UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00108

DELIVERED : MONDAY, 18 MARCH 2024

FILE NO. : U 33 OF 2023

Applicant

AND

Director General, Department of Education

Respondent

CatchWords : Industrial Law (WA) – Application to strike out unfair dismissal claim – Improper conduct – Capacity or tendency to interfere with the administration of justice – Respondent’s interlocutory application upheld – Unfair dismissal application dismissed 

Legislation : Industrial Relations Act 1979 (WA) s 26(1), s 27(1)(a)(iv)    

Result : Interlocutory application upheld and matter dismissed

Representation:

Applicant : Ms I Palaloi (on her own behalf)

Respondent : Mr M McIlwaine (of counsel)

Case referred to in reasons:

Wauchope v Director-General, Department of Education [2022] WAIRC 00739

Reasons for Decision

The respondent’s interlocutory application

1         On 15 December 2023, the respondent filed an interlocutory application (strike out application) for an order that the applicant’s (Ms Palaloi’s) unfair dismissal claim be dismissed under s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) (Act) on the ground that Ms Palaloi has, since her dismissal, acted improperly towards at least one potential witness, and possibly other potential witnesses, all of whom are children and former students.

2         Section 27(1)(a)(iv) of the Act states:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

…

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

3         On 15 December 2023, the respondent also filed an application for Ms Palaloi to discover a complete and chronological record of text messages exchanged with a former student, who in these reasons for decision will be identified as Student SD (discovery application).

Background to the respondent’s interlocutory application

4         On 13 June 2023, Ms Palaloi filed a Form 2 – Unfair Dismissal Application (unfair dismissal application) claiming she was unfairly dismissed by the respondent on 8 June 2023, from her position as Teacher at Kalgoorlie-Boulder Community High School (School), which had commenced on 30 January 2023.

5         On 7 July 2023, the respondent filed a Form 2A – Employer Response to Unfair Dismissal Application (Response) contending that:

(a) Ms Palaloi was involved in multiple incidents between 1 February 2023 and 3 March 2023, all of which were raised with her at School level, involving allegations of inappropriate physical contact with students, misuse of social media and a failure to maintain appropriate boundaries with students.

(b) The incidents and Ms Palaloi’s responses to these incidents caused the respondent serious concern about her suitability and compatibility with the role of a Teacher.

(c) By a letter dated 17 May 2023, the respondent notified Ms Palaloi that the respondent had determined that she is not suitable or compatible with the role of a Teacher, has not successfully completed her probationary period, and would be dismissed with four weeks’ notice pursuant to clause 8 of the Teachers (Public Sector Primary and Secondary Education) Award 1993.

6         On 4 December 2023, the respondent indicated an intention to file the strike out application, which was subsequently filed on 15 December 2023, together with the discovery application. By 15 December 2023, the parties had complied with all Directions for the filing of documents to be relied upon at the hearing of the unfair dismissal application, including a statement of agreed facts and bundle of agreed documents, outlines of witness evidence and outlines of legal submissions.

7         The strike out application and discovery application were listed for a Directions Hearing on 20 December 2023.

8         Having heard from the parties regarding the discovery application, I issued the following Order (2023 WAIRC 00979) on 20 December 2023 (Order for Discovery):

THAT by Friday, 5 January 2024, the applicant file an affidavit, sworn or affirmed in accordance with sections 8 to 10 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA), that:

1. Identifies the name of any former or current student of Kalgoorlie-Boulder Community High School that the applicant has had any contact with, in any form, in the period from and including 17 May 2023 to the date of the affidavit (Contact);

2. States the date of each Contact;

3. States the nature of each Contact; specifically whether the Contact was in the form of a verbal communication or in the form of a recorded communication, such as via a text or other electronic form of communication;

4. Attaches to the affidavit a complete and chronological record of all Contact that was in recorded form (Record) in the applicant’s possession, custody or control; and:

5. States that if a Record is not attached to the affidavit it is because the Record is no longer in the applicant’s possession, custody or control, and:

a. States the date that the Record came to no longer be in the applicant’s possession, custody or control; and

b. States the reason that the Record is no longer in the applicant’s possession, custody or control.

9         Having heard from the parties regarding the strike out application, I issued the following Directions (2023 WAIRC 00980) on 20 December 2023:

1. THAT the Application be listed for hearing on Friday, 9 February 2024 at 10.30am (Hearing).

2. THAT the respondent file an outline of the legal submissions she intends to rely upon at the Hearing by Friday, 12 January 2024.

3. THAT the applicant file an outline of the legal submissions she intends to rely upon at the Hearing by Monday, 29 January 2024.

4. THAT the parties have liberty to apply.

Respondent’s contentions

10      On 18 January 2024, the respondent filed written submissions contending that: 

(a) On 15 and 16 September 2023, Ms Palaloi acted improperly towards an anticipated witness, Student SD (a 13-year-old girl who was Ms Palaloi’s former student), in sending a series of text messages in circumstances where Ms Palaloi expected to call Student SD as a witness.

(b) The text messages constituted improper conduct or misconduct because:

(i) They had the capacity, tendency or potential to interfere with the administration of justice; and

(ii) Ms Palaloi used intimidatory tactics and threats or inducements to persuade Student SD to ‘tell the truth’ (as Ms Palaloi saw it) before the Commission.

(c) Whilst Student SD initiated communication with Ms Palaloi via text, during which Ms Palaloi identified herself as her sister who shares her name and lives in Sydney, when Student SD identified herself and stated ‘give me the one who teaches’ because ‘she beated me with a chair’, Ms Palaloi made the deliberate choice not to end the communications with Student SD, and instead raised the topic of her unfair dismissal proceedings.

(d) Ms Palaloi’s text messages had the following features:

(i) First, over the course of the text messages, Student SD restated her allegations about Ms Palaloi and stated that she wasn’t lying. For example, Student SD stated:

(I)  ‘she beated me with a chair’.

(II)  ‘also I wasn’t lied’.

(III)  ‘we didn’t lie’.

(IV)  in response to Ms Palaloi stating ‘U lied’, ‘no we didn’t’.

(V)  in response to Ms Palaloi stating ‘My sister said she kicked the chairs for self-defence as you kick the chair to her’, ‘no I didn’t I nudged the chair and you chased me’.

(VI) ‘you chucked a chair at one of them, you locked most of us out read affirmations…’.

(VII)  ‘you threw a chair at a student tho?’.

(ii) Second, Ms Palaloi stated that Student SD will be summonsed to give evidence and will be forced to give evidence by video link by the Police. Ms Palaloi stated:

(I)  ‘And I got your number or the police will find you’.

(II)  ‘Do not worry, the police will find you from the court order… to be a witness of the Principal’s complaints about the student who lied and bullied her teacher’.

(iii)  Third, Ms Palaloi made the following comments about the ‘court’ process (being the unfair dismissal proceedings):

(I)  ‘My sister will get the court to ask you, Principal and other students from the cross examination in the Kalgoorlie court’.

(II)  ‘So see you and the others in court as my sister will challenge you all’.

(III)  ‘If my sister was not satisfied with ur answers and the Principal answer, her lawyer will ask the court to use a lie detector’.

(IV)  ‘I will be with my sister in the Kalgoorlie to support her and watch you and others who scared to death for being lies’.

(V)  ‘Ur parents will be summons too’.

(iv) Fourth, Ms Palaloi stated that she would be making accusations against Student SD in the court proceedings, being that she lied to the Principal and bullied Ms Palaloi in the classroom:

(I) ‘Ur the one will be summon for telling lies to the Principal’.

(II)  ‘That’s why my sister will order the court to call the Principal, you, the Hola Science, Deputy Principal and the Director General of the Department of Education to twlm the truth…You lied…She asked other students to help her because u followed her around the classroom’.

(III)  ‘Do not worry, the police will find you from the court order…To be a witness of the Principal’s complaints about the student who lied and bullied her teacher’.

(IV)  ‘Other students will tell the truth who bullied my sister while she was trying to teach’.

(V)  ‘It was me, it was my sister telling me the girl was you, bullying her and supported by the Principal and Associate Principal…So see you and others in the court as my sister will challenge you all’.

(v) Fifth, Ms Palaloi stated that other students will be called as witnesses and will give evidence supporting her and against Student SD, as follows:

(I)  ‘Michael, one of the students will tell the truth’.

(II)  ‘Olivia will also tell the truth about u bullied my sister’.

(III)  ‘Other students will tell the truth about who bullied my sister while she was trying to teach’.

(vi) Sixth, towards the end of the text messages, Ms Palaloi and Student SD had the following exchange:

In the end they should admit at the court that my termination was harsh, oppressive and unfair.

i agree

we love you ida sorry for this harassment

Why did u agree?

My sister is the fighter, smart and spiritual woman but the Principal labelled her with erratic and irrational behaviour.

i meant i agree that they should admit to the horrible things they did to her.

(vii) Ms Palaloi has suggested that Student SD admitted that she had lied in the text message communications in her submissions filed 13 December 2023 at [25] and in the respondent’s Bundle of evidence filed 18 January 2024 page 8. If Ms Palaloi is referring to Student SD’s comments set out at [10(d)(vi)], Ms Palaloi could not have genuinely or reasonably believed these text messages were an admission by Student SD that she was not telling the truth (particularly because Student SD earlier repeated statements that she was telling the truth).

(viii)  Seventh, after the exchange, Ms Palaloi sought a commitment from Student SD that she would ‘tell the truth’, stating:

(I)  ‘Well if u want to tell the truth about what’s happening my sister will forgive you…’

(II)  ‘How do I trust you to help my sister for your testimony in Oct or Nobevember at the court?’.

(III) ‘You should tell the truth because you will not be going to jail because you are still under age’.

(IV)  ‘I will Olivia and her mother if you and others including the Principal, Associate Principle, the Hola Scoencr, Year 8 coordinator teacher are lying to support the lies of the Principal. But my sister said if you are faithful, keep your promise to tell he truth on the video conference link at the court, you will be forgiven and other girls would not be called’.

Ms Palaloi’s contentions

11      On 2 February 2024, Ms Palaloi filed written submissions contending that: 

(a) The strike out application is based on text messages which are inadmissible because they are not authentic and were not legally obtained.

(b) She denies acting improperly and interfering with the administration of justice because:

(i) The Communications ended positively and maturely.

(ii) [Student SD] ‘was the Respondent’s self-imposed. There will be no students as witnesses on the Applicant behalf. The decision was final due to the failure of investigators to perform their tasks. Applicant remains not guilty against the allegations with the failure of the investigators, which proved that Applicant’s termination dated 17 May 2023 was carried out harshly, oppressively and unfairly’.

(iii) There is no evidence that Student SD was feeling intimidated, threatened or induced as ‘the ending of the Communications were a happy ending with positive and mature messages of apologising and acknowledging the ‘harassment’.’ 

Admissibility of text messages

12      During the hearing, Ms Palaloi clarified her submission regarding the inadmissibility of the text messages. Ms Palaloi submitted that the text messages were inadmissible because:

(a) She now doubts that Student SD was the author of the text messages; and

(b) If Student SD was the author, she is a minor, and there is no evidence Student SD or her guardian consented to the text messages being submitted as evidence in these proceedings.

13      During the hearing, I drew to Ms Palaloi’s attention that in accordance with the Order for Discovery, she filed an affidavit on 9 January 2024 on the following terms:

I, Ida Palaloi, [address] sincerely declare as follows –

Text messages copies of my conversation with [Student SD], former student of Kalgoorlie-Boulder Community High School on Friday 15 and 16 September 2023 with a total of 35 pages. A complete and chronological record of all Contact that was in recorded form (Record attached) in the applicant’s possession. [Student SD] is the only one with whom I have had contact.

This declaration is true and I know that it is an offence to make a declaration knowing that it is false in a material particular. This declaration is made under the Oaths, Affidavits and Statutory Declarations Act 2005 at East Victoria Park on 9/1/2024 by Ida Palaloi in the presence of [authorised witness].

14      I cautioned Ms Palaloi about the gravity of resiling from the truth of statements made under oath in an affidavit. I also brought to Ms Palaloi’s attention that if, contrary to what is contained in the affidavit, she wished to assert that Student SD was not the person she was communicating with in the text messages attached to her affidavit, she needed to provide that new evidence in the witness box, affording the respondent the opportunity to cross‑examine her on the new evidence.

15      Ms Palaloi then clarified that on 9 January 2024, when she swore the affidavit, she thought she was communicating with Student SD. Ms Palaloi also clarified that when the text messages were sent on 15 and 16 September 2023, she thought she was communicating with Student SD.

16      Ms Palaloi also confirmed she sent and received the text messages on 15 and 16 September 2023, and the record of these text messages attached to her affidavit were taken from her mobile phone.

17      Given Ms Palaloi’s concessions, there is no reasonable basis for the argument that the text messages are inadmissible.

18      For the avoidance of doubt, I therefore find the text messages to be admissible.

19      I also accept Ms Palaloi’s oral submissions at the hearing that on 15 and 16 September 2023 when she sent and received the text messages attached to her affidavit, and also when she made her affidavit on 9 January 2024, she understood the person she was communicating with via text messaging was Student SD. 

Consideration

20      If Ms Palaloi engaged in misconduct in the course of her unfair dismissal application, s 27(1)(a)(iv) of the Act empowers the Commission to dismiss her unfair dismissal application: Wauchope v Director General, Department of Education [2022] WAIRC 00739 (Wauchope) [77]-[99], [160], [162].

21      Ms Palaloi would have engaged in misconduct, if the text messages sent to Student SD had the capacity, tendency or potential to interfere with the administration of justice: Wauchope [118], [163]-[164].

22      As this is an objective assessment, the following are accordingly irrelevant to the assessment:

(a) Ms Palaloi’s acceptance that her text messages with Student SD were inappropriate: Wauchope [108];

(b) Whether Ms Palaloi intended to influence the administration of justice, or whether she actually influenced the administration of justice: Wauchope [109]-[115], [134].

(c) Whether Student SD actually experienced illegitimate pressure: Wauchope [118].

(d) Whether Ms Palaloi’s text messages with Student SD were a ‘one off’ or arose in an opportunistic way: Wauchope [132].

23      It is also irrelevant whether Ms Palaloi knew for certain that Student SD would be called to give evidence at the hearing, as it is sufficient if it should have been readily apparent to Ms Palaloi that Student SD would potentially be a witness in the matter: Wauchope [124].

24      The central issues to be determined are:

(a) On 15 and 16 September 2023, should it have been readily apparent to Ms Palaloi that Student SD would potentially be a witness in the unfair dismissal proceedings?

(b) If so, did Ms Palaloi’s communications with Student SD have the capacity, tendency or potential to interfere with the administration of justice?

Issue one: Should it have been readily apparent to Ms Palaloi that Student SD would potentially be a witness as at 15 and 16 September 2023?

25      Pages 10 and 11 of the unfair dismissal application filed by Ms Palaloi on 13 June 2023, refers to Student SD’s allegations on the following terms:

10 February 2023

Multiple reports alleging further incidents of inappropriate contact with students. Specifically stated that Ida threw a chair at a student. Colleagues and line manager reported concerns about Ida’s mental health and wellbeing.

I already responded to all the reports on 17th February 2023 to the Deputy Principal and cc to the Associate Principal and HOLA Science.

On the incident on 10th Feb 2023 involved a Year 8 student Specifically stated that Ida threw a chair at a student, I did not throw any chair at any student or unethical activities toward my student. On the other hand, the student was the one who threw the chair at me and constantly disrupted the class by walking around and yelling to stop my lessons. She often went close to me or followed me constantly around the class. After receiving information about the allegations from the Associate Principal, and Deputy Principal, I explained all these in my written report.

13 February 2023

Meeting held between Ida, Associate Principal and Deputy Principal. Initial allegations were put to IP, inviting her to respond to allegation. Also advice further allegation had been made, information would be provided to Ida once details were established. Code of conduct provided to Ida at conclusion of meeting. Ida’s response to the allegations were irrational and displayed no awareness of the serious conduct concern put to her.

Firstly, at the meeting, I found that HOLA Science was not in the meeting. I asked about HOLA to the Associate Principal. And the associate principal confirmed that HOLA Science is aware of the meeting. But after the meeting finished, I talked with the HOLA and found HOLA Science was not aware of the meeting time. I am not sure why the Associate Principal did not tell the truth.

I attended the meeting with the Principal and Associate Principal on that day. I listened carefully to all the allegations. I explained the situation with truth and denied all the false allegations. Finally, they handed over the Code of conduct to me.

I think it is not true that I was irrational and did not display awareness of the serious conduct concern. In my teaching career never, such things happened to me, I was very concerned and honest with my work.

15 February 2023

… Further email sent to Ida by Deputy Principal providing further details about additional allegations. Ida was asked to provide a written response.

…

The Deputy Principal instructed by Associate Principal stated,‘ during our meeting on Monday, these are only allegations at this stage.’

I responded to the allegations in writing on 17 February and denied all the allegations made by 3 Year 8 students. Before sending my response to the Deputy Principal, cc to Associate Principal, my letter was first read by Hola Science, which really helped me to tell the truth.

26      Paragraph 4 of the Response filed on 7 July 2023, refers to the incidents at the School, including the incident involving Student SD, in the period between 1 February 2023 and 3 March 2023. Attached to the Response is the correspondence exchanged between the parties arising from these incidents commencing with a letter from the respondent dated 15 March 2023 seeking Ms Palaloi’s response by 27 March 2023, and culminating in the respondent’s letter dated 17 May 2023 dismissing Ms Palaloi from her employment. The respondent’s letter dated 15 March 2023 refers to the incidents at the School, including the incident involving Student SD, on the following terms:

I write in reference to your employment with the Department of Education as a Teacher.

Following receipt of complaints from Kalgoorlie-Boulder Community High School regarding your behaviours and manner of your interactions with students at the school, further enquiries have been made. I am advised that a number of incidents regarding your treatment of students at the school have been referred to the Department’s Standards and Integrity Directorate.

…

Based on the information available to me, it is apparent that you have demonstrated patterns of behaviour which indicate a lack of your suitability for the role of a teacher. Should an employee’s suitability and compatibility in their role as a teacher be of sufficient concern, a recommendation can be made to the Executive Director Workforce that their employment relationship with the Department be brought to an end through probation as per Clause 8.

I am considering making a recommendation to this effect. However, prior to finalising consideration of such action, I wish to provide you with an opportunity to respond to the above issues. Should you wish to make a response, please provide it to me no later than close of business, Monday 27 March 2023. Should I fail to receive a response, or not receive a response that is sufficiently compelling, I will prepare information for consideration by the Executive Director Workforce recommending that your employment be brought to an end through probation.

27      On 18 September 2023, Ms Palaloi sent an email to Chambers, on the following terms:

Would you please explain what a statement of agreed facts and bundle of agreed documents do I have to provide mentioned on the form U33- 2023 - Direction point 1?

…

I also received a text message from a female student, one the three students of Year 8 in my Science class, whom the Principal mentioned in his allegations against me. The student agreed to testify the truth of the allegation that the Principal made against me. Can I use printed text messages between myself and the students as part the bundle documents?

28      On 19 September 2023, Chambers replied to Ms Palaloi, copying in the respondent, outlining that the statement of agreed facts and bundle of agreed documents includes facts and documents both parties mutually agree upon, and reminding Ms Palaloi that correspondence with Chambers is to be copied to the respondent for fairness and transparency.

29      On 16 October 2023, the parties filed a statement of agreed facts, referencing Student SD’s allegations on the following terms:

5.  On 13 February 2023, the Applicant attended a meeting with Ms Lahaye and Jeremy Bruse, Associate Principal regarding three (3) allegations made by students of unreasonable physical contact.

6.  Ms Lahaye sent the Applicant an email later the same day and the Applicant responded on 15 February 2023 (Agreed Document 3).

7.  On 15 February 2023 Ms Lahaye emailed the Applicant with details of the three (3) allegations inviting a response (Agreed Document 4).

…

9.  On 16 February 2023, Nathan Morton, Principal and Mr Bruse met with the Applicant in the presence of Erica Scheiblehner, acting Head of Learning Area, to discuss the allegations made by students contained in the email of 15 February 2023, and further student complaints and allegations made by an Education Assistant. The Applicant was advised that the allegations made by students and the Education Assistant would be referred to the Department’s Standards and Integrity Directorate.

10.  On 17 February 2023, the Applicant responded to the email of 15 February 2023 (Agreed Document 6).

30      On 16 October 2023, the parties filed an Agreed bundle of documents, referencing Student SD’s allegations in the following Agreed Documents 3, 4, 6, 7 and 8:

(a) Agreed Document 3: Email from Kirstin Lahaye (Deputy Principal – Student Management Year 7‑10) to Ms Palaloi dated 13 February 2023:

Thank you for meeting with Jeremy and me this afternoon. Please see the key points of the discussion below:

• Today’s meeting was to make you aware of the allegations made and to provide strategies for managing challenging student behaviour in the future.
• Three allegations of physical contact have been made against you by students, none of  which have been substantiated at this time.
• …
• The second two allegations are currently under investigation, and you will be given the opportunity to respond to these in due course.

(b) Agreed Document 4: Email from Ms Lahaye to Ms Palaloi dated 15 February 2023:

During your meeting with Jeremy Bruse and me on Monday, 13/2, we made you aware of allegations that Year 8 students have made against you. These allegations involve unreasonable physical contact with students. Having spoken to several witnesses to these incidents, we would like to provide you with further information about each.

The alleged incidents are as follows:

• …
• On Friday, 10/2, it is alleged that you pushed a Y8 student, [Student SD], and subsequently kicked a chair at her.
• …

As stated by Jeremy during our meeting on Monday, these are only allegations at this stage. We would like to invite you to provide a written response to each of these before we ascertain the next steps.

(c) Agreed Document 6: Email from Ms Palaloi to Ms Lahaye dated 17 February 2023:

2. On [Student SD’s] accusation.

This little brat was so aggressive from the beginning the school start till today’s lesson (Wednesday, 15.2.2023) towards me.She tried to get closer to me all the time when I walked around the class checking students work.

However, since the allegations occurred from this class, I set the boundary that whoever come to the teacher’s desk and get close to the teacher, it’s out of bound and after 3x warning the student should be sent out to Mr. Mulvaney, Student services or Deputy Principal.

This warning is apparently very effective especially against [Student SD], […] and other students in the class.

On the kicking chair allegation, [Student SD] was very aggressive and unsettled on that day.

She ran around to class, yelling at me, dropping her rubbish and anything she did to get my attention and the science class became her playground.

I ignored and tried to continue my teaching and apparently, she seemed frustrated by being ignored. Then she kicked a chair at me, and I reflexively kicked back the chair in self-defense but a little further from where she was standing. I was also a bit scared the chair might hurt her. However, she continued with her disruptive behaviour.

While she continued her distruptive behagivour, there was a moment she said she’s wanting to kill hereself. Soon I heard she said that, I immediately left the classroom seeking help to the science staf room.

Thank God, Erica, a science teacher was there and by giving a note saying this little [Student SD] wanted to kill herself, I asked Erica to take her out to from the classroom to the student service. [Student SD] didn't come back to the class so I was able to teach until the end of the lesson.

So this is the only incident I remember that happened at that time but I didn't feel that I pushed her.

Witnessed by the Hola scienced, Mr Mulvaney the next day lesson, [Student SD’s] was ascusual very distruptive,  refused to follow instructions by Mr Mulvaney etc.

If I am proven innocent of [Student SD’s] allegation, I demand, she will be subject to the heaviest consequences, i.e suspended 1 week lesson and if she returns and still disruptive, she will moved to another class

   so I hereby declare that I dispute [Student SD’s] accusations and I feel that I have not taken any action that is against my professional code of ethics as a teacher.

(d) Agreed Document 7: Email from Ms Palaloi to Amanda Morton (Deputy Principal – Student Services) and others dated 7 March 2023:

For your information, […] and [Student SD] were two of 3 students who made a baseless allegation directly to the Deputy principal and it brought the Associate Principal’s attention.

However, until to this day there has been no follow-up to the alllegation, but I have been demanded to respond the report, which has taken my time and attention away from my duties as a classroom science teacher.

(e) Agreed Document 8: Referral to Occupational Physician dated 7 March 2023:

10 February 2023

Multiple reports received alleging further incidents of inappropriate contact with students. Specifically stated that Ida threw a chair at a student. Colleagues and line manager reported concerns about Ida’s mental health and wellbeing.

13 February 2023

Meeting held between Ida, Associate Principal and Deputy Principal. Initial allegations were put to IP, inviting her to respond to allegations. Also advised further allegations had been made, information would be provided to Ida once details were established. Code of Conduct provided to Ida at conclusion of meeting. Ida’s response to allegations were irrational and displayed no awareness of the serious conduct concerns put to her.

…

15 February 2023

Further email sent to Ida by Deputy Principal, providing further details about additional allegations. Ida was again asked to provide a written response.

…

16 February 2023

Following multiple reports Principal and Associate Principal requested Ida meet with them. Intention of meeting was to bring to Ida’s attention that as a school we were going to report allegations to Standards and Integrity. As we believe that certain allegations were in breach of the Code of Conduct and also put the safety of students at risk. These allegations had been provided to her on two separate occasions. Ida nominated colleague as support person, later requesting this person leave the meeting. Principal attempted to discuss allegations, Ida was unwilling to listen and kept interrupting displaying erratic and irrational behaviour. Again, displaying no awareness of the serious nature of the allegations put to her. Ida left meeting without being advised of intention to refer to SIDS, whilst leaving displaying an aggressive demeanour.

31      On 30 October 2023, Ms Palaloi sent an email to the Commission’s Registry, copied to the respondent, attempting to file one document containing 20 outlines of witness evidence for witnesses which Ms Palaloi sought to summons, including five students and relevantly, Student SD, on the following terms:

I, [Student SD] of [address], Year 8student

On 13 February 2024, Ms Lahaye informed that I was accused to kick a chair at [Student SD] (Document 4 on page 13)

32      Enclosed with Ms Palaloi’s outlines of witness evidence was a document entitled ‘Attachment’ which included an attachment labelled ‘E’ titled ‘SCREEN SHOT WITH [STUDENT SD]’.

33      In response, the respondent emailed Ms Palaloi on 1 November 2023, on the following terms (emphasis added):

Other witnesses

I anticipate that the Respondent will call two or three persons in leadership positions from Kalgoorlie Boulder Community High School to give evidence (you will receive confirmation of who the Respondent intends to call when we file witness outlines on 13 November 2023).

The Respondent does not intend to call any Department employees, or any students or former students to give evidence.

If you wish to call someone who the Respondent is not calling and who has not otherwise voluntarily agreed to give evidence, my understanding is that you will need to apply to the Commission. It would be appropriate for you to enquire with the Commission about how to do this.

Your witness outline

If you intend to give witness evidence yourself at the hearing, you will need to file an outline of witness evidence. The purpose of this document is to give the Respondent advance notice of the evidence you will be giving at the hearing. You will similarly receive witness outlines for each of the Respondent’s proposed witnesses.

Can you please advise whether the document you have filed with the Commission covers all the topics you intend to give evidence on at hearing?

If it does not, I suggest you contact the Commission and ask what they suggest you do.

Request for informal discovery of documents

Your bundle of documents includes at Attachment F text messages between yourself and former Kalgoorlie Boulder Community High School student [Student SD]. However, it appears that not all the text messages are included.

I request that you provide, by way of informal discovery, a complete record of:

• your text messages with [Student SD]; and
• any other text messages, emails or messages via any social media service between yourself and any student or former student at Kalgoorlie Boulder Community High School.

If you not believe that you should have to provide the above records, please let me know and I will make a formal application to the Commission.

34      On 1 November 2023, Ms Palaloi replied to the respondent, copying in Chambers, on the following terms (emphasis added):

You have asked: I request that you provide, by way of informal discovery, a complete record of:

• your text messages with [Student SD]; and
• any other text messages, emails or messages via any social media service between yourself and any student or former student at Kalgoorlie Boulder Community High School.

I will send all text messages as requested. 

You said: you wish to call someone who the Respondent is not calling and who has not otherwise voluntarily agreed to give evidence, my understanding is that you will need to apply to the Commission. It would be appropriate for you to enquire with the Commission about how to do this. Yes I will do that.

You said: Can you please advise whether the document you have filed with the Commission covers all the topics you intend to give evidence on at hearing? Yes

You said: If you intend to give witness evidence yourself at the hearing, you will need to file an outline of witness evidence. I  would like to give evidence myself and with those witnesses that mentioned in my previous email. 

35      On 1 November 2023, Ms Palaloi forwarded her email to the Commission’s Registry, and made the following enquiry:

Can I give witness myself as well as call other witness that the Respondent is not calling?

36      On 1 November 2023, Ms Palaloi also requested the Commission’s Registry to telephone her to discuss her matter. Chambers telephoned Ms Palaloi and Ms Palaloi confirmed during the discussion that ‘she would summons all of the witnesses’.

37      On 2 November 2023, Chambers sent an email to Ms Palaloi, copied to the respondent, with the link to the Commission’s website outlining the process for summoning witnesses.

38      On 2 November 2023, Ms Palaloi sent an email to Chambers, copied to the respondent, on the following terms:

So as you know, Ms Negus and I have been in discussion about the outline witness evidence and documents, including witnesses that I would like to call to be present at the Hearing.

I am going to send a formal form for each witness later today after sending my witness statement. 

39      On 7 November 2023, Ms Palaloi sent an email to Chambers, copied to the respondent, requesting an extension of time to ‘send the Witness Summon Evidence’. On 8 November 2023, Chambers responded to Ms Palaloi’s request on the following terms:

It is important to note that these Directions do not specify a particular deadline for filing a Form 9 – Summons to Give Evidence and/or Produce Documents (Form 9). Therefore, there is no need to seek an extension of time from the Commission to file the Form 9.

40      On 10 November 2023, Ms Palaloi sent an email to the Commission’s Registry enquiring whether, now her witness evidence had been filed, she should ‘refer this document to be used for referring to summon evidence document and other purposes in court?’

41      On 14 November 2023, Ms Palaloi sent an email to the Commission’s Registry, stating:

Ms Negus asked me to send all screenshots of [Student SD] (Year 8 female student). So I thought it would be fair if I have also sent all screenshots my text conversation with Mr Mulvaney.

42      On 14 November 2023, Ms Palaloi sent an email to Chambers and the respondent, enquiring if she could ‘include all the screenshots, including both screenshots of text message conversation between myself with a Year 8 female student and Hola Mulvaney’.

43      On 24 November 2023, Ms Palaloi submitted a Form 9 for John O’Brien to ‘attend before the Commission to give oral evidence at the time and date set out below, and remain until you are excused by the Commission’. On 27 November 2023, the Commission’s Registry advised Ms Palaloi as follows:

I refer to our telephone conversation today, your email below and the email you sent to Registry at 1:31pm on Sunday, 26 November 2023.

As we discussed, because you want Mr O’Brien to appear as a witness in your matter (U 33 of 2023) at the hearing, you will need to wait until you receive a Notice of Hearing from the Commission that provides the time, date and place of the hearing before re-lodging your Form 9 – Summons to Give Evidence and/or Produce Documents (Form 9).

Once you receive a Notice of Hearing with the time, date and place details, you can complete the Form 9.

I confirm you need to complete a separate Form 9 for each person you want to summons to appear and give evidence before the Commission.

44      On 27 November 2023, Ms Palaloi filed her fourth amended outline of witness evidence in the unfair dismissal application, referring to her text exchanges with Student SD on the following terms:

63. On 15 September 2023, I received text messages from someone who called herself [Student SD] (Year 8 student of Kalgoorlie-Boulder Community High School). (Attachment C on page 19)

64.  On 18 September 2023, Mr Mllwaine, the respondent’s representative, provided me two bundle documents of Labour Relation Manager Mr John O’Brien and Labour Relations Advisor Ms Stacy Carroll. (Attachments Palaloi BN-1st and Palaloi BN-2nd)

65.  On 20 October 2023, I requested to Standard and Integrity Directorate to continue the investigation of Year 8 students’ allegations ( Attachment D)

66.  I deny all the recommendation to terminate my employment dated on 5 May 2023 (Documents 2 p , 3, 5, 7, 11, 12, 15, 16, 17, 18, 20, 22)

45      On 27 November 2023, the respondent filed the outline of legal submissions she intended to rely upon at the hearing of the unfair dismissal application, stating (footnotes omitted):

42.  Following her dismissal, the Applicant has also continued to demonstrate that she is not suitable or compatible for the role of a Teacher, particularly by sending intimidatory text messages to a former student in relation to her unfair dismissal application (see [43] to [47] below). This conduct should also be taken into account by the Commission in assessing the industrial fairness of the Respondent’s decision to dismiss.

3.7  In any event, the Commission should dismiss the Applicant’s application because of her inappropriate contact with students she anticipated calling as witnesses in her unfair dismissal hearing

43.  The Applicant has filed evidence with the Commission which demonstrates that the Applicant has communicated via with a former KBCHS student (who was in Year 8 in Term 1 2023).

44.  Under s 27(1)(a)(iv) of the IR Act, the Commission has the power to dismiss a matter at any stage of proceedings for ‘any other reason’.

45.  An unfair dismissal application may be dismissed where an applicant engages in misconduct in relation to their unfair dismissal application, including where an applicant seeks to influce a witness by inducement or initimidation.

46.  In these text messages, the Applicant appears to have pretended to be her sister and to have sent various intimidatory message stating that: she would be calling the student as a witness in unfair dismissal proceedings; that the police would find the student; that her parents would be summonsed as well; that she would ask the court to use a lie detector if not satisfied with the student’s answers, and that the student should tell the truth because she is under age and so ‘would not be going to jail’.

47.  The Applicant’s text messages to the Applicant very clearly seek to influence the child’s evidence in anticipated unfair dismissal proceedings by initimidation and thus consistute misconduct in relation to the Applicant’s unfair dismissal application.

46      On 28 November 2023, Ms Palaloi sent an email to Chambers, copied to the respondent, on the following terms:

However, I should say that I was not comfortable when a student of Kalgoorlie-Boulder High School approached me by texting message on 15 September 2023. I assumed she tried to ring or text  me several times before  as I received text messages or telephone from unrecognised number but there was no continuation of the discussion until finally the discussion took place on 15 September 2023.

Finally I got the student to say the truth who she was after pretending ‘I was as my sister’.  

The student of Kalgoorlie-Boulder Community High School was mentioned a the Respondent’s Outline of Submissions on page 9.

47      On 4 December 2023, the respondent sent an email to Chambers, copied to Ms Palaloi, indicating an intention to file the strike out application:

I also foreshadow that the Respondent intends to make an application to dismiss the claim under s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) seeking dismissal of the claim due to Ms Palaloi’s inappropriate communications with the former student that she anticipated she would call as a witness in the proceedings. The Respondent not had the opportunity to prepare the application, but will do so as soon as possible. It may be that the first half of January 2024 would be an appropriate time for a hearing of this application.

48      On 4 December 2023, notices of hearing were issued listing the unfair dismissal application for a 2-day hearing on 12 and 13 March 2024.

49      On 7 December 2023, the respondent was directed to file the strike out application by 15 December 2023. On 8 December 2023, notices of hearing were issued listing the strike out application for a Directions Hearing on 20 December 2023.

50      On 13 December 2023, Ms Palaloi filed the outline of legal submissions she intended to rely upon at the hearing of the unfair dismissal application. In response to paragraph 42 of the respondent’s outline of legal submissions cited at [45] above, Ms Palaloi stated (footnotes omitted):

[Student SD] is an intelligent young adult and brave so she could not be intimidated. The Applicant believes that [Student SD] will not let herself to be influenced by other people’s opinions, if it is not in accordance with her stance.

[Student SD] was one of the three Year 8 students who made allegations against the Applicant in Term 1, 2023 at the School. [Student SD] was famous in being a disruptive student in the School. The School failed to provide the correct telephone numbers of her parents or guardian when the Applicant wanted to discuss about her behaviour. The Applicant reported verbally the failure to Mr Mulvaney, but Mr Mulvaney responded casually.

On 15 September 2023, the Applicant received text messages from someone who did not reveal his/her identity at the start. The messages were very disturbing and using swearing words to begin with.

Despite the Respondent’s claimed that the Applicant influenced and intimidated [Student SD], the communication went smoothly and was mutual respect. [Student SD] was comfortable engaging in this conversation.

While the Respondent has commented negatively of accusing the Applicant in seeking influence, nevertheless as educators, we often seek the positive perspective. In this communication, [Student SD] was exercising her lesson to learn to be brave in taking risks the consequences of her action when the Applicant asked the question that it was her who kicked the chair at the Applicant and was willing to admit her lies as stated in her report at School.

Unlike Principal Morton who ran away from the Applicant when accidently meeting at a local shopping centre in Kalgoorlie in about early June 2023, [Student SD] displayed her maturity by staying in the communication with the Applicant.

In the end of the conversation, [Student SD] showed her sympathy to the Applicant and said sorry.

The Applicant is only an educator who has no extensive legal knowledge, and yet the Applicant understand that we must educate the society to live with respect for each other, including our students, our young adults who will be the Australia’s future leaders, despite the challenges they face, such as not having a parental figure in their lives like [Student SD]. The Applicant choses to be a Teacher in the public school system to work with young adults like [Student SD].

The Applicant believes that the role of educators is not only to teach students technical matters such as receive good marks in their fields of studies like Science, Mathematics etc, but is also to shape the future in line with Public School’s motto to shape the student’s character as intelligent future leaders, honest, positive and do not destroy other people’s lives with lies.

51      By virtue of the matters outlined at [25]-[50] above, and applying Wauchope as cited at [23] above, I find that:

(a) Student SD’s allegations are central to the incidents raised with Ms Palaloi at School level, which incidents led to the respondent’s concerns about Ms Palaloi’s suitability and compatibility with the role of a Teacher, ultimately resulting in Ms Palaloi’s dismissal.

(b) Therefore, as at 15 and 16 September 2023, it should have been readily apparent to Ms Palaloi that Student SD would potentially be a witness in the unfair dismissal proceedings.

(c) Further, as at 15 and 16 September 2023, and until at least 30 October 2023 when Ms Palaloi submitted her first outlines of witness evidence outlining the evidence she intended calling from the 20 witnesses she intended summonsing, which included Student SD, Ms Palaloi herself intended to call Student SD as a witness.

52      In her communications with the Commission and respondent between 1 November 2023 and 14 November 2023, Ms Palaloi maintained an intention to summons ‘all of the witnesses’. On 24 November 2023, Ms Palaloi submitted a Form 9 for Mr O’Brien. On 27 November 2023, the Commission’s Registry informed Ms Palaloi the Form 9 could not be processed until such time as a Notice of Hearing setting out the time, date, and place of the hearing of the unfair dismissal application had been issued. This Notice of Hearing was issued on 4 December 2023. By this time, on 27 November 2023, the respondent had filed an outline of legal submissions contending that Ms Palaloi’s unfair dismissal application should be dismissed because Ms Palaloi’s communications with Student SD ‘very clearly seek to influence the child’s evidence in anticipated unfair dismissal proceedings by intimidation and thus constitute misconduct in relation to the Applicant’s unfair dismissal application’.

53      At the hearing, Ms Palaloi submitted that she was reluctant to call Student SD as a witness, and on receiving:

(a) An email from Dan Whitney on 15 December 2023 stating, ‘I have requested interviews from these students via their parents. No response has been received. I can only go with what I have.’; and

(b) The report from the respondent’s counsel on 18 September 2023 (which I understand to be one of the reports referenced at paragraph 64 of her fourth amended outline of witness evidence cited at [44] above);

it would have been ‘silly’ for her to call Student SD as a witness after she ‘found two evidence from the investigators that couldn't find anything wrong what I did, ah, of the allegations. And I want to use the witness, those students as a witness, no, it doesn't make sense for me.’

54      Ms Palaloi did not file a Form 9 for Student SD. Given the timing of the matters outlined in [52] above, I make no findings regarding the matters submitted by Ms Palaloi at [53] above. It is unnecessary for me to do so, given my finding at [51(b)] above.

Issue two: Did Ms Palaloi’s text messages with Student SD have the capacity, tendency or potential to interfere with the administration of justice?

55      By virtue of the matters outlined in Wauchope as cited at [22] above, and despite Ms Palaloi’s submissions that there was no intimidation, rather a positive and ‘good communication between two people’, I find that Ms Palaloi’s text messages to Student SD were intimidatory and harassing: Wauchope [89]-[90], [96]-[98]:

Ur the one will be summon by court

My sister will get the court to ask you … from the cross examination in the Kalgoorlie court

When the court called u, they will order you to appear on the video link

And I got ur number or the police will find u

… my sister will order the court to call … you … to [tell] the truth

Do not worry, the police will find you from the court order

Ur parents will be summon too

I will be with my sister in the Kalgoorlie to support her and watched you … who scared to death for being lies

So see you … in the court as my sister will challenge you all

If my sister was not satisfied with ur answers … her lawyer will ask the court to use a lie detector.

Well if u want  tell the truth about what’s happening, my sister will forgive you …

Well you should tell the truth as you will not be going jail as u r still under age.

But my sister said if you are faithful, keep your promise to tell he truth on the video conference link at the court, you will be forgiven and other girls would not be called.

56      A plain reading of the text messages in the preceding paragraph demonstrates the intimidatory and harassing nature of these messages. Accordingly, I find Ms Palaloi’s contentions, to the contrary, untenable.

57      Ms Palaloi submitted that she was happy with the communication with Student SD, particularly the messages from pages 28 to 31 (of the 35‑page text exchange attached to her affidavit), when Student SD apologises, ‘we love you ida sorry for this harassment’.

58      During the hearing, Ms Palaloi was specifically asked if she saw any connection between her comments to Student SD about being summonsed, about the police finding Student SD, about Student SD’s parents also being summonsed to attend court, and Student’s SD’s subsequent apology. Ms Palaloi denied there could be any connection. I find that this demonstrated a lack of insight on the part of Ms Palaloi.

59      Ms Palaloi denied her communications were intimidatory, maintained her communications with Student SD were positive, and submitted that:

And it was like a good communication between two people. And, ah, in the end of the day I was the one who feel sad about the whole situation and she gave me comfort. I didn’t expect that, miss. And she apologising. She acknowledging the harassment and for me it’s enough. And there is no intimidation. She didn’t feel anything. I didn’t feel anything on  the communication. And it was like quick. Um, so, yeah, the Commission should be fair that there is no – all the application the respondent made it wasn’t on the communication I didn’t feel it.

60      When questioned, Ms Palaloi clarified that she did not feel ‘there is intimidation’. Ms Palaloi further submitted that:

The communication ending with the mature positive and we should appreciate the person who made – initiated the communication. And this is Australia, fair. And she’s – she’s brave enough to – to – to text me. I’m sure this person knows me very well and knows the school very well, so that’s why I’m so happy with the end of the communication and it is fair.

61      Applying the matters outlined in Wauchope as cited at [22] above, Ms Palaloi’s subjective view of whether she considered her text messages to be intimidatory is irrelevant to the assessment of whether they are objectively intimidatory. I have found at [55] above that they are objectively intimidatory for the reasons cited above. 

62      The respondent submitted that any registered Teacher, on becoming aware that they had been contacted by a student, should have immediately ceased communication. I agree. The following policy and guideline documents that governed Ms Palaloi as a Teacher, outline the inappropriateness of the text message communications Ms Palaloi engaged in with Student SD:

(a) Department of Education, ‘Manage social media and electronic communication use’, last reviewed 13 November 2019:

Identify and manage risk

There are significant risks involved in using social media and electronic communication.

…

Examples of risks include:

• overstepping or blurring professional boundaries.
• breaching confidentiality
• damaging your reputation
• damaging the Department’s reputation.

You should take reasonable steps to minimise risks.

This could involve making sure you:

• …
• only communicate with students when it is for a school-related purpose and authorised.
• …

…

Understand acceptable communication with students

You must not communicate with students using social media or electronic communication in a personal context.

…

This means it is not appropriate to:

• …
• send private messages
• …

…

You must always maintain a professional tone when communicating with students.

(b) Department of Education, ‘Communicate with students online’, last reviewed 2 January 2024:

Maintain boundaries

Online communication can be less formal. There’s a risk your professional relationship with students may become personal. You must maintain the same boundaries with students online as you do in the classroom.

• Only interact with students online when there’s an appropriate, approved educational context.
• …
• Tactfully reject any personal or private messages from students and report repeated approaches to your principal.
• Provide support but guide students to appropriate channels when outside your role.
• …

…

Conduct yourself professionally

Teaching and learning may involve online lessons in a difference classroom environment. Regardless of where you’re teaching from, maintain your high level of conduct.

• …
• Use professional tone and language in written, verbal and video conversations.
• …

…

Your personal social media presence

…

Note:

Don’t add students or parents on social media or accept their friend requests.

(c) Teacher Registration Board of Western Australia, ‘Teacher-Student Professional Boundaries’, August 2019: 

Professional boundaries

Teachers must act professionally at all times, particularly in their relationships with students. Their conduct, in complying with professional boundaries, must be unambiguous.

The teacher-student relationship is not equal. Teachers are in a unique position of trust, care, authority and influence in relation to their students, which means there is always an inherent power imbalance between teachers and students.

…

Professional boundaries are breached when a teacher misuses their power in such a way that a student’s safety or welfare in compromised.

As most teachers will recognise, some conduct clearly breaches those boundaries. While there may be some ‘grey areas’, teachers must take responsibility for establishing and maintaining appropriate professional boundaries with their students. This means exercising good judgment and recognising the potential negative consequences for students as well as teachers engaging in certain behaviours with students, or allowing inappropriate conduct to continue.

…

Breaches of professional boundaries

To assist teachers, professional boundaries may be categorised into specific types of boundaries, although these categories cannot be considered mutually exclusive.

They include:

a) Emotional Boundaries – Emotional self-regulation primarily involves using appropriate levels of emotion in interactions with students, and dealing with students’ emotions appropriately in teaching settings. 

…

d) Communication Boundaries – These relate to what teachers say and how they say it.

…

Emotional

• …
• Engaging inappropriately with students, or acting inappropriately by adopting a role along the lines of ‘friend’ or ‘personal counsellor’ (unless there is a legitimate role designated).
• …
• Using harsh or inappropriate tone or language when speaking to students.

Communication

• …
• Engaging in correspondence of a personal nature with students, including letters, phone, SMS texts and/or social media. This does not include class postcards or bereavement cards.
• Using social media to interact with a student without a valid educational context and appropriate safeguards.
• …
• Breaching the confidentiality of others with a student eg talking about other staff or students to a student.

…

Social media

…

If teachers do receive requests on social media from students to be a ‘friend’ on their personal accounts, they must reject them. This is the case whether the students attend their school or any other school.

Limiting communication to authorised, monitored accounts makes it easier for teachers to ensure that they limit communications with students and focus solely on educational issues. Teachers should not engage in online discussions with their students that are not the type of discussions they would engage in with students in class settings or might otherwise be seen to be inappropriate.

Technology-related cases where professional boundaries are breached that come before teacher regulatory authorities tend to be those which arise when teachers don’t maintain an appropriate professional relationship with students, either by allowing students to access teachers’ personal information or photos, even inadvertently, or when teachers communicate with students in a way that does not ensure that the professional nature of the teacher-student relationship is maintained. This is more likely to occur when teachers use their personal social media account to communicate not only with friends and family, but also with students.

63      The fact that Ms Palaloi did not immediately cease communicating with Student SD after Student SD identified herself, but continued to communicate with Student SD and sent the text messages that she did to Student SD, and maintained the appropriateness of those messages up to and including at the hearing, displays a lack of insight of her conduct, and the inappropriateness of it. Both as an applicant seeking redress in the Commission and as a registered Teacher.

64      Section 26(1) of the Act requires the Commission to exercise its jurisdiction in accordance with equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. Furthermore, it empowers the Commission to inform itself of any matter in such a way as it thinks just, while also emphasising the importance of considering the interests of the parties and the interests of the community as a whole.

65      Considering Ms Palaloi was stood down after five weeks in the job and dismissed within the probationary period, I do not consider it consistent with equity, good conscience or the substantial merits of the case, nor the interests of the parties and of the community as a whole in seeking redress through the Commission, to allow Ms Palaloi to proceed with her unfair dismissal application.

66      Rather, applying Wauchope, and in all of the circumstances of this matter, I consider it appropriate to dismiss Ms Palaloi’s unfair dismissal application in accordance with s 27(1)(a)(iv) of the Act.

Conclusion

67      I am satisfied that the text messages Ms Palaloi sent to Student SD on 15 and 16 September 2023 had the capacity, tendency or potential to interfere with the administration of justice and therefore Ms Palaloi engaged in misconduct in relation to her unfair dismissal application.

68      In engaging in misconduct, and having regard to the matters at s 26(1) of the Act, I am satisfied that Ms Palaloi’s unfair dismissal application should be dismissed pursuant to s 27(1)(a)(iv) of the Act.