628

[116] Brewer PN 626

[117] Person A PN 1800 - 1809

[118] Brewer PN 646

[119] Brewer PN 661 – 662, 665

[120] PN 777

[121] Brewer PN 784

[122] Ibid

[123] Person A PN 1104 - 1109

[124] Person A PN 1434

[125] Brewer PN 298 - 302

[126] Person A PN 1295, PN 1299, PN 1338 - 1344

[127] Carr PN 65, PN 245, PN 266

[128] Person B PN 2542

[129] Brewer PN 587 - 588

[130] Person A PN 1881 - 1885

[131] De Jager PN 2743

[132] De Jager PN 2796

[133] Person A PN 1420 - 1424

[134] Carr PN 847

[135] Brewer PN 235

[136] Person A PN 1226 - 1228

[137] Brewer PN 607

[138] A1 Statement of Joshua Brewer 26 July 2018 paragraph 79

[139] Brewer PN 114

[140] Person A PN 2044 - 2051

[141] Carr PN 363 - 4

[142] LC1 Letter of Appointment 24.09.2010: “May I also refer to the information, guidelines, instructions and policies contained in the College Staff Handbook…”; see also LC 15: “I acknowledge I have received and read the St Columba Code of Conduct Document.”

[143] BV3

[144] BV5

[145] JB8

[146] Carr PN 727 - 728

[147] Carr PN 480 - 490

[148] Carr PN 41 - 42, PN 60, PN 112, PN 214, PN 281, PN 619

[149] LC11 page 6

[150] Young Audio transcript 8.11.18 at 12.02pm: “We had no reason to believe that she was trying to set Mr Brewer up. We considered that, that could have been a possibility” and at 12.58pm: “…we were discerning, do we have a reliable young person here? Is there the potential that she could have set this up? And so one of the questions asked around that is, to Leanne, was there anything in, in her student record or background that would indicate that this is a student that is likely to do such a thing, or, you know they were the sorts of things we were looking at…”

[151] Carr PN 641, PN 643 - 646

[152] JB 13 Letter 7 November 2011; JB 14 Letter 3 December 2013; JB 15 Letter 11 April 2016

[153] Brewer PN 254

[154] A1 Statement of Joshua Brewer 26 July 2018 paragraphs 140 to 142; Brewer PN 354 - 357

[155] Ibid paragraph 148

[156] Ibid paragraph 147

[157] For example, Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [48]

[158] [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

[159] [2013] FWCFB 6191

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