WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES PETER JOHN AYLING

APPLICANT

-v-

Director-General, Department of Education and Training

RESPONDENT

CORAM Senior Commissioner J H Smith

HEARD Tuesday, 3 March 2009, Wednesday, 4 March 2009, Thursday, 5 March 2009, Friday, 6 March 2009

DELIVERED FRIday, 26 JUNE 2009

FILE NO. APPL 98 OF 2008

CITATION NO. 2009 WAIRC 00413

CatchWords Appeal against a finding of breach of discipline and against penalty - use of unreasonable force against a student by a teacher - whether nature of appeal stricto sensu or hearing de novo - Industrial Relations Act 1979 (WA) s 29(b)(1); Interpretation Act 1984 (WA) s 56; Public Sector Management Act 1994 (WA) s 78(2), s 81, s 81(1), s 85, s 86, s 86(3), s 86(3)(a), s 86(3)(b), s 86(4), s 86(8), s 86(8)(a), s 86(9), s 86(9)(a), s 86(9)(b);  School Education Act 1999 (WA) s 64, s 64(1)(e),  School Education Regulations 2000 (WA) reg 38, reg 39, reg 39(1).

Result Appeal upheld in part.  Order made.

Representation

Applicant Mr S A Millman (of counsel)

Respondent Ms R M Hartley (of counsel)

Reasons for Decision

1          Peter John Ayling (the applicant) filed an appeal against the decision of the Director General, Department of Education and Training (the respondent) that he had committed a breach of discipline.  The applicant also appeals against the penalty imposed upon him.  At all material times the applicant is employed by the respondent as a Deputy Principal and was appointed to a position at Manjimup Senior High School.  The applicant's appeal is made under s 78(2) of the Public Sector Management Act 1994 (the PSMA).  Pursuant to s 78(2) the decision is referred to the Commission as if that decision were an industrial matter mentioned in s 29(b)(1) [sic] of the Industrial Relations Act 1979 (the IR Act). 

The Incident

2          On 4 April 2007, the applicant informed two students AS and KR that they were suspended following an incident where KR had removed the leg from a school desk.  KR and AS attempted to leave the school and the applicant tried to stop them by standing in front of the two students and holding his arms out.  During the incident the applicant physically restrained AS.  The applicant was charged with a breach of discipline as a result of the action to restrain AS.

3          All documents quoted from in these reasons have been edited to delete the names of the two students and members of their families.  Initials have been added to distinguish their identity.

The Charges

4          Pursuant to s 80 of the PSMA the applicant was served with a notice on 19 July 2007 that it was suspected that he may have acted in a manner which constituted a breach of discipline.  It was alleged that "on 4 April 2007 at Manjimup Senior High School, you used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law."  In the notice the suspected breach of discipline was clarified by the statement that "it is claimed that as AS left the administration block you attempted to stop her by holding the top of her arm causing a struggle to ensue."  In the notice pursuant to s 81(1) of the PSMA the applicant was provided an opportunity to provide a written explanation in relation to the matter.

5          On 3 August 2007, the applicant responded to the notice of suspected breach of discipline through his solicitors (Exhibit 1, document 3).  In that letter the applicant's solicitors stated as follows:

Our client denies the allegation.

Our client has been an employee of the Department of Education and Training since 1974, including seventeen years experience working in Central Office.  Since 2003, our client has been employed as a deputy principal.

To the extent that our client made contact with the student, AS, in the circumstances where AS had attacked our client, our client's actions were not only reasonable and justified, but also fell within the scope of Regulation 39 of the School Education Regulations.  The contact made with the student was the necessary minimal contact required in order to restrain the student.

We submit that this matter need be taken no further

6          In a letter dated 7 August 2007 (Exhibit 1, document 4), the applicant was informed by the Director General, that she had carefully considered his response but regretted to advise that a formal investigation would be initiated.  The applicant was informed in that letter as follows:

In accordance with section 81(2)(a) of the Public Sector Management Act 1994 (WA) ("Act"), Mr Ceri Skamp, Senior Investigator, Department of Education and Training, Standards and Integrity Directorate, has been directed to investigate the suspected breach of discipline.

An investigation is intended to be an objective search for the truth. The investigator will establish the facts relating to the suspected breach of discipline by conducting interviews with, and obtaining relevant documentation from you and other witnesses.  The investigator will prepare a report for my consideration to assist me in forming an opinion as to whether or not you have committed a breach of discipline.

The investigation will be conducted in a fair, proper and objective manner.  You will be provided with an opportunity to respond to any allegations made during the investigation and appropriate records of the investigation will be kept. Mr Skamp will contact you shortly to discuss in further detail the steps to be taken in the investigation and of any interviews or meetings that you will be requested to attend.  Please note that you are entitled to have present during any interviews or meetings a representative capable of providing advice and/or support to you.  The representative is not, however, entitled to take an active part in the interview or meeting unless the investigator considers it appropriate.

7          The applicant was also informed in that letter that the investigation would lead to a finding being made.  The consequences of each finding that could be made were also set out.

8          On 11 September 2007, the investigator, Mr Ceri Skamp, completed his investigation report (Exhibit 1, document 24).  In the report he concluded that the applicant had used unreasonable force against AS and amended the particulars of the unreasonable force as "AS left the administration block you attempted to stop her by grabbing her on the wrist causing a struggle to ensue.  You then grabbed AS's right arm and forced it around behind her back and pushed her up against a wall."  Mr Skamp recommended that the applicant be reprimanded and be fined one day’s pay

9          On 18 September 2007, a copy of Mr Skamp's investigation report was sent to the applicant's solicitor.  On 26 September 2007, the applicant's solicitors sent a letter to Mr Skamp:

We confirm that in accordance with the Public Sector Management Act, my client objects to the finding.

Can you please confirm that the Department will now appoint an inquirer to conduct an inquiry.

(Exhibit 1, document 6)

10      At that point in time the respondent had not indicated that a formal finding had been made.  In fact the decision was not made until 10 January 2008, when the applicant was sent a letter notifying him that a finding had been made that he had committed a minor breach of discipline (Exhibit 1, document 8).  Notwithstanding the objection the applicant was sent a letter by the respondent which stated as follows:

In a letter to you dated 7 August 2007 from Ms Sharyn O'Neil [sic], Director General, you were advised that she had authorised an independent investigation into a suspected breach of discipline by you.  The investigator has now concluded the investigation and submitted his report to me.  You have been provided with a copy of the investigators [sic] report and I have received correspondence from your Legal Practitioner at Slater and Gordon advising that you object to the finding.

…

I have carefully considered the investigator's report, including your response to the allegation.  In light of the findings in the investigation report the allegation has been amended to state the following:

On 4 April 2007 at Manjimup Senior High School, you used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law.

By way of further clarification it is claimed that as AS left the administration block you attempted to stop her by grabbing her on the wrist causing a struggle to ensue.  You then grabbed AS's right arm and forced it around behind her back and pushed her up against a wall.

Pursuant to section 83(1)(a) of the Public Sector Management Act 1994 (WA) ("Act"), I find on the basis of the evidence contained in the investigator's report that a minor breach of discipline has been committed by you as a result of your conduct breaching the above.

Proposed action:

I proposed to take the following action under section 83(1)(a) of the Act:

1. a reprimand; and

2. impose on you a fine equal to the amount of remuneration received by you in respect of the last day during which you were at work as an employee before the day on which this finding was made.

11       On 16 January 2008, the applicant through his solicitors informed the respondent that in accordance with the provisions of the PSMA the applicant objected to the finding and asked for confirmation that the respondent would now appoint an inquirer to conduct an inquiry (Exhibit 1, document 9).  Pursuant to s 85 of the PSMA the finding that the applicant had committed a minor breach of discipline was cancelled by operation of that section.  The respondent formally notified the applicant by letter dated 24 January 2008 that the finding of a minor breach of discipline was cancelled (Exhibit 1, document 10).  The applicant was also informed that he had been formally charged with committing a breach of discipline.  The particulars of the breach of discipline were the same as found by Mr Skamp in his investigation report.  The applicant was also informed that pursuant to s 86(1)(c) of the PSMA he was required to state in writing within seven calendar days from receipt of the letter whether he admitted or denied the truth of the charge and what penalties could be imposed if he admitted the charge and what could occur if he denied the charge.  At the conclusion of the letter the respondent stated, "Should you have any queries regarding the above matter, please do not hesitate to contact Mr Ceri Skamp, Senior Investigator, Standards and Integrity Directorate on 9270 3004."

12       On 14 February 2008, the applicant through his solicitors advised that he denied the charge (Exhibit 1, document 11).

13       The applicant's solicitors were then sent a letter from Mr Skamp on 18 February 2008 attaching a letter to the applicant in which the applicant was informed that an inquiry would be held (Exhibit 1, document 12). 

14       On 13 May 2008, the respondent's Acting Director of Standards and Integrity, Liam Smyth, on behalf of the respondent appointed Mr James Zaknich, a Senior Investigator with Gold Security Group (International) Pty Ltd, to conduct a disciplinary inquiry in accordance with s 86(4) of the PSMA (Exhibit 1, document 13).  In the letter to Mr Zaknich, Mr Zaknich was informed that should he require any assistance with procedural aspects of the inquiry to contact Mr Ceri Skamp.

15       On 21 May 2008, Mr Zaknich wrote to the applicant's solicitors and advised that he had been appointed to conduct the disciplinary inquiry into the allegations against the applicant and he asked whether the applicant was prepared to be interviewed by him (Mr Zaknich) regarding the matter (Exhibit 1, document 14).  On 30 May 2008, the applicant's solicitors wrote to Mr Zaknich and stated that:

My client is keen to participate in the Public Sector Management Act process.

Accordingly, please provide a list of all the questions that you wish to put to my client so that I may take his instructions and provide a response in writing.

(Exhibit 1, document 15)

16       On 9 June 2008, Mr Zaknich provided to the applicant's solicitors a letter containing the following questions:

On the 4th April 2007 at the Manjimup Senior High School:

1) Did you grab AS by the wrist?

2) Did you restrain AS by twisting her arm behind her back?

3) If so, which arm was it?

4) After twisting her arm behind her back, did you push her against a wall?

5) What was the reason for using such restraint?

(Exhibit 1, document 16)

17       On 1 July 2008, the applicant's solicitors wrote to Mr Zaknich and advised:

Please find attached my client's response to each of your questions.

I refer to my correspondence dated 3 August 2007 addressed to the Executive Director of Professional Standards and Conduct.

I confirm that at that time I advised that:

To the extent that our client made contact with the student, AS, in the circumstances where AS had attacked our client, our client's actions were not only reasonable and justified, but also fell within the scope of Regulation 39 of the School Education Regulations.  The contact made with the student was the necessary minimal contact required in order to restrain the student.

Based on the enclosed responses, and in light of the material already before the DET, it is my view that any finding by you that my client has committed a breach of discipline would have the effect of rendering Regulation 39 useless.

This case is an obvious example of the reason why that regulation has been enacted by the legislature.

(Exhibit 1, document 17)

18       In the attachment to that letter the following answers were given on behalf of the applicant:

1) Did you grab AS by the wrist?

I took hold of AS's right wrist.

2) Did you restrain AS by twisting her arm behind her back?

I held her right wrist behind her back so that she faced away from me.

3) If so, which arm was it?

Right

4) After twisting her arm behind her back, did you push her against a wall?

No.

5) What was the reason for using such restraint?

Immediately before taking hold of AS's right wrist, AS had attacked me by kicking at my left leg and slapping at my left arm with both her hands.

19       After interviewing witnesses and examining documents Mr Zaknich completed his investigation and provided a report dated 28 July 2008 to the respondent.  In that report he made a finding:

… on the Balance of Probabilities, that on the 4th April 2007 at Manjimup Senior High School, Peter John AYLING used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law: such behaviour being an Act of Misconduct within the provisions of Section 80(c) of the PSMA and therefore a Breach of Discipline contrary to Section 80 of that Act.

(Exhibit 1, document 25)

20       In the report Mr Zaknich made the following recommendation:

Peter John AYLING being a Deputy Principal at the School had substantial authority over the student AS and was significantly physically superior to her.

He used his position and superior strength to restrain her in circumstances that were not authorised, justified or excused by law.

The student AS had not been accused of any wrong doing.

The actions of AYLING were excessive in the circumstances.

I recommend that the penalty should be a Reduction of monetary remuneration as per Section 86(3)(b)(iv) of the PSMA.

21       At the time the finding was made in the report, a copy of the report was not provided to the applicant.  However, on 17 September 2008, the applicant through his solicitors was sent a letter by the respondent which stated that Mr Zaknich had found that the applicant had committed a serious breach of discipline as charged and that pursuant to s 86(9)(a) of the PSMA she was required to accept those findings (Exhibit 1, document 18).  In the letter the Director General set out the penalty recommended by Mr Zaknich but she stated that it was her view that the recommended penalty did not adequately reflect the seriousness of the breach of discipline and she went on to state:

Therefore, I am proposing to take the following actions:

• Your monetary remuneration is to be temporarily reduced under the School Education Act Employees (Teachers and Administrators) General Agreement 2006 from your current pay level of 5.1A ($97 703 per annum) to Level 4.1 of the administrator's pay scale ($87 718.00 per annum) for a period of six months.  This action is taken in accordance with section 86(3)(b)(iv) of the Act; and
• Reprimand.  This action is to be taken in accordance with section 86(3)(b)(i) of the Act.

The breach of discipline goes to the heart of your employment contract and you have severely violated the confidence and trust the Department places in you as a Deputy Principal.

In coming to this determination I have also considered the duty of care responsibilities and the special position of trust that exists between teachers and students.  The Department recognises that the community has an expectation that Department employees will behave in an exemplary fashion due to their direct association with children.  Further, there is an expectation that Department employees are to act as role models and uphold the values and behaviour consistent with those held by the school and general community.

I deem your actions to have been totally inappropriate and inconsistent with community expectations of what constitutes an acceptable professional relationship between a teacher and student.

However, prior to imposing the above actions against you, I am providing you with an opportunity to furnish a written submission as to why I should not take the proposed course of action.

22       The applicant chose not to respond to that notice but to file the appeal in the Commission on 1 October 2008.  The respondent determined that the penalty that she proposed would be implemented.  In a letter dared 28 October 2008 she stated:

I further advise your monetary remuneration is to be temporarily reduced under the School Education Act Employees (Teachers and Administrators) General Agreement 2006 from your current pay level of 5.1A ($97 703 per annum) to Level 4.1 of the administrator's pay scale ($87 718.00 per annum) for a period of six months.  This action is taken in accordance with the provision of section 86(3)(b)(iv) of the Act.

In determining this penalty, I have taken into account your previous good record as a Deputy Principal.  In reprimanding you, I remind you that as a teacher, through your contact with students, you are in a special position of trust and have obligations to protect students' interests and to accept the constraints inherent in the teacher-student relationship.  Paramount is the requirement to avoid unnecessary and injurious physical contact with students and to respect the uniqueness and dignity of students.  To avoid any further allegations of misconduct, I am directing you to avoid any unnecessary physical contact with students.

(Exhibit 1, document 20)

23       The decision by the respondent in respect of the penalty was not administratively implemented as at the time the letter was sent the appeal was before the Commission.

The Applicant's Evidence

24       The applicant is the Deputy Principal of the Manjimup Senior High School.  He has held this position since 2004.  He was first employed by the Department in 1976 as a Secondary English School Teacher after he completed a BA in English and a Diploma of Education from the Secondary Teachers College.  In 1985, he moved into administration and worked in a number of positions including working as the Senior Consultant (HR Policy Review) from 1996 to 1998 and the Manager (Industrial Relations) of the Department from 1999 to 2002.  In 2003, he returned to teaching duties and was posted to the Eastern Goldfields Senior High School as a Deputy Principal. 

25       The applicant as Deputy Principal at the Manjimup Senior High School was a member of the administration team which is comprised of the Principal and two Deputies.  When he first commenced at the school he was primarily responsible for lower school students in years 8, 9 and 10.  In 2007, he swapped duties with the other Deputy Principal and became responsible for upper secondary students and the other Deputy took over the responsibility for lower secondary students.  Being responsible for students as a Deputy Principal requires the monitoring of the academic progress of students and dealing with behaviour management, pastoral care and other administrative duties.  The applicant was also responsible for the master timetable.  In 2004 to 2006, the other Deputy Principal of the Manjimup Senior High School was David Brady.  In 2007, that position was held by Anne Marie Mony de Kerloy.  Manjimup Senior High School has a student services team which is comprised of pastoral care co-ordinators who are responsible for particular groups of students in each year.  The team is also comprised of a school psychologist, a school nurse who is a community health nurse employed by the Health Department, a school chaplain and an Aboriginal and Islander education officer who has particular responsibilities for supporting Aboriginal students in the school.  The team formally meets at least once a week but in practice members of the team liaise on a daily basis in relation to particular students.  The student services committee consider pastoral care issues and they are also informed about behavioural management issues relating to particular students. 

26       In 2007, AS was a female student in year 12.  The applicant was aware of issues involving AS prior to 2007 as he had read minutes of student services meetings which raised a number of pastoral care issues in respect of AS.  In particular, concern had been raised about AS's academic progress.  She was often absent from school with friends rather than attending classes and the staff were concerned whether she would succeed in the range of subjects that she had selected to study.  In 2007, consideration was being given to AS being enrolled in aquaculture studies by arrangement with the local TAFE centre.  The aquaculture course is a non-academic course for students who are having difficulties completing upper secondary studies.  As the timetabler for the school, the applicant was consulted about whether changes could be accommodated to AS's courses to try and improve her chances of being able to complete enough subjects to graduate from high school.

27       Prior to the incident in question, the applicant says that there was nothing particularly exceptional about her behaviour in terms of requiring any formal disciplinary action but he was aware that there were concerns about her emotional state as members of the student services team had discussed her on several occasions and a recommendation had been made that follow up be carried out by the school psychologist to ensure there was not anything so serious as to require intervention. 

28       KR was also a year 12 student in 2007.  KR was reluctant to be at school and was misbehaving in class.  This resulted in ongoing weekly counselling involving the school psychologist.  The applicant produced minutes of upper school student services meetings held in the first six months of 2007 which the applicant says shows that KR had showed inappropriate emotional responses to situations.  For example, on 28 February 2007, it was reported in the minutes of the upper school student services meeting that KR had been frustrated by another student and rather than taking the matter out on the student he had punched the blackboard in the classroom and broke his hand.  (Exhibit 1, document 31)

29       On 4 April 2007, at the beginning of the day at about 8:45 am which was the beginning of the first period of the school day, the head of the learning area of maths, Bill Chapman, reported to the applicant a desk in a maths classroom had been damaged.  The applicant inspected the desk with Mr Chapman.  The legs of the desk were made of tubular steel approximately three feet in length.  The inspection revealed that the leg had been broken off from the welding of the frame and the desk leg in question was missing.  Mr Chapman also reported to the applicant that the student sitting at the desk at the end of the last period on the previous day was KR and that he (Mr Chapman) suspected that KR may be responsible for the damage.  Mr Chapman also informed the applicant that the student sitting next to KR was AS.  The applicant was aware that AS was a very close friend of KR. 

30       The applicant made a decision to speak to AS first to see whether she could throw any light on anything she had seen before he spoke to KR.  The applicant removed AS from her classroom and took her to his office and asked her if she could tell him anything about the damage which had occurred to the desk.  Her only response was to say that she knew nothing about it, that she had been doing a test in maths and did not see anything.  The applicant left his office and spoke again to Mr Chapman.  Mr Chapman showed the applicant a copy of AS's test paper which indicated she had not been directing any attention to the test whilst in class.  The applicant then spoke again to AS and reported his discussion with Mr Chapman and asked her again if she could tell him anything about the damage to the desk.  AS put her head down and refused to answer any questions.  The applicant then asked her to wait next door in a room which is adjacent to the Deputies' offices. 

31       The applicant collected KR from his class.  He left AS in the room next to his office and made certain that KR saw that she was sitting there but did not allow him to have an opportunity to speak to her.  The applicant said the reason why he did this was to indicate to KR that he (the applicant) may have more information than what he actually had, because KR would not necessarily know what AS may have said.  That strategy seemed to work as the first thing KR said was, "Is this about the desk?"  The applicant simply said to him, "What can you tell me about it?"  KR readily told the applicant that he had removed the leg from the desk and smuggled it out of the classroom.  He went on to explain that the leg had been weakened sometime previously when he had thrown the desk across the classroom at another student.  This was not an incident that the applicant was aware of as it apparently had occurred when the teacher was out of the room.  KR explained to the applicant that the other student had upset him and he had become angry.  The applicant testified that he was not surprised when KR reported this behaviour.  He was aware of the incident when KR punched the blackboard and he knew KR had been counselled for sometime about controlling his violent impulses. 

32       KR went on to explain to the applicant that having discovered that the welding had been weakened on the desk he decided to complete the job by working away at the frame to sever the welding so he could take the whole leg away.  The applicant asked KR whether removing the leg of the desk when they are supposed to be doing a maths test may have been related to him being unhappy about a decision that he could not leave maths and study Russian.  KR had earlier made a request of the applicant that he stop studying maths and study Russian.  The applicant had refused the request as Russian was not a language that was available through the school or through distance education.  When the applicant put to KR that he may have been unhappy about this decision KR's response was to chuckle and simply say that he was bored.  KR told him that AS thought removing the leg of the desk was a great joke and she had laughed her head off.  The applicant asked KR where the leg of the desk was and KR said that it had been confiscated after school by a music teacher.  KR went with the applicant to the music building in the school where the applicant spoke to the music teacher who confirmed that he had seen KR and AS playing with the desk leg after school the previous day and he had removed the leg from them. 

33       On the way back to the office KR said to the applicant, "Does this mean that I'm expelled?"  The applicant says he simply responded to KR, "Well, you're certainly not going to be very welcome here, not if you are going to behave like this as a year 12 student."  He then told KR that he intended to suspend him (KR) for one day and that he could only be suspended for one day because that was the last day of term.  The applicant explained that he was of the view KR's conduct was a reasonably serious offence of wilful damage to school property and that he was authorised to suspend a student for a period of time from school but no longer than the period of time prior to a school vacation.

34       When the applicant returned to his office with KR he asked KR to wait in a room next to his office and asked AS to come in.  The applicant put all of the information he had gleaned from KR to AS and asked her for a response.  However, AS continued to refuse to respond in any way at all.  The applicant informed her that he was satisfied that she was a party to the matter and that she was also going to be suspended from school for one day.  The applicant asked both KR and AS to wait in the room next to his office while he made arrangements to contact their parents to collect them from the school.  The applicant was unable to contact AS's mother because the number he had was not in use.  He spoke again to AS to ask her the contact number for her mother but she would not provide that information.  The applicant contacted KR's father in Bridgetown.  He was not prepared to collect KR because he was working but he eventually agreed that KR's aunt could come and collect him.  The applicant was then informed by another member of staff that AS's mother had entered into a de facto relationship with KR's father.  He then contacted KR's father again and asked whether KR's aunt could collect both the students. 

35       The applicant said that his main concern at that point was to address the Department's duty of care of students.  He said that if a student is suspended they are always required to make certain that arrangements were made for the student to be safely collected from school. 

36       Whilst the applicant was making these telephone calls he noticed both students running past his doorway from the room next door.  The applicant followed them as they disappeared out through a doorway on to a verandah outside the front office and into the school rather than away from the school.  The applicant called out to them to stop.  They paused.  He stepped between the two of them and then got in front of them, turned and faced them and held his arms out.  The applicant is a very tall person.  AS was quite short and of small build and KR was not much taller than AS.  With the applicant's physical stature he was able to hold his arms straight out in a way that was effectively blocking the way of both students.  AS said to the applicant that she wanted to get her school bag from her classroom.  The applicant told her that he had already made arrangements for her bag to be collected and brought to the front office, so there was no need for her to go into the school and that she should turn around and go back into the office and wait for KR's aunt to come and collect them.  KR then said, "We're suspended from school.  So we don't have to do anything you tell us," and AS said, "Yeah, that's right.  We don't have to do anything that you say."  The applicant said, "No.  Don't be silly.  Your aunt is coming to collect KR," and the applicant then said to AS, "Someone is coming to get you.  Just wait quietly in the office and they will come and get you."  At that point in time AS said to the applicant, "We're not staying here" and she took a step forward towards the applicant whilst the applicant still had his arms held out on either side of him.  The applicant displayed the position of his arms whilst giving evidence which is not reflected in the transcript.  The applicant said when giving evidence that he had the feeling that AS was trying to race past him so he stepped sideways so that his arm was up against the wall to block her path.  At that point AS was behaving similar to what she had been in the office.  She put her head down and it was a case of her being very determined to do what she wanted to do.  The applicant said he was doing what he would normally do in a situation like that and that was to try to talk calmly to them, to use some physical presence in terms of his arms to block the way.  He was standing in front of them but not too close to them.  When they both started to say, "We don't have to do anything you have to say," his thoughts were at that point that they were being silly and were acting immaturely and that he should talk to them calmly and persuade them not to do anything silly.  The applicant testified that he had every reason to believe that by talking calmly to the students and exercising some physical presence in terms of eye contact, the tone of voice and using physical space by blocking their path would help in persuading them.  He said that you always had to be aware that a lot really depends on a certain extent of bluff with teenagers or teenage students.

37       When AS tried to move quickly past him, the applicant said he moved sideways and put his arm adjacent to the wall so there was a physical barrier of an arm in front of her.  When asked in cross-examination did he give consideration to allowing her to race through the gap instead of him closing it, he said, "No.  The thought in my mind was that I was concerned about what would happen to her if she did."  He explained that when a student is suspended he had a very clear understanding that they should be kept at school until collected by a responsible adult as suspending a student from school does not absolve the school from their special duty of care towards the students.  In particular he was concerned that AS might try to make her own way home to Bridgetown and that "included hitchhiking".  He was very mindful of the fact that AS was an emotionally intense girl and fairly immature and he was concerned for her safety as she was a young female student racing out of the school in an emotionally distraught state. 

38       When the applicant put his arm onto the wall as a physical barrier AS at that point started slapping at his arm with both of her hands and kicking his leg.  His response was to step back and as she continued forward with her momentum he grabbed her jumper or windcheater up by her right shoulder and turned her around so that she was facing away from him.  He then held her right arm with his right hand.  He testified that his intention at that point was to get her into a position where she was not able to continue hitting and kicking out at him.  KR was standing to his right.  KR said, "You can't do that," and took a step forward.  As he did so the applicant transferred his hold of AS's arm to his left hand so that he was holding her wrist and her arm with his left hand which was then effectively being held behind her back and he put his right arm up with his hand open in a stop sign towards KR.  The applicant said to KR, "Stop right there."  KR paused at that point.  The applicant gave evidence that he thought things were getting "dicey" at that point in time because his strong impression of KR was that he was "squaring up" and adopting a position as if he was getting ready to punch.  He thought he had to watch KR as KR was the danger.  He felt he had AS restrained to the point where she was not going to be doing anything but she was in no danger.  KR hesitated and the applicant continued what he had been doing in terms of talking to both of them, trying to keep things reasonable calm and reassured.  He continued to hold up his hand towards KR in an open palm gesture saying, "Just stay there," and he said to AS, "Go back to the office."  She was facing towards the door and she started moving forward towards the door.  AS then started pushing off the door and used the frame to stop herself from moving with her feet and her other arm.  KR was continuing to move along and there was a lot of noise and swearing from both the students.  The applicant said he was hoping someone was going to come along as he needed some help.  By this stage AS had got herself braced to the side of the door so that there was no way she was going through the door.  The applicant was holding her with his left hand and KR was over to his right.  When asked in cross-examination why did he not release AS at that stage and concern himself with KR if he was concerned that he was in danger from KR and not AS, the applicant said that he would then have the possibility of having to deal with both of them on both sides of him and that he was hoping that someone else would come along.  The verandah was empty but there are normally people moving around, students coming up to the office and teachers going to the staff room or to the office.  At this stage both students were swearing quite strongly at him and AS was throwing herself around left, right, forward and back and KR was watching her as much as him (the applicant).  The applicant said whilst KR was preoccupied with AS he was not likely to follow through with what his initial body language had indicated.

39       At the point when AS had braced herself against the door, the applicant heard a voice behind him.  It was one of the school clerical officers, Dayle Riley, who came from an adjoining door which leads into part of the front office where the clerical staff work.  She called out, "Are you alright, John?" and the applicant replied, "No, I'm not.  I need some assistance here straight away."  Ms Riley went back inside.  As that occurred AS appeared to relax, stopped struggling and held her hand up and said, "Alright, I give up."  The applicant said to AS, "Are you going to go inside?" and AS said, "Yes."  He then told AS to go inside and she led the way through the door.  When she went through the door the applicant continued to hold her arm and to watch KR.  He followed them.  As they got through the door another senior member of staff, John Carr, came out of his office, walked across the reception area and accompanied them back into the room from where AS and KR had run out.  When cross-examined, the applicant said he thought it was Ms Riley's intervention that prompted the change in AS.

40       When AS and KR were returned to the detention room the applicant asked them to sit down.  AS sat down and kicked a desk over onto the floor in front of her.  Consequently, the applicant asked Mr Carr to keep an eye on the two of them while he removed all of the desks in the room.  He left two chairs for AS and KR to sit on.  He locked the door to the other Deputy's office and the main door of the room and did not return until KR's aunt arrived to collect them.  When he returned to the room he found the room was empty and saw a high window open.  Another member of the staff informed the applicant that both students had been seen climbing out of the window and leaving the school.  The applicant said that the window is approximately seven-and-a-half feet above the floor.  Underneath the window is a cupboard which is about three foot high.  KR's aunt later telephoned the school and said that she had found them in the main street of town, they were okay and she was taking them home to Bridgetown.

41       In cross-examination, it was put to the applicant that when AS attempted to push past him why did he not simply step back and let them go rather than take physical action to restrain AS.  The applicant said that if he had not chased the two students and simply let them run away as they were not actually running out of the door of the front office, he could have simply done nothing and that would have lessened the chances of these proceedings coming about.  But he then said that that was not the way he has done his job, that he has always been commended in the past for performing his job to the best of his ability and putting the safety of staff and students uppermost.

42       The applicant reported the incident to the Principal of the school, Kerry Mather.  He spoke to her that afternoon and told her that there had been an incident and he had been made aware that the mother of AS intended to complain and take the matter up with the police and lay a complaint of criminal assault.  The following morning Ms Mather came to him and said she was going to prepare an incident report to send to the District Office.  The applicant told her what occurred and she prepared an incident report.  Later Ms Mather showed him a copy of the incident report and told him it was a draft.  She asked him to read through it and confirm whether it was correct.  When he read through it he told her that "by and large" it was correct but there did not appear to be any mention of AS having hit him.  He asked for a Post-it note to be attached to the report which reflected that.  The incident report stated as follows:

Description

It is alleged that Deputy Principal Mr John (Peter) Ayling held the arm of Year 12 student AS.  This has resulted in a complaint being made by AS at Bridgetown Police Station.

The following information has been provided verbally by Mr John Ayling on 5/4/07 and Kerry Mather, Principal has taken the notes written below.

Mr Ayling was called to a Mathematics class by Mr William Chapman.  Mr Chapman has indicated that a desk was vandalised and a leg was missing from the desk.  In following up this incident, Mr Ayling found that Year 11 student, KR was responsible and that Year 12 student AS watched as the vandalism took place.  Mr Ayling removed AS from class and interviewed her.  After stating that she had not seen the vandalism occur she refused to answer any further questions directed to her from Mr Ayling.  AS was placed into the adjoining room to Mr Ayling's office while he interviewed KR who admitted to being responsible for the damage to the desk.  Both students were placed into the adjoining room while Mr Ayling proceeded to phone parents.  While this was happening the students left the room and ran out of the administration block.  Mr Ayling headed them off and asked them to return to the room.  AS pushed past Mr Ayling and Mr Ayling attempted to stop AS from leaving.  He took hold of her arm and a struggle ensued.  The receptionist, Mrs Dayle Riley put her head out of the administration door and Mr Ayling asked for assistance.  Mr John Carr went to his assistance.  Both students were guided back to the waiting room next to Mr Ayling's office.  Mr Ayling locked the door at the [sic] of the room which lead [sic] to the other Deputy Principal's office because this lead [sic] to an exit door.  Mr Ayling indicated that his intention was to suspend both students for a day.  Mr Ayling returned to continued [sic] the phone calls to parents, and was interrupted by the desks being kicked in the room.  Other items were also being thrown.  Mr Ayling removed all of the furniture from the room and locked the second door.  KR's father was contacted by Mr Ayling but was unable to come to the school to collect his son because he was working his taxi service in Bridgetown.  KR's father also informed his partner Mrs MS that she was required to collect AS from the school.  When Mr Ayling returned to the room it was empty, the students had climbed out of the window and disappeared.  Ms SR, KR's natural mother's sister came to the school to collect both students and was informed they were missing.  She found them a short time later outside Southern Chicken and notified the school.  She drove them home to Bridgetown

Action

Ms MS and her daughter made a complaint to Bridgetown Police regarding the way Mr Ayling man-handled AS at 2.30pm, 4/4/07.  Ms MS contacted the District Office then left a message for the Principal to contact her.  Ms Kerry Mather, Principal spoke to her about her complaint at 12.30pm, 5/4/07.  Bridgetown Police contacted the school at 2.15pm 5/4/07 indicating that a complaint had been made.

Outcome

Ms Kerry Mather discussed the issue with the District Director, Mrs Janine Milton and this was followed by completion of a critical incident notification.

(Exhibit 1, document 28)

43       The Post-it note that was attached to the incident report states, "When Mr Ayling resisted AS's attempts to get past she began hitting him."  At the time the incident report was made the applicant did not see the handwritten notes made by Ms Mather.  During these proceedings he contended that Ms Mather's handwritten notes quite clearly indicated that he was responding to the actions by AS.  The handwritten notes that Ms Mather made from which she prepared the incident report state as follows:

Bill Chapman

Damage to desk

KR & AS — interview by John

AS sat and stared, refused to talk.

Wouldn't give phone no.

Interviewed KR – got some explaining about the desk

Early in term threw chair across room loosened.  KR admitted he broke the desk leg – removed it.  Leg removed from class   ????

Wilful damage to property –

AS interviewed again refused to give info

Sat in room next door

Phoned parents  – AR

  – Trying to ring MS

While phoning – student attempted to leave room.  When John appeared they began running.  John got in front of them.  Held hand out in front

John asked them to go back into room

AS tried to bulldoze in front of him

Started pushing through his arm

John took hold of arm

KR began

Dayle put head out of door – John asked for assistance

AS stopped fighting and returned to room.  KR followed

Wait quietly – locked Annmarie's door

Started kicking desks – John removed them.

Locked outside door while he made phone calls.

SR – sister of KR's natural mother

AR phoned her to collect KR.

John – rang back AR - to ok AS to be picked. SR was not informed she had to pick up AS.

Students got out window and ran off.

SR came – told ↑ and later found downtown

…

(Exhibit 1, document 29)

44       When cross-examined the applicant conceded that Ms Mather had asked him to provide a written account but he had declined to do so.  He, however, said that he observed her taking handwritten notes.  The applicant also said in cross-examination that he assumed when the note was made on the Post-it note that it would be added to the incident report.  Ms Mather's handwritten notes were made available to him through the investigation report.  The applicant contended when giving evidence that when it gets to the key point of what happened, the notes appear to be incomplete.  The applicant testified that he quite clearly discussed with Ms Mather AS's physical movements and he demonstrated to her the physical movement of both AS's arms moving up and down as a way of illustrating the way in which she was trying to bulldoze through his arms.  When it was put to the applicant that Ms Mather says that at no time during the course of his explanation to her did he mention that AS had began hitting him the applicant disagreed with that and said he had demonstrated that to her when she was making the handwritten notes.  The applicant also said when cross-examined that "when someone puts their head down and starts slapping away at you with both their hands and kicking your legs and they are trying to force through, the term 'bulldozing' is one that he would normally use to describe that sort of situation, particularly if you are on the receiving end of it."  (Transcript p 79)

45       The applicant also testified that he told Mr Carr about AS and kicking and hitting him.  The applicant talked to Mr Carr on two occasions about the incident.  He said however when he gave evidence that he tried not to talk terribly much about it and he did not discuss all the aspects of the incident from beginning to end with Mr Carr or anyone else because he did not think it was appropriate for him to be discussing it with him (Mr Carr) in detail.  He said his only recollection of what he might have told Mr Carr was talking about the incident on the verandah in terms of AS trying to bulldoze through his arm, his grabbing hold of her arm and his concern about KR shaping up to punch him.  The applicant said that he was mindful from the first day of the incident that he wanted to exercise his right to remain silent and he had been advised to retain his right of silence by his solicitors.

46       As to his relationship with Ms Mather, the applicant testified that prior to this incident he had every reason to believe that he had effective relationship with Ms Mather.  They had been working together since 2004.  However, he found at times she appeared overly concerned with the reputation of the school to the extent of being reluctant to acknowledge any problems with the students.  When he arrived at the school he noticed there were signs of a significant drug problem which could have been developing at Manjimup Senior High school.  He raised these concerns with Ms Mather but she was not prepared to acknowledge there could be any basis for it.  When he was served with notice of suspected discipline, he thought initially that Ms Mather was supportive of him because she made the comment that she was shocked and surprised that the department was taking this action.  She told him that she was pursuing the matter with the district and central office to try to get the matter dealt with as quickly as possible because she believed it had all been dealt with three months before by the police investigating the matter and finding there was no case to answer.  Ms Mather had told him that detectives had dealt with the complaint and they were satisfied that there was no case to answer and would be taking no further action.  As far as he understood that was the end of the matter until he received a letter from the department some three months later.  However, when the applicant subsequently read in the initial investigation report and the inquirer's report that she had made further allegations which he did not believe were a correct reporting of matters he subsequently felt let down by a lack of support. 

47       In relation to the suspension process of students, the applicant conceded when cross-examined that formally a suspension has to be signed off by the Principal.  He said, however, that if the Principal is not available the Deputy's role is to deputise and when the Principal does become available the formal signing off of any documents in relation to a suspension has to be done by the Principal.  At the time when he made the decision to suspend both the students Ms Mather was unavailable.  He explained that the penalty for unlawful damage to school property would generally result in more than a one-day suspension but the maximum he could impose on KR was one day's suspension because it was the last day of school term  In relation to AS, he said that her conduct in refusing to respond to questions and to simply say she was doing a test and knew nothing about the removal of the chair leg, certainly when her denial had been completely contradicted by the music teacher, would be serious and would warrant a one-day suspension.

48       When the applicant was asked why did he not provide a detailed exposition of the facts to the investigator or the inquirer as he has given in these proceedings, the applicant said there was a couple of reasons for not doing so.  First of all he had sought legal advice on the matter and his legal advice was that he continually faced the threat of criminal action being taken against him and that he should not rush into responding to questions without consulting his lawyers first.  In addition, he had every reason to believe that as the department had agreed to implement the recommendations made by Peter Browne in his report titled "Executive Summary Complaint’s Management Review March 2006", (Exhibit 1, document 23) he had confidence that he would be exonerated as the idea that he was innocent until proven guilty would be applied.

49       When the applicant was interviewed by Mr Skamp he had already provided information to Mr Skamp through his solicitors and he did not propose to make a statement on the matter.  When Mr Skamp was at the school on 21 August 2007, Ms Mather came to him and said that Mr Skamp had invited him (the applicant) to meet.  The applicant agreed to go meet with Mr Skamp and he asked Ms Mather to attend as a witness.  At the meeting he asked Mr Skamp whether he (Mr Skamp) had received a copy of a letter from his solicitors saying they were acting on his behalf and that in light of that advice from his solicitors he did not have anything further to add.  Mr Skamp asked if he was prepared to have that recorded electronically for the purpose of completeness of the investigation.  The applicant agreed and Mr Skamp formally put that question to him and the applicant formally replied.  The recorded interview took approximately three minutes.  After that the tape recorder was turned off Mr Skamp turned to the applicant and said he wished to make some off-the-record remarks to him.  Mr Skamp informed the applicant that he wanted to formally caution him (the applicant) to never to touch a student again, that he (Mr Skamp) was a former police detective and was satisfied on the evidence that he already had that there was enough to charge him (the applicant) with criminal assault.  Mr Skamp then told the applicant that he had more than enough evidence to find him guilty and was confident he was going to be able to complete this investigation very soon.  The applicant told Mr Skamp if that was his considered opinion then to bring it on.  Mr Skamp said in reply that he understood that he (the applicant) had some experience with industrial relations and it may be his (the applicant's) intention to take the matter before the Industrial Commission and if that was the case he (Mr Skamp) was ready for it.  The applicant testified that he formed the impression that Mr Skamp was simply going to go through a series of comments and provocative statements in an attempt to get him (the applicant) to respond in a way contrary to his advice about remaining silent.  Mr Skamp told the applicant that he had evidence that he had used excessive force against the female student but he did not believe that there were any grounds that he (the applicant) should not be allowed to continue to work in a school.  Mr Skamp then told the applicant that there is no concern of him being unsafe around students but he had not heard any mitigating circumstances.  He asked the applicant again, "Is there anything you can say?"  Again the applicant did not make any response and Mr Skamp told the applicant that he was going to bring this investigation to a conclusion fairly soon.

The Respondent's evidence

50       In these proceedings Mr Ceri Skamp, Ms Kerry Mather, Mr James Zaknich and Mr Paul O’Connor gave oral evidence on behalf of the respondent

51       Kerry Mather who substantively holds the position of the Principal of Manjimup Senior High School gave evidence on behalf of the respondent.  She held that position in 2007 and continues to do so but her role at the time of giving evidence was Principal Consultant at the Warren Blackwood District Education Office. 

52       Ms Mather said that either late morning or early afternoon on 4 April 2007 the applicant came to her and informed that there had been an incident involving AS and KR and he gave her a brief summary of what had happened.  Early in the afternoon of 4 April 2007 the Bridgetown police telephoned her and said that a complaint had been made against the applicant by AS's mother.  Ms Mather later received a telephone call from AS's mother who had informed Ms Mather she had gone to the police about the matter.  On 5 April 2007, Ms Mather took steps to complete a critical incident report as it was something that had to be done fairly urgently and she did not have time to do it on 4 April 2007.  She discussed it with the applicant and asked him if he could write down his version of events.  He chose not to do so but told her he would give the information verbally.  While he spoke she made handwritten notes.  She typed the report from the notes straight away and sent it off to the Department.  On 6 April 2007, Ms Mather showed the applicant a copy of the critical incident report.  She said when giving evidence that she thought he requested to look at it but she was not completely sure about that.  After she showed it to him, he asked her to amend just one entry by asking her to write down the words that "when Mr Ayling resisted AS's attempts to get past she began hitting him".  Ms Mather said she wrote those words on a Post-it note and stuck it on the document because it could not be entered into the system as the incident report had already been submitted on line and once the document had been sent it could not be changed. 

53       When cross-examined, Ms Mather was not able to recall whether she spoke to the applicant on more than one occasion on 4 April 2007, in particular she was unable to recall whether she had spoken to the applicant after the police had contacted her.  She said it was a very busy day.  On 4 April 2007 she had a student services meeting between 9:00 am and 10:15 am and then she had a construction issue regarding the farm dam which she had to try to resolve which resulted in numerous phone calls to engineers, builders and contractors.  She then had a panel meeting in the afternoon. 

54       When asked in cross examination about the handwritten notes line by line, Ms Mather stated in relation to each line that she had recorded what the applicant had said to her.  When the line "KR began" was put to her, she said, "I think that was KR began to walk away" but she was not sure.  When it was put to her that that was not consistent with the applicant's evidence given in these proceedings, Ms Mather said she could not confirm or deny whether that was the case, she did not know, she had not completed the sentence.  She also agreed that there was no mention of KR in her typewritten notes.  When it was put to Ms Mather that what was in her typewritten notes was a relatively sanitised version of what was in her handwritten notes in respect of the entries which recorded that AS tried to "bulldoze in front of him and started pushing through his arms" and the typewritten notes which simply stated "AS pushed past Mr Ayling and Mr Ayling attempted to stop AS from leaving", Ms Mather reluctantly agreed and then said that she thought she had omitted the word "bulldoze".  It was also put to her that she had also omitted any reference to physical contact between AS and the applicant and Ms Mather said that she thought it was inferred from the word "pushed" as pushed meant touched.  When asked about the information contained in the Post-it note Ms Mather said that she did not know why the applicant asked her to attach the Post-it note.  It was then put to her whether she had any reason to doubt that he was telling the truth when he asked to include the Post-it note and she said, "No."  She also said she was concerned that not all of the information was there and that it subsequently came out when one of the witnesses gave some further information that he (the applicant) had held AS's arm which she discussed with the applicant later.  With the exception of the word "bulldoze" which Ms Mather says was omitted from the typewritten notes Ms Mather says she wrote down exactly what the applicant told her.

55       When Ms Mather was asked about whether she provided any documentation to the police during their investigation she said they took a statement from her and she provided them with one behaviour management report for AS and two behaviour management reports for KR.  Ms Mather said that she could not produce the behaviour management reports in these proceedings as they were either archived or the police had them.  When asked about the content of the behaviour management reports she said that all she recalled was that they were fairly mild.  When asked about what her recollection was of KR as a student, Ms Mather said he was very different; he was quite withdrawn and often did not perform in class.  She also said he often sat quiet and isolated in class but every now and again he would have a behavioural issue which was fairly mild but they were more concerned about his emotional health than any other issues.  When the student services report was put to her about KR which indicated that he had punched the blackboard and injured his hand, Ms Mather said that she was aware of that incident as she was at that meeting.  When it was put to her that that was a violent thing to do, she said, "Yes, but it was not a student or a teacher, so that was good news."  When asked why she said that, she said, "Well, it does not put anyone else at risk," but then she said she could not remember the incident and it did not come to mind, but she would say that it was a manifestation of an emotional issue.  She then agreed that you could classify the act of punching a blackboard and injuring a hand as violent but qualified her response by saying that if you do not know the history of the student you may draw incorrect conclusions.  She also said that the only report she had received that KR had thrown a desk at another student was a report from the applicant about that. 

56       In relation to AS, Ms Mather said that AS was a reasonably talented student who was not performing and they were concerned that she was not on track to graduate consequently most of their concern was about her graduation status.  Ms Mather also said that AS was a very quiet student, who did not focus at all in terms of her behaviour, who came from a fairly assertive background and that her mother was very assertive.

57       In relation to the process of suspension of students, Ms Mather gave evidence that it is only the Principal who can sign off on a suspension of a student.  She said, however, that Deputy Principals will make a decision but generally it was always discussed with the Principal prior to any action being taken.  She also said there was a lot of paperwork that is generated when a student is to be suspended or has been suspended from school.  There is a letter that goes to parents and there is a discussion with the parents.  In relation to the incident on 4 April 2007 there was no paperwork generated at all.  It was clear from her evidence that she did not proceed with the suspension of either KR or AS. 

58       When Ms Mather was advised the disciplinary action was being taken by the Department in relation to the incident on 4 April 2007, Ms Mather said that she was somewhat puzzled because she did not understand the process of the various investigations.  When she telephoned Standards and Integrity Branch of the Department they clarified the issue and told her that the police investigation was a criminal investigation and this was a completely separate investigation.  She also testified that when the applicant was informed he was going to be investigated she would have indicated to him that she would have supported him just like she would support any staff member in that situation.  When cross-examined, Ms Mather said that she was not aware the reason why the police had not proceeded with their investigation other than they said that there was no criminal charge. 

59       In relation to the applicant's working relationship with Ms Mather, Ms Mather said that they had a reasonably effective working relationship although there were times when she had to give negative feedback to the applicant about some issues.  She said this had caused a rift in their relationship.  The rift arose because it had been reported to her by staff that the applicant had lied to them on occasions and on other occasions staff reported when they had discussions with the applicant the conversation would go round and round in circles and there was never an outcome and they would leave his office very confused.  This caused her workload to increase as staff complained about the issue to her.  Her advice was always to the staff members to try to resolve the issue with the applicant, but many of them felt they could not do so.  When cross-examined Ms Mather was asked to specify the number of complaints that she had received about the applicant.  She said that from 2004 to 2008 she had received a total of 20 complaints from parents, teachers and students. 

60       In relation to the drug problem at the school Ms Mather said this was not new news.  She said like most senior high schools they had always had a drug problem.  They had developed a policy to always contact police that gave very clear guidelines as to what they would do with students who had found to be in possession of drugs or who were under suspicion of any drug use. 

61       Ms Mather participated in a record of interview with Ceri Skamp.  The interview was recorded and later transcribed.

(a) In that interview it is apparent from what was said in the record of interview when asked to recount what had been said to her by the applicant, Ms Mather read from her typewritten notes.  When asked by Mr Skamp was there any variance in the personal notes she had written and the typed document, Ms Mather said, "I would have clarified certain things, I would imagine as I was typing it up.  These are fairly well as you can see they are pretty rushed notes."  She was asked in the record of the interview whether the applicant sat with her while she typed up the notes and she said, "No."  She was then asked whether she showed the applicant her draft and whether he was happy with that and she said, "Yes."  When asked whether it was his version of events she said, "I clarified it with him and he made another comment which I referred to when I was talking."  That was the comment that was made on the Post-it note.  She also stated that she did not add the Post-it note to the document (incident report) because she had sent the document off.  When asked whether they had been added to an amended copy of the document (incident report) she said, "No.  I simply just didn't think it was important enough to amend."  When asked what her understanding of AS's suspension on the day in question of the alleged assault, she said that all suspension documents come through her because she has to sign them.  The applicant told her he wanted to suspend her (AS) because she had withheld information and that he felt she was a bit of an accomplice in the whole matter.  When asked if that was sufficient grounds to suspend someone she said, "No, I wanted some more information on that."  When this occurred, the applicant said that he wanted to suspend AS but she said, "No, it required further information, further investigation." 

(b) When Ms Mather was asked what was her understanding of the inappropriate use of force, she said, "When I questioned Mr Ayling how he, what contact he made with AS, he demonstrated to me what he said he did."  Mr Skamp then asked Ms Mather to demonstrate on him.  Mr Skamp stood up and she said, "So I said to him, how did you use force and he said, I grabbed hold of her arm."  Mr Skamp then said, "You're using your right arm now."  Ms Mather said, "Yep.  Well I can't remember if it was the right arm or left."  Then it was put to her by Mr Skamp that she could not remember if it was right or left.  Ms Mather said, "No, I can't.  I didn't get that specific.  All I wanted to know was how he touched her and he said he grabbed hold of her arm."  Mr Skamp then said, "OK and what you are doing is grabbing me on my upper forearm, I suppose near my elbow."  Then Mr Skamp asked how light or heavy was his touch, Ms Mather said, "He didn't demonstrate it on me, he just said, look I grabbed her arm."  Ms Mather was asked what was the location of the touching and Ms Mather said, "Well, my understanding was it was to restrain her from moving."  Then when she was asked what was the purpose of the restraining she said, "So she wouldn't leave the school."  She then said, "He indicated that he was blocking her way of getting out of the school and she was trying to go past him."  Ms Mather was then asked, "Is it appropriate that a teacher can prevent a student from leaving the school?"  Ms Mather said, "It depends on the situation."  She then said, "What I tend to council [sic] people is that if a person is so heated and wishes to go then generally its [sic] best if they just go and we inform their parents straight away."  Ms Mather was then asked if it was appropriate or inappropriate to use force to prevent someone from leaving and Ms Mather said, "I would always say it's inappropriate.  Yeah unless they're putting themselves into danger and there's a safety issue."  Ms Mather was then asked, "And did Mr Ayling provide you with any evidence in relation to that?"  Ms Mather said, "No." 

(c) Ms Mather was also asked about the statement made by the applicant that AS had intended to push past him and she was asked whether he had said anything more than that.  Ms Mather said in response to the interview, "No, he simply just said that she tried to push past him."  Ms Mather then confirmed that the applicant had declined to write a report, that it was a very busy time, she needed to get the critical incident report in and to expedite matters she said, "Sit down.  Let's go and we will write it out now."  With respect with the Post-it note she was asked again what was her view on that and she said she did not read anything into it.  She also said that she wrote down exactly what the applicant had said to her.  When it was put to her by Mr Skamp whether she had any particular view that once the applicant had proof read her notes he specifically stated he was hit by AS, however in the initial conversation he failed to mention that, Ms Mather said, "Well he may have mentioned that in this, and I've written it down.  Mr Ayling heeded [sic] them off and asked them to return to the room, AS pushed past Mr Ayling and Mr Ayling attempted to stop AS from leaving.  In my notes here, he's actually said AS tried to bulldozed [sic] in front of him starting to push through his arm.  John took hold of arm, KR began … I missed that sentence there.  Dayle put her head out the door, John asked for assistance, AS stopped fighting and returned to the room."  Ms Mather participated in that record of interview on 21 August 2007. 

62       On 30 May 2008, she was interviewed by the inquirer James Zaknich.  In that statement, Ms Mather again recounted what the applicant had told her when she sat with him and made notes of what he said on 5 April 2007.  It was apparent, however, when that document is read that in recounting what was said by the applicant, Ms Mather, referred to her typewritten notes rather than her handwritten notes.  In her statement she says in relation to the copy of the Incident Report:

Some time later, I think it was the following day, I presented John with a copy of the Incident Report.

He read it and said that it was correct.

After he had read the report he said he wanted to add a comment to the effect that when he resisted AS's attempt to get past him, she began hitting him.

I wrote the additional information on a "stick-it" poster which is now attached to the report.

At no time did John tell me that he had twisted AS's arm behind her back.

On the 12/9/07 I was at a meeting with John AYLING on a completely different matter.

During the course of our discussion John said that he felt unsupported by me because I had not provided documentation to his lawyers as he had requested.  This documentation related to the interview with Ceri SCAMP [sic] and Mike EVANS regarding his alleged assault on AS.

I said that I felt let down by him, because he had not given me the correct information about how he had restrained AS.

John insisted that he had always acknowledged that he had held AS's arm behind her back.

I replied that at our meeting regarding the incident with AS that he had demonstrated to me as well as telling me that he had only held her arm below the elbow and that he had made no mention of holding her arm behind her back.

He said "yes" and then made it clear that he did not wish to discuss the matter any further and changed the subject.

(Exhibit 1, document 25)

63       Mr Ceri Skamp was employed by the respondent as a Principal Investigator at the Standards and Integrity Directorate for about a year and a half as an acting Principal Investigator.  Prior to being employed in that position he was a police officer for 10 years in the Western Australian Police Force, five of that as a uniformed constable and five years as a detective.  At the time of giving evidence Mr Skamp had returned to the Western Australian Police Force and was employed as a Detective Senior Constable at the Child Abuse Squad.

64       Mr Skamp testified that he followed the guidelines made under the Public Sector Management Act that have to be followed.  When he commenced the investigation he first obtained some information from Ms Mather.  He then caused the letter to be sent to the applicant, signed by the Director General alleging a breach of discipline and a second letter to the applicant advising the matter was going to be investigated.  He then conducted the investigation by speaking to relevant witnesses.  At the conclusion of his investigation he wrote a report which was discussed and adopted by the Director General.  After that point in time he did not have a great deal of involvement in the matter as the matter proceeded to an inquiry and Mr Zaknich carried out the inquiry.

65       On 13 September 2007, Mr Ceri Skamp submitted his investigation report.  In his report Mr Skamp stated:

1 BACKGROUND

1.1 On 5 April 2007 Kerry Mather, (Ms Mather) Principal at Manjimup Senior High School advised the Standards and Integrity Directorate (SID) of an alleged incident involving Peter John Ayling (Mr Ayling), Deputy Principal at Manjimup Senior High School and AS, a year 11 female student at Manjimup Senior High School.

1.2 The matter was later reported to the Bridgetown Police by AS's mother MS on Police Incident Management System (IMS) number 040407 1220 8411.  A complaint was taken for common assault and deprivation of liberty.

The matter was investigated by Detective Senior Constable Trevor Douglas (Det S/C Douglas) of the Child Protection Squad (CPS). As a result of inquiries Det S/C Douglas stated in his report that "as a result of inquiries I cannot identify any criminal offences in relation to the incident.  The level of force used by Ayling and the detention of the students in a locked room was not excessive in the circumstances and within the parameters of Section 39 of the School Education Act 2000" [sic].

1.3 On or about the 23rd July 2007 the respondent received an allegation letter signed by the Director General on 19 July 2007 stating:

On 4 April 2007 at Manjimup Senior High School, you used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law.

By way of further clarification it is claimed that as AS left the administration block you attempted to stop her by holding the top of her arm causing a struggle to ensue.

1.4 As a result of further investigations the "further clarification" needs to be particularised in a more concise manner. The amended allegation is:

On 4 April 2007 at Manjimup Senior High School, you used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law.

By way of further clarification it is claimed that as AS left the administration block you attempted to stop her by grabbing her on the wrist causing a struggle to ensue. You then grabbed AS's right arm and forced it around behind her back and pushed her up against a wall.

2 INVESTIGATION

2.1 On 14 August 2007 a letter signed by the Director General on 7 August 2007 notifying Mr Ayling of the commencement of an investigation was received by Mr Ayling.

2.2 The following persons were interviewed:

• AS - Age 16 (complainant)

• KR - Age 17 (student and witness)

• Dayle Patricia Riley - School officer at Manjimup Senior High School

• William Chapman - Teacher at Manjimup Senior High School

• Kerry Leanne Mather - Principal at Manjimup Senior High School

• John Andrew Carr - Teacher at Manjimup Senior High School

• Peter John Ayling - Deputy Principal & respondent in this matter.

2.3 The following files and documents were examined:

• Incident report by Ms Mather with photo copy of yellow "post-it" note attached. DO07/294787

• Handwritten notes by Ms Mather in relation to interview with Mr Ayling. DO07/317261

• Police statement of AS. DO07/294600.

• Map endorsed by KR DO07/294591.

• Map drawn by AS. DO07/317298

• Notes made by AS on day of incident. DO07/294576.

• Report from Doctor Hoar re: injuries to AS. DO07/311447

• Seven photographs of reception area.

2.4 At 2.55 pm on Monday 20 August 2007 witness William Charles Chapman (Mr Chapman), teacher at Manjimup Senior High School was interviewed by Ceri Skamp (Skamp), Senior Investigator, Standards & Integrity Directorate (SID) and Michael Evans (Evans), Senior Investigator, SID in the Principal's office at Manjimup Senior High School. The interview was electronically recorded.

Mr Chapman stated in his interview, inter alia:

• KR (KR) and AS used to be students in his class.

• KR was the victim of a prank which caused KR to get angry during class.

• Later it was noticed that a seat which KR used to sit in during class had a metal leg missing.

• Mr Chapman did not witness KR damage the desk.

• Mr Ayling interviewed AS and KR approximately one day after the damage was uncovered.

• Another staff member had seen KR waving the leg of a chair around.

• Mr Ayling heard the conversation and stated he would look into the matter.

• Mr Ayling has no knowledge of any alleged assault incident between Mr Ayling and AS.

2.5 At 4.34 pm on Monday 20 August 2007 witness KR, ex-student at Manjimup Senior High School was interviewed by investigators Skamp and Evans in the presence of his landlord … Bridgetown. The interview was electronically recorded.

KR stated in his interview, inter alia:

• On a Wednesday in April 2007 just before first period (at about 9.00 am) Mr Ayling attended at the science room and removed KR from class to discuss an alleged incident that KR had damaged a desk.  (Note: the damage to the desk occurred approximately one week before).  AS was a witness to the damage of the chair.

• KR was taken to Mr Ayling's office and was advised that he had been expelled as he had broken a desk.

• KR was placed in the "detention room" next to Mr Ayling's office. AS was already inside the detention room.

• KR was advised that AS had also been expelled and they both decided to leave the school by walking out of "Door A" (as marked on the map endorsed by KR).

• Mr Ayling came out through the door and asked AS to stop. AS continued to walk away.

• Before KR & AS got a few steps away from the door Mr Ayling caught up with them and grabbed AS by the left wrist and told AS that she was to return.

• AS tried to pull away from his grip but Mr Ayling held onto her for about 10 seconds.

• KR was about one metre from AS when this occurred.

• AS & KR both refused the request to return as they both believed that they had been expelled and Mr Ayling had no authority over them.

• AS and KR were both swearing at this time and although no specific phrases can be recalled words like "fuck" and "shit' were used.  KR called Mr Ayling "a dick".

• Mr Ayling appeared to become more frustrated and twisted AS's left arm up behind her back in a police style restraint and pushed her towards a window next to "door A" which rattled with the impact.

• AS was facing the window and was resisted for a short time until she became compliant.

• Mr Ayling walked AS through the office by holding her onto her collar.

• Mr Ayling placed both of them into the detention room and locked both of them inside (after clearing the room out).

• No damage was caused inside the detention room.

• KR and AS escaped by climbing through the window.

2.6 At 5.30 pm on Monday 20 August 2007 AS, complainant and ex-student at Manjimup Senior High School was interviewed by investigators Skamp and Evans in the presence of her mother MS… Bridgetown. The interview was electronically recorded.

AS stated in her interview, inter alia:

• At about 9.00 or 10.00 o'clock in the morning Mr Ayling attended at AS's classroom and asked her to come to his office.

• Mr Ayling asked AS about an incident where a desk was damaged by KR.  AS refused to answer any questions about the incident as she did not want to get KR into trouble.

• AS formed the belief that she was under suspension for failing to answer questions and Mr Ayling said "something about being expelled".

• AS was placed in the detention room with KR.

• AS and KR walked out of a door into the main school area.

• Mr Ayling came out of the office and said words to the effect that they were not allowed to leave and to return to the detention room.

• AS "stood her ground" and said words to the effect that she was leaving as she believed that she had been expelled.

•  Mr Ayling grabbed one of AS's arms and swung her around so she was facing him.   Mr Ayling was blocking AS's path.

• AS tried to move around him but Mr Ayling would not let her.

• At some point Mr Ayling grabbed one of her arms and pushed it behind her back in a restraint type hold.

• AS was pushed in the direction of the door.

• AS is unsure if she was pushed up against a wall or not.

• When AS got to the door she swung from one side of the door frame to the other side. Mr Ayling pushed her arm up a bit more and there was pain in her shoulder.

• After a while AS put her hand up and said words like "I give up" and stopped struggling.

• AS was taken through the office and put in the detention room.

• KR kicked the desks inside the detention room and Mr Ayling came in and removed the furniture.

• Both of the doors in the detention room were locked.

• AS & KR climbed through the window.

• AS later saw Dr Hoar on the same day and he stated that there was soft tissue damage in the area by her shoulder.

2.7 At 8.30 am on Tuesday 21 August 2007 witness Dayle Patricia Riley (Ms Riley), school officer at Manjimup Senior High School was interviewed by investigators Skamp and Evans in the Principal's office at Manjimup Senior High School. The interview was electronically recorded.

Ms Riley stated in her interview, inter alia:

• Ms Riley was at work at her computer in the reception area of Manjimup Senior High School and she faces the "detention room".

• Ms Riley heard a noise (like raised voices) and went to a door which opens up into the main area of the school.

• Ms Riley opened the door and put her head out of the door and looked to her left hand side.

• Ms Riley saw Mr Ayling restraining AS.

• Mr Ayling had AS pushed up against a brick wall and was bending AS's left arm behind her back.

• AS was quite still at the time.

• Ms Riley does not recall any words being said.

• Ms Riley does not recall seeing any other person present.

• Ms Riley looked at them for 3 or 4 seconds from about 2 or 3 metres away.

• Ms Riley shut the door and asked John Carr for assistance.

2.8 At 9.40 am on Tuesday 21 August 2007 witness Ms Mather, Principal at Manjimup Senior High School was interviewed by investigators Skamp and Evans in her office at Manjimup Senior High School. The interview was electronically recorded.

Ms Mather stated in her interview, inter alia:

• Ms Mather was made aware of an alleged incident between Mr Ayling and AS from an unknown source (probably Mr Ayling).

• Mr Ayling was requested to provide his account on 5 April 2007 and stated that he would rather provide it verbally to Ms Mather than to provide a written account.

• Ms Mather made handwritten notes of the conversation.

• Ms Mather used these notes to type up a formal incident report (which was later submitted to concerned parties).

• These notes were later shown to Mr Ayling and 'adopted' by him as a true record.

• Mr Ayling read the draft report and requested that the following line "When Mr Ayling resisted AS's attempt to get past she began hitting him" be included.  This comment was written on a post it note and was not added into the document as it had already been sent.

2.9 At 10.30 am on Tuesday 21 August 2007 Mr Ayling, the respondent was interviewed by investigators Skamp and Evans in the Principal's office at Manjimup Senior High School, in the presence of Ms Mather. The interview was electronically recorded.

Mr Ayling stated in his interview, inter alia:

• Mr Ayling does not wish to speak to investigators in relation to this matter as a result of legal advice.

2.10 At 11.01 am on Tuesday 21 August 2007 witness John Carr (Mr Carr), teacher at Manjimup Senior High School was interviewed by investigators Skamp and Evans in the Principal's office at Manjimup Senior High School. The interview was electronically recorded.

Mr Carr stated in his interview, inter alia:

• Mr Carr was sitting in his desk in his office which is near the reception area.

• Mr Carr heard some raised voices coming from the main school area.

• Dayle Riley called Mr Carr's name out.

• Mr Carr put his head around his door and saw Mr Ayling inside the reception area holding one of the students by the upper arm.

• Mr Carr believed that Mr Ayling was holding a male student.

• Both of the students were agitated and were raising their voices.

• Mr Ayling was calm and was asking the students to come into his office.

• Mr Carr did not see any incident outside of the reception area

3 ANALYSIS

3.1 AS presents as an intelligent and articulate young female and investigators had no reason to doubt the veracity of the account provided to SID.  AS's evidence is compelling as she has made two written accounts and one verbal account of the incident and aside from minor discrepancies all corroborate each other.  Particular weight can be placed on the written accounts as they are contemporaneous and clearly articulated.

3.2 The report by Doctor Hoar corroborates the complaint by AS and shows that there was evidence "tenderness of the right supraspinatus muscle and tenderness of the posterior shoulder joint.  A diagnosis of minor soft tissue injury was made."  Considerable weight can be placed on the evidence of a qualified medical practitioner who can give evidence in relation to an injury to which the complaint relates.

3.3 KR presents as an intelligent and articulate young male and investigators had no reason to doubt the veracity of the account provided to SID.  KR's account corroborates AS's complaint in full.  The weight of KR's evidence may be diminished because of his relationship to AS and his dislike of the respondent.  KR provided a statement to police but SID have not been provided with a copy of this statement and cannot comment if it corroborates the verbal account provided to SID.

3.4 The evidence of Ms Riley is particularly compelling as she witnesses the incident at exactly the time when AS was pushed up against the wall with Mr Ayling holding an arm behind her back. Ms Riley had an unobstructed view of the incident from a short distance and is clear in her evidence.  Ms Riley is an independent witness who has no interest in the outcome of the investigation.  It may be noted that Ms Riley was not spoken to by Police as she was on annual leave at the time.

3.5 Ms Mather stated that she typed the incident report from handwritten notes taken during a conversation with Mr Ayling.  When these were later read out loud to Mr Ayling (possibly one day after the incident) Mr Ayling requested the words: "When Mr Ayling resisted AS's attempt to get past she began hitting him" be included in the report.  These words were handed to Ms Mather on a post it note.  Self defence against unprovoked assault is defined in section 248 of the "Criminal Code" states that "when a person is unlawfully assaulted, and has not provoked the assault, it is lawful of him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault".  It would be mere conjecture on the part of the investigator to presume that Mr Ayling had time to ponder his actions on the day of the incident and has attempted to provide a defence at law for his alleged assault upon AS.

3.6 Mr Ayling has failed to provide any account of his actions to the Department once requested by the Director General.  No inference is drawn by the respondent exercising his right to remain silent.

3.7 The evidence of Mr Chapman has no bearing on this matter as he only provides corroboration into evidence about why Mr Ayling was [sic] removed AS and KR from his classroom to discuss damage to a chair.

3.8  The evidence of Mr Carr has little bearing on this matter as he does not witness the alleged incident and can only provide evidence in relation to what occurred after the incident in the reception area.

3.9  The department can draw no inference that Police have elected not to prefer criminal charges in relation to this matter as the burden of proof required by the Police to establish a prima-facie case is considerably higher than "reasonable suspicion" required by the Department. However, it may be noted that at the time the decision was made not to proceed the Police were not in possession of the evidence provided by Ms Riley or Doctor Hoar. A review of the evidence is currently being undertaken by the Child Protection Squad.

4 FINDINGS

4.1 In disciplinary and administrative investigations, allegations must be proved "on the balance of probabilities". It must be more probable than not that the allegations are made out.

4.2 Balance of probabilities may be defined as: "The weighing up and comparison of the balance of probabilities if its existence is more probable than not, or if it is established by a preponderance of probability" Reifek v McElroy (1965) s 112 CLR 517.

4.3 Having regard to the burden of proof required for the allegation to be established I submit that on the balance of probabilities there is sufficient evidence to conclude that Mr Ayling used unreasonable force against AS as described in the amended allegation.

RECOMMENDATIONS

5.1 Having regard to all the evidence obtained during this investigation I submit that on the balance of probabilities the allegation against Mr Ayling is proven.

(Exhibit 1, document 24)

66       Attached to Mr Skamp's report was a copy of the incident report prepared by Ms Mather and Ms Mather's handwritten notes.  Also attached was a copy of the statement AS made to the police on 5 April 2007 together with handwritten notes AS made about the incident on 4 April 2007.  Also attached was a copy of two plans of the area, photographs and a brief medical report written by Dr Michael Hoar who examined AS on 4 April 2007.  In Dr Hoar's report he stated:

This is to certify that AS attended my clinic on the fourth of April 2007, following an alleged assault.  She described her right arm having been twisted behind her back. 

On examination, there was tenderness of the right supraspinatus muscle and tenderness of the posterior shoulder joint.  Her shoulder retained a full range of movement.  There were no other injuries. 

The diagnosis of minor soft tissue injury was made, and she was prescribed ibuprofen.

67       In a statement to the police AS stated:

7. Sometime around 9.10am to 9.15am Mr Ailing [sic] came into the class room and asked me to come to the office with him.

8. Mr Ailing [sic] is the Deputy Principal at the Senior High School.

9. I followed Mr Ailing [sic] to his office in the Administration block, which is across the court yard from my class room.

10. We went into his office.  Mr Ailing [sic] sat on a chair behind his desk and I sat in front of his desk on a chair, facing him.

11. Mr Ailing [sic] asked me about something that happened the previous day.  The kid sitting next to me broke the leg off a desk in the math's [sic] class.  It was KR.  The leg was already loose.

12. Mr Ailing [sic] asked me what I could tell him about what happened in maths, when the leg broke off.  I told him I was doing my test.

13. I didn't answer anything else that he asked me.

14. I felt I didn't do anything wrong, so I thought I wasn't going to answer him.  I just sat there looking down, I pretty much well ignored his questions.

15. Mr Ailing [sic] said I was going to be suspended.

16. As far as I can tell, I haven't been in trouble.  I have spoken to Mr Ailing [sic] in the past about subject selection – but there have been no discipline issues this year.

17. In the third term last year, I got some detention for wagging – I'm not sure who gave me the detention though.

18. When I wouldn't say anything, or tell him my home number – or tell him my home phone number, he wanted to call my mum.  He said I was expelled or going to be expelled – something about expelling.

19. Mr Ailing [sic] then put me in the detention room.  He told me to sit in the detention room.  I walked into the room myself - the detention room is just next door to Mr Ailing's [sic] office.

20. The room was open, it has two doors, one leading into the hallway and another leading into an office.  There was no one in the detention room when I went in.

21. I have gone into the room and sat down. I read for a while - a short story book called Short Stories.

22. I was in there for 10 to 15 minutes max. After sitting in the room for about 5 minutes, I then got up and went outside of the room to look at last years school photos. Mr Ailing [sic] directed me back into the room, and I went back to reading.

23. Mr Ailing [sic] then bought [sic] in KR into the room. KR sat down. I asked what punishment and he said he was being expelled.

24. Then we decided that, seeing we were going to be expelled, we were going to leave.

25. I said I had been expelled - and I finished my story. I then said, "Well I'm going to get my bag and leave."

26. I'm not quite sure what KR said, something along the lines of "Yeah, me too."

27 We then walked out of the detention room and out of the admin block. We started walking across the court yard to get my bag.

28. Mr Ailing [sic] came up from behind me and grabbed hold of my left arm up the top, across the middle top section of my arm. He would have used - I'm not sure which arm he used.

29. He pulled me back towards the office and I pulled my arm away from him - he had come around in front of me.

30. I broke away, he wasn't holding on very tight.

31. I am not sure of what words he said.

32. I continued to try and move around him, so I could get back to the photography room.

33. He then grabbed my right arm in the upper part of my arm above the elbow, and I tried to pulled [sic] away, but he was holding on too tight.

34. He was standing in front of me.

35. He pushed my right arm around behind my back and then tried to push me back to his office.  I was trying as much as I could to not go back to the office, to get out of his grip.

36. I was pulling away I don't remember trying to hit him, at one point I tried to push off of him.

37. KR was standing to the right of me.

38. He didn't try and do anything.  One of the office ladies, Dale [sic] her name is - she poked her head outside the door.

39. I'm not sure if said anything, not that I can remember.  Mr Ailing [sic] called out to the lady for her assistance, "Can I get some assistance." - the lady went back into the office.

40. Whilst trying to push away to stop going into the office, I pushed off a wall and then I gave up - and held up my left hand and said, "I give".

41. He didn't let go until he pushed me with my arm behind me, the whole way, back to the detention room.  He was holding my arm behind me, it hurt - it hurt my shoulder.

42. I can't see any bruising on my arm, but it hurts.

43. Mr Ailing [sic] then pushed me into the detention room, KR came in as well.

44. I can't recall any words.

45. Mr Ailing [sic] held me until he locked the door leading to the other office - then he let me go and told me and KR to sit down.

46. We sat down on chairs.

47. I then kicked over a desk. I did this because I was very angry that he had hurt me and been mean / forceful - I felt he didn't have the right to do that.

48. Mr Ailing [sic] then took out all the desks out of the room.

49. He then locked the hallway door as he was leaving.

50. He locked both the doors.  It made me feel angry that the [sic] locked the doors.  I wanted to leave at that stage.  Both doors were key locked.  There was no phone in the room either, just a desk, some books and two chairs, I can't recall what the door locks were like, I just remember that he used keys to lock the doors.

51. The detention room had windows in it.  There were two see through mirror windows, one into Mr Ailing's [sic] room which is mostly obscured by things on the window.  The other mirrored window leads into the office - the office was mostly vacant.

52. Whilst we were in the room, I just sat there; KR was kicking, punching the air.

53.  We were left in the room for about 20 minutes, then I looked into Mr Ailing's [sic] office and saw that he was on the phone.

54. The other windows, three of them, were locked except for one window.

55. I then opened one of the windows and climbed out - it was on the ground floor.  KR came too.  I got my bag from the photography room and then we left school.

56. We went and sat on a bench outside Southern Chicken.

57. KR's aunt came and picked us up, it was 11.10-11.11am.

58. We went around to a phone booth - KR's aunt rang the school and KR and I then spoke with the office lady, and we told her we were with KR's aunt and we were going back home.

59. KR's aunt then drove us home to Bridgetown; I went back to my mum's place.

60. When I got home, I told my mum what happened.

61. I believe that teachers can hand out punishments, like detention and blue slips - for being bad - they shouldn't forceably [sic] restrain· people and lock them in rooms.

62. I am not so sore now, I felt weird before - after it happened, painful until I got home.

63 I have been to the doctors in Bridgetown.  I saw Dr Hoar, it was after I went to the Police Station.

(Exhibit 1, document 24)

68       In AS's handwritten notes which she made on 4 April 2007 AS stated as follows:

Mr Ailing [sic] then comes out & grabs my arm & trys [sic] to pull me back to the office, I pull away & the next few moments were spent me looking for a way to get past him.  I told him he has no right to grab me.  He then grabbed my arm & after a struggle he twisted it behind my back, I then continued to try get away from him.  He started to try push me back into the office & I swung around side to side, stopping him from getting me in.  He pushed my arm up further which hurt me lots.  My only thoughts were to get away & called for assistance from an office lady who had poked her head out a door.  I said I give in & lifted my spare hand as a sign of surrender & he then took me back into the office, not loosening his grip at all until he had closed & locked one of the detention room doors.  He let go & I sat down.  He left & then came back, I was rather angry & insulted at this point & kicked down a desk to show this & to keep myself from crying.  He took out all the desks & locked the door.

(Exhibit 1, document 24)

69       Mr Skamp gave evidence that he had a short conversation with the applicant after the applicant informed him that he had obtained legal advice and did not wish to discuss the incident.  Mr Skamp testified he told the applicant that he was an ex-police officer and he had some experience in this area.  He advised the applicant that he believed that there was probably sufficient evidence that he could have been charged criminally and should anything occur like that in the future it was probably not appropriate that he did so.  He also told the applicant not to have physical contact with a student.

70       When cross-examined, Mr Skamp was asked about the police investigation.  Mr Skamp was handed a copy of an email which summarised the result of the police investigation in which it was stated that the level of force used by the applicant and the detention of students in a locked room was not excessive in the circumstances and within the parameters of s 39 of the School Education Act 2000 [sic].  Mr Skamp said it was highly likely he had a copy of the email prior to commencing the investigation.  He agreed that in light of the opinion expressed in the email it was open for him not to proceed further with the investigation, however he decided, in any event, to conduct an investigation.

71       In relation to the amended allegation contained in Mr Skamp's report that the applicant pushed AS up against a wall, Mr Skamp was asked whether he notified the further particulars to the applicant.  Mr Skamp said that a decision was made that this allegation was a minor change in relation to the charge and so a fresh allegation letter was not sent out to the applicant.  In making this decision he also had regard to the fact that the applicant had already indicated that he did not wish to talk to the investigators.  Consequently, the amended allegation was simply referred to in the investigation report.  In relation to the amendment, Mr Skamp was asked to explain where in the investigation report it was alleged that AS was pushed up against the wall.  In response Mr Skamp referred to paragraph 40 of the statement AS gave to the police in which AS said, "While trying to push away to stop going into the office, I pushed off a wall and then I gave up."  Mr Skamp said AS's statement was corroborated also by the independent witness (Ms Riley) who described AS being against the wall and as a result he formed a reasonable suspicion that AS's arm was pushed up against the wall and he concluded that the applicant had pushed AS up against the wall.

72       In relation to Dr Hoar's report, Mr Skamp conceded that he did not speak to Dr Hoar but he had regard to the information contained in the report that Dr Hoar found tenderness in AS's right supraspinatus muscle, as a medical opinion of corroboration of some type of injury.

73       Mr Skamp was also asked in cross-examination whether he had a discussion with Ms Mather about whether there were any behavioural management reports and whether AS and KR were subject to any disciplinary matters.  In response Mr Skamp said that he did have a conversation with Ms Mather about that but he did not make a record of the conversation as it would probably have been a general conversation when he was obtaining some general background information.  When it was put to Mr Skamp that it was relevant to consider the character of the complainant and her accomplice, Mr Skamp said that the reality is the character of the complainant has no relevance whatsoever on the actions of people.  He said that he deals with complainants all the time who he finds particularly objectionable but his opinion is of no consequence.  He then went on to say that he did not consider the character of AS or KR but simply weighed the actions on the day.

74       Mr Skamp conceded when cross examined that he did not recount in his investigation report or consider the opinions of Mr John Carr who, when interviewed, stated that he thought from what he saw that the applicant handled the situation really well.  Mr Skamp said he did not consider Mr Carr's opinion to be relevant as Mr Carr was not present at the scene but if he had viewed the entire incident he (Mr Skamp) might have considered Mr Carr's views but even then Mr Carr's view would only be opinion evidence.

75       Mr Skamp was also asked whether he considered the provisions to s 64 of the School Education Act 1999.  Mr Skamp said, yes he did, but he was of the opinion that the applicant's conduct fell outside the scope of reg 39 of the School Education Regulations 2000.

76      James Zaknich was appointed by the respondent to carry out an investigation into the alleged breach of discipline in relation to the incident on 4 April 2007.  He is employed by Gold Security Group (International) Pty Ltd as a senior investigator.  He has held that position for over seven years.  Mr Zaknich holds a Bachelor of Commerce with a major in law and management and a post graduate diploma in business law.  He has also completed criminal law and evidence units at law school.  He has previously been employed as a police officer having spent time in the Fraud Squad in Scotland Yard and the City of London police.  He is a Churchill Fellow and has lectured at the detective training school.  He has also lectured part-time at Curtin University in corporate law.  Since he has been engaged as a senior investigator with Gold Security Group (International) Pty Ltd he has carried out investigation work for both private and government agencies.  Prior to investigating this matter, Mr Zaknich had conducted a number of investigations and inquiries under the disciplinary provisions of the PSMA.

77       When conducting his inquiry Mr Zaknich read Mr Skamp's report and statements collected by Mr Skamp and caused to be transcribed the records of interview.  He also re-interviewed all of the witnesses with the exception of KR whom he was unable to locate.  He testified that although he had Mr Skamp's report, he formed his own independent opinion and came to the conclusion that the applicant had committed a breach of discipline.  In his report (Exhibit 1, document 25) Mr Zaknich points out that the main thrust of the inquiry revolved around a very short period of time where the allegation is that the applicant grabbed AS by the wrist, twisted her arm behind her back and pushed her against a wall.  In relation to the charge that the applicant used unreasonable force against AS in circumstances not authorised, justified or excused by law, Mr Zaknich particularised the unreasonable force as the alleged action by the applicant to grab AS on the wrist causing a struggle to ensue and then to grab her right arm and force it around her back and push her against a wall.

78       When conducting the inquiry Mr Zaknich interviewed AS, Ms Dayle Riley who is a school officer at the Manjimup Senior High School, Ms Mather, John Carr who is the Manager of Information Systems at the school and Mr William Chapman, the Head of Department of Mathematics.  In relation to the documents he examined, Mr Zaknich had regard to the records of interview of the witnesses interviewed by Mr Skamp.  These records of interview were conducted with AS, Ms Riley, Ms Mather, Mr Carr, Mr Chapman, the applicant and KR.  Mr Zaknich also reviewed the statement of AS taken by Manjimup Police, the contemporaneous notes of the incident made by AS, the medical certificate from Dr Hoar and a letter from the applicant's solicitors dated 1 July 2008.

79      In relation to AS, Mr Zaknich in his report summarised her evidence which included the statement that he took, the record of interview with Mr Skamp, the statement taken by the Manjimup Police, her contemporaneous notes and the medical certificate provided by Dr Hoar as follows:

(1) AS (Appendices 1-5)

AS stated that before she was placed in the detention room she was informed by AYLING that she had been expelled.  A short time late KR was placed in the detention room by AYLING and he told AS that he too had been expelled.  They then formed the opinion that as they were expelled from school there was no obligation for them to remain in the detention room.

The [sic] both left the detention room via the Administration Office and as they entered the covered veranda AYLING caught up with them and grabbed AS on the right upper arm.

She pulled away from him and after she pulled away from him she ended up facing him.

She then tried to get around him and told him that he had no right to grab her.  She said AYLING then grabbed her on the lower part of her right arm and twisted it behind her back.

She struggled to get away but was pushed against the wall.

She continued struggling and he pushed her arm higher up her back.  Because it was hurting her, she stopped struggling and said something like "I give up" and put her left hand in the air.

AYLING continued to hold onto her until she was placed back into the detention room.

AS subsequently attended at the surgery of Dr Michael HOAR at Bridgetown where he made a diagnosis of minor soft tissue injury to the shoulder joint.

Later that day at home AS made notes of the incident.

80      Mr Zaknich also summarised the statement taken by him of Ms Riley and the record of interview Ms Riley participated in when interviewed by Mr Skamp.  In his report Mr Zaknich summarised Ms Riley's recollection of events from those records as follows:

(2) Dayle Patricia RILEY (Appendices 6-7)

RILEY states that on the 4th April 2007, she was sitting at her desk in the Administration Area when she heard a disturbance which from recollection consisted of raised voices and scuffling.

She left her desk and opened the door to the verandah.

She saw AYLING restraining AS by holding her arm behind her back.  She says that it was her left arm.

RILEY further stated that AS was facing the brick wall and was being held against the wall.

She stated that she was about 3 metres from the incident and had a clear view of both AYLING and AS.

She also said that AS was not struggling, that AYLING appeared to be acting in a calm and controlled manner and that AS appeared to be firmly restrained against the wall.

81       Mr Zaknich also took a statement from Mr Carr and he summarised Mr Carr's evidence given in that statement and in the record of interview taken by Mr Skamp in his report as follows:

(4) John Andrew Bice CARR (Appendices 10-11)

CARR stated that on the 4th April 2007 he was sitting at his desk at the rear of the Administration Building when his name was called by Dayle RILEY saying something to the effect that AYLING might need some help.

He said that he saw AYLING enter the room with two students and was holding one of the students on the upper arm.

He stated that the students were resisting, in that they were not walking.

He did not witness any physical threat towards AYLING by the students but that they were "in his face".

He did not see AYLING acting aggressively towards the students.

He goes on to say that several days later AYLING spoke to him about the incident, saying words to the effect that he had the girls [sic] arm behind her back as he was feeling physically threatened by KR and needed to be able to see him and be in a position to defend himself.

AYLING went on to say that he needed to restrain AS because he felt that the girl would leave the school grounds if he let her go.

AYLING also said that by resisting [sic] AS in that way she would not hurt herself unless she physically struggled.

Mr Zaknich added a note under:

Again it should be noted that AYLING did not accuse AS of hitting him at this time.

82       Mr Zaknich also made a brief summary of KR's recollection of events as told to Mr Skamp in a record of interview.  In his report Mr Zaknich reported this summary as follows:

(5) KR (Appendix 12)

He stated that after he and AS left the detention room and went out on to the verandah, AYLING caught up with them and grabbed AS's wrist and told her to come back.

He said that both he and AS told him that they wouldn't, because he technically had no authority over them considering that they had been expelled by him.

He stated that AS continued to struggle and that AYLING seemed to get more frustrated and twisted AS's arm around the back of her head, and push her against the window next to the door.

AYLING then took them back to the detention room.

83       Mr Zaknich also had regard to what the applicant said in his record of interview with Mr Skamp and the response given in writing to the questions posed by him (Mr Zaknich) through his solicitor.  After collating the evidence Mr Zaknich analysed the evidence and reached his findings as follows:

ANALYSIS OF THE EVIDENCE

There are three (3) issues which need to be determined:

Issue (1): Did AYLING physically handle AS in the manner described?

Issue (2): If so was the action authorised, justified or excused by law?

Issue (3): If AYLING did handle AS in the manner described, and his action was not authorised, justified or excused by law, does it amount to misconduct as per Section 80(c) of the PSMA.

Analysis of the evidence relating to issue (1)

AS's evidence is credible, having made contemporaneous notes of the incident immediately upon arriving home from school on the day of the incident.

Her account of the occurrence was consistent in her interviews with the Police; the investigators from Standards and Integrity and the interview with the Investigator.

Further her account was corroborated by Dayle Patricia RILEY who stated that she witnessed AYLING restraining AS by holding her arm behind her back and against the wall.

RILEY also stated that AS appeared to be firmly restrained against the wall.

It should be noted that RILEY's evidence is that AYLING had hold of AS's left arm which differs from AS's evidence who states that it was her right arm.

AS's evidence is further corroborated by KR, to the extent that AYLING grabbed her by the arm and twisted it behind her back.  KR also states that AS was forced up against the glass adjacent to the door to the administration office.  (Refer to Photograph attached to Appendix 6).

The glass referred to by KR abuts the area of wall described by AS and RILEY as the place where she was being held against.  It is possible that in the ensuing struggle AS was also pushed against the glass.

In any event the evidence is clear that she was restrained against the brick wall as described by her and the witness RILEY.

AS's account is further corroborated by AYLING, who gives several versions of the event.

In a comment to a fellow teacher, John Andrew Bice CARR, AYLING admitted that he had AS's arm behind her back but does not suggest that AS had attacked him in any way.

Further in a statement to the Investigator through his Solicitor AYLING also admitted that he:

"Held AS's right wrist behind her back, so that she faced away from him".

On the day of the incident, AS attended the surgery of Dr. Michael HOAR who examined her right shoulder.

She was diagnosed with minor soft tissue injury.

The evidence that AYLING grabbed AS by the wrist and subsequently twisted that arm behind her back then restrained her against a wall is unequivocal, provable on the balance of probability.

Analysis of the evidence relating to Issue (2)

AYLING's defence, provided in a letter to the Investigator through his Solicitors a letter dated 1st July 2008, was that his actions were reasonable and justified and fell within the scope of Regulation 39 of the Schools Education Regulations.

There is no evidence that supports the proposition that AYLING acted in accordance with the provisions of Regulation 39 (now repealed) of the Schools Education Regulations which states inter alia:

A member of the teaching staff at a Government School may take such physical action as is appropriate to prevent or restrain a student at the school from acting in a manner which places at risk the safety of –

(a) that student or any other person; or

(b) any property (whether or not vested in the Minister).

At the time of the incident, AS had left the detention room together with KR when she was grabbed on the wrist by AYLING.

At that time she was not acting in a manner that placed anybody or anything at risk.  There is not a scintilla of evidence to suggest otherwise.

AYLING's first account of the incident was to the Principal Kerry MATHER.

He told MATHER that after AS and KR had left the detention room he "headed them off" and asked them to return to the room.

He also stated that AS pushed past him and that he attempted to stop her.  He said that he took hold of her arm and a struggle ensued.

The import of AYLING's statement is that he instigated the incident by taking hold of AS.  It was within his ability to desist from holding her and thereby preventing an escalation of the situation.

It is pertinent to note that he made no mention of any physical action by AS, neither did he mention that he had twisted AS's arm behind her back.

After MATHER prepared a report of the incident described by AYLING she presented him with a copy of the report which he said was correct, but then stated that he wished to add a comment to the effect that when he resisted AS's attempt to get past him she began hitting him.

Even if this was the case, and there is a subsequent statement by AYLING which refutes this, it was only after his attempt to resist her attempt to get past him that she allegedly hit him.  It does not explain why he took hold of her arm in the first place when she was not placing anyone or anything at risk.

It is noteworthy that at this subsequent meeting with MATHER, AYLING again made no mention of the fact that he had twisted AS's arm behind her back.

AYLING's next version of events occurred when he made an unsolicited comment to a fellow teacher John CARR.

He told CARR that he had held AS's arm behind her back as he was feeling physically threatened by KR and needed to see him and be in a better position to defend himself.

He went on to say that he needed to restrain AS because he felt that she would leave the school grounds if he let her go.

He also said that by restraining AS in that way, she would not hurt herself unless she physically struggled.

He was aware that if she struggled she would hurt herself, and it is clear from his statement to CARR that it was his intention to restrain her in a manner that would cause pain to her if she struggled.

These comments made to CARR clearly indicate that AS was not a threat to him, that she did not physically attack him either by hitting him or by any other means.

This statement by AYLING establishes the fact the reason he restrained AS was to prevent her from leaving the school premises, and for no other reason, particularly not to prevent her from physically attacking him.

AYLING's final version of events is contained in a letter from his solicitor where he states;

"Immediately before taking hold of AS's right wrist, AS had attacked me by kicking at my left leg and slapping at my left arm with both her hands"

This statement is at odds with the two statements he gave to the Principal and particularly the unsolicited comment he made to John CARR.

AYLING's final comment has the ring of "recent invention".

AYLING's actions in this matter are not supported by Regulation 39.  His comments to CARR completely refutes this defence.

There is no credible evidence that the actions attributed to AS by him ever occurred.

AYLING's four (4) different versions of the events render his evidence not credible and should not be accepted.

It was in AYLING's power to walk away from the incident without placing anyone or anything at risk.

Further it should be noted that AYLING is physically bigger than AS, who is of small build.  (Refer to statements of AS and MATHER).

AYLING's behaviour also contravened the provisions of the 'Behaviour Management in Schools Policy (now repealed but in force at the time of the incident) which states at Paragraph 4.2.7:

"As a last resort, students can be physically restrained in response to spontaneous potentially harmful behaviour that places at risk the physical safety of the student, other students, school staff and any other person or threaten damage to property."

There is no credible evidence that there was any such risk.

In this instance AYLING was the instigator of a set of circumstances which resulted in minor injury to the complainant AS, a female student who is physically much smaller than him.

There is no evidence that AS breached any school procedures.

The evidence clearly indicates that the force used by AYLING on AS was used solely for the purpose of preventing her from leaving the school premises.  It was excessive to the extent that she was restrained by being held against a brick wall such action not being authorised, justified or excused by Regulation 39 (repealed) as claimed by him through his solicitor.  Further his behaviour was contrary to Paragraph 4.2.7 of the Behaviour Management in Schools Policy.  (Now repealed, but in force at the time).

Analysis of the evidence relating to Issue (3)

In the case of: "Civil Service Association of Western Australia Inc v Director General of Department for Community Development (2002) WASCA 241 (3 September 2002) it states inter alia:

"Nothing in the Act (PSMA) indicates that parliament intended the word "misconduct" to have any special meaning in s80.  It is to be given its ordinary meaning which is simply conduct which is improper or immoral by the standards of ordinary people"

AYLING used his superior physical strength to subdue a much smaller female student for the purpose of preventing her from leaving the school grounds and in the process caused soft tissue damage to the shoulder of that student, in circumstances where there was no risk to the safety of any person or property.

Such behaviour is clearly improper by any objective analysis and the criteria of the Supreme Court.

FINDING:

I find, on the Balance of Probabilities, that on the 4th April 2007 at Manjimup Senior High School, Peter John AYLING used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law: such behaviour being an Act of Misconduct within the provisions of Section 80(c) of the PSMA and therefore a Breach of Discipline contrary to Section 80 of that Act.

RECOMMENDATION

Peter John AYLING being a Deputy Principal at the School had substantial authority over the student AS and was significantly physically superior to her.

He used his position and superior strength to restrain her in circumstances that were not authorised, justified or excused by law.

The student AS had not been accused of any wrong doing.

The actions of AYLING were excessive in the circumstances.

I recommend that the penalty should be a Reduction of monetary remuneration as per Section 86(3)(b)(iv) of the PSMA.

84       When cross-examined Mr Zaknich informed the Commission that he had not been provided with a copy of the applicant's written response to Mr Skamp which was contained in a letter from his solicitors dated 3 August 2007 (Exhibit 1, document 3).  He also stated that when he prepared his report he was only provided with a copy of Ms Mather's written Incident Report but was not provided with a copy of her handwritten notes even though she had referred to them.

85       Mr Zaknich was asked when cross-examined why he made the finding at page 11 of his report that the applicant's final version of events contained in his letter from his solicitor, is at odds with the two statements he gave to Ms Mather and particularly the unsolicited comment he made to Mr Carr and that the final comment (made through his solicitor) has the ring of "recent invention" when Ms Mather's evidence was that the Post-it note was attached to the incident report the day after the incident.  Mr Zaknich when re-examined said the first time that the word "kicking" was used was in the solicitor's letter and there had been no mention of that before and this explanation had come a substantial time after that explanation was given.  He was then asked whether he put weight on the fact that the Post-it note was added one or two days later and Mr Zaknich said:

I considered it that the ... I mean I always will accept that people can forget but even with that post it note it was still after he had attempted to already grab hold of her arm so it was after an event.  It was a ... even with the post it note it was that when he attempted to stop her and in his evidence to Ms Mather was that he grabbed her by the arm, that was his original statement and then it was after that that she started struggling or hitting ... that's what I, as I read the post it note, to mean.  So, he didn't ... the second comment as I read to Ms Mather was that she started striking at him after he grabbed her.  (Transcript p 140)

86       Paul O'Connor is the respondent's Executive Director of Professional Standards and Conduct.  Mr O'Connor is a barrister and solicitor who after working for six years in private practice in Canberra was in charge of the ACT Customs Legal Unit dealing with administrative law issues.

87       He has lectured part-time in administrative law at Canberra University and was the Regional Director of Customs in Western Australia for eight years.  He joined the Department of Education and Training on 28 April 2008.  He has responsibility for the Standards and Integrity Directorate which coordinates and manages discipline management and resolution.

88       In respect of this matter Mr O'Connor became involved in the latter stages of the inquiry process by reviewing Mr Zaknich's report.  He oversaw the preparation of brief and material to the Director General for her consideration of the proposed penalty to be imposed upon the applicant.  Mr O'Connor pointed out that whilst the Director General is bound by an inquirer's finding as to whether or not there has been a serious breach of misconduct, the Director General has a discretion whether to affirm the recommendation for penalty or apply a different sanction or penalty.

89       Mr O'Connor testified that when he reviewed the file including the investigation report from Mr Skamp, the investigation report from Mr Zaknich and other documentation it was clear that there had been some difference of opinion throughout the Department as to the desirability of accepting Mr Zaknich's recommendation in respect of penalty.  Prior to the Director General considering the matter a briefing note was prepared by the then Acting Director of Standards and Integrity Mr Greg Lee on 3 September 2008 and directed to him (Mr O'Connor) for his consideration.  In that memorandum Mr Lee stated:

This breach of discipline can be considered to be at the higher end of the scale in relation to inappropriate use of force against a female student.  Mr Zaknich's report also makes some very negative comments about the truthfulness of Mr Ayling in relation to the incident and states that "Mr Ayling's four different versions of the events render his evidence not credible and should not be accepted".

Ms Kerry Mather, Principal, Manjimup SHS has provided the view that she considers it would be unsuitable for Mr Ayling to return to Manjimup SHS as there is a consensus that there is a loss of confidence in his ability to fulfil his duties as Deputy Principal.

There is strong evidence to suggest that Mr Ayling's actions during the incident and his attempt to subsequently offer varying explanations during this process indicate a course of conduct which is at odds with his role as Deputy Principal.

Mr Ayling is currently a substantive Level 4 Deputy Principal at Manjimup SHS, but is paid at level 5.1A pursuant to the School Education Act Employees (Teachers and Administrators) General Agreement 2006.  This entitles Mr Ayling to an annual salary of $96,703.00.

It is also my understanding Mr Ayling's wife is employed at Manjimup SHS and the Department has recently contributed approximately $20,000 to the Ayling's [sic] under the provisions of the Award as they recently purchased a house in the locality.

Labour Relations have been consulted and provided a report (attached) in relation to an appropriate penalty.  Labour Relations are of the view:

• Mr Ayling's classification should be temporarily reduced to 4.1 of the administrator's pay scale ($87,718 per annum) for a period of six months, before reverting to his substantive position (this would in effect result in a reduction of $4492.50);
• Mr Ayling should be reprimanded; and
• Consideration should be given to transferring Mr Ayling to another post.

I do not concur with the recommendation of Labour Relations in regard to the transferring of Mr Ayling and am of the view that reprimanding and reducing Mr Ayling's remuneration as outlined above is more than appropriate in the circumstances.  To also transfer Mr Ayling could be viewed as being overly harsh in the circumstances given he has no previous adverse disciplinary findings recorded against him and has been employed by the Department for over 20 years.

(Exhibit B)

90       Mr O'Connor discussed the matter with the Director of Schools, Mr Jeff Macnish, and the Director of Human Resources, Mr Kim Ward, and he made a written note on the briefing note on 4 September 2008 to the Director General as follows:

The relationship between the Principal and Ayling has broken down, hence her request that he be transferred.  Ayling has lodged two workers [sic] compensation claims alleging stress due to the Principal's poor management – both declined.  I have discussed the transfer option with Kim Ward (HR) he agrees it would be harsh.  I have also discussed the matter with Director Schools (MacNish [sic]) he is aware that a management plan will be needed & difficult.

91       Mr O'Connor then affixed a date stamp to his comment which is 4 September 2008 and sent his briefing note to the Director General who accepted Mr O'Connor's recommendation.

92       As to why the penalty of a temporary reduction of pay and a reprimand was imposed, Mr O'Connor said it was assessed that the use of physical force was at the higher end of the scale but he did not regard a transfer as an appropriate penalty.  He said that those in the Department who had recommended a transfer had paid insufficient regard to the consequential impact on the applicant namely that he would need to relocate his household from the area and they also looked to his years of service with the Department by way of mitigation.

93       When asked in cross-examination what weight did he attach to Mr Zaknich's comments in respect to the truthfulness or otherwise of the applicant, Mr O'Connor said that Mr Zaknich's comments were relevant and they formed a part of the decision making process in arriving at the appropriate penalty.  Mr O'Connor was then asked if a finding were made that the applicant was telling the truth and that his version of events were preferred would the Department still be seeking to impose a penalty.  In response Mr O'Connor said that if there was a finding that the applicant's physical restraint came within the provisions of the School Education Regulations then that would have been authorised contact and he should not have been subject to a finding of a breach of discipline and there would be no need for any penalty to be imposed.  Mr O'Connor was also asked if the issue about the applicant's truthfulness was removed but the physical contact occurred in breach of the provisions of the legislation what penalty would he say should be imposed.  In response Mr O'Connor said in those circumstances he would still view the conduct as serious physical contact which did not seem warranted but that a penalty that would not be unreasonable would be more in line with what Mr Skamp had proposed because there would not be concerns about the applicant's truthfulness.

The Applicant's Submissions

94       The applicant seeks an order under s 78(2) of the PSMA to set aside a decision made in the exercise of a power under s 86(3)(b), s 86(8)(a) and s 86(9)(b)(ii) of the PSMA.  The grounds on which the application is made are that:

(1) The respondent failed to afford the applicant procedural fairness;

(2) The respondent failed to comply with the requirements of the PSMA;

(3) The respondent imposed a penalty that in all the circumstances was harsh and oppressive without proper regard to the circumstances of the applicant, and the relevant mitigating factors.

95       The details of the applicant's claim were set out in the attached statement of claim.  In the statement of claim the applicant states as follows:

1. The Applicant is a deputy principal employed by the Respondent.

…

3. The Applicant has been the subject of a purported notice of suspected breach of discipline issued by the Director General of the Department of Education and Training.  The notice placed the Applicant in a position where statutory powers were liable to be exercised in relation to him, giving rise to the prospect that his employment may be terminated.  Accordingly, the Director General was under a duty to afford the Applicant a fair hearing and was obliged, as a matter of procedural fairness, to give proper notice to the Applicant as to the matters which were the subject of the relevant allegations.

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6. Purportedly in accordance with Section 86(4) the respondent then appointed an inquirer to conduct an inquiry.  The person directed to conduct the inquiry was an employee of the Respondent, Mr Jim Zaknich ("the Inquirer").

7. The Inquirer's function under the PSMA included a power to make a finding, binding upon the Respondent, to the effect that the Applicant had committed a breach of discipline.  Accordingly, the Inquirer was under a duty to afford the Applicant a fair hearing.

8. In breach of the duty to afford procedural fairness, the Inquirer failed to disclose relevant material and information to the Applicant in such a manner so that the Applicant could properly respond.

9. The Inquirer failed to conduct a proper inquiry and merely reviewed the material that had been before the investigator.

10. The Inquirer failed to have regard to relevant considerations and material.

11. The Inquirer relied upon irrelevant material.

12. The Inquirer came to unreasonable conclusions on the basis of the material before him.

13. The Respondent failed to have any, or any proper regard to the particular circumstances of the Applicant.

14. The Respondent failed to have any, or any proper regard to the Applicant's submissions in mitigation and in relation to penalty.

96       The applicant seeks orders that the finding made under s 86(8)(a) of the PSMA that the applicant committed a breach of discipline be set aside and that the penalty imposed on him pursuant to s 86(3)(b) also be set aside. 

97       When opening the applicant's case the applicant's counsel informed the Commission that pursuant to the principles discussed by Kenner C in Johnston v Mance, Acting Director General Department of Education (2002) 83 WAIG 1553 the hearing of this matter should proceed as a hearing de novo.  The applicant contends that pursuant to s 78(2) of the PSMA the Commission is not restricted to a consideration of the reasonableness of the employer's conduct but the Commission may review the employer's decision de novo as the circumstances warrant and substitute its own decision for the employer's decision.  If the merits of the application warrant the Commission may quash the decision of the employer in its entirety (see Webb v The Director General, Department of Education [2004] WAIRC 10441; (2004) 84 WAIG 132).  The applicant says that if this approach is applied the witness statements and records of interview of the persons who were not called to give evidence in these proceedings and were not available for cross-examination should be given less weight by the Commission than the evidence given by the applicant who is in the best position to give the description of the circumstances of the incident as those who were also present.  The applicant says that the failure by the respondent to call AS and KR should give rise to an adverse inference about the substance of the evidence that they were going to give.  The applicant also makes the same submission in relation to Dr Hoar's report.  The applicant says that the Commission should draw an inference that Dr Hoar has simply summarised what was reported to him by AS.  In any event the applicant says that the Commission should be careful about the weight the Commission attaches to the opinion expressed by Dr Hoar in the medical report.  Further, the applicant says that natural justice and procedural fairness required that the investigator and the inquirer under the PSMA turn their mind to the issue of weight as the general practitioner's report can only have as much weight as can be attributed to it by the veracity with which the patient had reported her symptoms.  The respondent has elected to not call AS or KR or its employee, Ms Riley, who witnessed the event.  Nor has the respondent called Dr Hoar to whom AS reported the alleged symptoms.  It is conceded, however, that the applicant could have called Dr Hoar to give evidence.

98       In relation to the handwritten notes prepared by Ms Mather and the typewritten incident report the applicant contends that it was clear that the incident report is not a transcription of the handwritten notes.  It is contended that the handwritten notes refer to physical contact by AS on the applicant prior to any physical contact by the applicant on AS.  The incident report fails to record this.  It is also pointed out that it is clear from the evidence that Ms Mather did not write down word for word what the applicant said to her.  The applicant's counsel speculated that the handwritten notes probably reflect 90% of what was said by the applicant and the incident report is less accurate than the handwritten notes. 

99       The applicant also says that to the extent there are any inconsistencies between the evidence of the applicant and Ms Mather the Commission should have regard to the fact that the relationship between the applicant and Ms Mather has broken down.  Consequently, the Commission can infer that there is no interest on Ms Mather's part to support or endorse what the applicant is saying.  It is also said that Ms Mather, when giving her evidence relied heavily on her handwritten notes rather than recalling things from her memory.  In addition, she conceded that those notes are not as good as they could be.

100    The applicant also seeks the Commission make a finding that the finding of fact made by both Mr Skamp and Mr Zaknich that the hold the applicant had on AS at the time that Mr Carr saw them was different to the hold that the applicant had on AS prior to Mr Carr seeing them was incorrect.  The applicant says that based on the applicant's evidence that he maintained the same hold until after Mr Carr had arrived on the scene and that he did not change or release the hold until AS was back through the door, the opposite inference can be drawn. 

101    In relation to the character of KR, the applicant says the Commission should draw an inference that KR was a "strange" person.  The Commission heard evidence by Mr Zaknich that he (KR) was the sort of person who did not want to be found.  There is also evidence that there were concerns about his emotional state, actions of violence and anger and the existence of behavioural management reports.  In relation to the character of AS, the applicant says the evidence establishes she was assertive and the sort of student who would kick a desk over in a fit of passion. 

102    The applicant also seeks the Commission draw an inference that not all the relevant material was considered by the investigator and the inquirer.  Firstly, the police report is absent from both reports.  Secondly, Ms Mather's handwritten notes are absent from Mr Zaknich's report.  The applicant also contends the interview transcripts are absent from Mr Skamp's report.  However, it is conceded that they had been recorded but not transcribed by Mr Skamp.

103    The applicant was not aware that interviews had been conducted with the witnesses until after he received a copy of Mr Skamp's investigation report which said he had committed a minor breach of discipline.  Mr Skamp had at least one discussion with the applicant which was not recorded and he may have had a couple of discussions with Ms Mather.  In addition, the applicant makes a submission that Mr Zaknich may have also had discussions with both Mr Skamp and Ms Mather that were not referred to in his report (no evidence of this). 

104    The applicant challenges the finding that he used unreasonable force against AS, a student, in circumstances not authorised, justified or excused by law.  He also challenges the decision to impose a penalty on him for the breach of discipline. 

105    The applicant points out that s 64(1)(e) of the School Education Act 1999 states one of the functions of a teacher in a government school is to "supervise students and to maintain proper order and discipline on their part".  Part 3 Division 4 of the School Education Regulations 2000 provides for supervision of students, protection of persons and property.  Regulation 39(1) of the School Education Regulations at the time that the incident in question occurred provided:

A member of the teaching staff at a government school may take such physical action as is appropriate to prevent or restrain a student at the school from acting in a manner which places at risk the safety of:

(a) that student or an other person; or

(b) any property (whether or not vested in the Minister).

106    Regulation 39 was repealed on 24 August 2007 and was replaced with reg 38. 

107    Counsel on behalf of the applicant points out the question in these proceedings is whether the applicant used reasonable force against AS. 

108    In relation to credibility, it is submitted that the applicant gave his evidence in an open and forthright manner and no adverse inference can be drawn about the applicant's credibility from the way in which he has given his evidence in these proceedings.  The applicant is an experienced educator with over 30 years' experience who exercises sound and professional judgment.  It is contended that when regard is had to the response provided by the applicant's solicitor to the investigator in early 2007 and the response provided to the inquirer by the applicant's solicitor in mid-2008 and the applicant's evidence given in the witness box under cross-examination the Commission should make a finding that the applicant has been consistent throughout in relation to what he says occurred on the day in question.  It is also contended that when the applicant's evidence is considered the only finding open to the Commission is that the applicant used reasonable force in accordance with the provisions of the School Education Act and the School Education Regulations.

109    In relation to the circumstances of the incident in question and the disciplinary policy which applies to suspension of students the applicant says that pursuant to the Behavioural Management in Schools Policy (Exhibit 1, document 26) a student who is suspended prior to the end of the school day must not be permitted to leave the school grounds until an arrangement to get the student home is agreed to by the Principal and the student's parent or a person responsible.  It is contended that this language together with the statement in the policy that as a last resort a student can be physically restrained in response to spontaneous behaviour such as the act of running at a teacher, as such conduct places at risk the physical safety of a staff member.  Consequently, the submission is made that the actions by AS of kicking and slapping the applicant constituted a risk to the applicant's safety.  The applicant says that this submission has to be considered in light of all of the circumstances that it was not only just AS that was kicking and slapping the applicant but KR was also a threat standing close by and was known to have a propensity for violent acts and who by "shaping" up to the applicant caused the applicant to be concerned for his safety. 

110    In relation to the investigation carried out by Mr Skamp, the applicant says that Mr Skamp fell into error in respect of the following:

(a) Mr Skamp failed to interview Dr Hoar and he should have taken into account when considering Dr Hoar's report that AS escaped through a window which was seven feet high.  In addition Mr Skamp accepted the report from Dr Hoar without properly analysing the contents of the report. 

(b) Mr Skamp failed to properly consider the provisions of the School Education Act and School Education Regulations and did not turn his mind effectively to the requirements of reg 39.  He also failed to have regard to the character and history of behaviour of AS and KR, when considering what physical actions were appropriate under reg 39 to prevent or restrain a student from placing themselves or others at risk.  AS was emotionally unbalanced and not the sort of person that the applicant could feel comfortable "with letting her escape out to the big wide world".  The applicant was exercising his duty of care to restrain AS and whilst doing so KR was coming at the applicant as well.  KR was the sort of student who has thrown a desk at another student and broken a leg off a desk and punched a blackboard.  Mr Skamp accepted unconditionally the evidence of the complainant and KR.  He described AS as intelligent and articulate without looking at her academic records.

(c) Mr Skamp failed to attach sufficient weight to the evidence of Mr Carr, a very senior and experienced employee of the respondent, who came to the view that the applicant handled the situation appropriately.

(d) Mr Skamp mistakenly formed the view that the restraint which the applicant had on the complainant was different to that witnessed by Mr Carr. 

(e) Mr Skamp attached undue weight to the statement given by Ms Mather despite her not being a witness to the event and not being in a position to record the applicant's description of events in an unrushed way.  He also failed to have regard to the fact that her handwritten notes were obviously incomplete and that she edited her handwritten notes when she typed the incident report.

(f) Mr Skamp failed to have any proper consideration to the police report which exonerated the applicant.  Mr Skamp also failed to have a proper appreciation of the potential inaccuracies contained in Ms Mather's notes and failed to discount Ms Mather's evidence on the basis that she was not present at the time the alleged breach occurred. 

(g) Mr Skamp failed to provide further and better particulars to the applicant of the allegation that the applicant had pushed AS against the wall before concluding the investigation and his report.  Mr Skamp not only denied the applicant the opportunity to comment on the further and better particulars prior to the completion of the report but he did not provide the applicant with a written list of questions.  He incorrectly assumed that the applicant did not want to participate in the investigation process.

(h) Mr Skamp failed to have regard to or properly consider the correspondence from the applicant's solicitors to the respondent denying the allegation and providing an explanation (Exhibit 1, document 3).  This correspondence is not in the list of documents examined by Mr Skamp at paragraph 2.3 of his report, and his view in relation to the applicant's participation in the investigation process at paragraph 3.6 of his report is clearly mistaken.

(i) Mr Skamp failed to have regard to the recommendations contained in the Browne review.  In particular, Mr Skamp failed to have regard to the recommendations in the report that:

(a) persons under investigation should not be treated as guilty until proven innocent; and

(b) the veracity of the allegations should be tested. 

It is contended that Mr Skamp superficially analysed the material that was before him, failed to test the complaint by AS and failed to consider the character of AS.  His findings that the applicant was not prepared to participate in a process or had not responded to the Director General shows that Mr Skamp took the attitude that the applicant was guilty until proven innocent. 

(j) Mr Skamp failed to have regard to the statement in the executive summary in the Browne report that the terms of reg 39 of the School Education Regulations were not clear.  It is contended that the lack of clarity in reg 39 ought to have been a consideration that Mr Skamp took into account when making a report finding whether the applicant's conduct was authorised by law. 

111    It is conceded, however, on behalf of the applicant that once the finding of a minor breach of discipline was cancelled all the issues raised in relation to the investigation report fall away but it is said that these errors are relevant as they were repeated by Mr Zaknich.

112    In relation to Mr Zaknich's report, the applicant says that Mr Zaknich failed to conduct an independent inquiry and made numerous procedural and substantive errors in the manner in which he conducted his inquiry.  These are said to be as follows:

(a) Mr Zaknich mistakenly believed that he was conducting an inquiry into a serious breach of discipline.  The applicant however concedes this error was a relatively minor procedural error.  The finding made by Mr Zaknich that the applicant had committed a serious breach of discipline was not open under the legislative scheme.  Under s 86(8) of the PSMA the only findings that can be made at the conclusion of a disciplinary inquiry, is that a breach of discipline was committed or no breach of discipline was committed. 

(b) As the investigator found that there was minor breach of discipline not a serious breach of discipline, it was not open to the inquirer to make a finding of a serious breach of discipline.  The applicant says there was no significant difference between the material upon which the investigator made his finding and the inquirer made his finding.  Consequently, the question is asked how the inquirer could characterise the conduct of the applicant as a serious breach of discipline. 

(c) The inquirer misdirected himself as to the test of what he has been asked to do.  If the inquirer was turning his mind to whether there was a serious breach of discipline he should have applied a high standard of proof as discussed in the decision of Briginshaw v Briginshaw (1938) 60 CLR 336. 

(d) The applicant says the inquirer failed to consider or to adequately or properly consider the police report and he failed to review or consider the contents of the handwritten notes made by Ms Mather.

(e) Although Mr Zaknich considered the correspondence from the applicant's solicitors dated 1 July 2008 (Exhibit 1, document 17), there is no evidence that he considered the letter from the applicant's solicitors dated 3 August 2007 (Exhibit 1, document 3).  It is contended that Mr Zaknich's condemnation of the applicant falls on the allegation that the applicant's version of events as described in the 1 July 2008 letter was recent invention.  It is argued that if Mr Zaknich had regard to the 3 August 2007 letter where the applicant's solicitors stated that AS attacked the applicant was conduct which was not only reasonable and justified but fell within the scope of reg 39, he could not have reached that conclusion.  In the letter dated 3 August 2007, the respondent was informed that the applicant contended that AS attacked the applicant.  If Mr Zaknich had regard to this letter and to the handwritten notes, the most Mr Zaknich could say was that the allegation that AS attacked the applicant arose by the latest two days after the applicant's first discussion with Ms Mather.  If the Commission accepts that Mr Zaknich misdirected himself on the question of recent invention, then the balance of his report falls away because the credibility of the applicant is contingent upon the recent invention thesis and the reasonableness of the force used, is based on the assumption that there was no attack by AS prior to physical contact by the applicant.  Mr Zaknich was not clear on this point in his oral evidence.  Mr Zaknich testified that he thought the struggle to which the applicant referred to in the Post-it note was after physical contact had been made by the applicant on AS.  This assumption is not correct. 

(f)              Mr Zaknich has made highly prejudicial adverse findings against the applicant's credibility despite never speaking to the applicant.  This is also an issue which goes to a penalty.  It is plain from the evidence given by Mr O'Connor that the truthfulness or otherwise of the applicant was taken into account by the respondent in determining the nature of the penalty that was to be imposed.  It is clear that the applicant's written answer to the questions put to him by Mr Zaknich is entirely consistent with what the applicant purported to occur at all times.  Consequently, there is no basis on which Mr Zaknich can make adverse findings or draw adverse conclusions about the applicant's credibility.  When making findings of credibility Mr Zaknich relied heavily on second-hand accounts of what other people reported the applicant as having said. 

(g)              It is not just important that justice is done; but also that justice is seen to be done.  The applicant is concerned that Mr Zaknich spoke to Mr Skamp about the way in which the inquiry was conducted.  The applicant cannot be satisfied that substantive matters were not discussed between Mr Skamp and Mr Zaknich as Mr Skamp was Mr Zaknich's case manager.  The Commission in these circumstances would have a reasonable apprehension that such discussion undermines the independence of the inquiry. 

113    In relation to the contention that the applicant was prepared at all time to participate in the investigation in the inquiry, it was submitted on behalf of the applicant that all he did was decline to participate in an interview with Mr Skamp and with Mr Zaknich.  He invited Mr Zaknich for the list of questions to him through his solicitors and provided straightforward answers to those questions.  It is said that if Mr Zaknich felt he needed any further information it was always open to him to ask further questions.  The applicant also says that he was entitled to remain silent (see Police Service Board v Morris and Martin (1985) 156 CLR 397).

114    As to procedural flaws that the applicant contends were made by the respondent, these are as follows:

(a)              The respondent failed to provide the applicant with a copy of Mr Zaknich's report prior to providing the applicant with the letter dated 17 September 2008 in which the respondent informed the applicant that a finding had been made by Mr Zaknich that the applicant had committed a breach of discipline and the respondent intended to impose upon the applicant a penalty for breaches of discipline (Exhibit 1, document 18). 

(b)              The respondent erred in making a decision to investigate the matter after the police had reached the view that the applicant had not committed a criminal offence.  The applicant says that this is a breach of procedural fairness.

115    The applicant also says that prior to making a finding that the applicant had committed a breach of discipline the respondent failed to provide a copy of Mr Zaknich's report.  The applicant was denied an opportunity to review witness statements and the transcripts of the witness interviews or to respond to all of the material that was before both Mr Skamp and Mr Zaknich.  In addition, the respondent failed to provide a copy of Mr Zaknich's report prior to imposing a penalty.  The applicant says that the respondent failed to provide any proper explanation to the applicant for its significantly increased penalty beyond what it had proposed at first instance after Mr Skamp's investigation. 

116    No submissions were made on behalf of the applicant in respect of the proposed penalty because on 1 October 2008 these proceedings were commenced.  The applicant does not complain about the failure of the respondent to afford the applicant an opportunity to provide submissions on penalty as the applicant did not take the opportunity to make submissions because he had filed an application in the Commission. 

117    The applicant submits that the Commission has the power to cure the defects in the decisions by substituting its own findings in place of the findings of the inquirer, the investigator and the respondent.  Because the process has taken more than two years after the original conduct complained of occurred, it would be oppressive if the Commission quashes the decisions and refers the matter back to the respondent to commence a fresh inquiry.  Further, if the Commission finds that the finding of the breach of discipline should stand, the applicant says that the penalty should be quashed and no penalty be substituted.  The basis of this submission is that the applicant contends that pursuant to s 86(3)(b) of the PSMA it is discretionary whether a penalty should be imposed.  In the event that submission is rejected the applicant says that as there is no significant or substantial difference in the material considered by Mr Skamp and Mr Zaknich, the penalty recommended by Mr Skamp should be imposed. 

The Respondent's Submissions

118    The respondent says the nature of the hearing before the Commission in this matter does not warrant a hearing de novo.  In written submissions filed by the respondent dated 20 March 2009, the respondent makes the following submissions:

1. The Applicant has sought to rely upon the decision of Kenner C in Johnston v Mance, Acting Director General of Department of Education (2002) 83 WAIG 1553 in asserting that the hearing of this matter ought to be treated as a hearing de novo.

2. It is not the case that a matter that comes before the Commission by way of an appeal under section 78(2) of the Public Sector Management Act 1994 ('the PSM Act') is automatically to be regarded as warranting a hearing de novo.

3. As set out by Kenner C at paragraph 26 of his Reasons for Decision in Johnston v Mance:

"…depending upon the nature of the challenge to the decision under review, such a proceeding may involve the Commission re-hearing the matter afresh or it may only be necessary to consider the decision taken by the employer "on such record of the proceedings below as comes up to it, supplemented or not by evidence": Ormsby."

4. The excerpt from the decision in Ex Parte Hill, Director of WA Prisons Department v Ormsby No 1987 of 1985 quoted by Kenner C in Johnston v Mance includes the following statement by the Chief Justice at 11 of that case:

"Grounds of appeal are to be given and the manner in which the Tribunal goes about its task will be controlled by those grounds … If the grounds are such that in the judgement of the Tribunal justice cannot be done without hearing the proceedings all over again then it has power to do so. If, on the other hand, the grounds can be adequately dealt with by the Tribunal on such record of the proceedings below as comes up to it, supplemented or not by evidence, then the Tribunal can deal with the appeal on a more restricted basis."

5. Similarly, the Full Bench concluded in Milentis v Minister for Education (1987) 67 WAIG 1124 that the nature of an appeal to the former Government School Teachers Tribunal pursuant to the repealed s 78(1)(b) of the PSM Act was such that it should essentially be heard de novo, however this would depend on the grounds of appeal in each particular case.

6. Turning to the grounds of the application in this particular case, as set out in the Notice of application filed on 1 October 2008:

(1) The Respondent failed to afford the Applicant procedural fairness

(2) The Respondent failed to comply with the requirements of the PSMA

(3) The Respondent imposed a penalty that in all the circumstances was harsh and oppressive without proper regard to the circumstances of the Applicant, and the relevant mitigating factors

7. On the basis of the above grounds, as supplemented by the Statement of Claim attached to the Application, the Respondent was on notice that the Applicant intended to challenge the process that led to the finding that the Applicant committed the act of misconduct in question.  More specifically, the Respondent was aware that the Applicant challenged the conduct and outcome of both the disciplinary investigation and inquiry.  For that reason, the Respondent called the investigator, Mr Ceri Skamp, and the inquirer, Mr Jim Zaknich, to give evidence such that their methods and conclusions could be tested before the Commission.

8. Working from the Notice of Application, the Respondent was also prepared for a hearing which challenged the appropriateness of the penalty imposed upon the Applicant at the conclusion of the disciplinary process.  Mr Paul O'Connor, Executive Director Professional Standards and Conduct with the Department, was called to give evidence on this issue and was thereby open to cross examination by the Applicant's representative on the decision making process that led to the imposition of a penalty comprising a reprimand and temporary reduction in monetary remuneration.

9. Nowhere in the grounds of appeal is it evident that the Applicant sought to have the version of the events of 4 April 2007 involving the Applicant and a student at Manjimup Senior High School that was before the Respondent at the conclusion of the disciplinary process set aside so that what unfolded on the day in question could be heard afresh.  Therefore, the Respondent seeks to rely upon the numerous records of those involved (including handwritten notes, incident report and statements given to the police, the investigator and the inquirer) as the evidence which formed the basis of the finding that the Applicant committed the breach of discipline as alleged.  That evidence was also used in reaching a decision as to the appropriate penalty to be imposed upon the Applicant.

10. As set out in the case law on this issue, it is open to the Commission to deal with this matter on the more restricted basis suggested by the Respondent given the grounds of the application, as supplemented by any additional evidence either party may seek to adduce.  The Respondent does not object to the evidence led by the Applicant at the hearing of this matter as to what he asserts occurred on 4 April 2007 being considered by the Commission in reaching a conclusion on the appropriate disposition of this application.

119    The respondent says that if the Commission finds that a number of procedural defects occurred in the disciplinary process which led to a finding that the applicant committed a breach of discipline, it is possible for the Commission to cure those defects in a hearing de novo.  If the Commission concludes the hearing in this matter was not de novo then the appropriate test for the Commission to apply is whether the decision made by the respondent that the applicant committed the breach of discipline was a reasonable decision on the material before the respondent and whether the penalty imposed was reasonable in the circumstances found by the respondent. 

120    In relation to the obligation or requirement that someone in the applicant's position co-operate with or involve himself in the investigation inquiry process it is not in dispute that the applicant is entitled to exercise his right of silence in relation to the police investigation.  The respondent concedes that the applicant had the authority to suspend students from school but says that as the Deputy Principal he had a duty to make a proper report about that.  He did not do that in this matter.  The respondent says there is an obligation upon someone in the applicant's position to provide information for the preparation of a critical incident report.  In support of the respondent's submission the respondent's counsel referred to the decision of Lips v Supercheap Auto Pty Ltd (2004) 84 WAIG 2660 at [30]-[32] and [40].  However, the applicant elected to answer questions through his representatives and provided written material during Mr Skamp's investigation and in Mr Zaknich's inquiry. The respondent says the applicant could have done himself a "favour" by giving a full account as he did to the Commission and says that if that information had been provided to Mr Skamp and Mr Zaknich and the applicant's version of events was to be believed it may have been that the matter need not have gone any further. 

121    The respondent contends that the applicant was given every reasonable opportunity to explain the events and did not take up this opportunity until he gave evidence in these proceedings.  While the respondent says that if the applicant had taken up that opportunity to provide a proper explanation, these proceedings may not have been necessary, the respondent also says that having heard the applicant's evidence as to what he says occurred on 4 April 2007 it is open for the Commission to find that the applicant committed the breach of discipline in question on his own admission because the applicant says he came into physical contact in with AS by grabbing her right shoulder, turning her and then holding her right arm up behind her back in what he describes as a mild form of restraint.  The respondent makes the submission that the applicant's justification for this contact has varied in different versions of events stated by the applicant to Ms Mather, Mr Carr, Mr Zaknich and the Commission.  One explanation given by the applicant was that he was in some way protecting AS from the danger or risks that could await her should she leave the school premises as the applicant believed she was intending to do.  The second explanation given by the applicant is that the physical contact occurred as he was defending himself from AS, whom he says was slapping and kicking him.  The third explanation is that he used the restraint of AS to send a message to KR who the applicant described as being "the danger".  The respondent contends that if any or all of these purported explanations are accepted they do not justify or excuse the physical contact by the applicant upon AS.  The only defensible option available to the applicant was simply to back away and let AS go on her way should that be what she chose to do.  The respondent says there was no need for the use of force whatsoever.  This was because AS was not acting in a manner that placed at risk her own safety, the safety of the applicant, the safety of any other person or the safety of any property within the meaning of reg 39 of the School Education Regulations. 

122    In relation to the suspension of students, although the Behavioural Management in Schools Policy (Exhibit 1, document 26) provides that a student who is suspended from school prior to the end of the school day must not be permitted to leave the school grounds until an arrangement is made to get the student home, the respondent says that the terms of the policy do not give a teacher the right to physically restrain a student.  The respondent says a physical restraint of a student is only allowed in the specific set of circumstances which are provided in reg 39.  Although paragraph 4.2.7 of the Behavioural Management in Schools Policy enables physical restraint of a student, this provision closely reflects the wording of reg 39 and it is only physical restraint as a last resort which is authorised.  As to the suggestion that troublesome children somehow warrant more forceful discipline as a justification for the use of force, the respondent says that is obviously not the case as the use of unreasonable force can never be sanctioned.  Consequently, the respondent says that even if it is accepted that AS was kicking and slapping the applicant prior to the applicant taking any action to restrain AS, such action by AS did not constitute a risk or a physical safety to the applicant.  In any event the respondent says that the assertion by the applicant that AS was kicking and slapping him is not something that can be accepted as there is no reference in the handwritten notes to hitting or kicking.  There is only a reference to "bulldozing".  It is said that a distinction can be drawn between bulldozing and slapping, kicking or hitting.  The respondent says that Ms Mather was quite clear in her evidence that slapping, kicking, hitting was not put to her by the applicant in the initial conversation when she made the handwritten notes but was added as a detail in the Post-it note and attached to the incident report.  The respondent says the applicant ought to have provided this information at the time he gave that initial explanation, if in fact it had actually occurred. 

123    In relation to the conversations that the applicant had with Mr Carr, the applicant has given evidence that he did not want to discuss the incident in full detail with Mr Carr.  The respondent says this evidence should not be accepted as the applicant told Mr Carr, "Your recollection is not right", but he did not discuss the hitting and kicking by AS with Mr Carr. 

124    The respondent says that Mr Zaknich's evidence establishes that his inquiry constituted an objective search for the truth.  The finding of a breach of discipline should not be disturbed as it was based on sound reasoning and reached at the conclusion of a thorough and independent investigation.  The strong and unwavering evidence of Mr Zaknich was to the effect that he did not simply adopt the findings of Mr Skamp, but rather conducted his own fresh, independent inquiry which included re-interviewing all of the witnesses he could locate.  The only witness he was unable to locate and re-interview was KR. 

125    In relation to the evidence that Mr Zaknich did not have regard to Ms Mather's handwritten notes, the respondent points out that the applicant has not "taken ownership" of the handwritten notes and has sought to distance himself from the content or the lack of content of them.  In addition, the applicant had the opportunity to review the version of events contained in the incident report and he agreed the content to be correct with the exception of the addition of the matters in the Post-it note.  Consequently, the respondent says that the version of events in the incident report should be relied upon in these proceedings.  In addition, when the incident report is examined it is clear that there is simply a reference to the applicant heading AS and KR off and there is no suggestion of physical contact. 

126    In relation to the Browne report (Exhibit 1, document 23), the respondent says that the Browne report has little relevance to this particular disciplinary process. 

127    In relation to Ms Mather, there is no suggestion that she in anyway fudged the version of events or sought to do anything but her level best to record the events as put to her by the applicant and complete the incident report. 

128    In relation to penalty, the respondent says that the penalty imposed by the respondent was not unreasonable and that if the decision in relation to the breach of discipline is upheld then the penalty of a reprimand and a temporary reduction in monetary penalty for a period of six months should stand.

Conclusion

(a) Nature of hearing

129    In an appeal stricto sensu, the body hearing the appeal only considers whether the decision appealed was correct when given.  The law and facts which existed at the time the decision was made are considered and fresh evidence is not taken into account unless there is power to do (See the discussion in Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 (FC)).  In a hearing de novo the body hearing the appeal hears the matter anew.  In Marantelli SE The Australian Legal Dictionary (Melbourne: Hargreen Publishing, 1980), the learned author observed that in a hearing de novo the body:

must determine the legal position of the parties as at the date of the re-hearing and not as at the date of the original hearing.  It must therefore apply itself to the circumstances as they exist when the appeal is heard.  This means that the court may consider fresh evidence and any changes in the law which have taken place since the case was heard at first instance (Civil Procedure, "Appeals Stricto Sensu and Appeals by Way of Rehearing").

130    In Johnston v Mance Kenner C at [25]-[27] held:

25 Whilst s 78(2) does not refer to an "appeal" to the Commission, it seems plain enough from the language in the section as a whole, that it is concerned with challenges to a decision taken by the employer in relation to which the employee is "aggrieved".  Reference to "aggrieved" is made in s 78(1)(b) dealing with appeals to the Public Service Appeal Board, and also in ss 78(2)(b), (3) and (4) dealing with referrals to the Commission.  In my opinion, given the nature of the proceeding contemplated by s 78 of the PSMA, a matter referred to the Commission pursuant to s 78(2) by an aggrieved employee from one of the nominated decisions, is to be dealt with in the same manner as a matter referred under s 78(1) of the PSMA.  That is, I do not consider that such a proceeding ought to be regarded as an "appeal" in the strict sense, as that issue was discussed by the Full Bench in Milentis.  Nor is it the case in my opinion, that the Commission is limited to determining only the reasonableness of the employer's decision.

26 In other words, depending upon the nature of the challenge to the decision under review, such a proceeding may involve the Commission re-hearing the matter afresh or it may only be necessary to consider the decision taken by the employer "on such record of the proceedings below as comes up to it, supplemented or not by evidence": Ormsby.  It would seem to be the case therefore, that consistent with the reasoning of the Full Bench in Milentis, the decision of the employer is not to be totally disregarded in the Commission hearing and determining the matter.

27 Furthermore, it also seems to me that if the referral to the Commission pursuant to s 78(2) of the PSMA involves an allegation of harsh, oppressive or unfair dismissal, then, consistent with the referral of such a matter to the Commission pursuant to s  44 of the Act, s 23A should apply to such matters in terms of the relief to be granted.  Such a matter, although referred to the Commission under s 78(2) of the PSMA, would nonetheless constitute "a claim of harsh, oppressive or unfair dismissal" for the purposes of s 23A of the Act and any relief to be granted.  In my opinion, it would be incongruous if this were not to be the case, as claimants commencing proceedings under ss 29(1)(b)(i) and 44 would be entitled and limited to the remedies under s 23A if successful, whereas those under s 78(2) of the PSMA would not be so limited, for example, as to matters of compensation for loss and injury.  Given the scheme of the Act in relation to such matters, I do not think parliament could have intended such an outcome.  Different considerations may apply of course in cases where it is alleged that a dismissal was unlawful, for example, on the grounds of a failure by the employer to comply with a mandatory statutory requirement.

131    The grounds of appeal and the statement of claim seek only to review the decision made by the inquirer and the penalty imposed on the applicant on grounds of procedure or failing to take into account relevant considerations or taking into account irrelevant considerations.  None of the grounds directly raise the issue that when all relevant facts and circumstances are considered the applicant did not commit a breach of discipline.  In ground 12 of the Statement of Claim, the applicant specifically contends that the inquirer came to unreasonable conclusions on the basis of the material before him.  The submissions made on behalf of the applicant have been substantially directed as to whether the investigator, the inquirer and the respondent erred in law and in fact which is the basis of an appeal stricto sensu.  If this matter was truly heard de novo then any errors made by the decision makers would be irrelevant and it would not be necessary for the applicant to prove any error as the Commission would exercise its discretion without regard to any procedural error.

132    With respect I am not sure that the approach adopted by Kenner C is correct insofar as he concludes that matters referred to the Commission pursuant to s 78(2) of the PSMA, are not restricted to consideration of the reasonableness of the employer's conduct, but may review the employer's decision de novo.  The reason why I question this approach is that the nature of proceedings referred under s 78(2) requires a review of decisions made following the consideration of the conduct of an employee by an employing authority in respect of events that have past and require a consideration of circumstances that existed when that conduct occurred.  Notwithstanding my reservations about the analysis of Kenner C in respect of the nature of a hearing of a matter referred under s 78(2) of the PSMA, it is not necessary for me to conclusively express an opinion in respect of this matter as notwithstanding the statement made by the applicant's counsel at the outset of the hearing that the Commission should hear this matter de novo, the way in which the appeal has been in part conducted on behalf of the applicant has been to treat the appeal as an appeal stricto sensu, supplemented by oral evidence from the applicant.  No objection has been made on behalf of the respondent that the Commission should not have regard to the evidence given by the applicant in these proceedings.  Consequently, I intend to consider his oral evidence given in these proceedings together with the documentary evidential material collected by the respondent and oral evidence given by the respondent's witnesses.

(b) The decisions to investigate and to charge the applicant with a breach of discipline

133    A contention is put forward on behalf of the applicant that the respondent breached a rule of procedural fairness in making the decision to investigate the incident pursuant to s 81 of the PSMA as a suspected breach of discipline after the police had concluded the applicant had not committed a criminal offence.  With respect this contention is flawed.  Firstly, this is not an issue that goes to procedural fairness.  Secondly, the police investigation was concerned to identify a criminal offence or offences.  There is no rule of law which would operate as a bar to subsequent disciplinary proceedings where criminal charges are not proceeded with in respect of the same conduct (see Civil Service Association of Western Australia Inc v Director General of Department for Community Development (2002) 82 WAIG 2845).  In an email Detective Senior Constable Trevor Douglas (Exhibit A) discloses that after interviewing AS, KR, Mr Carr and Ms Mather, he (Detective Senior Constable Douglas) had regard to s 64(1)(e) of the School Education Act which provides that one of the functions of a teacher in a government school is to supervise students and to maintain proper order and discipline on their part; and reg 39 of the School Education Regulations.  Detective Senior Constable Douglas stated in the email that there is no instruction in the School Education Act itself that explains how s 64(1)(e) is to be executed.  Detective Senior Constable Douglas did not consider nor was it open for him to consider whether the applicant had committed a breach of discipline under the PSMA. 

(c) The Investigation

134    The investigation conducted by Mr Skamp resulted in a finding that the applicant had committed a minor breach of discipline.  This finding was cancelled by operation of s 85 of the PSMA.  However, it is conceded on behalf of the applicant any errors of fact or procedure are only relevant if repeated by the inquirer.  Consequently, it is only necessary to consider any errors if repeated.

(d) The inquiry

135    Whilst it is clear that the respondent breached the rules of procedural fairness in failing to provide the applicant a copy of Mr Zaknich's inquiry report prior to imposing a penalty for the breach of discipline, I do not agree that prior to making a finding that the applicant had committed a breach of discipline the respondent should have provided a copy of Mr Zaknich's report.  Pursuant to s 86(9) of the PSMA the respondent was required to accept Mr Zaknich's finding that the applicant had committed a breach of discipline.  Once Mr Zaknich finalized his report and had made his finding, that finding had to be accepted and can not be disturbed unless an appeal pursuant to s 78(2) of the PSMA is successful.  However, one of the grounds of appeal is that the applicant was denied procedural fairness because the inquirer failed to disclose relevant material and information to the applicant in such a manner that the applicant could properly respond.  Although the applicant's solicitors sought only to participate in the inquiry by answering a list of questions put by Mr Zaknich (Exhibit 1, documents 15, 16 and 17), it does not have to be established that the applicant and/or his solicitors would have taken up the opportunity to make submissions on the material before Mr Zaknich or made the best use of the witness statements, transcripts of witness interviews and other documents considered by Mr Zaknich (see the discussion in Health Services Union of Western Australia (Union of Workers) v Director General of Health (2008) 88 WAIG 543 at [114]-[122], [188]-[189] and [196].  Applied in The Department of Education and Training v Weygers (2009) 89 WAIG 267 at [103]).  The obligation to provide procedural fairness is as I stated in Weygers at [175]:

that except where issues of confidentiality arise information that is credible, relevant and significant to the decision should be disclosed (Kioa v West (1985) 159 CLR 550, Brennan J at 629).  What is credible, relevant and significant is not concerned with whether the information will ultimately be accepted by the decision maker as credible or the weight to be given to such information (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88).

136    Although I am satisfied that the inquirer breached the rules of procedural fairness in failing to provide to the applicant and/or his solicitors an opportunity to review this material, as the applicant's case has been put forward on the basis that it would be oppressive to quash the decisions and refer the matter back to commence a fresh inquiry, I intend to deal with the facts of this matter as I am satisfied that I have all relevant material before the Commission on which to make a decision whether the applicant committed a breach of discipline.

137    Another procedural issue raised by the applicant is that the inquiry conducted by Mr Zaknich was "tainted" because Mr Zaknich had at least one discussion with Mr Skamp.  I do not agree that in this matter it is open to make a finding that the discussion between Mr Zaknich and Mr Skamp undermined the independence of the inquiry.  Mr Zaknich testified that in his view the witness evidence considered by Mr Skamp was insufficient for him (Mr Zaknich) to make a finding.  Mr Zaknich also gave uncontradicted evidence that the one occasion he spoke to Mr Skamp was when he sought permission to return to Manjimup (Transcript p 128).  In addition although Mr Zaknich read Mr Skamp's report, statements and documents considered by Mr Skamp and transcripts of interview conducted by Mr Skamp it cannot be said that he did not conduct an independent inquiry or consider the matter afresh. 

138    I do not agree that Mr Zaknich erred in law in making a finding that the applicant had committed a serious breach of discipline.  Whilst at law pursuant to s 86(8) of the PSMA an inquirer is authorised only to make a finding that a breach of discipline was committed or that no breach of discipline was committed.  In fact he made no such finding.  His finding was that the applicant committed a breach of discipline (Exhibit 1, document 25, page 13).  The respondent was bound by this finding.  However, the respondent informed the applicant in a letter dated 17 September 2008 (Exhibit 1, document 18) that Mr Zaknich made a finding that he (the applicant) had committed a serious breach of discipline.  This statement is not correct as this was not the finding that was made.  However, in my opinion, it is open in any inquiry conducted under s 86 of the PSMA to characterise the facts and circumstances of a breach of discipline as conduct within a scale ranging from minor to very serious, as such a finding would be relevant to the imposition of a penalty under s 86(3) of the PSMA.  Whether the conduct of the applicant in committing the breach of discipline (if sustained), can be characterised as serious turns on not only the findings of fact in respect of the incident but also on Mr Zaknich's adverse findings of the credibility of the applicant's versions of events.

139    In relation to the submission that little weight should be given to Dr Hoar's report, given that the applicant does not dispute the fact that he restrained the applicant by grabbing her right arm, turning her and held her by her right wrist so that her hand was restrained behind her back whilst she struggled, it is difficult to see how this submission assists the applicant.  Dr Hoar's report states that AS described: her right arm having been twisted behind her back.  He then states that on examination he found tenderness of the "right supraspinatus muscle and tenderness of the posterior shoulder joint".  Clearly he described a minor injury consistent not only with what was described to him by AS but also the events as stated by the applicant in these proceedings.  In my opinion the submission that the Commission could draw an inference that AS hurt herself by climbing out of the window based on the applicant's evidence of the height of the window without any other evidence, is in my view speculative.

140    Mr Zaknich's findings must be examined together with the statements and records of interview considered by him but also:

(a) the notes made by Ms Mather (Exhibit 1, document 29);

(b) the letter from the applicant's solicitor to Mr Skamp dated 3 August 2007 (Exhibit 1, document 3); and

(c) the oral evidence given by Mr Zaknich.

141    One of the critical findings made by Mr Zaknich is that the applicant instigated the incident by taking hold of AS (Exhibit 1, document 25, page 10).  Part of this finding is the finding that the applicant made no mention of any physical action by AS in his first account to Ms Mather.  The accounts given by Ms Mather when considered in their totality do not, however, support this conclusion.  Although Ms Mather's statement to Mr Zaknich supports this finding, the accounts of what the applicant told her are not unequivocally consistent with this conclusion.  In her statement given to Mr Zaknich dated 30 May 2008, Ms Mather says:

During the time I spent with John AYLING I did not ask questions.  I took notes of what he said.

During the course of his explanation to me, at no time did he mention that AS had begun hitting him.

Resulting from that conversation and the notes I took, I prepared an Incident Report on the 5th April which I forwarded to District Office and Central Office.

Some time later, I think it was the following day, I presented John with a copy of the Incident Report.

He read it and said that it was correct.

After he had read the report he said he wanted to add a comment to the effect that when he resisted AS's attempt to get past him, she began hitting him.

I wrote the additional information on a "stick-it" poster which is now attached to the report.

At no time did John tell me that he had twisted AS's arm behind her back.

(Exhibit 1, document 25, pp 73-74)

142    In the record of interview with Mr Skamp taken sometime before September 2007, Ms Mather after reading from the incident report was asked about whether there was any variance in her personal notes and the incident report.  In reply she said:

I would have clarified certain things, I would imagine as I was typing it up.  These are fairly well as you can see they are pretty rushed notes.

(Exhibit 1, document 25, p 80)

143    Unfortunately Ms Mather does not say what she clarified and how she did that.  However she does say the notes were rushed.  Later in the interview she is asked about "AS has attended [sic] to push past him" and Ms Mather said, "He just simply said that she tried to push past him" (Exhibit 1, document 25, pp 87-88).  It was then put to her that what the applicant is effectively saying in the Post-it note is, "I actually got assaulted by her, which puts a completely different spiel on the whole thing" (Exhibit 1, document 25, p 88).  Ms Mather is then asked:

Do you have a particular view on, I guess once Mr Ayling has proof read your notes he's specifically stated that he was hit by AS, however in the initial conversation he failed to mention that?

(Exhibit 1, document 25, p 89)

144    Ms Mather importantly says in reply:

Well he may have mentioned that in this, and I've written it down.  Mr Ayling heeded [sic] them off and asked them to return to the room, AS pushed past Mr Ayling and Mr Ayling attempted to stop AS from leaving.  In my notes here, he's actually said AS tried to bulldozed [sic]in front of him starting to push through his arm.  John took hold of my arm, KR began…I missed that sentence there.  Dayle put her head out the door, John asked for assistance, AS stopped fighting and returned to the room.

(Exhibit 1, document 25, p 89)

145    There is then a discussion about when AS stops fighting.

146    In Ms Mather's notes she states:

students attempted to leave room.  When John appeared they began running.  John got in front of them.  Held hand out in front.

John asked them to go back into room.  AS tried to bulldoze in front of him.  Started pushing through his arm.

John took hold of arm.

KR began

147    Although mention was made of the handwritten notes in the interview Ms Mather participated in with Mr Skamp, Mr Zaknich did not review a copy of the notes or consider the contents of the notes which were discussed by Ms Mather in her interview with Mr Skamp.  In my opinion in light of the statements contained in the notes and the discussion of the content of those notes as set out above, the finding that the import of the applicant's statement to Ms Mather was that he instigated the incident by taking hold of AS cannot stand as it is equally open to find that what the applicant was saying to Ms Mather was that after he put his hand out, AS initiated physical contact with him (the applicant).  As to Ms Mather's evidence in these proceedings I did not find her evidence helpful as it is clear to me that her recollection of what the applicant told her was poor and in some respects incorrect.  In particular she said that she wrote down exactly what the applicant told her.  Yet that is not correct.  Her handwritten notes are not a complete record and contain incomplete sentences such as "KR began".

148    In Mr Zaknich's report (Exhibit 1, document 25, page 10) he also stated that even if the statement in the Post-it note is correct that when he resisted AS's attempt to get past him she began hitting him, there is a subsequent statement by the applicant which refutes this.  Although it is not entirely clear what statement Mr Zaknich is referring to, he appears to be referring to the discussion of the events the applicant had with Mr Carr and recanted to Mr Skamp and Mr Zaknich by Mr Carr.  When interviewed by Mr Zaknich on 30 May 2008, Mr Carr stated:

Several days after the incident John spoke to me about what happened on the veranda with AS.

He told me that he had the girl's arm behind her back, as he was feeling physically threatened by KR and needed to be able to see him and be in a position to defend himself.  At the same time he needed to restrain AS because he felt that the girl would leave the school grounds if he let her go.

He also felt that by restraining AS in this way, she would not hurt herself unless she physically struggled.

These were not the exact words John Spoke.  They are words to that effect.

(Exhibit 1, document 25, p 94)

149    When interviewed by Mr Skamp (Exhibit 1, document 25, p 102) Mr Carr in mid 2007 said after the incident:

I went to see him afterwards and I just said that was a bit hairy and, oh hold on, no, he came to see me and thank you for my support and basically he did that and at that stage, you know, basically I just was saying well you know was a good thing that that's over.  I mean it was an unpleasant situation with students.

KS Did he tell you what happened?

JC He indicated to me that basically that my recollection was not accurate.

KS So what do you mean by that?

JC He said he was holding, he was actually, he said that he was holding the girl and that he was feeling extremely threatened by the boy.  Now I take his word for it, but I can't say that he was, the kids were definitely agitated, but I definitely didn't see physical threatening behaviour by the boy or the girl.  They were resisting.

KS Verbally you mean?  Verballing resisting?

JC Yeah

KS Yeah

JC Yeah I mean, you know it's already seen, maybe my eye sights [sic] not perfect anymore but this, yeah all I can say is yes they were verbally resisting and John was trying to keep them as calm as he could.

150    Importantly Mr Carr was later asked by Mr Skamp:

When you spoke with Mr Ayling afterwards, did he discuss with you in any detail the lead up prior to what you saw?

JC Only that he felt threatened and that because he was feeling that the boy was physically threatening him and that he had to turn away from the girl that he did have hold of the girl, but yeah I really you know, I don't know anything about the situation that lead up to it.  I haven't discussed yeah, I haven't discussed with John.  Yeah I don't know about what actually lead [sic] to them being at the door there.

(Exhibit 1, document 25, p 103)

151    When regard is had to these extracts from the interviews it is clear that Mr Carr did not discuss the incident in its entirety with the applicant.  In particular it is open to infer from the statements made by Mr Carr that what was discussed was what occurred from the time the applicant restrained AS. 

152    Mr Zaknich also makes the finding that the applicant's final version of events (contained in a letter from his solicitor dated 1 July 2008) in which he states, "Immediately before taking hold of AS's right wrist, AS had attacked me by kicking at my left leg and slapping at my left arm with both her hands" is at odds with the statements he made to Ms Mather and Mr Carr.  For the reasons set out above, this finding is not based on unequivocal facts and in my view cannot be sustained (Exhibit 1, document 25, p 146).

153    Consequently the finding that the version of events stated in the letter dated 1 July 2008 has the ring of "recent invention" can also not be sustained.

154    It may, however, have been open to Mr Zaknich to reject the applicant's version of events as recounted to Ms Mather and Mr Carr on the basis that he preferred the accounts given by AS and KR.  Mr Zaknich did not embark upon such an analysis.  He did, however, make a finding that AS's evidence is credible and consistent and her account was corroborated by Ms Riley and KR (Exhibit 1, document 25, page 8).  This finding was however confined to the finding of fact that "the applicant grabbed AS by the wrist and subsequently twisted that arm behind her back then restrained her against a wall" (Exhibit 1, document 25, page 9).  It is not in dispute in these proceedings that the applicant grabbed AS by the wrist and subsequently twisted that arm behind her back and restrained her while she struggled.  It is in dispute whether he restrained AS against a wall.  However, whether that occurred or not during the incident is in my view not material as the fundamental issue is whether the actions of the applicant were authorised by reg 39 goes to why the applicant took action to restrain AS.  For the same reason it is also immaterial whether the applicant had the same hold of AS when Mr Carr came onto the scene prior to Mr Carr seeing them.

155    Although Mr Zaknich made a finding that KR's version of events corroborated the versions given by AS, there is one matter in which their statements are so inconsistent it could not be attributed to differences in perception of events.  AS was asked by Mr Skamp whether during the incident she swore at the applicant and she said, "No." (Exhibit 1, document 25, p 33)  KR however when asked whether there was any swearing, readily stated he and AS swore at the applicant (Exhibit 1, document 25, p 116).  Further, it is clear from what he said that they both persistently swore at the applicant throughout the incident.

156    The applicant contends that if it is accepted that AS instigated the physical contact by kicking the applicant's leg and slapping at this left arm with both her hands, that when regard is had to the evidence given by the applicant in these proceedings the Commission should find that the applicant's actions were authorised by the provision of the School Education Act and the repealed reg 39 of the School Education Regulations.  Pursuant to s 64(1)(e) of the School Education Act it is a function of a teacher to "supervise students and to maintain proper order and discipline on their part".  When the incident in question occurred reg 39(1) prescribed that a teacher could physically restrain a student in circumstances where the student acts in a manner which places at risk the safety of the student or any other person or any property.  Clause 4.2.7 of the Behaviour Management in Schools Policy (effective 1 July 2001) provided at the time the incident occurred that:

As a last resort, students can be physically restrained in response to spontaneous, potentially harmful behaviour that places at risk the physical safety of the student, other students, school staff, any other person or to threatens damage to property.

Following a situation in which a student has been physically restrained the parents must be informed and the incident recorded.

(Exhibit 1, document 26)

157    Whilst the terms of the policy cannot confine the scope of reg 39(1) it does contemplate that action can be taken to restrain a student in response to potentially harmful behaviour.  Such behaviour must however constitute a risk to the safety of the student or another person or property.  It is clear from the express terms of reg 39(1) that when considering whether an act placed at risk the safety of a student, any other person or any property, the test is objective and not subjective.  It is not whether the applicant believed his safety or the safety of AS was at risk but whether a reasonable person in all the circumstances would consider whether there was a risk to the safety of the applicant, AS or KR.  The applicant has given evidence that he was concerned for the safety of AS if she was to leave school and that is why he ran in front of AS and KR, placed his arm adjacent to the wall to stop her from running past him.  Whilst this is not an issue considered by the investigator or the inquirer, I do not accept that by attempting to run past the applicant AS's safety was placed at risk.  An act which is a risk to a person's safety is an act which creates a situation of potential danger to the health and safety to the person's safety.  The concept of "risk" conveys the possibility of danger rather than actual danger (see R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 at 1177).  AS and KR were at that point in time not running out of the school into the street.  They were running from the front office inside the main school grounds to a classroom where AS had left her bag.  Consequently it can be inferred that they were not intending immediately to leave the school.  Further, although the applicant stated that he did not want AS to race out of the school in an emotionally distraught state there is no evidence that she was emotionally distraught prior to the applicant restraining her.  As to KR there is no evidence that KR was threatening to punch the applicant before the applicant restrained AS.

158    I also do not accept that when AS began kicking the applicant in the leg and slapping him with her arms prior to him taking hold of her by the arm that the applicant's safety was placed at risk.  It is not in dispute that AS, at the time of the incident, was 17 years old and a very small person and the applicant is a very tall mature adult.  Although a submission has been made on his behalf that the applicant was defending himself, the applicant did not give evidence that he felt threatened by AS.  His evidence was that after he restrained AS he felt threatened by KR as KR began to "shape up to him".  Whilst it could be said at that point the applicant's safety was under threat, the threat did not arise until after the applicant had taken physical action to restrain AS.  Whilst it was a finding made by the Browne review that the interpretation of the "physical action" aspect of reg 39 is not clear, no submission has been made in these proceedings as to why such a finding was made.  The fact that the applicant took physical action against AS is not in dispute.  Perhaps in other matters whether a teacher had taken action there may have been a debate about whether "physical action" had occurred.

159    For these reasons I do not agree that the decision that the applicant committed a breach of discipline should be quashed as the actions of the applicant were not authorised by reg 39(1) of the School Education Regulations.  I have come to this conclusion based solely on the evidence given by the applicant in these proceedings and without regard to the written statements of evidence and transcripts of evidence given by AS, KR, Ms Riley and Mr Carr.  However even if I was to have regard to those documents I would make the same finding.

(e) Penalty

160    As set out above the findings made by Mr Zaknich that the applicant's explanations were not credible cannot stand.  The applicant had a right to remain silent (see Police Service Board v Morris and Martin).  He chose not to do so.  Unfortunately he did not provide a proper account of the incident at anytime prior to giving evidence in these proceedings.  It is clear from the evidence given by Ms Mather that when making her handwritten notes she was rushed.  Those notes are not complete and the written incident report does not accurately reflect all that was in the notes.  The initial letter sent by the applicant's solicitor (Exhibit 1, document 3) simply makes a bare statement that AS attacked the applicant and that the applicant made minimal contact required in order to restrain the student.  Although it is contended that the applicant's actions were reasonable and justified no information was provided as to the facts on which such a conclusion could have been drawn.  In addition, although the written answers provided to Mr Zaknich by the applicant's solicitors dated 1 July 2008 (Exhibit 1, document 25, appendix 16) state the reasons for using restraint, this explanation was inadequate as reg 39 only authorised physical action to prevent or restrain a student from acting in a manner which places at risk the safety of that student, another person or property.  The explanation given by the applicant through his solicitors did not address this fundamental issue.

161    The fact that the applicant provided an inadequate explanation in relation to the incident following his waiver to the right to remain silent cannot be considered when assessing what is an appropriate penalty for the breach of discipline.  The applicant's responses were made on advice from his solicitors and he can not be personally criticized or required to account for that advice.

162    It is clearly apparent from the evidence given by Mr O'Connor that the respondent regarded the applicant's actions as a serious breach of discipline because of the findings made by Mr Zaknich that the applicant had not provided a truthful account of his actions.  It was conceded by Mr O'Connor that if findings about the applicant's truthfulness fell away that an appropriate penalty for the breach of discipline in line with the recommendation made by Mr Skamp would be appropriate.

163    It is argued however on behalf of the applicant that no penalty should be imposed as where a breach of discipline is found to be proven s 86(3)(b) of the PSMA the imposition of a penalty is discretionary.  Section 86(3) provides:

(3) Subject to section 89, if a respondent admits a charge under subsection (2) and the employing authority finds the charge to be proved, the employing authority — 

(a) shall, if the charge is a charge of committing a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent; or

(b) may — 

(i) reprimand the respondent;

(ii) transfer the respondent to another public sector body with the consent of the employing authority of that public sector body or, if the respondent is an employee other than a chief executive officer or chief employee, transfer him or her to another office, post or position in the public sector body in which he or she is currently employed;

(iii) impose on the respondent a fine not exceeding an amount equal to the amount of remuneration received by the respondent in respect of the period of 5 days during which he or she was at work as an employee immediately before the day on which the finding of a breach of discipline was made;

(iv) reduce the monetary remuneration of the respondent;

(v) reduce the level of classification of the respondent; or

(vi) dismiss the respondent,

or, except when the respondent is dismissed under subparagraph (vi), take action under any 2 or more of the subparagraphs of this paragraph.

164    Section 56 of the Interpretation Act 1984 provides:

(1) Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.

(2) Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.

165    It can be inferred by the use of the word "shall" in s 86(3)(a) when contrasted against the word "may" in s 86(3)(b) that if an employee is found to have breached a lawful order the employing authority is obligated to dismiss the employee.  However, does the word "may" in s 86(3)(b) simply create the authority to impose one or more of a number of penalties whereby the discretion conferred is only to exercise a choice between one or more of the penalties having considered all of the relevant facts and circumstances of the breach of discipline?

166    The nature of the penalties set out in s 86(3)(b)(ii), (iii), (iv) and (v) are created by statute and not by common law.  At common law an employer is not able to suspend a contractual right (see the discussion in Sappideen, O'Grady and Warburton, Macken's Law of Employment (6th ed, 2008) at [6.05]).

167    In this matter, whilst there is a power at common law to dismiss for a repudiatory breach of contract by an employee and an employer may in an appropriate case reprimand an employee, a reprimand does not constitute the alteration of contractual rights and duties.  However the remainder of the penalties created by s 86(3)(b) are creatures of statute.  Does that mean that by vesting power in an employing authority to impose statutory penalties is the power required to be exercised?

168    In Re Dunsborough Districts Country Club Inc (1982) WAR 321, Olney J at 329 considered the predecessor to s 56 of the Interpretation Act and observed:

This provision must be read subject to the limitation contained in s 3 of the same statute, which makes the intention and object of the Act being construed paramount.  These provisions are a restatement of the common law and are no assistance in discerning the intention and object of the relevant statute.  That the word "may" when associated with the grant of a power can in some contexts be construed as mandatory is well established by authority (see Julius v Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v FC of T (1971) 45 ALJR 615, per Owen J at 619; Re M (1924) 26 WALR 115).  In the words of Lord Cairns in Julius v Bishop of Oxford (at 225): "… where a power is deposited with a public officer for the purposes of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised."  But it is for the person who asserts that "may" has been used in a mandatory sense to show as a matter of construction of the Act taken as a whole that the word was intended to have such a meaning (Ex parte Gleeson [1907] VLR 368, per Cussen J at 373; Ward v Williams (1955) 92 CLR 496 at 505).

169    Section 86(3)(b) of the PSMA must be read together with s 86(8)(a) and s 86(9)(b)(ii) and (iii) of the PSMA.  Section 86(8)(a) and s 86(9)(b)(ii) and (iii) provide:

(8) If a directed person finds at the conclusion of a disciplinary inquiry that — 

(a) a breach of discipline was committed by the respondent, the directed person shall submit that finding to the employing authority and recommend to the employing authority that it act in relation to the respondent under subsection (3) as if the respondent had admitted the charge under subsection (2); or

…

(9) On receiving a finding and recommendation under subsection (8), the employing authority shall — 

…

(b) in the case of a recommendation made under — 

…

(ii) subsection (8)(a) in relation to a charge other than a charge referred to in subparagraph (i), accept that recommendation and act accordingly in relation to the respondent, or decline to accept that recommendation and take such other action in relation to the respondent as could have been recommended under that subsection; or

(iii) subsection (8)(b), accept that recommendation and act accordingly in relation to the respondent.

170    Whilst s 86(3)(b) provides a list of penalties which could be said to be a list from which an employing authority may impose in its discretion, s 86(9)(b)(ii) and (iii) provides a precondition that an employing authority "shall" accept a recommendation made by the inquirer under s 86(3) (in respect of penalty) or decline to accept the recommendation and take other action under s 86(3).

171    When regard is had to use of the word "shall' in s 86(9) it can be inferred that the grant of power in s 86(3) is mandatory.  However it is not necessary to conclusively decide this point as in my opinion the facts and circumstances of the breach of discipline can not be said to be a technical breach, trivial or so minor so as not to warrant the imposition of a penalty.  The applicant restrained AS in an "arm lock" which caused AS to struggle during which she sustained a minor injury to her shoulder in circumstances where the applicant was not authorised to take steps to restrain her.  Consequently, I am of the opinion that the penalty of a reprimand and a fine of one day's pay recommended by the investigator Mr Skamp should be imposed.  I am of this view for two reasons.  Firstly, whilst I recognise that the task of a teacher to maintain discipline in a school is difficult, the right to restrain a student is not without limit and the action taken by the applicant on the day in question was improper and warrants more than the imposition of a reprimand.  Secondly, in light of the concession on behalf of the respondent by Mr O'Connor that if the findings about the truthfulness of the applicant about the incident fall away then the recommendation made by Mr Skamp would be an appropriate disposition, I am of the opinion that a fine of one day's pay should also be imposed.

172    For the reasons set out above I will make an order that insofar as the appeal is against the decision made by the respondent:

(1) Pursuant to s 86(8)(a) and s 86(9)(a) that the applicant committed a breach of discipline, that part of the appeal is dismissed;

(2) Pursuant to s 86(3)(b)(i) that the applicant be reprimanded, that part of the appeal is dismissed; and

(3) Pursuant to s 86(3)(b)(iv) to reduce the applicant's monetary remuneration, that part of the appeal is upheld and the decision is varied by imposing on the applicant a fine equal to the amount of remuneration received by the applicant in respect of the last day during which he was at work as an employee before the day on which the finding of a breach of discipline was made by the inquirer.