WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00233

DELIVERED : Wednesday, 26 April 2017

FILE NO. : U 93 OF 2016

Applicant

AND

Director General, Department of Education

Respondent

CatchWords : Industrial Law (WA) – Termination of employment – Harsh, oppressive and unfair dismissal – Teacher dismissed for misconduct – Degree of physical contact was not reasonable or necessary to manage student – Whether dismissal was disproportionate to the conduct complained of – Whether the employer failed to properly take account of the teacher’s response – Principles applied – Conduct was a breach of the Department of Education Behaviour Management in Schools policy – Dismissal was not disproportionate to the conduct – Admission and apology are not significant factors of mitigation – Length of service and difficult family circumstances do not mean an employee can avoid dismissal where it is otherwise justified – Application dismissed

Legislation : Public Sector Management Act 1994  s 80A, s 82A(3)(b)

Result : Application dismissed

Representation:

Applicant : Mr D Stojanoski of counsel

Respondent : Mr J Carroll of counsel

Reasons for Decision

1         Mr Barry Landwehr was employed as a Design and Technology teacher at the Western Australian College of Agriculture, Harvey.  On 13 August 2015, a Year 11 student directed a compressed air hose nozzle at Mr Landwehr’s buttocks and released compressed air.  Mr Landwehr pushed the student backwards into a wall.  He continued to push the student after the student had dropped the compressed air hose.  Mr Landwehr admonished the student for his dangerous use of compressed air. 

2         Mr Landwehr started back to class.  The student said something and Mr Landwehr turned back to the student and grabbed him by the shirt. 

3         The respondent dismissed Mr Landwehr on the basis that he had misconducted himself by making physical contact with the student that was not reasonable or necessary to manage the student. 

4         The grounds of the application as filed were that the dismissal was harsh and unreasonable in the circumstances because: 

(1) it was disproportionate to the conduct complained of and is the strongest penalty available to the respondent;

(2) the respondent failed to properly take account of Mr Landwehr’s response, including: 

(a) his expression of remorse;

(b) at the time of the incident, he was suffering from stress from a range of issues in his personal life, including the illness of his father, who has subsequently died;

(c) his 10 years’ service;

(d) that he was employed in a remote area where there may be a difficulty in obtaining teachers;

(e) the positive references from peers and members of the community about his teaching career and his voluntary community activities;

(f) that he did not deny the allegations, he admitted that he had made physical contact with the student and, at the very first opportunity following the incident, apologised to the student. 

5         In outlines of submission and during the hearing, the applicant expanded the grounds to include: 

(1) The dismissal will affect his prospects of finding other employment such as to constitute a disbarment from teaching, and that is unfair;

(2) The respondent’s letter of dismissal indicates that he would receive all entitlements due to him, however, he was not given notice nor paid in lieu.  As the dismissal was summary without notice, it can only be for serious misconduct.  The letter of dismissal does not say that it was for serious misconduct but contemplated payment in lieu of notice.  The summary nature of the dismissal was unfair. 

(3) According to the respondent’s website, there is a course available that deals specifically with prevention, de‑escalation and restraint in respect of physical contact with students.  This would have been a more appropriate course for Mr Landwehr as part of his improvement action plan, which arose from a previous incident, than the Accountable and Ethical Decision Making Course he was required to undertake. 

6         Mr Landwehr says that had the respondent taken account of all of those matters, she would not have terminated his employment. 

7         The respondent says that: 

(1) A full investigation was undertaken in which Mr Landwehr was provided with an opportunity to give his account and to make submissions, including as to penalty, following which the respondent terminated his employment;

(2) She conducted as full and proper an investigation as was reasonable;

(3) Mr Landwehr had not complained of any procedural irregularities during the process; and

(4) Only two months prior to the incident of 13 August 2015, on 10 June 2015, Mr Landwehr was issued with a fine of one day’s pay, a reprimand and was required to take improvement action relating to a breach of discipline.  In this breach, on 29 October 2014, Mr Landwehr used force upon a student which was not reasonable or necessary in that he used his shoulder to push the student back against a wall. 

The incident and investigation

8         There is now no dispute that Mr Landwehr pushed the student backwards into a wall.  He later grabbed the student by the shirt.  After the incident, in the afternoon tea break, Mr Landwehr told Mr Shaun Cantwell, Program Co‑ordinator, Trades, about compressed air being blown ‘in the close vicinity of his buttocks’.  He told Mr Cantwell that he grabbed the student.  Mr Cantwell described Mr Landwehr as being angry. 

9         Mr Landwehr provided a statement regarding the incident to Mr Dean Pfitzner, the Deputy Principal, within a matter of days after the incident.  In it, he said that he ‘felt air being squirted towards my bottom.  I turned around and several boys were there.  [The student] was the one holding the air hose, so I grabbed him and said to him that this is not appropriate and you are putting my life at risk’.  He went on to explain about what happened afterwards.  Although he mentioned grabbing the student when he saw the student holding the hose, he did not mention pushing or subsequently grabbing the student. 

10      In a letter from Mr Mike Cullen, Director Standards and Integrity, to Mr Landwehr dated 1 September 2015, a formal allegation was put to Mr Landwehr that, in effect the physical contact he made with the student was not reasonable or necessary to manage the student. 

11      Mr Landwehr provided a response to Mr Cullen dated 4 September 2015 (Agreed document 8, attachment 1).  In it, he repeated the exact words he had used in his statement to Mr Pfitzner, which I quoted in [11] above.  However, when addressing the particulars of the allegation against him, Mr Landwehr went to say that the student had actually squirted air ‘in my bottom’. 

12      Mr Landwehr said that he kept the student behind after class and talked about the seriousness of the event.  He said that he told the student that he was sorry, that he should not have grabbed him, but that if it had been a situation at work, the person ‘being [perpetrated] could have caused [the student] a lot of pain’. 

13      He then went on to address the issues raised in Mr Cullen’s letter.  He said that he had originally tried to reduce the seriousness of what had happened by saying that the student had squirted air ‘towards’ his bottom when what had occurred was that the student had ‘squirted air up my anus’.  He then wrote that the student might have killed him by doing this and he yelled at the student. 

14      He responded to the particular of the allegation ‘d’, that he had grabbed the student and pushed him backwards into a wall, saying that ‘I agree I did this.  As I pushed him holding his upper arms between his shoulder and elbows.  I yelled at him saying you may have just killed me or you have put my life at risk.  As he hit the wall I let him go.  I then turned and walked away.’ 

15      He responded to particular ‘e’, that he had then grabbed the student on the top of his shoulder whilst yelling at him, by saying that ‘I do not agree with this at all I never changed my hold and grabbed his shoulders’.  In respect of particular ‘f’, that the physical contact was not reasonable or necessary to manage the student, he described the contact he made with the student as ‘very minor and I did not use excessive force’. 

16      He emphasised the dangers of the misuse of compressed air with its potential to cause an embolism or massive bleeding. 

17      The Standards and Integrity Directorate of the Department conducted an investigation.  It included interviews with a number of students who had observed the incident or heard of it, and members of staff and others.  Mr Landwehr was interviewed as part of that process. 

18      In his interview, recorded in the Investigation Report (Agreed document 8), Mr Landwehr said that he grabbed the student and pushed him backwards into a wall.  He said: 

● I was up near the front of the Building and Construction workshop, bending over a tool rack on wheels when [the student] deliberately grabbed the air hose. 

● [The student] put it up my backside and squirted the air. 

● I don’t know how [the student] put the air up my backside as my back was turned.

● All I could feel is the thing getting inserted into my backside and squirted. 

● I felt the end of the air hose being pushed into my backside and then squirted, if that makes any sense. 

● You have got a bit of give when wearing clothing.  I'm not saying that when it got inserted into my anus that it went right in or anything. 

● I am not saying that it penetrated my backside, but the end of it still went in.  It sort of went into my anus cavity probably about 4 millimetres, as far as the clothes would allow it.

● You have your pants there and when pushed against my pants, you can see the shape of my backside with my bottom exposed. 

● I was wearing long ‘hard yakka’ safety clothing and bonds underwear. 

● I have never had air squirted near my backside, or up my backside before, but that happened to me there and then and made me think, ‘It could kill me, or has it killed me?’

● I turned around and saw [the student] holding the air hose.  I grabbed hold of him between the shoulder and elbow of both arms and pushed him backwards about two to three steps in one action into the wall.  I probably pushed [the student] backwards about two metres. 

● I let him go when he hit the wall or the side of the roller door. 

● The wall was made out of bricks and the rudder inside. 

● [The student] hit the wall very minor.

● I can’t answer what part of [the student’s] body hit the wall.  It was probably his shoulder. 

● I cannot recall how quickly I walked [the student] backwards. 

19      He said: 

- he did not know why he grabbed the student;

- he yelled at the student that he could have killed him;

- if it had been in a work situation, another person would have just turned around and ‘thumped’ him;

- he emphasised the dangers of compressed air, and that immediately after the compressed air was expelled, he thought he was going to be killed;

- he did not seek medical attention because there is nothing that can be done. 

20      He acknowledged that when he first spoke to Mr Pfitzner, he did not tell him he had ‘physically manhandled’ the student.  He had told Mr Cantwell that the student had ‘deliberately squirted air up my backside’ – he did not think it was pertinent to go any further.  He could not answer why he did not tell Mr Cantwell that he had pushed the student against the wall.  Nor did he think it was pertinent that he had grabbed the student.  What he thought was pertinent was the student’s act. 

21      Although he denied using excessive force, Mr Landwehr said he could not answer what constitutes excessive force, but that ‘[p]ushing somebody back is not really excessive force’.  Excessive force is ‘[p]unching somebody and hitting somebody’. 

22      Mr Landwehr talked of the possible catastrophic effects of compressed air entering the bloodstream.  He said he thought he was in danger and ‘just grabbed’ the student, thereby removing the risk.  When he grabbed the student, the student dropped the air hose. 

23      Mr Landwehr said that if he had realised what was going to happen, he would have told the ‘exact truth’ about the extent of the actions, but he did not want to put the student in a bad light. 

24      He also said: 

● I did stuff up; I should have told the truth about [the student] from the start.  I am not lying, I am not that type of person.

● I told Mr Cantwell that [the student] put air up my anus.

…

● [The student] dropped the hose as soon as I grabbed him.

● I can’t answer why I continued to hold [the student] and push him into the wall after he dropped the air compressor hose.

● I believe that my actions were to re‑establish order in the classroom. 

● I’ll be honest; my mind wasn’t really as clear as it could have been at the time.  Lots of things were going through my mind at the time of the incident.

● I find it a little bit hard to say 100%, if I re‑established order. 

● [The student] has the possibility of putting other people at risk.

…

● Particular D – I do agree, I grabbed hold of [the student’s] arms and I did yell at him and say that he put my life at risk. 

● Particular E – I do not agree with.  I never changed my hold on [the student]. 

● Particular F – I thought in the scheme of things, was not excessive force.  If people understood the back ground of compressed air and all that type of stuff, they would have a totally different slant on the dangers of air compressors.  It can be fatal.

…

Supplementary agreed document 8, page 13

25      Even though Mr Landwehr said that he told Mr Cantwell that the student ‘put air up [his] anus’, in Mr Cantwell’s report and interview he said that Mr Landwehr told him it was ‘towards’ or ‘in the vicinity of’ him. 

26      I note too that the records of interview of Mr Landwehr and the student said Mr Landwehr had kept him back after class.  However, neither of them said he had apologised to the student, as Mr Landwehr said he had done in his letter to Mr Cullen of 4 September 2015. 

27      The Investigation Report analyses all of the material, in particular, Mr Landwehr’s two different accounts of the air being directed towards his buttocks and the air compressor gun being inserted in his anus.  It considers what he was wearing and concludes that ‘it would appear impossible that the end of the air compressor gun could be inserted into a person’s anus through two layers of clothing’ (Agreed document 8, page 15).  It concludes that it was likely based on the various accounts of witnesses that the air gun was at least 30 centimetres from Mr Landwehr’s buttocks, and that he was ‘now attempting to exaggerate the severity of [the student’s] actions to justify his own reaction’. 

28      It also concludes that ‘whilst holding [the student], Mr Landwehr has pushed him backwards from the air compressor hose toward the steel roller door frame’, and that ‘[d]espite Mr Landwehr admitting that [the student] dropped the hose as soon as he grabbed him, he continued to push [the student] three to four metres to the other side of the workshop and into the wall.  Mr Landwehr failed to provide any explanation as to why he continued to push [the student] after there was no alleged risk; just saying “I can’t answer why I continued”.’ 

29      It also concludes that it is likely that Mr Landwehr grabbed the student a second time around the shoulder and neck. 

30      After considering the medical evidence and the circumstances, the report concludes that Mr Landwehr’s concern for his life is questionable. 

31      The conclusion was that an incident occurred in which Mr Landwehr physically assaulted the student by pushing him backwards into a wall and grabbing him a second time.  It says that whilst Mr Landwehr admits that he grabbed hold of the student and pushed him backwards into a wall before letting him go, he denies using an unreasonable degree of force in the circumstances. 

32      It also concludes that: 

(1) the actions of the student, whilst dangerous, were not of the severity that Mr Landwehr later claimed;

(2) that Mr Landwehr’s first account, prior to being advised that his conduct was under scrutiny, appeared to be most accurate, that the release of compressed air from the hose was directed towards him and was not, as he said later, squirted ‘up my anus’ and that the student had ‘inserted it into my anus cavity about four millimetres (4mm) or as far as the clothing would allow it’;

(3) the student claimed that after Mr Landwehr had released him and was walking back towards the classroom, the student said that it was not him who had squirted the hose a second time, and he claimed that Mr Landwehr then turned around and walked back to him, grabbed him and pushed him downwards whilst slightly leaning on him with his knee.  The report found that it was more likely that Mr Landwehr grabbed the student by the shoulder or by the shirt;

(4) Mr Landwehr had said that he was particularly concerned about the use of the air pressure hose because of the injury that can be caused.  There was evidence that compressed air can create a gas bubble which can be released into the vascular system, creating an embolism which may cause death.  Alternatively, the pressure of air in the anus could cause massive and potentially fatal bleeding.  Mr Landwehr said that his medical documentation demonstrated that he had haemorrhoids and was concerned about bleeding and that the air might enter his blood stream.  However, a report by Mr Landwehr’s doctor showed no signs of haemorrhoids although there may have been some rectal bleeding some eight months previously which was consistent with mild haemorrhoids;

(5) Mr Landwehr’s concern for his life was questionable and he did not seek medical treatment either immediately or any time after the incident, nor did he report the incident or the student’s conduct, but went home;

(6) as to the use of excessive force, it noted that Mr Landwehr could not provide an accurate answer as to his understanding of excessive force saying that ‘it’s punching and hitting somebody and not pushing somebody backwards’.  He said that he had never been taught the exact boundaries in relation to not having physical contact with students although he had previously been counselled regarding physical contact with students.  The report said that it was expected that Mr Landwehr would have a clear understanding of what was and what was not appropriate physical contact with a student.

33      Following the Investigation Report, the Director General wrote to Mr Landwehr on 9 March 2016 (Agreed document 4) noting that the investigation had been completed and a report submitted.  She had considered the report and Mr Landwehr’s submission and found that he had grabbed the student and pushed him backwards into a wall.  He then grabbed the student at the top of the shoulder whilst yelling at him.  The physical contact he made with the student was not reasonable or necessary to manage the student.  She enclosed a copy of the report for his information.  The letter set out the possible action that might be taken pursuant to s 82A(3)(b) of the Public Sector Management Act 1994, but indicated that her preliminary view was that she would be inclined to dismiss him from his employment.  She said: 

In proposing this action, I have taken into account the fact that you were previously found to have committed a breach of discipline on 22 June 2015.  In particular, this finding was in regards to very similar conduct for which you received a fine, reprimand and improvement action.  At the time of concluding that matter, you were informed that the finding may be taken into account in relation to any future breaches of discipline committed by you.  I am concerned that you do not appear to have learnt from the previous findings against you and hold strong concerns that should you continue in your position, there is a possibility of you acting in a similar fashion in the future.

34      Prior to coming to a final decision, the Director General provided Mr Landwehr with an opportunity to make a submission which might include any explanation for his conduct or reasons why the proposed action should not be taken against him.

35      Mr Landwehr responded on 8 April 2016 (Agreed document 5).  He said that he recognised that his conduct in both occasions had been similar but that the circumstances within which the similar conduct occurred was very different.  In the former case, he said, he was trying to restrain a student so as to prevent undue damage to school property and in the latter case he believed, in good faith, that his life had been put at risk.

36      His response was four and a half pages in length.  The first page deals with whether the circumstances or the conduct in the two incidents were similar.  Pages 2 and 3 and half of 4 deal mainly with the dangers of compressed air to health.  Page 4 also reiterates that in his first response, Mr Landwehr had said sorry to the student for having grabbed him.  He said he had wanted ‘to convey the trepidation and concerns that I felt in being subjected to being sprayed with compressed air, given my background as a tradesman trained in OHS’.  He then set out that there were family matters at the time ‘that seriously put me on a hedge, including the convalescence and eventual death of my father.  I was very stressed.’ 

37      He went on in page 5 to: 

(1) say that the two incidents in 10 years of teaching were out of character and demeanour, not due to him not having learned, but due to the confluence of a number of unfortunate circumstances in which ‘I was found vulnerable’;

(2) express an assurance that he intended to not repeat the behaviour in the future ‘whatever it takes’;

(3) comment on Harvey being a small community making it untenable for him to remain there if he was dismissed; and

(4) refer to attached character references. 

38      The respondent considered Mr Landwehr’s response and confirmed her previous tentative view that dismissal was appropriate. 

Issues and Conclusions

The law

39      The law regarding a claim of harsh, oppressive or unfair dismissal is set out by Brinsden J in Miles & Others t/a The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 385.  The question for the Commission is whether the employer’s legal right to terminate the contract of employment ‘has been exercised so harshly or oppressively against the employee as to be an abuse of that right’. 

40      The failure to provide a fair process may lead to a finding that the dismissal was harsh, oppressive or unfair (Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635) but a lack of procedural fairness may not automatically have that result (Shire of Esperance v Mouritz (1991) 71 WAIG 891 at 899 per Nicholson J).  The distinction between substantive and procedural unfairness is not always useful.  Rather, the test set out in Undercliffe is to be applied (see Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 393 at [72] per Heenan J). 

The Department’s policy

41      The Department of Education – Behaviour Management in Schools policy (the policy) sets out the extent to which and circumstances under which a teacher may have physical contact with a student. 

42      Under the heading PHYSICAL CONTACT AND RESTRAINT, at page 10, it says that: 

School staff may use physical contact to care for a student or to manage their behaviour.

Physical contact with students differs from restraint in that it uses little or no physical force and its purpose is to correct or direct a student.

...

Before any form of physical contact is used with a student, staff must consider the:

•            age of the student;

•            situation in which it is used;

•            the purpose of the physical contact; and

•            the likely response of the student.

Guideline

When attempting to maintain order it is always preferable for staff to use verbal de-escalation strategies to manage student behaviour. However, it may become necessary for a staff member to use reasonable physical contact to maintain or re-establish order. This may also include situations where teachers are required to defend themselves from physical harm.  The application of any form of physical contact towards a student places staff in a vulnerable position.

Staff must only use reasonable physical contact once other less intrusive alternatives have failed.

Guideline

Examples of physical contact include escorting a student by the arm or hand, holding, guiding or shepherding.

Physical contact must not to be used where it is intended to provoke or punish a student or is intended to cause pain, injury or humiliation.

The degree of physical contact must be in proportion to the seriousness of the behaviour or the circumstances it is intended to prevent or manage. The duration of the contact must be the minimum required to achieve the desired result.

Guideline

Physical contact may also be used where it is required to support compliance with a specific behaviour modification.

(Documents Referred to in
Agreed Statement of facts, filed 23 December 2016)

The previous incident

43      Prior to the incident on 13 August 2015, Mr Landwehr breached discipline on 29 October 2014.  He was found to have had physical contact with a student that was not reasonable or necessary in managing the student’s behaviour.  The circumstances were that two students had approached a door through which Mr Landwehr had just gone.  The door locked immediately after he had gone through.  One of the students banged on the door reasonably hard for a short period of time.  Mr Landwehr opened the door and told the student that he was being disrespectful.  He pushed the student backwards against a wall.  Although he said he had never intended to hurt the student, he admitted that he should not have made contact with the student and his reaction may have caused the student to feel intimidated (see Investigation Report, Agreed document 9, page 9). 

44      Mr Landwehr was disciplined in respect of that incident, by the imposition of a fine of one day’s pay, a reprimand and the requirement to undertake improvement action.  The improvement action required Mr Landwehr to complete an online course on Accountable and Ethical Decision Making and undertake counselling. 

The online course

45      Mr Landwehr completed the Department’s online Accountability and Ethical Decision Making Course on or about 26 May 2015.  He achieved an 80% pass mark on completion. 

46      This course covered, amongst other things, the policy, the Code of Conduct, Duty of Care and physical contact with students. 

The reprimand and counselling

47      I am unsure as to whether the reprimand was simply the fact of Mr Landwehr being told in the letter from the respondent that he was to be penalised in a number of ways, including a reprimand.  Alternatively, it was in the meeting with his Principal, Mr Armstrong, and Deputy Principal, Mr Pfitzner, on 2 July 2015, that he was reprimanded.  The minutes of the meeting are very brief and indicate that it went for about 45 minutes. 

48      The agreed facts include that ‘the Principal did not direct the applicant to attend any further counselling sessions with him in this regard’ and that he did not attend any further counselling sessions with the Principal with respect to the Department of Education’s policies on physical contact with students. 

49      From the agreed facts, I infer that this meeting either issued or reinforced the reprimand and constituted the counselling Mr Landwehr was to receive as part of the improvement action. 

50      The minutes also refer to Mr Landwehr having found two sessions of psychological counselling very helpful.  The parties agree that this was psychological counselling dealing with the impending death of Mr Landwehr’s father, not for the purpose of assisting him in matters of physical contact with students. 

Mr Landwehr’s explanation

51      I note that in respect of the two explanations Mr Landwehr provided regarding the two incidents, he does not say that he was trying to restrain a student from continuing to do something that the student should not be doing.  He says in respect of the first incident that he was trying to prevent undue damage to school property when in fact the student had already kicked the door.  There is no suggestion that the student damaged school property or that he intended to continue. 

52      The record of interview in the Investigation Report of the first incident (Agreed document 9) and Mr Landwehr’s report of 29 October 2014 (Agreed document 9, attachment 4) show that: 

● Mr Landwehr believed the student was mocking him;

● he was annoyed with the student;

● he said to the student ‘How would you like to be the door then?’ and he dropped his left shoulder and pushed the student into a corner.  He had dropped his shoulder to avoid hitting the student, who was shorter than him, in the head; and

● he believed the student was dishonest and it ‘got [his] goat’. 

53      I also note that in the interview about this incident (Agreed document 9, page 7), Mr Landwehr says that it should never have happened, he should never have touched the student, and ‘[t]he rule states you are not meant to touch kids’.  He also said that as soon as he had done it, he thought ‘struth, he might have said something, but I don’t know as I was thinking about what I had just done’ (Agreed document 9, page 8). 

54      He was asked how he could have dealt with the situation differently and he answered, ‘I could have walked away and ignored it, but that is not me’. 

55      I draw the inference that Mr Landwehr responded by attempting to either intimidate or punish the student.  He knew he had acted contrary to the ‘rule’ not to have physical contact with a student. 

56      In the second incident, Mr Landwehr may have genuinely believed, in good faith, that his life had been put at risk.  However, he had provided two different explanations as to what the student’s conduct had been.  The first had been to say that the compressed air was directed towards him and the second was that the nozzle had been pushed into his rectum.  He then tried to explain the differences by saying that he had initially tried to down play the seriousness of the student’s actions.  In any event, in neither case was he trying to manage or restrain the student after the student dropped the hose. 

57      While Mr Landwehr said in his interview as part of the investigation of the second incident, that: 

● I have no idea why I grabbed [the student].  I just grabbed him because that’s what I am going to do.  I don’t know why I grabbed him. 

…

● I can’t answer why I did not tell Mr Cantwell that I pushed [the student] against the wall. 

● I don’t believe I used excessive force. 

● I can’t answer what excessive force is.  It depends on the way you are looking at it … ,

he was unable to identify what excessive force might be, except that it would be punching or hitting somebody.  He said he believed that by grabbing the student, he was removing the risk.  He thought what he did was right and that by grabbing the student, the student dropped the hose, making the situation safe.  However, he could not answer why he continued to hold the student and push him into the wall after he had dropped the air compressor hose. 

58      He said he believed that his actions were to establish order in the classroom. 

59      He made these comments having undertaken a course which included matters the subject of disciplinary actions arising from his conduct, that is, about physical contact with a student, by pushing him backwards, that was not reasonable or necessary in managing the student’s behaviour.  He undertook the course on 26 May 2015, less than three months before the incident with the compressed air hose. 

60      In both cases, it is apparent that Mr Landwehr was either using his position to punish or intimidate the students, or he simply lost self-control and expressed his anger in a physical way. 

61      I think it is important to state that the danger of the misuse of compressed air is not in contention.  The issue is Mr Landwehr’s response to the conduct of students.  It appears to be behaviour which demonstrates either or both of a lack of self-control or a desire to intimidate or punish by pushing and grabbing. 

62      Before addressing the specific grounds of the application, I think it is necessary to note that Mr Landwehr’s conduct in pushing the student, continuing to push him when any threat had subsided, pushing with force, and subsequently grabbing the student was a breach of the respondent’s policy in having physical contact with students.  This is because it was not necessary for the management of the student. 

63      In those ways, the conduct breached the policy. 

Was the dismissal proportionate to the conduct? 

64      In the letter of 9 March 2016, the respondent advised Mr Landwehr that if she found he had committed a breach of discipline, her preliminary view was that she was inclined to dismiss him.  The following paragraph suggests that the reason for dismissal would be not only to punish him but also was because of this incident and previous incident; that he would appear not to have learnt from the previous findings and she held strong concerns that he would act in a similar way in future.  The reasons for dismissal would therefore go to the issues of the actual conduct and confidence in him for the future. 

65      The letter of 10 May 2016 also expresses concerns about Mr Landwehr seeking to justify his ‘actions rather than accept that your conduct was inappropriate.  As such, I remain apprehensive that you may repeat this behaviour in the future’. 

66      Therefore, it was not merely a matter of proportionality of punishment but also a matter of confidence.  If the employer cannot have confidence in an employee’s ability to comply with policies, particularly as they relate to physical contact with a student and self-control, demonstrated by a repeated failure, within a reasonably short time, and one which resulted in recent disciplinary action, then the employer is not acting unreasonably in no longer wishing to employ the employee. 

67      Such conduct strikes at the heart of the contract, in particular, the contract of a teacher who holds a duty of care to students.  Conduct that strikes at the heart of the contract is serious misconduct which may justify dismissal (Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81). 

68      Given that: 

(1) Mr Landwehr’s conduct in August 2015 was of a very similar nature to his conduct for which he was disciplined less than three months earlier;

(2) that he had, within three months prior to the second incident, undertaken improvement action including training and counselling regarding the proper and improper use of physical contact with a student;

(3) that he had been reprimanded for the previous conduct;

(4) his conduct appears to be punitive or intimidatory or demonstrates a lack of self control and a failure to learn from the past; and

(5) the respondent could not have confidence in his future conduct based on his past conduct,

the dismissal was not disproportionate to the conduct.  I will now address whether there were mitigating factors which otherwise make the dismissal unfair. 

Mitigating factors – failure to consider length of service, family stresses, to recognise references and disbarment from teaching

Length of service

69      The correspondence to Mr Landwehr does not explicitly indicate that the respondent took account of Mr Landwehr’s length of service. 

Family circumstances

70      In his response to the Director General, Mr Landwehr said the conduct was out of character but was the confluence of a number of unfortunate circumstances in which he was found vulnerable (Agreed document 5, page 5). 

71      In the letter of dismissal, the respondent ‘acknowledge[d] that at the time of the incident, you were dealing with family matters, including your father’s illness and that this caused additional stress.  However this does not assure me that if faced with a significant stress in the future, you would not behave in the same manner.’  Mr Landwehr complains that the respondent acknowledged the stress only in a perfunctory way. 

Disbarment from teaching

72      Mr Landwehr says that by being dismissed, he is denied his profession as a teacher because of the limitations on him now finding alternative employment as a teacher in the public system in Western Australia. 

73      In his letter, Mr Landwehr said that as Harvey is a small community, it would be untenable for him to remain in town should the respondent decide to proceed with dismissal.  He did not say why this was so, and he did not refer to job opportunities in particular. 

74      I noted earlier that in submissions filed by the applicant, he said that he was employed in a remote area, however, this was not referred to in the letter to the Director General.  It must be said that Harvey is not in a remote area, being between Mandurah and Bunbury. 

Admission and apology

75      It is true that Mr Landwehr admitted the conduct after initially understating it.  He said that he accepted that his conduct was inappropriate.  However, a good deal of his response is about the danger of the misuse of compressed air, that is, he was justified in his actions.  Therefore, his admissions were largely overshadowed by his efforts to justify the conduct. 

76      It is also true that in his letter of 4 September 2015 (Agreed document 8, attachment 1), and again in his letter of 8 April 2016 (Agreed document 5, page 4), Mr Landwehr referred to having apologised to the student for having grabbed him.  However, the context was that he then went on to tell the student that if it had been in a work situation, he would have been caused a lot of pain.  In his interview, Mr Landwehr indicated that in such a situation the person who sprayed the compressed air ‘wouldn’t have been standing probably.  I’ll be honest; they would have just turned around and thumped him’ (Agreed document 8, page 10).  The inference is that grabbing the student was mild compared with what would have happened in the workplace. 

Conclusion regarding mitigating factors

77      The applicant’s complaint is that the respondent either failed to take account of these factors or, in effect, gave them insufficient weight. 

78      The applicant refers to indicia for claims of harsh, oppressive or unfair dismissals which are include the employee’s length of service and family circumstances.  He notes that in Robe River Iron Associates v The Construction, Mining and Energy Workers’ Union of Australia – Western Australian Branch (1989) 69 WAIG 1027 at [6] and [12] length of service, age and family circumstances are, in the words of Sharkey P, ‘undoubtedly relevant factors’.  Halliwell SC agreed with the reasons and conclusions of Sharkey P, while Kennedy C agreed with the principles set out in the Honourable President’s reasons. 

79      However, the applicant’s submission did not go on to complete the quote.  In fact, at [12] his Honour went on to say: 

However, it would not be considered that the longest and best of employment records and the work need[s] of family circumstances could operate to make any employee immune from dismissal for any reason.

80      In this case, where a teacher has 10 years’ experience and a history of inappropriate contact with students, contrary to policy, the length of service would not be a significant mitigating factor.  Nor would his family circumstances. 

81      Although Mr Landwehr gave an assurance that he did not intend to repeat the behaviour in the future, it is not unreasonable for the respondent to have had concerns that this would not be so, and in particular in times of stress.  I also note in passing that other evidence contained within the investigators’ reports, statements by fellow teachers and students and by Mr Landwehr tend to indicate that Mr Landwehr’s approach to dealing with students was robust, and that physical contact with students other than for the purposes of the policy was not out of character. 

82      There was no suggestion that his conduct in the first incident, which actually occurred 10 months prior to the second incident, was because Mr Landwehr was under stress associated with his personal circumstances.  Yet both incidents were of unreasonable physical contact involving punishing and manhandling a student. 

83      It is true that the respondent is the employer of the largest number of teachers in this State, but there is no evidence of Mr Landwehr’s options and limitations.  Furthermore, and more importantly, a teacher who conducts herself or himself in a way which seriously breaches policy and which leads the employer to reasonably hold strong concerns about her or his future conduct towards students might reasonably be considered unsuitable to teach, without further remedial action.  He had already undertaken some remedial action without apparent effect on his behaviour towards students. 

84      Mr Landwehr’s future prospects as a teacher do not, in the circumstances of this case, override the issue of his conduct, his failure to fully recognise and accept his behaviour, and the respondent’s reasonable apprehension about his future conduct towards students in his care. 

85      In any event, there is no evidence of his future prospects as a teacher.  Mr Landwehr’s evidence to the respondent indicates that he is in his mid‑40s but had only been teaching for 10 years.  He had previously worked as a tradesperson.  Therefore, he is not denied the opportunity of making a living because he has a number of strings to his bow. 

86      Therefore, while length of service and family circumstances may be relevant considerations, they do not mean that an employee with many years of service and whose family circumstances add to the employee’s difficulties can avoid dismissal where otherwise it is justified.  I think the same can be said of the employee’s difficulties in finding alternative employment. 

87      Also seen in context, Mr Landwehr’s attempts to explain his conduct and excuse it by reference to the dangers of compressed air, and that his apology was tempered by his expressing that the response would have been worse if the incident had occurred in a workplace, mean the admissions and apology are not significant factors of mitigation. 

Character references

88      In his letter of 8 April 2016, Mr Landwehr referred to a number of character references which he enclosed.  The respondent’s letter in response says that she has considered the investigator’s report and Mr Landwehr’s submission, but does not explicitly refer to the character references. 

89      It is very laudable that Mr Landwehr makes a strong contribution to his community by his activities out of work.  That in itself is not sufficient to overcome the issue of his conduct towards students who are in his care and in the care of the Director General.  The references from his colleagues likewise do not overcome the findings of fact or the significance of his conduct.  If the respondent failed to give this issue the weight Mr Landwehr wanted, it does not render the dismissal unfair, in light of the serious issue of his conduct. 

90      In the circumstances, the claims that the respondent failed to consider or give proper weight to his personal circumstances, his length of service, apology, references or ‘disbarment’, must fail. 

Failure to provide pay in lieu of notice and summary dismissal

91      By letter dated 9 March 2016, the Director General informed Mr Landwehr that it was open to her to form the view that he had committed a breach of discipline.  He was then to be provided with the opportunity to respond to the action she proposed to take.  She set out the possible action she might take under s 82A(3)(b) of the Act, being improvement action or disciplinary action.  She then set out the forms of disciplinary action, which are defined in s 80A – Terms used of the Public Sector Management Act 1994 as including a reprimand, a fine, transfer, reduction in monetary remuneration, reduction in classification level, and dismissal. 

92      She went on to say, ‘should I ultimately make a finding that you have committed a breach of discipline in regard to the conduct outlined above, my preliminary view is that I would be inclined to dismiss you from your employment.’  The letter did not give any indication of whether dismissal would be with or without notice. 

93      The respondent’s letter of 10 May 2016 advising Mr Landwehr of the decision to terminate his employment contains only limited references to the dismissal itself.  It refers to the letter of 9 March 2016 in the terms I have referred to above.  The letter of 10 May 2016 also says that having considered Mr Landwehr’s response, she maintained the view that dismissal from employment was the appropriate penalty.  The letter did not specify the date on which the dismissal would take effect or whether it would be with or without notice.  It said: 

Please note that any entitlements due to you will be calculated and forwarded to you in the near future. 

94      The use of the term ‘any’ entitlements means that if there were any entitlements due, they would be paid.  It did not say that there were entitlements or what they were.  This, of course, does not lead to an inference that Mr Landwehr would be paid in lieu of notice.  It could just as readily be said that because it was silent on the question of notice, the dismissal was summary. 

95      I find that the lack of clear indication of whether the dismissal was with or without notice, or even the date of effect of the dismissal, might be seen to be somewhat unfair.  However, it does not automatically flow that there would be notice or pay in lieu thereof, or that there was any particular entitlement that would be paid. 

96      Therefore, the argument that the letter led Mr Landwehr to believe that there would be pay in lieu of notice does not hold water.  This is because it stated ‘any entitlements due’ would be calculated and forwarded as opposed to indicating that there were any entitlements due. 

97      Mr Landwehr also seeks to use this ground to argue that the dismissal does not warrant being summary.  However, the respondent has demonstrated that Mr Landwehr’s conduct was a serious breach of the trust necessary for the contract to continue.  It struck at the heart of the contract both in terms of constituting a serious breach of policy and being conduct towards those who are in the respondent’s care.  It was indeed conduct warranting summary dismissal. 

The improvement action plan course

98      I enquired of the parties about the improvement action plan Mr Landwehr was required to undertake after the first incident and details of the course he took were provided. 

99      It contains eight units.  They include Unit 1 – Your Professional Obligations and a component on the Code of Conduct.  Unit 2 – Personal Behaviour includes components dealing with Creating and Sustaining a Positive Work Environment which covered, amongst other things, bullying.  It covers the Duty of Care for Students, including not putting students at risk by doing or not doing something that could cause injury or harm. 

100   Physical Contact with students is set out, including the issues identified in the Code of Conduct about physical contact being permissible for caring for the student such as administering first aid; maintaining order, providing the use of force is reasonable; and for restraint, as a last resort.  Restraint can be used to minimise or prevent harm; the teacher should attempt to de‑escalate the situation and end the restraint as soon as possible, when the teacher has determined that the student is no longer presenting a safety risk. 

101   While Mr Landwehr says that only two pages out of 120 pages deal with physical contact with students, they are to be seen in the context of there being a number of pages dealing with the Code of Conduct, Personal Behaviour and Duty of Care for Students, particularly for their safety and welfare and Physical Restraint. 

102   This was a course which included a good deal of information that should have alerted Mr Landwehr to the inappropriateness of the physical contact he made with a student after the first incident and before the second incident.  He could not reasonably have said that he did not know what was expected of him by the time of the second incident. 

103   Mr Landwehr also says that, according to the respondent’s website, there is a course available that deals specifically with prevention, de‑escalation and restraint in respect of physical contact with students.  He says this would have been a more suitable course for him rather than the Accountable and Ethical Decision Making course he was required to undertake. 

104   That is not the point.  What is significant is that the course he took, while not focussing solely on the issues Mr Landwehr says were important, was enough to have given him the clear direction to the policy and to the expected conduct in respect of contact with students.  In any event, he had already acknowledged in the interview for the first incident that he knew that he should not have physical contact with students in the way he had.  It was not new to him.  I must say that this argument smacks of the applicant clutching at straws. 

105   The application will be dismissed.