DISPUTE RE DISCIPLINARY PROCESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00517

DELIVERED : Friday, 17 July 2015

FILE NO. : CR 10 OF 2015

Applicant

AND

The Director General, Department of Education

Respondent

CatchWords : Matter Referred for Hearing and Determination pursuant to s 44 – Deputy Principal/School Administrator – Alleged misconduct and breaches of discipline – Breach of duty of care – Aggressive and inappropriate behaviour – Penalties imposed were disproportionate, harsh and oppressive – Reduction in classification – Transfer of employment – Code of Conduct policy – Duty of Care for Students policy – Standards and Integrity Directorate Investigation Report

Legislation : Industrial Relations Act 1979

Result : Matter dismissed

Representation:

Applicant : Mr M Amati

Respondent : Mr D Anderson, of counsel

Reasons for Decision

1         The applicant claims that its member, Ms Trudi Watts, has been wrongly found to have engaged in misconduct by committing breaches of discipline.  The applicant denies the allegations and says the investigation of the allegations was flawed and the penalties imposed on Ms Watts are disproportionate, harsh and oppressive. 

Background

2         Ms Watts was employed by the respondent as a Deputy Principal classified as a School Administrator Level 3, increment 4.  She has been employed by the respondent for 26 years, both as a teacher and an administrator.  From 2010, Ms Watts was the Deputy Principal at High Wycombe Primary School (HWPS). 

3         On Friday, 28 May 2014, HWPS was involved in an interschool sports carnival at Maida Vale Reserve (MVR).  Students, parents, teachers, other community members from HWPS and at least one other school, Wattle Grove Primary School (WGPS), were present.  Also present was at least one student from Darling Range Sports College as a volunteer umpire. 

4         The sequence of events appears to be that Ms Watts went to school first thing in the morning.  She then went to the MVR.  A number of softball diamonds were set up on the oval.  She was supervising the Years 6 and 7 girls’ B grade softball games.  The first game proceeded without incident, although it was late starting due to the lack of equipment. 

5         In the second game, Mr Kade Prescod, a student volunteer from Darling Range Sports College, then around 16 years of age, was umpiring.  Parents and another teacher from WGPS, Mr Petch, offered to score while Mr Prescod umpired.  Ms Watts disagreed with this, believing the organisational requirements were for the umpire to do the scoring.  She got into a dispute with some parents and Mr Petch.  Ms Tracey Robinson, the HWPS sports teacher and organiser of the event for HWPS arrived at the game.  Ms Watts had a discussion with her about the scoring.  Ms Watts left the vicinity of the softball game and made a telephone call to her school principal, Mr Richard Walters, indicating her intention to leave.  Ms Watts returned to the game and the disputation continued.  Mr Walters came to the MVR and Ms Watts was relieved by the other Deputy Principal and left the MVR. 

6         A number of people made complaints in writing regarding the events of the day involving Ms Watts.  Ms Leonie Mildern, a former student and the parent of a prospective student of HWPS, wrote a letter of complaint dated 28 March 2014, the day of the incident.  Ms Tara Heeney, a parent of a student from HWPS and a friend of Ms Mildern’s, and Ms Sarah McClurg, a parent of a student of the school, sent emails dated Sunday, 30 March 2014 to the school principal regarding the events involving Ms Watts.  Ms Robinson and Mr Petch also prepared reports.  Mr Walters reported the matter to the Standards and Integrity Directorate of the Department of Education. 

7         By letter dated 4 June 2014, Mr Geoff Davis, Manager, Investigative Services, Standards and Integrity Directorate of the Department of Education, wrote to Ms Watts setting out the allegations against her as to what was said to have occurred at the interschool sports carnival.  The allegations were: 

1. It is alleged that on Friday, 28 March 2014, whilst employed as a Deputy Principal at High Wycombe Primary School 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. 

Particulars

a. On Friday, 28 March 2014, you were employed as a Deputy Principal at High Wycombe Primary School. 

b. You attended the Interschool Sports Carnival, located at Maida Vale Reserve. 

c. During the course of supervising the Year six and seven girls B grade softball team, you acted in an inappropriate manner, including but not limited to:

i. you spoke aggressively and in an inappropriate tone towards a student umpire;

ii. you spoke aggressively and in an inappropriate tone towards Department of Education staff; and

iii. you spoke aggressively and in an inappropriate tone towards members of the public.  This included directing a parent to ‘Piss off’.

d. The Department's Code of Conduct states in part:

‘1. Personal Behaviour

As employees of the Department we behave with integrity in all personal conduct and treat others with due consideration.’

e. Your conduct, if proven, is contrary to the Personal Behaviour principle of the Department of Education’s Code of Conduct.

2. It is alleged that on Friday, 28 March 2014, whilst employed as a Deputy Principal at High Wycombe Primary School 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 Duty of Care for Students policy. 

Particulars

a. On Friday, 28 March 2014, you were employed as a Deputy Principal at High Wycombe Primary School.

b. You attended the Interschool Sports Carnival, located at Maida Vale Reserve.

c. During the course of supervising the Year six and seven girls B grade softball team, you stated ‘I'm not needed here’ or words to that effect. 

d. You left the oval with your personal belongings. 

e. In leaving the oval, you failed to provide adequate care to the students. 

f. The Department’s Duty of Care for Students policy states in part:

‘Policy Statement

a) Teaching staff owe a duty to take reasonable care for the safety and welfare of students whilst students are involved in school activities or are present for the purpose of the school activity.’

g. Your conduct, if proven, is contrary to the Duty of Care for Students policy.

Exhibit A1, appendix TW1

8         The letter went on to set out the process which would then apply and the possible alternative outcomes to the investigation, including possible findings of breach of discipline and the penalties available to the respondent.  Ms Watts was provided with an opportunity to make a written or personal submission, and she did so in a detailed statement dated 12 June 2014, setting out the events of the day from her perspective.  Interviews were then conducted as part of the investigation.  Those interviewed were Mr Petch on 28 May 2014; Ms Mildern, Ms Heeney and Ms Robinson on 29 May 2014; Ms Watts on 29 July 2014; Mr Prescod on 30 July 2014; Mr Walters on 31 July 2014; and Ms McClurg on 7 August 2014. 

9         The Investigation Report, dated 13 February 2015, found there was sufficient information to conclude, on the balance of probabilities, that Ms Watts had committed acts of misconduct by behaving contrary to the Department’s Code of Conduct and its Duty of Care for Students policy.  The respondent then made preliminary determinations that Ms Watts had committed two breaches of discipline and proposed penalties to be applied to her.  By letter dated 23 February 2015, Ms Watts was advised of the preliminary conclusions and proposed penalties and invited to respond, which she did by letter dated 30 March 2015. 

10      The respondent wrote to Ms Watts by letter dated 13 April 2015 confirming the findings, albeit noting aspects of Ms Watts’s response, and confirmed that in respect of Allegation 1 the penalty to be imposed was a reduction in classification from Level 3 School Administrator to Level 2.9 Teacher and a transfer to another position within the Department.  In respect of Allegation 2, she was issued with a reprimand and a fine of a day’s pay, being $446.81. 

The evidence

11      During the course of the hearing of the matter, evidence was given about the events of the day by Ms Watts, Mr Walters, Ms Robinson, Mr Petch, Ms McClurg, Ms Heeney, Mr Prescod and Ms Mildern.  I also heard evidence from Eamon Francis Ryan and Kristy Gulland regarding the conduct of the investigation and the process applied by the respondent to make the decision. 

12      In considering the evidence in this matter, I have noted both the oral evidence of the witnesses, their comments to the investigator recorded in the investigator’s report, and the accounts of the incidents of 28 March 2014 which were provided in the letters and emails of complaint or other records to which I have referred earlier.  I have also taken account of what Ms Watts has put in her responses to opportunities to make submissions. 

13      I have also taken account of the references and other materials which date back many years, provided by Ms Watts.  I have noted in particular that in her evidence, Ms Robinson described Ms Watts as a Deputy Principal as being ‘very hard working, very conscientious, supportive’, and an ‘able deputy’ and ‘very pedantic’. 

14      Ms Watts gave evidence that the arrangements for the carnival were not as they should have been and gave examples.  One such example was for scoring of the second game in particular for the Year 6 and 7 girls’ B grade softball teams.  She denies that she spoke aggressively or used an inappropriate tone to a student umpire, Mr Prescod; she denies speaking aggressively or in an inappropriate tone to other staff or to using inappropriate language and being aggressive towards members of the public, including parents.  She alleges that the three women, who I take to be Ms Mildern, Ms Heeney and Ms McClurg, swore and shouted at her repeatedly, made personal insults, were name‑calling, sarcastic and engaged in other conduct which she says was inappropriate. 

15      Ms Watts says that she became quite ill that day.  She has a gall bladder problem and was feeling ill with the stress of being abused by Ms Mildern and Ms Heeney.  She says that when Ms Robinson approached the game, she gave Ms Robinson her team list and asked her to look after the team.  She says Ms Robinson showed no signs of being distraught.  Her intention was to share her duty of care with Ms Robinson so that she, Ms Watts, could go a short distance from the game, but still on the oval, and telephone Mr Walters, seeking to go home. 

16      Ms Watts says that she did not leave the oval, thus she did not fail to provide adequate care to the students. 

17      She says that during her conversation with Ms Robinson, she gave Ms Robinson her team list, said ‘there’s my team.  Look after the team’, or words to that effect.  She says that by handing over the team list to Ms Robinson, she was sharing her duty of care with Ms Robinson. 

18      In the grievance she lodged, Ms Watts said ‘I wasn’t sure what Ms Robinson would do, whether she would look after the team or walk away, even though she knew I was 60 metres away from the bin’.  In cross‑examination, Ms Watts explained what she meant by this.  She said, ‘Ms Robinson has a history at [HWPS] leaving her class unattended and it’s – to my knowledge, it has continued into this year’, and although she says Ms Robinson accepted the list of students from her, ‘I knew in my heart of hearts I still had to monitor those kids.  I could only share my duty of care because I couldn’t trust her to look after the kids’.  So Ms Watts says she went a few metres away, by the bin, to telephone Mr Walters, and kept an eye on the class from there.  However, Ms Watts says that she did not see Ms Robinson fall to the ground. 

19      In cross‑examination, Ms Watts said that she did not breach the duty of care because there were other teachers there.  She says she shared her duty of care with Mr Petch. 

20      Ms Watts says that she packed up her chair and took it with her.  It was a gift and she was concerned it would be damaged.  She said she has a little bumbag that she carries, and a backpack.  She left the backpack under a tree.  However, in her statement to the investigation, she said she took her bag because she had previously had her bag stolen. 

21      She says she walked approximately five metres away from where her students were playing, from the nearest student, to telephone Mr Walters.  She did not leave the oval.  She told him ‘I’m sick.  I’m going to vomit.  I’m going to faint.  I need to leave’.  Mr Walters said he would be there in a minute.  The telephone call lasted less than a minute, and she was gone from the game for no more than a minute.  She then walked back to her team.  As she did so, she saw Ms Robinson on her way down to the oval, to another game. 

22      Ms McClurg said she heard Ms Watts say ‘fuck’ once and ‘shit’ several times.  She described Ms Watts as ‘storm[ing] over and yell[ing] at the umpire’, Mr Prescod.  She said that ‘You could tell by Ms Watts’ body language that she was pretty angry … she was yelling and carrying on’.  She described the umpire as having ended up in tears, and that this was ‘quite disgusting’, that he was a student volunteering to help and she ‘felt so sorry for him’. 

23      Ms McClurg described Ms Watts as ‘carrying on in front of the students’, of her saying ‘I don’t have to take this shit’ and ‘storm[ing] off the grounds’.  Ms McClurg says the students were commenting that Ms Watts was swearing.  According to Ms McClurg, when Ms Watts came back, she was yelling, ranting and raving. 

24      Ms McClurg thought Ms Watts’s behaviour was ‘really disgusting’. 

25      Ms McClurg says she overheard Ms Watts telephone Mr Walters, asking him to come, and that she did not hear Ms Watts say she was unwell, nor did she get the impression during a conversation with Ms Watts that Ms Watts was unwell. 

26      Mr Petch describes Ms Watts’s reaction when he and others offered to the umpire, Mr Prescod, that they score the game.  He said as she got up and came across to the side of the field they were on, yelling, saying that if they were going to score, she was going to pull her team off the field.  He said ‘she was pretty angry and shouting’, ‘[her] manner was quite forthcoming and direct.’  She accused the umpire of being rude but Mr Petch says he quickly responded to Ms Watts ‘[y]ou are being a little rude and unprofessional’.  He says he thought she was a ‘bit angry and worked up … [she] seemed really quite angry, it was her voice and her body language, the way she was walking and pointing.’ 

27      He said that when Ms Robinson came along, introduced herself, handed Mr Petch the scoring sheets and asked if they minded scoring, Ms Watts started yelling, complaining again about the disorganisation, and said she would pull her children off the field.  ‘She was having a bit of a rant’.  He described her as ‘angry, very confrontational, forthcoming and aggressive … the volume, body language and demeanour was all totally inappropriate’.  He described her as standing close to Ms Robinson and yelling. 

28      After Ms Robinson became upset, Mr Petch described Ms Watts as being angry and she was throwing her arms around, her demeanour was ‘aggressive and her volume was very loud’.  He says it attracted the attention of those at the softball diamond next to theirs.  He said: 

‘It was shocking to see someone going off like that but then to know that person is a Deputy Principal’. 

29      Mr Petch said Ms Watts said ‘I’ve had enough’, went back to her area, folded her chair and stormed past ‘saying she [was] going back to school and leaving’ (exhibit R5 [39]). 

30      Mr Petch described the sequence of the game between Ms Watts leaving and returning.  She returned about five to 15 minutes later, unfolded her chair, and sat down.  He described her behaviour as disgusting.  He noted that a few students were commenting on Ms Watts’s behaviour, and appeared shocked.  On hearing him assist her own team, Ms Watts yelled out to him that he had no right to direct her team or talk to her students.  He says she walked off the field while on her phone. 

31      Mr Prescod described Ms Watts’s behaviour towards the students at the start as ‘yelling at the kids to get in line, like she was having a really bad day’; ‘she stopped the game and started talking to me pretty aggressive’; she told him not to be rude.  Mr Prescod says ‘[t]here were many people around and they came up to me asking if I was all right and told me they were putting in complaints’.  They appeared to him to be ‘gob smacked’.  Ms Watts ‘went all angry and snapped.  She was yelling at them.’  Mr Prescod described Ms Watts as ‘storm[ing] off’ after the conflict with Ms Robinson.  He said Ms Watts ‘then started going really angry, yelling and stuff and saying that she is going back to school’.  ‘She packed up her stuff, the kids were just staring and she was walking like she was going back to school’ (exhibit R7 [37]).  ‘The lady left for the day’ (exhibit R7 [40]).  He was not cross‑examined on this evidence.  He described her as having ‘spat the dummy in front of all the kids’. 

32      Ms Mildern says that during the first game, Ms Watts was not yelling at the students but was ‘loud and stern’.  Ms Mildern did not think this was appropriate.  She had ‘the impression the kids were scared by the look on their faces when [Ms Watts] was speaking to them’.  Ms Mildern described Ms Watts as yelling at Mr Prescod, ultimately making him distraught and crying.  She also described Ms Watts as yelling at Ms Robinson, being ‘loud, straight on the defensive’.  She says ‘Ms Watts picked up her chair and said, “You can all piss off, you don’t need me anyway”’ and stormed off. 

33      Ms Mildern says after Ms Watts returned, she told Ms Mildern and Ms Heeney they could ‘Piss off’ because ‘we weren’t welcome’. 

34      Ms Heeney says Ms Watts was yelling across to the Wattle Grove team and ‘She wasn’t happy … [She] kept getting louder.  Her voice was loud enough to ensure her point was put across from the other side of the field’.  She described Ms Watts as ‘kick[ing] up a bit of a stink’ about Mr Prescod umpiring and scoring.  She described Ms Watts as snatching the score sheet from the other parent or teacher, as ripping it from them, not taking it, and shoving the scoresheet at Mr Prescod’s chest.  She described Ms Watts’s voice as angry. 

35      According to Ms Heeney, Ms Watts threw up her hands, said ‘Oh, that’s it.  I’m obviously not needed here … Ms Watts walked back to where High Wycombe had their stuff, grabbed her bag, packed up her chair and walked off towards the car park’ (exhibit A1 [26]).  Ms Watts came back after 10 minutes.  Ms Heeney said she had the impression Ms Watts was leaving. 

36      Ms Heeney also described what happened after the altercation with Ms Robinson when Ms Watts returned to the game.  Ms Watts told Ms Heeney , who was scoring, that she did not need to do it.  When Ms Heeney said she had been asked to do it and would do it, Ms Watts said, ‘Well I said you don’t need to do it’.  She took the clipboard off Ms Heeney and said ‘Are you a teacher?’  When Ms Heeney said she was not, Ms Watts said, ‘Well piss off then’.  Ms Heeney described Ms Watts’s behaviour as ‘a disgusting display of behaviour she had shown in front of everyone’, and as ‘appalling’. 

37      Ms Robinson says that when she was approaching the game involving Ms Watts’s students, Ms Mildern approached her complaining about Ms Watts.  Ms Robinson said she would talk to Ms Watts.  She says Ms Watts spoke to her in an aggressive manner, loudly, with intimidation, Ms Watts was complaining about the lack of organisation and about the scoring.  Ms Robinson said that she did not think it mattered who scored, and Ms Watts had a clipboard or a sheet which she gave to Ms Robinson saying, ‘Fine.  You look after them.  I am going’.  She says that Ms Watts then collected her belongings and walked away, towards the clubrooms.  Ms Robinson says she remembered thinking, ‘she’s gone’ and she ‘didn’t expect her to come back’.  She believed she was not returning. 

38      Ms Robinson says she was trying to remain calm.  Ms Robinson had a panic attack and ‘melt[ed] down’ after Ms Watts left and got her belongings and walked past Ms Robinson.  Ms Robinson started to cry, she could not get her breath.  Ms Robinson says that she was visibly upset, shocked, very distraught, extremely embarrassed and extremely humiliated. 

39      Ms Robinson says that while she thinks Ms Watts did not see her crouching down after the panic attack, that Ms Watts saw that she was visibly upset, visibly shocked, that she, Ms Robinson, was in no fit state to have done anything.  In any event, Ms Robinson says that Ms Watts knew she could not take on the children as she had other duties to do that day.  She says though, that as upset as she was, ‘I wasn’t leaving without someone being there for duty of care’. 

40      A number of people then gathered around Ms Robinson to assist her.  A parent said they were going to find the organiser of the softball.  After she had collected herself, Ms Robinson said that the young umpire came up and asked ‘what do I do now?’ and she reassured him. 

41      Ms Robinson says Ms Watts was gone for about five to 10 minutes. 

42      Asked if Ms Watts’s behaviour on the day of the sports carnival was characteristic of Ms Watts, she said ‘I have known other occasions, but it’s – it’s pertaining to the day that I am concerned about’.  However, Ms Robinson appeared to indicate that Ms Watts’s behaviour had concerned her before but ‘not to that extent’. 

43      Mr Walters says that when Ms Watts telephoned him to say she was leaving the carnival because there were a number of issues about the organisation of the event, she was unhappy to stay, it was too stressful.  She reiterated that she was in dispute with parents and a teacher from another school.  Ms Watts gave no indication of any medical issues affecting her that morning, but when he arrived at the grounds and spoke to Ms Watts, she said she was not feeling well as a result of being stressed, ‘I don’t feel well, I need to go home.’  There was no reference to her feeling like vomiting or passing out. 

44      Mr Walters says in cross‑examination that he received a call from Ms Watts.  She complained about organisational issues associated with the carnival, that there had been an incident, that she felt she was being harassed and intimidated by others and needed to leave.  He told her she needed to stay until he came down to the oval and that she could not leave the students.  He says that two to three minutes later, he phoned her back and they had a discussion about the equipment she said was needed, at which time she told him that it had already arrived.  By the time he arrived at the oval, Ms Watts was back at the softball diamond.  She gave no indication of feeling sick, although she told him ‘I don’t feel well.  I need to go home’.  Mr Walters says that Ms Watts’s function that morning was supervision, to be in charge of the girls’ softball B team. 

Consideration

Allegation 1 - Contravention of the Code of Conduct

45      The respondent’s Code of Conduct provides, amongst other things, principles to assist employees to meet the expectation of the Department by its employees ‘to maintain high standards of behaviour’.  In respect of point 1 Personal Behaviour, the principle is that ‘[a]s employees of the Department we behave with integrity in all personal conduct and treat all others with due consideration’.  The explanation which follows this is:

Employees are expected at all times to behave ethically and act with integrity.  In practice, this means employees: 

● treat others with respect, dignity, courtesy, honesty and fairness and with proper regard for their rights, safety and welfare;

…

● contribute to a workplace that is free of harassment, bullying or discrimination against colleagues, students or members of the public;

● encourage positive work habits, behaviour and personal and professional workplace relationships and boundaries;

● do not engage in behaviour that may bring your reputation or that of the Department and the Public Sector into disrepute; and

● do not tolerate or participate in behaviour that is inconsistent with these principles. 

46      The first thing I note about the various accounts of what occurred on the day is that there is a level of inconsistency between the various accounts.  Part of that inconsistency, I think, is due to some people hearing parts of some conversations but not others, due to their proximity to those conversations or to other considerations. 

47      Also, Ms Mildern wrote in her complaint on the day of the incident and was interviewed two months later; Ms Heeney and Ms McClurg each wrote emails two days after the event and were interviewed two months after the event.  Mr Prescod did not write a report or complaint, but was interviewed four months after the event.  Ms Robinson and Mr Petch wrote reports but I do not know the dates of those reports, but each was interviewed two months after the incident. 

48      Therefore, it is hardly surprising that each person has not recalled or reported the incidents of the day in exactly the same terms.  In spite of that, all but Ms Watts provide remarkably consistent, if not exactly the same, stories and there is no evidence of collusion as accounting for that consistency.  A number of the witnesses were unknown to Ms Watts and to each other at the time of the incidents and there is no explanation as to why they would tell remarkably similar stories about her tone, volume, body language and words, except that they are telling the truth. 

49      I found the evidence of Jonathan Petch to be the most convincing of all.  He was a teacher from another primary school and he had not known Ms Watts before the incident.  He had no reason to create false accusations against her, and yet his evidence is quite detailed as to her aggressive and offensive behaviour towards students, in particular Mr Prescod, parents and other staff. 

50      The applicant sought to focus on Mr Petch’s use of the word ‘forthcoming’ in his evidence, yet other language used by him is quite clear that Ms Watts was aggressive, loud and rude, not merely assertive. 

51      In comparing and contrasting the various accounts, it is quite clear, including from Ms Watts’s own accounts, that the day commenced very badly for Ms Watts.  She arrived at the school in anticipation of the sports carnival to find that things were not as organised as she believed they ought to be.  When she arrived at the MVR, she was concerned about other aspects of the organisation of the day.  She was not in a happy frame of mind.  It is clear, too, that she held Ms Robinson responsible for a lack of organisation in some aspects of the arrangements for the day.  In fact, at the end of the day, she put in a complaint to Mr Walters, which she wanted to be treated as a grievance.  However, she appears not to have known at the time that Ms Robinson was not solely responsible for the organisation of the event, yet held her to be responsible.  She later withdrew the grievance, acknowledging that Ms Robinson was not solely responsible. 

52      I find that whilst Ms Watts relies on feeling unwell on the day of the sports carnival as providing an explanation for her wanting to leave, there is no real indication that she was in such a state that she needed to leave.  Mr Walters’ evidence is that she was very upset at what she saw as a lack of organisation and that she may have mentioned feeling unwell, but certainly not to the extent that she needed to leave the carnival.  His clear impression was she was intending to leave the carnival as a result of her unhappiness with the organisation and because she was in dispute with people there. 

53      At its lowest, it is clear from all of the other evidence that Ms Watts was rude, overbearing and aggressive towards Mr Prescod because she wanted him to do not only the umpiring but the scoring.  She says that she had understood that this was the arrangement put in place by Ms Robinson as part of the organisation of the day.  When he indicated to her that some of the parents had offered to do the scoring while he did the umpiring, she was not happy with this response and demanded that he score.  She did so in a tone and manner that was aggressive and inappropriate for a teacher, in the presence of all of the people at the event.  Whether he cried as a response to her behaviour, as reported by a number of the other witnesses, is not so significant to me.  He denies that he cried and I can understand why, if he had cried, he might now deny it.  However, he was at least upset, bewildered and looking for assistance and support from others in response to Ms Watts’s behaviour towards him. 

54      It is also clear that Ms Mildern and Ms Heeney both heard Ms Watts say, on at least one occasion to one of them, to ‘piss off’.  She did so in circumstances where they were both attempting to assist the scoring, upset at her attitude towards Mr Prescod and her behaviour towards Ms  Robinson.  Whilst no one else heard her use the words ‘shit’ and ‘fuck’ as alleged by Ms Mildern, Ms Mildern was unswayed in her evidence that Ms Watts had used those words.  The fact that Mr Petch or Mr Prescod did not hear any swearing by Ms Watts does not mean that it did not occur.  It is clear from the evidence that they were not always within the vicinity of her to hear what she was saying, or were concentrating on other things. 

55      It is also clear, and I have no reservations in finding, that Ms Watts’s attitude towards Ms Robinson on the day was rude and aggressive.  She made very clear her dissatisfaction with the arrangements for the day.  Ms Robinson was so shocked and distraught by the attack by Ms Watts that she had a panic attack and dropped to the ground to catch her breath, and recover herself.  Witnesses described her distress and that she was crying. 

56      Whether Ms Watts saw her fall to the ground or not is hard to determine.  It appears that Ms Watts may have turned away from Ms Robinson just as Ms Robinson went to the ground, and so may not have been aware of her doing so. 

57      In any event, it is quite clear that Ms Watts was in a state of high dudgeon and was abusive towards anyone who crossed her path or took a different view to hers that morning, including towards Mr Prescod, Mr Petch and Ms Robinson, and towards Ms Mildern and Ms Heeney.  She used an aggressive and inappropriate tone. 

58      The applicant suggests that in describing Ms Watts’s conduct as being aggressive, that this must be viewed as being that she was ready to physically attack those she displayed aggression to.  However, this is a quite narrow definition of aggression.  The allegation is that Ms Watts acted in an inappropriate manner, including but not limited to speaking aggressively and in an inappropriate tone towards Mr Prescod and toward Department of Education staff, and towards members of the public, and in respect of the last matter, including directing a parent to ‘piss off’. 

59      Aggressively is the adjective of aggressive.  Aggressive is defined as characterised by aggression.  Aggression is, most appropriately to this matter: 

2. any offensive action or procedure; an inroad or encroachment:  an aggression upon one’s rights.  3.  the practice of making assaults or attacks; offensive action in general.  4.  Psychology the emotional drive to attack; an offensive mental attitude (rather than defensive). 

(the Macquarie Dictionary, 3rd ed)

60      It is quite clear that Ms Watts was behaving in a manner which was offensive in the sense of verbally attacking in a manner which displayed anger and frustration to the point where parents, students and other teachers observing her conduct were distressed by it. 

61      In the circumstances, where Ms Watts’s version of events conflicts with other evidence, I have no hesitation in accepting the other evidence.  Ms Watts also displayed a somewhat pedantic and assertive demeanour while giving her evidence. 

62      Therefore, whilst there are inconsistencies in the evidence, they tell a consistent story of the use of abusive language, volume, tone, body language and actions on Ms Watts’s part, directed towards a student umpire, Departmental staff and members of the public.  It was in the view of her students, students from another school, parents from her own school and another school, and teachers from her own school and another school.  This is not the behaviour which is reasonably expected of a school deputy principal. 

63      Ms Watts’s conduct was contrary to the policy in that she did not maintain a high standard of behaviour.  She did not treat others with respect, dignity, courtesy and fairness.  She was rude, abusive and aggressive. 

64      Of significance also is Ms Watts’s refusal to acknowledge her own behaviour, and to respond to the allegations by making complaints against others where the evidence demonstrates no such behaviour on their part.  She has refused to accept responsibility for her behaviour and cast responsibility onto others by her accusations against them.  None of the other people who made statements or gave evidence heard any of the comments which Ms Watts attributes to the three women.  I find there is no basis for Ms Watts’s accusations against them. 

The penalty

65      The respondent has imposed a penalty of reduction of classification and transfer.  The reduction of classification is particularly significant for two reasons.  Firstly, it reduces Ms Watts’s status from School Administrator to Teacher.  School Administrator is a leadership position.  As a Deputy Principal, Ms Watts had a higher standard of behaviour to meet, both as a leader and manager of staff and as a representative of the school’s management to the wider community.  A number of the witnesses expressed particular concern at the behaviour because it was being displayed by a Deputy Principal (Ms Heeney in her witness statement; Mr Petch in his witness statement; Ms Mildern in her letter of 28 March 2014; Ms McClurg in her email of 30 March 2014). 

66      The second element is the financial penalty which goes with the drop in classification level.  It is true that this has both an immediate and ongoing effect.  However, the salary attaches to the classification because of the duties and responsibilities applicable to the level and the position.  In this case, it is not appropriate that Ms Watts be a school administrator, so her salary must be commensurate with the duties and responsibilities she will undertake as a teacher. 

67      Therefore, I have no hesitation in not only finding that the first allegation is made out, but that it is not appropriate for Ms Watts to be a school administrator.  She may at some stage in the future demonstrate appropriate behaviour which would warrant the respondent having sufficient confidence in her to appoint her to such a level, but it seems an appropriate penalty in these circumstances.  In the meantime, the penalty of reduction in classification is not harsh or unfair. 

68      Ms Watts does not oppose the penalty of transfer. 

Allegation 2

69      The allegation is that Ms Watts breached the Duty of Care for Students policy by leaving the oval and thus failing to provide adequate care to the students.  The respondent clarified that this did not mean she left the inter school carnival grounds, but she left the children she was responsible for unsupervised.  Firstly, I accept without hesitation, for the reasons I gave earlier, that Ms Watts’s version of events is not to be preferred over the contrary evidence of other witnesses. 

70      I also note that she says she shared her duty of care with Ms Robinson by handing over the student list.  However, she also says that in effect, she did not trust Ms Robinson to have that duty of care so she did not move out of sight of the students while she made a call to Mr Walters. 

71      I am unable to determine that Ms Watts knew Ms Robinson went to the ground crying because she may have turned away by then.  But I find unreservedly that what Ms Watts did not do was, in a calm and reasonable manner, tell Ms Robinson she was going away from the game to telephone Mr Walters, nor did she ask Ms Robinson to supervise her students until she got back.  She simply thrust the list of students at her, told her to look after her students, and, as described by others, stormed off, packed up her chair and took her bag, and removed herself out of sight of those who remained at the game. 

72      They appear not to have seen where she actually went, however, they were distracted by Ms Robinson and by the game.  Had Ms Watts intended to remain in sight of the game, she would not have felt the need to pack up her chair and take it and her bag with her.  I am satisfied that she intended to leave the oval and was on her way to doing so when she spoke to Mr Walters.  He told her to stay there until he arrived, so she returned. 

73      Ms Watts says she was gone only a minute or so, yet Mr Petch described the sequence of the game which had passed in her absence and he estimated she was gone between five and 15 minutes.  Others have estimated between five and 10 minutes.  Ms McClurg says it was 15 to 20 minutes. 

74      In addition, Ms Robinson went to the ground as Ms Watts walked away to collect her things, she was distressed and crying, and others gathered around to assist her.  She was comforted by them and composed herself.  She then reassured Kade Prescod.  When Ms Watts was coming back to the game, she saw Ms Robinson on her way down to the other game.  It is unlikely that Ms Watts was so close to the game where her students were playing so as to be away for only around a minute if all of this happened in her absence. 

75      Further, a number of witnesses believed from her words and actions that she was leaving, that is, going away from the vicinity, even back to the school. 

76      Also, Ms Watts latterly said that she was sharing her duty of care with Mr Petch.  However, she did not know him at the time. 

77      Therefore, I find that it is highly likely that Ms Watts left the students for whom she had a duty of care in the care of a teacher, Ms Robinson, whom she did not trust and who had responsibility for the whole event, or another teacher whom she appears not to have known was a teacher, and parents and members of the public.  I find that she left the game, not merely for the purpose of moving away from the game to make a call to Mr Walters, not to get him to provide relief before she went, but to tell him she was leaving then.  I also find that as a number of witnesses heard her say that she was not needed there, that it was her intention to leave. 

78      I find that it is most likely that she was not within sight of the game or she would have seen the gathering around Ms Robinson and the activity that followed.  It is also unlikely that she was gone for less than five minutes. 

79      In all of the circumstances, I find that Ms Watts left students for whom she had a duty of care in the hands of people she either did not trust or did not know.  Ms Robinson had other responsibilities that day and could not have accepted the sharing of the duty of care for that class. 

80      Therefore, I find that Ms Watts did not take reasonable care for the safety and welfare of those students, and this breached the Department’s Duty of Care for Students policy. 

The penalty

81      The applicant has not argued in particular that the penalty of a reprimand and a fine of a day’s pay was harsh in the circumstances. 

Reference to the 2011 incident

82      There is an issue of Ms Watts’s conduct on a previous occasion in 2011, which resulted in the respondent sending her a letter in effect, warning her of future behaviour.  I make no findings as to what that behaviour might have been on that occasion.  I also note that Ms Watts appeared to have been justifiably frustrated at a lack of response or timely response to her own complaint of the treatment of her son in his school.  Her complaint was as a private citizen, but by the same token her conduct may well have reflected on her as a school administrator.  But nonetheless, no findings were actually made against her, but the respondent gave her a warning as to the expectations regarding her conduct for the future. 

83      In the report by Ms Gulland, dated 4 February 2015, and the Director General’s letter of 19 February 2015, in which she invited Ms Watts to make a submission, there is a comment that ‘this is not the first time that an allegation of this nature has been brought to [the Director General’s] attention’, and reference to Ms Watts’s conduct in 2011.  I note that no such reference was made in the final letter, dated 23 February 2015.  The comment could only ever have relied on Ms Watts having been given a warning about future behaviour because no findings were made about her conduct in 2011, nor could they have done so without an investigation.  The comment should not have been included at all.  It raised the prospect of that issue having been taken into account in the respondent’s decision, when it should not have been. 

84      I do not accept that the letter in 2011 could serve as a proper warning or as a ‘courtesy’, as it had been described. 

Conclusion

85      In all of these circumstances, the allegations are upheld and the penalty is appropriate.  I find that the Investigation Report has not failed in the ways alleged in the referral of the matter, nor was it flawed and its findings unsustainable.  There was no evidence of bias or prejudice against Ms Watts. 

86      In spite of the inappropriateness of the inclusion of the comment regarding the 2011 incident, I find that the findings regarding the incident on 28 March 2014 and the penalties imposed are not inappropriate.  The conduct that day alone, without having regard to any other conduct, justified the findings and the penalty.