Details  Created: 21 July 2020

The Commission has dismissed a claim of unfair dismissal by a Deputy Principal for serious misconduct resulting from historical sexual assault allegations made against him by a former student.

Senior Commissioner Kenner also rejected an application to suppress the identity of the applicant, on the basis that embarrassment and possible reputational damage did not outweigh the public interest in the open justice principle applying.

Facts

In February 2019, allegations were made that the applicant sexually assaulted a former student on the last night of a school trip to Indonesia in 1997, where it was alleged that the applicant shared a hotel room with the student.

An investigation into the allegations commenced shortly after, with the Final Investigation Report completed in August 2019.

The Report summarised the procedure adopted, the allegations, the documents provided, several interviews with witnesses and included the referral to a psychologist for an expert opinion.

The Report concluded that on the balance of probabilities, it was reasonable to conclude that the allegations against the applicant were substantiated. The recommended outcome was a finding of serious misconduct and the termination of the applicant’s employment.

The applicant was summarily dismissed for misconduct on 20 August 2019.

Contentions

The applicant proclaimed his innocence and denied the allegations against him. He also maintained that his dismissal was unfair on grounds that the respondent’s investigation of the allegations were fatally flawed, the investigators had insufficient expertise, the evidence was contaminated, he could not properly respond to the allegations, and that the expert psychologist report did not substantiate the allegations.

The respondent contended that based on the totality of the evidence, the investigators could conclude on the balance of probabilities that the applicant’s misconduct had been established.

The respondent also argued that it conducted as thorough an investigation as it could, given that the conduct took place outside of Australia and the police could not investigate. It submitted that the applicant was given a fair go in the investigation and that the respondent followed relevant policies.

Conclusions

Kenner SC noted that in cases of serious misconduct, the civil standard of proof still applies, but consistent with the principles in Briginshaw v Bringinshaw (1938) 60 CLR 336, a higher level of satisfaction of proof is required in this case.

Kenner SC also determined that the issue to decide was not whether the applicant was guilty of the alleged conduct in a criminal liability sense, rather, whether the respondent, after as proper and as thorough an inquiry as was necessary in the circumstances, had an honest and genuine belief, based on reasonable grounds, that the misconduct occurred.

Kenner SC considered the evidence before him from multiple witnesses, statements, and letters. He also considered several criticisms of the respondent’s investigation process advanced by the applicant.

Kenner SC found that he was satisfied that the investigators had regard to the appropriate principles in approaching the workplace investigation and noted that standard and approach to the enquiry would be different to that of a criminal investigation.

He determined that, 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 took place.

The application was dismissed.

The decision can be read here.