Warren James v St Thomas Aquinas College Limited T/A St Thomas Aquinas College
[2016] FWC 6360
•19 SEPTEMBER 2016
| [2016] FWC 6360 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Warren James
v
St Thomas Aquinas College Limited T/A St Thomas Aquinas College
(U2016/5717)
COMMISSIONER BISSETT | MELBOURNE, 19 SEPTEMBER 2016 |
Application for relief from unfair dismissal – application dismissed.
[1] Mr Warren James was employed by St Thomas Aquinas College Limited T/A St Thomas Aquinas College (the College) as a teacher. He commenced employment on 25 January 2008. His employment was terminated on 8 March 2016.
[2] Mr James was employed primarily as the primary school physical education teacher at the College although he also taught mathematics and did teach some year 7 classes for a short period of time.
[3] Mr James believes that he was unfairly dismissed and has applied to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief.
[4] Prior to the commencement of the hearing of the matter and in a separate decision, 1 I granted permission to the College to be represented by a lawyer or paid agent. The College was subsequently represented by Mr Millar, of counsel. Mr James represented himself.
Background
The blazer incident
[5] On 18 September 2012, Mr James made an incident report with respect to a student in his year 7 class. A male student (identified in this decision as MF) was involved in a wrestle with another student in the classroom. According to the report, MF stabbed the other student with his pen. He then attempted to erase material from the whiteboard. MF again left his seat to cross the classroom but his pathway was blocked by Mr James who instructed him to return to his seat. MF then ‘faked a fall’ and was lying behind the front row of desks adjacent to his own desk. MF refused to return to his seat so Mr James ‘assisted’ him by ‘grabbing the back of his blazer collar and lifting him to his seat.’ Sometime later, MF left the classroom. 2
[6] A disciplinary hearing with respect to the incident was held on 16 October 2012. Despite protestations of Mr James with respect to the fairness of the process, Mr James was issued with a ‘first and final warning’. The College found that it ‘was not satisfied that [Mr James’] actions were reasonable’. Nor was it satisfied that he ‘used minimal force out of a concern for the safety of students’. The College concluded that ‘[m]aking physical contact with students, in the way that [Mr James] did with [MF], was completely inappropriate and unsatisfactory’. It considered that, in those circumstances, Mr James’ actions amounted to misconduct. 3
The ‘loser’ incident
[7] A meeting was called on 7 August 2013 to discuss with Mr James concerns with respect to his performance and about his interaction with students. An issue raised with him concerned five year 5 students he was accused of calling ‘losers’ in early May 2013. Whilst Mr James disputed that he called the students losers (although agreed he used that word) the agreed outcomes of the meeting were that:
● There would be no further complaints with respect to Mr James’ conduct from parents or students. The College agreed that if it did receive such complaints it would investigate firstly as to the veracity of the complaint and then discuss it with Mr James in a timely manner if necessary;
● Mr James would complete a serious incident form on all occasions he excluded a student from normal activities of class as a result of discipline being applied. 4
[8] Mr James responded to the notes of the meeting including that the complaints were ‘an attempt to build a case against’ him, that the complaints had not been properly investigated, that it was a misconception that he belittles students and, finally, that no timetable was set for closure of the incident. 5
The tennis incursion incident
[9] In October 2013 Mr James sought to arrange an incursion to the College (an activity at or near the College) in relation to its involvement in the Hot Shots tennis programme. The incursion was not approved by the College Executive. On 22 October 2013 Mr James was informed by Ms Grace Powell, Deputy Principal of the College, that the incursion was not approved and could not proceed. 6
[10] Mr James approached Ms Powell in the lunch room while she was having lunch and wanted to discuss the reasons for her refusal to allow the Programme to proceed. As a result of what occurred at that time a further disciplinary meeting was held with Mr James on 8 November 2013. The outcomes of that meeting included a requirement that Mr James follow procedures for approval of programs and accept directives, that he provide a written apology to Ms Powell and mediation take place between him and Ms Powell. 7 Mr James was also invited to put in writing his concerns with Ms Powell’s interactions with him.
[11] Mr James subsequently issued the apology and also wrote to Father Delsorte, the then College Principal, indicating he would follow any lawful directive given to him. 8 Mr James however took issue with a number of the matters discussed at the meeting and extensive correspondence occurred between him and Father Delsorte. As a result of the meeting and what followed he was advised that he was being issued with a first and final warning.
The locked door incident
[12] On 28 February 2014 Mr James submitted a serious incident report in which he advised that LK (a foundation year/prep student) was wilfully disobedient and disruptive. Mr James therefore removed LK from the classroom and instructed him to sit on the mat outside the classroom door with the door open. The report states that LK continued his disruptive behaviour by throwing the mat and returning to the classroom. Mr James instructed LK to sit on the mat outside the classroom and locked the door. Ms Stephanie Bradbury, the learning support coordinator, saw LK sitting outside the door and offered to take him to her room. 9
[13] It is not apparent that any action was taken in relation to the contents of the report until 2015.
Allegations of misconduct
[14] Mr James was on WorkCover from mid-2014 and received a clearance to return to work in early 2015. On 20 March 2015, Mr James attended the College, which was a sports day, and handed his medical clearance to the new College Principal, Father Fortin.
[15] On 27 March 2015, Father Fortin advised Mr James that a parent had seen him at the College when he delivered his medical clearance and had subsequently made allegations that Mr James physically and mentally abused students. Mr James was subsequently suspended on full pay pending an investigation. 10 On 15 June 2015, a letter was sent to Mr James’ representative outlining 13 allegations that would be subject to the investigation.11
[16] Mr James responded to three of the allegations on 18 June 2015. 12
[17] An investigation by Worklogic commenced but seems not to have resulted in any final report. Negotiations over the allegations occurred between representatives of Mr James and the College. These negotiations ultimately did not bear fruit and on 26 January 2016 Mr James was issued with a show cause letter. 13
[18] The show cause letter advised that, following the investigation (into the 13 allegations), Father Fortin was satisfied that:
1. Mr James used inappropriate physical force in his interactions with MF;
2. Mr James did call students ‘losers’; and
3. Mr James did place LK outside the classroom and this was punishment in inappropriate circumstances. 14
[19] Mr James was advised that Father Fortin was considering terminating his employment and was asked to make any submissions he wished as to why this should not occur.
[20] Mr James responded on 2 February 2016 and indicated that he had a letter from the school dated 11 December 2015 which stated that there was insufficient evidence to continue the investigation and the College considered the matter closed. This letter was not admitted into evidence as it was part of without prejudice settlement discussions. 15
[21] In addition, Mr James said that item 1 in the show cause letter had been dealt with in 2012 and he ‘could not be re-tried for the same allegation’, item 2 in the show cause letter had been dealt with in August 2013 and he could not ‘legally be re-tried for the same allegation’ and in relation to item 3 of the show cause letter what had been found to be proven is not what was in the original allegations of 15 June 2015 which related to describing LK as a vandal and not giving him a ‘star’. Moreover, he said that the College had failed to follow its complaints procedure as he had not been notified of the allegation. He said that ‘[n]o person of reasonable intelligence and being without evil intent’ could terminate his employment as threatened 16 by Father Fortin in the show cause letter.
Termination of employment
[22] On 3 March 2016, Mr James was issued with a letter terminating his employment. In that letter Father Fortin said that the College did not accept that items1 and 2 in the show cause letter had been dealt with and finalised. In relation to item 3, Father Fortin said it was not a new matter and related to allegation 10 in the letter of allegations of 15 June 2015 and he did not accept that Mr James had been denied procedural fairness in relation to the matter.
[23] Mr James’ employment was terminated later that day. He was paid seven weeks’ salary in lieu of notice.
Evidence
[24] Evidence was given in proceedings by Mr James.
[25] Evidence was given for the College by:
● Father Michael Fortin - Principal;
● Grace Powell – Deputy Principal;
● Sue Pastor – Dean of Primary;
● Jacinta Hurst - Teacher;
● Hannah Sloane - Teacher;
● Stephanie Bradbury – Learning support co-ordinator;
● Rebecca Pullen – Teachers’ Aide;
● Marion Pepping - Parent;
● Kimberely Mullins - Parent;
● Natasha Hogan - Parent;
● Nicolette Zaccari - Parent;
● Margaret Fitzpatrick - Parent;
● Tanya Furness - Parent;
● Tanya De Castella - Parent;
● Geraldine Freriks - Parent;
● Stephanie McKenna - Parent.
Mr James
[26] Mr James gave extensive evidence and provided substantial documentation to the Commission.
[27] Mr James said that he had no difficulties at the College for the first four years of employment. He said he went out of his way to provide extra activities for students including chess club and a percussion unit. Many of these things he did in lunch and recess breaks and in his own time.
[28] Mr James said, in relation to the ‘blazer’ incident in September 2012, that MF was ‘out of control’. He said that MF refused requests to return to his seat. He then faked a fall. He said that, given the circumstances, he lifted MF with his left hand, adjusted the seat with his right hand and gently put him down in his seat. He said after a few minutes MF left the classroom shouting ‘I have free will’ and gathered two boys on the way. He said that the two boys who gave statements in support of MF had previously been ‘exited’ from the classroom and would not have been able to see the incident from where they were.
[29] Mr James said that in October 2012 he was called to a disciplinary meeting but was not advised in advance what the meeting was for. He said no one in the meeting could tell him what other option he had or what else he could have done with MF.
[30] Mr James agreed that he had been told at the meeting that a warning would be issued to him about the MF incident. His evidence is that this decision was taken with undue haste and that the management representatives should have weighed up the evidence, 17 discussed it amongst themselves18 and perhaps provided him with an outcome at the end of the day. He said that, without discussing the matter amongst themselves, the College representatives chose to accept a version of events that did not accord with his version.19 Mr James in particular objects to the statement that he used ‘excessive force’ to move MF.
[31] Mr James gave evidence that MF was small and that he was ‘guiding him back to his seat’ 20 and that guiding students ‘is part of the profession.’21 Mr James does not consider what he did to MF unreasonable22 although did acknowledge that The Victorian Teaching Profession Code of Conduct23 (the VTPCC) prohibits the touching of a child without a valid reason.
[32] Mr James said that he considered MF to be a threat to the welfare of the other students and he only moved him about one and one half metres. 24
[33] Mr James denied he gave MF ‘the finger’ in the car park sometime later.
[34] With respect to the ‘loser’ incident, Mr James said that the boys in question were in cross-country training on 8 May 2013 and were required to run six laps of the oval. The boys didn’t run but were walking. He said that at the end of the lesson he took them aside and referred to their efforts as ‘being that of a loser.’ One boy responded that his effort was fabulous to which Mr James said ‘Now you are talking like a loser’. 25 This matter was subject to discussion with Mr James in August 2013, the outcome of which was an expectation that there would be no more complaints from students or parents about Mr James’ conduct.
[35] Mr James said he used the term ‘loser’ because the boys would understand the term as they used it regularly. 26
[36] Mr James agreed that he told one of the boys that he ‘spoke like a loser,’ 27 that he was aware that this boy had speech therapy lessons but he did not consider the comment would ‘scar him for life’28 and had no idea the boy would be ‘so sensitive.’29
[37] Mr James agreed that on 28 February 2014, four weeks into the school year, he removed LK from the classroom and placed him on the mat outside the door to the room. LK kept returning to the room so Mr James closed the door. He said that while he put on the incident report that he locked the door he does not believe that he did so. 30 He removed LK from the room for discipline purposes. He considered his actions of ‘[e]xiting [LK] from what the class is doing at the time [as] a very effective strategy in the discipline process.’31
[38] Mr James expressed concern that, when he was due to return to work in 2015 and Father Fortin advised him of an investigation into his conduct, no complaint was put in writing to him to enable him to respond and that it was not until the allegations were produced that he was aware of the complaints. He agreed that, ultimately, he was provided with allegations but says he had never had many of these matters previously brought to his attention.
[39] Mr James gave evidence explicitly denying many of the allegations. In particular, he says he never encouraged fighting, he did not punch or kick BD, he did not rub BD’s face with a glove, and he did not call children ‘retards’ or ‘idiots’. He did not deny a child access to her asthma pump if she was showing any respiratory distress (although his evidence is he assessed her need to use it. In response to being asked if he would prevent her access to the pump if she wasn’t showing signs of needing treatment, Mr James said he ‘would ask her to carry on’ 32), he did not threaten to slam a child’s head in the door, BD was excluded from the chess club for a limited time for bad behaviour but was not otherwise singled out, and he did not write ‘vandal’ in LK’s diary. He said that he had operated in the shed as an approved classroom without any complaints until Ms Pastor, the Dean of Primary, sent him an email on the direction of the Principal, and that he was ill at the time of the chess excursion and this explained the errors he made but the children were never at risk.
[40] Mr James gave evidence that after the allegations were put to him, an investigation commenced. He said that the investigation was his chance to put his side of the story but he had never been given a copy of the outcomes of the investigation. He agreed that there were also discussions between the College and his union representative in an attempt to find some resolution to the issues.
[41] Mr James agreed that he received the show cause letter on 26 January 2016.
[42] Of the show cause letter, Mr James’ evidence is that:
two of those allegations have been heard and dealt with and the third one appears to be a brand new matter yet I was still terminated. My employment was still terminated. I should also say that at the time that the second allegation was heard in 2013 the allegation itself could not be substantiated, as in it could not be proven. 33
[43] Mr James’ issues with the third allegation (in relation to the ‘locked door’ incident) is that firstly, Ms Bradbury is not a teacher, and secondly, LK was put outside the classroom for bad behaviour but ‘[b]ad behaviour is not inappropriate circumstances’ 34 as was stated in the show cause letter. Mr James said LK required the discipline and it worked because LK did not misbehave for him again.
[44] Under cross examination, Mr James suggested that he had not locked the door at all even though he put ‘locked’ in the incident report. He said that nobody clarified that with him. Mr James maintained in his evidence that the decision to lock LK out of the classroom was appropriate disciplinary action.
[45] Mr James’ evidence is that all of the statements made by Father Fortin are hearsay and should be ignored. Mr James refuted many of the matters raised in Father Fortin’s statement. He questioned all aspects of Ms Powell’s statement and refuted her evidence of events surrounding her decision to refuse the tennis incursion and he did not accept the evidence of Ms Bradbury.
[46] Mr James also gave evidence in response to the evidence of the parents in these proceedings.
Father Fortin
[47] Father Fortin is the Principal of the College. He commenced in that role in 2015. He is registered to teach with the Victorian Institute of Teaching (VIT). His evidence is that, early in the 2015 school year, it became apparent that a number of concerns had been raised by teachers, parents and students in relation to Mr James. These concerns related to inappropriate language and excessive disciplinary measures with students and that Mr James engaged in conduct that was intimidating and aggressive. He said he also became aware that Mr James had been issued with a number of warnings (including final warnings) with respect to his conduct.
[48] Father Fortin said that in March 2015 he received complaints from parents ‘broadly related to Mr James’ conduct towards students including that he would make hurtful and inappropriate remarks towards students and he would treat them in a way that was humiliating and belittling… He was said to be mean, disrespectful, hurtful and singled students out.’ 35
[49] In these circumstances and given Mr James’ history, Father Fortin says he took the matter to the College’s Board of Directors who determined an investigation was necessary. Father Fortin said that he wrote to Mr James setting out the allegations against him. The College commissioned an investigation into the matters andMr James was stood down on pay whilst the investigation was conducted.
[50] Father Fortin’s evidence is that, following the receipt of Mr James’ response to the show cause letter, he considered the totality of Mr James’ actions, including the blazer incident, the ‘losers’ incident and the locked door incident. He also had regard to the fact that Mr James had received a first and final warning in relation to the blazer incident. He said he was particularly concerned about the locked door matter. He said Mr James’ conduct was totally unacceptable and dangerous and placed LK at risk of injury. Father Fortin says that Mr James had never accepted any responsibility for the incident nor indicated that he understood that what he did was inappropriate.
[51] Father Fortin said that ‘it was no secret that there were a lot of problems with’ Mr James at the College. 36 He said that Mr James’ conduct was incompatible with him continuing to teach at the College and was destructive of the trust and confidence required by the College.
[52] With respect to the 13 allegations contained in the letter of 15 June 2015, Father Fortin said that allegation 1 was in relation to the 2012 incident with MF and that whilst the matter had been dealt with at the time, he considered Father Delsorte (the then Principal) had been lenient. Further, he considered it to be part of a pattern of behaviour. Father Fortin gave evidence that he was aware that another teacher had had an incident with MF but that teacher acknowledged that he had handled the incident in the wrong way and had committed to avoiding any repeat of the conduct. Father Fortin’s evidence is that comparing Mr James to that teacher was like comparing apples and oranges as Mr James’ mistreatment of children was repeated.
[53] Father Fortin’s evidence is that the basis for many of the allegations contained in the letter of 15 June 2015 was the contents of files held within the College. These could have been student’s files or Mr James’ personnel file. The content of the files utilised were generated by student complaints, parent complaints or complaints made by other teachers. The complaints leading to the allegations arose between 2012 until 2014 when Mr James was last in attendance at work.
[54] Father Fortin gave evidence as to why he did not consider items 1 and 2 in the reasons for dismissal (allegations 1 and 5 in the letter of allegations) to be finalised:
MR JAMES: So once again, you’re saying it’s not dealt with to your satisfaction. Is that right?
FATHER FORTIN: I’ve stated that the college, all during this time, deals with the situation as best it can, but whether it should be finalised, I think it would have been finalised if there was a - again, one, one incident of mistreatment and anyone can make a mistake or they can be impatient or they can make a miscall of judgment, but here, when there is a number of events of misconduct towards students, then should it be a cap closed on this? Should it be - should the students not - should we not be aware that these - the present students and the future students should have protection and be treated properly? And all this just forgotten? No, it shouldn’t. Every teacher needs to be held responsible for their actions, and here again, you know, these reports that you show, it showed that the college is going to be fair, of course, toward yourself, but also seeing that the children are treated properly. And this shows this quite clearly.
MR JAMES: So you haven’t managed to answer the question. Are you dealing with this incident a second time because you were not satisfied with how it was dealt with the first time?
FATHER FORTIN: You’re dealing with your - with the - with your relationship with the college and ongoing - ongoing events which have taken place and as myself coming to the college, I would have to make sure that the college is running the way it should be and that all students are protected. So whether you’re asking if these things, these things in the past, were they definitely finalised, no, obviously they weren’t. They were brought up again.
MR JAMES: Are you bringing that incident up again because you were not happy with how it was dealt with the first time? You haven’t answered the question?
FATHER FORTIN: I brought the incident up again because it shows clearly a pattern of mistreatment of the students.
[55] Father Fortin’s evidence is that both Father Delsorte and Ms Powell had spent time meeting with Mr James formally and informally, and with his support person, in an attempt to resolve issues with him and that Mr James was treated fairly through these processes.
[56] Ms Stephanie Bradbury said she had genuine concerns that Mr James did not moderate his lessons to take into account the differing requirements of children in his class. She said that not accommodating children’s differing needs can lead to isolation and is ‘unnecessarily embarrassing and humiliating’ for the child. 37 Her evidence is that Mr James was more prone to lash out and to criticise and punish children who did not perform.
[57] Ms Bradbury said that in 2013 she had a conversation with Ms Pepping regarding her daughter. Ms Pepping said her daughter had become upset and ‘had a total meltdown’ when she saw she was to wear her sports uniform and said she did not want to go to school because of Mr James. 38 As a result Ms Bradbury said an integration aide was provided to assist in the class but even with this help Mr James did not acknowledge the child.39
[58] Ms Bradbury wrote a note about the conversation with Ms Pepping 40 which she sent to Father Delsorte. She said Father Delsorte probably asked for written details of the conversation because she mentioned the conversation to him. Ms Bradbury agreed that she did not speak to Mr James about the matter.
[59] Ms Bradbury also gave evidence that in February 2014 she noticed LK outside Mr James’ classroom. She says LK was banging on the window of the classroom. She spoke to Ms Pastor and then went and tried to open the door to Mr James’ classroom only to find it was locked. She offered to take LK to her office to which Mr James replied that LK was not coming back into the classroom.
[60] Ms Bradbury said that the decision to lock LK out of the classroom was reckless and a complete disregard by Mr James of his teaching duties. She said it was a risk to LK who could have taken off or hurt himself. She does not recall having a conversation with Mr James about LK being picked up early by his mother.
[61] Ms Jacinta Hurst, a teacher at the College, gave evidence that she noticed Mr James took a ‘very strict’ approach with some children. She gave evidence with respect to incidents in which she says children were asked to run excessive laps of the oval. She said she considered Mr James’ conduct towards the students ‘routinely inappropriate’. Ms Hurst wrote to Father Delsorte about this on 27 May 2013. 41
[62] Ms Hannah Sloane, a teacher at the College, gave evidence that, at the time of the LK incident, she was teaching in the room next door to Mr James. She said she heard kicking and screaming and shouting from outside the classrooms. She went to investigate and found LK outside on the veranda. She thought he was trying to re-enter the classroom.
[63] Ms Sloane said that she would not exit a child from the classroom and that a child outside the classroom could not be seen if the door was shut.
[64] Ms Sue Pastor, the Dean of Primary, gave evidence of a number of issues with respect to Mr James’ conduct. Some had been brought to her attention by parents and were put in writing. She said that she reported complaints she received to Father Delsorte or Ms Powell.
[65] Ms Pastor’s evidence is that the affected boys approached her about the ‘loser’ matter. 42 She was asked to interview the boys individually and says that they gave ‘consistent accounts’ of the incident. Ms Pastor’s said she considered Mr James’ conduct had the effect of embarrassing and humiliating the students.
[66] Ms Pastor said she was at the executive meeting where the tennis incursion was discussed. She made some notes on the documents 43 and assumed that if those matters were addressed, the incursion would proceed. She was not aware if permission forms (for participation) had been done.
[67] Ms Grace Powell, the College Deputy Principal, gave evidence that over the period of Mr James’s employment, hereceived several written warnings. She also said that she had ‘countless discussions with Mr James regarding his conduct and repeated failure to treat students with appropriate respect and courtesy and in a positive and nurturing manner and to demonstrate concern for their safety and welfare.’ 44 Ms Powell could not say when these discussions took place or how many discussions there were but she included both formal and informal discussions, conversations and hearings.45
[68] Ms Powell also gave evidence that MF and two other boys came to see her following the ‘blazer’ incident where MF was lifted up by Mr James. She says she keeps notes of all of her meetings including this one although the matters raised were never put in a formal statement by MF. She says that the version of events given to her by MF reflected what Mr James put in the serious incident report 46 although she agreed there is a difference as to whether MF was ‘slammed’ or ‘placed’ into his seat.
[69] Ms Powell said that, as a result of this incident, Mr James was required to attend a disciplinary meeting. In addition to herself and Mr James, Father Delsorte, Mr Harley Chipperfield (then Vice Principal) and Ms Bradbury were present. Contemporaneous notes were taken of the meeting. 47 Her evidence is that Mr James did not take the matter seriously and was dismissive of the College’s concerns. She said that the notes indicate that Mr James said that his actions in picking the student up by the collar were deliberate. Following the meeting Mr James wrote to Father Delsorte in which he refused to accept a caution for his actions. She said that Mr James was issued with a first and final warning in relation to the matter. Mr James then sought that the warning be revoked. This was not agreed to by the College.
[70] Ms Powell gave evidence that Mr James did not meet the necessary administrative requirements prior to taking children on a chess excursion in May 2013 (he failed to check medical forms; failed to take emergency contact details; failed to provide an attendance list; failed to take a mobile phone and failed to take a first aid kit). She sought a response from Mr James as to her concerns. She said she considered his response 48 to be ‘rude and inappropriate’ and ‘upsetting and disrespectful’49.
[71] Ms Powell said that on 22 October 2013, Mr James sought permission to arrange a Hot Shots Tennis Program (the tennis incursion). She said that Mr James did not complete the appropriate paperwork. She said that, after taking a number of factors into account, she told Mr James the incursion could not occur. Her evidence is that Mr James did not take that well and approached her during her lunch break. Ms Powell said she found his ‘tone and body language intimidating and threatening.’ She said that despite her directive, Mr James made it clear he was going to run the incursion anyway.
[72] Ms Powell said that she understood that, shortly after this incident, Father Delsorte met with Mr James and told him that he was required to comply with future directions given to him and refrain from intimidating conduct toward Ms Powell. She said that Mr James later apologised to her in writing for his conduct but she did not consider the apology to be genuine.
[73] Ms Powell said Mr James objected to how the College had treated him in respect to this incident. He responded in writing to Father Delsorte about the matter. Following from that letter, on 4 December 2013, Mr James was issued with a first and final warning for his failure to follow a clear directive and for his intimidatory behaviour towards Ms Powell. 50
[74] Ms Powell gave evidence that she considered the decision to terminate Mr James’ employment to be justified.
The parents
[75] I have considered the evidence of the parents as it is relevant to the matters below. I do not otherwise outline their evidence.
Legislation
[76] Section 385 of the Act states:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[77] I am satisfied that Mr James is protected from unfair dismissal. I am also satisfied and do find that he has been dismissed, the Small Business Fair Dismissal Code does not apply and the dismissal did not relate to redundancy. In determining if Mr James was unfairly dismissed it is therefore necessary to determine if his dismissal was harsh, unjust or unreasonable.
[78] Section 387 of the Act 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.
[79] I have considered each of these criteria in reaching my decision.
(a) Valid reason (s.387(a))
[80] It is well settled that, in deciding if there was a valid reason for dismissal relating to the conduct of a person, the Commission must decide, based on the evidence before it, if the conduct occurred. Further, it is accepted that for a reason to be valid, it must be ‘sound, defensible and well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason’ for the purposes of s.387 of the Act. 51
[81] In the letter of termination, Mr James was advised that the College did not accept his response that the matters in findings 1 and 2 of the show cause letter had previously been dealt with or that finding 3 of the show cause letter was a new matter. Father Fortin therefore advised that ‘[a]fter giving careful consideration to all the matters, I have made a decision to terminate your employment.’ 52
[82] The ‘findings’ referred to are set out in the show cause letter. These are:
1. The allegation that Mr James used inappropriate physical force in interactions with [MF] is proven;
2. The allegation that Mr James called students “losers” is proven; and
3. The allegation that Mr James place[d] [LK] outside the classroom as a punishment in inappropriate circumstances is proven. 53
[83] I am satisfied that Mr James did use physical force in in his interactions with MF. I reach this conclusion on the basis of the incident report submitted by Mr James himself. Further, Mr James has not denied that he did lift MF by the blazer collar and place him back in his chair.
[84] I am also satisfied that the force used was inappropriate. I accept the evidence of Father Fortin that the use of physical force in disciplining a child is inappropriate at any school. I am satisfied that the VTPCC expressly prohibits the touching of a child without a valid reason.
[85] Whilst I accept Mr James’ evidence that MF was a difficult and unruly child, I have trouble conceiving a circumstance where it is appropriate to lift a student off the floor by the collar of his blazer. Even if there were grounds that warranted MF being touched or lifted by Mr James, the way he did go about that is astounding. Further, Mr James lifted MF high enough to place him in his seat, clearly higher than necessary to move him out of harm’s way.
[86] I do not know if Mr James ‘slammed’ or ‘placed’ MF into his seat. I have no evidence on this except that of Mr James who, even at the hearing, did not concede he did anything wrong or made any error of judgement in this matter. I do not need to make a finding as to the force used to place LK in his seat however, to be satisfied that the incident did occur and that it was inappropriate.
[87] I agree with the conclusions reached by the College in advising Mr James of its decision with respect to his conduct to issue a first and final warning. I acknowledge that Mr James sought a revocation of the finding of misconduct and suggested he had no alternative but to take the actions he did. I am not convinced that this is so. I accept it may have been difficult for anyone else to tell Mr James what else he could have done or how else he could have gone about moving MF, but this does not excuse his conduct.
[88] I also note that, in seeking a revocation of the misconduct finding, Mr James did not indicate any remorse for the way he had gone about shifting MF, but rather sought to lay the blame on others for the actions he alone took.
[89] Mr James received a first and final warning with respect to this incident. In this regard, Mr James was punished for his actions. At the time of the issue of the first and final warning, the College clearly did not consider the actions of Mr James warranted dismissal. It may well be that it considered the actions warranted more severe sanction but ultimately decided that a warning was appropriate in the circumstances. Alone, it is difficult to see how it could provide a valid reason to dismiss Mr James now.
[90] That Father Fortin is of the view that Father Delsorte was too lenient is not grounds for him to reconsider the type of disciplinary action that should be imposed at some later date. It would never be appropriate for a manager to go back through an employee’s historical disciplinary record and revisit the decisions previously take. However, this does not mean that Mr James’ actions in this matter are not a relevant consideration as to whether the dismissal was harsh, unjust or unreasonable. 54
[91] I am satisfied that in May 2013, Mr James told a number of students they were acting like ‘losers.’ I am satisfied that some of the students believed they were called losers even if this is not what Mr James meant.
[92] I have reached this conclusion on the basis of the statements taken from the students by Ms Pastor at the time of the incident. 55 I do not accept Mr James’ argument that I should rely only on the statement of one of the boys involved that Mr James had said they were ‘acting like losers’.
[93] At least three of the boys thought enough of the incident to tell their parents who then put their concerns about what Mr James had said to the boys in writing. Ms Kimberley Mullins, a parent, gave evidence that in 2013, her second son was involved in the incident in which Mr James disciplined a number of students and made them run six laps of the oval. She says her son was reprimanded by Mr James when he went to get his water bottle and that Mr James called him an “idiot” and a “retard” and that he told another student that he “spoke like a loser, looked like a loser and smelled like a loser”. 56
[94] On 21 May 2013, Ms Kimberely Mullins wrote to the College setting out her concerns at the treatment of her second son by Mr James. 57 She did not speak to anyone at the College before putting in the complaint although she did speak to another parent. Ms Mullins sent the letter of complaint to Ms Pastor and not Mr James because she had a good relationship with Ms Pastor. She presumed Ms Pastor would deal with it and was not aware that it was not brought to Mr James’ attention for three months.
[95] Ms Nicolette Zaccari gave evidence that in May 2013, her son came home from school visibly distressed and said that Mr James had ‘berated him saying that “he was a loser, spoke like and loser and smelt like a loser.”’ This, she says, occurred after Mr James disciplined her son and a number of other boys. 58 She says that on the night of the incident, the parents of two of the other boys involved contacted her and confirmed the loser comment.
[96] Ms Zaccari says she raised the incident with Ms Pastor. Ms Pastor asked her to put the complaint in writing which she did the following day. 59 She then gave the letter to Ms Pastor. Ms Zaccari expected that the College would ‘do whatever they thought necessary’ and was not aware that Mr James did not see the letter she sent until three months later.
[97] However Mr James intended the boys in question to take his comments to them is not to the point. That a number of the boys believed he had called them a loser is problematic. That one of the boys believed he said to them that they were ‘acting like losers’ does not seem to me to help Mr James cause. The other boys heard themselves being called losers by Mr James.
[98] By his language, Mr James accused the boys of being or acting like losers. It does not seem to me that this is appropriate language for a teacher to use to children in his care. He had care of the children as their teacher. It is reasonable to expect that he would provide positive encouragement to the students. Referring to them as losers does not appear to do so.
[99] I am also satisfied that Mr James did say to one of the students that he ‘spoke like a loser’ and that the child he said this to was undergoing speech therapy. In finding this, I do not suggest that Mr James told the child he spoke like a loser because of his speech therapy, but a person in Mr James position, in circumstances where he was aware of the speech therapy lesson, should know to choose his words more carefully.
[100] Mr James said, and I accept, that he used the word ‘loser’ because the boys use it themselves and he thought they would understand what he meant. That is, however, a very poor excuse for addressing students in such a way. The term ‘loser’ can be used in quite hurtful and inappropriate ways by children – it may well be used as a taunt. That children might use it in their interactions does not make it a harmless term for Mr James to use to the children in his care.
[101] I am not satisfied on the evidence before me, that Mr James called the children or any of them ‘retards’ or ‘idiots’ in this incident. I also make no finding in respect of the water bottle incident.
[102] Mr James’ conduct in respect to this incident was also subject to a meeting with relevant staff of the College on 7 August 2013. 60 The outcome of that was an expectation that there would be no more complaints from parents about Mr James’ conduct and that in future, he would complete an incident form on all occasions when he excluded a student from class.
[103] At the time, the College did not consider this incident (along with some other matters discussed at the meeting) warranted dismissal. Rather, it intended to put in place clear expectations of Mr James and a performance review process. Again, while the matter was dealt with at the time does not mean it cannot be considered in deciding if he was unfairly dismissed.
[104] In response to being presented with the notes of the meeting, Mr James protested that, amongst other things, there was no issue with his conduct towards students and the written complaints (of the parents) were not investigated. This protest adds nothing to the matter nor does Mr James’ claim that he was never found to have called the students losers.
[105] In relation to the ‘locked door’ incident, I am satisfied that in February 2014, Mr James placed LK outside the classroom, locked the door, and that this was punishment in inappropriate circumstances. Whilst Mr James said that he did not believe he locked the door, I am satisfied, based on the contemporaneous incident report made by him and the evidence of Ms Bradbury who attempted to open the door 61 but found it locked, that Mr James did put LK outside the door and locked the door.
[106] Mr James does not concede that he did this in inappropriate circumstances. He says that LK was misbehaving. He says he put LK outside the classroom but LK kept coming back in, that he then shut the door and LK kept banging on it so he locked the door.
[107] LK was in foundation (prep) year at school. The incident occurred in the fourth week of the school year. 62 Whilst Mr James says LK was supervised whilst outside, I am not satisfied that he could be properly supervised. Evidence was produced of photographs of the classroom doors and veranda outside the classroom.63 Mr James says that LK was required to sit on the mat. It is inconceivable to me that Mr James could have been able to see LK on the mat outside the classroom door. The glass in the door is clearly too high for Mr James to have had a line of sight to LK unless Mr James was standing at the door peering down to the mat on the outside.
[108] It is also inconceivable to me that it could possibly be considered appropriate to place a foundation year student in his fourth week of school outside a locked classroom on his own. Mr James says LK needed to ‘be disciplined for his outrageous behaviour’ and that he was being ‘wilfully disobedient and extremely and deliberately disruptive.’ 64 Even in these circumstances, I am not convinced that locking a child out of a classroom in their fourth week of school is appropriate.
[109] No action was taken against Mr James at the time of this incident even though he did file an incident report. Despite this, I am satisfied that it, alone, provides a valid reason for his dismissal. To be clear, I do not consider the reason for dismissal to be ‘capricious, fanciful, spiteful or prejudiced.’
(b) Notified of the reason (s.387(b))
[110] This section of the Act goes to whether Mr James was notified of the reason for his dismissal prior to a decision being taken to dismiss him.
[111] On 26 January 2016, Mr James was issued with a show cause letter. That letter outlined the three incidents the College considered justified grounds for dismissal. Father Fortin said in that letter that ‘[b]efore making any decision I will give you the opportunity to respond as to why your employment should not be terminated.’ 65
[112] Despite what Mr James has put, I am satisfied that he was notified of those matters relevant to the College’s consideration and ultimately, the reason for his dismissal.
[113] I am therefore satisfied that Mr James was notified of the reason for his dismissal.
(c) Opportunity to respond (s.387(c))
[114] I am satisfied that, by the show cause letter of 26 January 2016, Mr James was given an opportunity to respond to the reasons for dismissal.
[115] Mr James’ response on 2 February 2016 to the invitation in the show cause letter showed scant regard for the seriousness of the matters raised or the potential consequences. 66 Whilst it was open to him to protest that items 1 and 2 in the show cause letter had already been dealt with by the College, he offered no reason beyond this as to why the College should not dismiss him.
[116] With respect to item 3, again, instead of engaging in a response as to the why the College should not dismiss him, Mr James chose to concentrate on what had been in the letter of allegations but were not reasons the College was considering dismissing him, that is, that he had described LK as a vandal and not given him a star for good behaviour, instead of the serious matter of locking LK outside the classroom.
[117] Mr James claimed in his response that item 3 was a new matter which had not been put to him in the past and he was therefore denied procedural fairness. He is wrong in this regard. The allegations put to him on 15 June 2015 included him calling LK a vandal but also included that ‘[o]n one occasion he locked [LK] outside the classroom for bad behaviour and another teacher, Stephanie Bradbury, took him into her room.’ 67 That a matter being considered to justify dismissal may change or be refined between being put as an allegation and what is ultimately in the show cause letter is not problematic. The fact is that, in this case, Mr James had known that locking LK out of the classroom was an issue and had, in the letter of allegations and again in the show cause letter, been given an opportunity to respond. That he chose not to does not change the fact that Mr James was advised of the reason for dismissal and was given an opportunity to respond.
[118] Mr James said he was denied procedural fairness in relation to the letter of allegations in that he was not given an opportunity to respond to them.
[119] Most of the matters in the letter of allegations were not relied on as reasons to dismiss Mr James. In relation to the reason for dismissal, I am satisfied that Mr James was notified of those and given an opportunity to respond prior to a decision being made to dismiss him from his employment with the College.
(d) Support person (s.387(d))
[120] I am satisfied that Mr James was not unreasonably refused access to a support person.
(e) Unsatisfactory performance (s.387(e))
[121] Mr James was not dismissed for unsatisfactory performance. This is not a relevant consideration.
(f) The size of the business and access to HR expertise (ss.387(f) and (g))
[122] Father Fortin’s evidence is that the College has between 45 and 50 staff. It is not a large organisation but not a small business. It says that it does not have access to dedicated human resources personnel. I note that it does have a ‘business manager’ but it is not clear what this role entails. It is to be expected that it had reasonable processes in place to deal with conduct matters.
(g) Other matters (s.387(h))
[123] There is a vast array of ‘other matters’ to consider.
Evidence of parents
[124] A number of parents of students or former students of the College came forward as witnesses for the College in this matter. To the extent they gave evidence of what their children told them, I have no reason to think that their children lied to them. However, many of these matters were not raised with Mr James or were not put in writing to the College (for example, Ms Pepping raised concerns with Ms Bradbury about her daughter’s reaction to Mr James but did not speak to Mr James of it; Ms Hogan did not raise with Mr James her concerns that he was not providing assistance required to her child; Ms De Castella did not raise her concerns about her child directly with Mr James or the College.
[125] That matters were not brought to Mr James’ attention at the time of the incidents such that he could respond or adjust his approach as necessary to the student, is a relevant consideration. By not raising many of these issues with Mr James, the College cannot now lay claim to them as justifying its decision to terminate his employment. I do not rely on these matters in justifying my findings but I do note that the incidents described are not inconsistent with the findings I have made.
[126] To the extent that the evidence of parents consists of contemporaneous notes or letters of complaint of incidents to the College, I do accept this evidence. It is evidence of particular conduct. Whether a parent wrote the letter first or spoke to a staff member at the College and then put the complaint in writing is not relevant. What is relevant is the complaint was made at the time of the incident. The evidence of the parent to the extent it is supported by the written complaint is reliable. The College still has a problem however, in how much reliance it can place on this evidence as justifying dismissal if it failed to act on the complaint. If the College was aware of the conduct and chose to not take action on it, it is difficult to see how it can now say it justifies dismissal of Mr James. Again, I do not rely on these incidents as a basis to justify the dismissal of Mr James or my findings on specific incidents, but I do note that the complaints are not inconsistent with those matters on which I have made specific findings. To that extent the written complaints suggest a pattern of behaviour of Mr James not inconsistent with the findings I have made.
[127] To the extent that the evidence of parents is relevant to the reasons given for dismissal in the letter of termination, I have specifically dealt with that evidence in considering the specific reason.
[128] Mr James sought to impugn the integrity of the parent witnesses on the grounds that they were related to people who worked at the College, did not raise their concerns with Mr James and/or the College or no longer had children at the College. Whilst I appreciate Mr James’ frustration with the number of parent witnesses, I have dealt with that issue. I see nothing wrong in parents who had made complaints about Mr James being asked to come forward and give evidence. I have explained above how I have dealt with the evidence. I would observe that not all parents who gave evidence were related to staff of the College. I would also observe that it is not unusual for parents in a small community with children of similar ages to know each other.
[129] It would appear that there is a deficiency in College policy in relation to recording and dealing with complaints about teachers. If a complaint is made of a teacher, it seems to me there should be some record of that complaint, whether it is in writing from the parent or is a record of conversation by the person the complaint is made to. It seems that the College also requires a more systematic method of storing such complaints. Father Fortin said that the complaints might be in the teacher’s file, the student file or other places. This is not a very reliable filing system. Further, a teacher should be informed of a complaint. It beggars belief that the College could expect a teacher to change their conduct or style if they never know there is a problem.
Tennis incursion incident
[130] Mr James was involved in an incident with Ms Powell in respect to the tennis incursion in October 2013. As a result of that interaction, there was a meeting held with Mr James on 8 November 2013 where it was agreed that Mr James would apologise to Ms Powell, that mediation would occur between them and that if Ms Powell and Mr James needed to meet, a third person would be present. Mr James was also to advise Mr Pullen, the Business Manager, of issues he had with Ms Powell on a professional level.
[131] Mr James did put his apology in writing to Ms Powell but also wrote to Father Delsorte complaining of the ‘big stick’ approach being taken in respect of the matter. He also stated that he had no confidence in Ms Powell’s ability to perform her role in areas that impacted on Mr James. This letter puts a different perspective on his apology to Ms Powell.
[132] Father Delsorte responded to Mr James’ letter. He said that Mr James’ letter did not reflect the conciliatory approach that the College was hoping for from him. This then drew a further response from Mr James in which he complained of a lack of clarity in the original complaint; accused Ms Powell of telling malicious lies; accused the College of an over-reaction to the matter; and accused the College of inefficient, ill-informed and slow decision-making. Father Delsorte again responded to Mr James who then replied with what could only be described as a disrespectful and incredibly insolent letter. 68
[133] What is noteworthy from this incident, beyond any finding that might be made of Mr James’ interactions with Ms Powell on the day in question, is the totally inappropriate response from Mr James to the outcomes of the meeting in his exchanges with Father Delsorte and the disrespect he showed to both Father Delsorte and Ms Powell.
[134] I have taken into account Mr James’ conduct towards Ms Powell at the time of the tennis incursion incident and his conduct following the meeting with Father Delsorte. I am satisfied that he was aggressive towards Ms Powell and that his conduct demonstrates a deteriorating relationship between Mr James and his employer. Ms Powell holds a senior position in the College. The Executive of the College had made a decision in respect to the tennis incursion and Mr James’ approach to Ms Powell was unacceptable. Father Delsorte was the College Principal. Mr James corresponded with Father Delsorte in a manner totally devoid of common decency and way outside the bounds of good faith an employee would normally be expected to show his employer.
[135] Whether the incident and the follow up meeting and correspondence alone provides grounds for dismissal is not the issue. Rather, I accept it as sound evidence of Mr James’ inability to accept criticism and his sense of moral superiority as to how the College was managed.
Blazer and locked door incidents
[136] I have found above that neither the ‘blazer’ nor the ‘loser’ incidents provided a valid reason for dismissal on the bases that each incident had already been subject to a decision of the College as to what disciplinary action was warranted at the time. Whilst they may not provide a valid reason for Mr James’ dismissal they are part of his conduct and were raised with him at or around the time of the incidents. He was aware that his conduct in each instance was not acceptable to the College. He was on notice as to future conduct. It is not a matter of the College being aware of those two incidents and doing nothing such that the conduct was in some way condoned. Rather, the College did not condone the conduct but determined some disciplinary action should be taken at that time.
[137] I am satisfied that Mr James has engaged in repeated misconduct with respect to students. Two incidents have been subject to disciplinary action by the College. Mr James should have been aware that such conduct was not acceptable. His failure to appreciate the consequences of how he dealt with students is concerning. I do not see the conduct of Mr James as ‘escalating’ but it is clearly repetitive.
[138] That disciplinary action has already been taken with respect to each of these issues does not.
Procedural fairness
[139] Mr James was absent on WorkCover from about June 2014 until he was due to return in March 2015 when he was suspended on full pay whilst an investigation took place. Father Fortin said it was ‘no secret that there were a lot of problems’ with Mr James at the College. 69 Given that Father Fortin arrived in early 2015, this must have been common knowledge before his arrival. In this case, it is highly unusual, to put it at its best, that no action was taken prior to the arrival of Father Fortin at the College to consider Mr James conduct holistically. However, I accept that a fresh pair of eyes by Father Fortin and a comprehensive review of actions by and complaints against Mr James was enough to warrant a more formal consideration of Mr James’ conduct.
[140] The retention of records of complaints by the College meant that there was no single place where matters in relation to Mr James’ conduct were kept. Father Fortin said information was on Mr James files, in student files and in ‘other’ records.
[141] Orders were issued by the Commission for the production of Mr James’ personnel file. The College, in its prosecution of this case and in the allegations put to Mr James in June 2015, has relied on a much more extensive array of complaints and documents than those in Mr James’ personnel file. It became apparent that Mr James was not aware of some of these complaints until the College filed its materials in this matter. How Mr James could ever have dealt with matters he was not aware of is beyond comprehension and to bring some matters up at hearing, when the College knew or should have known of them prior to the dismissal of Mr James, raises some concerns with respect to procedural fairness.
[142] That one of the matters ultimately justifying dismissal occurred in 2104 but was not put to Mr James in the show cause letter until mid-2015 and then not acted upon until the decision to dismiss in early 2016 is unfortunate. It is, however, adequately explained by Mr James’ absence from work from mid-2014 and return to work in 2015 and a review of complaints by Father Fortin. There was some delay in providing Mr James with the letter of allegations until 15 June 2015 but I have made allowances for the fact that the College does not have any internal human resource expertise. The allegations put to Mr James were serious. The letter of allegations needed to be constructed as well as possible in the circumstances.
[143] A further delay occurred in the commissioning of the investigation which appears to have not been completed although Mr James was interviewed by the investigator. Further delay then came about through apparent efforts to negotiate a resolution to the matter with Mr James’ union representative. This came to nothing.
[144] Whilst the delays were unfortunate and the College should be expected to have had more robust systems in place, I am not convinced they are such to make the dismissal harsh, unjust or unreasonable.
[145] As I have found above, I am satisfied that Mr James was aware of the matters and was given an opportunity to respond in respect to those matters that formed the reason for his dismissal.
Jones v Dunkel point
[146] In his submission Mr James raised the:
Jones v Dunkel presumption in relation to the work logic documents, in relation to the ex-principal Fr Michael Delsorte who was at the helm for the entire course of the allegations up until I left the college. The original serious incident report for [LK] dated 28 February 2014, excursion documentation 70…
related to the cross-country in 2013 and the inter-school chess in 2013 and that the presumption is that the failure to produce is because it has not been [beneficial] to the respondent’s case. 71
[147] I have dealt with the evidence that is available and as it relates to the matters I must decide. Ultimately, Father Fortin was the decision-maker in deciding to dismiss Mr James. His reasoning is what must withstand scrutiny. I draw no adverse conclusions due to the failure of the College to call Father Delsorte.
[148] Mr James raised the absence of the final report of the investigation undertaken by Worklogic into the allegations put to him in June 2015 and that it had never been provided to him. Again, it is not something that is relied on by the College either as the basis for its decision to issue Mr James with a show cause letter, to dismiss Mr James or in proceedings before the Commission. In any event, I am informed that there was no final report produced.
[149] I do not consider anything can be read into this. I note that the College did enter into quite protracted negotiations with Mr James’ union representative in an attempt to settle the matter. These negotiations appear to have overtaken the investigation. I draw no adverse inference from any failure to produce the report.
[150] The College has not sought to rely on any reports or documentation in relation to the cross-country or the chess excursion. Direct evidence was given on the chess matter. It has not been determinative of my decision. I draw no adverse inference from the failure of the College to produce such documentation.
Other matters
[151] A number of other issues were raised by Mr James or by the College.
[152] I accept that Mr James did require children to run laps of the oval, amongst other activities, if they were not behaving properly. 72 In this respect, running of laps was a form of punishment. I make no findings as to whether the children were required to do this for 45 minutes.
[153] I make no finding if children were required to ‘bear walk’ as punishment.
[154] I have not considered how Ms Pastor or Ms Powell achieved promotion to their positions. I note that each was promoted to their current roles when Father Delsorte was Principal. Attempts to raise doubt as to their integrity because of how they gained their current jobs are misplaced.
Conclusion
[155] The concept of harsh, unjust or unreasonable was considered in Australia Meat Holdings Pty Ltd v McLauchlan 73 where a Full Bench found:
Further, the submissions advanced by the appellant fail to pay sufficient regard to the joint judgment of their Honours McHugh and Gummow JJ in Byrne. In that case their Honours said (at 465-468; 72-74):
‘‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted . . . Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appear to concede this. But the burden of the respondent’s submissions is that there was error in determining the issue without regard to the very material circumstances of the finding of the primary judge as to the complicity of the appellants in pilfering. Those submissions should be accepted. This means that the primary judge was bound to consider whether, on the evidence given at the trial, the respondent could resist the allegation of breach of cl 11(a), provided that the evidence concerned circumstances in existence when the decision to terminate the employment was made.’’
The above extract is authority for the proposition that a termination of employment may be:
● unjust, because the employee was not guilty of the misconduct on which the employer acted;
● unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
● harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.
[156] I have found that there was a valid reason for the termination of Mr James’ employment. The decision to be made is whether that reason, in conjunction with all of the other matters I must consider, renders the dismissal harsh, unjust or unreasonable.
.
[157] In this case, I am not convinced that the dismissal was harsh, unjust or unreasonable.
[158] Mr James has a history in relation to his treatment of children at the College as evidenced by the blazer incident and the ‘loser’ incident.
[159] Mr James has shown disrespect and a total disregard for the authority of the College as his employer and contempt for the previous Principal and the Deputy Principal. This is evidenced through his treatment of Ms Powell, the contemptuous tone in his correspondence with Father Delsorte over the tennis incident and his demands that disciplinary action in relation to the blazer incident be withdrawn.
[160] Mr James seemed to consider himself the arbiter of what was reasonable, lawful, fair, ethical or moral such that he had the right to challenge anything that did not fit within his moral compass, whilst everything he did was not and could not be subject to challenge. On this, Mr James was wrong. He was an employee of the College. To the extent that the standards it set and the policy and procedures it utilised were lawful, he was bound to observe them. Whilst it is his right to assert his rights, he is also required to meet the obligations placed on him in entering into an employment contract with the College. It is not for him to accept employment and then demand his standards be accepted by the College.
[161] Mr James has shown no remorse for his treatment of students (or staff) and no self-awareness as to why his actions might be deemed inappropriate. Mr James has demonstrated a lack of insight as to the effect of his words and actions on both students and staff of the College. He has been dismissive of the concerns of the College, he has not accepted responsibility for his actions or decisions and he has been disrespectful in his correspondence with the College.
[162] Mr James has exhibited a pattern of behaviour in his conduct in relation to children and his relationship with the College that is unacceptable.
[163] In these circumstances, I do not find the decision to dismiss Mr James from his employment harsh, unjust or unreasonable.
[164] Mr James’ application for relief from unfair dismissal is therefore dismissed. An order 74 to this effect is being issued at the same time as this decision.
COMMISSIONER
Appearances:
W. James on his own behalf.
R. Millar, of counsel, for St Thomas Aquinas College Limited T/A St Thomas Aquinas College.
Hearing details:
2016.
Melbourne:
August 2, 3, 4, 5.
1 [2016] FWC 5034.
2 Exhibit A1, attachment G1.
3 Exhibit A1, attachment N.
4 Exhibit A1, attachment V, page 3.
5 Exhibit A1, attachment W.
6 Exhibit A1, attachment WJ-AAAA.
7 Exhibit A1, attachment EEE-29.
8 Exhibit A1, attachment EEE-31.
9 Exhibit A1, attachment XX.
10 Exhibit A1, attachment HH.
11 Exhibit A1, attachment JJ. Note that a further version of the letter ‘marked up’ with changes was also filed by Mr James (attachment NN) but its origins are not known. An order for the College to search its records for the letter produced nothing.
12 Exhibit A1, attachment LL.
13 Exhibit A1, attachment RR.
14 Exhibit A1, attachment RR.
15 Transcript, PN416-39.
16 Exhibit A1, attachment SS.
17 Transcript, PN238.
18 Transcript, PN239.
19 Transcript, PN240.
20 Transcript, PN247.
21 Transcript, PN253.
22 Transcript, PN258.
23 Exhibit R6, attachment MF-1.
24 Transcript, PN843.
25 Transcript, PN337.
26 Transcript, PN882.
27 Transcript, PN885.
28 Transcript, PN891.
29 Transcript, PN892.
30 Transcript, PN547.
31 Transcript, PN570.
32 Transcript, PN989.
33 Transcript, PN458.
34 Transcript, PN505-6.
35 Exhibit R6, paragraph 19.
36 Transcript, PN2324.
37 Exhibit R12, paragraph 3.
38 Transcript, PN2952.
39 Transcript, PN2960.
40 Exhibit R6, attachment MF-6.
41 Exhibit R13, attachment JH-1.
42 Transcript, PN4117.
43 Exhibit A1, attachment NNN1.
44 Exhibit R17, paragraph 10.
45 Transcript, PN3447-3455.
46 Transcript, PN3592.
47 Exhibit R17, attachment GP-1.
48 Exhibit R17, attachment GP-8.
49 Exhibit R17, paragraph 41.
50 Exhibit R17, attachment GP-12.
51 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
52 Exhibit A1, attachment TT.
53 Exhibit A1, attachment RR.
54 Toll Holdings Limited t/a Toll Transport Pty Ltd t/a Toll Priority v Joseph Johnpulle[2016] FWCFB 108, [15].
55 Exhibit R6, attachment MF-4.
56 Exhibit R9, paragraph 11.
57 Exhibit R9, attachment KM-1.
58 Note that this incident is covered in allegation 5 in the letter of allegations.
59 Transcript, PN2584.
60 Exhibit A1, attachment V.
61 Evidence – take from above.
62 Transcript, PN511.
63 Exhibit 14.
64 Transcript, PN557.
65 Exhibit A1, attachment RR.
66 Exhibit A1, attachment SS.
67 Exhibit A1, attachment JJ, allegation 10.
68 Exhibit A1, attachment EEE-35.
69 Transcript, PN2324.
70 Transcript, PN4312.
71 Transcript, PN4316.
72 Transcript, PN933-4.
73 (1998) 84 IR 1.
74 PR585396.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR585086>
1
5
0