DISPUTE RE ALLEGED UNFAIR DISCIPLINARY PROCESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00379

DELIVERED : wednesday, 20 June 2018

FILE NO. : CR 33 OF 2017

Applicant

AND

The Director General, Department of Education

Respondent

CatchWords : Applicant's member challenges reasonableness of respondent's findings - Matter heard "on the papers" - Found respondent's findings not reasonably open on materials before her - Respondent's findings and penalties quashed

Legislation : Industrial Relations Act 1979

Industrial Relations Commission Regulations 2005

Public Sector Management Act 1994

  School Education Regulations 2000

Result : Application upheld; Findings of breach of discipline and penalties quashed

Representation:

Applicant : Mr G Walsh, as agent

Respondent : Ms J Vincent, of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case referred to in reasons:

Ex Parte Hill, Director of WA Prisons Department v Ormsby No 1987 of 1985

Cases also cited:

B v Brisbane City Council T/A Brisbane Transport [2010] FWA 3856

Barry Landwehr v Sharyn O’Neill Director General, Department of Education (2017) 97 WAIG 1671

Belinda Pinker v Director General Department of Education (2014) 94 WAIG 1928

Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194

Edward Michael v Director General, Department of Education and Training (2009) 89 WAIG 2266

Gregg Hattrick Meikle v Director General, Department of Education (2017) 97 WAIG 1810

House v The King (1936) 55 CLR 499

Peter John Ayling v Director General, Department of Education (2009) 89 WAIG 824

Puccio v Catholic Education Office (1996) 68 IR 407

Shane Jamieson v The Director General, Department of Education 98 WAIG 235

The State School Teachers' Union of WA (Incorporated) v Director General, Department of Education (2012) 92 WAIG 362

The State School Teachers' Union of WA (Incorporated) v Director General, Department of Education (2008) 88 WAIG 333

TWU v Tip Top Bakeries (1994) 58 IR 22

Reasons for Decision

1         The applicant’s member, David Mattin, was found by the respondent to have committed the following breaches of discipline:

“1.  On 30 March 2017 at Waroona District High School you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994 in that you committed an act of misconduct.

Particulars

1. You are employed as a Deputy Principal at Waroona District High School.
2. You were supervising a student in the reflection room.
3. You stood in the doorway and pushed the student in his chest when he attempted to leave the room to obtain his recess food.
4. The degree of physical force you used was not reasonable or necessary to manage the student.

2. On 30 March 2017 at Waroona District High School you committed a breach of discipline contrary to section 80(c) of the Public Sector Management Act 1994 in that you committed an act of misconduct.

Particulars

1. You are employed as a Deputy Principal at Waroona District High School.
2. You were supervising a student in the reflection room.
3. You took hold of the student’s arm while telling him to get out of your personal space.
4. You pushed the student on his chest, causing the student to move backwards.
5. You then approached the student while he was using his mobile phone.
6. You pushed the student on his shoulder which caused him to move backwards into a desk.
7. The degree of physical force you used was not reasonable or necessary to manage the student.”

2         For each breach Mr Mattin was reprimanded and fined one day’s pay. The applicant referred the matter to the Western Australian Industrial Relations Commission by means of an application for a conference under section 44 Industrial Relations Act 1979.

3         The matter did not settle at the conference and, subsequent to it, the parties provided an agreed document to assist me in the preparation of the memorandum required by regulation 31 Industrial Relations Commission Regulations 2005.

4         I drew up a memorandum based on the document provided by the parties and accordingly the matter referred to me was whether, in respect of each breach, the respondent’s decision to reprimand and fine Mr Mattin was fair and reasonable in the circumstances.

5         In answering the above question, the memorandum posed the following sub-questions which I set out in full with new numbering:

    “(1) whether the respondent made findings that were reasonably open to her based on the material that was before her – namely, that Mr Mattin had committed two breaches of discipline contrary to s 80(c) of the Public Sector Management Act 1994 (WA) in that:

(a)    on 30 March 2017 at Waroona District High School he committed an act of misconduct by using a degree of physical force that was not reasonable or necessary to manage a student (Allegation 1); and

(b)    on 30 March 2017 at Waroona District High School he committed an act of misconduct by using a degree of physical force that was not reasonable or necessary to manage a student (Allegation 2).

and

(2)    whether, in all of the circumstances, the penalty imposed was proportionate?

(3)    In answering Question 1 (a), the following sub-questions are also referred to the Commission for hearing and determination:

(a)    Whether the respondent ought to have found that Mr Mattin's conduct was allowed by virtue of Regulation 38 of the School Education Regulations 2000 (WA)?

and

(b)   Whether it was reasonably open to the respondent to have regard to the findings in the Investigation Report (D17/0357912) authored by the Senior Investigator?”

6         As appears clear from the above, the nature of the substantive challenge to the respondent’s decisions is that it was not reasonably open for the respondent to make the findings she did on the material before her.

7         Also clear is that the applicant says that the respondent ought to have found Mr Mattin’s uses of force were reasonable to achieve one of the purposes in regulation 38 School Education Regulations 2000.

8         There is also a challenge to the respondent having regard to “the findings in the Investigation Report authored by the Senior Investigator.”

9         Consistent with the above I was provided with all of the material that was before the respondent. I was also provided with written submissions from each party going to the questions raised by the memorandum of matters.

10      The parties, by agreement, have not sought there to be a “hearing de novo”, that is a “hearing of the proceedings all over again.” The parties have also not sought to supplement the record by adducing further evidence.

11      The parties have sought to have the matter dealt with by me “on the papers.”

12      Before I signed the memorandum of matters and agreed to hear the matter on the papers I had to satisfy myself that “the procedure to be adopted [would] enable full and complete justice to be done.” (see Ex Parte Hill, Director of WA Prisons Department v Ormsby No 1987 of 1985 as per Burt CJ at [11].)

13      In my view, if the applicant’s challenge is to the reasonableness of the respondent’s decisions on the material before her, and neither the applicant nor the respondent seek to adduce further evidence to explain or amplify or clarify that material, then it cannot be said that “full and complete justice” cannot be done by confining myself to that question and following a procedure which is consistent with best answering it, that is to consider the material before the respondent, and the submissions of the parties, and decide whether the respondent acted reasonably.

14      I find that the respondent did not act reasonably for the following reasons.

15      The allegations put to Mr Mattin in the letter dated 29 May 2017 quoted in [1] herein, both allege that “the degree of physical force you used was not reasonable or necessary to manage [the student involved].”

16      Wherever the concept of reasonableness operates in the law what is reasonable is determined and then the question of whether someone’s acts or omissions culpably depart from that standard is decided.

17      Reasonableness is a comparative standard and to operate as such a standard there is a need for alternatives to what was done or not done to be considered.

18      Reasonableness is, of course, to be determined objectively and, when applied to a teacher, that objective enquiry must take into account the skills and level of responsibility that a teacher possesses. That is, the question is what the “reasonable teacher” would do or not do.

19      Accordingly, in my view, it is crucial, in deciding whether a teacher has acted unreasonably in using force, for the record to reflect that the respondent considered and decided what the reasonable teacher would have done and to articulate why the conduct of the teacher in question departed from that standard to a culpable degree. It is also necessary to give the teacher the opportunity to comment on those considerations.

20      In this case the uses of force that brought Mr Mattin undone were found by the respondent to be, so far as discipline or control goes, “the wrong options.” There was no suggestion that the force was a completely arbitrary and outrageous use of violence. In my view, it is vital that the process that results in such a finding involve detailed consideration of what were the right options. It is also vital that consideration be obvious when reading the material before the respondent and that the teacher have a chance to comment.

21      I find such consideration and opportunity to be substantially absent here.

22      In each case I have read the material before the respondent looking for articulation of what would have been reasonable and the ways in which Mr Mattin’s conduct departed from that standard. I looked also for Mr Mattin having had the opportunity to comment on these matters. I have done so with the concept that reasonableness is a comparative standard being at the front of my mind.

23      Despite the comprehensive nature of the investigation conducted and the wealth of paperwork produced I do not find a cogent and evidence-based assessment of the reasonableness of Mr Mattin’s uses of force, taking into account all of the circumstances. I do not find clear identification of exactly how Mr Mattin went wrong against a transparent and clear consideration of the alternatives that a reasonable teacher would have used.

24      Before I commence my consideration of the breaches I emphasise that I have looked at the allegations as cast by the letter dated 29 May 2017 and have accepted that the respondent found as facts the matters particularised in those allegations.

25      I note that in some of the paperwork before me it is imagined that it is open to talk about allegation one in terms of Mr Mattin pushing the student in the chest after he had left the room and was attempting re-entry, or that Mr Mattin had pushed the student in the chest when he attempted to leave the room to get a drink, rather than when he attempted to leave the room to obtain his recess food. Such imaginings are not open. The respondent can only have been dealing with the facts as alleged against Mr Mattin and her findings of fact, if she found the allegations proven, must line up, and are assumed by me to line up, entirely with the facts alleged. A different situation may have fairly developed at a hearing de novo but no such hearing was conducted here.

The First Breach of Discipline

26      The alleged facts were that Mr Mattin was supervising a student in the “reflection room” and that Mr Mattin “stood in the doorway and pushed [the student] in his chest when he attempted to leave the room to obtain his recess food.”

27      I note that employees at the school called the room the “isolation” room as at the time of the incident and that the more palatable description of the “reflection” room seems to have been introduced later, and perhaps following guidance from higher levels within the Department of Education.

28      The surrounding circumstances, as the materials before the respondent would have shown relatively uncontroversially, were that the student had been sent to the “reflection” room because of misbehaviour in his regular class and that the idea of the “reflection” room was to give misbehaving children a supervised environment in which to settle down and return to good behaviour. That is, being sent to the “reflection” room was an escalation in the management of a student’s behaviour.

29      At recess the students in the reflection room were invited by Mr Mattin to go and fetch their snacks from their bags. However, the student in question volunteered that his snacks were in his sister’s bag. The student’s sister was in the primary school next to the high school. High school students needed permission to go to the primary school, against the background of a general rule that it was not allowed.

30      Mr Mattin refused the student permission to go to the primary school.

31      It appears, and here we move from uncontroversial to controversial factual matters, that the investigator came to the conclusion, and the respondent accepted, that after Mr Mattin had refused the student permission to leave the room for the purpose of going to the primary school, the student attempted to leave the room anyway and Mr Mattin, who was standing at the door with the clear intention of blocking passage through the door unless he permitted it, placed his hands on the student’s chest and pushed him backwards.

32      Mr Mattin denied the contact but the respondent found it occurred.

33      The situation then was that Mr Mattin had made it clear to the student, who had been sent to the “reflection” room due to misbehaviour in his regular classroom, that he was not to leave the room for his intended purpose and that Mr Mattin was standing at the door, signalling that it was not to occur. The student then attempted to leave by advancing upon Mr Mattin and Mr Mattin stopped his advance by pushing him back.

34      To assess the reasonableness of Mr Mattin’s conduct the alternatives open to him, that is the alternatives a reasonable teacher would have used, must be considered and stated by the respondent and Mr Mattin must have an opportunity to comment upon them. This is the only way in which the reasonableness of what Mr Mattin did can be fairly tested and assessed.

35      I turn then to the material before the respondent in this regard.

36      At [3.12] of the investigator’s report the following appears:

“It is clear the relationship between Mr Mattin and the student was troubled, as is evidenced by the action plan which was put in place in the weeks prior to this incident. Ms Garwood gave evidence that she advised Mr Mattin three days prior to the incident that the action plan detailed that Mr Mattin needed to ensure another stipulated staff member was present should he need to deal with the student for behaviour related matters, and instead of Mr Mattin dealing with the student, he was to suggest that the student go to the principal or Ms Garwood. Mr Mattin expressed that whilst he was aware of this plan, he believed he did not have to comply with it as it was written by Ms Garwood who is a lower level than him.”

37      At [3.14] of the investigator’s report the following appears:

“The circumstances of the student attempting to leave the room do not warrant Mr Mattin using his body to block the classroom door and then pushing the student in his chest. While it is clear the student was not complying with Mr Mattin's direction not to leave to get his recess, having consideration to Regulation 38 as stated at 2.137, Mr Mattin's actions were not in proportion to the circumstances. While the student was disrespectful of Mr Mattin's instruction, his behaviour was not so out of order to warrant any physical contact being required.”

38      The action plan was the subject of an exchange during the interview between the investigators and Mr Mattin. 

39      The action plan was attached to the investigation report.

40      Under cover of letter dated 18 September 2017 from the respondent Mr Mattin was provided with a copy of the investigation report.

41      The letter stated that the respondent considered it open to her to form the view that Mr Mattin had committed the breach of discipline. There was no elaboration on how or why this view was “open” beyond reference to the contents of the investigation report.

42      By letter dated 16 October 2017 Mr Mattin replied and submitted relevantly, and in a sentence which is apparently intended to cover all allegations and which abandons the denial that force was used in this incident, that he “used reasonable contact within the scope of the regulation as the child’s behaviour inside and outside of the classroom required them to be reasonably restrained in order to care for them and to maintain/re-establish order”

43      By letter dated 19 October 2017 the respondent wrote to Mr Mattin stating in part:

“Paramount is the requirement to avoid unnecessary physical contact with students and to respect the uniqueness and dignity of students. The community has an expectation that Department of Education employees will behave in an exemplary manner and uphold the values of the Department. To avoid any further allegations of misconduct, I am directing you to avoid the behaviour that resulted in this finding of a breach of discipline.”

44      On 3 November 2017 a briefing note regarding Mr Mattin’s letter of 18 October 2017 went to the respondent. It relevantly said “it would not be considered reasonable in the circumstances of [the student] attempting to walk out of a classroom to his recess or a drink, that Mr Mattin push him in the chest back into the classroom.”

45      I interpose that reference to the possibility the student was attempting to walk out for “a drink” is odd, given this formed no part of the allegation, but nothing turns on this.

46      By letter dated 7 November 2017 the respondent wrote to Mr Mattin stating in part:

“In respect of allegation one, you described that the student was acting in a 'low key' manner and you gave him permission to leave the room to get a drink and you state no physical contact occurred. Neither of these situations would warrant any physical contact being necessary.”

47      The question I consider crucial is whether the material before the respondent allowed her to properly asses the “reasonableness” of Mr Mattin’s actions, being those actions alleged against Mr Mattin which the respondent must necessarily have found to have taken place, and showed that Mr Mattin had an opportunity to address the material relied upon for that assessment.

48      In my view the material does not do this.

49      The facts as found were that the student had volunteered that he was intending to leave the room for a purpose that Mr Mattin made clear was not a legitimate one. It was found that Mr Mattin was blocking the doorway with his body. It was found that the student attempted to leave anyway and in doing so advanced upon Mr Mattin. It was found that Mr Mattin pushed him back with his hands.

50      It is not clear from the materials where exactly Mr Mattin went wrong in those particular circumstances. It is not clear how the use of force was unreasonable.

51      It is suggested at paragraph 3.12 of the investigation report that Mr Mattin had been instructed not to discipline the student and that this was clear from the “action plan”.

52      Having read the action plan, and all the commentary upon it, I am not at all sure what its contents mean, nor how it was meant to apply, either generally or in these particular circumstances. Its provenance, date of operation and enforceability as against a Deputy Principal are not clear to me. In particular I am unable to conclude that it applied to Mr Mattin’s supervision of the “reflection” room in the circumstance that the student was sent to the room while Mr Mattin was in charge of it.

53      In any event, Mr Mattin was not, at the relevant time, dealing with a “behaviour related matter” on the facts as found. He was initially attempting to maintain order by refusing permission to the student to go to the primary school and by placing his body at the door in furtherance of this. Thereafter he was not “disciplining” the student, he was dealing with the student advancing on him with the apparent intention of leaving the reflection room anyway.

54      The investigation report simply says, and the briefing note repeats, that “in the circumstances” the student attempting to leave the room “did not warrant Mr Mattin using his body to block the classroom door and then pushing the student in the chest”, with the investigation report elaborating to the extent that “Mr Mattin’s actions were not in proportion to the circumstances” and that the student’s behaviour was “disrespectful…(but) not so out of order to warrant any physical contact being required.”

55      I do not consider that all of the “circumstances” have been properly considered in the materials before the respondent.

56      In particular it is not made clear what Mr Mattin should have done, which is vital to consideration of the question of reasonableness or proportionality or whether something was “warranted”.

57      Should Mr Mattin have not blocked the door in the first place, allowing free egress? If so why?

58      Should Mr Mattin have said to the student “you can’t go to the primary school but I won’t stop you” and then reported it if the student left? Should he have reported it straightaway to try and prevent it happening or later so that the student could be disciplined? Given that Mr Mattin is the Deputy Principal who exactly should he have reported it to?

59      If standing at the door was not in itself a breach of discipline, then should Mr Mattin have jumped out of the way if the message being sent, that egress is up to me, was not heeded? Was it possible to do this in the time available? Was it relevant in any way that the student being sent to the “reflection” room was already an escalation in management of the student on the day? That is, would a classroom teacher be expected to behave differently to a Deputy Principal in charge of the “reflection” room?

60      These are the kinds of questions which needed to be considered, and commented upon by Mr Mattin, if a fair assessment of reasonableness was to occur.

61      In my view, there was no proper assessment of reasonableness evident on the materials before the respondent.

62      I do not mean to imply by this any criticism of the investigators into this matter. If I were in the shoes of the respondent I would commend the investigators on the performance of their role, that is the gathering of primary evidence.

63      Where the process falls down is that it does not have built into it the need to gather material to inform the matter of assessment of reasonableness.

64      Someone experienced in matters of discipline and order in schools needed to look at the material gathered by investigators and express a view on what could have and should have been done by a reasonable teacher. The teacher facing the allegations then must have an opportunity to comment, if the expert opinion on what should have been done differs from what the teacher did. Only after this would the material before the respondent be a reliable source for arrival at a view that the teacher has acted unreasonably.

65      Such a view could come, of course, from the Director General herself, but need not do so.

66      If it does come from the Director General herself it still needs to be put to the teacher concerned.

67      I should add here that the comment by the applicant in its written submissions that the respondent’s “own teaching experience and knowledge of the role of staff teaching in schools is relevantly more than twenty years out of date”, if it was made to suggest that she would not have the necessary expertise to assess reasonableness in all of the circumstances, and I can only assume that this was the point of the comment, is unwarranted and wrong. The Director General is the head of the Department of Education and it is offensive to suggest she cannot assess the reasonableness of teacher’s actions in all the circumstances simply because she has not been a classroom teacher for some years. She has skills and expertise that include, but which also go far beyond, those of an ordinary classroom teacher or Deputy Principal or Principal. She can, of course, come to conclusions on reasonableness, so long as her reasoning is cogent and well exposed.

68      At the moment the papers reveal that the Director General had before her only the thoughts of the investigator on matters of reasonableness, proportionality and, to use a phrase that appears in the paperwork, “warrant.” This is not enough, unless those thoughts are properly informed and very clearly set out. The exact basis for the thoughts and the necessary clarity are absent from the report.

The Second Breach of Discipline

69      Following on from the events relevant to the first breach of discipline it seems that the student involved in that matter, that is the first breach, did leave the “reflection” room. Another student in the room, who had also been sent there for bad behaviour in his regular classroom, decided he too wanted to leave. His desire to do so did not relate to any particular purpose, or at least none he expressed; he just wanted to leave.

70      The facts as found by the respondent appear to be that Mr Mattin blocked the door. The student tried to get to the door handle and in doing so came close to Mr Mattin who moved his arm, to frustrate his attempt to open the door, and pushed him back with moderate force.

71      The student then sat on a couch in the room and started using his mobile phone, apparently to text his father.

72      Mobile phone use was not allowed in the “reflection” room.

73      Mr Mattin approached the student and held out his hand requesting that the student give him the mobile phone. The student refused. The student, quoting from paragraph 3.26 of the investigation report, “took a step toward Mr Mattin and Mr Mattin then pushed [the student] in his chest.”

74      The investigation report contains these further relevant paragraphs:

 “3.35 It is apparent that the student was trying to exit the classroom and Mr Mattin was attempting to prevent him from leaving. Mr Mattin described that at no time did he feel threatened by the student and that the student was not acting aggressively towards him.

3.36 Having consideration to Regulation 38 as stated at 2.137, it does not appear that the student’s behaviour at the door was so out of order to warrant Mr Mattin taking hold of his arm and then pushing him back in the classroom. The action of pushing the student in his chest to get to remain in the classroom, is not considered reasonable and alternative de-escalation techniques should have been employed by Mr Mattin. While Mr Mattin maintains that the student was 'in his space' this would have been avoided if Mr Mattin stepped aside and allowed the student to exit the room and dealt with his resulting non-compliance at a later time. The level of intervention was not in proportion to the circumstances of the student’s behaviour in attempting to leave the room.

3.37 It is apparent that the student was refusing to give Mr Mattin his mobile phone when Mr Mattin pushed him however this action appears to be disproportionate to the student's behaviour. While Mr Mattin again maintains that the student was in his space, Mr Mattin could have stepped away from the student, but instead he chose to push the student back into a desk as Mr Mattin stated 'the student was winding him up and trying to challenge his authority'. There appears to be no valid reason for Mr Mattin to make any physical contact with the student under these circumstances.

3.38 The evidence supports that Mr Mattin took hold of the student's arm and then pushed him on the chest back into the isolation room at the door and he then pushed the student when the student refused to give Mr Mattin his mobile phone.

3.39 It would appear based on the available evidence that Mr Mattin has used a degree of physical force which was not reasonable or necessary to manage the student.”

75      The allegation letter dated 29 May 2017 alleges that in relation to both uses of force for the second breach the degree used “was not reasonable or necessary to manage [the student].”

76      By letter dated 18 September 2017 the respondent wrote to Mr Mattin telling him that on the basis of the evidence before her, which was basically the investigation report, “it is open to me to form the view that you have committed [the] breach of discipline.”

77      I have already set out Mr Mattin’s relevant comments from his letter of 16 October 2017.

78      By letter dated 19 October 2017 the respondent wrote to Mr Mattin stating in part:

“Paramount is the requirement to avoid unnecessary physical contact with students and to respect the uniqueness and dignity of students. The community has an expectation that Department of Education employees will behave in an exemplary manner and uphold the values of the Department. To avoid any further allegations of misconduct, I am directing you to avoid the behaviour that resulted in this finding of a breach of discipline.”

79      In the briefing note that went to the respondent on 3 November 2017 it was emphasised that in the first incident involving this student the student was not aggressive and that Mr Mattin did not feel threatened and in relation to the second incident it was emphasised that the student’s behaviour was not so out of order to “require him being pushed, particularly when no other de-escalation strategies were employed prior to physical contact being made.”

80      By letter dated 7 November 2017 the respondent wrote to Mr Mattin stating in part:

“I have found there is clear and sufficient evidence, including your own admissions in respect to allegation two; which substantiates that you made physical contact with both students. Your assertion that physical contact was justified and reasonable, is not supported by the evidence of the students and witnesses, nor by your account in respect of allegation two that the student was acting in a non-aggressive manner towards you and that you did not feel threatened by him when you pushed him in the chest on two occasions.”

81      I repeat what I have had to say regarding matters of reasonableness and the need for the respondent to consider a teacher’s actions in the context of the alternatives to decide whether what was done was reasonable or not.

82      Here the first use of force was related to Mr Mattin preventing the student leaving the “reflection” room after Mr Mattin had made it clear to him that he was not allowed to do this. The relevant actions were the bodily blocking of the door and the hold on the arm and push on the student when the student made an attempt to leave despite that bodily presence.

83      It may be that to send the message to a student that he may not leave a room it is unreasonable to stand in front of the exit door. This may be the case even when the teacher is a Deputy Principal in charge of a “reflection” room, which is an escalated behaviour management situation. It may be that, having done so, if a student nonetheless attempts to leave it is no defence to say that the student is “in my personal space”, as Mr Mattin did, because Mr Mattin should never have been at the door. It may be that this teacher on this day in relation to this student should have simply let the student leave the room. It may be that the teacher should have warned the student about the consequences of leaving but not have actually tried to send the message that exit was not allowed by standing at the door.

84      The material before the respondent simply does not tell me what should have happened and why what did happen was, in all of the circumstances, unreasonable. 

85      There is some attempt by the investigation report to put Mr Mattin’s conduct in a relevant context. However, the analysis is far too vague for me to come to a conclusion that it gave the respondent proper information to assess the reasonableness of Mr Mattin’s conduct at the door.

86      The investigation report notes that the student was not being aggressive and that his behaviour at the door was not “so out of order” to give Mr Mattin a warrant to push him and that “alternative de-escalation techniques should have been employed by him.” The investigation report goes on to suggest that Mr Mattin should have allowed the student to leave the room and dealt with the matter at a later time.

87      This is a useful identification of the issues but not a proper assessment of Mr Mattin’s conduct in the context of reasonableness.

88      If Mr Mattin should not have been at the door what should he reasonably have done to try and ensure a student who was supposed to be in the reflection room as a form of behaviour management, having already misbehaved in his regular classroom, was not at large?  Does he need to try an ensure this at all? If a student ignores the physical message implied by the blocking of a door what are the “alternative de-escalation techniques” that the investigation report says ought to have been employed consideration of which, although not articulated, supposedly made Mr Mattin’s actions unreasonable?

89      I note that Mr Mattin did not push the student because he was “out of order” or “disrespectful” but because the student entered into his personal space in an attempt to get out of the room. That is, the contact was related to management and control, not discipline. It is not clear from the materials that this difference was fully appreciated.

90      The investigation report says Mr Mattin should have stepped aside from the door and allowed the student to leave the room. This implies that it was not, after all, inappropriate for Mr Mattin to stand at the door. The report says expressly, however, that once the student tried to get out Mr Mattin should have “stepped aside.” Was there truly time for this or was that option overtaken by the student’s entry into the teacher’s personal space? Was it wrong to deflect a first attempt to leave the room by moderate force with the teacher being mindful that if matters escalated it would be the lesser of the evils available to allow the student to leave the room? The material does not ask nor attempt to answer these relevant questions.

91      I note that ultimately the matter was resolved by the student being released with the knowledge and pursuant to the approval of his mother, something that would have been unlikely to have occurred if the student was at large outside the “reflection” room. Does this make a difference? 

92      In my view the investigation report contains what I might colloquially refer to as “conversation starters” rather than an analysis of reasonableness.

93      In relation to the second use of force on this student it is clear that it did not relate to any attempt by Mr Mattin to take away the student’s mobile phone. The investigation report at paragraph 3.37 says that “it is apparent that the student was refusing to give Mr Mattin his mobile phone when Mr Mattin pushed him however this action appears to be disproportionate to the student’s behaviour.” The refusal to hand over the phone and the contact were not related. Mr Mattin did not push the student “when [the student] refused to give [him] his mobile phone.” The push related to the student moving forward and into what Mr Mattin described as his personal space.

94      A full analysis of the reasonableness of that action in all of the circumstances was not attempted by the investigation report or anywhere else in the material that I can see.

95      The comments I have made differ in their thrust depending on what particular matter is being addressed but they reveal, I hope, an overall thrust that the materials lack a cogent, evidence-based assessment of reasonableness taking into account all of the circumstances with those circumstances including detailed identification and consideration of alternatives and why those alternatives were reasonable and the actions of Mr Mattin unreasonable.

96      I note reference to the Department of Education’s Code of Conduct and the Department of Education’s “Physical Contact with Students” policy in the respondent’s written submissions.

97      The investigator says at paragraph 2.136 of the investigation report that she has examined the Code of Conduct but as the Code of Conduct was not referenced in either of the two breaches of discipline with which this decision deals it may be put to one side.

98      I can find no reference to the “Physical Contact with Students” policy in the materials that would have been before the respondent so I put it to one side also. I must confine myself to the materials before the respondent. It is, of course, entirely possible, indeed highly likely, that the respondent is mindful of the policy when deciding matters but, unless her knowledge appears in the papers, and Mr Mattin was given an opportunity to comment upon it, I can hardly have regard to what I imagine that knowledge would be.

99      I note with interest paragraphs 20, 27 and 28 of the respondent’s written submissions. In these paragraphs the respondent sets out what Mr Mattin, in the circumstances, ought to have done in relation to each of the three incidents I have dealt with.

100   Unfortunately, I do not find a similar analysis for any of the incidents in the materials before the Director General. I certainly do not find in the materials any evidence going to exactly why Mr Mattin should have, as a reasonable teacher, done, in all of the circumstances, the things now suggested by the respondent.

101   The applicant’s application will succeed and the findings of a breach of discipline are quashed. It follows that the penalties are also quashed.

102   My answers to the questions in the memorandum, as I have renumbered them at [5] herein, are as follows: