[2015] FWC 2927

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms RT
v
The School
(U2015/110)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 7 MAY 2015

Application for relief from unfair dismissal - misconduct - process of investigation - reinstatement - licence requirements - compensation.

[1] This decision is issued without publication of names. My position in this regard has been adopted following an invitation to the parties to consider such an approach. The respondent’s position is that neither it, nor the staff, students or parents should be identified. The applicant in this matter has not expressed a view relative to this issue but it appears to me that the most appropriate approach is to issue this decision without identification of any of the individuals involved. The parties have been provided with a legend to enable identification of the persons and organisations referenced in this decision.

[2] On 8 January 2015 Ms RT lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with The School. The application was referred to me for determination and was the subject of a hearing on 7, 8 and 22 April 2009. At this hearing Ms RT was represented by Ms Gray, of counsel and The School, by Mr Lazarevich, of counsel, followed by Mr Hynes, of counsel, on 22 April 2015. Permission was granted in each instance pursuant to s.596(2)(a) of the FW Act.

[3] Ms RT worked for The School, as a Reception class teacher from 2010. Her employment was summarily terminated by a letter, dated 19 December 2014, which she received on 23 December 2014. The School is a school which operates under the South Australian Catholic Schools Enterprise Agreement 2010. The school is a joint Anglican and Catholic College. It is autonomously managed and is the direct employer of its staff. Nevertheless, it draws support from, and operates consistently, with the Catholic Education system.

[4] There are no initial or jurisdictional issues associated with the application.

[5] In summarising the background to the application, I have noted that there are numerous issues of dispute between the parties. I have considered the significant differences between the parties later in this decision.

[6] Ms RT was dismissed following an investigation into allegations of misconduct as a teacher. In the termination of employment advice, The School referred to this investigation. The termination advice recorded that Ms RT had admitted that she had used masking tape to secure reception students to their chairs. Secondly, that termination advice recorded that The School had concluded that the allegation that Ms RT had slapped a child in her Reception class on the back of the hand was partially sustained. The School concluded that Ms RT's conduct was “in clear and substantial breach of the minimum standards of behaviour” 1 expected of a teacher at The School and was in breach of its policies such that her conduct amounted to serious misconduct. Ms RT was summarily dismissed with effect from 19 December 2014.

[7] Ms RT asserts that this employment termination was unfair for a range of reasons. She asserts that at least one of the findings which led to the termination of her employment were flawed and the manner of, and conduct of, the investigation resulted in confused and unreasonable judgements. She asserts that there was no valid reason for the termination of her employment. She asserts that the conduct relied upon was not sufficiently serious to justify dismissal and was no more than an error of judgement. Further, that while her actions were not best practice, they did not amount to serious and wilful misconduct but were impulsive and out of character and as such, that they should have been addressed through counselling or performance management. Ms RT asserts that there had been no previous warnings given to her relative to her performance. Ms RT asserts that, in any event, her conduct did not justify summary dismissal.

[8] Ms RT's employment over the duration of her employment at The School had not been subject to performance concerns. The investigation which led to the termination of her employment was commenced following a formal complaint made by the parents of a child in her class. This complaint was initiated on 11 November 2014 by a request for a meeting which was made to the Acting Head of The (Primary) School, Mr DP. Ms RT advised Mr DP that the complaint might relate to her use of masking tape relative to that child. Mr DP then met with those parents and a support person without Ms RT being present. In this meeting the parents confirmed their concern that their son had been secured to a chair with masking tape and that Ms RT had taken similar actions relative to two other children.

[9] The Acting Principal of The School, Mr P, subsequently spoke with the parents of the nominated children. I note that the manner and timing of those discussions represent differences between the parties. Notwithstanding these differences, the discussions gave rise to further concerns. The School management conferred with the Catholic Education Office and notified Families SA. I also note that a Police investigation into the matter was commenced but the evidence is unclear about how that investigation was initiated. I also note that the relevance of this investigation to the employment termination decision is, or may not be agreed between the parties.

[10] Ms RT continued to teach her Reception class after The School was alerted to the complaint about her.

[11] Mr P met with Ms RT on 25 November 2014. He advised Ms RT that allegations relating to her were being investigated and would be detailed in correspondence to be provided to her. He further advised that she would be stood down with pay pending this investigation. Mr P confirmed those allegations in correspondence he sent to Ms RT on that day.

[12] The allegations made with respect to Ms RT were set out in correspondence of 25 November 2014 in the following terms:

“.... it is alleged that on Monday 20 November 2014:

1. you used masking tape, like a seatbelt’ to secure Reception student S1 to his chair and told him he could not get up until he had finished his work

2. you used masking tape to secure Reception student S2 to her chair

In addition, it is alleged that you have on at least one previous occasion

3. used masking tape to secure S1 to his chair

4. used masking tape to secure S3 to her chair

5. slapped S1 on the back of the hand” 2

[13] Mr P and Ms PA, from the Catholic Education Office met with Ms RT and a UO from the Independent Education Union on 27 November 2014 to discuss these allegations. Notes of this meeting were taken by Ms PA and were provided to Ms RT. These notes 3 record that Ms RT did not dispute using masking tape to secure three children to their seats. She explained that the masking tape was placed across the children’s lap and down each side to the base of the chair.4 The notes record that Ms RT explained that, in at least one instance, she regarded this as being done “in a playful way” and that she described the tape as a “seatbelt”. Ms RT denied tapping a child on the back of his hand but said that she sometimes used a finger to point to the back of a child’s hand. She detailed the behaviour management strategies she used in the classroom. In the course of the meeting Ms RT demonstrated how she would bang on a table. I note that the parties dispute the advice about the manner of her conduct in this respect. Ms RT and the UO requested that various mitigating factors should be taken into account. These included:

● The size of her classroom
● The behaviour of various of her reception class students
● That these events were impulsive reactions
● That Ms RT had been teaching for more than 20 years without incident
● Her best friend’s eighteen year old son had recently died
● Her niece had attempted to commit suicide and
● Her son was experiencing a difficult time and had turned away from God.

[14] The UO advised that Ms RT was open to support, counselling and behaviour management support.

[15] The meeting then discussed a text message Ms RT had sent to a Ms ADP, the Acting Deputy Principal, which Mr P considered had breached his instruction to her not to discuss the matter with anyone at The School. The meeting concluded with discussion on the investigation process.

[16] Following this meeting, Mr P and Ms PA considered the information before them and prepared a report to the Chair of The School Council and the Director of the Catholic Education Office. That report proposed the termination of Ms RT's employment. It was put into effect in the letter dated 19 December 2014.

[17] Whilst I have taken all of the evidence before me into account in reaching my conclusions in this matter, I have briefly summarised the evidence of the witnesses in the following terms.

[18] Ms RT's evidence went to her career experience including her employment at The School. She agreed that she was aware of The School child protection policies and had been trained relative to this policy. 5 She detailed her experience that contact with children frequently occurs and it is sometimes unavoidable. In terms of her 2014 Reception Class, her evidence was that this was a difficult class to teach and manage, primarily due to three particularly difficult children. These were the children about whom the allegations were made. Her evidence went to the steps she took to manage their behaviour and the effect of that misbehaviour.

[19] Ms RT’s evidence confirmed the personal difficulties she experienced in late 2014. These included her best friend’s son dying from cancer in October 2014 and a niece attempting to commit suicide in the same month. As these events occurred in South Africa she advised that she had consequently spent a great deal of time at night talking on the telephone. Further, she advised that her son had adopted a different religious orientation which caused her significant distress and required that she take time off to attend psychologist appointments with him. Ms RT’s evidence also went to her assertion that various difficulties at The School were relevant to the circumstances which led to the termination of employment. These included issues associated with the former school principal, changes in the School management structure and a school musical production.

[20] Ms RT’s evidence went to detail her recollections of the incidents involving the three reception class children and her actions in these respects. Her evidence detailed the manner in which she was advised of the complaints and her subsequent contact with the then Acting Deputy Principal, Ms ADP. Ms RT gave evidence about how she continued to teach for a further two weeks after the concerns about her conduct were initially raised, before she was stood down from teaching on 25 November 2015. Her evidence went to her recollections of the investigation meeting on 27 November 2014 and to the extent that she expressed regret about the incidents and offered that she was prepared to undertake counselling or behaviour management support to assist her in the future. She advised Mr P that, whilst investigation was continuing, she would nevertheless complete her student reports. Mr P accepted this offer and her evidence went to her completion of those reports.

[21] Ms RT subsequently received a copy of the minutes of the meeting of 27 November 2014 and to her response 6 relative to the matters discussed.

[22] Ms RT’s evidence went to Christmas greetings she received from two of the three Reception families involved in the matter.

[23] Finally, Ms RT’s evidence went to advise that her Teachers Registration had not been renewed since it expired at the end of 2014. She expressed concern that she considered that this related to the incident that led to the termination of her employment and to advice which may have been provided by The School or not provided in a timely manner. She expressed concern about the significant profound impact of the termination of her employment on both her and her family and her inability to obtain suitable alternative employment.

[24] The UO is an Organiser with the Independent Education Union - South Australian Branch (IEU). Her evidence went to her involvement in the investigation of the allegations relative to Ms RT, including her participation in, and recollections of, the investigation meeting on 27 November 2014. These recollections went to detail the nature of Ms RT’s explanations of her behaviour relative to the complaints made against her. The UO’s evidence also went to discussions about a text message which Ms RT had sent to Ms ADP.

[25] Mr P is currently the Acting Principal of The School. His evidence went to Ms RT’s employment history, including the extent to which she had not been subject to any disciplinary procedures prior to this incident. Mr P’s evidence went to how he became aware of the complaints and the actions which he then took. These included his contact with the parent who initially raised the complaint and his difficulties in contacting the other parents. Mr P explained the assistance he obtained from Ms PA of the Catholic Education Office and his communications with Ms RT. His evidence went to his conduct of the meeting with Ms RT on 27 November 2014 and his subsequent discussions with Ms PA. This evidence was to the effect that he and Ms PA agreed on an Investigation Report which was provided to the Chairman of The School Council and to the Chief Executive of the Catholic Education Office. Mr P’s evidence was that the recommendation to dismiss Ms RT was endorsed and he then prepared the termination of employment advice, sent to Ms RT on 19 December 2014.

[26] Mr P’s evidence went to his concerns about the seriousness of Ms RT’s conduct and his concerns with respect to the reinstatement which she sought. Mr P confirmed that he considered that Ms RT’s conduct was a clear breach of The School’s policies and procedures. He also gave evidence about the extent to which any delay in providing advice to the Teachers Registration Board with respect to Ms RT was unintentional and had subsequently been addressed.

[27] Mr DP is the Head of Middle School at The School. His evidence went to the extent to which he understood that the Primary school teachers had been advised that any problems with particular children should be referred to him and that Ms RT had not referred any particular concerns about the three Reception class children to him and his recollection that only one of the three children needed to be taken out of the classroom by him.

[28] Mr DP’s evidence went to the contact made with him by a parent on 11 November 2014 and to his subsequent discussion with Ms RT about that concern. He recalled that Ms RT advised that the matter might relate to her actions in using masking tape to tape that child to his chair. Mr DP’s evidence was that he then met with those parents and established the detail of the complaint. Mr DP reported the matter to Mr P and made a report to Families SA. Mr DP advised that he also considered that Ms RT’s conduct breached The School’s policies and procedures regarding physical contact with a student was a clear last resort associated with circumstances where there was danger to that, or to other students, or to staff.

[29] Ms PA was the Principal Consultant with Catholic Education South Australia who advised and assisted Mr P in the investigation into the allegations against Ms RT. Her evidence went to the advice she provided to Mr P and to her participation in the investigation meeting on 27 November 2014. Ms PA then addressed the Investigation Report and recommendation provided to the Chair of The School Council and to the Director of the Catholic Education Office. The material provided by Ms PA incorporated reference to a South Australian Police investigation. Ms PA’s evidence was that she became aware of that investigation after the investigation report and recommendations had been prepared and hence did not take that police investigation into account in recommending the termination of Ms RT’s employment. Further, her evidence was that the Catholic Education Office normal protocol in circumstances where it was aware of a police investigation, involved delaying its disciplinary investigation.

[30] In the proceedings on 22 April I was provided with an affidavit made out by the Secretary of the Independent Education Union, Mr Bernardi. In this statement Mr Bernardi advised of his understanding that the Police investigation had been concluded. Notwithstanding the third hand nature of this advice, I have accepted it. Further, Mr Bernardi attached advice which indicated that the status of Ms RT's registration was to be considered in May 2015. I have considered this, together with Ms RT's submission that these proceedings should be delayed pending the Teacher's Registration Board considerations.

Findings

[31] Before considering the provisions of s.387 of the FW Act, I have set out below my conclusions about the relevant factual circumstances and the major issues of dispute between the parties in this matter.

[32] The School requires its staff to comply with comprehensive policies and procedures. Those policies reflect the policies applied and adopted by the South Australian Commission for Catholic Schools. Ms RT's acceptance of her employment offer 7 confirmed her awareness and commitment to those policies. Additionally, Ms RT did not argue that she was unaware of those policies.

[33] The Policy for the Care, Wellbeing and Protection Of Children and Young People 8 establishes the high priority attaching to the care of children. The role of the teacher is specified in The School specific policy.9 The School Standards and Teacher Standards10 establishes the general expectations of teachers.

[34] The School Student Behaviour Management Policy 11 establishes the process for dealing with Inappropriate Student Behaviour.

[35] Catholic Education South Australia, together with the South Australian Government and the Association of Independent Schools of South Australia set out its Protective Practices for staff in their interactions with children and young people in the form of guidelines for staff working or volunteering in education and care settings. 12 These guidelines are clearly expressed to form part of the child protection policies applied within South Australian schools. These guidelines address the legal issues and professional boundaries for teachers. They address physical contact in the following terms:

“Appropriate physical contact by a staff member to assist or encourage a child or young person

At times, staff will be required to give practical assistance to a child or young person who is hurt or needs particular assistance or encouragement. Examples of appropriate physical contact are:

administration of first aid

supporting children and young people who have hurt themselves

assisting with the toileting and personal care needs of a disabled child or young person (an individual plan for children and young people with these needs must have been negotiated with parents)

non-intrusive gestures to comfort a child or young person who is experiencing grief and loss or distress, such as a hand on the upper arm or upper back

non-intrusive touch (eg congratulating a child or young person by shaking hands or a pat on the upper arm or back). Staff should remember the importance of accompanying such touch with positive and encouraging words.” 13

[36] These guidelines detail the circumstances where physical contact by a staff member to assist or encourage a child or young person is appropriate. They continue to specify good practices in the following terms:

“Good practice with school-age children and young people

Seek children and young people’s permission to touch (keeping in mind that a highly distressed child or young person may be incapable of expressing their wishes).

Avoid being with a child or young person in a one-to-one, out of sight situation, and never touch a child or young person in such a situation.

Do not presume that physical contact is acceptable to a particular child or young person. Even non-intrusive touch may be inappropriate if a child or young person indicates he/she does not wish to be touched.

Respect and respond to signs that a child or young person is uncomfortable with touch.

Use verbal directions rather than touch (eg ask a child or young person to move in a particular way, rather than physically place the child or young person in the required position).

Use the above approach for demonstrations in dance, sport, music and drama. Where touch is essential for safety reasons (eg with aquatic or gymnastic instruction), always tell the child or young person that you need to hold him/her in a particular way and seek his/her permission to do so.

In some circumstances, staff may need to discourage younger children from inappropriate expectations of hugs or cuddles. This should be done gently and without embarrassment or offence to the child.” 14

[37] The guidelines refer to physical restraint where a child or young person's safety is threatened. 15 They set out acceptable and unacceptable behaviour. Unacceptable behaviour is set out in the following terms:

“Don’t

Don’t use restraint that involves:

- force applied to the head or neck
- restrictions to breathing
- punching
- kicking
- holding by the hair or ear
- confining a child or young person in a locked room or limited space
- placing children under school age in ‘time out’ or ‘time away’.” 16

[38] The School Code of Conduct 17 sets out the expectations of staff including the maintenance of appropriate professional boundaries in relation to behaviour toward children.18 This must clearly refer to the guidelines and consequently a breach of those guidelines must constitute a breach of the Code of Conduct. There can be absolutely no doubt that the policy framework establishes the maintenance of these appropriate professional boundaries as an important priority.

[39] The evidence of Mr DP, Mr P and Ms RT confirms that The School staff were aware of the school's policies. For instance, Ms RT's evidence was that:

“I am aware of the school’s child protection policy. I undertook training on this policy in or about 2013. I am aware that as part of that policy it says something to the effect that children should be safe, and so far as possible that verbal comments should be used, and that physical contact should be minimised.” 19

[40] Ms RT asserted that physical contact between teachers and students was common. In this respect I prefer the evidence of Mr P and Mr DP, to the effect that such contact was not commonplace and occurred in a manner consistent with the guidelines. Mr DP's evidence in this respect was clear and precise:

Mr Lazarevich: and can you explain to the Commission what kind of circumstances?

Mr DP: almost as a last resort where there would be either danger to other students, danger to the student themselves or with us being there trying to support the student, then to us as well. 20

[41] I do not consider that Mr DP’s evidence can be fairly taken as indicative of widespread avoidance or disregard for the policies relating to physical contact between teachers and students.

[42] I have concluded that regular and substantive breaches of these guidelines by staff or management of The School have not been made out.

[43] Ms RT asserted that her 2014 Reception class was a more difficult class to teach than any other in her experience at The School. 21 In this respect she particularly referred to the three children who she taped to their chairs.22 She also referred to the inherent limitations associated with the relatively small size of her classroom.23

[44] On the evidence before me I have concluded that Ms RT may well have had difficulties relative to her Reception Class and three children particularly. However, I am not satisfied that in these respects she followed the procedures for addressing such situations and the policy of dealing with inappropriate behaviour. I accept the evidence of Mr DP, to the effect that he was only called on to assist relative to one of the three children who were later taped to their chairs. I accept that Ms RT utilised the assistance of a Ms CC, another staff member, to prepare material to encourage at least one of these three children to remain focussed in the classroom.

[45] Notwithstanding this, I am not satisfied that Ms RT had exhausted the normal behavioural management tools available to her with regard to the class generally and to the three particular children specifically. I have concluded that there can be no doubt that Ms RT had not reached a point in her dealings with these children which legitimised physical contact consistent with those policies.

[46] I have accepted that Ms RT may have been stressed in 2014 as a result of personal issues associated with her friends and relatives. I have also accepted that she may have been unsettled by changes in the school management. However, I do not consider that these personal issues abrogated her responsibility or her capacity to properly fulfil her teaching duties. Further, there is nothing before me that establishes that Ms RT was not aware of which manager was responsible for particular roles within the school. Ms RT's own evidence was that she was working hard. There is no evidence to indicate that she approached the school management and advised that she was incapable of properly fulfilling her duties as a teacher.

[47] The allegations detailed to Ms RT in the 25 November 2014 correspondence were that she used masking tape "like a seatbelt" to secure three Reception Class children to their chairs. Further, that she slapped a Reception child on the back of the hand. I am satisfied that these allegations formed the basis of the investigation into Ms RT's conduct.

[48] I have concluded that Mr P was aware of these allegations on or around 11 November 2014 but that he decided to leave Ms RT in her Reception Class teaching role pending his commencement of the investigation. In this respect I have concluded that the delay was because Mr P had arranged various appointment interviews over that time. I have concluded that Mr P had concluded that the Reception Class children were not at risk over this time because Ms RT was aware of the concerns about her behaviour and because none of the parents of the children involved had requested that their children be removed from her class. In this latter respect I have noted that for at least part of this time, Mr P had not advised two of these parents of the details of the matter. Nevertheless, I have concluded that he formed a professional conclusion that Ms RT's continued teaching of the Reception class was appropriate pending the commencement of the investigation. Consequently, I have concluded that the basis for Ms RT's suspension from 25 November 2014 was a result of Ms PA's involvement and the application of disciplinary procedures customary within the Catholic Education system.

[49] In considering the delay between the School becoming aware of the allegations and the commencement of the formal investigation, I have noted that the School applied some personnel resources to monitoring at least one parent's contact with other parents to assess what I have concluded was the "parent gossip" potential. I am unable to easily reconcile these efforts with the decision to leave Ms RT in a teaching role. Simply put, given the School's policies and the significance of the allegations against Ms RT, I have concluded that the decision to leave her teaching role unchanged has not been adequately explained.

[50] After Mr P formally advised Ms RT of the allegations I accept his evidence that he advised her that during the period of her suspension she should not contact parents or staff. 24 I also accept that, despite this instruction, Ms RT contacted Ms ADP and expressed her concern and disappointment at the process being followed by The School.25

[51] Notwithstanding that Ms RT did not follow Mr P's instructions in this respect, I do not consider that this matter was taken into account in the subsequent termination of employment decision-making process.

[52] I have concluded that the termination of employment decision was made following the investigation meeting on 27 November 2014. I am satisfied that the allegations were fairly put to Ms RT and that she was given a fair opportunity to respond to them. I have concluded that the notes of that meeting taken by Ms PA 26 and then forwarded to Ms RT for confirmation, fairly summarised the meeting.

[53] I am unable to discern anything inherently unfair in the conduct of that meeting. In that meeting I have concluded that Ms RT did not dispute the proposition that she used masking tape to secure three reception children. She may not have used the term "secure" but I am satisfied this term was put to her to describe the allegations. Ms RT conceded that she took this action in response to inappropriate behaviour by these children. She conceded that she repeated her use of the masking tape because it initially resulted in a change in behaviour. She agreed that at least one of the children may have been scared by her actions. In this respect her advice at that meeting is consistent with her text message advice to Ms ADP on 25 November 2014 in which she stated:

“.... This would not have happened to a teacher in Trinity- they stand up for their teachers and know that sometimes their is a good reason for teachers to act impulsively. I might have frightened S1 that day and for the few minutes that he had masking tape around his lap(not touching his body and it even came loose) he might have been scared but to ruin a teacher’s career and the future of her family without once showing compassion or putting her good qualities to the parents and support that teacher is just heartbreaking. ....” 27

[54] In considering the allegations made against Ms RT, I have taken into account the written advice she provided after this meeting, on 4 December 2014. In this letter 28 Ms RT provided additional comments relative to her actions.

[55] I have concluded that the allegations that Ms RT secured the three Reception children to their chairs with masking tape on multiple occasions were substantiated. I accept that the masking tape may not have touched the children's skin and that it may have been physically possible for the children to break out of this tape. Nevertheless, Ms RT clearly intended that the children should regard themselves as "secured". Ms RT's behaviour in these respects was inconsistent with the expectations of her as a teacher in terms of the guidelines and specified standards.

[56] On the basis of the advice provided by Ms RT I can only describe her actions in these respects as deliberate. These were not instances where the children were secured by masking tape accidentally. Ms RT made deliberate decisions to use the masking tape. She characterised it as being like a "seat belt" and she repeated her use of the masking tape after the first occasion.

[57] Contrary to her submissions in this respect, I am unable to regard Ms RT's behaviour as a "storm in a teacup". This behaviour clearly breached a significant policy requirement and created the real potential for harm to children entrusted to Ms RT's care. An attempt to characterise the matter as trivial appears to reflect a significant failure to appreciate a vital School policy requirement.

[58] In terms of the allegation that Ms RT slapped a child on the back of the hand, the evidence of Ms RT and that of the UO about Ms RT's actions to gain the attention of the students is, in a number of respects, at odds with Mr P's and Ms PA's evidence. A particular example relates to just how hard she slapped her hand down on the table. The evidence before me is not conclusive of behaviour which permits a conclusion that this allegation was partially made out but it legitimately gives rise to some concern about the nature of Ms RT's teaching practices relative to The School practices and procedures.

[59] Relative to the allegation that Ms RT slapped a Reception student on the back of the hand, the report found this allegation to be partially sustained. On the material before me I am unable to share this particular conclusion. It seems to me that if the contact Ms RT had with the student's hand was accidental it could not properly be considered to be a slap.

[60] The Investigation Report 29 was prepared by Mr P and Ms PA. With respect to the allegations that Ms RT secured three Reception children to their chairs using masking tape, I am satisfied that the findings in this report were fairly based on the evidence before Mr P and Ms PA.

[61] This Report acknowledged the mitigating factors identified on Ms RT's behalf. Whilst it did not record Ms RT's commitment to additional professional development and preparedness to change her practices, I am satisfied that Ms PA and Mr P considered professional development options following their investigation. Of itself, the report did not recommend specific actions with respect to Ms RT's employment. Those recommendations were set out in Mr P's email to The School Chairperson and Ms PA's corresponding email to her Chief Executive of the same date. That email stated:

“The three allegations of taping students to their chairs were all sustained. The allegation related to slapping a student was partially sustained on the basis of Ms RT’s own evidence and her description of strategies she generally uses to manage student behaviour. While Ms RT was very open and appeared honest and expressed a sincere apology in her responses; the panel believe that her teaching strategies are deeply entrenched in her practice and lack of contemporary understanding of child development as it relates to personal responsibility and safety. While mitigating factors may have caused her to be less patient, the panel finds that Ms RT endeavoured to justify that her present classroom methods are appropriate; for example she expressed that she did these things in a ‘playful way’ and that she ‘did not intend to scare the children’. Ms RT expressed that she was busy and needed to get her work completed and that the children were playing up. Ms RT’s expectation of Reception students was for compliance. The panel finds this to be a teacher-centric mindset that pervades her management of student behaviours in the classroom. The panel finds Ms RT’s decision to tape the children in order that they remain in their seats to be grossly inappropriate for any teaching situation, much less in a Reception class where children have little prior concept of a formal learning setting and are therefore less likely to raise complaint. The panel find that Ms RT knew that it was her duty as a teacher to provide a safe learning environment for children in her care and that she recognised that she was placed in position of trust with five year old students. The panel find that Ms RT knowingly employed behaviour management strategies that scared children and that left some feeling vulnerable and reluctant to attend school.

The panel find that there are grounds to dismiss Ms RT from her position.

The panel strongly recommends that if dismissal is not considered that Ms RT should receive a final warning and that Clause 44 of the South Australian Catholic Schools Enterprise agreement 2013 be immediately evoked and a comprehensive performance management program be designed. This should be designed to ensure that Ms RT undertake appropriate professional management in all policies and procedures that relate to teacher conduct, student behaviour management and contemporary classroom management strategies.

The panel find that Ms RT should not be placed in an Early Years classroom in 2015.” 30

[62] Mr P’s and Ms PA’s evidence was that both the Chairman of the College Council and the Chief Executive of Catholic Education agreed that Ms RT should be dismissed. No evidence indicative of discussions about how that dismissal should be effected was put to me. On the evidence before me, I have concluded that Mr P was simply made aware of support for that termination option. I have concluded that no advice was provided to Mr P relative to the detail and manner of the termination of Ms RT’s employment. I have also accepted the evidence of Ms PA, to the effect that she was made aware of a police investigation after the report was concluded, but that investigation was not taken into account in the employment termination recommendation. There is nothing to indicate to me that this Police investigation was taken into account elsewhere in the decision-making process.

[63] The employment termination decision was set out in correspondence to Ms RT dated 19 December 2014 and was received by Ms RT on 23 December 2014. That letter 31 detailed the outcome of the investigation. It acknowledged Ms RT's honesty in the investigation process but concluded that her conduct was in "clear and substantial breach of the minimum standards of behaviour" expected of a teacher and amounted to serious misconduct. It advised Ms RT that her employment was summarily terminated.

[64] I have considered that summary dismissal in the context of the termination of employment provisions of clause 36.1 of the South Australian Catholic Schools Enterprise Agreement 2010 which states:

“Clause 36: Disciplinary Action

36.1 Summary dismissal

36.1.1 If a Teacher is:
1. guilty of serious and wilful misconduct; or
2. is persistently absent from duty without proper cause; or
3. is guilty of serious and wilful neglect of duty; or
4. refuses to obey any reasonable order; or
5. for any other lawful cause of summary dismissal;

the employer may terminate the employment of the Teacher without notice.

In the case of summary dismissal, salary will be paid up to the time of dismissal only.

36.1.2 Disciplinary action and dismissal in other circumstances
1. If a Teacher is negligent, inefficient, incompetent or unsatisfactory in the discharge of his or her duties, then the employer must inform the Teacher of the particulars in writing and provide counselling to assist the Teacher to overcome the inefficiencies or incompetence.
2. The procedure detailed above will be repeated over a period covering at least two terms (which need not be complete terms) before notice of termination is given to the Teacher.
3. Notice of termination will be in writing giving 6 weeks' notice (or payment in lieu) and will state the reasons for the termination and details of the counselling provided.”

[65] Whilst Ms RT was dismissed for serious and wilful misconduct I have noted that she was permitted to continue to work as a teacher in the same class for some two weeks after the allegations against her were bought to the attention of the School. I have also noted that clause 15.11.4 confirms a six (6) week notice requirement or payment applicable in the event of dismissal other than for serious and wilful misconduct.

[66] The final background issue upon which I have reached specific conclusions relates to Ms RT's current standing as a teacher. In her evidence she advised that her teacher's registration had expired at the end of 2014. I have accepted the evidence of Mr P to the effect that any delay in the provision of information to the Teacher's Registration Authority was the effect of an accidental misunderstanding between The School and Catholic Education South Australia and the requested information has subsequently been provided. I have concluded that the standing of Ms RT's Teacher's registration status is likely to be confirmed within the foreseeable future. I have adopted the position that she cannot, and could not, work as a teacher without that Registration in place. I have also concluded that, irrespective of whether that registration is renewed, Ms RT is unlikely to be re-employed within the Catholic education system in South Australia as a consequence of the circumstances of the termination of her employment unless she is reinstated at The School.

[67] Section 387 states:

“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.”

[68] I have considered each of these factors individually and collectively.

Valid Reason

[69] Notwithstanding that the legislative regime has undergone substantial subsequent change, I have applied the general approach to the concept of a valid reason set out by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 32.

[70] I have concluded that Ms RT's behaviour in using masking tape to secure three Reception Class children to their chairs was a clear breach of The School Protective Practices Policy. The importance of this policy was articulated in the School's and Catholic values system and was known to Ms RT. Ms RT's behaviour was deliberate rather than accidental. It was behaviour that was then repeated deliberately. It was behaviour that even Ms RT recognised may have scared at least one of the children and it must be regarded as representing a valid reason for the termination of her employment. As I have indicated, that behaviour must be regarded as misconduct. I do not consider that it can be properly characterised as "not best practice" or as trivial.

[71] I am not satisfied that the partially made out allegation that Ms RT slapped a child on the back of the hand has been established, or that this represents a valid reason for the termination of her employment. There is simply too much inherent uncertainty about that allegation and what actions Ms RT actually took to permit a finding that this represented a valid reason for the termination of her employment.

[72] Notwithstanding this, the masking tape incidences represent a valid reason for her employment termination and are of such significance that termination of Ms RT's employment was an appropriate response. I am satisfied that, if that behaviour alone was considered, summary dismissal was appropriate. I have considered other issues impacting on Ms RT's summary dismissal later in this decision.

[73] In concluding that there was a valid reason for the termination of Ms RT's employment I have adopted the position set out in Sharp v BCS Infrastructure Support Pty Ltd 33 with particular reference to the following observations:

“[32] .... Nor is the existence of a valid reason to dismiss assessed by reference to a legal right to dismiss. Therefore whether Mr Sharp’s admitted conduct amounted to misconduct serious enough as to give rise to the right to summarily dismiss him under the terms of his contract of employment was not relevant to the required s.387(a) consideration. It may be noted in any event that Mr Sharp was not summarily dismissed, but dismissed with a payment in lieu of notice.”

[74] I have also considered the teacher specific circumstance considered in the following matters.

Notification of the reason

[75] Ms RT was advised of the reasons for the termination of her employment in the letter of 19 December 2014.

Opportunity to Respond

[76] Ms RT was given a comprehensive opportunity to respond to the allegations against her and was made aware of the seriousness of those allegations. Her responses were taken into account in the considerations that led to the termination of her employment.

Unreasonable Refusal to allow a support person

[77] Ms RT had access to the UO as her Union representative in the investigation process. Not only was that access facilitated but notes of the meeting were provided to Ms RT.

Unsatisfactory Performance and Warnings

[78] Ms RT was not dismissed for unsatisfactory performance in that her prior performance was not at issue. There were no warnings relative to her work or work performance.

Size of The School - existence of Policies and procedures

[79] The School has various policies and procedures specific to it as a college. It also adopts and applies other policies and procedures relevant to the Catholic Education system more generally. These policies generally relate to teaching principles and approaches rather than to articulate human resource management policies and procedures. That more specific policies are not adopted in a school such as this, is a matter for The School to consider, but I have concluded that the apparent absence of clearly articulated human resource management policies and procedures led to a delay in the commencement of the investigation process and to confusion relative to the significance of the allegations against Ms RT. That policy gap also contributed to the manner of the actual termination of Ms RT's employment.

Size of the The School enterprise - access to specialist Human Resources expertise

[80] The School is a substantial employer. Notwithstanding this, it does not have access to specialist internal human resource management expertise and utilises the resources of the Catholic Education Office. I have concluded that those resources were utilised during the investigation process but that they were not called upon as soon as the allegations against Ms RT were made. Further, that those resources appeared to operate so as to provide independent advice to the School's management and to the Catholic Education Office. Further, the specialist advice appeared to cease once the termination of employment decision was made by The School Council and did not extend to the manner of implementation of that decision. As a consequence, I have concluded that the capacity of The School to access specialist human resources expertise was limited and have taken these limitations into account in my overall assessment of Ms RT's circumstances.

Other factors considered relevant

[81] The School's decision to leave Ms RT teaching her Reception class after it was aware of the allegations against her was fundamentally inconsistent with the subsequent decision to suspend her and then summarily terminate her employment. In simple terms, if her behaviour was that significant, the School acted inappropriately by allowing her to continue to teach before it even commenced its investigation. Alternatively, Mr P's conclusion that the Reception students in Ms RT's class were not at risk, then substantially undermines the later conclusion that her behaviour warranted summary dismissal. Had Ms RT been dismissed with notice or a payment in lieu thereof, this would not have assumed such significance but the requirement in clause 36 of the South Australian Catholic Education Enterprise Agreement 2013 is that summary dismissal follows from serious and wilful misconduct. In this context I am unable to reconcile the termination decision with the decision to permit Ms RT to continue to teach after the allegations against her were made.

[82] I have also considered the mitigating factors relied on by Ms RT. I am not satisfied that her personal circumstances, which occurred over the duration of that final school term, were such that these explained or exonerated her behaviour. Simply put, Ms RT held a position of substantial responsibility. If she was not physically or emotionally able to properly undertake those duties she was obligated to advise The School of this. I am not satisfied that she did that.

[83] I have also considered Ms RT's concerns about the management and operational issues at The School, including her classroom size. I am not satisfied that any of these issues were such that they exonerated or explained her behaviour.

[84] I have no doubt that the termination of Ms RT's employment has had a substantial effect on her in social and economic terms. Indeed, depending on the deliberations of the Teacher's Registration Board, there may be longer term implications for her. I have been asked to delay the finalisation of my conclusions about whether the termination of Ms RT's employment was unfair pending clarification of that registration status in any event. Whilst I have taken this substantial and potentially long standing impact into account, it must be assessed in the context of her behaviour and the fact that renewal of her Teacher's Registration is a matter quite outside of this jurisdiction. Evidence which establishes a direct and exclusive link between her dismissal and her Registration is not before me and I have concluded that other factors, including, but not limited to, the police investigation, may impact on that registration issue.

Conclusion - harsh, unjust or unreasonable

[85] I have noted the various authorities to which I have been referred. In particular, Ms RT’s circumstances are quite different to those considered by Newell C in Krix v Director-General, Department of Education and Communities. 34 Notwithstanding that there is no suggestion that Ms RT’s behaviour was of such a nature, I am unable to then found an alternative conclusion simply because of that degree of difference.

[86] I have also considered Ms RT’s circumstances in the context of the Full Bench decision in King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta. 35 Again, Ms RT’s circumstances are substantially different to those considered in that matter. There is absolutely no suggestion of any sexual impropriety relative to Ms RT. Again, I am unable to found a conclusion relative to Ms RT on that decision. Notwithstanding this, one aspect of that decision provides an appropriate insight into the broader considerations relevant to teachers. The Full Bench stated:

“.... The duty is not confined to school hours or teachers’ hours of duty at the school.24 Secondly, as in any employment relationship, the teaching authority is vicariously liable for the conduct of a teacher committed in the course of his or her employment. ....” 36

[87] I have concluded that Ms RT's summary dismissal was harsh in that while her conduct provided a valid reason for the termination of her employment, The School's decision to permit her to continue to teach after the allegations against her were made was inconsistent with that summary dismissal. Had the dismissal been with notice, I may have arrived at a different conclusion.

[88] I have concluded that the termination of Ms RT's employment was not unjust in that her behaviour was fundamentally inconsistent with the reasonable and clearly articulated expectations of her as a teacher. That behaviour was deliberate and was repeated.

[89] The termination of Ms RT's employment was not unreasonable in that it followed a fair and equitable investigation process.

[90] Section 387 requires only that I reach a positive conclusion about one of these factors. Given that I have concluded that the termination of Ms RT's employment was harsh I have concluded that the termination of her employment was unfair. In these circumstances s.390 empowers the Commission to consider a remedy.

[91] The primary remedy is that of reinstatement. This is set out in s.390 in the following terms:

“390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

[92] Ms RT seeks reinstatement with payment of lost wages. This is strongly opposed by The School.

[93] A significant issue in this respect goes to Ms RT's standing as a teacher. At the present time she is not registered. Ms RT seeks that consideration of reinstatement is deferred pending finalisation of a position by the Teacher's Registration Board. I have noted that, at least in part, this submission relies on the contention that the timing of the Board's considerations is a consequence of delayed responses by The School and Catholic Education South Australia. In terms of that registration s.20 of the South Australian Teachers Registration and Standards Act states:

“20--Requirement to be registered

(1) A person must not--

(a) undertake employment as a teacher, principal or director at a school or prescribed service; or

(b) for a fee or other consideration, personally provide primary or secondary education, or offer to do so; or

unless the person is a registered teacher.
Maximum penalty: $5 000.

(2) A person must not employ another person as a teacher, principal or director at a school or prescribed service unless the other person is a registered teacher.

Maximum penalty: $10 000.

(3) A person must not employ another person in the course of a business to provide primary or secondary education unless the other person is a registered teacher.

(4) ...”

[94] I have decided against deferring consideration of the remedy issue for the following reasons. Firstly, s.381 sets out the objects of the unfair dismissal provisions in the following terms:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[95] Secondly, s.577 of the FW Act requires that the Commission hear and determine issues expeditiously. This appears to be incompatible with the proposition that I await the outcome of professional deliberations of an entirely different statutory body.

[96] More significantly, I have concluded that, even if Ms RT's registration is reinstated so as to permit reinstatement to The School, it would not be appropriate that I reinstate her on an unqualified basis. I have set out my reasons for that conclusion.

[97] Ms PA's and Mr P's professional opinion was that:

“The panel strongly recommends that if dismissal is not considered that Ms RT should receive a final warning and that Clause 44 of the South Australian Catholic Schools Enterprise agreement 2013 be immediately evoked and a comprehensive performance management program be designed. This should be designed to ensure that Ms RT undertake appropriate professional management in all policies and procedures that relate to teacher conduct, student behaviour management and contemporary classroom management strategies.” 37

[98] I have concluded that this expert opinion should be respected and there is no evidence, other than that of Ms RT which contradicts this assessment. Accordingly, the only circumstances under which I could countenance reinstatement involve the placement of a condition on that reinstatement. Whilst I have noted that, in her letter of 4 December 2014, Ms RT describes herself as a "teachable teacher", I cannot take this as a commitment to accept professional development as a reinstatement precondition. Equally, I am not satisfied that the circumstances of this matter mean that the professional development referenced in clause 44 of the Agreement can be put by the School as a mandatory precondition for reinstatement. Further, Ms RT has continued to assert that the matter which led to the termination of her employment was trivial or “a storm in a teacup”. Those assertions simply do not provide any level of confidence that Ms RT appreciates the significance of her failure to comply with clear policy directives.

[99] The Full Bench decision in Cartisano v Sportsmed SA Hospitals Pty Ltd 38 confirmed that the Commission's jurisdiction to grant reinstatement is confined to an unqualified reinstatement finding. In that matter the Full Bench concluded that a qualification on the reinstatement exceeded the jurisdiction available to the Commission. The Full Bench stated:

“[44] We consider that the Order the subject of Ms Cartisano’s appeal was not an order authorised by s.391(1). The condition in the Order that it was “subject to a risk assessment to be conducted by Sportsmed” contemplated, in express terms, that compliance with the Order did not necessarily require Ms Cartisano to be actually returned to the workplace to perform the duties of her former position. The words “subject to” clearly conditioned the requirement to reinstate Ms Cartisano upon a satisfactory outcome of the risk assessment referred to. That this was the result intended by the Senior Deputy President is made clear in paragraph [40] of the Decision, in which he stated that “I acknowledge that she may not actually return to work”. And, as Ms Cartisano’s 29 September 2014 affidavit makes clear, compliance with the Order has not resulted in Ms Cartisano actually returning to work in her former position. The Order was therefore not one which reinstated Ms Cartisano and was beyond power.

[45] To be clear, what has earlier been said does not mean that a reinstatement order may not contain ancillary provisions additional to the bare statement of the requirement that the employee be reinstated to the identified position. A statutory conferral of power is, subject to any contrary express provision, taken to carry with it powers that are necessary for, incidental to or consequential upon the exercise of the power granted.16 A reinstatement order made under s.391(1) may therefore contain ancillary provisions intended to ensure that the order is made effective. For example, a reinstatement order will usually identify a date by which the order is to be complied with; and other necessary ancillary provisions may be included provided that the order is one which retains the essential character of effecting the reinstatement of the subject employee.

[46] Sportsmed has rightly identified that the capacity of the relevant employee to perform the duties of his or her former position or any alternative position that is no less favourable, and associated questions of health and safety, will be critical issues for consideration in any determination to exercise the power available under s.391(1). However, these are not issues which the Commission is empowered to deal with by making an order under which the reinstatement of the employee is conditional upon a medical, risk or health and safety assessment to be made by a third person after the order has been issued. It is ultimately the Commission’s task to make any required assessment of that nature, assisted by the evidence which the parties place before the Commission and such further evidence as the Commission may require to be produced. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.”

[100] Consequently, in these circumstances I do not consider that reinstatement is appropriate.

[101] Section 391(1)(b) provides the capacity for the Commission to appoint Ms RT to another position on terms and conditions no less favourable than those on which she was employed prior to the termination of her employment. There is no information before me which establishes that such a position exists within The School and I have concluded that, as Ms RT was engaged as a teacher, reinstatement to another position on those same terms would not be practicable in these circumstances.

[102] As a consequence, I have considered the application of compensation as an alternative to reinstatement. I am satisfied that the circumstances of the termination of Ms RT's employment mean that an amount of compensation is appropriate.

[103] Section 392 sets out the factors which the Commission is required to take into account in considering an amount of compensation. This section states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $66,500 from 1 July 2014

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[104] I have considered these factors on the basis of the approach recently articulated in McCulloch v Calvary Health Care Adelaide. 39

[105] There is no argument before me that an order for the payment of compensation would have effect the viability of The School and I have concluded that an order of the magnitude proposed would not affect The School’s viability.

[106] Ms RT had been employed by The School for over four years and the evidence before me establishes that, until this incident, there were no performance issues associated with her work. I have concluded that whilst this four-year duration of employment is not a particularly long period of employment, it is indicative of a stable and enduring employment arrangement.

[107] In order to make an assessment of the remuneration that Ms RT would have received but for the termination of her employment, I have considered the extent to which, had she not been dismissed on a summary basis, I think it likely that she would have been dismissed with notice or a payment in lieu thereof. A further factor relevant in this respect relates to Ms RT’s teacher’s registration status which I have already addressed.

[108] In these circumstances, even if Ms RT had not been dismissed, I think it highly unlikely that she would have been retained in an Early Years teaching position in 2015. It is possible that The School may have retained her as a teacher in another part of the school but evidence about her capacity to undertake alternative teaching roles is not before me. In any event, I have concluded that, the reasons for the non-renewal of her teacher’s registration have not been specified and I am unwilling to speculate about them. Ms RT advised that her Teachers Registration expired at the end of 2014. Without that registration she simply could not have worked as a teacher and I have concluded that, without that registration, her employment, which was as a teacher, must have come to an end as at the end of 2014. In that event, I would have anticipated that she would have been paid a notice payment consistent with clause 15.11.4 of the Agreement. Accordingly, on the particular circumstances applicable here, I have concluded that, had Ms RT not been dismissed, she would have been likely to have achieved only a further six weeks pay.

[109] Even if the Teachers Registration Board reinstates Ms RT’s registration retrospectively, the assessment I am required to make about the remuneration that she would have received had she not been dismissed, must be limited by the expiry of that registration at the end of 2014.

[110] I have not deducted any amount for contingencies as I am not satisfied that this is appropriate in these circumstances.

[111] Ms RT’s evidence was that she has endeavoured to obtain alternative employment with limited success. Her evidence was that she is now earning approximately $200 per week whilst working as a receptionist and has enrolled in a Business Management course. I have accepted that Ms RT’s efforts to mitigate her employment losses are reasonable in her particular circumstances. I have also concluded that Ms RT’s earning capacity is unlikely to improve in the foreseeable future.

[112] I am not satisfied that other matters are relevant to the calculation of compensation in this situation.

[113] Section 392(3) provides that the Commission must reduce the amount that would otherwise be ordered if it is satisfied that an applicant’s misconduct contributed to the employer’s termination of employment decision. I am satisfied that Ms RT’s misconduct contributed to the termination of employment decision. I have assessed the extent of that deduction by taking into account Ms RT’s misconduct, together with her actions after the allegations were bought to her attention and her continued commitment to her position even whilst she was suspended with pay. I have determined that the appropriate deduction is 10% which, whilst lower than might otherwise have applied, is based on the particular circumstances of this case.

[114] The resultant amount is less than the “cap” referred to in s.392(5).

[115] There was no submission that any amount of compensation should be paid by way of instalments and I have concluded that this would not be appropriate in these circumstances.

[116] On this basis I have concluded that Ms RT should receive compensation of six week’s pay from which is deducted any amounts earned by way of alternative employment since the termination of her employment. A further deduction of 10% on account of her misconduct should then be applied and applicable tax deducted. This amount shall be payable within 14 days of the date of this decision. An Order (PR566558) reflecting this decision will be issued. If this amount cannot be agreed, leave is reserved for that issue to be returned to me.

Appearances:

R Gray counsel for the Applicant.

A Lazarevich of counsel and M Hynes of counsel for the Respondent.

Hearing details:

2015.

Adelaide:

April 7, 8 and 22.

1 Termination of employment letter dated 19 December 2014 - Annexure MVT5 to Exhibit A2, Statement of Applicant

2 Allegations 1-5, Annexure MVT14 to Exhibit A2, Statement of Applicant

3 Exhibit R4, Attachment B

4 Exhibit R4, Attachment B

5 Exhibit A2, para 14

6 Exhibit A2, Annexure MVT4

7 Exhibit R2

8 Exhibit A2, Annexure MVT9

9 Exhibit A2, Annexure MVT10

10 Exhibit A2, Annexure MVT11

11 Exhibit A2, Annexure MVT12

12 Exhibit A2, Annexure MVT7

13 Exhibit A2, Annexure MVT7, page 16

14 Exhibit A2, Annexure MVT7, page 16

15 Exhibit A2, Annexure MVT7, page 17

16 Exhibit A2, Annexure MVT7, page 18

17 Exhibit A2, Annexure MVT8

18 Exhibit A2, Annexure MVT8, para 4.3

19 Exhibit A2, para 14

20 Transcript 8 April 2015, Sound Recording, 13:22:20

21 Exhibit A2, para 18

22 Exhibit A2, para 19

23 Exhibit A2, para 28

24 Exhibit R4, para 22

25 Exhibit A2, para 111

26 Exhibit R4, Attachment B

27 Exhibit A2, Annexure MVT15

28 Exhibit A2, Annexure MVT4

29 Exhibit R4, Attachment C

30 Exhibit A8

31 Exhibit A2, Annexure MVT5

32 (1995) 62 IR 371 at 373

33 [2015] FWCFB 1033, paras [25] and [26]

34 [2014] NSWIRComm 1000

35 [2014] FWCFB 2194

36 [2014] FWCFB 2194, from para 30

37 Exhibit A8, second to last para

38 [2015] FWCFB 1523

39 [2015] FWCFB 2267

Printed by authority of the Commonwealth Government Printer

Ms RT v The School

[2015] FWC 2927

7 MAY 2015

DECISION