WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 01312

DELIVERED : friday, 5 December 2014

FILE NO. : U 114 OF 2014

Applicant

AND

Director General Department of Education

Respondent

CatchWords : Industrial Law (WA) - Termination of employment - Allegation of harsh, oppressive and unfair dismissal - Application to seek reinstatement - Findings of breach of discipline against a teacher - Penalty of dismissal disproportionate to breaches - Totality principle - Procedural unfairness - Disbarment - Trust and confidence - Principles considered - Applicant not harshly, oppressively or unfairly dismissed - Application dismissed - Industrial Relations Act 1979 (WA) s 29(b)(i); Public Sector Management Act 1994 (WA) Part 5, s 78, s 78(2), s 80, s 80A, s 80(b), s 80(c), s 82A

Legislation : Industrial Relations Act 1979 (WA),

Public Sector Management Act 1994 (WA)

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr D Stojanoski (of counsel)

Respondent : Mr D Anderson (of counsel)

Case(s) referred to in reasons:

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Blyth Chemicals v Bushnell (1933) 49 CLR 66

Bogunovich v Bayside Western Australia Pty Ltd (1988) 78 WAIG 3635

Danijel Pantovic v Public Transport Authority of Western Australia (2011) WAIRC 00876

Guretti v The Director General, Department of Education (2013) WAIRC 07799; (2008) 93 WAIG 1399

Hospital Employee’s Industrial Union and Wongan Hills Hospital No. 626 of 1978

Jones v Dunkel (1959) 101 CLR 298

Leahy v Liquor, Hospitality and Miscellaneous Union (2009) WAIRC 00580; (2009) 89 WAIG 1120

Lee v Director General, Department of Education and Training (2004) WAIRC 13757

Logan-Scales, Department of Consumer and Employment Protection v Ticket Xpress Pty Ltd (2005) WAIRC 02788

Milward, Department of Consumer and Employment Protection v Melrose Farm Pty Ltd t/as Milesaway Tours (2007) WAIRC 00505; (2007) 87 WAIG 1098

North West Council v Dunn 127 CLR 247 at 263

Oliver and Oliver t/as Club Sierra v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1994) 74 WAIG 2637

Pantovic v Public Transport Authority of Western Australia (2011) WAIRC 00876; (2011) 91 WAIG 2094

Public Employment Industrial Relations Authority v Scorzelli [1993] NSWIRC 48

Salemi v MacKellar (No 2) (1977) 137 CLR 296; 14 ALR 1

Samata v Fraser Chief Executive Officer Shire of Gingin (2011) WAIRC 00116; (2011) 91 WAIG 1975

Shire of Esperance v Mouritz (1991) 71 WAIG 891

The Minister for Health in the Metropolitan Health Services Board v Drake-Brockman (2012) WAIRC 00150; (2012) 92 WAIG 2013

Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385

United Voice WA v Director General, Department of Education (2014) WAIRC 01137; (2014) 94 WAIG 1742

Reasons for Decision

1            Ms Belinda Pinker (the applicant) was employed by the Department of Education (the respondent) at Southern River College in June 2005 and her employment was terminated by the respondent on 28 April 2014.  The respondent dismissed the applicant asserting that each of the six allegations against the applicant constituted a separate breach of discipline contrary to s 80 of the Public Sector Management Act 1994 (WA) (PSMA).  The respondent considered a range of penalties other than termination and determined that in this matter termination of the applicant's employment was appropriate.  The applicant complains that her dismissal was harsh, oppressive or unfair.  She seeks reinstatement.  This is opposed by the respondent.

Background

2            On 17 June 2013, information was received by the Standards and Integrity Directorate (SID) of the respondent alleging that whilst a teacher at Comet Bay College (CBC) in 2010 and Southern River College (SRC) in 2011 the applicant directed Mr Glenn Meinema, her ex-partner, to check student assessments and to access the respondent’s network and that the applicant provided final semester 1 grades for students from SRC prior to marking their assessments. 

3            On 2 December 2013, a letter was sent to the applicant by Mr Geoff Davis of the respondent, setting out seven allegations and advising the applicant that the respondent was treating the matter as a disciplinary matter pursuant to s 81 of PSMA (exhibit Education 3).  The seventh allegation was subsequently withdrawn by the respondent.

4            On 26 May 2014, the applicant filed a Notice of Application in the Western Australian Industrial Relations Commission (the Commission) applying for an order of reinstatement or compensation in respect of harsh, oppressive or unfair dismissal for the reasons set out in the application.  On 20 June 2014, the respondent filed a Notice of Answer in the Commission denying that the applicant's dismissal was harsh, oppressive or unfair and seeking an order that the application be dismissed.

Applicant’s Opening Submissions

5            When considering the conduct the respondent complained of, it is conceded by the applicant that the conduct complained in part occurred.  The applicant submits that the penalty subsequently prescribed, that being that dismissal is disproportionate when having regard to the conduct complained of by the respondent.  It is the task of the Commission to determine whether the legal right of the respondent to terminate has been exercised so harshly or oppressively as to amount to an abuse of that right considering the Industrial Appeal Court decision in Undercliffe Nursing Home v Federated Miscellaneous Workers’ Union of Australia, Hospital Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 (Undercliffe) and the decision in North West County Council v Dunn (1971) 126 CLR 247, 263.

6            The applicant referred to the termination of the employment relationship by the respondent as amounting to a decision to exclude or disbar the applicant.  In this case the applicant can no longer continue in her chosen profession as the respondent in Western Australia is the largest employer of teachers.  It is therefore more harsh than simply a termination of an employment contract for example in the private sector.  The Commission is being asked to have regard to the impact of the dismissal as being greater in its scope.  The Commission therefore needs to have regard to the totality principle.  When considering the issue of totality the Magistrate in Milward, Department of Consumer and Employment Protection v Melrose Farm Pty Ltd t/as Milesaway Tours; (2007) WAIRC 00505; (2007) 87 WAIG 1098 considered:

In arriving at the appropriate penalties, this Court must, of course, impose penalties which are meaningful and take account of the maximum available pursuant to the legislation.  The penalty must be relative to the conduct of the respondent in each instance and must not be out of kilter with the total underpayment.  Further it ought not in totality, be crushing and a consideration of the totality principle is entirely appropriate. 

7            It is the view of the applicant that the respondent should have had regard for the entirety of the applicant’s conduct when determining the penalty including the implications for future employment.  The applicant was charged with a series of breaches that were not only similar but in some cases the same.  The punishment of dismissal was, in the view of the applicant, not comparable to the cumulative conduct complained of.  It has had the effect of being disparate to the conduct complained of.  Having regard for the decisions in United Voice WA v Director General, Department of Education (2014) WAIRC 01137; (2014) 94 WAIG 1742 Logan–Scales, Department of Consumer and Employment Protection v Ticket Xpress Pty Ltd (2005) WAIRC 02788; Oliver and Oliver t/as Club Sierra v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1994) 74 WAIG 2637.

8            The conduct complained of did not, in the view of the applicant, repudiate the employment contract having regard for the Undercliffe decision.  There was no intention to repudiate the respondent’s authority in this regard.  The Commission must determine whether there was, in respect of the conduct, an intention on the part of the applicant to repudiate the employer's authority and employment contract.  The conduct complained of was not conduct with such gravity as to indicate a rejection or repudiation of the employment contract by the applicant.

9            In addition the trust and the confidence between the employer and the employee was not broken.  Counsel for the applicant submitted that the conduct must be 'destructive of the necessary confidence between the employer and employee' so as to constitute dismissal having regard for the decision in Leahy v Liquor, Hospitality and Miscellaneous Union (2009) WAIRC 00580; (2009) 89 WAIG 1120 and in addition Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66.

10         In determining whether the applicant was dismissed in circumstances that were harsh, oppressive and unfair the Commission must have regard for and take into account whether the applicant was afforded procedural fairness.  It is the applicant's submission that she was not afforded procedural fairness in this regard and accordingly lack of procedural fairness was a factor constituting unfairness in the dismissal.  The applicant’s counsel referred to the decisions of the Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 and Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 (Bi-Lo) in determining whether the applicant was dismissed in circumstances that were harsh oppressive and unfair.

11         The Commission must take into account whether the applicant was dismissed by a public sector body that being the respondent and whether the respondent had complete regard to the strict procedural fairness requirements that apply.  Counsel for the applicant submitted that in the event of the absence of a fair procedure incorporating the principles of natural justice as is contended by the applicant the respondent is not entitled to subject the applicant to the penalty of dismissal.  In determining whether the applicant was unfairly dismissed the Full Bench considered the decision in The Minister for Health v Drake-Brockman (2012) WAIRC 00150; (2012) 92 WAIG 203 and Bi-Lo.

12         The next step is for the Commission to make findings in relation to the circumstances of the applicant’s conduct having regard for the length and/or quality of the employee's service and any other relevant matters to be taken into consideration in determining whether the dismissal was harsh, oppressive or unfair.  Having regard for these factors will enable the Commission to determine overall whether the dismissal was harsh, oppressive or unfair and decide finally whether the penalty of dismissal as determined by the respondent was appropriate in relation to the conduct.

Applicant’s Evidence

13         Ms Everal Mary-Anne Pearse gave evidence for the applicant.  Ms Pearse is currently a principal with the respondent, based at SRC and has been in this position for three and a half years.  Prior to that, Ms Pearse was the principal consultant for the regional office, and before that she was the principal and deputy principal at Melville Senior High School.  Ms Pearse has been in the teaching profession with the respondent for some 31 years.  Ms Pearse gave evidence she was the applicant’s principal in 2011, at the time when the applicant did relief mathematics teaching at SRC, and again in 2013, when the applicant was a science teacher at SRC.  Ms Pearse gave evidence the applicant demonstrated a vast improvement in her classes and demonstrated:

a real passion for her teaching and curriculum understandings.  I would generally view her classes to see some of the great work she was doing.  At this time, Ms Pinker was managing her students very well. 

(exhibit Pinker 1 [10])

14         Ms Pearse gave evidence that she was surprised at the allegations made of the applicant and reviewed the assessments the applicant was using.  These were found to be accurate and were supported by her head of department.  The witness gave evidence that her trust and confidence in the applicant was not broken:

My level of trust in Ms Pinker today is completely intact and the trust and integrity I place in Ms Pinker is very good. 

(exhibit Pinker 1 [13])

15         The witness gave evidence that with respect to the issue of dismissal received by the applicant, it was her view as a principal and a member of the teaching profession that such a penalty should not have been imposed by the respondent.

16         The witness gave evidence that Mr Peter Meinema, the father of the applicant’s ex-partner, came to SRC and made allegations against the applicant during family law proceedings between the applicant and her ex-partner.  The witness gave evidence she was unable to deal with the matter and there was no option but to refer the allegations to the respondent:

When the department officially made the alleged breach of discipline allegations against Ms Pinker, I wrote a commendation reference for the [sic] Ms Pinker during the investigation process and wanted to submit this to the investigator appointed by the department so that the investigator could consider this reference. 

However, the Regional Director, South Metro (of the Department) directed me not to submit any such references with regards to Ms Pinker.  I did not submit the reference.  It is my view the Department did not take into consideration all the relevant material available to them prior to making a decision. 

Further to this, the Department or [sic] Standards and Integrity never approached me to ask what procedures I had put in place to ensure this kind of thing did not happen again. 

(exhibit Pinker 1 [17] - [19])

17         The witness gave evidence the applicant gives 120% of her time, living for children and education in particular from low socioeconomic backgrounds.  Ms Pearse indicated that the applicant was an important part in developing the robotics programme at SRC and assisting children to learn about science in relation to robotics.

18         Mr Michael John Stewart Erith gave a written statement (exhibit Pinker 2) on behalf of the applicant.  Mr Erith is currently the deputy principal of SRC and has been with the respondent since 1982, and has been in the position of deputy principal with the respondent since 2003.  The witness’s statement was largely similar to the evidence of Ms Pearse in that Mr Erith submitted unchallenged evidence that the applicant had strong relationships with students and, importantly:

[P]resented innovating and challenging lessons.  She achieved good results.  This is a good achievement in light of SRC, and especially Coodanup Community College having very difficult students to teach.  Belinda was able to get these students engaged (even with some of the most challenging students). 

(exhibit Pinker 2 [8])

19         In the statement it was asserted that the applicant made herself available for after school activities.  The witness indicated his trust and confidence in the applicant was not broken and remained that way.  The witness in his statement spoke of a difficult situation at SRC when the applicant was first appointed in that the classes she was required to deal with were not functioning well in relation to student behaviour.  The applicant was able to deal with the behaviour of students and deliver the curriculum required. 

20         The applicant was later appointed to a merit based position in 2013, an associated science related position.  Prior to the applicant’s termination, she established a team of 10 students that participated in a robotics challenge involving an Australia-wide competition, the basis of which the applicant put together with a programme associated with Curtin University.  The applicant’s team comprised of SRC students and they competed against a number of teams from across Australia, together with China, and went on to be placed fifth in Australia and were the top team from Western Australia. 

21         The witness’ statement demonstrated that the applicant in recent years has shown great improvement and commitment to her own professional practice.  She was awarded a scholarship to a Masters in Education at the University of Western Australia.  There was a gap created by the termination of the applicant and the special skills’ set she brought to SRC in that the new employees that have been brought in to replace the applicant are not achieving the levels the applicant had brought to the school: 

Belinda actively promoted science and robotics at SRC.  Her passion is to develop girls curiosity for science and engineering.  A group of 10 girls were wanting to be a unique team at this years FLL Challenge.

Belinda was proposing to take about 60 students to Curtin University this year to compete in the SLS Robotics challenge (about 4 or 5 teams) and as a result of Belinda’s removal, not [sic] students will not be going.

(exhibit Pinker 2 [37] - [38])

22         The witness statement submitted by Mr Erith indicated he had no doubt with regard to the applicant’s ability to carry out her job professionally, and furthermore he would be happy to have her back at SRC as a teacher in the future: 

If there was to be an active management programme instituted as a result of this process I would be comfortable to monitor and report to the Department. 

If you were able to allow Belinda to show you the detail of her programming and insight to the Minerals program that she developed at SRC, I would lay it to anyone to be able to present a better programme. 

(exhibit Pinker 2 [44] - [45])

23         Mr Glenn Waters O’Rourke submitted a written statement on behalf of the applicant (exhibit Pinker 3).  Mr O’Rourke is currently employed by the respondent, having been employed as a science teacher by the respondent for some 32 years, and has been head of learning in the area of science for the last six years.  With respect to the applicant, the witness was her direct line manager from her appointment at SRC in 2013, until her termination in term 1, 2014, and in such a role had the opportunity to view the applicant in her classes.  As a colleague attending the same school as the applicant and required as part of the applicant’s head of learning area role, the witness gave evidence he is required to go in and out of classes in his supervisory capacity.  The witness statement outlined there was nothing untoward with regard to the applicant’s classes, and similarly to the previous two witnesses, namely Mr O’Rourke and Ms Pearse, the witness outlined in his written statement the importance of the applicant’s role in the robotics course at SRC and, in addition, her teaching abilities and ability to carry out her job professionally.  Finally, the witness wrote in his statement that he was not aware of any student being adversely affected by the applicant’s conduct in regard to the allegations made. 

24         In concluding his witness statement, Mr O’Rourke states:

In my professional opinion, having been a teacher for 32 years, in a Head of Learning Position for 6 years and having also been Belinda’s direct line manager, what Belinda brought to SRC and the Department of Education far out-weighs the penalty of dismissal Belinda received. 

The Department of Education are at a loss without Belinda. 

(exhibit Pinker 3 [34] - [35])

25         Ms Fiona Margaret Harling gave evidence for the applicant.  Ms Harling is a mathematics teacher at SRC, employed by the respondent.  The witness has been a mathematics teacher for approximately 20 years, 13 of which have been for the respondent.  During 2011, the witness, for nine months, taught alongside the applicant when she was a relief teacher at SRC, and again in 2013, some two years in all.  In the witness’ mind, there was no requirement that the applicant required any assistance in the classroom.

26         When the applicant first came to SRC in 2011, it was clear that the previous teacher had not included some of the assessments in the mathematics class.  Because it was a concurrent unit, it was determined that an estimated mark could be allocated for first semester and the witness gave evidence that, together with the applicant and in consultation with the head of department, that in second semester when the students had concluded all of their assessments, the semester 1 mark could be adjusted if necessary.  This did not affect the students or their final marks.  Ms Harling gave evidence that first semester results are a progressive grade and are generally about informing parents with regards to where the children are at, and it is the final grade, the one at the end of the year, that overrides the semester 1 result.  If the students are in consecutive courses, then this cannot be done.  But it is where the students are in concurrent courses, such as are arranged at SRC and in this particular maths course that the witness taught together with the applicant that this is carried out as standard practice.

27         The witness gave evidence that she became aware that one of the allegations she now knows to be allegation 4 was in relation to the early allocation of mathematics marks to students in concurrent classes.  However, she was not contacted by anyone from SID to either participate in an interview or provide any comments with regards to the allegation.  The respondent did not appear to understand that the arrangement in concurrent courses was common practice. 

28         The witness gave evidence similar to the previous witnesses, that her trust and confidence in the applicant remained unbroken.  Further, she held the applicant in high esteem, particularly with her teaching ability in the manner she treated children:

[I]t would be a real shame for the Department of Education to lose a very bright and talented teacher.  Belinda is effective with the low socio economic students.  These students really need Belinda. 

(exhibit Pinker 4 [24] - [25])

29         The witness gave evidence that the applicant’s impact in the class remains even though she has been terminated.  In cross examination, the witness clarified that her head of department was Ms Andrade.  Counsel for the respondent asked on several occasions whether the witness was aware of or understood what the allegation was against the applicant relating to the marking issue.  In response, the witness answered: 

?‑‑‑And I’m feeling kind of badgered at the moment, just to give my heads‑up on that one. Okay? I am feeling quite badgered at the moment as a witness and I’m – and I’m sorry that that’s where – but I’m – I’m trying to work out why an allegation has been made about a – a final mark that’s not final. 

(ts 35)

30         In response, counsel for the respondent submitted that he was not attacking the credibility of the witness’ statement, simply suggesting that there was some confusion as to the wording and secondly, was the proposition put in contrary terms to the evidence that the witness had given as required by the rule in Jones v. Dunkel (1959) 101 CLR 298 and it would be improper to continue without the proposition being put so as to avoid an adverse inference being drawn. 

31         In re-examination, counsel for the applicant clarified that the applicant arrived at SRC close to reporting time as a relief teacher.  The witness was asked to define what a marking guide meant in mathematics, and explained that a marking guide is used as the solution for marking purposes.  It is used to create consistency across teachers within a department or across the State, and it is used as a marking guide.  The witness gave evidence that it is not just how the final answer is applied; it sets the methodology and the demonstration of behaviours through common calculations.

32         Mr Sheldon Smith gave evidence for the applicant.  Mr Smith is employed in two roles at Curtin University as course coordinator and equity and diversity advisor.  The witness has been employed at Curtin University for about four years, prior to that he worked in the high school system in South Africa.  The witness gave evidence he has been employed in the education sector for approximately 22 years.  The witness currently works with the applicant as part of his equity and diversity role, and is the applicant’s direct line manager.  The applicant is employed at Curtin in the role of tutor, mentor and general office administrator.  The witness gave evidence he has been working with the applicant for approximately five months, however he has been familiar with her work for some three years and knew of her work prior to actually commencing work with her at Curtin.  The witness gave evidence that very few qualified teachers such as the applicant wished to work in the public sector, in particular in schools such as SRC.  In the main, such teachers wish to work in the private school sector.  The witness gave evidence that the applicant was an excellent administrator, at an operational level, and that her dismissal is a loss to the public school system: 

I would like to see her be re-integrated into the public school system as soon as possible, for the sake of the education of students. 

(exhibit Pinker 6)

33         In cross-examination, counsel for the respondent questioned the witness on his familiarity as to whether he was aware of the allegations in relation to the specifics of why the applicant was dismissed for professional misconduct. 

34         The witness gave evidence that he spoke with the applicant about the allegations, both before and during the interview process.  The witness gave evidence that he also discussed the matter with other staff at Curtin. 

35         Ms Belinda Rosemary Pinker was sworn to give evidence.  Her witness statement was identified as exhibit Pinker 7.  The applicant gave evidence that she had been employed by the respondent from June 2005 to April 2014, in the main as a science teacher but also in the area of mathematics.  Prior to 2005 the applicant was a swimming teacher with the respondent from 1995 to 2005, in the main at the Armadale Aquatic Centre, a low socioeconomic area.  Before the allegations that were outlined in correspondence dated 2 December 2013, the applicant had not any disciplinary matters raised by the respondent.  At the time the letter was received by the applicant, there were relevant matters happening in the witness’ life, namely: 

1. The applicant was subject to proceedings in family law, in relation to a legal separation between herself and her then‑partner of some 12 years, Mr Glenn Meinema;

2. It was asserted in a written statement that Mr Glenn Meinema had mental health issues which involved mood changes;

3. It was asserted there was some physical violence involved whereby the witness was required to leave her home; and

4. The witness’ mother was ill during this period. 

(exhibit Education 3)

36         The witness gave evidence that during her employment at CBC she was suffering from allergy issues and required time off.  As a consequence, the witness sustained a workers’ compensation claim.  Difficulties were developing in relation to the witness’ relationship with her partner and evidence was led that there was an altercation whereby she left her partner and drove to her mother’s home continuing to work at CBC for a period.  Following an altercation with her principal and line manager, the witness reduced her work to relief work as it was a long drive from Kelmscott to the school.  At the time, the witness’ partner was in Alma Street, a psychological unit associated with Fremantle Hospital. 

37         The witness gave evidence she contacted SRC asking for relief work.  At the time, the witness was not looking for a fulltime position nor a permanent position, but given science was her preference she gave evidence she was able to also teach relief mathematics.  SRC had available a relief mathematics position in 2011, and hired the applicant. 

38         Following the investigation by SID, the witness gave evidence that everyone she spoke to considered that in relation to what she had done:

Everybody I spoke to didn’t – didn’t think that what I had done, didn’t assume that I’d get a dismissal. They kept it on the table because it was in the paperwork.  They said, you know, it is there but it’s highly unlikely you’ll get one of those.  You could get a 10 day fine, you could get a drop in level.  And even people implied that that wouldn’t be that severe. 

(ts 53)

39         The witness gave evidence there was scope for the respondent to reduce her classification level as an appropriate penalty.  The witness gave evidence that it was degrading to find out she had been terminated and to discover that the respondent had not informed the principal at SRC was also difficult to deal with.  The applicant gave evidence that the manner in which she had to enter the front office, hand in her name badge, her keys and any school materials that she had at the time, and exit the school site was an extremely unpleasant experience: 

I’ve never seen kids get down on their hands and knees and beg a teacher to come back.  I’ve seen that now.  That doesn’t happen, that’s not normal.

(ts 54)

40         The witness gave evidence that she is prepared to take any other penalty the respondent is prepared to execute, other than termination.  The witness gave evidence that the dismissal has negatively impacted on her livelihood.  In particular, she is unable to take a loan out to ensure her home is liveable given she is currently on a casual contract at Curtin University.  In addition, the witness is unable to play hockey this year as the local neighbourhood understand she has been dismissed by the respondent.  The local neighbourhood assume that the witness was dismissed by the department for inappropriate interaction with children.  The witness expressed her preference to be teaching in a lower socioeconomic area.  The witness indicated she was able to get a job in a private school however she had spent the majority of her teaching years working for schools in lower socioeconomic environments. 

41         In their response to the assertion by the respondent that the applicant committed a breach of discipline contrary to s 80(b) of PSMA by contravening the respondent’s Code of Conduct by directing the applicant’s then partner, Mr Glenn Meinema to check assessments completed by students on the applicant’s behalf, the applicant gave evidence that she grouped the allegations 1, 3 and 6 together.  The witness gave evidence that she had grouped the allegations together because they were exactly the same assertions being made by the respondent, and on each occasion she had directed Mr Glenn Meinema, to check assessments on her behalf:

I would ask my then partner to check the working out of my marks as I felt I had made some mistakes.

(ts 60)

42         In respect of allegations 2 and 5, the witness indicated the respondent’s allegation that she had committed a breach of discipline contrary to s 80(c) of PSMA by committing an act of misconduct in contravention of respondent’s Telecommunications Use Policy by providing her personal logon information, including her password, to Mr Glenn Meinema to access the respondent’s network was correct.  In relation to that particular allegation, the witness indicated that she was having difficulties accessing the data and was having trouble with her computer.  Mr Meinema was good at fixing computers and the difficulty she experienced with the computer occurred mainly at weekends. 

43         With respect to allegation 4, the witness indicated it was alleged by the respondent that she had committed a breach of discipline contrary to s 80(b) of PSMA by contravening the respondent’s Code of Conduct, namely by allocating semester 1 grades to students prior to marking their assessments.  The witness gave evidence it was her view that allegations 1, 3 and 6 should have been dealt with by the respondent as one allegation.  Similarly, allegations 2 and 5 should have been dealt with as one allegation and allegation 4 should have been dealt with as one allegation.  It was submitted by the applicant, that she would have been found in total, to have breached three disciplinary matters, rather than six. 

44         The applicant went on to submit her remorse for her actions and accepted that she had made mistakes with regards to the allegations: 

I am very remorseful for my actions.  I feel embarrassed and ashamed by my actions in relation to this matter.  I accept I am accountable for my bad choices which also happened during the hardest period of my life.  At the time I was going through a legal separation from my 12 year relationship (family law proceedings) with my partner; I was suffering serious physical abuse at the hands of my then partner; and I was also caring for my very ill mother who had cancer. 

I have worked very hard since this nightmare period of my life finished, especially at Southern River College in Gosnells where I have the total trust and respect of my direct line managers and my administration team. 

(exhibit Pinker 7, [81] - [84])

45         In cross-examination, counsel for the respondent questioned the applicant in relation to the grouping of the allegations, in particular allegations 1, 3 and 6.  The applicant was asked to confirm whether she gave her password to Mr Glenn Meinema.  She answered in the affirmative.  When asked why she gave her password to Mr Glenn Meinema, the witness answered she was having trouble accessing her computer and accessing data.  Mr Anderson, on behalf of the respondent, went back to the allegation in the applicant’s submissions which portray: 

“I asked Mr – my partner, Mr Glenn Meinema to check my working out of marks as I felt I had made some mistakes,”  is that correct?---Yes. 

Now, I put it to you that when you were interviewed by the investigator in regard to these allegations, the investigator put it to you that your partner marked papers for you outright?---Yes, she did. 

And your response to the investigator was that he did, is that correct?---Parts. 

This is not a game, Ms Pinker?---I’m not playing it as a game. 

Perhaps you’d like to elaborate on that for the Commissioner? ---I am more than happy to elaborate.  I got him to mark some multiple choice sections.  I got him to do – to check calculations, but when it came to adding up final exam booklets and stuff like that, no, I did that personally. 

(ts 67)

46         The applicant agreed that on occasion Mr Glenn Meinema would correct the applicant’s marking out of assessments in his own right, without checking with the applicant first.  Counsel for the respondent asked the applicant which was more serious, giving Mr Glenn Meinema her logon details to allow him to enter marks into the system; or alternatively, giving Mr Glenn Meinema logon details to fix the computer.  In response, the applicant answered:

They’re both serious. 

Which in your – in your opinion is more serious?---Either way, he’s got access. 

(ts 68)

47         The witness gave evidence that she directed her partner to mark her papers outright with respect to multiple choice sections.  It was at this stage counsel for the respondent asked the applicant:

Why do you come to the Commission seeking the Commission to review the penalty given to you in regard to the allegations and not disclose all your own admissions and I put it to you that you only select the less serious admissions in terms of what you disclose.  I’m asking you why is that?

--- Because I believe the wording of some of the allegations to be disproportionate to what is actually happened. 

No, we’re not dealing with the wording of the allegations.  I’m asking you with regard to your admissions to those allegations, why you don’t give the Commission the full version of your own events, that is to say, the full scope of your admissions.  You don’t need to answer that now because I’ll come back to that but before I do, I put to you that the effect of your submissions in your witness statement and in your evidence, is to mislead the Commission. 

(ts 68, 69)

48         An extract from exhibit Education 1 was put to the witness by the respondent, specifically the third last paragraph on the second page.  The exhibit is from the applicant’s counsel and specifies, on the third paragraph of the second page:

My client will rely on this letter in adjudication of this matter.  We believe that the response contained above makes the tendering of the investigating (sic) report unnecessary. 

(exhibit Education 1)

49         Effectively, it was put to the applicant that her lawyers were acting on behalf of her, submitting that the correspondence (exhibit Education 1) was all that the Commission required.  The Commission did not need to have regard to any agreed facts.  The Commission did not need to consider the investigation report as drawn together by SID on behalf of the respondent.  It was suggested by the applicant that the letter (exhibit Education 1) was all that the Commission needed to rely upon. 

50         The witness indicated that she understood and did not want to change her position having regard for the schedule attached to her application at the time it was lodged.  The applicant was given an opportunity to read her application that was submitted to the Commission, before answering the question.  Subsequent to determining her position, the applicant was given an opportunity, with the consent of the respondent, to consult with her counsel by way of a brief adjournment.  Counsel for the respondent questioned the applicant as to whether the facts in the application were correct and complete to the best of her knowledge and belief.  In response, the applicant answered:

Yes, they are.

(ts 73)

51         It was at this stage that the correspondence submitted at the commencement of proceedings by the respondent was tendered into evidence, namely exhibit Education 1 from the applicant’s counsel. 

52         As a result of the qualifications made by the applicant, it was put by the respondent:

Yes.  Ms Pinker, I – I say to you that the position you’re taking in your letter through your lawyers and also in your originating application, affects the credibility of your application fundamentally.  I put that to you and I say that that is the case, because your lawyers are asking the Commission to determine the proportionality of the penalty imposed upon you, by simply having regard to the partial admissions made by you as contained in that letter and as contained in the application.  I put it to you that you have made admissions that your conduct, as particularised in your responses, can be described as less serious than the admissions that you have agreed to admit in your applications and I put to you that the effect of that – the effect of your submissions, is misleading to the Commission.  Now, you see, I started my cross‑examination by telling you there are points of the application that troubled me ‑ ‑ ‑? --- Yes. 

(ts 74)

53         The witness gave evidence that the findings made in relation to the allegations by the respondent are reliant upon the evidence gathered by the investigation.  The applicant answered in the affirmative.  The applicant gave evidence that she had read the investigation report (see attachment to exhibit Education 2).

54         The witness agreed that in relation to allegations 2 and 5, in at least one of those matters the applicant gave her password to Mr Glenn Meinema to access the network, and that the details for accessing the network were provided by the witness in order for Mr Glenn Meinema to enter marks.  In addition, in relation to allegations 1, 3 and 6, the witness had committed a breach of discipline by contravening the respondent’s Code of Conduct by directing Mr Glenn Meinema to check students’ assessments of students from SRC.  In this case, it was put to the witness that Mr Glenn Meinema was used to check the witness’ marking student assessments.  Furthermore, Ms Andrade did not direct the witness to provide an approximation in grades to the students in semester 1 at SRC, which is contrary to your evidence:

So turning to the evidence that you don’t agree with in regard to the allegations, you are aware that you’re alleged to have entered final semester 1 grades prior to marking assessments and you have admitted to that allegation.  Is that correct?‑‑‑Yes. 

…

And isn’t it true, in fact, that Ms Andrade says she asked you to give students an exam and she asked you to enter those grades as the final semester grades?‑‑‑She did for year 8 and for year 9, not for the upper school’s marks.  And those marks were entered for the year 8s and year 9s. 

(ts 75)

55         The applicant gave evidence that Ms Andrade did direct the witness to do lower school examinations.  The witness was not involved in upper school matters.  The applicant gave evidence that she did not agree with some of the investigation report’s findings.  The witness was asked whether she was content for the Commission to have regard for all of the evidence for the purpose of determining whether the penalty imposed by the respondent was reasonable and fair in the circumstances.  In response, the witness confirmed that the Commission could have regard for all of the evidence. 

56         The witness was shown [8] of her witness statement (exhibit Pinker 7) and a particular section was read out to the witness: 

My then partner had very serious mental health issues including severe depression and schizoid personality disorder.  This personality disorder fluctuated and there were periods when he was not showing any signs of the personality disorder. 

(exhibit Pinker 7)

57         The witness was asked to explain the context of this particular paragraph in her statement.  The applicant indicated that whilst it did not make the situation less offensive, it did give some background.  The applicant was asked if her partner’s medical condition was as the applicant alleged, why she would ask him to mark papers.  The witness, in response, indicated that some days were good and others were not so good.

58         The applicant gave evidence that from her point of view, the respondent did not take her circumstances into consideration when determining whether she ought to be dismissed.  Specifically, when interviewed the applicant indicated she was not asked about the allegations:

I got confronted by the allegations.  I was asked direct questions.  I wasn’t given the opportunity to fully explain the reasoning behind it. 

You see, but before the finding and the penalty was imposed you were given an opportunity to respond?---I did. 

(ts 79)

59         The witness indicated her future work appeared to be put to one side, even though the witness indicated she may have made a mistake.

Applicant’s Closing Submissions

Penalty of dismissal disproportionate

60         The applicant submitted the dismissal was harsh, oppressive and unfair when taking into account the conduct complained of by the respondent.  The applicant referred to the decision by Scott ASC in Jakob v Director General, Department of Education (2012) WAIRC 01063; (2012) 93 WAIG 41 where it was found that the conduct complained of was not sufficient to justify dismissal.

61         In Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Department of Education and Training (2008) WAIRC 01260; (2008) 88 WAIG 1709, the Liquor, Hospitality and Miscellaneous Union brought an unfair dismissal claim on behalf of its member, Mr Deas.  Reinstatement of employment was awarded by Harrison C and part of the argument made out by the applicant was that Mr Deas’ dismissal was disproportionate. 

62         The Commission is required to enquire as to whether the applicant had received ‘less than a fair deal’ and whether the applicant was given a ‘fair go all round’.  The Commission must examine the severity of the dismissal as per Brinsden J in the Undercliffe decision.

63         The applicant acknowledged that the respondent had the right to terminate her services.  The question to be considered by the Commission is not one as to the respective legal rights of the employer or the employee, but a question as to whether the legal right of the employer has been exercised so harshly or oppressively against the applicant as to amount to an abuse of that right.  Such a test was adopted by Brinsden J in Undercliffe and was observed by Walsh J in North West County Council v Dunn.  In Undercliffe, the majority judgment adopted a test that the respondent had abused its right to dismiss the applicant by not allowing procedural fairness and failing to take into account consideration of impeccable conduct and service over a long period of years. 

64         It is submitted in light of the applicant’s otherwise flawless record of service with the respondent and having regard to her level 2.9 position, and forthcoming completion of her Master’s degree which would have placed her into a level 3a administrator’s role, the respondent could have imposed an alternative penalty under the relevant provisions of PSMA.  The respondent could have: 

(a) reduced the level of classification of the applicant;

(b) reduced the applicant’s monetary remuneration;

(c) imposed a fine on the applicant; or

(d) revoked the applicant’s Master’s programme that was being fully funded by the respondent.

An alternative penalty would have been more appropriate.

65         Mr Eamon Ryan in giving evidence stated he was not the decision maker or the author of the correspondence that ultimately dismissed the applicant from her employment.  It therefore follows that Mr Ryan is not the person to give evidence as to the appropriateness of the penalty subsequently imposed by the director general.  The decision maker was not called by the respondent, nor did she file a witness statement.  The respondent at no stage led evidence or gave a reason as to why this was the case.  In such circumstances, the applicant invites the Commission to draw an adverse inference in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298.  This principle was recently referred to by the Commission in Guretti v The Director General, Department of Education (2003) WAIRC 07799; (2003) 93 WAIG 1399.  In determining whether the dismissal was disproportionate to the conduct as complained of so as to amount to an unfair dismissal, the Commission may take into account further following factors. 

The totality principle

66         The termination of the employment relationship by the respondent represents for the applicant a disbarring order.  The applicant is in her view severely prejudiced in not being able to pursue her profession given that the respondent is the largest employer of teachers in the State of Western Australia.  The penalty therefore is not just limited to being an industrial penalty, but is also a civil penalty.  The Commission has to have regard to the totality principle. 

67         The applicant committed a number of breaches that were not only similar but were the same.  It was said by the applicant that:

The penalty of dismissal was not proportionate to the aggregate conduct complained of. 

a. The conduct complained of arises from 3 alleged acts, however the respondent have imposed a penalty as if though there were 6 separate alleged acts and therefore set aside the totality of the conduct when imposing the penalty. 

b. Allegations 1, 3 and 6 are allegations for the same conduct and allegation in the same way that allegations 2 and 5 were also allegations for the same conduct.  The Respondent should have viewed this as 2 allegations but instead unfairly and harshly imposed a penalty on the basis of 5 separate distinctive allegations. 

When having regard to the totality principle, the dismissal is harsh, oppressive and unfair, and had the effect of being disproportionate to the conduct complained of. 

(applicant’s closing submissions [16] - [17])

68         The totality principle was taken into account by the Commission most recently in United Voice WA v Director General, Department of Education.  Comments were made in Logan‑Scales, Department of Consumer and Employment Protection v Ticket Xpress Pty Ltd:

[T]he court should also have regard to the totality principle.  Although each individual breach ought to be looked at separately, the total effect should also be considered in determining the appropriateness of the penalties to be imposed. 

69         The applicant was disciplined for six breaches.  Some were similar and in some cases the same.  Ultimately, the penalty of dismissal was not proportionate to the aggregate conduct complained of by the respondent.  The respondent at no stage led evidence as to why the same allegations were separated.  It is the view of the applicant that without such evidence, the Commission is invited to draw a view that the respondent made an error in separating each of the breaches into separate allegations, an error that in the view of the applicant led to a disproportionate penalty being imposed. 

Conduct did not repudiate the employment contract

70         One of the issues to determine is whether the conduct complained of repudiated the employment contract.  An issue the Commission is required to consider in determining the harshness or otherwise of the dismissal is whether there was a clear intention on the part of the applicant to repudiate the employer’s authority.  Kennedy J in the Undercliffe decision states that this to be a critical factor.  The respondent indicates that the conduct first complained of arose in January 2010 however the applicant continued to be employed for a further four years.  Therefore, there was no intention on the part of the applicant to repudiate her employer’s authority.

Trust and confidence not broken

71         The applicant’s conduct was not of sufficient severity to break the trust and confidence of the respondent.  Evidence was heard from Ms Pearse, Mr Erith, Mr O’Rourke, Mr Healy and Ms Harling that their trust and confidence in the applicant had not been broken and continues to this day.  This is in contrast to the respondent in their termination letter (exhibit Education 5) who considered that the applicant’s conduct had caused an ‘irretrievable breakdown in the employer/employee relationship with regard to trust and integrity issues.’

Denial of procedural fairness

72         Further, in determining whether the applicant was dismissed harshly, oppressively or unfairly, the Commission is required to take into account whether the applicant was afforded procedural fairness.  The applicant submits that in accordance with the decision as per Bogunovich v Bayside Western Australia Pty Ltd, she was not afforded procedural fairness in that the respondent:

Did not carry out a proper investigation into all matters as was reasonable; 

Did not have reasonable grounds on the information available at the time for considering that Ms Pinker’s conduct was in breach of discipline sufficient so as to justify dismissal; Bilo Pty Ltd v Hooper.

73         The applicant alleges the specifics of the denial of procedural fairness arise due to the:

a. Respondent not properly adhering to the higher standard of procedural fairness applied to it as a public sector employer.

b. Lack of relative fairness in the treatment of witnesses, resulting in prejudice to the applicant.

c. Respondent not taking into consideration all relevant material and failing to conduct a proper investigation. 

d. Investigator being influenced by irrelevant and prejudicial matters.

e. Decision maker being improperly informed and taking action (i.e. dismissal) that is harsh and excessive in all of the circumstances. 

(applicant’s closing submissions [39])

74         Ms Pearse gave evidence that she drafted a letter of commendation for the applicant during the investigation process into the conduct complained of and was prohibited from submitting this for consideration by the respondent by the Regional Director South Metro who advised Ms Pearse not to do so.  Under cross-examination Ms Cann (the investigator) stated that the respondent would accept any references, material or letters as part of the investigation (ts 107)  It is therefore submitted the decision maker did not have all relevant material before her to make a decision, a denial of procedural fairness. 

75         The applicant raised a number of issues relating to the denial of procedural fairness:

• Mr Glenn Meinema’s interview could not have been admissible as he held an actual bias against the applicant due to a relationship breakdown.
• The respondent interviewed Ms Pearse but only on a preliminary basis.
• The investigator’s report includes a summary of the transcript of the interviews conducted.  The inclusion of these points into the investigator’s report indicates the respondent relied on these points.  The point made by Mr Hayres did not form part of the allegations and should not have been taken into consideration by the respondent. 
• Mr Hayres was not called as a witness by the respondent.  The Commission is invited to draw an adverse inference in accordance with the well‑established principle in Jones v Dunkel.  This principle was referred to by the Commission in Guretti v The Director General, Department of Education.

76         Ms Andrade closely monitored the applicant as Ms Andrade had some concerns regarding the applicant’s paperwork as she was ‘struggling with marking assessments’.  The investigator’s report is a summary of the transcript of interviews conducted and to include such points into the investigator’s report indicates the respondent relied on the points.  Ms Andrade’s points made did not form part of the allegations and therefore should not have been taken into consideration. 

77         It is asserted that the applicant has not had access or been afforded an opportunity to a fair hearing or the right to appoint the decision to terminate her to be made by an unbiased or disinterested decision maker, and the right to have that decision to be made based on logically probative evidence as per the decision in Salemi v MacKellar (No 2) (1977) 137 CLR 296; 14 ALR 1 (Salemi).  Therefore, the applicant has been denied natural justice.  Ms Cann, the person investigating the conduct complained of, wrote a briefing note to the decision maker (exhibit Education 7) that raised the extenuating circumstances between the applicant and Mr Glenn Meinema, suggesting those circumstances to be irrelevant.  Ms Cann informed the director general to disregard the fact that: 

the Applicant was the subject of domestic violence; that the Applicant was going through a complicated legal separation in the family court for a relationship of 12 years, that Glenn Meinema (her former partner) and his father informed the department about the (sic) Belinda’s conduct, that Glenn Meinema was suffering from medical conditions. 

(applicant’s closing submissions [45])

78         Furthermore, Ms Cann did not consider it necessary to interview Ms Harling with regard to the allocation of grades and how that practice was undertaken, particularly in semester 1.  In this regard, the applicant has been denied her right to natural justice as per the decision in Salemi.

79         Had the respondent applied procedural fairness in the investigation process they may have determined an alternative penalty other than termination as was observed at [99] by his Honour P J Sharkey in the Full Bench decision of West Australian Branch, Australasian Meat Industry Employees’ Union, Industrial Union of Workers, Perth v Geraldton Meat Exports Pty Ltd (2001) WAIRC 03573.  Sharkey P, at [101] determines: 

if procedural fairness was afforded, it should have altered the outcome and, for that reason alone, the dismissal was unfair, even without the clear substantial unfairness. 

The respondent as a public sector body

80         The procedural issues raised must be applied as the strict requirements for procedural fairness that apply to the respondent as a public sector employer associated with the relevant disciplinary instruments.  If the respondent failed to apply the requirements to which it was subject, then the applicant suggests that amounts to an unfair dismissal:  Public Employment Industrial Relations Authority v Schorzelli [1993] NSWIRC 48.  The disciplinary instruments applicable to the respondent at the time the applicant was dismissed were:

a. PSMA. 

b. Commissioners’ Instruction number 3 – Discipline – general. 

c. Public Sector Standard – discipline. 

d. The respondent’s own policy – Staff conduct and discipline. 

81         In the absence of a fair procedure which failed to apply the principles of natural justice the applicant asserts that the respondent was not entitled to apply the penalty of dismissal. 

82         The evidence showed the applicant to be a swimming teacher with the respondent from 1995 to 2005 following which she became an academic teacher for a further nine years, from 2005 to 2014, a total of some 19 years.  The evidence further shows in relation to the applicant’s quality of employment that:

a. the applicant’s service with the respondent was untarnished.  At no stage had the applicant been the subject of any disciplinary matters.

b. the applicant was a teacher of excellent standing, described by her colleagues as the greatest teacher that some of her colleagues had ever seen. 

c. Importantly, the applicant’s role was important and central in establishing the robotics programme at SRC (her place of employment prior to her dismissal).  The evidence demonstrated that the applicant’s robotics team comprised of SRC students drawn from a lower socioeconomic grouping that became the highest ranking team in Western Australia and the fifth ranking team nationally, in a national competition. 

d. Ms Pearse, the SRC principal, stated that the applicant developed programmes that were not only in use by SRC but also by other schools in Western Australia.

Remedy

83         There is a responsibility on the respondent to lead evidence that reinstatement is impracticable.  Counsel for the applicant refers to the comments of Scott ASC in her concluding statements in Jakob [50].  At no stage did the respondent lead any evidence or make any suggestion that reinstatement would be impracticable.

84         The applicant’s evidence demonstrated that she had mitigated her circumstances and had been working as a casual at Curtin University.  In addition, the evidence of Mr Smith, the applicant’s line manager at Curtin University, testified to support this circumstance. 

85         In conclusion, counsel for the applicant requested the applicant be reinstated, pursuant to s 23A of the Act, and requested the Commission exercise its powers under the same section to require the respondent pay to the applicant all remuneration lost without loss of entitlements.

Respondent’s Opening Submissions

86         From the allegations made by the respondent against the applicant each allegation constitutes a separate breach of discipline contrary to s 80 of PSMA.  Information was received by the SID that whilst the applicant was a teacher at CBC during 2010 and at SRC in 2011 she had asked Mr Glenn Meinema, (her then partner) to:

Mark student assessments and access the Department's network to record the results on her behalf.  It was further alleged that in 2011, Ms Pinker provided final semester One and Two grades for students from SRC prior to marking their assessments.

1.3 on 9 July 2013, the matter was reported to the Corruption and Crime Commission (CCC).

(extract from SIDS investigation report attached to exhibit Education 2)

87         On 2 December 2013, a letter was sent to the applicant by Mr Geoff Davis of the respondent, setting out the seven allegations and advising the applicant that the respondent was treating the matter as a disciplinary matter pursuant to s 81 of PSMA (exhibit Education 3).

88         The seven allegations as put to the applicant included:

1. It is alleged that between January 2010 and December 2010 you committed a breach of discipline contrary to section 80(b) of the Public Sector Management Act 1994 by contravening the Department of Education's Code of Conduct.

2. It Is alleged that between June 2011 and July 2011 you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994 by committing an act of misconduct.

3. It is alleged that between June 2011 and July 2011 you committed a breach of discipline contrary to section 80(b) of the Public: Sector Management Act 1994 by contravening the Department of Education's Code of Conduct.

4. It is alleged that between May 2011 and July 2011 you committed a breach of discipline contrary to section 80(b) of the Public Section Management Act 1994 by contravening the Department of Education's Code of Conduct.

5.  It is alleged that in October 2011 you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994 by committing an act of misconduct.

6. It is alleged that in October 2011 you committed a breach of discipline contrary to section 80(b) of the Public Sector Management Act 1994 by contravening the Department of Education's Code of Conduct.

7. It is alleged that in October 2011 you committed a breach of discipline contrary to section 80(b) of the Public Section Management Act 1994 by contravening the Department of Education's Code of Conduct.

Each allegation included particulars and subsequently details surrounding the involvement of the applicant at both CBC and SRC in 2010 and 2011.

89         The conclusion of the investigator in relation to the investigation found:

In disciplinary and administrative investigations, an allegation must be proven on ‘the balance of probabilities.’ It must be more probable than not that the allegation occurred.

Having considered all the evidence, there is sufficient evidence to support allegation one, two, three, four, five and six. In relation to allegation seven, there is insufficient evidence to prove on the balance of probabilities that Ms Pinker allocated grades prior to marking all the assessments.

I respectfully submit that it is open for the Director General to find on the balance of probabilities that allegations one, two, three, four, five and six are substantiated.

It is recommended that:

Consideration is given by Director General to finding Ms Pinker has committed six breaches of discipline.

An appropriate consequence/penalty is considered by the Director General with regards to the finding made.

Ms Pinker and Ms Margaret Collins, Regional Executive Director, South Metropolitan Region are advised of the outcome of this matter.

(extract from exhibit Education 4)

90         On 6 March 2014 Ms Cann finalised an investigation report into to the allegations and the applicant was provided with a copy of the report.  The respondent proposed at that stage to find that the applicant had committed six breaches of discipline and it was proposed that a penalty of termination would be proposed.  A copy of correspondence was drafted and sent by the director general dated 17 March 2014 (exhibit Education 4).  By letter dated 11 April 2014 the applicant responded through her then solicitors to the proposed penalty letter, that being the applicant’s final response.  By letter dated 28 April 2014 the respondent confirmed her findings that the applicant had committed six breaches of discipline and that a penalty of termination was justified in the circumstances.  The correspondence noted the individual concerns that had been raised by the applicant’s solicitor in their correspondence of 11 April 2014 in particular:

• The motivation of Mr Glenn Meinema for reporting the matter.
• Mr Meinema’s mental state.
• Your emotional state and personal issues during 2010 and 2011 in respect to the breakdown of your relationship with Mr Meinema.
• The evidence in considering a breach of discipline in respect to each allegation.
• The seriousness of your conduct and that the proposed penalty was harsh and severe.

I have considered your submission and note the points made about this matter.  However, I am not persuaded away from my preliminary view that you committed six breaches of discipline and that I should terminate your employment.

(exhibit Education 4)

The correspondence went on to finalise the applicant’s employment with the respondent.

91         On 26 May 2014 the applicant filed a Form 2 – Notice of Application in the Commission applying for an order of reinstatement or compensation in respect of harsh, oppressive or unfair dismissal for reasons set out in the application.  On 20 June 2014 the respondent filed a Notice of Answer denying that the applicant’s dismissal was harsh, oppressive or unfair and seeking that the application be dismissed.

92         The respondent is not in a position to seek to challenge the veracity of the applicant’s claims as to her employment history, qualifications and achievements in any event the respondent does not seek to do so as part of defending the application.

93         Each of the allegations against the applicant constitutes a separate breach of discipline contrary to s 80 of PSMA.  The respondent submits that the common law rule concerning double jeopardy provides that the applicant cannot be penalised for more than one of these offences however what the respondent does submit is that each separate allegation relates to a course of conduct that is separated by the fact that the conduct was not unbroken and occurred over different dates.  The respondent submits to different assessments and in some cases occurred at different schools.

94         The respondent will make oral submissions at the hearing as to the claims that have been made by the applicant that she has been denied procedural fairness.  However, notwithstanding any flaws it is now the task of the Commission to reach a conclusion on whether the respondent’s decision to dismiss the applicant was harsh, oppressive or unfair.

95         In making findings with respect to the allegations the respondent relied upon the evidence as collected by the investigator from 10–14 (investigation report, exhibit Education 2, attachment).  A summary of the evidence relied on by the respondent is contained within a briefing note dated 12 March 2014 provided to the respondent.  A copy of that briefing note was submitted to the director general through Mr Eamon Ryan executive director professional standards and conduct (exhibit Education 6).

96         The respondent’s finding in respect to the second allegation is based on an acceptance of the applicant’s own evidence to the investigator that she provided logon details to her partner in order for him to enter marks.  In respect of the third allegation that matter is based on Mr Glenn Meinema’s evidence that he was directed to mark assessments rather than the applicant’s evidence which suggested she only used Mr Glenn Meinema to check marking to ensure it was correct.

97         The respondent’s finding in regard to the fourth allegation is based on the applicant’s reliance that Ms Andrade directed her to approximate grades for students when no such direction was given. 

98         The respondent submits that the truthfulness of evidence as set out in the paragraphs above [93]–[94] was accepted by the respondent in making its findings and is consistent with the submissions of the applicant in relation to this application.

99         The respondent submits that the Commission needs to satisfy itself as to the truthfulness of the applicant’s submission prior to turning to consider whether the penalty imposed by the respondent in respect of the allegations is disproportionate.

100      The respondent submits that regardless of what evidence was relied upon in applying the penalty to dismiss the applicant the Commission must satisfy itself as to the truthfulness of the applicant’s submissions and mitigating factors put forward by the applicant because those submissions may have effect on the Commission’s assessment of the applicant’s culpability and ultimately the proportionality of the penalty.

101      The respondent submits that the refusal by the applicant to allow the investigation report to be put before the Commission is an attempt by the applicant and her representative to prevent the Commission from setting off on a fact finding expedition as to the truthfulness or otherwise of the applicant’s submissions.

102      In proceeding the Commission will be required to determine the truthfulness of the applicant’s submissions as laid out in the schedule at [29] of the application.  It is then appropriate to have regard to the question whether the penalty of dismissal is disproportionate to the allegation.

103      The Commission should note that:

[a]n employee’s conduct in the investigation process in attempting to mislead and obfuscate, can of itself, be sufficient to warrant an employer losing confidence in the integrity of the employee (see: Danijel Pantovic v Public Transport Authority of Western Australia (2011) WAIRC 00876).

(respondent’s opening submissions [36])

104      The factors that the respondent has had regard for prior to the decision to impose the penalty to dismiss are set out in the briefing note, the proposed penalty letter and the penalty letter.  In the proposed penalty letter (exhibit Education 4) the respondent informed the applicant that she would have regard to a number of factors including:

(a) the nature and seriousness of the allegations;

(b) the impact the applicant’s behaviour has had on her reputation, and the reputation of the Department;

(c) any mitigating and extenuating circumstances provided by the applicant in her submissions;

(d) the applicant’s length of service with the Department;

(e) the applicant’s admissions in respect of the some of the behaviour; and

(f) industrial advice received from the Labour Relations Directorate in respect to the appropriate action.

105      The respondent responded to the applicant by way of the penalty letter and in so doing addressed issues raised by the applicant:

(a) the nature and seriousness of the allegations;

(b) the impact the Applicant's behaviour has had on her reputation, and the reputation of the Department;

(c) any mitigating and extenuating circumstances provided by the Applicant in her submissions;

(d) the Applicant's length of service with the Department;

(e) the Applicants admissions in respect of some of the behaviour; and

(f) industrial advice received from the Labour Relations Directorate in respect to the appropriate action.

(respondent’s opening submissions [39])

106      With respect to the findings made by the respondent it submitted that the findings made by the respondent in this case warranted the penalty of dismissal.

Respondent’s Evidence

107      Ms Amanda Yvonne Cann gave evidence on behalf of the respondent.  Ms Cann is employed as a senior investigator with SID.  The witness was engaged by Ms Sharyn O’Neill, director general of the respondent to investigate seven allegations of breach of discipline by the applicant.  The witness conducted the investigation and prepared a report dated 5 March 2014. This report was attached to her witness statement (exhibit Education 2).

108      Counsel for the applicant indicated they had certain issues with the validity of the report in particular, a number of relevant persons had not been interviewed in drawing together the investigation report, namely personnel from SRC.  Counsel for the applicant asked how the investigation report may be tendered through a witness who cannot speak to the document given she is not the author of the document.  In response, counsel for the respondent indicated the document to be a record relied upon by the respondent and the witness to be an employee of the respondent with the capacity to identify the documents and have them tendered.  The Commission indicated the witness to be an employee of the respondent who had been involved in the investigation and had given evidence to that effect.  The witness had also indicated she had been involved in the investigation at the outset of her evidence. 

109      In addition, the final penalty letter received by the applicant that addressed the issues or concerns that had been raised by the applicant through her legal representative (exhibit Education 5) was correspondence from Ms O’Neill.  It was dated 28 April 2014 and importantly it had taken into account a number of concerns regarding the investigation (refer [89]):

110      In cross-examination, counsel for the applicant took the witness to exhibit Education 7, and specifically to the second last paragraph on the first page of that exhibit, which reads: 

The concerns raised in relation to Ms Pinker’s relationship with Mr Meinema and his motivation for reporting the matter are irrelevant in considering Ms Pinker’s actions.  By raising these concerns, it appears Ms Pinker fails to accept full ownership of her actions and places blame on Mr Meinema for her own conduct.

(exhibit Education 7)

111      The witness was taken to cl 5.2 of the investigation report, which was attached to her witness statement (exhibit Education 2): 

5.2A An appropriate consequence/penalty is considered by the Director General with regards to the finding made. 

(exhibit Education 2)

The witness was asked to compare the statement with a paragraph from exhibit Education 7, correspondence written by the witness to Ms O’Neill dated 16 April 2014 and in particular a paragraph from that correspondence, on the second page, which specified: 

In relation to the proposed penalty, I also respectfully submit that the view of terminating Ms Pinker’s employment with the Department be maintained. 

If you are in agreement with this recommendation, I request that the attached letter to Ms Pinker, outlining the final outcome be signed.

(exhibit Education 7)

112      It was put to the witness that the terms contained in the investigative report, together with the briefing note to the director general, were suggestive and ‘tainted with bias, and the Director‑General has been unable to effectively provide a proper penalty.  And in this case, a disproportionate penalty was given because there was a bias apparent’.  In response, the witness indicated that the director general was able to overturn the recommendation at any stage. 

113      The witness was questioned in relation to Ms Cann’s interview with Ms Pearse, the principal of SRC.  In response, the witness indicated her interview with Ms Pearse was preliminary and limited to the applicant’s conduct between 2010 and 2011.  The witness described her role was to investigate the matter and provide the subsequent evidence to the director general.  The applicant was able to provide character references if she wished to, however that was not the role of the witness to seek such references on behalf of the applicant in her capacity as a teacher.  The witness did, however, agree that in the event such references were provided, she would be able to take them on board. 

114      Ms Cheryl Patricia Andrade gave evidence for the respondent.  Ms Andrade is head of mathematics at SRC.  Ms Andrade reviewed her witness statement and confirmed it to be an accurate record for the purpose of proceedings (exhibit Education 8).  On 5 February 2014, the witness participated in an interview with Ms Cann and Ms Davidson, senior investigators with the respondent.  The interview was attached as a witness statement (exhibit Education 8).  It was put to the witness that the applicant was alleged to have allocated final semester 1 grades to students at SRC prior to marking assessments: 

Ms Pinker’s evidence in regard to that allegation is that she was following a direction from you to enter approximate grades for students?---That’s untrue. 

(ts 112)

115      The witness gave evidence that classes for which the applicant was provided with examinations were year 8 and year 9.  According to Ms Andrade’s evidence, there was no reason to provide approximate grades to students.  The applicant was provided with examinations in year 8 and year 9 classes, and the witness indicated that she was unsure of what classes she would be required to provide approximate grades.  The witness indicated that the applicant had brought to her attention the fact that the previous teacher had not finished all the necessary assessments.  The witness gave evidence that the applicant was required to set an exam, mark the papers and put in a grade, in the same way as other teachers were required to do in that year. 

116      In cross-examination, the witness indicated the course the applicant was required to pick up on at the end of semester 1 was a concurrent course.  In other words, the students had commenced the course and in those circumstances they are called ‘concurrent courses’.  The witness gave evidence that the applicant came in on a relief basis to replace the teacher who had left, unwell.  The students at the time the applicant took over were behind in their assessments.  The teacher is supplied, in this case the applicant, with a marking key so all the teachers mark based on the answers.  When the applicant, arrived she was given marking keys to enable her to get the answers.  In re-examination, the witness indicated she was not aware of any accusation at the time against the applicant, or indeed anyone else. 

117      Ms Suzanne Catherine Harrison gave evidence for the respondent.  Ms Harrison is employed as the dean of science at CBC.  In October 2013, Ms Harrison participated in an interview with Ms Cann and Mr Baker, investigators for the respondent.  Her interviews was attached to the witness statement and provided as exhibit Education 9.  In cross-examination, the witness vaguely remembered talking to the headmaster about the applicant, however she admitted that she had never really analysed the applicant’s work.  The witness indicated that students had raised concerns about not getting any feedback from the applicant even though they had never officially raised any concerns with the witness; they had merely heard it through the grapevine, which cannot be considered an authoritative or informative source. 

118      Mr Glenn Robert Meinema gave evidence for the respondent.  On 1 October 2013, the witness participated in an interview with Ms Cann.  The interview was attached and marked exhibit Education 10.  The witness indicated in relation to the marking of papers on behalf of the applicant:

First of all, yes, I did mark papers and the extent is that I – I marked all portions of paperwork that – of assessments, assignments and examinations, whether they be multiple choice, short answer or long answer. 

And for what schools did – or was it – well, perhaps that’s – what school did you mark papers for?---Comet Bay College and Southern River College. 

And did you have any involvement in the entering of marks?---Yes, I did. 

And what was that involvement?---The involvement was to place the marks that had been calculated on the papers onto a spreadsheet and in some circumstances inputting those – the grades onto the Department’s database. 

And over what period of time do you say that you marked papers for Ms Pinker? ---Between the first and last it was about a year?

And how frequently would you mark the papers? ---Well, it would have occurred every six months, so at the end of first semester and at the end of second semester. 

And can you confirm the year for me?---The first lot was at the end of 2010 and the second and third lots were at the end of semester one 2011. 

(ts 128, 129)

119      The witness indicated, relating to his memory, in relation to the interview he had had with representatives from SID:

Yes?--- at the time I had this interview I didn’t remember it, but now I do and I don’t see any – any problem with that at all.

(ts 135)

120      The witness gave evidence he would log on to the respondent’s portal when the applicant was not present.

121      Mr Eamon Francis Ryan gave evidence for the respondent.  Mr Ryan is the executive director, professional standards and conduct division of the respondent and was appointed to the position in 2011.  In this capacity, the witness gave evidence he is responsible for SID, audit and risk management, screening unit and legal services.  The witness reports directly to Ms O’Neill.  The witness oversees the respondent’s misconduct identification matters, and in that capacity provides advice and recommendations to the director general.  The witness gave evidence that this includes the provision of advice in relation to determination of the appropriate outcome, including the selection of an appropriate penalty following the conclusion of an investigation. 

122      The witness gave evidence that he was familiar with the investigation that had taken place in relation to the applicant, namely that undertaken by Ms Cann, pursuant to part 5 of PSMA.  At the conclusion of the investigation, a recommendation was made that the applicant was found to have committed some six breaches of discipline.  The seventh allegation was unable to be sustained.  The witness gave evidence that on 13 March 2014, advice was given to Ms O’Neill, in relation to the outcome of the possible range of penalties.  That advice was given in the witness’ standing as executive director, the purpose being for the director general to make a preliminary finding on outcome and possible penalty, and to make those preliminary findings known to the applicant to give her an opportunity to respond to the findings and to respond also to the proposed penalty.  Ms O’Neill, it was said by Mr Ryan in his statement (exhibit Education 11), wrote to the applicant in a letter dated 17 March 2014 (exhibit Education 4).  That correspondence outlined the director general’s preliminary findings, along with the proposed penalty of termination, and gave the applicant an opportunity to respond before making a final determination in the matter.

123      The applicant’s lawyers, Friedman, Lurie Singh and D’Angelo, answered on behalf of the applicant on 11 April 2014.  An additional briefing note came to the witness, dated 23 April 2014 (exhibit Education 7).  This final briefing note was submitted to the director general of the respondent for consideration. 

124      The witness gave evidence that of specific relevance in this matter was that the penalty to be imposed was that all the evidence was considered and Mr Ryan indicated he had regard for such evidence prior to supporting the recommendation made to the director general.  At the time, in March and also in April when the briefing notes were prepared, the witness had access to the file, he read it and the investigation report and took account of the evidence and considered the relevant matters. Of relevance was the seriousness of the allegations, and considering those issues together with the standards and expectations of the respondent, particularly in setting standards for staff it was the witness’ view that termination of employment was an appropriate penalty, and in that context that was the penalty put forward in support of the recommendation to the director general.

125      In providing the Commission with an explanation as to why the penalty was chosen in this case, the witness spoke from a broad point of view in answering the question and said: 

Okay.  Speaking – speaking broadly from a – a – a – sort of a bigger perspective, the – the conduct that was found in this matter was quite significant.  It involved a significant level of dishonesty.  It was a significant breach of trust.  It was a clear failure to meet the high standards of expectations that I set for employees and that fundamentally eroded the trust that the Director‑General and the Department was entitled to have and that was the basis upon which termination was considered as the appropriate penalty. 

(ts 149)

126      The witness gave evidence that the director general does not delegate the responsibility for making the decisions in relation to determination of penalty, nor the determination in relation to ascertaining the breakdown in trust and confidence.  She takes that task very seriously.  The witness was asked, given that the applicant is well‑liked by her peers and is clearly a good teacher, why in such circumstances would the respondent not give a teacher a second chance.  In response, the witness answered that it comes down to the nature of the conduct that had been proved and the extent of the dishonesty.

Respondent’s Closing Submissions

127      The respondent refers back to the application by the applicant which in essence asserts that her dismissal was harsh oppressive and unfair having regard to the circumstances set out in the schedule to the Form 2 – Application.

128      The essence of the application is a claim by the applicant that the penalty of dismissal is disproportionate to the conduct complained of by the respondent.  Two central issues arise in relation to that claim.

a. whether the Commission can be satisfied with the truthfulness of the applicant's submissions outlined in [29] of Form 2 – Application.  These submissions were repeated in exhibit Education 1, correspondence from counsel for the applicant, Slater and Gordon to the respondent; and

b. whether the penalty is disproportionate to the conduct complained of, that being the allegations.

Applicant's submissions in response to the allegations

129      The respondent submits having regard to [29] of Form 2 of the application and exhibit Education 1 the responses of the applicant can be summarised as follows:

a. in regard Allegations 1, 3 and 6, the Applicant asked her then partner to check the working out of her marks as she felt she had made some mistakes; and

b. in regard to Allegations 2 and 5, the Applicant was having trouble with her computer and accessing data, mainly on the weekends, and her then partner was good at fixing computers; and

c. in regard to Allegation 4, the Applicant was told to give approximate grades by Ms Andrade and the semester 1 grades were not final grades because the unit ran concurrently.

(respondent's closing submissions [7])

The position taken by the applicant in regard to the application

130      The Commission is to have regard to the applicant’s responses contained in Form 2 of the application and consider her responses as the sole evidence of the circumstances in which the breaches of discipline occurred.

131      Refer to exhibits Education 1, 2 in transcript of proceeding [70] – [71].

132      The respondent submits that the applicant intended for her responses to be relied upon by the Commission in satisfying itself as to which breaches of discipline had been committed and in what circumstances so as to make the investigation report unnecessary as evidence.  At the commencement of proceedings counsel for the applicant directed the Commission to turn its mind to ‘the question of law’, that being that the penalty of dismissal was disproportionate to the conduct that the applicant complained of.  Such a direction suggested that the Commission already had all of the evidence necessary in order for it to be satisfied as to the circumstances in which the alleged breaches had been committed and was therefore immediately able to turn its mind to the question of penalty.

The applicant’s additional responses made in cross-examination as to the circumstances in which the breaches of discipline were committed

133      During the hearing the applicant was cross-examined as to the circumstances in which the breaches of discipline had been committed.  In summary those responses were provided by the respondent as follows:

(a) the Applicant's then partner would mark “parts” of assessments outright for the Applicant (see: Transcript of the Proceedings, page 67);

(b) the Applicant’s then partner would correct the Applicant's marking out of papers on occasion without checking with the Applicant first (see: Transcript of Proceedings, page 67);

(c) the Applicant gave her then partner access to the Department of Education’s Network via her personal password to directly enter in marks, on the Applicant's behalf, including from papers that the Applicant’s then partner had graded himself (see: Transcript of Proceedings, page 67); and

(d) the Applicant had no reason to doubt the evidence of Ms Andrade, a witness whose evidence contradicts the Applicant's in that she says that she did not at any stage tell the Applicant to enter approximate grades for students.

(respondent's closing submissions, [13])

134      In making findings as to the circumstances in which the breaches were committed, the respondent relied upon admissions made by the applicant to the investigator that are consistent with her responses to the allegations given in cross-examination as per exhibit Education 6 and in general [20] – [28] of the respondent's written submissions as filed 24 October 2014.  It was put to the applicant during cross-examination that her responses were in general ‘not fulsome evidence of the uncontested circumstances in which the breaches of discipline had been committed despite the fact that it purported to be so’ ([15]).

135      After a period of time and following a short adjournment the applicant conceded that that ‘so that this is fair’ for the Commission to have all the evidence inclusive of the investigation report (ts 77).

The unfortunate effect of the applicant’s position in regard to the application

136      The applicant in this application sought to rely on her responses to the allegations unfortunately to the exclusion of all other evidence.  This gave rise to a belief that her responses thereby contained a description of the circumstances in which the breaches of discipline had been committed and no further evidence was needed by the Commission.  In determining whether the penalty is disproportionate to the 'conduct complained of', that being the allegations the Commission should have regard to the evidence of the more serious circumstances in which the breaches of discipline had been committed.  Unfortunately these did not get as frequent an airing in the Commission as should have been appropriate.

Whether the penalty is disproportionate to the conduct complained

137      When the range of conduct is considered and the period of time over which the conduct occurred associated with the reputational damage for the applicant and for the respondent generally it is submitted that the penalty is proportionate to the allegations as committed.

138      This issue has taken up an important part in this hearing.  In exhibit Education 4 the respondent notified the applicant that the director general would have regard to the following factors:

(a) the nature and seriousness of the allegations;

(b) the impact the applicant's behaviour has had on her reputation, and the reputation of the Department;

(c) any mitigating and extenuating circumstances provided by the Applicant in her submissions;

(d)  the Applicant's length of service with the Department;

(e) the Applicant’s admissions in respect of some of the behaviour; and

(f) industrial advice received from the Labour Relations Directorate in respect to the appropriate action.

(respondent's closing submissions [33])

139      Having considered the applicant’s response to exhibit Education 4 the respondent responded to the applicant by way of exhibit Education 5 and in doing so the respondent noted and addressed the following points raised by the applicant:

(a) the motivation of the Applicant’s then partner for reporting the matter;

(b)  the Applicant's then partner's mental state is alleged by the Applicant;

(c) the Applicant's emotional state and personal issues during 2010 and 2011 in respect to the breakdown of her relationship with her then partner;

(d) the evidence considered in determining a breach of discipline in respect to each allegation; and

(e) the seriousness of the Applicant’s conduct and that the Applicant considered that the penalty was harsh and severe.

(respondent’s closing submissions [34])

140      The respondent emphasised the evidence given by Mr Ryan in relation to the loss of trust and confidence in the applicant as an employee, in terms of the conduct complained of and the number of submissions and responses made by the applicant or on behalf of the applicant throughout the disciplinary process.  The applicant was initially asked to respond to the allegations and did so by way of written submissions to the respondent dated 18 December 2013.  In relation to allegations two and five the applicant did not admit she had given her partner logon details to enable him to enter the grades on her behalf and instead indicated it was because she was having computer difficulties.  In relation to allegations one, three and six the applicant denied one and three and in relation to allegation six she accepted that as Mr Glenn Meinema had marked some papers that she had left at home and the applicant reflected on her wrongdoing as ‘inadvertent’.

141      The next response to the allegations was by way of correspondence dated 11 April 2014 and was with reference to allegations two and five.  The applicant sought to defend her actions previously admitted to by describing her conduct as ‘innocent’ and ‘not detrimental’ and that it did not compromise the ‘integrity of the school or Department of Education's computer network’ (exhibit Pinker 7, attachment one).  The applicant conceded that she directed her partner to mark multiple-choice exam papers describing her conduct as a ‘minor breach’ and ‘highly technical’ in nature (exhibit Pinker 7, attachment one) and counsel for the respondent described this as spin and half-truths which became central to the disciplinary process concerning the applicant and evidence of this type of behaviour became readily apparent when one reflected on the position taken by the applicant in relation to the application.

142      The Commission, in determining whether the penalty is disproportionate to the conduct complained of may take into account an employee's conduct in the investigation process in the manner in which the applicant has in the view of the respondent misled and obfuscated which can in its own right be sufficient to warrant an employer losing confidence in the integrity of an employee.  This approach was reflected in the decision of Pantovic v Public Transport Authority of Western Australia (2011) WAIRC 00876; (2011) 91 WAIG 2094.

143      The three issues relating to the evidence as led by the applicant that the respondent considers relevant to the question of penalty are:

(a) why is the Respondent in a better position to judge the breakdown of trust and confidence than the Applicant's former Principal and colleagues;

(b) accepting that the Applicant has good qualifications and has recently performed well, why can the Applicant not be given a second chance; and

(c) why did the Respondent not have more regard to the Applicant's personal circumstances at the time of the breaches of discipline?

(respondent’s closing submissions [47])

144      The respondent sets the standard of conduct expected of all staff and the director general does not ever delegate to the decision-making authority in relation to making such findings and imposing penalties particularly in relation to misconduct matters.

145      In relation to the second matter the nature and seriousness of the allegations that were required to be proven were such that termination was considered to be the most appropriate penalty.  The respondent’s view the level of dishonesty and the breakdown of trust was significant as was the differing versions of the applicant’s evidence.

146      In relation to [143](c), the respondent did consider the submissions put by the applicant at the time the director general made her final determination but she was not persuaded to alter her view and termination was determined to be the most appropriate penalty.

Other issues raised by the applicant

147      The respondent submitted that termination of the applicant did not amount to disbarring as the applicant was able to seek employment in a teaching capacity within Western Australia and outside of the Department.  Furthermore, there is no requirement for the respondent to employ on the sole basis that a person has a teaching degree.  Gaining employment with the respondent as a teacher involves a competitive recruitment process.  The respondent is a large employer of teachers in the state of Western Australia which allows them to be selective as to who they employ, especially where there is a belief there is a significant loss of trust.

148      The investigation conducted by the respondent relating to the applicant is a confidential matter that is held on file with SID and does not appear on the applicant’s ‘teacher’s file’.  If the applicant were to seek employment outside of the respondent it would be she who would determine whether or not to advise potential employers of the specific circumstances of what occurred.

149      Concern was raised regarding the loss of the applicant’s ‘e number’ (ts 61).  This matter is relevant only to departmental employees as a form of employment number therefore has no relevance to employment outside of the department.  The respondent submitted that it is the Teacher's Registration Board who determines whether a person is suitable to be registered as a teacher and has the ultimate decision as to whether a person can be employed as a teacher and in what capacity.  That the applicant no longer has an ‘e number’ as a consequence of the respondent deciding that the applicant is no longer a suitable teacher for employment within the respondent and not related to employment as a teacher generally.  Claims were made by the applicant in that her conduct ought not be considered as separate allegations, in particular allegations one, three and six ought to be considered as one matter and allegations two and five ought to be considered as another matter.  In response the respondent considers the matters occurred on different dates at different worksites and affected different students and therefore needed to be addressed and investigated individually.  The applicant received one penalty for her conduct overall.

150      The respondent suggests that the totality principle has been confused as totality refers to overall wrongdoing rather than the totality of the conduct complained of.  The respondent submits that penalties were not imposed for each of the breaches but rather one penalty was imposed for the applicant’s overall conduct and therefore the question the Commission has to consider is does the totality of the wrongdoing – that is, does the penalty ultimately imposed bare a proper relationship to the overall transgression involved in the allegations, having regard for their entirety and the circumstances of the case?  The respondent referred to the decision of the Supreme Court in Roffey v WA [2007] WASC 246.

151      The respondent considers that the penalty is proportionate to the conduct complained of and for that purpose the respondent relies on its submissions, in particular [31] to [50] of its closing submissions. 

152      With respect to the applicant’s claim that the conduct complained of was not conduct that repudiated the employment contract the applicant was required to comply specifically with the respondent's Code of Conduct and Code of Ethics and in failing to do so she breached her employment contract.

153      The applicant asserts that in light of her being able to continue to be employed for a further four years with the respondent and with great employment distinction beyond the time when breaches of discipline were first committed there was clearly no intention to repudiate the employer's authority or contract.  In this regard it is important to note that the respondent was not made aware of the allegations until 17 June 2013.  The applicant’s continued employment thereafter does not mean the respondent condoned her actions. 

154      The overall effect of the applicant’s submissions concerning procedural fairness is that the respondent's decision to terminate the applicant was procedurally unfair so as to lead ultimately to a disproportionate penalty.  When considering it a question of whether more weight should have been attributed to favourable character references from the applicant’s former colleagues the Commission should also consider how little weight if any the respondent would have placed on unfavourable opinion evidence from former colleagues.

155      In concluding, the applicant’s claim is based on equity and yet to date the applicant has failed to accept full responsibility for the circumstances in which the breaches of discipline were found to have been committed.

156      The Commission is a review jurisdiction that requires (and relies upon) parties seeking relief to have regard to the long established maxim which was re-iterated by Kelly SC in the majority decision of the Commission Hospital Employee’s Industrial Union and Wongan Hills Hospital No. 626 of 1978 that ‘he who come into equity must come with clean hands’ – a saying which is far from incorrect in this matter.

(respondent’s closing submissions, [84])

157      Having regard to exhibit Education 4 and exhibit Education 5 it was appropriate for the director general to terminate the applicant’s contract of employment.  The nature and the seriousness of the allegations as proved was such that a penalty of dismissal was determined by the respondent to be appropriate.  In the respondent's view the level of dishonesty was significant and the breakdown of trust was more so.

158      The respondent requested that the application be dismissed.

Commission’s Conclusions

Credibility of witnesses

159      Having heard all of the evidence, a significant amount of which was unchallenged, the Commission is required to determine witness credibility.  The applicant appeared at first to give evidence to the best of her ability however she did contradict herself on occasion:

I am aware my conduct could be a contravention of the Department’s Code of Conduct, but I did not think that my actions contravened the Department’s Code of Conduct, or would directly affect the students.

(exhibit Education 2, 7 investigative interview)

160      What has been unfortunate has been the number of opportunities whereby the applicant has muddied the waters about what actually occurred back in 2010 and 2011.  Where the applicant’s evidence departs from other witnesses is with the evidence given by Ms Andrade in relation to whether a direction was given by Ms Andrade to the applicant.  I prefer the evidence given by Ms Andrade with respect to the allocation of grades in semester 1 at SRC in 2011.  Ms Andrade clearly directed the applicant to set exams for the students in semester 1 and did not direct the applicant to approximate her marks in that same semester as was suggested by the applicant and Ms Harling.  Further, the Commission accepts the evidence of Mr Glenn Meinema over the applicant with respect to having marked rather than just checking the SRC student assessments in semester 1, 2011.  In all other respects Mr Glenn Meinema’s evidence was given honestly, with some qualification, as he recalled his memory had been somewhat repressed at the time he was interviewed by Ms Cann (during the investigative process):

Yes? --- At the time I had this interview, no, I didn’t remember it, but now I do and I don’t see any – any problem with that at all.

(ts 135)

161      On the important issues of marking and portal entry Mr Glenn Meinema appeared to remember relevant events with some accuracy.  The applicant’s remaining evidence, with the exceptions listed in [159] - [160] was given to the best of her recollection.  On the issue of continued trust and confidence the applicant relied substantively on the evidence of Ms Pearce, Mr Erith, Mr O’Rourke and Ms Harley, all from SRC.  Each witness gave evidence or tabled statements amongst other things going to their continued trust and confidence in the applicant. Ms Cann, Mr Ryan, Ms Pearce and Mr Smith and all other witnesses gave evidence honestly and to the best of their recollection, recognising particularly for those witnesses from CBC the memory of working with the applicant was almost four years ago.  Some of the evidence given by Ms Harrison appeared to be somewhat imprecise however I do recognise the witness was being asked to recall events of four years earlier.

162      The fact that Mr Peter Meinema (Mr Glenn Meinema’s father) made a number of comments during his son’s investigative interview and was not called by the respondent to give evidence is a relevant matter.  Mr Peter Meinema’s comments can relevantly be described as hearsay and his comments therefore attract little or no weight.

163      The test for determining whether the applicant was unfairly dismissed or not is well settled.  The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant.  The test was outlined by the Industrial Appeal Court in the Undercliffe decision.  The responsibility is on the applicant to establish that the termination of the applicant was, in all the circumstances, unfair.  Whether the right of the employer to dismiss the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined by the Commission.  A dismissal for a valid reason within the meaning of the Act may still be unfair if that dismissal is affected in a manner which is unfair.  To terminate an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair Shire of Esperance v Mouritz (1991) 71 WAIG 891.

The Statutory Scheme

164      Section 78 of PSMA is contained in Part 5.  The provision outlines the rights of appeal to the Commission for relevant employees.  On this was no dispute.  The Commission finds that the applicant is a relevant employee for the purpose of these proceedings pursuant to s 78(2) of PSMA.

165      The relevant provisions of PSMA in relation to the breaches and subsequent disciplinary action taken by the respondent against the applicant are to be found at:

 80. Breaches of discipline, defined

An employee who — 

(a) disobeys or disregards a lawful order; or

(b) contravenes — 

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

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

or

(c) commits an act of misconduct; or

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

(e) commits an act of victimisation within the meaning of section 15 of the Public Interest Disclosure Act 2003,

commits a breach of discipline.

166      Of particular relevance to the applicant were s 80(b) and s 80(c) of PSMA in terms of allegations 1, 3, 4, 6 and 7 which related to s 80(b) and allegations 2 and 5 which related to s 80(c).  Allegation 7 was unable to be sustained by the respondent and was subsequently withdrawn.

167      In relation to those allegations which related to s 80(b) of PSMA, the relevant public sector code was the respondent’s Code of Conduct specifically: 

3. Fraudulent and Corrupt Behaviour

Employees do not engage in conduct which is dishonest and that causes actual or potential benefit or detriment to any person or entity. 

168      With respect to allegations 2 and 5, which related to s 80(c) of PSMA, those allegations were considered to be a contravention of the respondent’s Telecommunications Use Policy which states:

3.2   Telecommunications Security

Staff and contractors must not allow or facilitate unauthorised access to the Department’s network through the disclosure or sharing of passwords, personal logon information, user accounts or other information designed for security purposes. 

82A. Disciplinary matters, dealing with

(1) In dealing with a disciplinary matter under this Division an employing authority —

(a) must proceed with as little formality and technicality as this Division, the Commissioner’s instructions and the circumstances of the matter permit; and

(b) is not bound by the rules of evidence; and

(c) may, subject to this Division and the Commissioner’s instructions, determine the procedure to be followed.

(2) Even though an employing authority decides to act under section 81(1)(a), the employing authority may, at any stage of the process, decide instead that it is appropriate —

(a) to take improvement action with respect to the employee; or

(b) that no further action be taken.

Allegations

169      Although to some extent there are elements of agreement between the applicant and the respondent on the allegations the Commission considers there are considerable aspects of evidence that differed particularly when considering the applicant's schedule to Form 2 – Application, together with exhibit Pinker 7 and the evidence the applicant gave during the proceedings.  When the applicant’s evidence is compared with the investigation report (exhibit Education 2), in particular the interviews of Ms Pearse, Ms Andrade and Mr Glenn Meinema then circumstances vary in the way in which the responses were given to the Commission. 

170      Respondent’s counsel submitted at the outset of the hearing correspondence (exhibit Education 1) that had earlier been forwarded to the respondent outlining:

-       The applicant’s response to each of the allegations;

-       A suggestion that the applicant’s response would therefore make the tendering of the respondent’s investigation report unnecessary; and

-       If the respondent were to proceed and table the investigation report a suggestion was made that all aspects of the report would need to be verified.

171      Therefore, the Commission is required to make findings with respect to each of the allegations as there are differences between the applicant and the respondent.  Before doing so the Commission finds that the applicant ultimately accepted a position that ‘it is fair’ for the Commission to ‘have all the evidence’ inclusive of the investigation report produced by SID (ts 77).  The Commission considers for the applicant to ultimately adopt this position at that stage of the proceedings was indeed proper. 

Allegation 1

172      Between January 2010 and December 2010, at CBC, the applicant was alleged to have breached s 80(b) of PSMA by contravening the respondent’s Code of Conduct, in that she directed Mr Glenn Meinema to assess students’ marks.  The applicant states (exhibit Pinker 7) she limited her actions in relation to allegation 1 by her direction to Mr Glenn Meinema:

to check the working out of my marks as I felt I had made some mistakes.

173      A summary of an interview between Ms Cann and Ms Pearse during the investigation process includes a declaration by Ms Pearse that:

Ms Pinker stated Mr Glenn Meinema had marked assessments for her.

(exhibit Education 2 [2.5])

174      The applicant stated during her interview with the investigator: 

I am aware my conduct could be a contravention of the Department’s Code of Conduct, but I did not think that my actions contravened the Department’s Code of Conduct or would directly affect the students. 

(exhibit Education 2 [2.8])

175      The Commission finds the applicant breached the Code of Conduct in that she directed Mr Glenn Meinema to mark the assessments knowing that such a direction was in breach of the respondent’s Code of Conduct.

Allegation 2

176      Between June 2011 and July 2011, the applicant, it was alleged by the respondent, breached s 80(c) of the PSMA by committing an act of misconduct.  The respondent alleged she provided personal logon information, including her password, to Mr Glenn Meinema to access the respondent’s network. 

177      Because Mr Glenn Meinema is not an employee of the respondent, the applicant’s actions were considered to be in breach of the respondent’s Telecommunications Use Policy.

178      The applicant, in response to the allegation, asserted she was having difficulty with her computer and accessing data, and Mr Glenn Meinema was good with computers.  In addition, the trouble seemed to occur at weekends (exhibit Pinker 7).  The applicant declared in her interview during the investigation process she had done the wrong thing with respect to this allegation: 

I was aware of this and know I did the wrong thing here. 

(exhibit Education 2, 7 allegation 2 dot point) 

179      The Commission finds that the applicant’s behaviour between June 2011 and July 2011 breached s 80(c) of PSMA by committing an act of misconduct in that she provided personal respondent logon information, including her password, to Mr Glenn Meinema to access the respondent’s network.  In particular, because Mr Glenn Meinema is not an employee of the respondent, the applicant breached the Telecommunications Use Policy.

Allegation 3

180      It is alleged between June 2011 and July 2011 the applicant contravened s 80(b) of PSMA by contravening the respondent's Code of Conduct.  During this period the applicant was at SRC and directed Mr Glenn Meinema to check assessments on her behalf.  The applicant's defence is as it was for allegation 1 (exhibit Pinker 7 [72]):

I asked my then partner Mr Glenn Meinema to check the working out of my marks as I felt I had made some mistakes.

181      During the applicant's interview in the investigation process the applicant admitted she had asked Mr Glenn Meinema to check the grades (exhibit Education 2, 7).  In addition the applicant was shown assessments and was unsure as to whether the mark was her own mark or that of Mr Glenn Meinema’s (exhibit Education 2, 12 [3.8]).

182      The Commission finds that on the balance of probabilities the applicant requested Mr Glenn Meinema mark rather than check assessments for students of SRC in the months of June and July 2011.  The applicant admitted as much to Ms Pearce.  The Commission finds that the applicant's actions as a qualified teacher in requiring Mr Glenn Meinema to mark assessments was dishonest and was in contravention of the respondent’s Code of Conduct.

Allegation 4

183      It is alleged the applicant between May 2011 and July 2011 committed a breach of discipline contrary to s 80(b) of PSMA by contravening the respondent's Code of Conduct at SRC by allocating final semester 1 grades prior to marking student assessments.  The applicant asserted in response to the allegation she was informed by Ms Andrade to provide the students with approximate grades which did not impact on students as the units were concurrent over two semesters, therefore semester 1 grades were the preliminary step.  Ms Harling and the applicant allocated estimates (exhibit Pinker 7 [76]).

184      Mr Glenn Meinema stated in his interview that the applicant directed him to manipulate marks to match the grades as provided (exhibit Education 2, 12).  Further, Ms Pearse stated at 3.12 of exhibit Education 2 that the applicant had admitted to her that grades had been made up.

185      The Commission finds that the applicant's position as to what occurred is not supported by witnesses to proceedings.  The Commission finds that at no stage did Ms Andrade instruct the applicant to distribute approximate grades to the students.  From the applicant's admissions to Ms Pearse, together with her directions to Mr Glenn Meinema, it would be reasonable in the Commission's mind to conclude that the applicant allocated semester one grades in contravention of the respondent's Code of Conduct.

Allegation 5

186      With respect to this allegation there is no dispute between the applicant and the respondent that in this matter the applicant did provide her own logon information and associated password to Mr Glenn Meinema to enable him to access the respondent's network in October 2011 in breach of discipline contrary to s 80(c) of PSMA in breach of the Telecommunications Use Policy.

The applicant says in response to that particular allegation that she was having difficulty with her computer at the time, in accessing data and furthermore suggests her partner was very good with computers.  The applicant asserts that the problem mainly occurred at weekends (exhibit Pinker 1, [74]) and further she did not admit she had provided her logon details to Mr Glenn Meinema. 

187      The Commission finds based on the evidence it is reasonable to determine that the applicant's actions were in contravention of the respondent’s Telecommunications Use Policy in particular s 3.2. in that she did provide her logon details to Mr Glenn Meinema.

Allegation 6

188      It is alleged in October 2011 the applicant admitted a breach of discipline contrary to s 80(b) of PSMA by contravening the respondent's Code of Conduct at SRC.  On this occasion the applicant directed Mr Glenn Meinema to mark student’s assessments on her behalf.  Importantly, Mr Glenn Meinema is not an employee of the respondent.  In response the applicant states that she asked Mr Glenn Meinema to check the working out of her marks as she considered there were mistakes (exhibit Pinker 1 [72]).

189      On 15 January 2014, at approximately 10.05 am, the applicant participated in an electronically recorded interview at SRC conducted by Ms Cann.  Also present was Ms Davies and Ms Pearse as a support person.  A summary of the applicant's interview with respect to allegation 6 follows:

Allegation Six

• I got Mr Glenn Meinema to complete the marking of the multiple choice of some assessments.
• I know it's incredibly wrong and it was me cutting a corner because I was late.
• I can't tell you know if I got him to do anything else with these assessments.
• It would have been one of my lower school classes.

(exhibit Education 2, 10)

190      The Commission finds that with respect to allegation 6 in consideration of the applicant's conduct by allowing a person who is not qualified as a teacher to mark assessments the applicant may have caused a detriment to the students in the event that assessments were marked incorrectly.  On the balance of probabilities in the view of the Commission the applicant's actions were in contravention of the Code of Conduct in particular s 3 which requires employees of the department to act ethically and avoid engaging in any behaviour which may be considered fraudulent and/or corrupt.

191      With respect to allegation 7 the respondent withdrew the allegation.

Penalty disproportionate to breaches

192      The applicant contended the determination of termination as a penalty in response to the six breaches of PSMA was a disproportionate response.  In particular, the applicant submitted:

(a)          senior staff at SRC including the principal, maintained their trust in the applicant as a teacher and would welcome the applicant back to the school at any time;

(b)          she conceded through the investigation process the conduct complained of and expressed remorse and apologies for her actions;

(c)          there had been no previous disciplinary matter against the applicant from when she was first employed in 2005, some nine years earlier;

(d)          when the conduct complained of occurred the applicant was having relationship difficulties with her partner of 12 years, leading to family law proceedings and subsequently, a separation;

(e)          her mother was very ill; and

(f)           her professional role as a science teacher, specifically in the area of robotics for children in lower socioeconomic areas had to date been an important part of the SRC science activities, being noted nationally.

193      Conversely, the respondent submits a number of factors were taken into account when considering the issue of penalty:

• the nature and seriousness of the allegations;
• the impact that your behaviour has had on your reputation, and the reputation of the Department;
• any mitigating or extenuating circumstances provided by you in your submissions;
• your length of service with the Department;
• that you have made some admissions in respect to your behaviour; and
• industrial advice received from Labour Relations Directorate in respect to appropriate action.

Prior to making a final decision and taking the action outlined above, I am providing you with an opportunity to provide a written submission concerning the proposed finding and action.  In your submission you may wish to include an explanation of your conduct, or reasons why the proposed finding and/or action should not be taken against you.

(exhibit Education 4)

194      In addition to the aforementioned matter the following was taken into account by the respondent:

• The motivation of Mr Glenn Meinema for reporting the matter.
• Mr Meinema’s mental state.
• Your emotional state and personal issues during 2010 and 2011 in respect to the breakdown of your relationship with Mr Meinema.
• The evidence considered in determining a breach of discipline in respect to each allegation.
• The seriousness of your conduct and that the proposed penalty was harsh and severe.

I have considered your submission and note the points made about this matter.  However, I am not persuaded away from my preliminary view that you committed six breaches of discipline and that I should terminate your employment.

(exhibit Education 5)

195      Following the investigation undertaken by SID, Ms Cann and Mr Riddle wrote to the director general as follows:

In considering the most appropriate action to take, I respectfully submit that the following factors should be carefully considered:

• The nature and seriousness of the allegations;
• The impact that Ms Pinker's behaviour may have had on her reputation and/or the Department’s reputation;
• Any mitigating or extenuating circumstances provided in Ms Pinker’s submissions;
• Ms Pinker’s length of service with the Department;
• That Ms Pinker made some admissions in respect to her behaviour; and
• Industrial advice received from the Employee Relations Directorate in respect to appropriate action.

On 7 March 2014, Mr John O'Brien, Employee Relations Directorate, recommended termination of Ms Pinker’s employment with the Department as an appropriate penalty.  This recommendation is based on the belief that Ms Pinker’s actions has caused a break down in the employer/employee relationship with regard to trust and integrity.

(exhibit  Education 6)

196      On 16 April 2014 a memo was sent by Ms Cann through to Ms O'Neill.  That memo summarised some of the submissions that SID had received on behalf of the applicant regarding the investigation.  These included:

• The motivation of Mr Glenn Meinema for reporting the matter.
• Mr Meinema's mental state.
• Ms Pinker’s emotional state and personal issues during 2010 and 2011 in respect to the breakdown of her relationship with Mr Meinema.
• The evidence considered in determining a breach of discipline in respect to each allegation.
• The seriousness of Ms Pinker’s conduct and the subsequent harsh and severe penalty imposed.

The concerns raised in relation to Ms Pinker's relationship with Mr Meinema and his motivation for reporting the matter are irrelevant in considering Ms Pinker's actions.  By raising these concerns, it appears Ms Pinker fails to accept full ownership of her actions and places blame on Mr Meinema for her own conduct.

(exhibit Education 7)

197      The respondent considered the issues impacting negatively on the applicant’s life at the time including her difficult relationship with Mr Glenn Meinema, the separation, the family law proceedings and her mother's illness to be irrelevant.  The Commission appreciates these issues occurred during a very difficult period in the applicant’s life however, that does not mean that the respondent’s standards can be avoided or short-tracked.

198      It appears the applicant was supported by her peers at SRC for all the right reasons during a very difficult period subsequent to the investigation commencing.  Such an approach is laudable.  However, it does appear that unrealistic expectations may have been created as to what the possible outcome with regard to penalty might have been arising from the respondent’s investigations.  Clearly, the decision-maker as to penalty was always to be the director general with a possible review by the Commission.

199      Having said that, the Commission considers it passing strange that the investigation did not include any interviews with current senior staff at SRC with the exception of a preliminary interview with Ms Pearse and an interview with Ms Andrade.  Furthermore it is of concern that a regional staff member prohibited Ms Pearse from providing a reference of support for the applicant during the investigative process (exhibit Pinker 1 [17] - [18]).

200      Having regard for the submissions of both the applicant and the respondent and in consideration of the question whether the penalty is disproportionate to the conduct complained of by the respondent the Commission has had regard for a number of issues:

• The applicant's conduct in the investigation process where she attempted to play down the seriousness of the conduct complained of;
• The fact that the respondent is well placed to determine the appropriate standard of conduct expected of staff and determine whether the seriousness of the allegation determined was such that dismissal was the appropriate penalty.

201      The Commission finds that in the respondent’s determination the level of dishonesty and the breakdown of trust was significant in the face of the differing versions of the applicant's evidence in proceedings Pantovic v Public Transport Authority of Western Australia where it was said:

Mr Pantovic’s conduct in the investigation process, in attempting to mislead and obfuscate, was of itself, sufficient to have warranted the Authority losing confidence in the integrity of Mr Pantovic as a law enforcement officer.  In such a position, Mr Pantovic was obliged to demonstrate the highest standards of conduct.

202      The Commission finds it is the director general, as the most senior person with the respondent, who sets the standard of conduct expected of staff as it is she who is ultimately responsible for holding staff members accountable.  The decision making authority in relation to making findings and imposing penalties in relation to misconduct matters are issues of concern to the respondent which ultimately must be held to the highest level possible. 

203      In relation to the personal circumstances that had been raised by the applicant at various stages of the dismissal process the Commission finds it was clear on the evidence presented that at the time the respondent made her final determination to terminate she had had regard for a number of issues.  These had been raised in the previous paragraphs of my reasons and were referred to in exhibit Education 4, exhibit Education 5, exhibit Education 6 and exhibit Education 7.  The Commission finds the director general had full regard for the applicant's circumstances prior to making her final determination to dismiss the applicant.

204      Ms Pearse’s evidence in relation to the submission of references on behalf of the applicant in this matter (exhibit Pinker 1 [17] – [18]) was directly contradictory to Ms Cann’s evidence from the witness box:

So if Ms Everal Pearse wrote a character reference and gave it to you, you’d take it into consideration, for example? --- Yes.

(ts 107)

Disbarment

205      Counsel for the applicant considered the penalty of dismissal for the applicant to be equivalent to disbarment.  Smith C as she then was in Lee v Director General, Department of Education and Training (2004) WAIRC 13757 said of the dismissal of a teacher from the respondent:

This case is different to the majority of unfair dismissal matters the Commission usually deals with.  I make this observation not because of the relevant provisions of the PSM Act but because the Respondent employs a substantial proportion of teachers within the State of Western Australia; the penalty of dismissal, can be said to be akin to disbarment, in that the Applicant has been precluded from seeking work in a large number of schools in Western Australia.

206      The Commission finds that the penalty of dismissal as applied by the director general in the case of the applicant is similar to disbarment in that the applicant has been ‘precluded from seeking work in a large number of schools in Western Australia’.  Having found the penalty of dismissal is similar to disbarment the Commission must consider whether such a finding would override the penalty as applied by the director general in terminating the applicant to ground a finding of unfair dismissal.  The Commission has considered the issue with some care however, because of the number of serious breaches found as having been committed by the applicant, namely six, then the Commission is unable to apply an alternative penalty to dismissal.

Procedural unfairness

207      Counsel for the applicant asserted that the respondent had breached the principles of procedural fairness.  In examining those principles the Commission has had regard for the decision of the Full Bench in the Minister for Health v Drake-Brockman where it was said:

Except if a departure results in actual unfairness, a decision-maker is bound by any principle of procedural fairness to adhere to a statement of intention as to the procedure to be followed in then in an investigation.  In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, a departmental officer who was considering whether to recommend that Lam’s visa be cancelled wrote a letter to Lam requesting contact details for the carer of Lam’s children and said he wished to contact the carer to assess the impact that cancellation would have on the children.  Lam provided the details but no contact by the department was made with the carer.  The High Court held:

(a) When a public authority represents that a particular procedure will be followed that may, but will not necessarily, affect the content of the requirements of procedural fairness;

(b) To establish a breach of procedural fairness it must be demonstrated that the procedure adopted was unfair, not that an expectation engendered by a representation has been disappointed.

208      In the same decision, Gleeson CJ observed in Lam [34]:

[It] is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed.

209      His Honour said [37]:

A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.

210      It may be argued that the applicant suffered a procedural unfairness when Ms Pearse was prohibited by a representative from regional office from submitting a reference on behalf of the applicant (exhibit Pinker 1 [18]).  However having found that there may have been an unfairness in a procedural sense it ultimately is for the Commission to determine whether that unfairness in the Commission's view overrides the decision the respondent made to dismiss the applicant pursuant to Part 5 of PSMA.  In this matter the respondent in fact did not learn of the alleged misconduct until 2013.

211      In the Commission’s view, even if an element of procedural unfairness did occur by refusing Ms Pearse to make representation on behalf of the applicant to the investigation being undertaken by SID the conduct being complained of was so serious as to override the six allegations that were found to have been breached, having regard for the applicant’s mitigating factors.  In the Industrial Appeal Court decision in The Shire of Esperance v Mouritz (1991) 71 WAIG 891 it was said that:

213      At issue the Commission is required to give consideration to is whether there was an intention to repudiate the employer’s authority.  Was the conduct of the applicant of such gravity as to indicate a rejection or repudiation of the contract by the applicant: Samata v Fraser Chief Executive Officer Shire of Gingin (2011) WAIRC 00116; (2011) 91 WAIG 1975.

214      The respondent in the current matter suggested the allegations that the conduct complained of was a matter that first occurred in January 2010.  However, the evidence reveals that the applicant continued to be employed by the respondent through until 2014 which the applicant relies on to suggest the respondent condoned the behaviour.  In this matter the respondent in fact did not learn of the alleged misconduct until 2013.

215      The applicant went on to implement the robotics programme at SRC with some distinction and for some years after the conduct complained of occurred the question is therefore is such prominent behaviour thereafter sufficient to recognise there was no intention on the part of the applicant to repudiate her employment contract. 

216      The Commission considers the contract does not inevitably come to an end on the repudiation: see Macken, McCarry and Sappideen’s The Law of Employment Sixth Ed (2008) at pp 319 - 328 and the authorities therein cited.  

217      The Commission finds the applicant, in light of what the respondent found to be breaches of discipline in 2010 and 2011 at CBC and SRC by the gravity of the applicant’s conduct in those years, and having regard for the respondent’s own Code of Conduct and Code of Ethics took steps to bring her own contract to an end.

The respondent as a public body

218           Counsel for the applicant submitted that procedural matters in this case ought to be applied more stringently than procedural fairness matters would otherwise apply due to the fact the respondent is a public sector employer.  If the respondent failed to adhere to the special requirements to which it was subject then that of itself may amount to an unfair dismissal: Public Employment Industrial Relations Authority v Scorzelli [1993] NSWIRC 48,  The relevant disciplinary matter applying to the respondent at the time were:

(a) PSMA;

(b) Commissioner’s Instruction No. 3: Discipline-General;

(c) Public Sector Standard-Discipline; and

(d) The respondent’s own policy – Staff Conduct Discipline

219      The Commission has had regard for PSMA, the aforementioned Instruction No 3 and the respondent’s own policy on Staff Conduct Discipline together with the Public Sector Commission Guide to the Disciplinary Provisions contained in Part 5 of PSMA.  Having regard for all of the documentation the Commission is of the view that in implementing the disciplinary proceedings against the applicant the respondent ensured the process was completed as soon as practicable and that at all stages the applicant was notified in writing:

- the conduct relating to possible breaches of discipline;

- where breaches of discipline were found to have occurred;

- where alleged breaches had been withdrawn; and

- where action may be taken.

220      In addition the Commission is of the view that the applicant was given a reasonable opportunity to respond to the notification of proposed action.  Seemingly the response given by the applicant in the view of the Commission was genuinely considered by the respondent.  The Commission is unable to ascertain that the applicant was not dealt with fairly and stringently in terms of applying procedural fairness to each stage of the disciplinary process.

Totality Principle

221      The Commission is of the view that with respect to the penalty imposed by the respondent that the penalty is relative to the conduct complained of by the respondent.  The Commission in making its decision, has had particular regard for the evidence of Mr Ryan and in particular:

And having regard to the seriousness of – of them and having considered all of those facts together with the high standards and expectations that the Director General sets for all of our staff, particularly those who interact with students in the schools, I was of the opinion that termination of employment was an appropriate penalty and I put forward that in the recommendations to the Director General.

(ts 149)

222      The Commission is satisfied that the penalty ultimately imposed by the respondent, that of dismissal, does bear a proper relationship to the overall wrongdoing of the applicant having regard for the six allegations as proved and taking into account the personal mitigating factors as submitted by the applicant.

Applicant’s employment

223      The evidence is that the applicant was a swimming teacher for 10 years and a teacher with the respondent for a further nine years from 2005 to 2014 a total period with the respondent for some 19 years.  Up until the conduct complained of the evidence demonstrates that the applicant’s service with the respondent was unblemished in that the applicant had not been the subject of any disciplinary matters.  Soon after her dismissal the applicant was employed on a casual basis at Curtin University.

Trust and Confidence

224      The applicant asserts that her conduct was not sufficiently serious to break the trust and confidence of the respondent.  Evidence from Ms Pearse, Mr Erith, Mr O'Rourke, Mr Healy and Ms Harling all former colleagues from SRC expressly showed their trust and confidence in the applicant had never fractured and continued to this day.  The applicant referred to Kenner C in Leahy v Liquor, Hospitality and Miscellaneous Union (2009) WAIRC 00580 [154] where the decision in Blyth Chemicals v Bushnell (1933) 49 CLR 66 was cited suggesting that the conduct complained of must be ‘destructive of the necessary confidence between employer and employee’ so as to constitute dismissal ‘[b]ut the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence.  An actual repugnance between his acts and the relationship must be found.’

225      Having regard for the understanding and the established confidence of the senior staff at SRC in the applicant with regard to trust and integrity matters the Commission does not consider that the director general had trust and integrity in the applicant at the time leading up to her dismissal.  She said in her letter of termination on 28 Apri1 2014 (exhibit Education 5) to the applicant:

The conclusions and recommendations reached following the investigation are based solely on the evidence obtained in respect to each allegation about your conduct and reasonably leads me to a loss of trust in you as an employee.

226      The Commission finds that it was the most senior person in the organisation that had lost trust in the applicant.  While senior personnel at SRC retained trust and confidence in the applicant, for the purposes of applying the penalty of dismissal, such views had little or no bearing on the final decision of the respondent.

227      The evidence is clear and was unchallenged that the applicant has been respected and well liked in a professional capacity during her recent years at SRC.  The Commission finds that the applicant has impressed the respondent at a number of schools, as well as students from lower socioeconomic groupings, her peers and parents in the development of the early robotics programmes both within Western Australia and nationally in a most remarkable manner.

228      PSMA in s 80A defines disciplinary action in relation to a breach of discipline by an employee, means any one or more of the following:

(a) a reprimand;

(b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made;

(c) transferring the employee to another public sector body with the consent of the employing authority of that public sector body;

(d) if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed;

(e) reduction in the monetary remuneration of the employee;

(f) reduction in the level of classification of the employee;

(g) dismissal;

229      The Commission is satisfied that before taking the final decision to dismiss the applicant pursuant to PSMA the respondent had regard for significant matters as outlined in a memorandum to the director general from Ms Cann and Mr Riddle of SID dated 12 March 2014:

(a) the nature and seriousness of the allegations;

(b) the impact the applicant’s behaviour has had on her reputation, and the reputation of the Department;

(c) any mitigating and extenuating circumstances provided by the applicant in her submissions;

(d) the applicant’s length of service with the Department;

(e) the applicant’s admissions in respect of the some of the behaviour; and

(f) industrial advice received from the Labour Relations Directorate in respect to the appropriate action.

(exhibit Education 6)

230      The Commission finds, taking into account the mitigating factors and having regard to the conduct complained of by the respondent and those aspects of conduct admitted to by the applicant including the expressed remorse, that of the penalties available to the respondent, dismissal is, in the Commission's view, the most applicable penalty under the provision of s 80A of PSMA in this circumstance.  One additional factor the Commission has taken into account in addition to the seriousness of the breaches has been the frequency of the conduct complained of within the 2010/2011 school years (exhibit Education 2).

231      On balance the applicant has not established that the Commission should interfere with the respondent’s decision to apply the penalty of dismissal to the applicant’s employment.

232      An order will issue dismissing the application.