DISPUTE RE DISCIPLINARY PROCEDURE CONCERNING UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00127

DELIVERED : Wednesday, 7 March 2012

FILE NO. : CR 30 OF 2011

Applicant

AND

The Director General, Department of Education

Respondent

CatchWords : Reprimand imposed on a teacher - Principles of natural justice reasonable - Alleged misconduct - Disciplinary process - Was the investigation and inquiry reasonable in the circumstances

Legislation : s 44 Industrial Relations Act 1979

  Part 3, Div 5, s 64(a), s 78, s 80, s 81, s 81(2), s 83, s 84, s 85, s 86, s 86(3) Public Sector Management Act 1994

  s 3, s 64, s 64(2), s 64(3), s 233, s 235(1)(b), s 236(2), s 237(d), s 240 School Education Act 1999

  reg 38 School Education Regulations 2000

  s 58 Interpretation Act 1984

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr M Amati

Respondent : Mr D Matthews (of counsel)

Case(s) referred to in reasons:

Briginshaw v Briginshaw (1938) 60 CLR 336

Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241

George v Rockett (1990) 170 CLR 104

Ireland v The Director General, Department of Health [2008] WAIRC 00297; (2008) 88 WAIG 489

Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553

Jose Rodriguez v Parks Industries Pty Ltd [2003] WAIRC 08443; (2003) 83 WAIG 1395

Paton v Sydney Press Club 47 WN NSW (NSW) 57</Citation>

The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australian Branch and Another v PCH Group Pty Ltd and Others [2005] WAIRC 02863; (2005) 85 WAIG 3884

The State School Teachers’ Union of W.A. (Incorporated) v Paul Albert, Director General, Department of Education and Training, [2007] WAIRC 00020; (2007) 87 WAIG 256

Reasons for Decision

1          The current matter is an application referred pursuant to s 44 of the Industrial Relations Act 1979 (WA) (the Act) by The State School Teachers' Union of WA (Incorporated) (the applicant union) on behalf of its member Ms Stephanie Scott, a teacher employed by the Director General, Department of Education (the respondent) and located at Three Springs Primary School in the mid west region of Western Australia.

2          Conciliation proceedings did not resolve the dispute and accordingly the matter was referred for hearing and determination as follows: 

1. This matter is referred pursuant to s 44 of the Industrial Relations Act 1979 (the Act) to the Western Australian Industrial Relations Commission (the Commission) by The State School Teachers' Union of WA (Incorporated) (the applicant), on behalf of its member, Ms Scott, a teacher employed by the Director General, Department of Education (the respondent) and located at Three Springs Primary School in the mid west region. 

2. The substantive issue for determination in these proceedings is whether the respondent’s decision to reprimand Ms Scott was reasonable in the circumstances.

3. A further issue relating to the aforementioned issue is whether the respondent can demonstrate that insofar as was within its power, before reprimanding Ms Scott, it conducted as full and as extensive as possible an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.  The respondent must be able to demonstrate it gave Ms Scott every reasonable opportunity and sufficient time to answer all allegations and whether it afforded the applicant’s member, natural justice and procedural fairness.

4. The respondent asserts it honestly and genuinely believed there were reasonable grounds to sustain the belief based on the information available at the time that Ms Scott was guilty of the misconduct as alleged. The respondent will need to demonstrate that it took into account any mitigating circumstances either associated with the misconduct or alternatively, Ms Scott’s work record, and, having taken such matters into account, that the alleged misconduct justified a reprimand.

5. The applicant submits that the disciplinary process has not been conducted in accordance with the relevant statutory provisions, and further that the respondent failed to give adequate consideration to the statutory provision that authorises a teacher to interact with a student in certain circumstances having regard to reg 38 of the School Education Regulations 2000.  Further, the respondent merely relied on a vague and poorly characterised notion of Ms Scott’s behaviour in order to ground its reprimands against her.

6. The applicant seeks a declaration that the disciplinary process, its findings and recommendations are null and void and of no effect and seeks an order to conclude that the respondent’s decision to reprimand Ms Scott on 23 March 2011 be quashed and any other order considered relevant be issued.

7. The respondent denies that the investigation or enquiry were flawed and further says that, if flaws are identified, they are not serious enough to cause the Commission to intervene to quash the respondent’s finding that misconduct has occurred.  The respondent denies that the grounds were unreasonable for believing that Ms Scott was guilty of misconduct and denies that a reprimand was outside the scope of proper dispositions of the matter.

3          The respondent denies that the investigation or inquiry were flawed and further says that, if flaws are identified, they are not serious enough to cause the Western Australian Industrial Relations Commission (the Commission) to intervene to overturn the respondent's finding that misconduct has occurred.  The respondent submits that the grounds were reasonable, believing that Ms Scott was guilty of misconduct and submits that the reprimand as given, was within the scope of s 83 of the Public Sector Management Act 1994 (WA) (PSMA) (prior to the amendments of 17 September 2009). 

4          The disciplinary process relating to a number of children and subsequent reprimand relating only to Ivy Weir issued by the respondent related to a series of incidents at the Three Springs Primary School November 2009.  Although there was some conjecture as to the correct date of the Ivy Weir incident (the respondent repeatedly identified the wrong date from the outset right through to the reprimand issued by the Director General in 2011).  It is the Commission’s view that such an error whilst unfortunate, can be identified as one of administrative oversight as it was apparent to Ms Scott, the applicant union and the respondent as to the day in question being referred to. 

First Preliminary Issue

5          The applicant union submitted at the outset of the hearing that the matter ought to proceed on the basis of the Commission considering the issue as a hearing de novo.  The applicant union relied on the decision of Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553.  Commissioner Kenner in those reasons considered:

Therefore, matters referred to the Commission pursuant to s 78(2) of the PSMA are not restricted to consideration by the Commission of the reasonableness of the employer's conduct, but the Commission may review the employer's decision de novo, as the circumstances warrant and determine the matter afresh and substitute its own decision for the employer's decision if that is appropriate.

6          The respondent opposed the matter being heard as a hearing de novo.  If the hearing was turning on the reasonableness of the respondent’s decision then clearly the applicant union’s view as to inadequacies in the investigation were indeed relevant.  Counsel for the respondent submitted that to proceed on the basis of a hearing de novo would mean children and teachers would need to be called to give evidence afresh and the applicant's member would be thoroughly questioned on the matters leading up to the disciplinary investigation and inquiry.  The respondent submitted this was not an appeal pursuant to s 78 of the PSMA but was a matter referred by a union pursuant to s 44 of the Act and therefore Johnston did not apply.

7          The Commission issued a preliminary view that in considering matters such as those referred pursuant to s 44 of the Act such matters are not to be heard as a hearing de novo.  The parties were advised that the Commission’s written reasons would be issued at a later date.  However critical to this issue is that the incident(s) alluded to refer to children and their associated evidence.  What is critical is to ensure the applicant's member is dealt with fairly and in a just manner, particularly with regard to natural justice.  Additionally the Commission needs to appraise itself of the facts surrounding the circumstances of the day in question.  To that extent I rely on the transcript submitted in evidence, the evidence of the witnesses and the correspondence exchanged between the respondent and the applicant's member. 

8          As indicated in the hearing this is not a hearing de novo pursuant to s 78 of the PSMA where the children and adults were investigated in the inquiry and investigation.  What is important is the memorandum of matters as referred for hearing and determination pursuant to s 44 of the Act:

Whether the respondent’s decision to reprimand Ms Scott was reasonable in the circumstances.

The further issue relating to the aforementioned issued is whether the respondent can demonstrate that insofar as within its power, before reprimanding Ms Scott, it conducted as full and as extensive as possible an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.  The respondent must be able to demonstrate it gave Ms Scott every reasonable opportunity and sufficient time to answer all allegations and whether it afforded the applicant’s member natural justice and procedural fairness.

The respondent asserts it honestly and genuinely believe there were reasonable grounds to sustain the belief based on the information available at the time that Ms Scott was guilty of the misconduct as alleged.  The respondent will need to demonstrate that it took into account any mitigating circumstances either associated with the misconduct or alternatively Ms Scott’s work record, and, having taken such matters into account, that the alleged misconduct justified a reprimand.

Second Preliminary Issue

9          In these proceedings the applicant union sought a declaration that the disciplinary process, its findings and recommendations be declared null and void and of no effect and sought an order to conclude that the respondent’s decision to reprimand Ms Scott on 23 March 2011 be quashed and any other order considered relevant be issued by the Commission.

10       The respondent denied that the investigation or inquiry were flawed and further declared that, if flaws were identified, such flaws were not serious enough to cause the Commission to intervene and overturn the respondent's finding that misconduct had occurred.  The respondent denied that the grounds were unreasonable for believing that Ms Scott was guilty of misconduct and denied that the reprimand as given was outside the scope of the proper nature of the matter.

11       The applicant's request was denied and the parties advised the reasons would issue later.  It is the Commission's view that the issue of procedural fairness was of particular relevance in the substantive proceedings as referred as to whether the respondent had proceeded in a fair and just manner an issue that had yet to be heard.  Accordingly, the parties were directed to proceed.

Background

12       Under the PSMA a legislative framework existed in Western Australia which, amongst other things provided for the administration of the public sector of Western Australia and the management of the public service and of public sector employment.  Relevant to the matters before the Commission, the PSMA included a procedure for bringing breaches of discipline against public sector employees, including teachers.

13       On 14 December 2009 the respondent wrote to Ms Scott setting out six allegations of breaches of discipline.  Ms Scott responded by correspondence of 27 December 2009 pointing out that this was the first time allegations had been made against her in her 35 years as a teacher [45]. 

14       Ms Scott pleaded not guilty to the charges.  The matter then progressed to the Director of Standards and Integrity who was delegated by the Director General of the respondent to make the decision as to whether the matter ought be progressed into an investigation.  The Director General determined an investigation ought be conducted into the six allegations.  The respondent then initiated an investigation pursuant to s 81(2) of the PSMA into the suspected breaches of discipline.  Two further allegations were made of physical contact, one from Corey Smith and the other from Zac Webb.  On 23 February 2010 Ms Scott was advised of these two further allegations and that given the nature of these new allegations the respondent issued Ms Scott with an order to leave the school premise pursuant to s 240 of the School Education Act 1999 (WA).  On 24 February 2010 Ms Scott was served with a proposed order to leave the school premises:

240. Employee may be ordered to leave school premises

(1) If the chief executive officer suspects — 

(a) that a person employed at the premises of a government school may have committed a breach of discipline as referred to in section 80 of the PSMA (whether or not that section applies to the person); and

(b) that the continued presence of the person on the school premises constitutes a risk to the safety or welfare of students on the premises,

the chief executive officer may, by order in writing given to the person, require him or her to leave the school premises and remain away — 

(c) until — 

(i) in the case of a member of the wages staff, any relevant procedures have been followed; or

(ii) in the case of a suspected breach of discipline dealt with under Part 5 of the PSMA — a decision is made under section 81(1)(b), 82A(2) or (3) or 88 of the PSMA; or

(d) until the order is sooner revoked.

(2) The chief executive officer is to ensure that written reasons for issuing an order under subsection (1) are provided with the order.

(3) A person must comply with an order given to him or her under subsection (1).

Penalty: $5 000.

(4) The power conferred by this section is in addition to the powers in Part 5 of the PSMA.

15       On 5 March 2010 Ms Scott further responded denying the two further allegations made against her.  Ms Scott also made submissions against the foreshadowed intention to recommend issuing an order for her to leave the school premises.  Ms Scott contended that she had never used any physical force and had not ‘hit’ any student.  If any other contact had occurred she may have lightly tapped some students on the head with her fingers to get their attention.  In her submissions Ms Scott pointed out her unblemished record and contended that her presence at the school did not pose any potential risk to the safety and welfare of the students entrusted in her care and supervision.  Ms Scott drew the respondent’s attention to the lack of confidentiality in regards to her having become the subject of allegations and considering it within the parochial aspects of Three Springs, as a small and somewhat isolated town, it had given rise to a ‘mob mentality’ amongst members of the parent population and possibly some school staff.

16       In a letter of 18 March 2010 the respondent advised Ms Scott that given the nature of the allegations it was believed it was inappropriate for her to remain at school during the disciplinary process and accordingly ordered her to leave the Three Springs Primary School and remain away until further notice.  While subject to this order Ms Scott was to continue to be employed in the role of teacher and would be required to work flexible hours totalling 75 hours per fortnight between the hours of 8.00 am and 5.00 pm.  Ms Scott would not be required to work during gazetted school vacation periods:

While you are subject to this Order, you will continue to be employed in the role of Teacher.  You will be required to work flexible hours totalling 75 hours per fortnight between the hours of 8 am and 5 pm.  You will not be required to work during gazetted school vacation periods.

(R1, tab 16)

17       Mr Paul Broadbent, Senior Investigator, Standards and Integrity was appointed by Mr Eamon Ryan, Director, Standards and Integrity to conduct the investigation into the six initial allegations and the two subsequent allegations made against Ms Scott.  The subject of the investigation was allegation 1 made by Tamara Dalgetty, allegation 2 made by Justin Dodd, allegations 3, 4 and 5 made by Michael Metsemakers, allegation 6 made by Ivy Weir, allegation 7 made by Corey Smith and allegation 8 made by Zac Webb.

18       On 11 May 2010 Ms Scott was advised by letter by Ms Sharon O’Neil, Director General of the respondent that the investigation had been completed and the applicant’s member was informed of the findings.  The Director General said:

After considering all the material before me I have determined on the balance of probabilities that the following alleged breaches of discipline have not been established and therefore will be taking no further action in regard to those matters.

(R1, tab 22)

19       This reference related to the allegations made by Justin Dodd, Corey Smith, Zac Webb and two of the allegations made by Michael Metsemakers.  With respect to the allegation made by Tamara Dalgetty, one of the allegations made by Michael Metsemakers and the allegation by Ivy Weir misconduct was found.  Ms Scott was charged in accordance with s 83(1)(b) of the PSMA of committing serious breaches of discipline.  In accordance with s 86(1)(c) of the PSMA Ms Scott was given the opportunity to respond within 10 days.  Ms Scott’s response denying the charges was received by the respondent on 27 May 2010.

20       In essence there remained three charges.  On 28 May 2010 Mr Broadbent wrote to Mr Ryan proposing the matter in relation to Ms Scott progress to the next stage.  On 21 June 2010 the Director General wrote to Ms Scott advising her that it had been established that she no longer represented a significant risk to the safety and welfare of children at school and therefore the s 240 order no longer applied.  The order that had been issued pursuant to s 240 of the School Education Act 1999 was therefore revoked. 

21       The respondent progressed the matter to the next stage – pursuant to Part 5, Division 3 of the PSMA.  Ms Scott was advised by letter of 20 July 2010 that the matter would become the subject of a disciplinary inquiry pursuant to s 86(4)(a) of the PSMA and that Mr Ian Edwards had been appointed to conduct the inquiry.  The inquiry was to deal with the allegations of Tamara Dalgetty, Michael Metsemakers and Ivy Weir.

22       The inquirer (Mr Ian Edwards) found that Ms Scott had not committed a breach of discipline with respect to charges relating to Tamara Dalgetty and Michael Metsemakers.  With respect to the charge relating to Ivy Weir the inquirer found Ms Scott had committed a breach of discipline. 

23       In his report in analysing the actions of Ms Scott with respect to Ivy Weir Mr Edwards found it necessary to assess the available evidence against two tests:

Did Ms Scott hit Ivy Weir on the head with her hand?

If so, was the degree of force used unreasonable or unnecessary to manage the student.

24       Mr Edwards found the evidence obtained demonstrated that Ms Scott made intentional physical contact between her hand and Ivy Weir’s head.  Whilst there was a dispute as to the degree of force used Mr Edwards found that an amount of force was exerted by Ms Scott towards Ivy Weir.  Further, Mr Edwards gave evidence he found there was no evidence to show that the degree of force used was reasonable or necessary to manage Ivy Weir or to maintain or re-establish order. Mr Edwards recommended that an appropriate sanction was a reprimand.  Before imposing the sanction Ms Scott was provided with an opportunity to submit written reasons as to why the respondent should not take the proposed course of action. 

25       Mr Ryan in evidence stated he thought a reprimand was appropriate in relation to the circumstances given that a student had been tapped on the head. 

I thought it was demeaning, I thought it was unreasonable, I thought it was intimidatory, condescending, and I didn’t think it was the professional way in which a teacher in a position of authority over a student should – should contact – should interact with that student.

(ts 148)

26       On 8 October 2010 Ms Scott was sent a copy of the draft report.  Ms Scott was provided with an opportunity to make a comment or submissions concerning any of the evidence, the inquiry process or the findings.  On 19 November 2010 Mr Amati on behalf of Ms Scott provided a response.  Mr Amati submitted that the inquiry had failed to prove the charge to the required reasonable level and therefore Ms Scott’s action toward Ivy Weir could not be deemed to represent misconduct and thereby no breach of discipline had been committed by Ms Scott.  Mr Amati submitted the charge be struck out.

27       On 6 January 2011 Mr John Leaf, the Acting Director General wrote to Ms Scott informing her that he had received Mr Edwards’ report and having considered the report and the submission made by Mr Amati on behalf of Ms Scott had accepted its recommendation.  Mr Leaf determined to impose a sanction of a reprimand against Ms Scott.  The letter provided Ms Scott with the opportunity to submit written reasons why he should not take the proposed course of action.  

28       Ms Scott responded by letter dated 20 January 2011 confirming her position consistent with submissions she made on 19 November 2010 that she did not agree with the penalty imposed. 

Applicant

29       At the outset of the hearing the applicant union submitted the respondent had failed to provide Ms Scott with every reasonable opportunity or sufficient time to answer all allegations made against her in her capacity as a teacher therefore Ms Scott was denied natural justice and procedural fairness.  In considering this issue the applicant union has had regard for the process, the timing of the process and in particular the extenuating circumstances relating to the applicant's member. 

30       Also relevant is the applicant union’s interpretation of the provisions relating to reg 38 of the School Education Regulations 2000 (WA) (the Regulations) as to whether it is appropriate at all to touch a child on the head. 

38. Supervision of students, restraint of persons: s. 119(2)(f), 123(1) and 244(1)

  A member of staff of a government school may, in the performance of the person’s functions, take such action, including physical contact with a student or a student’s property, as is reasonable —

(a) to manage or care for a student; or

(b) to maintain or re‑establish order; or

(c) to prevent or restrain a person from —

(i) placing at risk the safety of any person; or

(ii) damaging any property.

31       The applicant union submits that the disciplinary process was not conducted in accordance with the relevant statutory provisions.  Further, the respondent failed to give adequate consideration to the provision that authorises a teacher to interact with a student in certain circumstances having regard to reg 38 of the Regulations.  The applicant union asserts the respondent merely relied on a vague and poorly characterised notion of Ms Scott’s behaviour in order to ground the reprimand against her.

32       The question for the Commission to consider were such errors significant enough to overturn the disciplinary warning made against Ms Scott in April 2010 (allegation 6) by the respondent. 

33       Ms Scott is currently employed by the Department of Education and has been, since 1972 a qualified teacher.  Ms Scott’s employment includes some 35 years’ experience including:

(1) Roebourne Primary School;

(2) Wyndham District High School (primary school classroom teacher);

(3) Bellevue Primary School (2 years); 

(4) Singapore multi-national school – teaching English and other languages and other subjects (1 year);

(5) Mount Barker Primary School;

(6) Carnamah District High School (students at education risk);

(7) St Hilda’s boarding house mother (6 months);

(8) Mullewa District High School (year 8 students and one year 6 student) (2 years);

(9)  Karoo Primary School (2 days per week teaching gifted and talented students)

(10)  Karoo Primary School (2 days per week teaching years 5, 6 and 7); and

(11) Three Springs Primary School

34       In her evidence, Ms Scott states that she is familiar with her duties and functions under the School Education Act 1999.  When asked in examination-in-chief to describe in what manner or in which way does she carry out her duties and functions, Ms Scott stated that she believed that ‘you’ve got to be extremely fair with students. You’ve got to demonstrate what you expect to get back from the pupils in your care’ (ts 21).  Ms Scott also stated that she is a firm but fair teacher who sets the parameters, and she operates within those parameters and expects her students to respond accordingly. 

35       Ms Scott gave evidence she had received an award for teaching when in 2001 she was nominated at Mullewa District High school by two students and an Aboriginal Aide, and had won the national excellence in teaching award and had to travel to Canberra to receive the award.

36       Ms Scott submitted that teachers are always learning as every class presents with new learning experiences.  She stated that there are always new things being implemented and you never stop learning, in particular when there are different classes and different students.

37       Ms Scott submitted in evidence what, in her view, the educational needs of a student coming to school were.  In circumstances where a child is coming to school because they are comfortable and safe, then they are going to approach a learning environment a lot more easily than if they are coming to school under duress.  Ms Scott stated that the classroom needs to be friendly and welcoming, and once you have established such an environment you have established your boundaries, then the core subjects of your curriculum can emerge. Ms Scott submitted in evidence students needed to learn how to socially adapt and ultimately to self-discipline.  Part of that is to learn how to make judgments and assessments for themselves incorporating all of the curriculum aspects of their school lives. 

38       When asked in examination-in-chief whether taking reasonable physical action may be one effective strategy in order to control and manage a student, Ms Scott stated that there would be certain circumstances where there would need to perhaps make physical contact with a child to maintain order and discipline.  When asked what sort of strategy would she use for discipline and control within the classroom and whether there would be an overarching rule Ms Scott testified that there could not be one rule that governs all, because situations are so different.

39       Ms Scott was asked whether throughout her career had she ever been disciplined for any misconduct or breach of discipline.  Ms Scott stated ‘No, I have not’ (ts 24).  Ms Scott was further asked had she been disciplined for abusing children, mistreating children or hitting children and again Ms Scott stated she had not.  Ms Scott was asked whether relationships were ever strained to which Ms Scott stated ‘Yes’ (ts 25).  When asked whether Ms Scott had ever used corporal punishment as hitting to discipline students, Ms Scott stated that she had not.

40       Ms Scott was asked in cross-examination when she was first notified about the allegations that had been made against her.  In response she stated that she was notified on 16 December 2009 when Mrs Joan Gray advised her, after school hours that she had a meeting the next day with a person from the District Office because there had been allegations made against Ms Scott and Mrs Gray had put herself forward as a support person. 

41       Ms Scott stated that on 20 November 2009, the day of the alleged incident, she was working at Three Springs Primary School as a teacher.  Ms Scott stated that there was an interschool cricket carnival and a number of students had been taken to the oval to participate in a round-robin event.

42       When asked if Ms Scott had ever been trained as to what is a reasonable degree of force, Ms Scott stated that she had not been trained.  She also stated that she had not been informed or received information regarding this.

43       In her first letter of response regarding the incidents Ms Scott wrote on 27 December 2009 to Mr Eamon Ryan of the respondent:

Dear Mr Ryan

ALLEGATIONS OF MISCONDUCT YOUR REF: D09/0722970

I refer to your letter dated 14 December 2009.

In what follows, I respond, to the best of my ability and recollection, to the allegations made in your letter.  I note, however, that these allegations have been brought to my attention for the first time by your letter.  At no time has the Principal, any of the teachers, parents or students raised these allegations, or indeed, any allegations of misconduct against me.  I am surprised and disappointed that these allegations were not raised with me earlier, on an informal basis, to allow them to be dealt with without the need to escalate the issue to the level of the Department.

Since the matter has now escalated to the Department, it is necessary for me to provide some background.  I teach a classroom of year 5, 6 and 7 students at the school and have done since 2004.  I am passionate about my work and do my best to understand each of the children in my care and their unique situation so as to give each child the best opportunity to reach his or her potential at the school.  I make sure that I know each child's parents and discuss with the parents each child's progress in any issues that might arise.

I will now discuss each of the children named in your letter and respond as best as I can to the allegations made.

Allegation 1  Tamara Dalgetty

Tamara, in Year 5, is a good child and I am pleased with the progress she has made this year.  She is fairly quiet in class and not disruptive in any way.  I have regular contact with Narelle, Tamara's mother, who is an educational assistant at the school and we have often discussed how well Tamara is progressing.

I have no recollection of the incident described in the allegation, or any memory that any incident occurred in the art room.  I don’t teach art class or supervise the children during art class and have no recollection of even being in the art class with Tamara.  I deny that I have ever pulled her or any student by the collar in a way that is forceful or in any way inappropriate and, to the best of my recollection, I have not been involved in any incident with Tamara involving Ivy’s badge.

Allegation 2  Justin Dodd

I have been Justin’s teacher from Year 5 to Year 7.  Justin's elder brother is a former student of mine and I know his mother, Clarissa, well and have had substantial contact with her.  I have noticed some changes in Justin's behaviour this year and have discussed this with his mother at length to see whether any of this relates to difficulties at home, in particular issues regarding whether Justin's future living arrangements are to be with his mother or his father.  I have given Justin a lot of support and encouragement during the time that I have taught him, and have focused on giving him rewards for his positive or improved behaviour when opportunities arise.

I do recall an event on which this allegation is probably based however my recollection of the event is quite different to that described in your letter.  In particular, the event did not involve Justin being sent out of an art class and did not involve me hitting him with a book.  My recollection of the incident is that on this particular occasion I was exasperated with Justin for some reason which I cannot now recall and I was giving the book to him.  I thrust the book towards him as he moved towards me and the book made contact with his stomach.  I did not intend to make contact with Justin and it was certainly not my intention to hit him or punish him.  There was no response from Justin to suggest that he had been hurt in any way, nor did he express any surprise, shock or give any indication that he was upset by the physical contact with the book.  Justin is good at sport and is not a precious or sensitive boy.  He is constantly engaged in rough play with other boys in the playground and I am certain that this accidental contact did not cause him any distress at the time.

Allegations 3, 4 & 5  Michael Metsemakers

Michael is in year 6 and I have been his teacher for 2 years.  Michael is a fairly troubled boy and has had some difficulty with his behaviour both in the classroom and outside the school.  Michael was fairly reclusive when he first came to the school and has shown some signs of emotional difficulties which I have discussed with his mother.  I am in regular contact with Margariet, Michael's mother, in particular because she works as a cleaner at the school and also cleans my house.  I have a good relationship with Michael and he has, in the past, come to me directly to assist him with troubles he has had outside of the school.

Regarding the allegation that I hit Michael on the back of the head with my hand, I don’t recall a specific incident on which the allegation is based and I can categorically say that I have never hit Michael or any student on the head with my hand.  I have tapped students on the head with my fingers to get their attention or to get them refocussed.  Tapping a child on the head this way could not be painful and could not be perceived as humiliating or inappropriate in any way.

With regard to the allegation about hitting Michael with a dictionary, I do recall an event on which this allegation may have been based.  I banged the dictionary on the desk saying words like ‘here, use this’.  The dictionary was a soft cover book, about the size of a paperback novel.  I don’t recall that the dictionary hit his hand, but in any event I would have noticed if there was any pain reaction or indication from Michael that I had hurt him physically or upset him in some way.  I did not intend to make contact with Michael and if I did, the contact was accidental.

With regard to the allegation that I hit Michael in the face with papers I was holding in my hand, I do not recall this incident and would be very surprised if any incident occurred that could reasonably be described as it is in your letter.  Certainly, I have never rolled up any papers and struck Michael or any other child in the face with papers or anything else.  If I ever did accidentally make contact with Michael with papers in my hand, this contact would have been entirely unintentional and I would certainly have remembered it if it had caused pain or upset the child. 

Allegation 6  Ivy Weir

I have been Ivy’s teacher since year 5.  She is now in year 7, and was the top student academically of the four year 7 students.  Ivy is a clever and vibrant girl and can be full of fun.  She has a strong personality and is the natural leader of the class.  This year, corresponding with her adolescence, Ivy has become difficult at home and rather insolent, rude and silly at school.  Ivy's parents, Sharon and Rob, are very supportive and involved with the school.  Her parents and I have discussed her changed behaviour and attitude both at home and at school and have been working together to support Ivy in an effort to get the balance back in her life.  To this end I have been particularly careful to offer positive encouragement and reward when she has demonstrated responsible behaviour.

With regard to the allegation that I hit Ivy on the back of the head with my hand I deny that I have ever hit Ivy (or indeed any other student) on the head.  I recall an incident involving Ivy on which this allegation may have been based.  This was, to the best of my recollection, at a cricket match and Ivy was misbehaving on the oval.  I had tapped Ivy with my fingers (not with my hand) on the head whilst telling her to stop misbehaving.  The force with which my fingers struck her head was not sufficient to cause any pain or discomfort and Ivy did not react in a way that indicated she was hurt or upset.

I would like to conclude by saying that these allegations have completely shocked and upset me and I am struggling to understand how any of the dealings I have had with my students past or present could be interpreted in the manner described in your letter.  I am passionate about my teaching and always strive to provide an environment in which every student feel safe, supported and encouraged to reach his or her potential.  I would never intentionally or knowingly cause harm or hurt to any child in my care.

Please let me know if you require any further information.

Yours sincerely

Stephanie Scott

44       Ms Scott confirmed she returned to her position after the Christmas holidays following which two more allegations were received in February 2010.  Ms Scott stated she then received a s 240 notice which took effect on 18 March 2010.  In cross-examination Ms Scott was asked whether she took any formal action to have the s 240 notice lifted once it was imposed, and in response Ms Scott responded that she did not know such action was able to be taken.  In cross-examination Ms Scott stated that she had been placed in the computer room for about a month from the time the new allegations had come in until the s 240 notice had taken effect.

Respondent

45       It was the submission of the respondent that the determination of the Commission is to answer the question as to whether the actions complained of were sufficient to ground misconduct as per the PSMA.  Only in the event that the Commission determines Ms Scott’s action on the relevant day in question do not amount to misconduct is the Commission then able to intervene to consider whether the subsequent actions taken by the respondent were unfair in all the circumstances, having regard for the principles of procedural fairness. 

46       Mr Paul David Broadbent gave evidence for the respondent.  Mr Broadbent gave evidence that he is employed as a senior investigator for the respondent and was employed to carry out an investigation in particular into six allegations against Ms Scott.  Subsequent to the submission of the six allegations a further two allegations arose and Mr Broadbent was asked to follow the same process in relation to those two additional investigations.  In total, Mr Broadbent conducted an investigation relating to eight allegations.  Mr Broadbent gave evidence that he found in relation to three of the eight allegations there was evidence sufficient to have the matter go further.  The witness gave evidence that once his investigation was complete the decision as to whether the matter went further was not up to him but was an issue for the Director General of the Department of Education for the Director of Standards and Integrity to progress the matter.

47       Mr Broadbent gave evidence that once his investigation was completed final findings were not made by him upon the conclusion of his investigation as to what action may be taken.  In cross-examination Mr Broadbent denied he had ever been in charge of a classroom of children or indeed as a teacher.  The witness gave evidence that there was a potential for there to be a ‘mob mentality’ in a small town such as Three Springs between parents and children, a matter he had taken into account in his investigation.

48       Mr Eamon Ryan then gave evidence for the respondent as the Acting Executive Director for Professional Standard and Conduct with the respondent.  In evidence the witness gave evidence the division in which he was involved had responsibility for four areas; order and risk management; criminal history and screening of employees; legal services and freedom of information and also Standards and Integrity.  The witness gave evidence he also provided strategic oversight of the four areas.  Mr Ryan gave evidence that Standards and Integrity included disciplinary matters.  In relation to the investigation and inquiry into Ms Scott which took place principally in 2010 at that time Mr Ryan gave evidence he was the Director of Standards and Integrity.

49       Mr Ryan gave evidence as to the framework that the respondent would undertake in relation to Ms Scott in the case of a reasonable suspicion arising.  First of all in the case of a reasonable suspicion arising the respondent would write to Ms Scott outlining the allegation and giving her an opportunity to respond, assessing her response if she chose to make a response and then making a decision as to whether the matter was resolved satisfactorily or whether or not to proceed with an investigation.  In this case the respondent determined to proceed with an investigation at the conclusion of which the person undertaking the report would prepare an investigation report to Mr Ryan through their team leader.  If there was to be an adverse finding it would go to the respondent so they would have an opportunity to respond before a final recommendation would be made to the Executive Director and on through the Director General for a final decision and determination. 

50       Mr Ryan wrote to Ms Scott on 16 July 2010:

PRIVATE AND CONFIDENTIAL

Ms Stephanie Scott

Kariba

C/- Post Office

ENEABBA    WA    6518

Dear Ms Scott

I acknowledge receipt of your letter dated 26 May 2010, in which you deny the charges brought against you in respect to serious breaches of discipline.

This matter will now become the subject of a disciplinary inquiry pursuant to section 86(4)(a) of the Public Sector Management Act 1994 (Act).  I have appointment Mr Ian Edwards to conduct the inquiry into the following breaches of discipline:

1. It is alleged that you committed a breach of discipline contrary to Section 80(c) of the Act in that between 20 July 2009 and 6 November 2009, while employed as a school teacher, you used an unreasonable degree of physical force against a student.

Particulars

i. Between 20 July 2009 and 6 November 2009, you were teaching at Three Springs Primary School.

ii. Whilst dealing with a student, namely Tamara Dalgetty (Tamara), for wearing a badge belonging to student Ivy Weir, you took hold of Tamara’s collar and pulled her outside the art room.

iii. The degree of force you used was not reasonable or necessary to manage the student.

2. It is alleged that you committed a breach of discipline contrary to Section 80(c) of the Act in that between 12 October 2009 and 6 November 2009, while employed as a school teacher, you used an unreasonable degree of physical force against a student.

Particulars

i. Between 12 October 2009 and 6 November 2009, you were teaching at Three Springs Primary School.

ii. Whilst dealing with a student, namely Michael Metsemakers (Michael) in classroom 5, you hit Michael on the hand with a dictionary.

iii. The degree of force you used was not reasonable or necessary to manage the student.

3. It is alleged that you committed a breach of discipline contrary to Section 80(c) of the Act in that on 20 November 2009, while employed as a school teacher, you used an unreasonable degree of physical force against a student.

Particulars

i. On 20 November 2009, you were teaching at Three Springs Primary School.

ii. Whilst dealing with a student, namely Ivy Weir (Ivy) on the oval, you hit Ivy on the back of the head with your hand.

iii. The degree of force you used was not reasonable or necessary to manage the student.

The inquirer may find, in respect to each charge, that:

1. no breach of discipline is found, in which case, no further action will be taken; or

2. a minor breach of discipline is found, in which case you may be reprimanded, or fined an amount not exceeding one day’s pay, or be reprimanded and fined an amount not exceeding one day’s pay; or

3. a serious breach of discipline is found in which case you may be reprimanded, transferred to another public sector body or transferred to another office, post or position within the Department, or fined an amount not exceeding five day’s pay, or your monetary remuneration will be reduced, or your classification level will be reduced, or you may be dismissed.  Except where dismissal occurs, the employing authority may impose any 2 or more of the above penalties.

You will be notified of any interviews or meetings which you will be required to attend, and you may have present during any interview or meeting, a representative who is capable of providing advice to you.

Again, confidential support services are available to employees of the Department and their immediate family through an Employee Assistance Program.  Should you wish to avail yourself of these services, please contact PRIMEXL Employee Assistance Services on 9492 8900 or 1800 674 188 for regional areas.

If you have any questions in relation to this matter, please do not hesitate to contact Mr Ian Edwards, Senior Investigator, of the Standards and Integrity Directorate, on 9264 5781.

Yours sincerely

EAMON RYAN

DIRECTOR

STANDARDS AND INTEGRITY

51       Mr Ryan gave evidence as to the range of final decisions and determinations that could be made at that point in time ranging from a minor breach of discipline in such a case to be a reprimand or a fine of one day’s pay through to, in the case of a serious case of discipline then there may be a subsequent inquiry at the end of which the range of penalties might extend from a reprimand through to termination and a number of penalties in between. 

52       Mr Ryan gave evidence that an inquiry is carried out under Part 5 of the PSMA and an inquirer has a degree of independence and the inquirer’s findings are binding on the Director General unless of course such findings are overturned by a Tribunal.  However the Director General does have some discretion under the Act in relation to penalty. 

53       Mr Ryan gave further evidence that the Director General would need to take into account the evidence presented in Mr Edwards’ report and the conclusion that he had reached.  The witness informed the Commission that he thought a reprimand was appropriate in relation to the circumstances in particular in relation to the conduct of Ms Scott: 

I didn’t think that the conduct of – of tapping a student on the head was appropriate.  I thought it was demeaning, I thought it was unreasonable, I thought it was intimidatory, condescending, and I didn’t think it was the professional way in which a teacher in a position of authority over a student should – should contact - should interact with that student. 

(ts 148)

54       Mr Ryan gave evidence that a more professional way of interacting with the student would have been verbal chastisement. 

55       In cross-examination Mr Ryan’s responsibilities had to be complied with in order to issue a s 240 under the School Education Act 1999.  Mr Ryan confirmed he was aware of the requirements and further that it had to be a matter put in relation to s 80 of the PSMA, in other words it had to be a disciplinary matter on foot. 

56       Mr Ryan indicated in evidence that a s 240 matter was issued by the respondent given there were a number of other issues, namely three separate lots of allegations suggesting there was an escalation of issues on foot.  There was a concern there may be an escalation of complaints regarding physical contact between a teacher and student(s) and there were concerns that the students would then be placed at risk in relation to their safety or welfare.  In such circumstances a decision is essentially a risk management decision that is made by the respondent.  Given there were eight allegations, seven of which were struck out and ultimately, after an investigation the last allegation remaining resulted in the respondent issuing a reprimand, the respondent thought it necessary to issue a s 240: 

We didn’t have the benefit of the full investigation and a subsequent inquiry process.  So there was, from my recollection, there was nothing to suggest that any of those complaints were malicious or vexatious.

(ts 158)

57       Mr Ryan was asked to consider whether he thought s 64(1)(e) of the PSMA was relevant in terms of maintaining discipline.  Mr Ryan was asked as to why the investigation or inquiry process into Ms Scott had gone on for such a long period of time.  The witness replied the length of time these matters had taken had been of concern since he commenced the job.  In response the witness replied ‘it is a function of the degree of detail to which we are required as investigators to go to’.  In response the witness replied ‘we have to be thorough and comprehensive to be fair to all of the parties’.  It was also a function of the legislation as it was then was (prior to the 2009 amendments to the PSMA).  The respondent gave evidence he was very conscious of the implications of the timelines and that was why the respondent had been working so hard to attempt to reduce the impact to see that matters were turned over as quickly as possible.  However unfortunately the witness gave evidence such matters were not always turned over in weeks and sometimes they took time.  That length of time was taken into account when making the final recommendation to the Director General.

58       Mr Ryan gave evidence that he considered the impact that this has had on Ms Scott has indeed been significant as it has indeed on the school environment in Three Springs as the inquiry and investigation have progressed.  That clearly has been understood. 

59       Mr Ian Edwards gave evidence for the respondent.  His current occupation was Integrity and Standards Officer for Curtin University however he used to work for the respondent as Senior Investigator until January 2011 commencing in August 2008 and prior to that he was a police officer.  During that time the witness gave evidence he was charged with inquiring into several charges against the applicant’s member Ms Scott, a total of three charges.  One of the charges was that Ms Scott had used an unreasonable degree of physical force against a student by the name of Ivy Weir. 

60       Mr Edwards gave evidence that his task was to examine each of the charges to ascertain whether there was sufficient evidence to substantiate the charges.  The witness gave evidence that his decision ultimately was binding upon the Director General.  The witness gave evidence that as part of his inquiry into the matter generally he listened to other interviews which had been conducted by his colleagues.  He conducted a number of interviews himself and then reviewed the available information before reaching a conclusion.  He did not read Mr Broadbent’s investigation report.

61       The witness interviewed Ms Tamara Couper, Mr Mark Gledhill, Ms Norma Tressader and Ms Scott.  The witness provided clarification that Ms Tressader was someone who worked at Three Springs Primary School. 

62       The witness gave evidence that he reached a conclusion that there was sufficient evidence to substantiate the allegation that Ms Scott had used an unreasonable degree of physical force against Ivy Weir a student on the cricket oval during a carnival.  The evidence was drawn from a number of separate witness interviews.  In particular, Mr Edwards gave evidence he relied upon interviews conducted with Ivy Weir, an interview conducted with another student, an interview conducted with Mr Gledhill (the principal) an interview conducted with Ms Couper, and an interview conducted with Ms Scott. 

63       In relation to the student interviews Mr Edwards gave evidence an interaction had taken place with Ms Scott.  This was corroborated by Ms Couper and that an interview had taken place with Mr Gledhill providing information which related to the state of agitation of Ivy Weir following the alleged incident. 

64       Mr Edwards gave evidence that Mr Gledhill was on the cricket oval the day of the alleged incident and that Ivy Weir came to him after the incident took place and she appeared very upset and in a state which he had not seen her previously.  She said she had been hit by Ms Scott.  The witness gave evidence Ms Scott when interviewed, said she had made physical contact between her hand and the head of Ivy Weir.  There was debate about the amount of force which was used.  The witness demonstrated that physical contact had taken place and that there needed to be a determination about whether that physical contact was reasonable in the circumstances.  Mr Edwards gave evidence his conclusion was that it was not reasonable in the circumstances given that he thought there were a number of alternative measures which could have been used and that the use of physical force towards a student in such a situation was not reasonable.  Such alternatives could have been for example, Ivy Weir could have been spoken to, she could have been verbally reprimanded, she could have been sent to another place, she could have been asked to remain with Ms Scott for the duration of the carnival; a number of alternatives which would not involve the use of physical force. 

65       Mr Edwards when referring to reg 38 of the Regulations indicated that a teacher may use physical force towards a student in certain circumstances and that such force must be reasonable.  The witness was asked by the Commission whether in making his determination whether the level of force was reasonable or not to which he replied he considered it was unreasonable.

66       Mr Edwards gave evidence that in his view the Regulations in particular reg 38 provided that a member of staff could use physical towards a student in certain circumstances and that such force should be reasonable. 

67       In cross-examination the witness was asked to re-read an interview that had occurred between himself and Mr Gledhill regarding the incident concerning Ivy Weir: 

Ivy came and saw me on the day which we were running the cricket, the cricket carnival as such and it was quite hectic.  And Ivy said Oh Mrs Scott, Mrs Scott just hit me.  And I thought ‘Oh no’.  And I looked at her and she seemed, seemed fine.  I think I asked her how she was and all that thought of thing and she was alright.  And I thought, I probably wasn’t too sure right then and there because I had spoken, … the other allegations had already gone through and I had sent stuff through to Standards and Integrity.  I must have spoken to Paul Broadbent by then and he said I was not to tell, not to mention anything to Mrs Scott as to the allegations because they would interfere with the case or, that wasn’t the words, but it was something like that.

(R2, tab 3,pg 4)

68       In cross-examination Mr Edwards agreed that Ivy Weir’s demeanour at the time physically appeared fine.  The witness concluded that the evidence:

The evidence obtained shows that the respondent made intentional physical contact between her hand and Ivy Weir’s head.  Whilst there is dispute as to the degree of force used it is found that an amount of force was exerted by Ms Scott towards Ivy Weir.  This finding is based upon the accounts of Ivy Weir, Kayla Dodd, Ms Couper, Mr Gledhill and Ms Scott.  Further, there is no evidence to show that the degree of force used was reasonable or necessary to manage Ivy or to maintain or re-establish order.  This is the contact that is alleged in the charge.

(R1, tab 44, 3.25)

69       Mr Edwards declared and made the following findings that:

(a) Ms Scott did engage in the conduct alleged in the charge that is she made intentional physical contact between her hand and Ivy Weir’s head;

(b) Furthermore there is further evidence on which to assess that Ms Scott committed the act; and

(c) Furthermore the actions of Ms Scott were unauthorised by reg 38 of the Regulations.

70       It was found by Mr Edwards in his capacity as senior investigator then of Standards and Integrity that Ms Scott’s conduct amounted to misconduct and although the charge was classified as a serious breach of discipline the degree of physical force used was relatively minor and for this reason it was recommended the appropriate penalty should be a reprimand. 

Applicant’s Conclusions

71       This particular matter was referred pursuant to s 44(9) of the Act.  The applicant’s member is considered to be a member of teaching staff as per the legislative provision of the respondent’s employees, employed pursuant to s 235(1)(b) Categories of staff of the School Education Act 1999 and is employed by the respondent pursuant to s 236(2) Provisions applicable to teaching staff, other officers and wages staff of the School Education Act 1999.  As a teacher in a public school, Ms Scott is formally classified to be a teacher other than a school administrator as per s 237(b) Classification of teaching staff of the same act. 

72       The applicant union drew the attention of the Commission to the fact that the School Education Act 1999 categorises and classifies a teacher with grade legislative particularity and specificity. 

73       Section 64 specifies what functions, including duties and responsibilities a teacher is to carry out at school and the performance of their professional work including functions under the School Education Act 1999.  Section 64 provides functions of teachers:

(1) The functions of a teacher in a government school are — 

(a) to foster and facilitate learning in students;

(b) to give competent instruction to students in accordance with — 

(i) the curriculum;

(ii) standards determined by the chief executive officer; and

(iii) the school’s plan referred to in section 63(1)(e),

and to undertake the preparation necessary to do so;

(c) to undertake regular evaluation and reporting of the progress of students within the terms of the school plan referred to in section 63(1)(e);

(d) to be answerable to the principal for the educational achievement of students under his or her instruction;

(e) to supervise students and to maintain proper order and discipline on their part;

(f) to carry out administrative duties to meet organizational requirements relevant to the teacher’s functions; and

(g) perform any other prescribed function assigned by the chief executive officer.

(2) The functions set out in subsection (1) have effect subject to — 

(a) this Act;

(b) the instructions of the chief executive officer; and

(c) the direction and control of the principal.

74       The applicant union considered s 47 of the Interpretation Act 1984 (WA) subsidiary legislation made by Parliament of one of its enacted acts is to be interpreted or deemed to have been made under the written law that authorises it. 

75       The applicant union submitted that the notion of exercising physical action must be reasonable which clearly turns on the facts and circumstances in which it takes place.  That in turn imports an objective standard.  There needs to be considered, in the process of this, determining whether a physical action is reasonable or not. 

76       The applicant union submitted and drew the Commission’s attention to the fact that in accordance with the legislative provisions of the School Education Act 1999 and associated regulations, to take physical action as is reasonable is part of the function that might be exercised by a member of teaching staff whilst carrying out teaching functions at a school whilst being entrusted with the supervision of students. 

77       The applicant union submitted it to be indisputable that a teacher who has been required to manage effectively and maintain order amongst young children within the institution of a school setting is entrusted with the responsibility of directly supervising students.  In this setting it is the teacher’s responsibility for the management and control of students and he or she may form an opinion or belief that there may be reasonable grounds to believe that it is appropriate to engage in physical action as is reasonable within the prevailing circumstances so as to fulfil their functions as a teacher as per s 64(3) of School Education Act 1999.

78       The applicant union submitted that the forming of such an opinion or belief whilst necessarily subjectively reached by a teacher cannot be grounded in the abstract.  Within a specific set of objective circumstances it ought be reasonably or plausibly conceived or grounded in objective circumstances.  There must be present some objective reason or circumstances that may reasonably foster or induce the formation of such an opinion or belief.  As reported in the decision of The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australian Branch v PCH Group Pty Ltd [2005] WAIRC 02863; (2005) 85 WAIG 3884.  The meaning of or definition of ‘reasonable ground to believe’ has been considered by the High Court in George v Rockett (1990) 170 CLR 104 [16] by Mason CJ with whom Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ concurred:

The objective circumstances sufficient to show a reason to believe something need to point clearly to the subject matter of the belief, but that is not to say the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists.

79       The applicant union submitted there was no onus of proof as the High Court decision went on to say:

[T]he assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

80       The applicant union submitted a reasonable belief turns on the objective circumstances pointing to the subjective matter of belief.

81       Turning to the question of law and particular the allegations made against Ms Scott in (R1, tab 7) the relevant allegation made by the respondent against Ms Scott reads as follows:

6. It is alleged that you committed a breach of discipline, contrary to section 80(c) of the Public Sector Management Act, in that on 20 November 2009 while employed as a teacher, you used an unreasonable degree of physical force against a student.

Particular

i. On 10 (sic) November 2009, you were teaching at Three Springs Primary School.

ii. Whilst dealing with a student namely, Ivy Weir, on the oval you hit Ivy on the back of the head with your hand.

iii. The degree of force you used was not reasonable or necessary to manage the student.

82       The applicant union submitted that their member had denied she had ever used an unreasonable degree of physical force against Ivy Weir, simply tapping Ivy’s head with her fingers without any degree of unreasonable force and further no distress was apparent. 

83       The applicant union considers a relevant issue which appears not to have been taken into account is the fact that the events that occurred on that day were the persistent changing behaviour; the carnival was outside and particularly noisy at the time; the fact that the event did not take place in the classroom setting wherein distractions are minimised and furthermore the fact that Ms Scott was a very experienced teacher of more than 30 years.  In 2002 the applicant’s member was awarded with the National Teacher of the Year Award for her outstanding teaching abilities.  There is no allegation or suggestion that Ms Scott attempted to carry out her job by doing anything other than tapping Ivy Weir.  The applicant union submitted that its member testified she does not regard herself as an infallible teacher and that there is always something to learn in the profession, however she does regard herself as a ‘caring professional, fair and well experienced teacher when dealing with students entrusting - entrusted in her care.  She, however, refuses to be reprimanded and prior to that suspended and humiliated, as well us (sic) unsupported by her principal for doing a job in the manner in which it is prescribed’ (ts 202).

84       The applicant union submitted that the respondent had attempted to unduly down play the importance of a reprimand and the associated humiliation that the applicant’s member had experienced following a lifetime of teaching and caring for students. 

85       The applicant union submitted in correspondence Ms Scott (R1, tab 9), denied she had ever used an unreasonable degree of physical force against Ivy Weir rather she had merely tapped Ivy Weir’s head with her fingers without any degree of unreasonable force.  Importantly no distress was apparent and Ivy Weir returned to order of her own volition.  The applicant union submitted that it appeared the respondent failed to take into account Ms Scott’s submission of what occurred that day. 

86       Ms Scott rejected the findings and conclusions of both the investigation and the inquiry (R1, tabs 21 and 45, dated 26 March 2010 and 20 January 2011).  In addition to a recommendation to the respondent intending to issue a reprimand against her which Ms Scott also rejected the respondent nevertheless proceeded to impose and issue against Ms Scott on 23 March 2011 (R1, tab 50).  The applicant union submitted the respondent had not only formed the view but was prepared to act on that view and had done so by deeming Ms Scott purportedly guilty of the alleged misconduct by in turn maintaining that such alleged misconduct is grounds for a breach of discipline as per s 81 of the PSMA. 

87       In considering what is misconduct the applicant union submitted the Commission ought have regard for the decision of the Industrial Appeal Court in Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241</Citation> where Anderson, Parker and Hasluck JJ analysed and detailed the provision of Part 5 of the PSMA the meaning of ‘misconduct’ that could amount to a breach of discipline.  In doing so his Honour set out the relevant provisions [27]:

I have already set out the relevant part of s 81.  The concept of ‘breach of discipline’ referred to in that section is to be understood in the light of the preceding section which is in the following terms:

80. Breaches of discipline

An employee who –

(a) disobeys or disregards a lawful order;

(b) contravenes –

(i) any provision of this Act applicable to that employee; or

(ii) any public sector standard or code of ethics;

(c) commits an act of misconduct; or

(d) is negligent or careless in the performance of his or functions,

commits a breach of discipline.

88       The applicant union submitted that Anderson J in the CSA case was referring to a public service officer employed pursuant to s 64(a) of the PSMA.  By comparison Ms Scott was employed pursuant to the School Education Act 1999, therefore her conduct must be evaluated not merely by reference to the objects of the PSMA but also by reference to the objects of the School Education Act 1999. 

89       The applicant union asserts that Mr Edwards saying that just because there has been physical contact the allegation is therefore proven.  Further, Mr Edwards and likewise Mr Broadbent had no regard for the functions of a teacher with the responsibility of supervising, managing and controlling students in and outside a classroom.  Mr Edwards failed to give consideration or due weight to the evidence in favour and instead gives favour or undue weight to aspects of evidence that are adverse or detrimental to Ms Scott without providing a reasonable explanation or reason.  The misguided weight disregards the relevance from Ms Scott’s statements which relate to objective singular circumstances outside the classroom and the difficulties associated with supervision and management of students.  Regrettably Mr Edwards does not appear to report any consideration of Ms Scott’s long and successful career in any of the findings made. 

90       The applicant union submits that Mr Edwards reaches the conclusions reflected in R1, tab 44 that are unsupported by mythological or consistency or cogency or analytical regard, taking into account and giving weight to the statements made by Kayla Dodd and Tamara Couper and making his so called findings on contradictory and uncorroborated evidence.  On the basis of such irregularities, in particular made by Mr Broadbent and Mr Edwards the investigation and inquiry, Mr Broadbent and Mr Edwards pre-judge Ms Scott as having committed the breach of discipline before they commence looking at the issues.  Effectively the submission is that Mr Broadbent and Mr Edwards made their minds up at the beginning and in so doing they denied Ms Scott natural justice and procedural fairness.  Consequently, the applicant submits the respondent failed to afford Ms Scott the right to natural justice and procedural fairness as pursuant to Part 5 of the PSMA.  In Ireland v The Director-General, Department of Health (2008) WAIRC 00297; (2008) 88 WAIG 489 [57], [59] and [63], Smith SC (as she then was) deals in some details with the nature of proceeding in Part 5 of the PSMA, asserting that the scheme of provisions require that nature justice and procedural fairness be afforded to respondent employers in applying the disciplinary process.  She states with respect to Part 5:

These procedures make it plain that the employee suspected of a breach of discipline is to be afforded procedural fairness.  A fundamental tenant of the rules of procedural fairness, that a decision-maker is not to prejudge whether a person has committed a breach of discipline.

91       The applicant union submitted that it is apparent from the contents of the report in particular the report of Mr Edwards is that there were a set of non-congent sentences and statements which effectively had no bearings on the findings at the end.  On those grounds the applicant union submits that the report is irretrievably biased against Ms Scott which interprets the evidence. 

92       The applicant union submitted that it was absolutely bewildering to understand how the conclusion could be drawn on the facts to find Ms Scott had used an unreasonable degree of physical force against a student.  The applicant union submitted that the common test reflected in Briginshaw v Briginshaw (1938) 60 CLR 336 is the test that applies regarding allegations of serious and moral wrong.  The respondent submits that the reprimand is a minor one.  As the applicant we submit when applying it to Ms Scott as a teacher, to her experience and to the environment in which it occurred one cannot but support the view that Ms Scott has ever used an unreasonable degree of force. 

93       Furthermore, the applicant submitted that ordering Ms Scott to leave the school premises was inappropriate in the circumstances and inconsistent with the objective concern for the safety of the children which is the test pursuant to s 240 of the School Education Act 1999. 

94       In concluding the applicant union referred to The State School Teachers’ Union of W.A. (Incorporated) v Paul Albert, Director General, Department of Education and Training [2007] WAIRC 00020; (2007) 87 WAIG 256.  The applicant union says that in this case Ms Scott is an employee of the respondent to whom appeal rights pursuant to s 78 of the PSMA apply.  To quote from that particular case which Harrison C who specified that:

‘Substandard performance and disciplinary matters’, outlines the right of appeal to the Commission for relevant employees and there was no dispute and I find that Ms Heppolette is a relevant employee for the purposes of these proceedings and that the terms of s78 of the PSM Act applied to Ms Heppolette.

In that context the applicant union says that this is applicable to this because it is an equal and a palpable matter.

Respondent’s Conclusions

95       Counsel for the respondent submitted that the issue before the Commission was that Ms Scott had tapped Ivy Weir with her fingers on the head whilst telling her to stop misbehaving and that ultimately the respondent had imposed a reprimand on Ms Scott for undertaking that activity.  The respondent’s case is that the imposition of a reprimand was reasonable and that the Commission would be only entitled to intervene if it was of the view that the imposition of the reprimand was outside the range of reasonable penalties that the respondent could have imposed if of course, the finding of guilt in relation to it was sustained. 

96       The respondent submits that there was misconduct and that the respondent had acted reasonably in imposing a reprimand.  Even if the Commission had a different view in relation to matters it would not necessarily entitle the Commission to intervene.  It would require a finding on the part of the Commission that if Mr Edwards did something that he should not have done or come to a finding that he should not have done or the Department imposed a penalty that it should not have done in terms of it being outside the reasonable range of penalties or in some way that Mr Edwards’s findings were undermined by obtaining a critical flaw then under those circumstances there would be a right to intervene simply because the Commission for instance would have imposed in such circumstances a different penalty had the Commission been standing in the shoes of the Director General.  In such circumstances the Commission would not necessarily be authorised to intervene. 

97       The PSMA as at 17 September 2009:

86. Procedure when charge of breach of discipline brought

(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 subparagraph of this paragraph.

98       Counsel for the respondent then referred to further sections of the provision prior to the amendments as they occurred at 17 September 2009:

(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

(b) no 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 notify the respondent of that finding and that no further action will be taken in the matter.

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

(a) accept the finding; and

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

(i) subsection (8)(a) in relation to a charge of committed a breach of discipline consisting of disobedience to, or disregard of, a lawful order referred to in section 94(4), dismiss the respondent;

(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.

99       Counsel for the respondent submitted that s 86(3) sets out the range of penalties commencing with a reprimand and working through to a dismissal.  A reprimand has its common everyday meaning which was submitted by Mr Matthews to be a warning: ‘don’t do this again’.

100    It is important that it is not impacted by the conclusions Mr Broadbent has reached and therefore it does use the source material reached by Mr Broadbent.  Mr Edwards seeks to clarify some matters by speaking to someone who was not spoken to initially namely Mr Gledhill.  He spoke again to Ms Tamara Couper and Ms Scott and as a result of that he determined that it was clear there was some contact.  As the respondent understands the evidence Mr Edwards was not saying anything more in relation to Ms Couper’s evidence than Ms Couper put Ms Scott and Ivy Weir in the same place at the same time. 

101    Mr Matthews submitted to the Commission that Mr Gledhill was saying when Ivy Weir was present that his mind turned initially to whether physical harm had been done.  He looked at her and said she is physically fine.  Subsequently he explored the question of demeanour and when that question was explored she appeared highly agitated.  It is the respondent’s submission that Mr Edwards was a believable witness and that the explanation he gave was indeed believable.  Mr Edwards put forward the evidence that Ivy Weir had been hit and that the evidence from Ms Scott was there had been a light tap.  Mr Edwards quite properly came to the view that it was relatively minor contact. 

102    Counsel for the respondent submitted that it is demeaning and belittling to tap a child on the head to get their attention.  Furthermore, the head is largely a no go zone. 

103    Counsel for the respondent submitted that delay was very properly raised.  Mr Ryan dealt with it in an appropriate manner however it is not possible to withdraw a penalty in circumstances where there has been delay where misconduct is warranted.  

104    The respondent submitted the Commission could of course become involved if there was no risk on the conduct involved and the respondent had not acted reasonably and further Mr Edwards had not acted reasonably in coming to the findings he had and subsequently the respondent had not acted reasonably in imposing the reprimand that it did.  Then in such circumstances the Commission would be entitled to intervene.  The respondent had indicated earlier just because the Commission had a different view in relation to matters would not entitle the Commission to intervene.  It would require a finding on the part of the Commission that Mr Edwards did something that he should not have done, for example, came to a finding that he should not have done, or the respondent imposed a penalty that it should not have done, in terms of it being outside a reasonable range of penalties, or in some way that Mr Edwards’ findings were undermined by a critical flaw in the inquiry that he conducted.  Then, under such circumstances, the Commission may intervene. 

105    Counsel for the respondent submitted when matters of this nature come before the Commission and there has been a penalty imposed by the respondent the task for the respondent is whether the respondent has abused its right to impose a penalty where misconduct is found.  The respondent added there had to be some sort of penalty imposed once there was a finding from Mr Edwards that the charge by that stage had been made out under the terms of s 83 (as it was prior to 17 September 2009) of the PSMA.  It was not open to the Director General at that point in time to impose no penalty at all. 

106    The substantive issue for determination in these proceedings is whether the respondent’s decision to reprimand Ms Scott was reasonable in the circumstances. 

107    Further, it is necessary to take into account whether the respondent can demonstrate that insofar as was within its power, before reprimanding Ms Scott, the respondent conducted as full and as extensive as possible an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.  The respondent must be able to demonstrate it gave Ms Scott every reasonable opportunity and sufficient time to answer all allegations and whether it afforded the applicant’s member natural justice and procedural fairness.

108    With respect to s 58 of the Interpretation Act 1984 counsel for the respondent submitted when having regard for delegated functions:

As we have submitted, as per section 64(e) one of the teacher’s functions compels and encumbers them ‘to supervise students and to maintain proper order and discipline on their part.’  Additionally, regulation 38 provides that the physical action, as reasonable may be used for managing or maintaining order amongst students.  We say then, as the first person entrusted with the direct and immediate supervision of the students, it is the opinion of the teacher concerned, or their belief at a particular time that is relied or called upon to judge what is reasonable in the circumstances.  The submission, we say, is consistent, Commissioner, with section 58 of the Interpretation Act 1984, which provides that delegated - 58:

‘Delegates, performance of functions by:

Where under a written law the performance of a function by a person is dependent upon the opinion, belief, or state of mind of that person in relation to a matter and that function has been delegated under a written law, the function may be performed by the delegate upon the opinion, belief, or state of mind of the delegate in relation to that matter.’

(ts 198)

109    Accordingly reg 38 may be used within reason for the management of order among students.

Conclusion

110    There has been a significant body of evidence adduced in particular by the respondent to these proceedings.  At its core, the matter to be resolved in terms of the stark conflict in the evidence between the applicant union, the applicant’s member and the respondent is whether or not Ms Scott did or did not commit misconduct on the day in question.

111    In the applicant union's submissions, and its member’s evidence and indeed the respondent’s submissions, the evidence of Mr Ryan, Mr Broadbent, and Mr Edwards the Commission has carefully considered all of the oral and documentary evidence adduced in these proceedings.  I have also carefully observed the witnesses giving their testimony and considered carefully in the case of the applicant union and the respondent.

112    In turning to the question of credibility of witnesses the Commission accepts the evidence of Ms Scott both written and oral, without question.  Her evidence was forthright, demonstrating her professional standing as a teacher and in particular, her knowledge of children.

113    In terms of the evidence of Mr Broadbent, similarly, the Commission accepts his evidence both written and oral.  Mr Eamon Ryan's evidence is accepted by the Commission both written and oral.  Mr Ian Edwards’ oral and written evidence is accepted, with the exception of his evidence the difference between a ‘tap’ and a ‘hit’ when he said in evidence:

Yes, so - - -?---So I wouldn’t say that a tap is different to a hit, it’s still contact

(ts 143)

114    The Commission rejects this aspect of Mr Edwards’ evidence.  In making my decision regarding the evidence of Mr Edwards the Commission has had regard to the definition  of a ‘tap’ and a ‘hit’ from The Macquarie Dictionary Online, MacMillan Publishers 2011:

Tap

verb (tapped, tapping)

- verb (t) 1. to strike lightly but audibly; strike with slight blows.

2. to make, put, etc., by tapping.

3. to strike (the hand, foot, etc.) lightly upon or against something.

4. to add a thickness of leather to the sole or heel of (a boot or shoe), as in repairing.

verb (i) 6. to strike lightly but audibly, as to attract attention.

7. to strike light blows.

noun 8. a light but audible blow.

9. the sound made by this.

10. (plural) US Military last post.

11. a thickness of leather added to the sole or heel of a boot or shoe, as in repairing.

12. a piece of metal attached to the toe or heel of a shoe to make the tapping of a dancer more audible.

Hit

Verb (hit, hitting)

- verb (t) 1. to deal a blow or stroke; bring forcibly into collision.

2. to come against with an impact or collision, as a missile, a flying fragment, a falling body, or the like does.

3. to reach with a missile, a weapon, a blow, or the like (intentionally or otherwise), as one throwing, shooting or striking; succeed in striking.

4. to drive or propel by a stroke.

5. to have a marked effect on; affect severely.

6. to assail effectively and sharply.

7. to reach (a specified level or figure).

8. to be published in or appear in (a newspaper).

9. to come or light upon; meet; find: to hit the right road.

10. to guess correctly.

115    Given it was Mr Edwards who ultimately made the recommendation to the Director General of the respondent that Ms Scott be found guilty of misconduct the question needs to be determined as to whether the lack of Mr Edwards’ credibility between a ‘tap’ and a ‘hit’ is relevant regarding the right of the Commission to intervene.  Was the respondent in error in finding the applicant’s member committed misconduct?  Is the Commission able to intervene in the proceedings?  This is a matter I will subsequently consider. 

116    Before leaving the issue of credibility of witnesses I have been asked by counsel for the respondent to comment on the following assertions made by the applicant union with respect to Mr Edwards and Mr Broadbent:

We respectfully submit that it is apparent from the contents of the report that Ms Scott was prejudged in her action.  There is no circumstances, no reference to the objects of the Act.  They are a set of non-cogent sentences and statements, which effectively do not have any bearing on the findings at the end, but that’s all we say, Commissioner.  So on those grounds we say we submit that the reports are irretrievably biased against Ms Scott, in which this – they interpret the evidence.

In cross–examination Mr Broadbent also – statements were demonstrated to be unreliable and lacking any necessary regard, in that firstly, as we said, there was no experience.  Now, Mr Broadbent considered that the full extent of the so called analysis of the evidence is merely, merely limited to those two short paragraphs, 423 and 425 of the investigation report, that’s R1, tab 21 page 26.

(ts 211)

117    With respect to Mr Edwards the applicant union suggests that Ms Scott was prejudged as having committed a breach of discipline and in so doing they denied Ms Scott natural justice and procedural fairness:

Consequently, we say the respondent’s investigation as the decision–maker failed to afford Ms Scott the right to natural justice and procedural fairness as the respondent is momentarily encumbered to do for disciplinary procedures under Part 5, Division 3 of the Public Sector Management Act.

(ts 210)

118    When deliberate misuse of power is alleged, as the applicant union appears to be doing in these proceedings then evidence in support of the claim needs to be compelling Paton v Sydney Press Club (1940) 47 WN NSW (NSW) 57 at 58.  In such circumstances it follows that an allegation may hinder rather than help the applicant union's case.  It often suffices to allege mistake rather than malice or apprehend rather than actual bias, so that the burden of proof is less demanding: JRS Forbes, Justice in Tribunals, (3rd ed), The Federation Press 2010 [6.26].

119    The Commission rejects the applicant union's assertions regarding Mr Edwards and Mr Broadbent as having prejudged or applied any bias with respect to Ms Scott in these proceedings.

120    Given the Commission's findings on the issue of credibility with particular respect to Mr Edwards between a ‘tap’ and a ‘hit’ it is important to determine whether any subsequent action by the tribunal can then be taken to intervene or alternatively whether Mr Edwards's evidence is significant in terms of overturning the decision of misconduct.  The Commission finds Mr Edwards’ decision in this regard to not be significant however, if for example there were multiple of such comments, then my view may be somewhat different.

121    In Part 5 of Division 3 of the PSMA correspondence was issued to the applicant's member following the inquiry conducted by Mr Edwards.  That correspondence was issued by the Director General (R1, tab 50).  Importantly the inquirer had found Ms Scott had committed a breach of discipline with respect to:

3. It is alleged that you committed a breach of discipline contrary to Section 80 (c) of the Act in that on 20 November 2009, while employed as a school teacher, you used an unreasonable degree of physical force against a student.

122    Ms Scott was given the opportunity to submit written reasons to the Director General as to why the Director General should not take the proposed course of action, that being to impose the sanction of a reprimand, pursuant to s 86(b)(i) of the PSMA.

123    Relevant in the Commission’s consideration has been the genuineness and honesty on the part of Ms Scott from the outset commencing from her correspondence on 27 December 2009 (R1, tab 9) where she speaks of ‘tapping’ Ivy Weir on the head (Allegation 6).  However, having said that, Ms Scott clearly denies in her charges (26 May 2010) that she used an unreasonable degree of force against Ivy Weir (R1, tab 24).

124    The Commission specifies there are the powers under the relevant s 86(b)(i) of the PSMA to issue a reprimand as was proposed by the Director General (R1, tab 50).  The PSMA sets out a range of disciplinary procedures encompassed in s 86 at the most minor level a reprimand through to the most serious level a dismissal.  The Concise Oxford English Dictionary (11th ed, 2004), Oxford University Press defines a reprimand to be:

n. a formal expression of disapproval.

v. address a reprimand to.

125    On a number of occasions the respondent emphasised that this was a minor disciplinary action taken against the applicant’s member.  What was unfortunate in the Commission’s view was that the matter was subject to:

- an investigation and an inquiry;

- the fact that the incident took place in a country town where school children, teaching staff and their parents are in contact with each other (and their parents both inside and outside of working hours);

- a lengthy time to pursue the disciplinary process (14 September 2009 – 23 January 2011);

- the lack of confidentiality associate with the disciplinary process;

- the impact on the applicant’s member as to her future teaching opportunities in and around her town of residence.

126    The applicant union stressed the failure on the part of the respondent to carry out natural justice and procedural fairness to Ms Scott during the disciplinary process.  In particular the union referred to the case of Ireland [57], [59] and [63].  In this decision, Smith SC (as she then was) the importance of affording a person suspected of a breach of discipline, procedural fairness.  In the Full Bench decision Jose Rodriguez v Parks Industries Pty Ltd [2003] WAIRC 08443; (2003) 83 WAIG 1395, his Honour, Sharkey P said of the principles of natural justice or procedural fairness that:

29 This Commission is bound by the rules of natural justice or procedural fairness.  (See Hocks v Ken and Faye Davies t/a Kembla Built-In Furniture (1987) 67 WAIG 1527 (FB), RRIA v AMWSU and Others (1986) 66 WAIG 1553 (IAC), RRIA v AMWSU and Others (1990) 70 WAIG 2083 (IAC); DeVos and Minit Australia Pty Ltd (2003) 83 WAIG 219 at 222-4).

30 As a manifestation of the duty to afford procedural fairness or natural justice, the following are some of the relevant principles which apply.  (See DeVos and Minit Australia Pty Ltd (op cit) and the cases cited therein as well as the cases referred to hereunder):-

(1) The Commission is required to afford parties a reasonable opportunity to present their cases.

(2) There is no obligation on the Commission to ensure that the parties take advantage of that opportunity or to make the case for a party.

(3) A tribunal should not proceed while relying on the parties to assert their rights where to do so would deny the parties the opportunity to be heard.

(4) (a) However, whilst this Commission normally proceeds by way of oral hearings, in contested matters, it does not and does not need to do so where there is no question of credibility, or no contested issues of fact or where facts are agreed or admitted, or where such a course is agreed by the parties, or where the Commission in the proper exercise of its discretion under s.27, directs otherwise.  (S.26(1)(a) is not present for mere effect).

(b) For example, in this Commission, assertions from the bar table are often and can be accepted as evidence within the principles which I have set out above.

(5) An oral hearing is necessary in my opinion, in this Commission:-

(a) Wherever there is a conflict of evidence.  (See Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J.  See also, The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board (op cit)).

(b) Where persons are unable to express themselves in writing and may not have access to assistance to enable that to occur.  (See Chen Zhen Zi v Minister for Immigration and Ethnic Affairs and Others (1994) 121 ALR 83 (FCFC) and see also Jeffs v New Zealand Dairy Production and Marketing Board [1966] 3 ALL ER 863 (PC).

(c) Where personal characteristics are at issue.  (See for example Exell v Harris (1983) 51 ALR 137 per Neaves J (a promotion appeal)).

(d) Where the allegations are grave.  (See Finch v Goldstein (1981) 36 ALR 287 per Ellicott J at 304 and Ansell v Wells (1982) 43 ALR 41 per Davies J at page 52.

(6) What I have said does affect the use of documents, concessions, admissions, affidavits and written evidence of all types in the Commission.  I am referring to the use of oral evidence and the right to be heard orally as an element of the affording of procedural fairness.  In other words, the hearing of oral evidence in the context of what I have said in these reasons, is not always an essential element of the proper affording of procedural fairness.

127    Although the applicant’s member may not have been happy with the result when she received the correspondence from the Director General in March 2011 it is the Commission’s view that she was afforded at all times the procedural fairness and natural justice in accordance with the principles.  Ultimately the serious of findings which went from Mr Edwards to the Director General were as follows:

• I find that the respondent [the respondent in this case refers to Ms Scott] did engage in the conduct alleged in the charge;
• I find that there is proper evidence on which to assess that the respondent committed the act;
• I find that the actions of the respondent were not authorised by Regulation 38 of the School Education Regulations 2000;
• I find that the respondent’s conduct amounts to misconduct;
• I find the charge proven.

(R1, tab 44)

128    It was these series of findings that were written by Mr Edwards on 17 December 2010.  He went on to say:

Although the charge was classified as a serious breach of discipline, the degree of physical force employed is relatively minor.  For this reason I recommend that the appropriate penalty should be a reprimand. 

129    The applicant asserted that reg 38 of the Regulations covers a ‘tap’ on Ivy Weir’s head exercised by Ms Scott.  The respondent’s view is that head is a no go area and that such activity is demeaning and patronising.  Ms Scott in her correspondence of 27 December 2009 to the respondent admitted to tapping Ivy Weir on the head.  The reaction by the respondent appeared to be one of shock.  It is interesting that where teachers of the professional standing of Ms Scott namely 35 years are in a situation which may involve a level of discipline then varying judgments can ultimately be quite hurtful. 

130    The Commission finds that indeed Ms Scott did tap Ivy Weir on the head and that seemingly the conduct is not covered by reg 38 of the Regulations.  What has been unfortunate about this entire incident in my opinion is that those who have carried out the investigation and inquiry is that they have summarised Ms Scott’s actions to be ‘relatively minor’ and therefore subjected the penalty at the level of the reprimand.  Taking into account the number of years of experience and the area in which she lives including the environment, her profession and the issues I have already raised in this decision I do wonder whether in fact this is the way in which matters of discipline ought be raised with the teaching profession.

131    The substantive issue for determination in these proceedings is whether the respondent’s decision to reprimand Ms Scott was reasonable in the circumstances.  Further, it is necessary to take into account whether the respondent can demonstrate that insofar as was within its power, before reprimanding Ms Scott, the respondent conducted as full and as extensive as possible an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.  The respondent must be able to demonstrate it gave Ms Scott every reasonable opportunity and sufficient time to answer all allegations and whether it afforded the applicant’s member natural justice and procedural fairness.

132    In the first instance s 86 of the PSMA had occurred.  Relevant to the Commission’s considerations for the purposes of determining this question, that is whether it was reasonable to reprimand the applicant’s member in the circumstances are the particular sections of the PSMA; namely ss 80, 81, 83, 84, 85 and 86.  It is these sections which prescribe the procedures for dealing with an allegation concerning a breach of discipline.

133    It is the Commission’s view that the respondent’s decision to reprimand Ms Scott was reasonable in the circumstances and further that before reprimanding Ms Scott the respondent conducted as full and as extensive as possible an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances having regard for the standard meaning of the word reasonable.  Ms Scott was given every reasonable opportunity with sufficient time to answer all allegations and was afforded natural justice and procedural fairness in accordance with the standard principles.  Furthermore, it is the Commission’s view that both the inquiry and the investigation carried out independently of each other pursuant to the PSMA.

134    Before concluding I do find it necessary to comment on the issuance of a s 240 in these proceedings.  Given Mr Broadbent’s evidence and Ms Scott’s evidence (both written and oral) as to the concern regarding the ‘mob mentality’ in Three Springs it seems to the Commission that the issuance of a s 240 was most inappropriate when there were students potentially at risk on the school premises. 

135    The application is therefore dismissed.  An order will issue dismissing the application.