The Full Bench has unanimously dismissed an appeal against a decision of the Commission on the basis that no appealable error had been made out to quash the decision at first instance that found that the dismissal of a deputy principal for misconduct was not harsh, oppressive, or unfair.

Background

The appellant was employed as Deputy Principal at Lumen Christi College. In 2019, the appellant was dismissed for serious misconduct following an investigation into historical sexual assault allegations made against him by a former student. He denied the allegations.

The appellant made an unfair dismissal application to the Commission. He claimed that the investigation process was flawed, the investigators had insufficient expertise, the evidence was contaminated, and that the expert psychologist’s report did not substantiate the allegations.

At first instance

Senior Commissioner Kenner dismissed the application. He found that he was satisfied that the investigators had regard to the appropriate principles in approaching the workplace investigation and noted that the standard of proof and approach to the inquiry was necessarily different to that of a criminal investigation.

Kenner SC determined, based on the material, it was open for the respondent, after a sufficient inquiry, to hold an honest and genuine belief, based on reasonable grounds, that the misconduct occurred.

A summary of the decision at first instance can be read here.

Appeal to the Full Bench

The appellant relied upon nine grounds of appeal.

Chief Commissioner Scott and Commissioner Walkington delivered joint reasons and dismissed all grounds but one. However, they concluded that although Ground 5 was upheld, it did not otherwise upset the conclusions at first instance.

Commissioner Emmanuel, in a separate reasons, dismissed all nine grounds.

Grounds 1 and 2

The appellant argued that Kenner SC erred in deciding that the appropriate test was that he only had to be satisfied that the respondent, after a reasonable investigation, held an honest and genuine belief based on reasonable grounds, that the misconduct alleged of the appellant occurred. Rather, the appellant said that the Commission must be satisfied that the misconduct actually occurred.

The appellant also contended that the Commission failed to apply the Briginshaw standard to his findings.

Scott CC and Walkington C found that Kenner SC applied the proper principle about the employer’s belief in the context of the serious nature of the allegations of sexual assault. They found that he did not and was not himself required to be satisfied that the misconduct occurred.

Scott CC and Walkington C found, as did Emmanuel C, that Kenner SC correctly identified the evidentiary onus as being ‘whether the respondent, after as proper and as through an inquiry as was necessary in the circumstances, held and honest and genuine belief, based on reasonable grounds, that the misconduct alleged occurred’. They also found that Kenner SC did not fail to apply the Briginshaw standard.

Ground 3, 4, 6, 7, 8 and 9

In these grounds, the appellant asserted that Kenner SC erred:

• in using circumstantial evidence to draw inferences adverse to the appellant;
• in his findings with respect to the receipt of and weight to be afforded to the hearsay evidence;
• when he found the essence of the written statements (the Statements) made by the former student to be compelling and credible;
• when he found that the tweets sent by the former student to the appellant were consistent with something of significance having occurred between them in the past;
• in failing to consider unchallenged character evidence from six character witnesses; and
• in concluding that the respondent had satisfied the test in reaching its conclusions.

These grounds were dismissed by Scott CC and Walkington C, and Emmanuel C.

They found that Kenner SC did not err in the way he dealt with the circumstantial evidence, or by accepting hearsay evidence in preference to the appellant’s sworn, first-hand evidence. They found that it was open for him to find the essence of the Statements to be compelling and credible.

They also determined that he had considered the character evidence, and he was entitled to treat the tweets as circumstantial evidence and conclude that the tweets supported a finding that something of significance had happened in the past.

In addition, they found that Kenner SC was entitled to conclude that the investigation undertaken, after a substantial lapse of time and considering the seriousness of the allegations, was conducted in a fair and reasonable way. They also rejected the appellant’s arguments about a range of issues.

Ground 5

The appellant contended that Kenner SC erred in his regard of one of the witnesses being a witness of truth in the face of a number of concerns about her evidence.

Scott CC and Walkington C defined ‘witness of truth’ as meaning that the evidence of the witness can be believed because of some particular quality of truthfulness of the witness, and the whole of the witness’s evidence ought to be treated as being credible.

They found that the witness could not strictly be described as a ‘witness of truth’ because there were a number of elements of the witness’s evidence that were questionable. However, they found that there were a number of aspects of her evidence that were credible and that the Senior Commissioner was entitled to accept that evidence as truthful and to prefer it to the appellant’s evidence. Although Scott CC and Walkington C upheld this ground, they found that it did not otherwise upset Kenner SC’s conclusions. They were not satisfied that the findings made by Kenner SC, including that he accepted her evidence, were in error.

Emmanuel C dismissed this ground. She found that Kenner SC did not err in finding that the witness was a witness of truth and preferring her evidence to the appellant’s evidence.

The appeal was dismissed.

The decision can be read here.