Puccio v Catholic Education Office and Catholic Church Endowment Society (Incorporated)

[1996] IRCA 198

DECISION NO:  198/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT  - allegation of serious misconduct - physical contact by school teacher with student - whether a breach of direction against inappropriate physical contact - whether a valid reason for termination - whether applicant given sufficient opportunity to defend himself - whether termination harsh, unjust or unreasonable

Matter No. SA 95/1720

ROMOLO LUIGI PUCCIO  v CATHOLIC EDUCATION OFFICE and CATHOLIC CHURCH ENDOWMENT SOCIETY (INCORPORATED)

von Doussa J
Adelaide
17 May 1996         

IN THE INDUSTRIAL RELATIONS         )
  )
COURT OF AUSTRALIA                  )  No. SA 95/1720
  )
SOUTH AUSTRALIAN DISTRICT REGISTRY   )

BETWEEN:      ROMOLO LUIGI PUCCIO

Applicant

AND:          CATHOLIC EDUCATION OFFICE
  and CATHOLIC CHURCH
  ENDOWMENT SOCIETY
  (INCORPORATED)

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER          :    VON DOUSSA J.

WHERE MADE                  :    ADELAIDE

DATE OF ORDER               :    17 MAY 1996

THE COURT ORDERS THAT:

The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Court Rules.

IN THE INDUSTRIAL RELATIONS         )
  )
COURT OF AUSTRALIA                  )  No. SA 95/1720
  )
SOUTH AUSTRALIAN DISTRICT REGISTRY   )

BETWEEN:      ROMOLO LUIGI PUCCIO

Applicant

AND:          CATHOLIC EDUCATION OFFICE
  and CATHOLIC CHURCH
  ENDOWMENT SOCIETY
  (INCORPORATED)

Respondents

Coram: von Doussa J
Place: Adelaide
Date : 17 May 1996

REASONS FOR JUDGMENT

This is an application under s.170EA of the Industrial Relations Act 1988 ("the Act") for reinstatement.  The applicant had for 13 years until his dismissal on 29 November 1995 been a primary school teacher at the Mater Christi School.  The respondents, whilst questionably not in law the employers of the applicant, acknowledge in these proceedings that they are appropriate bodies against whom an order for reinstatement could be made as it is within their power to ensure compliance with any orders the Court might make, and they have undertaken to see to reinstatement if it is ordered.

The applicant was dismissed on 29 November 1995 with effect from 1 December 1995 for serious and wilful misconduct, namely inappropriate physical contact with a student or students in deliberate breach of a reasonable direction which had been given to him.  In support of his application for reinstatement he contends, first, that contrary to s.170DE(1) of the Act the employer did not have a valid reason or valid reasons connected with his conduct for his dismissal; secondly, that contrary to s.170DC of the Act his employment was terminated without giving him an adequate opportunity to defend himself against the allegations made; and thirdly that in any event, even if there were a valid reason or valid reasons connected with his conduct, the termination was in all the circumstances harsh, unjust or unreasonable contrary to s.170DE(2).  Upon the question whether the employer had a valid reason or valid reasons connected with the applicant's conduct to dismiss him, the respondents carry the onus of proof.  On the other issues the onus of proof is on the applicant to establish the matters alleged by him. In each instance the standard of proof is on the balance of probabilities.

In the assessment of the evidence adduced in this case, and in the resolution of the three contentions just identified, it is important to concentrate on the central issues and not to become side-tracked on other matters that do not affect the conclusions to be drawn on the central issues.  Much of the evidence before the Court relates to matters which are not central to the resolution of the case. 

That the applicant had been a dedicated teacher both in formal classes and as a physical education instructor during his years at the school has never been in dispute.  Nor is it disputed that for the vast majority of this time his performance as a teacher has given no reason for adverse criticism.  On the contrary, it is undisputed that he had a good profile, especially in the sporting areas and was generally popular with the students and their parents.  The alleged transgressions that have been the subject of certain warnings given to him, and others raised at the time of his dismissal, were events of relatively short duration, and some of them were alleged to have occurred in situations where they were not likely to be witnessed by many, if any, adults.  It is hardly surprising therefore that there are witnesses, whose statements have been tendered on the applicant's behalf, who are prepared to give evidence that they know of no reason to question his conduct or character as a teacher, or which would justify his dismissal.  Evidence of this kind from people who have not observed the applicant acting in the way alleged by the respondents is beside the point if the respondents by other evidence can establish first that such conduct occurred, and secondly that it was inappropriate having regard to directions and standards reasonably and lawfully imposed by them upon the applicant.

Prior to his dismissal a formal meeting had been convened on 27 November 1995 at which certain allegations were put to the applicant.  Present at that meeting, and also at another held on 29 November 1995, were Sister Margaret Kennedy, the Principal of Mater Christi, Mrs E J Swift, the Co-ordinator of Human Resource Services at the Catholic Education Office ("the CEO"), Mrs Y M Webb, a Legal and Industrial Officer of the CEO, the applicant, and Mr Barry Morrison, the Secretary of ANGEE (Association of Non-Government Education Employees).  Mr Morrison was present as the agent and union representative of the applicant. 

At the meeting on 27 November 1995 questions which had been prepared in advance by Mrs Webb were read to the applicant, and he was asked to give his response.  These questions, after covering formal matters and a history of warnings that had been given, were intended to put a number of recent allegations to the applicant about his conduct.  As the questions were pre-prepared and read from a sheet, the terms in which the allegations were put to the applicant are not in doubt. 

Relevantly, the allegations were incorporated into questions numbered 20 and 22 to 26 which were as follows:

"20. Do you admit that on 25 September at the beach-a-thon you walked along the beach with your arm around a female student.

1. Do you admit that during Term 3 on one or more occasions you put your arm around a female student's shoulder in the school yard?

1. Do you admit that on one or more occasions you put your arm around a female student's shoulder in the school yard?

1. Do you admit that on one or more occasions in Term 3 you put your arms under the armpits of one or more female students and lifted them bodily off the ground?

1. Do you admit that on 16 November you asked a female student to sit on your lap?

1. Do you admit that on 20 November you put your arm around a female student's shoulder and put your head on her shoulder with your lips on her neck?"

It is central to the applicant's submissions that he was not given an adequate opportunity to defend himself as the allegations put in this form lacked specificity, and in particular failed to identify the names of the students concerned, and that this failure materially inhibited his opportunity to give reasonable answers or explanation to the allegations.  When first drafted, the questions included the students' names which served to identify particular occasions.  The officers of the CEO and Sister Kennedy then gave serious consideration to whether the students should be named.  On the one hand they were conscious that it was necessary to put the allegations properly to the applicant, and on the other hand they considered there was a duty to protect the identity of the children, and the children themselves, from any further involvement.  On balance they decided that the interests of the students were paramount, and the names were struck out and "a female student" was substituted.  Questions 22, 23 and 24, in the terms in which they were put made allegations that were so general in nature that it is understandable that they may not have brought to the attention of the applicant the incidents which gave rise to the initial complaints.  On the other hand question 20 was more specific in its nature, as were questions 25 and 26.

In assessing whether the generality in which the allegations, or some of them, were put to the applicant led to a breach of 170DC, it is important to have regard to the answers that were given to those questions, and also to the grounds upon which the termination of the applicant's employment occurred.

Whilst the terms in which the allegations were put to the applicant are not in doubt, unfortunately no verbatim record was kept of his answers and only brief notes were made contemporaneously by Mrs Webb.  However her notes, such as they are, are generally in accordance with the evidence as to the events at that meeting, and with the description of the applicant's response to the allegations recorded in a letter to him from Sister Kennedy and Mr Dooley, the Director of Catholic Education, dated 1 December 1995.  Based upon those notes I find that the substance of the applicant's responses was as follows:

Question 20.  He could not recall such an incident. Questions 22 and 23.  He had no recollection of any specific incident but he could have had his arm on a student's shoulder, although it would not have been an embrace.
     Question 24.  He could not remember such an incident.
     Question 25.  He said that "may have" happened, he "could not deny" the allegation.  He then proceeded to give a demonstration of an incident that occurred whilst he was demonstrating a "long jump technique".
     Question 26.  This allegation he denied completely.

As the applicant's evidence reveals, he recognised which student was involved in the allegation made in question 25.  The demonstration given by the applicant, as described by Sister Kennedy, Mrs Swift and Mrs Webb, involved the applicant kneeling so that one knee was on or close to the ground, and the other knee was flexed at a right angle with his foot on the ground in front of him, and his thigh parallel with the ground.  Having lowered himself to that position, the applicant then with one or both hands patted the upper surface of his thigh indicating the position where the student, a year 6 girl, sat.  Mrs Webb's notes indicate that the applicant said that he was demonstrating a long jump technique.  His demonstration and description of the technique gave no information as to the position of the legs of the student, or of the direction in which the student was facing.  I find on the evidence of Sister Kennedy, Mrs Swift and Mrs Webb that the demonstration and description of the incident given on 27 November 1995 was as just described.

The demonstration constituted an unequivocal admission on the applicant's behalf of physical contact with a student to the extent demonstrated.  The answers to questions 22 and 23, whilst not admitting any specific incident, admitted the possibility of contact of the kind described in the questions. 
     I find that the applicant said at the meeting on 27 November 1995, as he had done on earlier occasions when his conduct had been the subject of discussion with Sister Kennedy, that he was a tactile person by nature, that in putting his arm on the student's shoulder he was merely being supportive of the person, and he saw nothing wrong in so doing.
     It should be added that the complaint the subject of the question which led to the applicant giving his demonstration came to the knowledge of Sister Kennedy from the student concerned, and from a teacher to whom the incident had been reported by the student.  The complaint gave no more information than that the applicant had asked the student to "'come and sit on my lap' whilst he showed her a step". 

The ultimate decision whether or not the applicant should be dismissed lay with Mr Dooley, although before making his decision he consulted with Sister Kennedy, Mrs Swift and Mrs Webb through whom his knowledge of the matter came.  I accept the evidence of Mr Dooley that his decision was based upon the admission of physical contact inherent in the demonstration given by the applicant on 27 November 1995, the significance of which he assessed against a background of earlier warnings, yet to be described.  Although there was information available to him in notes prepared by Sister Kennedy which contained complaints supportive of the allegations put in each of the questions 20 and 22-26 this information was not relied upon by Mr Dooley.  In these circumstances, it is my opinion that if the termination of the employment of the applicant is justified by the conduct so admitted by the applicant there was a valid reason for his dismissal within the meaning of s.170DE, and no contravention of s.170DC arose because he was not given an adequate opportunity to defend himself against other allegations upon which the decision to dismiss was not based.

I turn to the background history of warnings against which the significance of the admitted conduct was assessed by Mr Dooley, and also by Sister Kennedy, Mrs Swift and Mrs Webb.

Over three days in August and September 1991 Sister Pamela Wood conducted a "Protective Behaviours" course at Mater Christi. All teaching staff (except, possibly, one or two who had taken the course elsewhere) attended.  The course gave explanation and instruction on an anti-victimisation and empowerment program for students from grade 1 and upwards.  The course had been introduced initially in Victoria, and had received Victorian Police Department sponsorship in 1988.  In the same year it was introduced into South Australia by the South Australian Education Department.  In 1988 Sister Wood had become involved in teaching the course in a CEO school in South Australia.  The uncontradicted evidence is that the philosophies of the course reflect current community standards and current education concepts.  In the presentation of the course a total ban on all touching of students except in the case of medical or emergency assistance was stressed as an imperative for teachers.  The applicant protested at the time that he thought the concepts were "over the hill".  Sister Wood advised him that he would be a fool if he did not take notice of the trend in the community, particularly relating to men and their relationships with children.  She informed him that the trend put men in a vulnerable position with respect to their dealings with children.  He was told that his intentions were not to the point: the law was black and white, "do not touch children". 

It seems from the evidence that the applicant's resistance to this advice may later have become the catalyst for Sister Kennedy to treat with concern complaints that she received regarding the applicant but I reject any suggestion that for this or any other reason the applicant was victimised by Sister Kennedy.  The applicant's case suggests that there were tensions within different groups of the staff, and that there was a group of female teachers with whom the applicant did not get on well particularly in 1995.   Be that as it may, it does not follow that any complaint made by one of that group is necessarily suspect.  I accept the evidence of Sister Kennedy that if and when a complaint was made to her she recorded it as accurately as she could, and then took what action she thought was appropriate in relation to the investigation of it without any prejudgment of the merits of the complaint.  The evidence paints a picture of very fair and sympathetic dealing by Sister Kennedy, and later by Mrs Swift and Mrs Webb.

On 15 December 1991 Sister Kennedy brought to the attention of the staff, including the applicant, a passage from the ANGEE magazine in which Mr Barry Morrison urged professional teachers never to touch a child.

On 24 June 1992 Sister Kennedy herself observed the applicant putting his arm lightly around a student's shoulder in the schoolyard.  She spoke with him about his tactile nature and again warned him that he should never touch a child.  Tactility, she said, should be limited to one's own family, and she reminded the applicant of the admonitions of Sister Wood and Mr Morrison.  The applicant was warned that if he were careless in obeying the standard expected of him he could put his job at risk.  The applicant protested that it was just his nature to be tactile.  Sister Kennedy warned him that his conduct was inappropriate and that he needed to stop it.

On 1 September 1993, in response to a complaint. the applicant was again spoken to by Sister Kennedy about his tactile behaviour.  The applicant now says that he was given inadequate particulars of the complaint, and that the complainant was not identified to him.  That is beside the point.  What is now relevant is the instruction and the warning that was given by letter following the meeting.  The letter read:

"6th September, 1993.

Dear Rom,

This letter is synopsis of the meeting we had on Friday, September 3rd, 1993.

I spoke to you of my concern regarding your tactile attitude towards some of the girls at the school.  No matter how 'innocent' you may view such actions, they are an invasion of the rights of students to their private space, something which no teacher, of whatever sex, may presume to invade.  Such actions could lead to allegations of sexual harassment.

I also warned you against anything, either by word or action, which could lead to a student receiving 'mixed' messages from you, thus encouraging 'girlish crushes' on you.

You were also informed that some parents and members of staff have expressed their concerns regarding these matters.

I made it quite clear to you that I view this as a very serious situation, particularly in light of a previous discussion we had regarding your tactile nature. (June 24th, 1992)

As a result of our discussion, we agreed on the following actions -

.all physical contact with students is to cease immediately.

.the computer corner in your classroom is to be reorganised into a more public area.

.should you need to speak privately to a female student, this is to be conducted in a public place, e.g. the corridor or the library.

.any female student who may be on her own finishing work is to use the library.

.that unless it is in a public area, you will always speak to girls in a group.

Should there be a recurrence of this matter, I will have no option but to issue you with a letter of warning.  Such letters, as you know, become part of the recipient's file and could eventually lead to dismissal.

Rom, while my primary concern is for the safety of the students at Mater Christi, I am also deeply concerned for you as a person and as a member of staff - your reputation and career are at stake.

As I said on Friday, this was a painful meeting for you.  I thank you for your frank and honest contribution to the discussion.  I have noted that before you left the school on Friday evening you had begun re-organising the computer area.

I sincerely hope that this matter will not have to be raised again.

Yours sincerely,

(Sgd) Sr. Margaret Kennedy,

Principal."

The applicant acknowledges receiving the letter and understanding the seriousness of its contents.  He says that the computer corner was reorganised and his behaviour thereafter was modified to accord with the directions given, save that he treated the direction that "all physical contact with students is to cease immediately" to mean that all inappropriate contact with students was to cease immediately.  He explained in evidence that the letter could not be understood in absolute terms because of the possible need to administer first aid, to shake hands, and to recognise achievement by a friendly pat on the shoulder.  Without debating the circumstances in which a congratulatory pat might be considered appropriate, plainly there would be physical contact from time to time of the kind which would not be treated as inappropriate.  However I am satisfied that the applicant at the time plainly understood the import of the direction that he was given.

In November 1994 Sister Kennedy observed two instances of conduct which she considered to be in breach of the directions given in the letter of 6 September 1993.  On one occasion she found the applicant alone in a classroom with a female student in circumstances where clear vision into the room from outside was not possible, and on another occasion she observed the applicant with his arm draped over the shoulder of a year 6 student standing in front of the year 6 class.  Those matters, and a complaint from a parent, became the subject of a formal meeting with the applicant on 7 December 1994 at which were present Mrs Webb, Sister Kennedy, the applicant and Mr Barry Morrison.  Sister Kennedy says that she outlined the two instances which she had seen and also made reference to the substance of the complaint from the parent, and the applicant responded, not by denying the events observed by Sister Kennedy, but by saying that he meant nothing by the conduct.  Again it is part of the applicant's case that he was not given adequate particulars of the allegations and was unable properly to respond.  This however is not presently a relevant issue.  The respondents do not seek to justify his dismissal upon the merits of the events which occurred in November 1994 but upon his subsequent failure to follow clear warning and direction that had been given to him particularly by the letter of 6 September 1993 and by a further letter that followed the meeting on 7 December 1994.  That further letter not only contains a clear warning of the consequences of conduct in contravention of the direction, but offered counselling to assist the applicant, an offer which he did not take up.  Moreover at the meeting of 7 December 1994 Mr Morrison also counselled the applicant against physical contact with students.  The letter issued following the meeting of 7 December 1994 read:

"Dear Rom

I refer to the meeting at the Catholic Education Office on 7th December 1994 attended by myself, Yvonne Webb, Barry Morrison and yourself.

At the meeting, I spoke to you about the fact that I had recently observed you alone in a classroom with a female student with the door and curtains closed and that I had also recently observed you put your arm around a female student's shoulder.  As well I detailed allegations received from a parent regarding your touching of students and mothers at the school.  I also detailed allegations of 'touching' raised by a staff member.

I confirmed that you have been previously warned about this over-familiar behaviour with students on 2 previous occasions.  On 24th June 1992 I spoke orally to you of my concerns in this regard and the matter was further raised with you on 3rd September 1993.  As a result of the discussion on that occasion you were given a written warning on 6th September 1993.  In that letter I made it clear that:

• All physical contact with students is to cease immediately.

• The computer corner in your classroom is to be reorganised into a more public area.

• Should you need to speak privately to a female student, this is to be conducted in a public place, e.g. the corridor or the library.

• Any female student who may be on her own finishing work is to use the library.

• That unless it is in a public area, you will always speak to girls in a group.

By your recent actions you have disobeyed my instructions on this issue.  I repeat that you reputation and career are seriously at stake.

Your skills and dedication as a teacher are undeniable.  Nevertheless, this inappropriate affection must cease immediately.  I strongly recommend that you consult the Access Counselling Service available at no cost to all employees in Catholic schools.  I reiterate the instructions outlined above which I gave to you in the letter of 6th September 1993 and I stress that any further instances of inappropriate touching of students will if substantiated, result in your dismissal.

Yours sincerely

(Sgd) Sr Margaret Kennedy

PRINCIPAL

9th December, 1994"

It was against the background of these warnings that the admitted physical contact with students in November 1995 fell to be considered at and following the meeting on 27 November 1995.

I am satisfied by the evidence and so find that Sister Kennedy, Mrs Swift and Mrs Webb went into the meeting on 27 November 1995 with an open mind as to the applicant's future.  The applicant's case criticises Sister Kennedy for not making more extensive inquiries than she did before the meeting.  It also suggests that the failure to more fully investigate some of the allegations with the students concerned (some only of the students had been spoken to by Sister Kennedy) and the failure to make inquiries of parents or other adults who may have seen one or other of the incidents rendered the meeting unfair to the applicant.  I do not agree.  Sister Kennedy was conscious of her own responsibilities, and of those of the CEO, to the welfare of the students, and was anxious not to involve either them or their parents in the subject matter of the complaints.  In my opinion it was entirely reasonable having received the complaints and made the preliminary inquiries which she had, for her then to put the allegations to the applicant.  If they were admitted by him, there would be no need to further involve other people.  Indeed criticism may have been made of Sister Kennedy had she spoken more widely about the complaints and thereby brought them to the attention of a range of people if that were unnecessary because the applicant was prepared to admit them.  As it was, the applicant admitted one of the most serious of the complaints.  Upon that admission action was taken.  It was not then necessary to pursue the other complaints.  Had the applicant denied them all, the situation may well have been different.  Then it would have become necessary for the CEO, through its officers, to conduct further inquiries in the proper discharge of their duties to protect the safety and welfare of the students.

After the prepared questions had been put to the applicant on 27 November 1995 I am satisfied that there was discussion about a range of options that were available including the option to resign, in which event he was informed that the CEO would meet the expense of a retraining and placement program.  The meeting was adjourned for 24 hours to enable both sides to reflect on what had happened; for the applicant to consider the matters that had been raised and whether there was further information he wished to put before the CEO, and for the CEO to reflect on the answers made by the applicant.

Following the meeting those answers and the earlier events were reviewed and considered by Sister Kennedy, Mrs Swift and Mrs Webb, and Mr Dooley was then briefed.  As I have already indicated, I find that Mr Dooley acted upon the admissions implicit in the applicant's demonstration of the sports technique.  The serious consequences for the applicant of a dismissal weighed heavily in the considerations of Mr Dooley.  The possibility of transferring the applicant to another school was considered.  The decision reached by Mr Dooley was that, absent any further information or explanation from the applicant, the physical contact involved in the sports demonstration was an unnecessary and serious act of misconduct.  It was seriously inappropriate conduct anyway, but viewed against the warnings that had been given, and not heeded, the seriousness was aggravated.  He could conceive of no plausible explanation which could justify the conduct.  In his opinion the sex of the student was irrelevant.  The prohibition against touching applies to all children.  The disregard of earlier warnings in Mr Dooley's opinion rendered it inappropriate to consider his appointment to a boys' school.  Accordingly he authorised dismissal if additional information was not forthcoming from the applicant at the next meeting, and if the applicant chose not to resign.

At the next meeting neither of these events occurred.  The applicant indicated that he would not resign as he did not consider he had done anything wrong.  His employment was then terminated and a full explanation for his termination given in a letter signed by Sister Kennedy and Mr Dooley shortly thereafter.

The direction given to the applicant by Sister Kennedy to cease all physical contact with students was an instruction lawfully and reasonably given.  It was an instruction directed both to the safety and welfare of the students, and also to the welfare and protection of the teachers, a point that Sister Margaret had made to the applicant in her letter of 6 September 1993.  As a direction for the safety and welfare of the students it was in line with the community standards and expectations recognised by the concepts of the Protective Behaviours course.  The argument now advanced by the applicant that there was ambiguity in the instruction because it could not be taken literally to prohibit all physical contact is, in my opinion, a plain obfuscation.  I am satisfied that the applicant well knew the intent of the direction.  Casual uninvited contact was prohibited.  Whilst it is conceivable that difficult situations could arise where it might be uncertain whether physical conduct was appropriate, in my view it cannot realistically be argued that the demonstration of the sports technique, either as that demonstration was given to the CEO officers in November 1995, or as it was given to the Court (see below), came within that type of exception, or was appropriate.

The applicant at trial sought to justify the demonstration of the sports technique on the ground that he had shortly beforehand suffered a sporting injury and was severely incapacitated by it.  On the day of the incident he was in receipt of a medical certificate declaring him to be unfit for work.  He nevertheless attended the school out of a sense of commitment to the students who needed training for an inter-school sports day that was to occur shortly thereafter.  He said in evidence that normally he would have demonstrated the sports technique by performing it himself but because of his incapacity he could not do so.  For that reason only he performed the demonstration in the way in which he did.  He says that he chose the particular year 6 student who was involved in the demonstration as he "knew" that there would be no "problem" with the child or with her parents.

It is the evidence of each of the respondents' witnesses to whom this asserted justification for the demonstration was put that it provided no justification whatsoever for the physical contact.  Each of these witnesses held senior positions in the CEO, and had long experience as a teacher.  They considered that the sports technique should have been explained by other means, such as diagrams or by enlisting the assistance of others.  Insofar as the evaluation of the applicant's explanation for the demonstration with the student is a matter to be decided on evidence from persons with experience in the teaching profession, the evidence is all one way and I have no hesitation in accepting the opinion of the respondents' witnesses that the explanation, assuming that it is correctly based in fact, provides no justification whatsoever.  It seems to me however that the matter is one which involves broad community values upon which the Court can itself form a judgment.  Insofar as the issue falls to be determined by the Court I do not think the explanation, even if it is accepted at face value, could justify the physical contact involved.

In my opinion once the extent of the physical contact inherent in the demonstration given by the applicant on 27 November 1995 was admitted, that contact, viewed against the earlier warnings, provided a valid reason for the dismissal of the applicant.  That conduct constituted serious misconduct: cf North v Television Corporation Ltd (1976) 11 ALR 599.  It was also wilful.  It constituted a reason for summary dismissal under Clause 23 of the Teachers (Non-Government Schools) Award, and also under Clause 17 of the contract which the applicant had with the second respondent and another party.  The respondents have discharged the onus of establishing a valid reason within the meaning of s.170DE(1). 
     Insofar as the applicant now seeks to assert that there was a justification for the physical contact with the student involved in the demonstration, that is a question which goes to whether the dismissal based upon the valid reason was harsh, unjust or unreasonable in all the circumstances.  On that question the applicant carries the onus of proof.  Although I am of the opinion that even if the explanation offered by the applicant were accepted, it provides no justification for the physical touching, I view the explanation with such a degree of scepticism, that I am not prepared to find that the excuse is one honestly put forward.  Rather it appears to be an excuse more recently invented to assist the presentation of his case.  Significantly, I am satisfied that the explanation was not put forward on 27 November 1995 when the allegation against him was answered with the demonstration he gave to the meeting, nor was it put forward on 29 November 1995.  I reject the applicant's suggestion that the circumstances of the interview did not give him a full and fair opportunity to explain himself.  He had Mr Morrison there to assist him, and was given the opportunity on both occasions to speak with Mr Morrison in private during the course of the meetings.  Moreover, the description of what happened on the sports field has undergone a significant embellishment between 27 November 1995 and when the applicant gave evidence in Court.   In Court the sports technique was said by the applicant to relate to hurdling.  The explanation given initially was that he was giving instruction in a long jump technique.  I reject entirely the suggestion that the sport of long jumping was nominated by Mrs Webb.  The complaint which had been made to Sister Kennedy did not identify the sport, nor did question 25.  Mrs Webb's note of the applicant's responses commences with the word "long jump" and repeats that description of the sporting activity when recording the applicant's demonstration.  I accept the evidence of the respondents' witnesses that on 27 November 1995 the demonstration did not indicate the position of the student's legs.  However when the applicant gave evidence he demonstrated to the Court the "hurdling" technique which he had shown to the students.  He demonstrated how he positioned the year 6 student across his thigh with one of her legs, the lead leg, extended to the left of his body, and her trailing leg extended behind her to the right of the applicant's body; the foot of the lead leg he held extended above the ground in his left hand, and the foot of the trailing leg he held in his right hand.  The demonstration given in Court was, in my view, strikingly inconsistent with the description of the demonstration observed by the witnesses on 27 November 1995, and one more damaging to the applicant's case as it involved a more extensive, and therefore more unacceptable, degree of body contact than the earlier demonstration.

However, even accepting the veracity of the explanation now offered by the applicant for the physical contact with the year 6 student on the sports field, it is significant that the explanation fails to recognise important reasons for the direction against touching students.  First, the applicant seeks to justify touching the particular student and involving her as he did in the demonstration on the ground that there would be no "problem" with the student and her parents.  That explanation fails altogether to recognise the rights, feelings and emotions of the child - emotions and feelings which in the result prompted the complaint by her.  Secondly, it fails to recognise the importance of the direction to the protection of the teacher and his employer, the school, from complaints harmful to their respective reputations.  These failures, together with the applicant's continued assertion that congratulation and encouragement is an appropriate reason for putting his arms across the shoulders of his students, combine to reinforce the conclusion reached by Mr Dooley that the applicant's failure to comply with the earlier warnings and directions made the applicant an unsuitable candidate for placement in another school under the control of the CEO. 

The evidence fails to establish that the applicant's dismissal was unfair.  Every consideration was shown to him both in the earlier stages when warnings were given and counselling was offered, and in November 1995.   It cannot be doubted that to dismiss a school teacher with 13 years experience on the ground of serious misconduct is a matter likely to cause considerable hardship to him and indirectly to his family, and to impair, if not destroy, his future prospects for employment as a teacher.  Those are matters appropriately to be weighed, and they were, in my view, given serious consideration by the respondents.  On the other hand the care, safety and well-being of students is a matter also entitled to great weight.  Where a teacher commits a clear breach of a direction squarely related to safety and welfare issues after due warning, the school, generally speaking, will be left with no option but to terminate the services of the teacher.  To allow the teacher to continue would be to allow a foreseeable risk of further transgression by the teacher to occur.  The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school.  So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee's capacity or conduct within the meaning of s.170DE(1) of the Act to dismiss an employee even where reported misconduct is disputed by the employee: see Sangwin v Imogen (Industrial Relations Court of Australia, von Doussa J, 8 March 1996). 

In my opinion on the central allegation upon which the applicant was dismissed he was given an adequate opportunity to defend himself.  He recognised the incident when he invited a student to sit on his lap as one which had occurred on the sports field, and he responded with the demonstration.  He had ample opportunity to add any explanation had he wished to do so either on 27 or 29 November 1995, and he also had adequate opportunity, with the assistance of Mr Morrison, to add any matters of mitigation that he thought appropriate.

Counsel for the applicant has argued that the dismissal was unfair because the procedures carried out by the CEO officers were contaminated by the presentation to them of wide ranging complaints about various aspects of the applicant's behaviour and performance as a teacher.  Many of the complaints did not even relate to the allegations that formed the basis of the questions put to the applicant on 27 November 1995. The complaints that did relate to those questions contained unsubstantiated detail.  Most of the substantive allegations were denied.  Whilst Sister Kennedy and the CEO officers say that they did not take into account the allegations that were denied, it is argued, human nature being what it is, that it is impossible that those allegations did not influence the ultimate decision.

In any decision-making process it must be acknowledged that if irrelevant or unsubstantiated allegations are put forward the risk arises that the allegations may influence the result.  It is for this reason that decision-makers must be alive to this risk, must recognise it, and must exercise every care to ensure that decisions are based only on relevant and substantiated fact.  The mere fact that irrelevant or unsubstantiated allegations come to the attention of the decision-makers before the decision is reached does not automatically "contaminate" the process, or cause the result to be unfair.  Every case must be judged on its facts.

In the present case those involved in the decision-making process were acutely aware of the need to act only on substantiated fact, and I am satisfied that that is what they did.  Mr Dooley was particularly careful to analyse and check the information on which he proceeded, and I am satisfied that he was not influenced in reaching his decision by allegations that were not admitted, or on other irrelevant material.

Even if I am wrong in that conclusion, it does not necessarily follow that because a shortcoming is demonstrated in the procedures followed by the employer to bring about the dismissal, that the dismissal occurred in contravention of the Act.  If the established facts show that the employer had a valid reason for dismissal, and the fact of dismissal in all the circumstances is not harsh, unjust or unreasonable, there is no contravention even though the employer's procedures are open to criticism: Byrne & Anor. v Australian Airlines Ltd (1995) 131 ALR 422 at 434, 462-464.  In the present case, for the reasons already given, I am satisfied that the admitted conduct of the applicant constituted a valid reason for dismissal, and that in all the circumstances the dismissal was not harsh, unjust or unreasonable.

In reaching this decision I have paid no regard to evidence given about events at the school on 1 December 1995.  There are aspects of that evidence which would require further clarification before it could be used in the way in which the respondents have argued, but, more importantly, emotions were running high that day amongst the parents, the students, and the applicant and I do not think the applicant's character and fitness to be a school teacher should be judged on the things that happened at the school that day.

In my opinion the application should be dismissed.

I certify that this and the
  preceding pages are a true
  copy of the Reasons for
  Judgment of Justice von Doussa

Associate:

Dated:

Counsel for the applicant  :    Mr P J Humphries

Solicitor for the applicant     :    Reilly Basheer Downs &
  Humphries

Counsel for the respondents     :    Mr R J Manuel

Solicitor for the respondents   :    R J Manuel & Co.

Date of hearing           :    13-16 May 1996