2017 WAIRC 00866
APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NO. U 93/2016 GIVEN ON 26 APRIL 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00866

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
ACTING SENIOR COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL

HEARD
:
TUESDAY, 22 AUGUST 2017

DELIVERED : FRIDAY, 13 OCTOBER 2017

FILE NO. : FBA 10 OF 2017

BETWEEN
:
BARRY LANDWEHR
Appellant

AND

SHARYN O'NEILL
DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : CHIEF COMMISSIONER P E SCOTT
CITATION : [2017] WAIRC 00234; (2017) 97 WAIG 551
FILE NO. : U 93 OF 2016

Catchwords : Industrial Law (WA) - Appeal against the decision of the Commission dismissing a claim that a teacher was unfairly dismissed - Hearing on the papers at first instance - Testing of veracity of evidence necessary where the papers contain conflicting material matters - Turns on own facts
Legislation : Industrial Relations Act 1979 (WA) s 26, s 29(1)(b)(i), s 49(2)
School Education Act 1999 (WA) s 239
Public Sector Management Act 1994 (WA) s 78(2), s 79(3)(c)
School Education Regulations 2000 (WA) reg 38, reg 38(c)(i)
Result : Appeal allowed - Case remitted for further hearing and determination
REPRESENTATION:
Counsel:
APPELLANT : MR M D COX AND WITH HIM MS R COLLINS
RESPONDENT : MR J M CARROLL
Solicitors:
APPELLANT : MDC LEGAL
RESPONDENT : STATE SOLICITOR FOR WESTERN AUSTRALIA

Case(s) referred to in reasons:
Alfresco Concepts Pty Ltd v Franse [2015] WAIRC 00244; (2015) 95 WAIG 437
Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824
Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66
Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893; (2003) 129 IR 270
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mt Newman Mining Co Pty Ltd v The Australian Workers Union, West Australian Branch, Industrial Union of Workers (1983) 63 WAIG 2397
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v Inghams Enterprises Pty Ltd [2005] WAIRC 02347; (2005) 85 WAIG 3385
The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203
Reasons for Decision
SMITH AP:
The appeal and the order appealed against
1 The appeal is instituted under s 49(2) of the Industrial Relations Act 1979 (WA) (the IR Act) against a decision delivered by the Chief Commissioner on 26 April 2017 to dismiss an application referred by Barry Landwehr in U 93 of 2016.
2 Application U 93 of 2016 was a referral of a decision to dismiss a teacher, Barry Landwehr, on grounds of serious misconduct (supplementary statement of agreed facts, AB 143). Mr Landwehr claimed that he was unfairly dismissed by the Director of Education (the Director General) on 10 May 2016. He referred his claim to the Commission under s 29(1)(b)(i) of the IR Act, pursuant to s 239 of the School Education Act 1999 (WA) and s 78(2) and s 79(3)(c) of the Public Sector Management Act 1994 (WA).
3 Mr Landwehr was employed by the Harvey College of Agriculture as a design and technology teacher for a period of almost 10 years. He commenced employment on 1 July 2006. After he was initially employed under a number of fixed term contracts, he was made permanent on 30 June 2009. His terms of employment were governed by the School Education Act Employees' (Teachers and Administrators) General Agreement in force from time to time.
4 Mr Landwehr was dismissed on grounds that he had misconducted himself by making physical contact with a student that was not reasonable or necessary to manage the student (letter of dismissal, AB 69). The factual circumstances found by the investigator, and accepted by the learned Chief Commissioner, were that on 13 August 2015, a year 11 student directed a compressed air hose nozzle at Mr Landwehr's buttocks twice 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. Mr Landwehr started back to class. The student said something and Mr Landwehr turned back to the student and grabbed him by the shirt.
5 Prior to the incident on 13 August 2015, Mr Landwehr, on 29 October 2014, had physical contact with another student that was not reasonable or necessary in managing the student's behaviour. The circumstances of the first incident were that two students had approached a door through which Mr Landwehr had just gone. The door locked immediately after him. 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. An investigation report records that the investigator found that there was no requirement for Mr Landwehr to make physical contact with the student to manage or care for him, to maintain order or to prevent the risk of harm to any person (AB 205). When spoken to about the incident, Mr Landwehr said he had never intended to hurt the student. However, he admitted that he should not have made contact with the student, he was agitated by the student's mocking attitude and his reaction may have caused the student to feel intimidated. Mr Landwehr was disciplined for that incident, by the imposition of a fine and one day's pay, a reprimand and a 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.
Conduct of the proceedings at first instance
6 The grounds upon which the appellant claimed that he had been harshly, oppressively or unfairly dismissed are set out in his application as follows in paragraph 5 (AB 27 - 28):
The penalty of dismissal was disproportionate to the conduct complained of when having regard to all the circumstances, including, but not limited to:
a. Contrary to the basis for dismissal pursuant to the respondent's dismissal letter, the applicant accepted his conduct was inappropriate and was regretful the incidents occurred. See for example paragraph 11 of the applicant's response to the respondent dated 8 April 2016 (Attachment 2). It is apparent the respondent failed to properly take the applicant's response into account and dismissed the applicant without proper basis.
b. Contrary to the basis for dismissal pursuant to the respondent's dismissal letter, the applicant accepted the conduct complained of that is subject to this application and any previous beaches [sic] of discipline were similar. See for example the first page of the applicant's response dated 8 April 2016 (Attachment 2) where the applicant states 'my conduct was similar'.
c. The respondent failed to take into proper account the applicant's severe mitigating circumstances such as the applicant's father being terminally ill with cancer during the time of the conduct complained of and subsequently passing away a couple of months from when the disciplinary process commenced.
d. The respondent failed to properly take into account the applicant expressed remorse for his actions. See for example paragraph 10 of the applicant's response to the respondent dated 8 April 2016 (Attachment 2).
e. The respondent failed to properly take the applicant's almost 10 year length of service into account.
f. The respondent failed to properly take into account the applicant was employed in a remote area where there may be a difficulty in obtaining teachers.
g. The respondent failed to properly take into account the applicant's positive references from peers and the community as attached to his response dated 8 April 2016 (Attachment 2). The respondent failed to properly take into account the applicant was engaged in volunteer community activities as outlined in those references.
h. The respondent failed to properly take into account the applicant did not deny the allegations and admitted the allegation of physical contact with a student at his very first opportunity, his written response dated 4 September 2016 (Attachment 3). The applicant also outlined in that response that he taught the student the life threatening dangers of compressed air and that shortly after the event the applicant apologised to the student for the physical contact.
i. The respondent failed to consider other penalties available under the Public Sector Management Act 1994.
7 Unusually, in this matter, although Mr Landwehr took issue with a number of material findings made by the investigator and the Director General going to the credibility of Mr Landwehr's account of the second incident, the hearing at first instance proceeded on the basis of a review of the documents considered by the Director General when making a decision to dismiss Mr Landwehr. Why such a procedural course was adopted is not clear. Mr Landwehr is represented by different solicitors and counsel in this appeal.
8 The finding made by the Director General of a breach of discipline was not challenged. Counsel for Mr Landwehr at first instance put the case for Mr Landwehr on grounds that the penalty of dismissal imposed upon him was disproportionate to the circumstances of his conduct. The parties agreed not to call any evidence before the learned Chief Commissioner, to use the words of the parties, 'on the basis of the scope of the application' made on behalf of Mr Landwehr. The matter proceeded by the tendering of brief statements of agreed facts and a number of documents were tendered by consent. These documents included:
(a) Two investigation reports conducted into the first and second breaches of discipline. The first investigation report was made by a senior investigator of the standards and integrity branch of the Department of Education dated 18 March 2015 (AB 197 - 226). The second investigation report was made by a senior investigator of the standards and integrity branch of the Department of Education dated 22 January 2016 (AB 147 - 196).
(b) Documents which record accounts of the second incident by Mr Landwehr.
9 Both parties filed written submissions and appeared before the learned Chief Commissioner on 8 March 2017 and made brief oral submissions in support of the contentions the parties sought to raise on behalf of their respective clients.
10 In making the decision to dismiss Mr Landwehr, the Director General took into account findings made in both of the investigation reports that the first and second incidents related to unreasonable force against a student.
11 In her reasons for dismissing Mr Landwehr, the Director General stated (AB 65):
In my letter dated 9 March 2016, I advised you that I had formed a preliminary view that you had committed a breach of discipline and that I was inclined to dismiss you from your employment pursuant to section 82A(3)(b) of the Public Sector Management Act 1994.
You were given an opportunity to provide a written submission concerning my preliminary view and the action I proposed to take. I have considered your submission and wish to address some concerns you raised.
Whilst I accept that some evidence provided by you to the Investigator was omitted from the report, it offered no additional weight when assessing the evidence in its entirety. The dangers associated with compressed air were never in contention during the investigation.
There is sufficient evidence to substantiate that the physical force you used exceeded what was necessary in the circumstance. I find it concerning that you seek to justify your actions, rather·than accept that your conduct was inappropriate. As such, I remain apprehensive that you may repeat this behaviour in the future.
I do acknowledge that at the time of 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.
Further to this, it is of great concern that you fail to comprehend that the previous matter investigated does not correlate with this matter, when both relate to unreasonable force against a student.
Having considered your response, I maintain the view that dismissal from your employment is the appropriate penalty.
My decision takes into account the duty of care responsibilities and the special position of trust that exists in the employee/student relationship. The community has an expectation, as do I, that Department of Education employees will behave in a manner that reflects the important role they have in modelling community values and standards.
The reasons for decision at first instance
12 After setting out the grounds of Mr Landwehr's claim in the application as filed, the learned Chief Commissioner set out the grounds which were expanded on behalf of Mr Landwehr in outlines of submission and during the hearing as follows [5]:
(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.
13 The learned Chief Commissioner set out the grounds of the respondent's answer to Mr Landwehr's claim as follows [7]:
(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) [The Director General] 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.
14 The learned Chief Commissioner recounted a number of accounts given by Mr Landwehr in statements and interviews about the incident involving the compressed air. These were as follows:
(a) 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 [9].
(b) In providing a written response to the formal allegation put to Mr Landwehr in a letter of 1 September 2015, Mr Landwehr:
(i) repeated the exact words he had used in his statement to Mr Pfitzner. However, when addressing the particulars of the allegation against him, Mr Landwehr went on to say that the student had actually squirted air 'in my bottom' [11]. He also said that he kept the student behind after class and talked about the seriousness of the event. 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' [12];
(ii) 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 also wrote that the student might have killed him by doing this and he yelled at the student [13];
(iii) agreed with the particular of the allegation that he had grabbed the student and pushed him backwards into a wall, saying that he did do this. He also said he pushed him holding his upper arms between his shoulder and elbows. He yelled at him saying you may have just killed me or you have put my life at risk. As he hit the wall he let the student go. He then turned and walked away [14];
(iv) in response to the allegation that he had grabbed the student on the top of his shoulder whilst yelling at him, he disagreed that that had occurred and said he never changed his hold and grabbed his shoulders [15];
(v) described the contact he made with the student as very minor and he did not use excessive force [15]; and
(vi) emphasised the dangers of the misuse of compressed air with its potential to cause an embolism or massive bleeding [16].
(c) When interviewed by the standards and integrity directorate of the Department of Education who conducted an investigation:
(i) Mr Landwehr said [18]:
● 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.
(ii) Mr Landwehr also said he did not know why he grabbed the student and he yelled at the student that he could have killed him. He expressed the opinion that if it had been in a work situation, another person would have just turned around and 'thumped' him. He also 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 he thought there is nothing that can be done [19].
(iii) Mr Landwehr acknowledged that when he first spoke to Mr Pfitzner, he did not tell him he had 'physically manhandled' the student. He said he had told Mr Cantwell that the student had 'deliberately squirted air up my backside', that the student had 'put air up my anus'. 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 [20].
(iv) 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' [21].
(v) 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 [22].
(vi) 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 [23].
(vii) Mr Landwehr denied using excessive force. He said in the scheme of things, if people understood the background 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 [24].
15 The learned Chief Commissioner had regard to other matters which are set out in the investigation report. In particular, she noted that even though Mr Landwehr had said 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 [25].
16 The learned Chief Commissioner referred to the following matters set out in the investigation report:
(a) The 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'. 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 is now attempting to exaggerate the severity of the student's actions to justify his own reaction [27].
(b) The investigation report 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 despite 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' [28].
(c) That it is likely that Mr Landwehr grabbed the student a second time around the shoulder and neck [29].
(d) After considering the medical evidence and the circumstances, Mr Landwehr's concern for his life is questionable [30].
(e) The actions of the student, whilst dangerous, were not of the severity that Mr Landwehr later claimed [32(1)].
(f) 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 squirted up his anus [32(2)].
(g) 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 [32(4)].
(h) 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 [32(5)].
(i) Mr Landwehr could not provide an accurate answer as to his understanding of excessive force. 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. It was expected that Mr Landwehr would have a clear understanding of what was and what was not appropriate physical contact with a student [32(6)].
17 The learned Chief Commissioner observed that the Director General wrote to Mr Landwehr on 9 March 2016 and indicated that it was her preliminary view that she would be inclined to dismiss Mr Landwehr from his employment [33]. 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 [34].
18 The Director General in her letter took into account that Mr Landwehr had previously been found to have committed a breach of discipline on 22 June 2015 in regards to very similar conduct for which he had received a fine, reprimand and improvement action.
19 The learned Chief Commissioner observed that Mr Landwehr responded on 8 April 2016 and had said that he recognised that his conduct in both occasions had been similar, but the circumstances within which the similar conduct occurred were very different. He said, in the former case, 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 [35]. It was also observed that his response:
(a) dealt with the dangers of compressed air to health [36];
(b) reiterated that he had said sorry to the student for having grabbed him [36];
(c) he wanted to convey the trepidation and concerns that he felt in being subjected to being sprayed with compressed air, given his background as a tradesman trained in occupational health and safety [36];
(d) set out 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' [36];
(e) he made a claim 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 he was found vulnerable [37];
(f) set out an assurance that he intended to not repeat the behaviour in the future 'whatever it takes' [37];
(g) stated Harvey was a small community making it untenable for him to remain there if he was dismissed [37]; and
(h) referred to attached character references [37].
20 The learned Chief Commissioner observed that as a result of the first discipline incident Mr Landwehr completed the Department of Education's online accountability and ethical decision making course on or about 26 May 2015 and that this course covered, amongst other things, the Department of Education - Behaviour Management in Schools policy (the policy), the code of conduct, duty of care and physical contact with students [45] - [46]. She also observed that Mr Landwehr was reprimanded in a meeting with his principal on 2 July 2015 for about 45 minutes [47]. The minutes of the meeting record the principal did not direct Mr Landwehr to attend any further counselling sessions with him in this regard, but Mr Landwehr found two sessions of psychological counselling very helpful [48]. The parties agreed at first instance 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 [50].
21 In considering Mr Landwehr's explanation about the first incident, the learned Chief Commissioner observed that Mr Landwehr said the incident should not have happened, he should not have touched the student, and '[t]he rule states you are not meant to touch kids' [53]. When asked if he could have dealt with the situation differently, he said, 'I could have walked away and ignored it, but that is not me' [54]. The learned Chief Commissioner drew the inference that Mr Landwehr responded to the student's conduct 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 [55].
22 In respect of the second incident, the learned Chief Commissioner found that Mr Landwehr may have genuinely believed, in good faith, that his life had been put at risk [56]. She noted that Mr Landwehr was unable to identify what excessive force might be, except that it would be punching or hitting somebody. She also noted that he believed that by grabbing the student, he was removing the risk. He thought what he did was right and 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 [57]. She also noted that he said he believed that his actions were to establish order in the classroom [58].
23 The learned Chief Commissioner found that Mr Landwehr had made these comments after having undertaken a course which included matters the subject of disciplinary actions arising from his conduct about physical contact with the student, by pushing him backwards, that was not reasonable or necessary in managing the student's behaviour. She also noted that he undertook this course less than three months before the incident with the compressed air hose [59].
24 Of importance in this appeal, she found in both incidents, it was 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 [60].
25 The learned Chief Commissioner went on to find that it is important to state that the danger of the misuse of compressed air is not in contention. The issue was Mr Landwehr's response to the conduct of students. She found it appears his behaviour demonstrates either or both a lack of self-control or a desire to intimidate or punish by pushing and grabbing [61]. She also found 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. She found this was because it was not necessary for the management of the student [62]. Further, she found in those ways, the conduct of Mr Landwehr breached the policy [63].
26 The learned Chief Commissioner then considered the question whether the dismissal of Mr Landwehr was proportionate to the conduct. She observed that the Director General's reason for dismissal would be not only for it to punish him, but was also because of the two incidents and 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 the future. In these circumstances, she found that the reasons for dismissal went to the actual conduct and confidence in him in the future [64].
27 She observed that 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 [66]. She also observed that such conduct strikes at the heart of the contract, in particular the contract of a teacher who holds a duty of care to students. Further at [67] she observed that 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, 81.
28 The learned Chief Commissioner then found [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.
29 The learned Chief Commissioner went on to consider whether the mitigating factors, that is length of service, family stresses, to recognise references and disbarment from teaching were matters that the Director General failed to consider which would mitigate Mr Landwehr's conduct and excuse his conduct.
30 The learned Chief Commissioner found that the correspondence to Mr Landwehr does not explicitly indicate that the Director General took account of Mr Landwehr's length of service [69]. She also found that regard was had by the Director General to Mr Landwehr's unfortunate family circumstances, but that the Director General found that she was not assured that if faced with a significant stress in the future Mr Landwehr would not behave in the same manner [71]. The learned Chief Commissioner also observed that Mr Landwehr claims 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 and it would be untenable for him to remain in Harvey as it is a small community [72] - [73].
31 In respect of Mr Landwehr's admission and apology, the learned Chief Commissioner found his admissions were largely overshadowed by his efforts to justify the conduct [75].
32 She then concluded that 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 [80]. She also found 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 [81]. As to the claim that Mr Landwehr was under stress associated with his personal circumstances, the learned Chief Commissioner found that there was no suggestion that his conduct in the first incident, which occurred 10 months prior to the second incident, was because Mr Landwehr was under stress associated with his personal circumstances [82].
33 She observed that whilst the Director General is the employer of the largest number of teachers in this State, there is no evidence of Mr Landwehr's options and limitations [83]. In particular, she found that 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 Director General's reasonable apprehension about his future conduct towards students in his care [84]. She also found that, in any event, there was no evidence of his future prospects as a teacher and that as he had previously worked as a tradesperson he is not denied the opportunity of making a living because he has a number of strings to his bow [85]. As to the apology, she found that his attempts to explain his conduct and excuse it by reference to the dangers of compressed air was tempered by his expressing that the response would have been worse if the incident had occurred in a workplace, which meant that the admissions and apology are not significant factors of mitigation [87].
34 As to the character references, the learned Chief Commissioner found that it was very laudable that Mr Landwehr makes a strong contribution to his community by his activities out of work, but that was not in itself sufficient to overcome the issue of his conduct towards students who are in his care and in the care of the Director General. She also found the references from his colleagues likewise did not overcome the findings of fact or the significance of his conduct. Finally, she found if the respondent failed to give this issue the weight Mr Landwehr wanted, it did not render the dismissal unfair, in light of the serious issue of his conduct [89]. In these circumstances, she found that the argument in respect of Mr Landwehr's argument that the Director General failed to consider or give proper weight to matters raised in mitigation must fail [90].
The grounds of appeal
35 Mr Landwehr's solicitors sought to amend Mr Landwehr's grounds of appeal in a notice filed on 24 May 2017. His solicitors also sought leave to further amend by adding ground 4 on 26 June 2017. On behalf of Mr Landwehr, it is sought to prosecute the following amended grounds of appeal as follows:
1. The Chief Commissioner erred in law and or fact in finding that the Appellant's conduct warranted summary dismissal because she did not have any regard or any sufficient regard to the following matters:
a) The student's provocation leading to the Appellant's conduct and the loss of composure or control that this caused to the Appellant:
i. While the Chief Commissioner stated at [61] that 'the danger of the misuse of compressed air is not in contention', she failed to have any or sufficient regard to the evidence:
A. of the actual and significant danger of fatality and or other serious injuries including severe respiratory distress and abdominal pain, neck and facial swelling, perforation of the colon, shredding of the bowel wall, severe haemorrhaging;
B. that this 'can occur without inserting the air hose into the anus. In several cases reported in the literature, the air hose was "fired" through clothes at a distance from the anus'; and
C. that 'it takes only 1 or 2 seconds to deliver enough pressurised air to cause major damage';
ii. The Appellant responded instinctively and impulsively in a state of fear and shock to a provocation in the form of an assault by the student on his private parts with a high pressure air compressor, which placed his life at risk;
iii. The Commissioner comments that the Appellant lost self-control at [60], and that his behaviour demonstrated a lack of self-control at [61], [66] and [68(4)]. However, it was unreasonable and unfair to expect the Appellant to act with composure in those circumstances;
iv. By focussing on her assessment that the force used was excessive, the Chief Commissioner did not have regard to the instinctive and impulsive nature of the Appellant's response to the threat to his life, and therefore wrongly attributed to the Appellant a motive to punish or intimidate and or attributed culpability to his lack of control [60] - [61], [68(4)], his inability to explain why he grabbed the student [19], and his lack of clarity of mind at the time, with 'Lots of things … going through my mind at the time of the incident' [24];
v. While the Chief Commissioner says at [56] 'Mr Landwehr may have genuinely believed, in good faith, that his life had been put at risk', she errs in focussing on apparent inconsistencies in the Appellant's account as to whether the air compressor was directed towards him or pushed into his rectum. The error lies in overlooking the evidence that 'injury can occur without inserting the air hose into the anus. In several cases reported in the literature, the air hose was "fired" through clothes at a distance from the anus';
vi. The fact that the Appellant was responding instinctively and impulsively to being assaulted by the student was an exculpatory circumstance, or at least an extenuating and mitigating circumstance, that should have been taken into account by a reasonable and fair minded employer in deciding whether or not to terminate the Appellant's employment;
vii. The learned Chief Commissioner had insufficient regard to regulation 28(c)(i) of the School Education Regulations 2000 to assess whether the Appellant's physical contact with the student was justified, and failed to consider the fact that the Appellant was responding instinctively and impulsively in a state of fear and shock to a dangerous provocative assault on his private parts.
b) The Appellant's personal circumstances, which render the summary dismissal disproportionately harsh because:
i. the Appellant's father was terminally ill at the time of the incident leading to his summary dismissal, and he was therefore in a vulnerable psychological state to deal with the provocation;
ii. the Appellant had only been previously disciplined once in almost 10 years of service as a teacher, and that incident had also occurred while the Appellant's father was terminally ill;
iii. the impact on the Appellant of the summary dismissal is likely to be disbarment, or at least a significant impediment to his career as a teacher;
iv. the age of the Appellant, the fact that he had taught for the last almost 10 years and that he was therefore likely to face considerable difficulty obtaining alternative employment;
v. the Appellant had positive references from peers and members of the community about his teaching career and his voluntary community activities.
2. The Chief Commissioner erred in fact or law in finding that the Appellant's conduct warranted summary dismissal by placing excessive weight on the evidence of a previous disciplinary finding that the Appellant was involved in at [43], [44] and [68]:
a) The Chief Commissioner erred in finding the Appellant's behaviour at [68(1)] 'was of a very similar nature to his conduct for which he was disciplined less than three months earlier', because the circumstances of the second incident were significantly and relevantly different from the first. The particulars of ground 1.a) are repeated;
b) The Chief Commissioner did not give sufficient consideration to the Appellant's evidence that while the conduct was 'similar', the circumstances in which the second incident occurred were very different, amongst other reasons because the second incident involved an impulsive response to a provocation in the form of a dangerous assault on the Appellant. The particulars of ground 1.a) are repeated.
3. The Chief Commissioner erred in fact or law in concluding at [49], [59] and [83] that the Appellant should have learnt from the training, counselling and reprimand he received from the first incident; that his conduct demonstrated a failure to learn from the first incident; and at [68] that summary dismissal was not disproportionate to the conduct, because the circumstances of the second incident were significantly and relevantly different from the first. The particulars of ground 1.a) are repeated.
4. The learned Chief Commissioner erred in law and or fact and erred in the exercise of her discretion, because it was not open to the Chief Commissioner to find that:
a) 'There was no suggestion that [the appellant's] 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' at [82]; as this finding is materially inconsistent with the evidence before the learned Chief Commissioner that his mother had died from cancer in recent years, and he was supporting his father through terminal cancers, which had caused the last few years to have been very hard for the appellant, for example at [37], [50], [70]; Transcript 8/3/17, p10; letter from Jim Britza, Captain, Harvey Volunteer Fire & Rescue Service and letter from Duncan Campbell, Vocational Trainer Assessor, WA College of Agriculture Harvey; and
b) '… 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 …' at [80]:
i. because the premise 'a history of inappropriate contact with students' is materially inconsistent with the following:
A. The appellant had almost of 10 years of unblemished teaching service with the respondent with no incidents disciplinary action for inappropriate contact with students until the first incident, which occurred about 10 months prior to the matter leading to his termination (for which he was disciplined some 3 months prior to the matter leading to his termination); and
B. two proximate recent instances of inappropriate contact with students within a relatively short period of time, respectively near and within the tenth year of otherwise unblemished service could not reasonably and fairly be said constitute a 'history' of the said conduct; and or
ii. therefore the conclusion based on the premise is unjustified that his history of service and his personal circumstances are not significant mitigating factors, especially given the proximity of the two incidents and the fact that they occurred during a time of stressful family circumstances (the terminal illness of his father) and having regard to his personal circumstances (the positive contribution to the community, letters of support, difficulty obtaining alternative employment as a teacher).
General principles
36 The parties agree that in an appeal to the Full Bench the appellant must demonstrate error in accordance with the principles outlined in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
37 In determining whether a dismissal of an employee is harsh, oppressive or unfair, the Commission must make an assessment against a range of indicia. In particular, on behalf of Mr Landwehr, counsel points to the following observations of the Industrial Appeal Court in Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893; (2003) 129 IR 270 [72]:
Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances.
Ground 1(a) of the appeal
38 The main point raised in this appeal on behalf of Mr Landwehr relies substantially upon an argument that the material put before the Chief Commissioner established that the response by Mr Landwehr to the spray of compressed air on his buttocks, being an act that could cause death or serious injury, was an exculpatory response or alternatively the dangerous nature of the act was such a circumstance of mitigation that rendered his dismissal harsh, oppressive or unfair. This issue is raised in ground 1(a) of the appeal.
39 In ground 1(a), it is argued that in reaching her decision the learned Chief Commissioner did not have any regard, or any sufficient regard, to the student's potentially life-threatening provocation leading to Mr Landwehr's loss of composure or control resulting in an impulsive, instinctive and defensive response.
40 The Director General says that it is not open to raise this ground of appeal because it was not put on behalf of Mr Landwehr by his representatives at first instance, and on appeal Mr Landwehr is bound by the case run by counsel at first instance: Alfresco Concepts Pty Ltd v Franse [2015] WAIRC 00244; (2015) 95 WAIG 437; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50 [49] - [52] (Martin CJ).
41 The argument put on behalf of Mr Landwehr, however, in this appeal is that by reference to the materials and to the evidence and the matters raised in the proceedings before the Commission, the requirements of reg 38 of the School Education Regulations 2000 (WA) and the authorities dealing with the use of force in employment, require consideration of the circumstances of the use of force by Mr Landwehr. Put another way, it is argued that the point raised in ground 1(a) of the appeal, as articulated, is consistent with the matters raised in evidence before the learned Chief Commissioner at first instance. It is also argued that even if it could be said that Mr Landwehr's conduct, in making physical contact with the student who used the high pressure hose, did constitute misconduct, the Commission was still required to have regard to all of the surrounding circumstances to ascertain whether the dismissal was justified. In support of this proposition, the observations in The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v Inghams Enterprises Pty Ltd [2005] WAIRC 02347; (2005) 85 WAIG 3385 and Mt Newman Mining Co Pty Ltd v The Australian Workers Union, West Australian Branch, Industrial Union of Workers (1983) 63 WAIG 2397 are relied upon to the effect that in cases involving incidents of fighting in the workplace, the conduct complained of must be judged on its merits pursuant to s 26 of the IR Act. Further, observations made in Inghams and Mt Newman Mining Co Pty Ltd make it clear that in making assessments of such acts of misconduct, issues such as provocation and whether any response to it is reasonably proportionate or not, will be relevant considerations.
42 It is argued that in the present matter, Mr Landwehr was the victim of an unexpected assault by a student on his private parts with a high pressure compressed air hose, which Mr Landwehr knew to be potentially fatal and which medical literature vindicates this fear. Mr Landwehr's actions were in response to this provocation and the threat presented by the actual conduct of the student that made him fear for his life. It is said that Mr Landwehr's response to the threat was proportionate to the use of the force in the circumstances of a threat to Mr Landwehr's life by the use of the high pressure hose. It was not a question so much of a person rationally assessing the situation, exhausting all other alternatives and then deciding to use force to maintain control of the situation. This, it is said, was something that happened very quickly, in circumstances that Mr Landwehr apprehended there was a direct, immediate threat to his life and he was responding impulsively and instinctively. Thus, it is argued that the reaction of Mr Landwehr was akin to provocation, or was a factor, that ought to have been taken into account by the learned Chief Commissioner but was not taken into account by her.
43 Regulation 38 of the School Education Regulations provides:
A member of staff of a government school may, in the performance of the person's functions, take such action, including physical contact with a student or a student's property, as is reasonable —
(a) to manage or care for a student; or
(b) to maintain or re-establish order; or
(c) to prevent or restrain a person from —
(i) placing at risk the safety of any person; or
(ii) damaging any property.
44 It is argued that arising out of reg 38(c)(i) there should have been an assessment of the reasonableness of the reaction of Mr Landwehr in the circumstances that he was confronted with and this interpretation of reg 38 is consistent with the principles enunciated in Inghams and Mt Newman Mining Co Pty Ltd.
45 Thus, it is said that whilst the learned Chief Commissioner found that the danger of the misuse of compressed air is not in contention, she failed to have any, or sufficient regard, to the evidence of the real threat presented by the actual conduct of the student that made Mr Landwehr fear for his life. The learned Chief Commissioner also observed that Mr Landwehr lost self-control and his behaviour demonstrated a lack of self-control. Whilst this assessment is accurate, she should have found it is unreasonable and unfair to expect Mr Landwehr to act with composure in those circumstances. By focussing on the assessment that the force used was excessive, rather than whether it was reasonable conduct in all of the circumstances, the learned Chief Commissioner did not have regard to the instinctive and impulsive nature of Mr Landwehr's response to the threat of his life. Further, the learned Chief Commissioner wrongly attributed to Mr Landwehr a motive to punish or intimidate the student, and/or attributed culpability to his lack of control, his inability to explain why he grabbed the student and his lack of clarity of mind at the time. It is argued that his inability to explain and his lack of clarity is consistent with the action being impulsive and instinctive, being out of control in that sense that one cannot fully explain that action.
46 Whilst the learned Chief Commissioner acknowledged that Mr Landwehr may have genuinely believed, in good faith, that his life had been put at risk, it is argued that she erred in focussing on apparent inconsistency in Mr Landwehr's account as to whether the air compressor was directed towards him or pushed into his rectum. This error, it is said, lies in overlooking the evidence that injury can occur without inserting the air hose into the anus. The error lay also quite simply in failing to give proper consideration to the provocation leading to what was otherwise inappropriate contact with a student. Consequently, it is said that in circumstances where Mr Landwehr reasonably feared his life was at risk, his actions could be excused as an exculpatory circumstance or at least an extenuating and mitigating circumstance that should have been taken into account by a reasonable and fair-minded employer in deciding whether or not to terminate Mr Landwehr's employment.
47 It is acknowledged that the learned Chief Commissioner was not assisted by counsel acting for Mr Landwehr at first instance by a clear articulation of this ground in the grounds set out in the schedule to the application. Yet, it is said that this matter is raised in ground 5(h) of the application and in the applicant's submissions in reply at first instance which records there was no agreement between the parties that Mr Landwehr's use of force was not reasonable or necessary. Consequently, it is said that the question of reasonableness and necessity was in issue between the parties. Further, that reg 38 was put into issue in response to the Director General's submissions made at first instance. At paragraph 7 of the applicant's submissions in reply it is stated:
The respondent raises (Respondent's submissions paragraphs 14 and 60(a)) regulation 38 of the School Education Regulations 2000 at paragraphs 14 and 60(a) and says the applicant cannot rely on the limited defence that regulation offers to him. The applicant's case has never been about whether the conduct occurred or not (which the applicant did not deny in any regard) (Statement of Agreed Facts paragraph 14) or whether the conduct complained falls within the defence under that regulation. The applicant therefore did not anticipate a reliance on this regulation by the respondent. However if the respondent requires the Commission to turn its mind to this regulation, then the Commission ought also consider a report filed by the respondent's Occupational Physician Dr Roger Lai (Attachment 4 to the investigation report - agreed document 8). Dr Lai in his expert medical opinion states that it is appropriate to take misuse of compressed air as a serious safety incident and that compressed air entering the body can cause serious injury and occasionally death. The applicant may have therefore enjoyed the defence afforded by regulation 38(c)(i) as the physical contact was reasonable to prevent or restrain the student from placing the applicant's safety at risk. This has not been the applicant's case but the applicant is obliged to respond to the respondent raising regulation 38.
48 It is argued that what is raised in this paragraph is that there is medical evidence that establishes provocation which is only a sub-category of the question of reasonableness. Provocation is put on behalf of Mr Landwehr in the broad sense that can be construed as an impulsive instinctive response consistent with a loss of composure and a loss of control in response to a threat to life.
49 The submission is also made that it is not so much a question of whether Mr Landwehr's conduct was justified in terms of reg 38 or the policy, but the learned Chief Commissioner fell into error in finding that Mr Landwehr lost control by treating that loss of control as an exacerbation rather than an exculpation or mitigation.
50 It is argued that the Department of Education's policy is presumably drafted to align with the School Education Regulations, but there is not perfect comity between the policy and reg 38. In any event, to the extent of any inconsistency, the School Education Regulations prevail. It is pointed out that in her reasons for decision the learned Chief Commissioner did not consider reg 38. The considerations for whether an act placed at risk the safety of any person in regards to reg 38 was outlined in Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824 [157] as being an objective test whereby the concept of risk conveys the possibility of danger rather than actual danger.
51 It is also argued that whilst the learned Chief Commissioner stated that she did not doubt the potential of the danger involved, she did not give any real consideration as required by reg 38 in assessing the reasonableness of Mr Landwehr's physical contact with the student, to the evidence of the objective danger and provocation to which he was responding. It is also contended that the finding made that Mr Landwehr's actions were a breach of the policy because it was not necessary for the management of the student was an incorrect application of the policy, or alternatively it overlooked the prevailing provision of reg 38. It is submitted that the application of the policy, like the School Education Regulations, requires focus on the reasonableness of Mr Landwehr's actions in all of the circumstances. It is also pointed out that use of reasonable force against students by teachers is recognised and protected by s 257 of the Criminal Code which provides that:
It is lawful for a parent or a person in the place of a parent, or for a schoolmaster, to use, by way of correction, towards a child or pupil under his care, such force as is reasonable under the circumstances.
Ground 1(a) - Is it open on appeal to run a provocation argument?
52 Whilst the opening words to paragraph 5 of the schedule to the application could in one sense be said to encompass a provocation argument, it was not expressly pleaded as the general plea is that the penalty of dismissal was disproportionate to the conduct complained of when having regard to all the circumstances, including, but not limited to, the matters enumerated in paragraphs 5(a) to 5(i). Paragraphs 5(a) to 5(i) set out mitigatory matters. In paragraph 5(a), it is conceded that Mr Landwehr accepted his conduct was inappropriate and refers to paragraph 11 of Mr Landwehr's response dated 8 April 2016 and argues that the Director General failed to properly take Mr Landwehr's response into account. In paragraph 11 of Mr Landwehr's response dated 8 April 2016, he states he can assure the Director General that he intends not to repeat his behaviour in the future.
53 I do not agree the argument was raised in paragraph 5(h). Nor was such an argument directly put in written or oral submissions to the learned Chief Commissioner at first instance. Nor do I agree that reg 38 of the School Education Regulations was directly put into issue. Further, I do not agree that on facts put by Mr Landwehr that reg 38 would be open. Mr Landwehr's case at its highest that he now seeks to raise in this appeal is that he used force which would usually be regarded as excessive and inappropriate force against a student because he lost control. However, he says his conduct can be excused because he was in state of extreme fear that he had been or was about to be critically injured. In my opinion, in circumstances where:
(a) it is agreed by Mr Landwehr that the student dropped the hose as soon as Mr Landwehr grabbed him; and
(b) yet Mr Landwehr's loss of control continued as he continued to push the student and grabbed him a second time after desisting;
it is not open to argue (objectively) that the physical contact Mr Landwehr had with the student was reasonable to prevent or restrain the student from placing at risk the safety of Mr Landwehr as the risk to Mr Landwehr had ceased when the student dropped the hose.
54 Yet, Mr Landwehr's case before the learned Chief Commissioner relied upon medical evidence to justify his actions. The Director General when dismissing Mr Landwehr rejected his submission about the dangerous nature of the act of the student and found it concerning that Mr Landwehr did not accept that his behaviour was inappropriate.
55 Mr Landwehr does not seek to raise any new evidence. Counsel for the Director General, however, says that if this point had been raised at first instance, the Director General would not have agreed to have the matter dealt with on the papers and would have sought to meet the point by cross-examining Mr Landwehr. Consequently, it is argued that the Director General is prejudiced.
56 The difficulty I have with the position raised by the Director General is that the state of mind of Mr Landwehr when he was sprayed by compressed air and the severity of the act of the student in firing compressed air at Mr Landwehr were live issues raised squarely in the papers put before the learned Chief Commissioner. In the absence of testing of the veracity of material opinions expressed by the investigator and Mr Landwehr which were clearly in conflict, I do not see how a proper assessment could have been made about this issue unless the material in support of the investigator's assumptions and Mr Landwehr's contentions were closely scrutinised.
57 In The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 the scope of an enquiry by the Commission into whether an employee had been harshly, oppressively or unfairly dismissed and the onus of proof was considered at length. In joint reasons, Beech CC and I observed that an employer has an evidentiary burden to show there is sufficient evidence to raise the factual matters it relies upon as a reason to dismiss an employee [65] - [66]. Once the employer establishes its position in this regard, the onus moves to the employee to show that dismissal for that reason was harsh, oppressive or unfair [67].
58 In paragraph 41 of the applicant's submissions filed at first instance, it is stated:
Contrary to the reasons for dismissal, the applicant did not seek to 'justify [his] actions, rather than accept that [his] conduct was inappropriate' (See Dismissal Letter)
a. On the contrary, a general analysis of his letter to the respondent dated 8 April 2016 (Document 5 of the Statement of Agreed Facts) shows that the applicant accepted his conduct was inappropriate and was regretful the incidents occurred.
b. The respondent failed to take into account the applicant's response and dismissed the applicant without proper basis.
59 If the whole of Mr Landwehr's response in his letter dated 8 April 2016 is read, it is apparent that the matters raised in that letter could form the basis of an argument of provocation in the sense characterised by Mr Cox on behalf of Mr Landwehr in this appeal. Mr Landwehr's response dated 8 April 2016 is a letter addressed to the Director General in which he raises a number of findings made by the investigator and accepted by the Director General that Mr Landwehr took issue with.
60 This argument goes to the finding made by the Director General that the first and second incidents of breach of discipline are similar.
61 In his response dated 8 April 2016, Mr Landwehr stated:
At the outset, I would like to clarify that, whilst it might be said that my conduct was 'similar' on both occasions, as it is stated, I must stress that the circumstances within which that similar conduct occurred were very different. In the former case, I was trying to restrain a student so as to prevent undue damage to school property - i.e. gratuitously kicking a door. By contrast, in the latter case I genuinely believed, in good faith, that my life had been put at risk; despite any contrary speculation doubting the veracity of my claim in the investigation report - with which I disagree as being untenable and totally fanciful.
What is also clear in the investigation report is this:
1. The statements made by Dr Lai - the Department's own in-house Occupational Physician - as reported in the investigation report, leave no doubt about the seriously risky and dangerous aspects of [the student's] relevant action toward me. As reported - (quote) -
2.15 On 15 September 2015, Dr Roger Lai, Occupational Physician, Employee Relations, provided advice via e-mail, relating to the dangers of air compressors and air embolism. He also attached a case report similar to the incident involving Mr Landwehr (Attachment 4). In summary Dr Lai stated:
• There is a risk of air entering the body and disrupting soft tissues even without direct contact.
• Compressed air squirted up the anus will cause serious injury and occasionally death.
• The most important factor is the volume of air entered rather that the pressure. 40 PSI is enough to cause injury.
Further, in the Analysis part of the report, it says:
3.16 Dr Roger Lai stated that air compressor injuries can be very serious and compressed air squirted up the anus will cause serious injury and occasionally death. He provided a case report where a co-worker opened a high-pressure air hose nozzle and pushed it against the seat of someone's pants before applying the air for a few seconds. This resulted in extensive injuries (attachment 4).
3.17 Pounds per square inch (PSI) is used to measure the pressure of air within an air compressor. Dr Lai stated that 40 PSI was enough to cause someone injury. It was established that the air compressor used by [the student] on the day in question was set at approximately 100 PSI. There is no denying that the actions of [the student] had the potential to cause Mr Landwehr very serious injuries if the air was squirted up Mr Landwehr's anus as he now claims.
The investigator here concedes that '... the actions of [the student] had the potential to cause Mr Landwehr very serious injuries ...'; which, however regrettably, henceforth the investigator attempts to minimise in significance in regards to their impact upon my reaction. In addition, it is fair to say that Dr Lai's opinion substantiate the trepidation and concerns that I felt in being subjected to being sprayed with compressed air.
2. Further, at paragraph 2.17, in regards to my physical condition, it is reported as follows - (quote) -
2.17 During the interview, Mr Landwehr provided Ms Wykes with a letter signed by Dr Lee Ming Yap (Dr Yap), Wellington Medical Centre, Harvey on 18 September 2015. The letter stated that Mr Landwehr had a history of per rectal bleeding on toilet paper about eight months prior, which was consistent with mild haemorrhoids. However, the medical examination on 18 September 2015 was normal with physical signs of small skin tag (attachment 5).
Reasonably, I say, Dr Yap's letter corroborates my awareness of being particularly vulnerable due to my condition; despite whether the haemorrhoids where [sic] flaring at the time of the incident or otherwise.
3. Further, at 2.18 it is reported that - (quote) -
2.18 In addition, Mr Landwehr provided Mr [sic] Wykes with a hard-copy of electronic mail addressed from Dr James Parker, dated 7 September 2015. Dr Parker is part of a United States online support service at www.askdoctorparker.com where qualified doctors answer customer's health questions. Examination of the website revealed that any answer provided was not to take the place of an in-person visit to a medical doctor. The online question asked by Mr Landwehr was, 'How serious is compressed air being squirted up your anus?' Dr Parker's reply included, 'If air pressure is released in the rectum, it can cause a catastrophic tear which will rupture the blood vessels supplying the colon. The patient may haemorrhage severely and then die from this blood loss' (Attachment 6).
Needless to say, the above is further corroboration of the seriousness and risks of the action and fair justification of my own concerns.
4. Other additional material was provided by me to the investigator, which regrettably has been omitted by the investigator, without providing any reasons for it (attached). As it may been [sic] seen the material is further evidence that emphasises the dangers and risks of compressed air from an Occupational Health and Safety (OHS) perspective - this being an aspect of this matter that has been totally ignored by the investigator - thereby obliterating any considerations of it. Of note, the material includes a specific danger-sign located in workshops about compressed air expressly stating not to point the hose at anyone.
5. It is not in contention that students were inducted inter alia into the dangers that compressed air posed for OHS considerations at the start of the year; including [the student]. In fact, at 2.8, 6th dot-point, it is reported that during the interview, [the student] stated - (quote) -
• I was about half a metre from Mr Landwehr. The air pressure released from the hose was pretty fast.
• It wouldn't have hurt Mr Landwehr however if the air was to get into someone's bloodstream, it can be fatal
It is clear that [the student] was well aware of the risks and dangers that may arise as a result of misusing compressed air.
6. Despite the weight of the above evidence - and additional one however omitted for our present purposes - preposterously and without a shred of evidence supporting her speculation, the investigator states as follows - (quote) -
3.19 Mr Landwehr's concern for his life is questionable.
The investigator bases for making this unsubstantiated and - with due respect – ill-conceived 'finding' is said to be my 'failure' to seek medical treatment immediately. Nothing in the report supports such a negative speculation.
7. Despite all of the above, as stated in my first response, '... I did say sorry I should not have grabbed you ...' (Attachment #1 - page 1 of 2). What I have pointed out above is in an attempt 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.
62 In this letter Mr Landwehr squarely raises an argument that:
(a) when sprayed by compressed air he feared his life was at risk; and
(b) the investigator's finding that his concern for his life was questionable is unsubstantiated and against the weight of medical evidence.
63 Whilst Mr Landwehr did not directly raise in this response that his reaction to the compressed air being sprayed at or up his anus through his clothing caused him to lose control, it is apparent from his account he gave to the investigator as set out in the investigation report that he claimed his response to being sprayed was because he feared he was in immediate danger of being seriously injured and he reacted to remove the risk.
64 The learned Chief Commissioner found Mr Landwehr lost his self-control, but she did not examine whether the actions of the student caused the loss of control as an exculpatory or mitigatory circumstance. Nor was she invited by the parties to turn her mind to this issue. She did, however, find that the intent of Mr Landwehr when he lost control was to punish or intimidate the students in both the first and second incident. This finding in respect of the first incident was squarely open. The circumstances of the first incident raise different circumstances to the second incident as Mr Landwehr's health and safety was not under threat and by his own admission his conduct on that occasion could clearly be said to be an unreasonable use of force to punish and intimidate a student.
65 However, the finding that the intent of Mr Landwehr when he lost control in the second incident was to punish and intimidate the student was in my opinion not a finding that was open to the learned Chief Commissioner to make on the documents before her. This was not a finding made by the investigator. Nor was it an allegation raised by any of the five students who witnessed the incident or put to Mr Landwehr during the investigation.
66 I also have difficulty with the finding made by the investigator that was accepted by the learned Chief Commissioner that the actions of the student were not the severity that Mr Landwehr claims. It can be inferred from the investigator's report that this finding was made by regard to the following findings made by the investigator:
(a) Mr Landwehr was wearing long 'Hard Yakka' safety pants and bonds underwear. Hard Yakka clothing is specifically engineered to endure the toughest of conditions and 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 (AB 161).
(b) Based on the witness accounts, the air gun was at least 30 cm from Mr Landwehr's buttocks when the air was released (AB 161); and
(c) Mr Landwehr did not seek any medical treatment immediately or any time after the incident (AB 163).
67 In attachment 4 to the investigator's report, the investigator put the following questions to Dr Roger Lai, an occupational physician employed by the Department of Education, in an email. In the email, the investigator said (AB 178):
I am seeking advice in relation to the dangers of air compressors and air embolism.
Whilst a teacher (wearing clothing) bent over in front of students to place tools away, one student has used an air-compressor hose and sprayed a shot of air toward his buttocks. It is not confirmed how close the air hose was to the teacher's buttocks, so let's assume that it was touching his clothing.
• The teacher claims that he has haemorrhoids.
• The teacher further claims that he was fearful he may die as a result of air embolism.
• Is it possible in this situation, to get air embolism as a result of air being squirted towards the bottom?
• If the shot of air was squirted directly up the teacher's anus (though [sic] clothing), is air embolism possible?
• What is the likely outcome of air embolism in this case?
• Do you believe it possible for this man to have died as a result of the above described act?
68 In response, Dr Lai said (AB 177):
Many people are unaware that air compressor injuries can be serious and occasionally fatal. I attach a case report similar to the scenario you describe. I have copied an abstract reproduced below:
In answer to your questions:
1) Yes there is a risk of air entering the body and disrupting soft tissues even where there is no direct contact. This is due to the solid column of air under pressure.
2) Compressed air squirted up the anus will cause serious injury and occasionally death
3) The most important factor seems to be volume of air entered rather than the pressure, 40psi is enough to cause injury
4) Yes, it is appropriate to take it very seriously as a safety incident.
The first paragraph in the discussion section of the attached article is informative.
69 The article attached to Dr Lai's report is a case report reported in the Journal of TRAUMA, Injury, Infection and Critical Care, titled 'Colorectal Blowout from Compressed Air: Case Report'. In the report, the authors state (AB 179 and 181):
A 29-year-old male presented to the Medical Center of Central Georgia Emergency Center in severe respiratory distress. The patient was working in a carpentry shop when a coworker opened a high-pressure air hose nozzle and pushed it against the seat of his pants. The air was applied for only a few seconds. The patient immediately complained of severe abdominal pain and within a few minutes developed neck and facial swelling. Shortly after the incident he began to experience difficulty in breathing and was transported to our emergency center. On arrival, the patient was unable to speak and was in severe respiratory distress. A large amount of subcutaneous air was present in the abdomen, thorax, and neck.
…
Review of the literature reveals a similar case report in 1904 from a British surgeon in London. In that case, the patient was 'blown up with an air force-pump' as a joke by four youths. The patient had the nozzle introduced into the anus in this case. The outcome was fatal, with the patient dying 3 hours after injury despite abdominal decompression. Case analysis of pressurized-air injuries often reveal a misguided coworker and unwise behavior. Those cases not involving misbehavior usually occurred when employees used an air hose to dust off their clothing. It is important to realize that this injury can occur without inserting the air hose into the anus. In several cases reported in the literature, the air hose was 'fired' through clothes at a distance from the anus. In our patient, the hose was pushed against the seat of his pants and fired through the pants.
…
In summary, compressed air can pose a threat to health and life of the uninformed user. The compressed air equipment used in industry and commercial use today provides enough force to produce colorectal injuries through clothing and without the nozzle being inserted into the anus. Users of this equipment need to be made explicitly aware of the calamitous consequences of its irresponsible use.
70 When regard is had to the reasons of the learned Chief Commissioner, it is apparent that she did not have regard to Dr Lai's opinion and the opinion set out in the case study when making the finding that the use of force by Mr Landwehr was unreasonable physical contact, involving punishing a student [82].
71 When the questions put to Dr Lai are read together with Dr Lai's answers and the case report provided by Dr Lai, it is clear that life-threatening internal injuries can occur by a volume of 40 PSI compressed air being fired 'through clothes at a distance from the anus'. When this medical opinion is considered, together with:
(a) Mr Landwehr's statement that on the day in question the air compressor the student was using was set at 100 PSI; and
(b) the statements made by students who witnessed the incident to the effect that the compressed air could have entered Mr Landwehr's anus through his clothing. One student said the 'air pressure went up Mr Landwehr's bum' (AB 150) and also said the nozzle was about 50 cm away; another said, 'Someone got the air-compressor and put it up Mr Landwehr's bum and squeezed the trigger (AB 151) and also said he did not know how far away the hose was because he did not see it and the other said, '[the student] put the air compressor hose up Mr Landwehr's bum and sprayed it the first time … I'm pretty sure it was touching Mr Landwehr's body' (AB 151) and also said, 'I'm pretty sure the air compressor hose was against Mr Landwehr, although I didn't see this';
the findings made by the investigator and accepted by the Director General that Mr Landwehr's concern for his life was questionable and the actions of the student were not of the severity that Mr Landwehr later claimed, were findings that (in light of the fact that at no time did Mr Landwehr accept these findings) should have been scrutinised by the learned Chief Commissioner before she accepted these findings and went on to make a finding that the loss of control and actions of Mr Landwehr was to punish the student.
72 For these reasons, I am of the opinion that (i) and (v) of the particulars to ground 1(a) of the grounds of appeal have been made out. In these circumstances, the decision to dismiss Mr Landwehr's application should be suspended and remitted for further hearing and determination as the findings made by the investigator that appear not to be supported by the medical evidence require reassessment before finding Mr Landwehr's conduct warranted summary dismissal.
73 As to particulars (ii), (iii), (iv) and (vi) to ground 1(a), as these were matters that could be said to be raised in the material put by Mr Landwehr but not in the arguments put by counsel on his behalf at first instance, I am of the opinion that as this matter requires further hearing and determination which will require a reassessment of whether Mr Landwehr's concern for his life was questionable and an assessment of the severity of the incident, it necessarily follows that the contentions in particulars (ii), (iii), (iv) and (vi) in ground 1(a) are matters relevant to this issue.
74 In these circumstances, where no further evidence would be sought to be led on behalf of Mr Landwehr, this is one of the exceptional matters where the interests of justice would allow these issues to be put on behalf of Mr Landwehr. However, if these points are pursued, the Director General should be afforded an opportunity to cross-examine Mr Landwehr about his state of mind when the incident occurred and his consequent actions and to adduce any further evidence the Director General says is relevant to these matters.
Ground 1(b) of the appeal
75 In ground 1(b) of the grounds of appeal, it is argued that Mr Landwehr's personal circumstances rendered the summary dismissal disproportionately harsh. It is said that the characterisation of Mr Landwehr's conduct as an unreasonable use of force which was unjustifiable in the circumstances clouded consideration of all other mitigating circumstances.
76 An application is made to adduce fresh evidence in the form of a letter from the Teacher Registration Board dated 19 July 2017 enclosing a complaint to the State Administrative Tribunal seeking the cancellation of Mr Landwehr's teaching registration. Leave is sought for these documents to be admitted on grounds that if the application by the State Administrative Tribunal is granted, the appellant will not be able to teach in Western Australia. In her reasons for decision, the learned Chief Commissioner concluded there was no evidence of Mr Landwehr's future prospects of a teacher. It is said that that lack of evidence is now profoundly changed by the steps that the Teacher Registration Board has notified Mr Landwehr it intends to pursue for his deregistration.
77 Whilst it is acknowledged that family circumstances alone cannot make an employee immune from dismissal for any reason, it is also argued that family circumstances should be given adequate consideration in the ambit of mitigating circumstances.
78 It is argued that the learned Chief Commissioner erred in finding that 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 mitigating factor and nor would the family circumstances.
79 It is submitted that regard should have been had to the fact that Mr Landwehr's father was terminally ill at the time of the incident leading to his summary dismissal. It is said therefore he was in a vulnerable psychological state to deal with the provocation.
80 It is also argued that the fact that Mr Landwehr had positive references from peers and members of the community about his teaching career and his voluntary community activities contributed to the summary dismissal being disproportionately harsh, in particular substantial weight should have been given to the positive reference from Mr Pfitzner, the deputy principal and line manager of Mr Landwehr, and references from other teachers who spoke positively about his performance as a teacher.
81 It is also argued that it is factually inaccurate to say there was a history of Mr Landwehr's repeated behaviour of a similar kind.
82 In light of the learned Chief Commissioner's findings about the seriousness of the breach of discipline in the second incident, no error in these findings about these factors can be demonstrated as the findings made by her were open on the material before her. For this reason, I am of the opinion this ground is not made out.
83 However, if after this matter is further heard the learned Chief Commissioner in respect of the issues raised in ground 1(a) of the appeal, and in the event the learned Chief Commissioner is to take a different view of Mr Landwehr's use of force in the second incident, it would be open to the parties to put to the learned Chief Commissioner that she should reconsider the matters put in mitigation in light of her findings about the seriousness of the second incident.
84 Consequently, it is not necessary to consider the application made on behalf of Mr Landwehr to adduce fresh evidence, as this is an application that can be made to the learned Chief Commissioner in a further hearing of this matter.
Grounds 2 and 3 of the appeal
85 In grounds 2 and 3 of the grounds of appeal, it is argued that the two incidents are fundamentally different.
86 In appeal ground 2, it is argued that the learned Chief Commissioner erred in fact or law in finding that Mr Landwehr's conduct warranted summary dismissal by placing excessive weight on the evidence of the previous disciplinary finding. In particular, it is argued that the finding that Mr Landwehr's behaviour was of a very similar nature to his conduct for which he was disciplined less than three months earlier was wrong because the circumstances of the second incident were significantly and relevantly different from the first. Whilst both involved physical contact with a student that would, on its face, be inappropriate, the second incident involved an impulsive response to a provocation to a potentially life-threatening assault. Consequently, it is said that whilst both incidents involved physical contact with a student, the learned Chief Commissioner did not consider the differences between the two incidents, and instead drew a conclusion that they were analogous and represented a history of inappropriate behaviour with students and found both incidents were of unreasonable physical contact involving punishment and manhandling of a student.
87 In appeal ground 3, it is argued that the learned Chief Commissioner erred in finding that Mr Landwehr should have learnt from the training, counselling and reprimand he received from the first incident. In support of this argument, Mr Landwehr relies upon what are said to be the significant differences of the second incident being an impulsive and instinctive response. Further, it is argued that the training and counselling that Mr Landwehr received following the previous incident contained in the improvement action plan did not focus on a teacher's physical contact with students. Of the eight units and 120 screens in the online course completed by Mr Landwehr only two screens deal with the topic of physical contact specifically. In these circumstances, it is said that there was not a sufficient basis for the learned Chief Commissioner to conclude that Mr Landwehr should have learnt from the training or counselling in a way that rendered his conduct in the second incident more contumelious.
88 In light of my reasons for upholding ground 1(a), insofar as particularised in (i) and (v), it is my opinion it is not necessary to decide whether grounds 2 and 3 of the appeal have merit. In a further hearing before the learned Chief Commissioner it would be open to Mr Landwehr to put a submission that if the learned Chief Commissioner forms the view that whilst the conduct of Mr Landwehr in both incidents was similar she should find that in some respects the circumstances of the second incident were materially different.
Ground 4 of the appeal
89 In appeal ground 4(a), it is argued it was not open to the learned Chief Commissioner to find that there was no suggestion that Mr Landwehr's conduct in the first incident, which occurred 10 months prior to the second incident, was because Mr Landwehr was under stress associated with his personal circumstances. This finding is said to be inconsistent with the evidence before the learned Chief Commissioner that his mother had died in recent years and he had been supporting his father through terminal cancers for a number of years, which had caused the last few years to have been very hard for Mr Landwehr.
90 I agree ground 4(a) of the appeal should be upheld. Given that the learned Chief Commissioner found that after the first incident Mr Landwehr underwent two sessions of psychological counselling dealing with the impending death of his father, it is apparent that the finding made by the learned Chief Commissioner that there was no suggestion that Mr Landwehr's conduct in the first incident was because he was under stress associated with his personal circumstances was erroneous. However, this finding, even if erroneous, would not in itself lead to a finding that the dismissal of Mr Landwehr was harsh, oppressive or unfair.
91 In ground 4(b) it is argued that it is a significant and unjustified overstatement to characterise Mr Landwehr as having a history of inappropriate contact with students in circumstances where he had only previously been disciplined once, relatively recently in almost 10 years' service as a teacher. Two incidents are said not to constitute a 'history'.
92 Further, it is argued that it appears the learned Chief Commissioner was referring to matters other than the first and second incident when she made this finding, as she observed 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, was not supported by any evidence before her. It is pointed out on behalf of Mr Landwehr that the evidence in the investigation report is simply that Mr Landwehr engaged in bantering, including physical banter with students which was jocular and fairly benign, which was described in positive terms by many of the student witnesses who explained that they had a positive relationship with Mr Landwehr and they found him humorous.
93 On behalf of the Director General, it is argued that the reference to Mr Landwehr having 'a history of inappropriate contact with students, contrary to policy' [80] must be read as a reference only to the two incidents for which Mr Landwehr was disciplined. Further, that the observation made in passing by the learned Chief Commissioner that other evidence contained in the investigation reports tend to indicate Mr Landwehr's approach to dealing with students was robust, and that contact with students other than for the purposes of the policy was not out of character, is an observation that is supported by the evidence before the learned Chief Commissioner. The evidence was Mr Landwehr engaged in horseplay with the students that involved physical contact. The Director General says this observation by the learned Chief Commissioner was not a finding that this conduct was contrary to the policy or constituted misconduct and the learned Chief Commissioner did not rely upon it in determining whether the penalty of dismissal was disproportionate.
94 Whilst I agree that the two incidents could be characterised as a history of inappropriate physical contact with a student, I also agree that the learned Chief Commissioner in making this finding considered the incidents of horseplay to be indicative of his character as a teacher which she did not regard as a positive trait. Further, this finding appears to have been a matter that the learned Chief Commissioner took into account when considering whether the Director General could have confidence in the conduct of Mr Landwehr in the future.
95 In circumstances, where there was no evidence or material before the learned Chief Commissioner that the incidents of horseplay were regarded by the Director General in breach of a policy and in the face of statements made by the students in the investigation reports that such incidents were benign, I am of the opinion that ground 4(b) of the appeal has been made out.
Notice of contention
96 On behalf of the Director General, a notice of contention was filed on 6 June 2017. The notice states:
1. The appellant was not summarily dismissed.
2. If the appellant was summarily dismissed:
a. there was no requirement to put the appellant on notice that he may be dismissed without notice, and therefore it was not unfair to summarily dismiss the appellant without giving him notice that he may be dismissed without notice, and
b. in the alternative, the appellant was put on notice that he may be dismissed without being paid in lieu of notice.
97 It is clear that Mr Landwehr was summarily dismissed. He was given notice of termination by letter dated 10 May 2016. It is common ground he was paid up until 10 May 2016 and he received no payment in lieu of notice.
98 He was not given notice of termination. The letter sent to Mr Landwehr by the Director General dated 9 March 2016 does not by its terms constitute notice. In the letter the Director General simply stated that if she finds that he had committed a breach of discipline her preliminary view is that she would be inclined to dismiss him from his employment. However, in the letter, prior to making that decision, she invited him to make a submission as to why the proposed finding and action should not be taken against him.
99 For these reasons, the notice of contention is not made out.
Conclusion – Summary
100 I am of the opinion that ground 1(a)(i) and (v) and ground 4(a) and 4(b) have been made out and that an order should be made to suspend the operation of the decision to dismiss U 93 of 2016 and remit the case to the Commission for further hearing and determination.
KENNER ASC:
101 The appeal in this matter raises the issue of both appropriate workplace and classroom behaviour of a teacher and student. The incident giving rise to the dismissal of the appellant is set out in the reasons of Smith AP in some detail, which I have had the advantage of reading in draft form and need not be repeated. Suffice to say however, the misuse of compressed air, whether it be in the workplace or the classroom, may be a very dangerous event. The material provided to the respondent by Dr Lai, an occupational physician employed by the respondent, makes this plain. This is especially so, at a strength of 100 PSI, which seemed to be the case in this instance. Compressed air, even at a lower pressure of approximately 40 PSI, discharged close to a bodily orifice, even through clothing, can cause serious internal injury or worse.
102 For the reasons expressed by Smith AP, with which I am in general agreement, appeal grounds 1(a)(i) and (v) and (4)(a) and (b) should be upheld. The matter should be remitted to the learned Chief Commissioner for further hearing and determination.
103 I wish to make additional comment on one matter. The Investigation Report for this incident was included in the Appeal Book at 'Tab 9. - Supplementary Bundle of Agreed Documents: a.  Standards and Integrity Investigation Report F15/0067403'. A part of it contains summaries of recorded interviews with persons relevant to the incident involving the appellant. One such interview was with a Mr Cantwell, who was on a one year contract as the head of the relevant department and to whom the appellant reported. Whilst Mr Cantwell did not witness the incident, he made some second-hand observations as to what he was told by others about the incident, including the student concerned who discharged the compressed air.
104 Most concerning however, there are contained in Mr Cantwell's record of interview, gratuitous, serious, bordering on slanderous, attacks on the appellant's character. These even go as far as derogatory remarks about the appellant's alleged mental health. The remarks were completely unresponsive to the specific allegations against the appellant and were plainly highly prejudicial to him. They were also quite at odds with the independent character evidence led before the Commission at first instance, and considered by the learned Chief Commissioner. The comments were also unsupported by any direct evidence. Irrelevant and highly prejudicial material such as this, should not be included in Investigation Reports. Investigation Reports are very important documents that are reviewed and considered by senior management of the respondent when making significant, and possibly career ending, decisions about employees. It is most regrettable that this material was included and such material should not be included in the future.
EMMANUEL C:
105 In circumstances where the parties were in dispute about a fact as material as whether Mr Landwehr feared for his life, and that was a matter the learned Chief Commissioner needed to consider when deciding whether the penalty was disproportionate, the parties should not have asked the Commission to decide the matter on the papers.
106 It is also regrettable that the learned Chief Commissioner was not assisted by Mr Landwehr's counsel at first instance.
107 I have had the benefit of reading Smith AP's draft reasons for decision.
108 I agree with Her Honour's reasons in relation to grounds 1(a), 1(b), 2, 3 and 4(a).
109 I would uphold grounds 1(a)(i), 1(a)(v) and 4(a). The matter should be remitted to the Commission for further hearing and determination.
110 I take a different view to Smith AP in relation to ground 4(b).
Ground 4(b)
111 The finding at [80] was based on the two incidents, which the learned Chief Commissioner correctly noted involved inappropriate contact with students that was contrary to policy. It is not an error to characterise the two incidents as a history.
112 At [81], the learned Chief Commissioner observes 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'. On the documents before the learned Chief Commissioner, including the summary of Mr Landwehr's interview on 30 September 2015, it was open to her to make that finding.
113 Relevantly, the learned Chief Commissioner distinguishes between contact with students that is 'other than for the purposes of the policy' and contact with students that is 'contrary to policy'.
114 I disagree that the learned Chief Commissioner was referring to matters other than the two incidents when she made the finding at [80] of her reasons.
115 Further, in my view, the learned Chief Commissioner did not rely on her observations at [81] when considering whether the Director General could have confidence in Mr Landwehr in the future. Rather, she relied on the two incidents which were contrary to policy when she considered that matter.
116 Accordingly, I would not uphold ground 4(b).