2023 WAIRC 00287
DISPUTE RE TERMINATION OF EMPLOYMENT OF UNION MEMBER
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00287

CORAM
: COMMISSIONER C TSANG

HEARD
:
WEDNESDAY, 14 SEPTEMBER 2022, THURSDAY, 15 SEPTEMBER 2022

DELIVERED : MONDAY, 22 MAY 2023

FILE NO. : CR 33 OF 2021

BETWEEN
:
THE STATE SCHOOL TEACHERS’ UNION OF W.A. (INC.)
Applicant

AND

DIRECTOR GENERAL, DEPARTMENT OF EDUCATION
Respondent

CatchWords : Industrial Law (WA) - Unfair dismissal - Inadequate supervision of student resulting in injury - Physical contact with student not justifiable by Regulation 38 of the School Education Regulations 2000 (WA) - Procedural fairness - Dismissal not harsh, oppressive or unfair
Legislation : Industrial Relations Act 1979 (WA), s 44
Public Sector Management Act 1994 (WA), s 7, s 8, s 9, s 21, s 22A, s80(c), s 80(d), s 81
School Education Act 1999 (WA), s 64(1)(a), s 64(1)(b), s 64(1)(e)
School Educaton Regulations 2000 (WA), r 38(c)(i)
Result : Application dismissed
REPRESENTATION:


APPLICANT : MR D RAFFERTY (OF COUNSEL)
RESPONDENT : MR R ANDRETICH (OF COUNSEL)

Cases referred to in reasons:
Ash v Chabad Institutions of Victoria Limited [2020] FWC 1744
Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824
Balfour v Attorney-General [1991] 1 NZLR 519
Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224
Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635
Connor v Grundy Television Pty Ltd [2005] VSC 466
Director General, Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Greyhound Racing NSW v Cessnock & District Agricultural Association Inc [2006] NSWCA 333
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
James v St Thomas Aquinas College Limited T/A St Thomas Aquinas College [2016] FWC 6360
Landwehr v Director General, Department of Education [2017] WAIRC 00233; (2017) 97 WAIG 542
Landwehr v Director General, Department of Education [2017] WAIRC 00866; (2017) 97 WAIG 1617
Landwehr v Director General, Department of Education [2018] WAIRC 00105; (2018) 98 WAIG 325
Landwehr v Director General, Department of Education [2018] WAIRC 00320; (2018) 98 WAIG 327
McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 251 ALR 558
Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203
Minister for Immigration and Multicultural Affairs v Legeng (2001) 205 CLR 507
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Parnell v The Roman Catholic Archbishop of Perth [2021] WAIRC 00102; (2021) 101 WAIG 186
Puccio v Catholic Education Office (1996) 68 IR 407
Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Sangwin v Imogen Pty Ltd [1996] IRCA 100
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 State School Teachers’ Union of WA (Incorporated) v The Director General, Department of Education [2012] WAIRC 00127; (2012) 92 WAIG 362
Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
Webb v The Queen (1994) 181 CLR 41
West Australian Branch, Australasian Meat Industry Employees’ Union v Geraldton Meat Exports Pty Ltd [2001] WAIRC 03573; (2001) 81 WAIG 2523
Reasons for Decision
The application
1 This is an application to determine whether the respondent’s dismissal of the applicant’s (Union’s) member Barry Landwehr (Mr Landwehr) on 7 October 2021 was harsh, oppressive or unfair.
2 If Mr Landwehr’s dismissal was unfair, the Commission is asked to determine whether any of the following orders should issue:
(a) The respondent to reinstate Mr Landwehr to his former position on conditions at least as favourable as the conditions on which he was employed immediately before the dismissal (Order 1).
(b) Further and in the alternative, the respondent to re-employ Mr Landwehr in another available and suitable position (Order 2).
(c) In addition to Order 1 or Order 2:
(i) the respondent to maintain continuity of Mr Landwehr’s employment;
(ii) the respondent to pay to Mr Landwehr the remuneration lost or likely to have been lost because of the dismissal, less any income earned post-dismissal.
(d) Further and in the alternative, the respondent to pay to Mr Landwehr an amount of compensation for loss or injury caused by the dismissal, less any income earned postdismissal.
Framework
3 The Union’s application is made under s 44 of the Industrial Relations Act 1979 (WA).
4 The Union submits the matter is to be determined in accordance with the principles in Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 (DrakeBrockman) [46][67] with the ultimate question being whether the right of the respondent to dismiss has been exercised so harshly or oppressively as to amount to an abuse of that right.
5 As the matter involves allegations of misconduct, the Union accepts the Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 (Bi-Lo) test applies.
6 Under Bi-Lo actual guilt of the misconduct alleged need not be proven by the respondent: DrakeBrockman [66]. The evidentiary onus entails the respondent demonstrating reasonable grounds for belief, based on available information at the time, after a proper inquiry, that Mr Landwehr committed the alleged misconduct. Further, that considering any mitigating circumstances related to the misconduct or Mr Landwehr’s work record, the misconduct justified dismissal: DrakeBrockman [66].
7 The parties agreed the matter was to be heard and determined based on the evidence in the statement of agreed facts and documents, as well as the parties’ written and oral submissions.
8 Therefore, I must decide whether on the evidence, following a proper inquiry, the respondent had reasonable grounds for holding a genuine belief that the misconduct occurred, and whether the dismissal was harsh, oppressive or unfair in the circumstances: Drake-Brockman [69].
9 Further, whether Mr Landwehr received ‘less than a fair deal’ and whether there has been ‘a fair go all around’: Miles v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 (Undercliffe).
10 In these reasons for decision, the names of students are replaced by their initials.
Background
11 The parties filed a statement of agreed facts which states:
(a) Mr Landwehr was employed as a Design & Technology Teacher (D&T Teacher).
(b) From July 2006 to 10 May 2016, Mr Landwehr taught at Harvey Agricultural College.
(c) On 10 May 2016, Mr Landwehr was summarily dismissed for making physical contact with a student on 13 August 2015 in response to a compressed air hose nozzle being directed at his buttocks and releasing compressed air (compressed air incident).
(d) The compressed air incident was investigated by a team of investigators from the respondent’s Standards and Integrity Directorate (SID), which included Debbie Pelham, Senior Investigator, SID (Ms Pelham).
(e) Mr Landwehr commenced unfair dismissal proceedings in the Commission. By a decision delivered on 29 May 2018, the dismissal was deemed unfair and the Commission ordered Mr Landwehr’s reinstatement, his service deemed continuous, and payment for lost remuneration adjusted for income earned since the dismissal: Landwehr v Director General, Department of Education [2017] WAIRC 00233; (2017) 97 WAIG 542 (Landwehr No. 1), Landwehr v Director General, Department of Education [2017] WAIRC 00866; (2017) 97 WAIG 1617 (Landwehr No. 2), Landwehr v Director General, Department of Education [2018] WAIRC 00105; (2018) 98 WAIG 325, Landwehr v Director General, Department of Education [2018] WAIRC 00320; (2018) 98 WAIG 327 (Landwehr No. 4).
(f) In June 2018, Mr Landwehr was reinstated. From June 2018 to December 2019, he taught at Belmont City College and Roleystone Community College.
(g) From 30 January 2020 until his dismissal on 7 October 2021, Mr Landwehr taught at Ellenbrook Secondary College (School).
(h) On 7 October 2021, Mr Landwehr was summarily dismissed for serious misconduct under clause 11(4) of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (Award) for:
(i) negligence or carelessness amounting to a breach of discipline pursuant to s 80(d) of the Public Sector Management Act 1994 (WA) (PSM Act) for an incident on 24 June 2020 involving a Year 10 student injuring his thumb and requiring reconstructive surgery (Allegation 1); and
(ii) misconduct amounting to a breach of discipline pursuant to s 80(c) of the PSM Act for an incident on 25 September 2020 involving physical contact with a Year 11 student in breach of Regulation 38 of the School Education Regulations 2000 (WA) (Regulation 38) (Allegation 3).
(i) The following instruments and policies applied to Mr Landwehr’s employment:
(i) ‘Code of Conduct 2011’ (Code of Conduct).
(ii) ‘Duty of Care for Public School Students Policy’ (Policy).
(iii) ‘Physical Contact with Students’ Guidelines (Guidelines).
(iv) Regulation 38.
(j) The following instruments and policies applied to the respondent:
(i) ‘Discipline Standard (Public Sector Standards in Human Resource Management)’ (Discipline Standard).
(ii) Commissioner’s Instruction 3 ‘Discipline – General’ (Commissioner’s Instruction).
(iii) ‘A Guide to the Discipline Process – Public Sector Management Act 1994’.
Union’s contentions
12 The Union contends that:
(a) Mr Landwehr was not guilty of Allegation 1, and even if found guilty, a single act of negligence or carelessness does not justify dismissal in the circumstances;
(b) Mr Landwehr was not guilty of Allegation 3, and even if found guilty, the act of misconduct does not justify dismissal in the circumstances; and
(c) the investigation and dismissal were affected by perceived bias, due to Ms Pelham’s involvement and conduct, rendering the investigation and dismissal void for noncompliance with the Commissioner’s Instruction and s 22A of the PSM Act.
Allegation 1
13 By letter dated 22 February 2021, Nick Wells, A/Director, SID (Mr Wells), wrote to Mr Landwehr notifying him of a number of allegations of misconduct (Allegations Letter).
14 The Allegations Letter set out Allegation 1 as follows:
On 24 June 2020, at Ellenbrook Secondary College, you were negligent or careless in the performance of your functions, amounting to a breach of discipline pursuant to section 80(d) of the Public Sector Management Act 1994.
Particulars
a. You were employed as a teacher at Ellenbrook Secondary College.
b. On 24 June 2020, you showed [Student SS], Year 10 Student, Ellenbrook Secondary College, how to measure and cut wood using a cut off saw (wood) during class and then left him unsupervised.
c. [Student SS] used the cut off saw to cut a piece of wood, however, he had not removed a metal ruler from the wood.
d. [Student SS’s] thumb was injured by the broken ruler/saw and his thumb required reconstructive surgery, including removal of a bone fragment.
e. As per the Ellenbrook Secondary College, ‘Power Tool & Machine Usage 2019’ document (attached), you were required to supervise [Student SS] while he used the cut off saw (wood), however, you failed to do so.
f. Had you appropriately supervised [Student SS], the incident could have been avoided.
g. Your actions were not in accordance with the Department of Education’s Duty of Care for Public School Students policy which states in part:
1. POLICY STATEMENT
All Department of Education (the Department) employees have a duty of care to protect students from risk of harm that can reasonably be foreseen when students are involved in school activities, whether on or off the Department site.
h. Your actions were negligent or careless and were not compliant with the School Education Act 1999, which states in part:
64. Teacher’s functions
(1) The functions of a teacher in a government school are –
(a) to foster and facilitate learning in students; and
(b) to give competent instruction to students in accordance with –
(i) the curriculum; and
(ii) standards determined by the chief executive officer; and
(iii) the school’s plan referred to in section 63(1)(e), and to undertake the preparation necessary to do so.
15 The Allegations Letter notifies Mr Landwehr that Allegation 1 would be treated as a disciplinary matter pursuant to s 81 of the PSM Act, and that Ms Pelham had been appointed to investigate the matter.
16 The Allegations Letter invites Mr Landwehr to respond in writing, or to contact Ms Pelham to respond in person.
17 On 15 March 2021, Mr Landwehr responds to the Allegations Letter in writing (First Response) on the following terms:
(a) At the start of the semester, he gave the students two periods of induction which covered safely operating machinery, during which he stated that a student needs to seek his permission to use a machine before doing so.
(b) He regularly uses his life experience as a second year apprentice where he crushed his hand, to encourage students to ask for help.
(c) Before students use a new tool, he always gives them a demonstration on how to use it. If a redemonstration is required, this is followed up, and in following lessons he goes over the tool usage procedures.
(d) He gave the class a demonstration on how to use the compound mitre saw at the start of the year and explained how to use it as a drop saw. He explained how to use the machine in several more lessons.
(e) The student had used the machine previously.
(f) He demonstrated how to use the machine for the step ladder project, by:
(i) measuring on a long piece with a tape measure on the bench;
(ii) taking the material to the saw;
(iii) cutting the material to length;
(iv) using the cut piece as a template for the second piece to be cut; and
(v) cutting the second piece.
(g) In relation to the student, he:
(i) helped the student cut the first piece;
(ii) supervised the student cutting the second piece;
(iii) told the student to stop and turned around to help another student;
(iv) heard a bang, turned around and saw the student holding his finger;
(v) wrapped the student’s finger in a paper towel and sent the student to the first aid officer;
(vi) afterwards, found a piece of material left on the saw only cut halfway through, and a metal rule cut in half on an angle with sharp edges under the table; and
(vii) reported the incident to Isabelle Cox and Ruth Botica, completed the Accident/Incident Report for Students and Visitors and followed up with the School Officer, Ms Cox to see how the student was going and continued to do so for several days.
(h) He denies the student was left unsupervised, and states the student failed to follow his instruction ‘and without my knowledge continued working.’
(i) He denies having seen, or knowing the existence of, the Power tool and machine usage 2019 document. ‘Had it been made aware to me, I would have followed the document.’
(j) States that he was never given an induction or informed about the requirements surrounding machinery and the workshops despite his numerous questions regarding safety procedures at the workshop.
(k) States:
I am deeply distressed by this incident and that a student under my care had been injured. I believe I did my best, based on the experience that I have and the workload of supervising other students at the time. In hindsight, I would make sure that all machines were switched off and students were no where near them prior to supervising other students. I do not believe I failed in my duty of care of students.
18 By letter dated about 6 August 2021, the respondent notifies Mr Landwehr that the investigation has been completed, Allegation 1 has been substantiated, and the proposed action is dismissal (Proposed Outcome Letter).
19 The Proposed Outcome Letter states:
To assist you in preparing any response you might wish to make, and to aid your understanding of the investigation, the report is now supplied to you. You should not make use of the report for any purpose that is not directly related to the proper conduct of the investigation or any subsequent appeal process.
…
In your response you deny that you acted contrary to Departmental policies and maintain that there were circumstances to mitigate your actions, however, the evidence provided by the witnesses is consistent and supports that you acted as alleged. You are required to perform your functions as a teacher and ensure student safety when students use machinery, as described in allegation 1.
…
In relation to allegation 1, the incident with [Student SS] could have been avoided had you followed the Ellenbrook Secondary College, ‘Power Tool & Machine Usage 2019’ document and supervised students using the saw. Furthermore, the investigation identified that you did not provide competent instruction to [Student SS] on how to cut the wood and you left the metal ruler at the saw, these actions leading to [Student SS] being injured.
20 The Proposed Outcome Letter invites Mr Landwehr to respond in writing, or to contact Ms Pelham to respond in person.
21 By letter dated about 20 August 2021, Mr Landwehr responds to the Proposed Outcome Letter (Second Response) as follows:
Terminating my employment is I believe unfair. This was a horrible accident that occurred and I am remorseful to this day. When this accident did occur, I did not know that [Student SS] had the metal rule anywhere near the wood and I maintain that [Student SS] cut the wood whilst I was providing supervision to another student in the room. I clearly told [Student SS] to stop and he obviously did not.
Regardless, this action occurred whilst I was in charge of the workshop, and I am ultimately responsible for failing to prevent this accident from occurring. I should have implemented a different approach to make sure that [Student SS] was adequately supervised and away from the machine prior to leaving to attend to other students. I have over 15 years of experience in teaching, and this is the first major accident that has occurred under my supervision. After the incident occurred, I immediately made sure [Student SS] was looked after and followed up with him after the incident occurred. I have undertaken significant reflection after this incident, and I believe it has made me a better teacher. I have always been very safety conscious especially since my accident when I was a second year apprentice. (Crushed left small finger due to a semi trailer axle falling out of a metal lathe onto it). Accidents are always going to happen, though trying to reduce the seriousness and number is all that we should be aiming for. When the school this year wanted a Safety Officer I applied and won the position because I believe this is an important position and is very closely linked to the dangers of teaching VET and D&T. I ask that the punishment of termination is withdrawn in this instance.
22 By letter dated about 7 October  2021, the respondent notifies Mr Landwehr of her finding that he has committed a breach of discipline in relation to Allegation 1, she no longer has trust or confidence in him to perform his teaching duties to the required standard, his actions are inconsistent with the Department of Education’s (Department’s) values and standards, and accordingly he will be summarily dismissed for serious misconduct pursuant to clause 11(4) of the Award (Dismissal Letter).
23 The Dismissal Letter states:
I have considered your response dated 20 August 2021, however, I maintain my findings and that these actions are appropriate and relative to the findings.
In your submission, you accepted some responsibility in relation to allegation 1, where [Student SS’s] finger was injured; however, you have failed to demonstrate an acknowledgement or realisation that it was your negligent and/or careless actions that enabled the incident to occur.
You were required to perform your functions as a teacher and ensure student safety when using machinery. You owed a duty of care to protect students from harm that could be reasonably foreseen.
Union’s contentions
24 The parties agree that a compound mitre saw and a cut off saw are different pieces of machinery, and the student was using a compound mitre saw.
25 The Union contends that the 2019 Power Tool & Machine Usage Document (2019 Machine Usage Chart) applies to a cut off saw (and required direct teacher supervision of a Year 10 student using a cut off saw) but does not mention a compound mitre saw. Therefore, the applicable supervision and usage requirements correspond to those at Mr Landwehr’s prior schools and the generally accepted Department supervision and usage standards, which stipulate that a Year 10 student may use a compound mitre saw without teacher supervision.
26 As such, the Union contends that Allegation 1, and the manner in which the investigation was conducted in respect of Allegation 1, is misconceived. Further, there could be no proper basis for finding that permitting a Year 10 student to use the compound mitre saw unsupervised was negligent or careless. Instead, the incident was an accident resulting from the student using the saw, and using the ruler at the saw, despite being told not to.
27 The Union contends that in any event, dismissal for Allegation 1 is unjustifiable considering:
(a) The School’s introduction of the 2020 Power Tool & Machine Usage Document (2020 Machine Usage Chart) applicable to compound mitre saws, and the placement of stickers on machinery indicating usage and supervision requirements, which would not be necessary if the cause of the incident was Mr Landwehr’s negligence or carelessness.
(b) The Department’s review and consultation process with all public high schools about machinery and power tool supervision and usage requirements, which included the common understanding that a Year 10 student could use a compound mitre saw unsupervised. This process led to all public high schools being directed to conduct observations and assessments of all D&T students using machinery in accordance with Safe Work Procedures and achieving a score of 100% on a safety questionnaire, which would not be required if Mr Landwehr’s negligence or carelessness caused the incident.
(c) Mr Landwehr’s continuation of teaching at the School for almost a year and a half without further incident.
Respondent’s contentions
28 The respondent contends that there is no material difference between a cut off saw and a compound mitre saw, and that Mr Landwehr was, or should have been, aware of the 2019 Machine Usage Chart.
29 Further, even without the existence of the 2019 Machine Usage Chart, it was reasonable to expect Mr Landwehr to know to supervise Year 10 students when using a radial power saw.
30 The respondent contends that there was sufficient evidence to support the finding that Mr Landwehr did not properly supervise the student.
31 Further, Mr Landwehr’s statement in the Second Response, claiming he told the student ‘to stop and he obviously did not’ is implausible given his assertion that he was unaware of the requirement for supervised use of the saw.
The evidence
32 Student SS was interviewed by Ms Pelham and Amanda Cann, Senior Investigator, SID (Ms Cann) on 21 October 2020. He stated:
(a) His left thumb was injured when he was using the mitre saw. The doctor said the blade probably moved a few inches inside of his thumb.
(b) On the day, the mitre saw and the bandsaw were in use.
(c) He was to use the mitre saw to cut a piece of wood, at an angle, for the second leg for a step stool. He had used the saw to cut wood at an angle two times prior to the incident.
(d) Mr Landwehr showed him how to use the mitre saw to cut the wood for the first leg of the step stool.
(e) Mr Landwehr said to him, ‘You can take the ruler and the wood to the mitre saw’. Mr Landwehr said, ‘You measure the wood first and then you cut it.’
(f) Mr Landwehr showed him how to measure the wood with the ruler at the saw, by putting the ruler on the wood, making sure it is flush with the end, and then using a pencil to mark 180 mm. Mr Landwehr asked him to press the buttons on the saw that set the blade spinning, which he did, whilst Mr Landwehr cut the wood.
(g) Mr Landwehr told him he could continue cutting some more wood.
(h) To make the second cut, he understood he was to get the ruler, mark 180 with a pencil, put the ruler down, press the round button to freely move the blade and make sure it is not touching the wood before it starts, then bring the blade to the wood and cut the wood.
(i) For both the first and second cuts, Student AB was holding one end of each piece of wood.
(j) At the time of the second cut, Mr Landwehr was at the back of the room helping some other students.
(k) Two seconds into the cutting, he saw the ruler and tried to grab it, the ruler got stuck in the blade and made a loud bang, the machine jumped, and the blade stopped.
(l) The ruler snapped in half, with one end ending up 10 m behind the glass, and the other half ‘was just there on the side.’
(m) He started screaming, because one bit of his nail was hanging off with his skin attached. He went to the sink, about 5 m from the saw, to get paper towel to cover his thumb.
(n) Mr Landwehr went to inspect the machine, then came to see him, and asked, ‘What have you done?’, and got more paper towels. He asked Mr Landwehr if he could go to the nurse and Mr Landwehr said he could.
(o) He asked Student AB to accompany him to the nurse.
(p) The nurse bandaged his thumb and telephoned his mum, who took him to the hospital where he had surgery on his thumb.
(q) He was not required to inform Mr Landwehr prior to using the saw.
(r) When the first few people use the saw Mr Landwehr stands by them but not when the second part of the class use the saw.
(s) He used the mitre saw 10 times prior to the incident, seven times without supervision.
(t) He thinks his injury could have been prevented if he was more careful with the ruler. He thinks it would have made a difference if Mr Landwehr was supervising him at the time, because Mr Landwehr would have seen the ruler.
33 Student AB was interviewed by Ms Pelham and Ms Cann on 21 October 2020. He stated:
(a) He was Student SS’s partner. They were up to the last piece of wood that needed cutting. This was the fourth piece. He was holding the wood steady for Student SS to cut it.
(b) Mr Landwehr came over once during the cutting and told Student SS to put his safety glasses on.
(c) Mr Landwehr told Student SS to not have the ruler in the way before cutting.
(d) He understands the ruler was meant to be out of the way, but Student SS had the ruler in front of the wood, and when he went to cut the wood, he cut the ruler as well. There was a bang when Student SS cut his nail. He thinks the bang was from the metal from the ruler.
(e) Either Mr Landwehr came over to Student SS, or Student SS went over to Mr Landwehr.
(f) Shortly after, he accompanied Student SS to the service area to have his thumb checked, and left Student SS there.
(g) He thought it was a bandsaw. He has used the bandsaw before without supervision.
(h) He has used the bandsaw when Mr Landwehr has been there. Mr Landwehr ‘just helped me out doing it.’
(i) Student SS was supposed to measure first, then take the wood over to the machine to cut it. Student SS measured one piece of wood at the machine and cut it. Then measured another piece of wood at the machine, then cut it.
(j) He does not think they are allowed to use the machines on their own, but he did, around 70-80% of the time.
34 Student BD was interviewed by Ms Pelham and Mattison Staples, Principal Investigator, SID (Mr Staples) on 31 March 2021. He stated:
(a) There is one drop saw in the room, which Student SS was using when he was injured.
(b) He heard a loud bang, saw Student SS move away from the saw, saw Student SS’s blood dripping on the ground, and saw Mr Landwehr come over. Mr Landwehr was about 6-7 m from Student SS at the time.
(c) After the event, he saw a 30 cm metal ruler chopped in half.
(d) He was sitting at one of the two tables closest to the drop saw, about 3-4 m away.
(e) He had used the drop saw once that day, about 5-10 minutes prior to Student SS using it. At least three other students had used the drop saw that day. ‘Everyone knew they were allowed to just go to it, use it, cut it, just go back.’
(f) He had used the drop saw 4-5 times previously. The first time, Mr Landwehr was watching him use it. The other times, he used it by himself.
(g) Most students would have used the drop saw at least once without supervision.
(h) Earlier in the year, Mr Landwehr had demonstrated to the whole class how to use the drop saw. ‘The first time you used the drop saw, you would tell Mr Landwehr you were about to use it. After that, you do not need to tell Mr Landwehr, and can use it yourself.’
(i) There was no machine in the room where Mr Landwehr said they could only use it under supervision.
(j) About 15-20 minutes after the incident, Mr Landwehr told the class to make sure to not bring rulers to machines. This was not something Mr Landwehr had ever explicitly told them before.
(k) He had previously seen the 2019 Machine Usage Chart on a window but does not recall seeing it in Mr Landwehr’s classroom.
(l) When Student SS returned, Mr Landwehr did not give Student SS detention or any punishment. Mr Landwehr told Student SS to not bring a metal ruler to the machine.
35 Isabelle Cox, School Officer (Ms Cox), was interviewed by Ms Pelham on 4 May 2021. She stated:
(a) She was taking care of first aid with Ruth Botica, when a student presented with a hurt thumb.
(b) At the time, it looked like a bandsaw had cut through the middle of his thumbnail. She bandaged up the thumb, and telephoned the student’s mum, asked the mum to come and take her son to hospital and to bring painkillers as the student was in quite a lot of pain.
(c) Mr Landwehr came to the office later that afternoon and enquired about the welfare of the student.
(d) Mr Landwehr stated that he ‘can’t keep his eye on 20 students at the same time’, he was busy with another student and then the accident happened, ‘one minute he looked away and the next minute it happened.’
(e) Mr Landwehr stated that a metal rule had been used perpendicular to the saw, which then split, and that is what cut the student’s thumb.
36 Ruth Botica, School Officer (Ms Botica), was interviewed by Ms Pelham and Mr Staples on 31 March 2021. She stated:
(a) Student SS arrived in the first aid area with another student. She and Ms Cox dealt with the situation together. The student did not appear to be in a lot of pain, which she puts down to shock. She and Ms Cox stayed with the student the whole time, and Ms Cox taped his hand.
(b) Ms Cox telephoned the parent, said that we thought the student was probably in shock, said that he needs to be taken to the hospital, and thought the parent should bring pain medication (as they cannot issue any pain medication).
(c) She sat with Student SS, who was quite calm, and the parent came within 2030 minutes.
(d) Student SS told her that he was using the saw, he pushed the wood forward, and the wood flung out. He mentioned a ruler.
(e) Student SS was using a drop saw. She has observed Maikel Nielsen’s class, and the students line up, 1 m apart, he gives them the nod, and they proceed to use the saw.
(f) Later in the day, Mr Landwehr came to ask about the student. He made a comment that, ‘You know, he wasn’t supposed to be doing what he did’, which she took to mean that the student used the saw when he was not supposed to.
(g) She knows that Student SS completed the SOP training, which is a handwritten tick list before he can use and operate a machine, because she placed the completed document on his file.
37 Maikel Nielsen, D&T Teacher (Mr Nielsen), was interviewed by Ms Pelham and Mr Staples on 31 March 2021. He stated:
(a) He has been at the School for 10 years.
(b) The incident coincided with the head of OH&S visiting, who informed him there had been a spate of accidents in the first six months across the metro schools, so they were looking at whether that had to do with Coronavirus and the build-up of tensions. At the time, he was talking to OH&S and also WorkSafe who came out.
(c) He is aware of the machine used because the next day, he retrieved the ruler, which was a 1 m ruler, and whilst the School has a few of them, that was the only one in the classroom. The ruler was cut up and a third of it was missing. He showed the two sections of ruler to OH&S.
(d) Sometime after the incident, Mr Landwehr demonstrated to a group of D&T Teachers what happened. Mr Landwehr was at the front of the room and said the student put a steel rule down on the material he was cutting on the drop saw, and that is what caused the kickback.
(e) His process is to do all marking and measuring on the benches, with no metal allowed to go over to the mitre saw.
(f) The mitre saw has a dozen wooden templates that are used, but marking and measuring gets done on the benches. The only metal implements at the mitre saw would be a Gclamp holding a jig.
(g) There is a scope and sequence chart in every classroom, pinned up, usually on the walls or the windows. There’s usually two, and they have been there for as long as he has been there.
(h) The scope and sequence chart lists the types of machinery, and what machines each year group is allowed to use. It is colour coded. The Year 10 students are allowed to use the drop saw or the mitre saw but they have to be supervised.
(i) If it is yellow, it is direct supervision. Next term he has a Year 10 class who are starting a stool, so when they are using the drop saw, he will stand at the machine and have a queue of students, as they are not allowed to use the machine without direct supervision.
(j) If it is green, like the upper school, he only needs to be in line of sight in the room.
(k) He does not accept that a D&T Teacher would not know that a student was meant to be supervised on the mitre saw. The teacher is a professional, paid to know these things, it ‘comes with the territory’; ‘you’re not going to have a brain surgeon rock up to surgery and not know how to operate, it’s just one of those things.’
(l) There are three types of meetings: main staff meetings, area faculty meetings, and contextual meetings with just the D&T Teachers.
(m) The 2019 Machine Usage Chart is the scope and sequence chart, and the cut off saw is a reference to the mitre saw, and for Year 10 students it is supervision yellow, which means a student cannot use the saw without supervision.
38 Shaloni Naik, Acting Head of Learning Area – Technologies, was interviewed by Ms Pelham and Andy Doreen, Senior Investigator, SID on 11 November 2020 and reinterviewed by Ms Pelham and Mr Staples on 31 March 2021. She stated:
(a) She now holds a different role but held the role of Acting Head of Learning Area for Term 1 and Term 2 of 2020.
(b) She heard about the incident with Student SS on the day of the incident, when Mr Landwehr walked into the staff office during recess and said, ‘I’ve had a small accident.’ She followed him as he walked out and asked him what happened. He headed towards the front admin office. Shortly after the bell went, so she went to her classroom.
(c) Every Tuesday afternoon, the whole D&T team have occupational health and safety training, where all the teachers go to the D&T rooms and walk around each machine and utilise certain documents. On the next Tuesday after the incident, she asked Mr Landwehr to model what happened.
(d) Mr Landwehr demonstrated the student having a piece of wood, a thick piece of pine. The student was supposed to pull the saw down to cut the wood. The student had a big metal ruler on the wood. The student pulled the saw down on top of the ruler, the ruler split in half, and one piece of the ruler went flying across the room.
(e) During the re-enactment, Mr Landwehr showed the teachers the ruler, broken in half.
(f) During the re-enactment, Mr Landwehr was asked to stand in the position he was standing at the time of the incident. Mr Landwehr stood on the side of the machine, near the student using it. Mr Landwehr said, ‘I was standing here at the machine.’
(g) During the re-enactment, Mr Landwehr demonstrated on the drop saw. She knows it was a mitre saw because she bought the replacement machine, and she knows it was a drop saw from the reenactment.
(h) The supervision colour codes were in the room, stuck up, on the door. The room where the incident occurred has two doors, and the A3 poster was on both doors.
(i) After the incident, she placed supervision colour coded stickers on all the machines.
(j) Every Wednesday, they held a learning area meeting, where they discussed equipment, safety, best practice and what the teacher in charge may demonstrate. The purpose is to collaborate and share best practice on a regular basis.
(k) During a learning area meeting in Term 1 week 2, 2020, she presented a PowerPoint presentation, which included slide 4, which outlines what was planned for that week’s OSH training. Slide 4 states:
This week we will be going through each workshop and looking at the machine usage chart.
(l) The ‘machine usage chart’ in the slide refers to the 2019 Machine Usage Chart.
(m) The 2019 Machine Usage Chart was discussed at the D&T OSH training sessions, which is something she initiated as the head of department. OSH training is held every Tuesday, for half an hour. All the D&T Teachers attend. The D&T Technician, who fixes the machines in the workshops, also attends. They walk through all the rooms, and the teachers share the best way to teach each tool to the students.
(n) She knows Mr Landwehr was at the meeting because she remembers presenting in the classroom and remembers where he was seated during the presentation.
(o) An A3 colour and laminated copy of the 2019 Machine Usage Chart is on every door.
(p) Mr Landwehr is aware of the 2019 Machine Usage Chart, ‘Because we went through it in the meeting, we’ve gone through it in the learning area meeting, we’ve gone through it in the OSH training meeting, and he’s seen it.’ ‘And it’s on every door.’
(q) Mr Landwehr should have been aware of the 2019 Machine Usage Chart because there’s a machine workshop area where teachers do their wood preparation and students are not allowed to enter. ‘It’s all over the doors anyway. So if you were a teacher and just been employed on your first day, and you’re cutting your wood, you’d be looking at it anyway because, that’s your job.’
(r) At an OSH training session in Term 1 week 2, 2020, Mr Nielsen, the teacher in charge of D&T, referred to the 2019 Machine Usage Chart and explained to the D&T Teachers what the supervision requirements were for each machine.
(s) A version of the 2019 Machine Usage Chart has existed for 7-10 years, since the old head of department created it.
(t) If Mr Landwehr said he was not aware he was required to supervise Student SS in the use of the saw, she would say that is 100% inaccurate.
(u) If Mr Landwehr said he knew he was meant to supervise Student SS, but the student ‘just went and did it anyway’, she would say that is 100% understandable as ‘kids do that.’
Consideration
39 The Investigation Report dated 30 July 2021 runs to 24 pages and attaches Attachments AL (Report). Whilst these proceedings relate to Allegation 1 and Allegation 3, the Report addresses six allegations of breaches of discipline. The Report makes provision for three signatories, Ms Pelham, Paul Milward, Principal Investigator, SID (Mr Milward), and Mr Wells.
40 The statement of agreed facts states that the saw that was involved in Allegation 1 was a compound mitre saw, and a ‘compound mitre saw and a cutoff saw are different kinds of machinery.’ The Union contends that the saw that was used by Student SS at the time is a material and significant matter. However, the Report states:
Note: Throughout this investigation report, unless otherwise stated, the term ‘saw’ refers to a cut off saw (wood)/mitre saw/drop saw, being the one same piece of machinery in Mr Landwehr’s classroom.
41 The Union contends that this statement undermines the entire foundation of Allegation 1.
42 I disagree. The evidence was that:
(a) Mr Landwehr stated in the First Response that the saw was a compound mitre saw, which he had demonstrated to the students ‘how to use it as a drop saw.’
(b) Student SS referred to the saw as a mitre saw, the one with the ‘big round blade’. He stated that on the day, the mitre saw and the bandsaw were in use.
(c) Student BD referred to the saw as a drop saw. He stated there are different machines in the room, but only one drop saw.
(d) Ms Botica referred to the saw as a drop saw.
(e) Mr Nielsen referred to the saw as a drop saw and as a mitre saw. He confirmed that the reference to ‘Cut off Saw (wood)’ on the 2019 Machine Usage Chart is a reference to the mitre saw.
(f) Ms Naik referred to the saw as a drop saw wood and a mitre drop saw. She stated she did not know what difference adding the word ‘compound’ to a mitre saw made. She stated she knew it was a mitre saw because she purchased the replacement saw, and knew it was a drop saw because she observed Mr Landwehr’s re-enactment of the incident on the drop saw. On 11 November 2020, she sent Ms Pelham an email with the note, ‘Attached is an image showing the machine being the compound mitre saw.’
43 Given the evidence of the witnesses that there was only one drop saw in the room which was the machine in use at the time, also known as the mitre saw, and the evidence of Mr Nielsen that the mitre saw was the same as the ‘Cut off Saw (wood)’ on the 2019 Machine Usage Chart, I find that it was reasonable for the Report to use the term ‘saw’ as referring to the saw that was used by Student SS on the day.
44 The Union contends that in the second interview of Ms Naik, Ms Pelham engaged in suggestibility and leading questioning in showing Ms Naik the 2019 Machine Usage Chart and asking Ms Naik to agree that she had stated at the first interview that the saw in use was the ‘Cut off Saw (wood)’. I agree that Ms Naik did not state in the first interview that the saw in use was the ‘Cut off Saw (wood)’. In the first interview, Ms Naik stated that the saw in use was a drop saw wood or a mitre drop saw. However, I do not consider anything turns on this because I have found it was reasonable for the Report to use the term ‘saw’ as referring to the saw used by Student SS on the day due to the evidence of the individuals interviewed, and in particular Mr Nielsen’s evidence that the saw in use was the mitre saw and the reference to ‘Cut off Saw (wood)’ on the 2019 Machine Usage Chart is a reference to the mitre saw.
45 The Union contends that pages 18-20 of the Report proceeds on the misconceived premise that the 2019 Machine Usage Chart applies to a compound mitre saw when the 2019 Machine Usage Chart does not. The Union contends that because the 2019 Machine Usage Chart does not reference a compound mitre saw, that it did not apply to Allegation 1, such that Mr Landwehr could not be found to have been negligent or careless by not complying with the 2019 Machine Usage Chart.
46 The 2019 Machine Usage Chart:
(a) Does not refer to a compound mitre saw.
(b) Refers to the following saws: Scroll Saw, Jig Saw, Circular Saw (Hand), Cut off Saw (wood), Drop Saw (metal), Bandsaw, Radial Arm Saw, Cold Saw, Horizontal Bandsaw, Panel Saw, Bricksaw.
(c) Outlines the same supervision requirements for a Year 10 student using the Cut off Saw (wood) and the Radial Arm Saw, namely, ‘Sup’ colour coded yellow denoting, ‘Under direct teacher supervision, ie teacher standing next to machine.’
47 The respondent contends that there is no material difference between the Cut off Saw (wood) and the compound mitre saw. In any event, the 2019 Machine Usage Chart only references two powered radial saws in the classroom (namely, the Cut off Saw (wood) and the Radial Arm Saw), and both require the machine to be used under direct supervision.
48 The evidence was that there was only one drop saw in the room, which was the machine in use at the time, and also known as the mitre saw. The evidence was that the mitre saw was the machine ‘with the big round blade.’ The evidence of Mr Nielsen was that the reference to ‘Cut off Saw (wood)’ on the 2019 Machine Usage Chart was a reference to the mitre saw.
49 In the First Response, Mr Landwehr does not contest the 2019 Machine Usage Chart’s applicability to a compound mitre saw. Instead, he states he was unaware the 2019 Machine Usage Chart existed and states, ‘Had it been made aware to me, I would have followed the document.’ A reasonable inference is that Mr Landwehr did not supervise Student SS in accordance with 2019 Machine Usage Chart because he was unaware it existed before the incident, not that he did not supervise Student SS because the 2019 Machine Usage Chart does not refer to a compound mitre saw.
50 For the preceding reasons, I find that the reference to ‘Cut off Saw (wood)’ on the 2019 Machine Usage Chart refers to the saw that was in use at the time of the incident and therefore that the 2019 Machine Usage Chart applies to Allegation 1 and it was reasonable for the respondent to proceed on this basis.
51 In the First Response, Mr Landwehr claims to be unaware of the 2019 Machine Usage Chart’s existence. The Union contends that Mr Nielsen did not give evidence of Mr Landwehr’s knowledge of the 2019 Machine Usage Chart, and that Ms Naik’s evidence did not indicate that the 2019 Machine Usage Chart was discussed in a manner to convey its applicability to a compound mitre saw. Furthermore, the Union contends that since the Report does not cite the minutes of the meeting where the 2019 Machine Usage Chart was discussed, as Ms Naik had mentioned in her second interview, the inference should be that Mr Landwehr did not attend the meeting. Alternatively, Ms Naik’s evidence of Mr Landwehr’s attendance is unreliable.
52 I agree with the Union’s contention about the evidence of Mr Nielsen (whose evidence was about a D&T Teacher at the School, and not Mr Landwehr in particular) and Ms Naik. However, I do not find Mr Landwehr’s contention to be sustainable due to the evidence of Ms Naik and Mr Nielsen.
53 Ms Naik’s evidence was that:
(a) A version of the 2019 Machine Usage Chart had been in existence since the old head of department created it 7-10 years ago.
(b) The 2019 Machine Usage Chart was printed in colour, in A3, laminated, and attached to every door.
(c) A teacher would know about the 2019 Machine Usage Chart from accessing the machine workshop area to prepare wood for their class.
(d) A teacher would be looking at the 2019 Machine Usage Chart on their first day because ‘that’s your job.’
(e) Ms Naik gave a slide presentation at the 2020 Term 1, week 2 Learning Area meeting which referred to going through each workshop and the 2019 Machine Usage Chart in that week’s D&T OSH Training. She remembers presenting in the classroom and she remembers where Mr Landwehr was sitting at the time.
(f) During the weekly Tuesday D&T OSH Training sessions, Mr Nielsen, the teacher in charge of D&T, referred to the 2019 Machine Usage Chart and explained to the teachers the best practice of demonstrating each machine and ensuring students do not stand within the yellow line marking around each machine.
54 This is supported by Mr Nielsen’s evidence that:
(a) A version of the 2019 Machine Usage Chart had been in existence for years.
(b) The 2019 Machine Usage Chart was displayed in every classroom, typically with two copies, either on a wall or window.
(c) A teacher would be aware of the 2019 Machine Usage Chart because they are a professional, ‘paid to know these things’, ‘it comes with the territory.’
(d) The requirement for a teacher to supervise a Year 10 student using a mitre saw was discussed during tool shop contextual meetings of the D&T Teachers.
55 Given Ms Naik’s and Mr Nielsen’s evidence, I find Mr Landwehr’s claim that he was unaware of the existence of the 2019 Machine Usage Chart to be unsustainable. Therefore, I find it was reasonable for the Report to include the following analysis:
Contrary to Mr Landwehr’s claim, the witnesses provided clear evidence that Mr Landwehr was provided with the information that outlined the ESC student supervision requirements for machinery, and he was responsible for understanding the requirements. The evidence shows that prior to the incident:
· Mr Landwehr attended a Design and Technology teacher meeting during which the document titled ‘Ellenbrook Secondary College - Power Tool and Machine Usage 2019’ (Attachment A) was discussed – as stated by Ms Naik.
· Design and Technology teachers at ESC are required to supervise Year 10 students when using the saw, as per the ‘Ellenbrook Secondary College - Power Tool and Machine Usage 2019’ (Attachment A) – as stated by Ms Naik and Mr Nielsen.
· Design and Technology teachers were expected to understand the student supervision requirements when using machinery – as stated by Ms Naik and Mr Nielsen.
· The ‘Ellenbrook Secondary College - Power Tool and Machine Usage 2019’ document (Attachment A) and was displayed in Mr Landwehr’s classroom, in A3 size and in colour – as stated by Ms Naik, Mr Nielsen and [Student BR] (being a student).
Based on the above evidence, Mr Landwehr was provided with sufficient information to be well aware of the ‘Ellenbrook Secondary College - Power Tool and Machine Usage 2019’ (Attachment A). Were Mr Landwehr not cognisant of this document, it is reasonable to establish that part of his role as a Design and Technology teacher was to make himself aware of the requirements. In not being cognisant of the document, or ensuring that he understood the teacher supervision requirements for machinery, Mr Landwehr was wilfully negligent.
Union’s contentions regarding conflict of evidence
56 The Union contends that the analysis on page 18 of the Report, indicating that Mr Landwehr gave incompetent instructions to Student SS and left him at the saw with a metal ruler, is not supported by all the evidence. The Union contends that the conflict over whether Mr Landwehr demonstrated to Student SS how to measure at the saw with a ruler should not be resolved against Mr Landwehr. Additionally, the Union contends that the conflict over whether Mr Landwehr told Student SS he could continue cutting after leaving to assist another student should not be resolved against Mr Landwehr.
57 I disagree with the contention that the analysis in the Report was not open on all of the evidence for the reasons that follow.
Conflict of evidence regarding the ruler
58 Student SS’s evidence was that:
(a) Mr Landwehr said to him, ‘You can take the ruler and the wood to the mitre saw.’
(b) Mr Landwehr showed him how to measure the wood with the ruler at the saw, by putting the ruler on the wood, making sure it is flush with the end, and then using a pencil to mark 180 mm. Mr Landwehr asked him to press the buttons on the saw that set the blade spinning, which he did, whilst Mr Landwehr cut the wood.
59 This is supported by Student AB’s evidence that:
(a) Mr Landwehr came over once when Student SS was cutting wood at the saw.
(b) Student SS was not wearing safety glasses and Mr Landwehr told him to put safety glasses on.
(c) Mr Landwehr said to Student SS, ‘Don't have the ruler in the way like before you cut.’
60 The evidence of Student SS and Student AB was that Mr Landwehr was aware that Student SS had a metal ruler at the saw.
61 This is supported by the note made by Barbara Woulfe, Head of Learning Area – Technologies, dated 5 August 2020 of her discussion with Student SS. The note states, ‘Measure wood length [on] machine. Told by teacher to do it. Used metal ruler.’
62 This is also supported by the handwritten note of Peter Havel, Principal, dated 5 August 2020 2.35pm, signed by Mr Havel and Mr Landwehr, which states (emphasis added):
2. [Student SS]
- long piece of wood
- Rule up 3 cuts at saw
- Cut 2. Deliberately move ruler
- Mr Landwehr adjusted the angle of the saw
- 3 cut – didn’t remove ruler
à hit ruler
à ruler cut [Student SS’s] left thumb
63 This is further supported by the letter from the Principal to Eva Staltari, Coordinator Regional Operations, North Metropolitan Regional Education Office, dated 6 August 2020. The letter states (emphasis added):
I worked with the HOLA of Technology, Ms Barbara Woulfe, to gather statements from the teacher, Mr Barry Landwehr and [Student SS].
The common elements confirm from both signed statements:
· Mr Landwehr demonstrated how to use the Mitre Saw to the whole class in Term 1 2020.
· Mr Landwehr did not understand that he needed to directly supervise a student using the Mitre Saw.
· [Student SS] was given permission to measure the long piece of wood on the Mitre Saw Bench before cutting. Instruction were given to move the metal measure away from the cut area before commencing any cut.
· Two cuts were conducted with the metal measure clearly out of the way.
· On the third cut, Mr Landwehr was at a table across the other side of the classroom and was not aware that [Student SS] was about to conduct the third cut.
· [Student SS] did not follow the instruction to put the measuring device to one side.
· When [Student SS] cut through the wood, the measuring device was hit and a piece of the fractured metal cut his thumb
64 This is inconsistent with Mr Landwehr’s statement in the Second Response that, ‘When this accident did occur, I did not know that [Student SS] had the metal rule anywhere near the wood’.
65 Considering the consistent evidence provided by Student SS and Student AB, corroborated by Ms Woulfe’s note from 5 August 2020, the Principal’s note from 5 August 2020 that was countersigned by Mr Landwehr, and the Principal’s letter of 6 August 2020, I find Mr Landwehr’s claim that he did not know Student SS had a metal ruler at the saw to be unsustainable. Therefore, I find that it was reasonable for the Report to resolve the discrepancy regarding Mr Landwehr leaving Student SS at the saw with a metal ruler, against Mr Landwehr.
66 The analysis on page 18 of the Report that Student AB ‘provided evidence that Mr Landwehr showed [Student SS] how to measure the wood while at the saw’ does not undermine this finding. This is because the subsequent sentence and paragraph accurately summarise and assess the evidence as follows:
It is reasonable to expect that only the wood would be at the saw to avoid entanglement of other items on/near the blade.
[Student SS] provided credible evidence that Mr Landwehr instructed him to bring the metal ruler to the saw in the first instance and Mr Landwehr used the metal ruler (not a tape measure) while instructing [Student SS]. [Student SS] and [Student AB] provided evidence that while Mr Landwehr was instructing [Student SS], Mr Landwehr had seen the metal ruler on the wood and he instructed [Student SS] take the metal ruler off the wood. This suggests Mr Landwehr knew the metal ruler was a potential hazard near the saw.
67 Further, the Report accurately summarises Student AB’s evidence on page 7 as follows:
On one occasion, [Student SS] had a metal ruler in the way of the saw and Mr Landwehr told [Student SS] to move the ruler, as it should not be there during cutting.
…
Twice that same day, prior to the incident, [Student SS] had measured with a ruler while at the saw. The wood should be measured with a ruler away from the machine, and only the wood should be taken to the machine.
68 The finding that Mr Landwehr was aware that Student SS had a metal ruler at the saw is also not undermined by the analysis on page 18 of the Report that Mr Landwehr ‘provided a detailed response of how [Student SS] was shown to measure the wood at the saw with a tape measure’. This is because the Report includes the First Response as Attachment L and accurately summarises it on page 11 as follows:
He provided a demonstration and used a tape measure for both projects.
…
After the incident, he identified that [Student SS] used a metal ruler instead of a tape measure and had measured the wood at the machine instead of the bench.
Conflict of evidence regarding instruction to stop
69 In the First Response, Mr Landwehr states, ‘[Student SS] was not left unsupervised’.
70 This statement appears to contradict Mr Landwehr’s assertion that he was not required to directly supervise Student SS due to his unawareness of the 2019 Machine Usage Chart.
71 It also appears to contradict the contention that without the 2019 Machine Usage Chart referencing a compound mitre saw, the supervision and usage requirements should align with those at Mr Landwehr’s prior schools; that is, with teacher permission but without direct teacher supervision, which would allow Student SS to use the saw unsupervised provided Student SS had obtained his permission.
72 Mr Landwehr claims he did not grant Student SS permission to use the saw. In the First Response, Mr Landwehr states that Student SS ‘failed to follow my instruction when I was supervising other students and without my knowledge continued working.’ In the Second Response, he states, ‘I maintain that [Student SS] cut the wood whilst I was providing supervision to another student in the room. I clearly told [Student SS] to stop and he obviously did not.’
73 The contention is consistent with the Principal’s note, dated 5 August 2020 2.35pm, signed by the Principal and Mr Landwehr, which states:
5. Knew he was cutting, but the student didn’t seek permission before doing the last cut.
74 However, the contention is inconsistent with other contemporaneous documents, namely:
(a) The ‘Accident/incident report for students and visitors’ completed by Mr Landwehr on 24 June 2020 (Incident report). In the section ‘Action taken/planned to prevent reoccurrence:’, Mr Landwehr wrote, ‘Try to prevent metal rule to be on the saw when cutting (Education Retraining).’ The Incident report does not mention Student SS not following instructions, nor does the preventative action mention ensuring the student follows instructions. If the failure to follow instructions was the cause of the accident, it would have been reasonable for this to be included in the Incident report.
(b) Ms Woulfe’s note of 5 August 2020, which states, ‘Mr Landwehr put/set [angle] that it was cut on. He tested with a scrap piece. Left him to cut the wood’.
75 The contention is also inconsistent with the evidence from Students SS, AB and BD that they and other students used the saw unsupervised. Students SS and BD had used the saw unsupervised on that day. Each of Students SS, AB and BD had used the saw unsupervised on previous days. Their evidence was that they were allowed to use the saw unsupervised and did not need to ask for permission beforehand.
76 The evidence of Student SS was that:
(a) Students do not need to be supervised using the mitre saw, ‘We can do it by ourself.’
(b) He used the mitre saw 10 times previously, seven times without supervision.
(c) When the first few people use the saw, Mr Landwehr stands by them, but when the second part of the class use the saw, he does not check on them.
(d) He was not required to tell Mr Landwehr he was going to use the saw before using it.
(e) Mr Landwehr told him he could continue cutting.
77 The evidence of Student AB was that:
(a) He was assisting Student SS hold the wood steady for Student SS to cut.
(b) There were four cuts on the day, and Mr Landwehr came over once.
(c) He thought that Student SS was using a bandsaw.
(d) Students do not need to let Mr Landwehr know when they are going to use the bandsaw.
(e) He has used the bandsaw without Mr Landwehr there.
(f) He has used the bandsaw when Mr Landwehr was there. Mr Landwehr helped him use the saw.
(g) He does not think they are allowed to use the machines on their own, but they did.
(h) He used the machines on his own about 70-80% of the time.
78 The evidence of Student BD was that:
(a) He had used the drop saw 5-10 minutes before Student SS used it, without supervision.
(b) At least three other students had used the saw that day, without supervision.
(c) Overall, he has used the drop saw 4-5 times.
(d) Earlier in the year, Mr Landwehr demonstrated to the class how to use the drop saw.
(e) On some students’ first attempt, Mr Landwehr said you could ask him for help. He could come over and show you how to use the saw. After that, ‘it was really just like if you were comfortable with it just go ahead by yourself and do it.’
(f) The first time he used the drop saw, Mr Landwehr watched him use the saw. After that, he used the saw by himself all other times.
(g) Most students used the saw at least once without assistance from Mr Landwehr.
(h) There were a few students that would always have assistance, but most students after the first few attempts, would use it by themselves.
(i) The first time you used the drop saw you needed to tell Mr Landwehr that you were about to use it, but not after the first time.
(j) He saw Student SS use the drop saw by himself on the day.
(k) There was no machine in Mr Landwehr’s class that could only be used with teacher supervision.
(l) If you had used the machine before, you do not need to ask for permission before using it, ‘you can just go straight up and use it.’
79 Given the consistent evidence provided by Students SS, AB and BD, which is supported by the contemporaneous records, I find the claim that Mr Landwehr instructed Student SS to stop cutting to be unsustainable. Therefore, I find that it was reasonable for the discrepancy regarding whether Mr Landwehr had permitted Student SS to continue cutting to be resolved against Mr Landwehr.
80 In the circumstances, I find it was reasonable for the Report to include the following analysis:
Mr Landwehr was also wilfully negligent by not enforcing the supervision requirements and allowing students to use the saw unsupervised, on previous days and on the day of the incident. This lack of supervision on the saw ultimately led to [Student SS] using the saw incorrectly and being injured.
The incident could have been prevented had Mr Landwehr:
· Provided [Student SS] with competent instruction to measure the wood at a desk not at the saw.
· Refrained from using a metal ruler at the saw.
· Taken the metal ruler away from the saw upon ceasing his instructions to [Student SS].
· Not allowed [Student SS] to use the saw unsupervised, previously or at the time of the incident.
· Followed the ‘Ellenbrook Secondary College – Power Tool and Machine Usage 2019’ and supervised [Student SS] when he was cutting the wood.
Other contentions regarding the Report
81 The Union contends that the Report does not mention Ms Naik’s statement that it would not surprise her to hear that a student had not followed Mr Landwehr’s instruction, which would have supported Mr Landwehr’s version of events. I do not find this contention assists Mr Landwehr for the following reasons.
82 Firstly, the Report does not include everything a witness stated during their interview. Seven witnesses were interviewed regarding Allegation 1, with one witness interviewed twice. The Report summarises these interviews, Attachments A-H and the First Response across six pages, with the analysis and conclusion across 2½ pages.
83 Secondly, the evidence of the students interviewed was that Mr Landwehr did not supervise them or other students when using the mitre saw and did not require them to seek his permission before using the saw, except for their very first usage. Based on the evidence, I have found it was reasonable for the Report to include the following:
Mr Landwehr was also wilfully negligent by not enforcing the supervision requirements and allowing students to use the saw unsupervised, on previous days and on the day of the incident. This lack of supervision on the saw ultimately led to [Student SS] using the saw incorrectly and being injured.
84 Thirdly, Ms Naik stated it was 100% inaccurate for Mr Landwehr to claim that he did not know he was supposed to supervise Student SS. When asked if Mr Landwehr had accepted his supervision responsibility but the student ‘just went and did it anyway?’, Ms Naik responded that that is 100% understandable because ‘kids do that.’ However, Mr Landwehr does not accept that he was required to supervise Student SS and that Student SS had used the saw unsupervised anyway. Instead, he claims he was not required to supervise Student SS because the supervision requirements in the 2019 Machine Usage Chart are not applicable to Allegation 1. He claims he did not know about the 2019 Machine Usage Chart and the 2019 Machine Usage Chart did not reference a compound mitre saw.
85 The Union contends that the Report does not mention the remedial and improvement action undertaken by the School and the Department following the incident, although such facts were reasonably available during the investigation. The Union contends that the remedial and improvement action undermines a finding of Mr Landwehr’s negligence or carelessness.
86 I disagree. Although the 2020 Machine Usage Chart removed ‘Cut off Saw (wood)’ and incorporated a ‘Compound Mitre Saw (Wood)’, modifying the 2019 Machine Usage Chart does not undermine a finding regarding Mr Landwehr’s negligence or carelessness for the following reasons.
87 Firstly, amending the 2019 Machine Usage Chart is consistent with Ms Naik’s evidence that the document was developed 710 years ago and undergoes annual updates. This is consistent with the School amending the 2020 Machine Usage Chart in 2021.
88 Secondly, although the Department’s Safe Work Procedure for a Sliding Compound Mitre Saw (18 March 2021) prescribes that Year 10+ students must receive instruction and permission prior to using the machine, the Union agrees that the School has discretion to enforce more stringent supervision and usage requirements, which it did.
Conclusion regarding Allegation 1
89 The Allegations Letter states the conduct was a breach of:
(a) the 2019 Machine Usage Chart;
(b) the Policy – to protect students from risk of harm that can reasonably be foreseen; and
(c) section 64(1)(a) and s 64(1)(b) of the School Education Act 1999 (WA) (School Education Act) – to foster and facilitate learning in students, give competent instruction to students in accordance with the curriculum, standards and school’s plan, and to undertake the preparation necessary to do so.
90 Connor v Grundy Television Pty Ltd [2005] VSC 466 (Connor) [43] states (footnote omitted) (emphasis added):
An employer may dismiss an employee summarily if the employee is negligent in the course of the employment. The law is summarised by Gillard J in Rankin v Marine Power International Pty Ltd:
“On the other hand, there is a good ground for the dismissal of an employee if he is negligent in the course of his employment. However, it would indeed be a very grave case of negligence, causing substantial damage, to justify dismissal for a single act of negligence. As a general proposition, the neglect would have to be habitual.
In Baster v London and County Printing Works (1899) 1 QB 901 at 903, Darling J said –
“Neglect as often arises from forgetfulness as from anything else; and, if the forgetfulness is with respect to an important thing it may well, in my view, be good ground for dismissal of the servant without notice. I do not say that it would be a good ground for dismissal in every case. Some trivial acts of forgetfulness might not even justify a complaint or remark; but to forget to do a thing which, if not done, may cause considerable damage to the master, or to his property, or to fellow servants, may be a serious neglect of duty.”
91 Connor [44] states (footnote omitted) (emphasis added):
Both the notions of misconduct and negligence must of course be applied and understood in the context of the particular contract in issue.
“Until the terms of the contract are known and identified it is impossible to say whether or not any particular conduct is in breach thereof or is a breach of such gravity or importance as to indicate a rejection or repudiation of the contract. One cannot begin the inquiry without ascertaining what work … the employee was employed and had undertaken to perform. It is also necessary to ascertain what particular obligations the parties had agreed upon as important or even vital.”
92 Connor [48] states (emphasis added):
The negligence or misconduct may be sufficient to justify dismissal either if it is a substantial enough breach of the employee’s duty or if its consequences are sufficiently damaging to the employer.
93 In Ash v Chabad Institutions of Victoria Limited [2020] FWC 1744 (Ash) the Fair Work Commission found that the obligation to supervise students was fundamental to the role of a teacher, and an injury of any magnitude underscores the approach taken by the school (to require supervision) in the interests of protecting its students [137].
94 Section 64(1) of the School Education Act outlines a Teacher’s functions and expressly includes the obligation to supervise students (emphasis added):
The functions of a teacher in a government school are –
…
(b) to give competent instruction to students in accordance with –
(i) the curriculum; and
(ii) standards determined by the chief executive officer; and
(iii) the school’s plan referred to in section 63(1)(e),
and to undertake the preparation necessary to do so; and
…
(e) to supervise students and to maintain proper order and discipline on their part; and
95 Based on Connor, Ash and the express obligation to supervise students in the School Education Act, I find that Mr Landwehr’s single act of negligence or carelessness could justify dismissal in the circumstances.
96 The Union contends that dismissal for Allegation 1 is unjustifiable considering the disciplinary process took almost a year and a half to complete, during which time, Mr Landwehr continued teaching at the School. The respondent submits the alternative would have been for Mr Landwehr to be suspended without pay.
97 A disciplinary process over more than 16 months during which a teacher remained in employment was the subject of The State School Teachers’ Union of WA (Incorporated) v The Director General, Department of Education [2012] WAIRC 00127; (2012) 92 WAIG 362 (Scott). In Scott, the Union challenged the reprimand imposed for misconduct committed by Ms Scott, in circumstances where the employer had characterised the misconduct as relatively minor. In Scott, the Commission found the employer’s decision to reprimand Ms Scott was reasonable in the circumstances, and that Ms Scott was afforded natural justice and procedural fairness in accordance with the standard principles, notwithstanding the ‘lengthy time to pursue the disciplinary process’ [125], [133].
98 The Allegations Letter is dated 22 February 2021 and outlines six allegations in chronological order of their occurrence. The first allegation, Allegation 1 relates to the incident on 24 June 2020. The most recent allegations, being allegations 5-6, relate to an incident in late October/early November 2020.
99 This means the Allegations Letter was sent 7-8 months after the Allegation 1 incident. This is unfortunate. However, an early cause of the delay appears to be due to the School Principal first raising the matter with SID almost two months after the incident. The Report states that SID first received information regarding Allegation 1 from the School Principal on 18 August 2020.
100 The Report states that on 24 September 2020, a decision was made to deal with Allegation 1 as a misconduct matter with SID commencing an investigation on 29 September 2020. The Report further states that during the course of the investigation into Allegation 1, a further five allegations were received by SID, and a decision was made to also deal with the further allegations as misconduct matters and to include those matters in the investigation.
101 Three witnesses were interviewed in relation to Allegation 1 on 21-22 October 2020, and one witness was interviewed on 11 November 2020. Two witnesses were interviewed in relation to allegation 2 on 21 October 2020. Three witnesses were interviewed in relation to Allegation 3 on 21-22 October 2020. Two witnesses were interviewed in relation to allegation 4 on 11 November 2020. One witness was interviewed in relation to allegations 5-6 on 11 November 2020.
102 The Allegations Letter outlines six serious allegations against Mr Landwehr and therefore needed to be constructed as well as possible in the circumstances: James v St Thomas Aquinas College Limited T/A St Thomas Aquinas College [2016] FWC 6360 (James) [142]. As such, I am satisfied that the Allegations Letter was sent within a reasonable period of the last interviews conducted on 11 November 2020.
103 On 15 March 2021, Mr Landwehr responded to the Allegations Letter with the First Response. On 31 March 2021, three further witnesses were interviewed in relation to Allegation 1, and one witness originally interviewed on 11 November 2020 was reinterviewed. A further and final witness was interviewed in relation to Allegation 1 on 4 May 2021.
104 Two to three months after the last interview, the Report was finalised. The Report was sent with the Proposed Outcome Letter on 6 August 2021.
105 The Proposed Outcome Letter requests Mr Landwehr provide any response within 10 business days, which he did with the Second Response on 20 August 2021. The Dismissal Letter was then sent 6-7 weeks later, on 7 October 2021.
106 Whilst the Allegations Letter was sent 7-8 months after the Allegation 1 incident, and the Dismissal Letter was sent 15-16 months after the Allegation 1 incident, I am satisfied that the number and seriousness of the allegations warranted a thorough investigation. The investigation concluded within 5-6 months of the date of the Allegations Letter, and the disciplinary process concluded within a further 8-9 weeks of the Proposed Outcome Letter. This meant the disciplinary process took 78 months from the date of the Allegations Letter to the date of the Dismissal Letter.
107 I am satisfied that during the disciplinary process, Mr Landwehr was given a reasonable period of time (three weeks) to respond to the Allegations Letter, and to respond to the Proposed Outcome Letter (two weeks).
108 Although the delays are regrettable, considering the quantity and seriousness of the allegations, a disciplinary period of 7-8 months from the Allegations Letter to the Dismissal Letter does not, in my view, prejudice Mr Landwehr or render a justifiable dismissal unjustifiable under the given circumstances.
109 As to a consideration of the mitigating circumstances at DrakeBrockman [66], the Proposed Outcome Letter states that the respondent expressly considered Allegation 1 in the context of Mr Landwehr’s 15 years of employment and significant experience as a D&T Teacher.
110 For the preceding reasons, I am satisfied the respondent has discharged the onus of establishing that Mr Landwehr was guilty of Allegation 1 and that the misconduct justified dismissal: DrakeBrockman [66].
Allegation 3
111 The Allegations Letter set out Allegation 3 as follows:
On 25 September 2020, at Ellenbrook Secondary College you committed an act of misconduct amounting to a breach of discipline pursuant to section 80(c) of the Public Sector Management Act 1994.
Particulars
a. You were employed as a teacher at Ellenbrook Secondary College.
b. On 25 September 2020, you were showing a class how to do brick paving.
c. You bent over to work on the paving, at which time [Student BR], Year 11 Student, Ellenbrook Secondary College, put a small rock down the back of your pants.
d. You walked towards [Student BR], grabbed the shoulder of his clothing and tugged him towards you.
e. You shouted words to the effect of “if you were at a work site it would be more than a pull by a teacher, you could possibly get hit.”
f. The physical contact you made with [Student BR] was not compliant with Regulation 38 of the School Education Regulations 2000.
g. Your comment and actions towards [Student BR] were unnecessary and contrary to the Department’s Code of Conduct, which states in part:
1. Personal Behaviour
As employees of the Department we behave with integrity in all personal conduct and treat all others with due consideration.
112 The Allegations Letter notifies Mr Landwehr that Allegation 3 would be treated as a disciplinary matter pursuant to s 81 of the PSM Act, and that Ms Pelham had been appointed to investigate the matter.
113 The Allegations Letter invites Mr Landwehr to respond in writing, or to contact Ms Pelham to respond in person.
114 In the First Response, Mr Landwehr responds to the Allegations Letter as follows:
[Student BR] can be a distracting student. He can get worked up quickly, become very hyperactive and act out in ways that could harm himself or others. I have to constantly deal with his behaviours and calm him down. I need to get him to stop doing what he is doing and get focussed on settling him down in order to keep both him and the class safe from some of his behaviours.
The class is a Certificate II in Building and Construction that is timetabled for a whole day, being a Friday each week. The class was doing Paving for the school in the Year 7’s courtyard. This was the last day of Term 3 and needed to be completed and [Student BR] was displaying silly behaviour and put a rock down the back of my pants whilst I was doing a paving demonstration and then ran off. I got up to stop him, I placed my hands on his shoulders to calm him down and explained the consequences of the impact of his actions should it be a real work site.
I did make physical contact with [Student BR], however it was minimal, and appropriate at the time in order to maintain the safety of the class and to ensure [Student BR’s] welfare as there was tools and other construction material around that could potentially cause harm to [Student BR].
115 The Proposed Outcome Letter notifies Mr Landwehr that the investigation has been completed, Allegation 3 has been substantiated, and the proposed action is dismissal.
116 The Proposed Outcome Letter states:
To assist you in preparing any response you might wish to make, and to aid your understanding of the investigation, the report is now supplied to you. You should not make use of the report for any purpose that is not directly related to the proper conduct of the investigation or any subsequent appeal process.
…
In your response you deny that you acted contrary to Departmental policies and maintain that there were circumstances to mitigate your actions, however, the evidence provided by the witnesses is consistent and supports that you acted as alleged. … Under no circumstances is it acceptable to make physical contact with students in the manner described at allegations 2, 3, 5 and 6, inclusive.
Physical contact with students should be avoided, both for their protection and to safeguard staff members. Any physical contact used on a student must be reasonable, proportionate and necessary in the circumstances and should only be used when all other non-physical interventions have been considered and exhausted.
You are responsible for establishing and maintaining professional boundaries in your interactions with students to help protect everyone from any misunderstandings or a violation of the professional teacher/student relationship.
In particular, I acknowledge in your response that you believe your physical contact with [Student BR] was minimal. In the circumstances, however, physical contact with [Student BR] was not required. Your actions towards [Student BR] reflect that you were reacting to his poor behaviour, not for any other reason. As such, you breached your professional boundaries with [Student BR].
I have considered your 15 years of employment with the Department and your significant experience as a Design and Technology teacher.
I also have considered your discipline history and the fact that you were previously found to have committed a breach of discipline on 10 June 2015, in relation to similar incidents to allegation 3. As a result, you received a fine of one day’s pay, a reprimand, and improvement action by way of counselling from your principal regarding the Department’s policies on physical contact and completion of the Department’s online Accountable and Ethical Decision Making course.
In relation to the reprimand you received, you were informed that the community has an expectation that Departmental employees will behave in a manner that reflects the important role they have in modelling community values and standards. It was deemed that your actions were wholly inconsistent with these values and standards.
It was made clear to you that a repeat of this kind of behaviour may well have more serious repercussions. I consider that your conduct as outlined in the allegations, particularly allegation 1 and 3, are serious matters. I must have confidence that someone in your position will properly perform their duties and act appropriately in the presence of students. I no longer have trust or confidence in you to perform your duties to the required standard.
Of concern, and relevant to my decision, I note the six incidents relating to the allegations occurred within a five month period in 2020, and four of these allegations relate to physical contact with students.
…
In relation to allegation 2, 3, 5 and 6, you should have refrained from using physical contact with the students and you had the option to use verbal communication with the students in the first instance.
…
This proposed action takes into account the fact that you previously committed a breach of discipline on 10 June 2015, relating to a similar incident as allegation 3.
117 The Proposed Outcome Letter invites Mr Landwehr to respond in writing, or to contact Ms Pelham to respond in person.
118 In the Second Response, Mr Landwehr responds to the Proposed Outcome Letter as follows:
I did make contact with [Student BR] and outlined the reasons why in my original response and wanted to provide further information and respond to the proposal to terminate my employment.
Previously in the Departments employment, I was assaulted in the workshop and this has had an ongoing effect on me even until this day. It has drastically changed my life and destroyed my 20 year marriage and has had a serious effect on the relationship with my young adult children. I had to leave Harvey to move to Perth. My new fiancé has supported me throughout my case. She is stressed and always worries about me and the pressures I put on myself to get students to preform to the best of their abilities. I believe as in my original case regarding this matter that I was at risk of very serious physical harm or death. This matter was publicly listed and dealt with by the Western Australian Industrial Relations Commission U93/2016.
When the student made unexpected physical contact with me, with the intention of pulling some kind of prank, this was in a similar fashion and in a similar physical way to how I was previously assaulted in the workshop. This previous assault was very traumatic on me and I have not completely recovered from the memory and the emotional hurt of the incident.
This caused me to react completely by surprise and seemed to trigger my bodies natural defence response to being assaulted again. It was a complete nervous reaction that shocked me and, regrettably I did make contact with [Student BR]. I believed at the time I was giving him an appropriate warning about his conduct, with concerns for his safety had he done this to somebody else in the future who may not take kindly to his actions.
I believe terminating my employment for these 2 matters would be harsh and excessive. I am willing to take any steps that the Department deems necessary to better improve my teaching ability and conduct, but I do not believe that termination of my employment is warranted and I ask that my experience, general good conduct over a 15 year teaching career and remorse is taking into account.
• I have planned and completed numerous building projects around the school which is above and beyond my teaching requirements. I always set a very high standard and complete projects with students help and do not except a low quality product.
• In the next couple weeks the students will be laying 1.2 Cubic meters of concrete for a path on two separate occasions. This is what I did with the Yr 12 students last year. I worked after school to prepare site on several days and stayed after school to prevent students from vandalising the finished project. This is in order to get students to obtain a Building and Construction unit in VET laying concrete to simple forms. This will make them finish and obtain their Cert II in Building and Construction.
• Teaching is just the minor part of my job. I believe being a VET teacher is all about improving students skills and getting them to work to their full potential and preparing them to be work ready.
119 The Dismissal Letter states:
In relation to the physical contact you used against [Student BR], you asserted that your actions were partly as a result of the incident with a student in 2015.
I do not consider this reasonable mitigation for your physical contact with [Student BR]. The act of a student putting a rock down your pants is seemingly innocuous, however, the evidence shows that you responded aggressively and in the context of conveying expected behaviour on a worksite, not in relation to fears for your safety.
Your reasoning is conjectural and you have provided no evidence to support this claim.
There was no requirement to engage in any physical contact with [Student BR]. It is not an appropriate response to mere ‘bad behaviour’ or ‘non-compliance’ by a student, unless of course there is an actual risk.
It appears that you view the physical contact as being minimal and appropriate, and you have not provided any assurance that an incident of this nature will not occur again. This presents an unacceptable risk to students in your care.
Further consideration of your response
Whilst you express a willingness to complete any steps to improve your teaching and conduct, I am of the view that prior to these incidents, you have been provided sufficient education and training in relation to the Department’s expectations regarding the use of physical contact with students, including:
• You completed Classroom Management Strategies (CMS) professional learning workshops on 14 August 2019, 12 September 2019 and 24 October 2019. Your training on 14 August 2019 (prior to the incident with [Student BR]) specifically provided you with de-escalation strategies, other than physical contact.
• The WAIRC proceedings and subsequent reports provided you with extensive details about what constitutes reasonable physical contact by a teacher towards a student, such as:
§ 2018 WAIRC 003200 paragraph 20 reads, in part:
“Firstly, a teacher has a particular duty of care towards a student. Secondly, the teacher is under direction from policies as to the appropriate circumstances in which to have physical contact with or restrain a student (Department of Education, Behaviour Management in Schools). The policy says the degree of physical contact must be proportionate ‘to the seriousness of the behaviour or the circumstances it is intended to prevent or manage’. The teacher will have been trained in the application of such a policy. A teacher is also a mentor and exemplar to the students of appropriate behaviour and self-control. In his interview with the investigator, Mr Landwehr said, ‘I am there as a role model to try and teach them’ (Investigation Report, 11)”.
§ 2017 WAIRC 00233, acknowledged the related investigation report and paragraph 37 reads in part that Mr Landwehr is recorded to:
• “say that the two incidents in 10 years of teaching were out of character and demeanour, not due to him not having learned, but due to the confluence of a number of unfortunate circumstances in which ‘I was found vulnerable’; and
• “express an assurance that he intended to not repeat the behaviour in the future ‘whatever it takes’”.
§ 2017 WAIRC 00233, paragraph 42 reads, in part:
“Staff must only use reasonable physical contact once other less intrusive alternatives have failed.” and “Physical contact must not to be used where it is intended to provoke or punish a student or is intended to cause pain, injury or humiliation.”
• On 30 July 2012 and 26 May 2015, you completed the Department’s on-line AEDM course, which clearly outlines that physical contact by teachers towards students is only used in reasonable circumstances and that restraint is used only as a last resort.
• In 2012, you received improvement action from Mr Neale Armstrong, Principal, Western Australian College of Agriculture – Harvey, in respect to a complaint that you used unnecessary physical contact, by grabbing a student and swinging him towards a bin, in reaction to him verbally abusing you. It is recorded that Mr Armstrong counselled you about the Department’s policies on physical contact and provided you with the Department’s Code of Conduct 2011. In relation to your improvement action Mr Armstrong recorded:
• In an email to you, dated 6 August 2012, “... the meeting between you and I on July 6th 2012, was an important part of the process to understand how some situations can very quickly become inflamed. Your assurances of choosing a different student management option and personal letter outlining some issues you were dealing with in your private life, together with the view that this was a one off event, leads to the belief that you have learned a great deal from this situation, and acceptance, that should this situation arises in the future, the outcomes are very likely to be different.”
• “Mr Landwehr agreed to step back from issues when confronted by students, look at cues when students are baiting staff and take a few breaths before over reacting.”
I would have expected that given the previous counselling, education, training and your ongoing assurances, that you would understand the standard of behaviour expected in your role.
Of relevance, the Director General’s letter to you in 2015, regarding your physical contact with a student stated:
• A repeat of this kind of behaviour that resulted in the need for this action may well have more serious repercussions.
• To avoid any further allegations of misconduct, the Director General directed you to avoid the behaviour that resulted in that finding of a breach of discipline.
Dismissal
The community and the Department have an expectation that employees will behave in an exemplary manner and uphold the values and standards of the Department. In my view, you have failed in this regard and the seriousness of your conduct has established reasonable doubt about your suitability as a teacher.
I must have confidence that someone in your position will properly perform their duties and act appropriately in the presence of students.
I find that you have committed breaches of discipline in relation to allegations 1 and 3.
Your conduct demonstrates a lack of self-control and a failure to learn and improve. I no longer have trust or confidence in you to perform your teaching duties to the required standard.
Your actions were inconsistent with the Department’s values and standards and accordingly, I dismiss you from your employment with the Department of Education without notice or payment in lieu of notice for serious misconduct pursuant to clause 11(4) of the Teachers [Public Sector Primary and Secondary Education] Award 1993.
Union’s contentions
120 The Union contends that the respondent could not have been reasonably satisfied that Mr Landwehr’s physical contact with Student BR did not comply with Regulation 38, or that his remark to Student BR was unnecessary and contrary to the Code of Conduct.
121 The Union contends that there is a reasonable case suggesting Mr Landwehr’s conduct was excused by Regulation 38. Further, even if Mr Landwehr was frustrated during the interaction with Student BR, it does not negate the reasonableness of his conduct if it was primarily driven by safety concerns.
122 Similarly, Mr Landwehr’s remark, made with the intent of ensuring Student BR’s ability to work safely in the workplace, should be considered within context.
123 The Union contends that the evidence indicates Mr Landwehr acted with reasonable restraint. Even if his conduct did not strictly adhere to Regulation 38 and the Code of Conduct, they do not warrant dismissal.
124 In any event, dismissal for Allegation 3 is unjustifiable when Mr Landwehr continued to teach at the School for over a year without further incident.
Respondent’s contentions
125 The respondent contends that there is no credible evidence that Mr Landwehr made contact with Student BR in order to manage him or in the interests of safety.
126 The respondent contends that the decision to dismiss Mr Landwehr is fair on a finding that Allegation 3 was made out.
127 Further, a single loss of control due to student behaviour is sufficient to warrant dismissal of a teacher.
128 Where there are reasonable grounds based on the findings by the Commission in Landwehr No. 1 and Landwehr No. 4 for the respondent to suspect that a loss of control may occur again, dismissal in the interests of student safety should be inevitable.
129 The respondent relies upon Balfour v Attorney-General [1991] 1 NZLR 519, for the proposition that when it comes to disciplinary proceedings involving a teacher, the law recognises the balance between a teacher’s right to procedural fairness and the respondent’s responsibility to act on their prime duty to protect children, particularly where clear proof may be difficult to obtain:
The second point is one that must not be lost sight of, and it is the great care that educational authorities must exercise when made aware of an allegation, even a rumour, of this kind. Their prime duty must be the protection of the children, if possible to prevent problems rather than await their occurrence. They also have a duty to their employees, to act justly and with discretion. The duties may conflict, and to maintain a balance between them can be a delicate matter. There can be no criticism of action taken in the interests of the children, even if there is no more than suspicion, provided the action is appropriately restrained and rational, and the ultimate need for a balanced judgment on the validity of the suspicion is not lost sight of (524).
…
Furthermore, the law must recognise the balance to be preserved between a teacher’s rights and the Department’s wider responsibilities. Particularly in the case of moral suitability clear proof may be difficult to obtain. Yet to ignore possible warning signals may be responsible (529).
The evidence
130 Ms Cox was interviewed by Ms Pelham on 4 May 2021. She stated:
(a) A first aid officer, Joanne Hunt, noticed Mr Landwehr being ‘a bit rough’ with one of the students, and came to her and said she was concerned.
(b) She told Ms Hunt that, if she finds that he had manhandled a student, and it was inappropriate, that she had to report it.
131 Joanne Hunt, First Aid Officer (Ms Hunt), was interviewed by Ms Pelham on 22 October 2020. She stated:
(a) Her office backs onto the Year 7 courtyard. She has a big window, but her back faces the window. The window was open, and she noticed a class of 15-20 upper school students undertaking a brick paving job, in the presence of adult staff members.
(b) One male teacher was bent over, demonstrating screeding (leveling out the sand), smoothing the ground out, about 30 m from the window. The teacher was in the middle of a 6 sqm area of sand. The students were standing in a group, in a semicircle, watching the demonstration.
(c) She heard shouting (a loud, emotionally driven voice) and turned around.
(d) ‘As the student was walking away’, the teacher stepped out of the sand area and took 23 steps towards the student, grabbed the student by the scruff of the fabric of the student’s Hi-Vis shirt on the lefthand shoulder, and pulled the student forward for 34 steps. The teacher was a ‘couple of inches from the student’s face shouting quite loudly to him.’ The teacher and student were facing the same direction, standing side by-side. They were 2 m from the other students.
(e) She could not grasp the words, but observed that it was ‘very, very heated.’
(f) The other adult in the courtyard did not react.
(g) She watched for a few minutes. In that time, the teacher ‘let the young man’s shoulder go.’ The grab, and shouting, lasted for less than one minute. ‘The teacher said his piece’ and ‘they all resumed what they were doing.’ The student ‘joined back in to a lesson’, and the teacher went ‘back into the middle of the sand pit and continued demonstrating the lesson.’
(h) The incident ‘just didn’t sit right with me’ and that is why she went to speak to the HR officer. She asked the HR officer who the teacher was. The HR officer asked her why she was asking about the teacher’s identity. When she described what she had observed, the HR officer advised her to inform the principal.
(i) One to two hours after the incident she typed a statement, which states she ‘heard a loud voice of someone yelling and getting angry.’
132 Student BR was interviewed by Ms Pelham and Ms Cann on 21 October 2020. He stated:
(a) He finds Mr Landwehr has a short temper, ‘he can get mad pretty easy.’ This was the worst that has happened, as Mr Landwehr has not grabbed anyone before.
(b) ‘Throughout the whole day we were kind of getting on his nerves, so he was obviously already mad.’ His frustration played out in his facial expressions and tone of voice.
(c) Throughout the day, students were being cheeky with their comments. Mr Landwehr had asked students to help him, but the students would not, and would ‘just sit out, be cheeky.’ This left Mr Landwehr to do the work, which he imagines frustrates Mr Landwehr. When Mr Landwehr was explaining calculations, some of the students ‘will be cheeky about that as well.’ When Mr Landwehr was trying to get students to pay attention to him, they were ‘just all doing other things, their own little things, shooting basketballs in the hoop that’s in the same area.’
(d) There was a small set of students that were helping Mr Landwehr at the time. Mr Landwehr was leaning over in a corner doing some brick paving and the students were standing a maximum of 2 m behind him. The area is ‘rocky all the way around, sandy and rocks where - - - we were just paving it.’
(e) He had a 12 cm rock and asked the students, ‘Should I get this rock and put it down his plumber crack? And then it’s just like laughing around.’
(f) He then went up to ½ m behind Mr Landwehr, and with a tiny little throw with a ‘bit of force behind it’, dropped the rock down Mr Landwehr’s plumber’s crack.
(g) As soon as it happened, he ‘did a quick turn to my left and then walked’ off. He ‘was the only one moving away out of everyone around, so it was pretty obvious it was me especially me laughing as well.’
(h) He heard Mr Landwehr ask, ‘Who did that?’ as he was ‘walking away laughing.’
(i) Within five seconds, when he was 2 m away, he turned around to look at Mr Landwehr, they made eye contact, and Mr Landwehr ‘walked up to’ him and asked him, ‘Why are you doing this?’. ‘He was really frustrated and mad, like you could tell by his tone and face. So and then, um, yeah, he grabbed me by the shirt and he started like to pull me over.’
(j) Mr Landwehr had grabbed him on his left shoulder.
(k) Mr Landwehr was not ‘pulling me around in like a mean way, he was kind of pulling me aside.’ ‘It was just like a little jolt of my body really.’ ‘It wouldn’t have been more than three times.’ ‘It wasn’t really forceful, I mean it was little tugs of my shirt and then obviously I’ve jolted along with the tug.’
(l) Mr Landwehr said that if he was at a TAFE site, it would be more than just a pull by a teacher, he could possibly get hit.
(m) Mr Landwehr ‘was obviously mad, so after he did it he walked off and then I walked off cos I knew I did the wrong thing, so I just left him alone and went back up to my class.’
(n) The rock would not have hurt Mr Landwehr. ‘It just would have just been a frustrating sort of thing.’ The incident lasted a maximum of 10 seconds. The incident was seen by the TAFE lecturer and ‘pretty much everyone in the class.’
(o) Later that day, Mr Landwehr told him, ‘They got us for it’. When he asked what he meant, Mr Landwehr said, ‘the shirt pulling’. Mr Landwehr said, ‘I just want to say sorry for it’. He said, ‘I may as well say sorry for it as well cos, yeah, I did frustrate you.’
133 Ron Simion, TAFE lecturer (Mr Simion) was interviewed by Ms Pelham on 21 October 2020. He stated:
(a) He has been a trade lecturer at TAFE for 30 years.
(b) Every Friday he goes to the School for the whole day.
(c) On Fridays, the attendance rate is 98-99%. Other days of the week, the attendance rate is 65% or less for the 15 boys at the School.
(d) He and Mr Landwehr were doing some brick paving in the courtyard.
(e) Mr Landwehr was ‘bending over and showing the students how to level sand and screed off and make it all flat’ to lay the brick paving.
(f) He and the 15 students were standing in a circle around Mr Landwehr, 2 m away.
(g) Student BR decided it would be funny to put ‘some stones down the back’ of Mr Landwehr’s pants. So ‘he did this and then run off to the fence yelling and screaming and waving his hands around.’
(h) ‘And as soon as he’d done it, [Mr Landwehr] went to the back of his pants and went “What the hell, what - what’s that you put down there?”.
(i) Mr Landwehr ‘got a bit of a shock when it happened. He jumped up and [Student BR] was running - running around the fence being stupid.’ Student BR was 510 m from Mr Landwehr when Mr Landwehr stood up.
(j) ‘Because it’s all - it’s all enclosed. And then he come running back across the front where [Mr Landwehr] was and that’s when [Mr Landwehr] stopped him’ by grabbing him by ‘the front of his shirt’ – at the chest area, below the chin. The fence is 1½2 m from where Mr Landwehr was.
(k) Mr Landwehr and Student BR were facing each other. The grab was a 4-5 out of 10. The grab involved ‘enough aggression to stop him running.’ When Mr Landwehr grabbed Student BR, the student stood still. He did not see anything else happen with his body.
(l) Mr Landwehr said, ‘Hey, you’re being rude, you’re being disrespectful.’ ‘Settle down.’ ‘Cos you’re being stupid and if you don’t settle down’ ‘I’m going to kick you out of the class.’
(m) The incident lasted 20-30 seconds. In this time, Student BR had run to the side fence and then run along the back fence. He was running like an uncoordinated clown, with his arms and legs going in different directions, and he was yelling.
(n) After Mr Landwehr let go of Student BR’s shirt, he told the students to settle down and get back and do some work. The class settled down and everyone ‘got on with it.’
(o) Mr Landwehr is always loud, and the boys are always trying to get a rise out of him. Sometimes it works, and Mr Landwehr will yell at them and they think it is funny.
(p) Some days Student BR will come in and just be rude. Other days he will sit there and just stare off into space.
(q) He thinks that Student BR thought he was being funny, and the only way Mr Landwehr could stop him running around was to grab him.
(r) They are in a work situation, with bricks and holes, and tools on the ground, so if Mr Landwehr did not grab Student BR and he fell over and hit is head there would be a serious occupational health and safety problem. They had pulled out some brick paving and there were brick pavers around, concrete, wheelbarrows and piles of sand.
(s) He does not think it would have made a difference to ask Student BR to stop running, based on having dealt with him for 6-8 months.
(t) Afterwards, the headmaster came and asked him about the incident. He mentioned this to Mr Landwehr, who told him the headmaster had already spoken to him.
Consideration
134 Allegation 3 pertains to Mr Landwehr’s non-compliance with Regulation 38. As such, the Union contends that the investigation needed to objectively evaluate if a potential risk to Student BR’s safety existed, which was justifiable under Regulation 38(c)(i): Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824 (Ayling).
135 The Union argues that no assessment was conducted; however, the Report’s conclusion on page 22 states, ‘On the balance of probabilities, there is sufficient evidence to substantiate this allegation and establish that Mr Landwehr committed a breach of discipline.’
136 Regulation 38 states:
Staff member’s powers to manage etc. students
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.
137 The Guidelines give effect to Regulation 38 and states (original emphasis):
Staff can take reasonable action, including physical contact with a student or a student’s property, to:
· manage or care for a student
· maintain or re-establish order or
· prevent or restrain a person from –
- placing at risk the safety of any person or
- damaging any property.
The action taken must be proportionate to the circumstances of the situation.
When dealing with disciplinary appeals involving physical contact, the WA Industrial Relations Commission has applied the following principles in deciding whether the contact was reasonable:
· physical contact is not appropriate as a response to mere ‘bad behaviour’ by a student, unless there is an actual risk of self harm, or harm to others;
· physical contact is not to be used to discipline students;
· even ‘minimal’ physical contact can be unreasonable if there were reasonable alternatives; and
· even if a student initiates physical contact, the staff member must ensure that any response is linked to what is necessary to deal with the risk of harm, and not continued beyond a point where it is needed. This may include the staff member avoiding if possible any physical contact with the student.
….
The use of clear verbal directions is always preferred to physical intervention. It is not appropriate to make physical contact with a student (e.g. tapping, pushing, grabbing, poking, pulling, blocking, slapping, punching) to ensure they comply with directions. An exception to this rule is if the student is placing themselves or others at risk.
Conflict of evidence regarding running
138 The Union contends that the Report fails to address a conflict in the evidence regarding whether Student BR was walking or running away. In the absence of further inquiry, the Union argues this conflict should have been resolved in Mr Landwehr’s favour.
139 In the First Response, Mr Landwehr states that Student BR put a rock down the back of his pants ‘and then ran off’ and he ‘got up to stop him.’
140 Mr Simion’s evidence was that he, and the students, were standing in a circle 2 m from Mr Landwehr. Student BR put some stones down the back of Mr Landwehr’s pants and ran off to the fence yelling and screaming and waving his hands around, like an uncoordinated clown. When Mr Landwehr jumped up, Student BR was 510 m away, having run to the side fence. Student BR then ran along the back fence, which was 1½2 m away, when Mr Landwehr grabbed him, and loudly asked, ‘What are you doing?’.
141 Ms Hunt gave evidence that Mr Landwehr was in the middle of 6 sqm of sand and the students were standing in a semi-circle watching. She heard shouting, turned around and saw Student BR walking away from Mr Landwehr as Mr Landwehr stepped out of the sand and took 2-3 steps towards Student BR and grabbed him.
142 Student BR gave evidence that Mr Landwehr was leaning over doing some brick paving and the students were standing behind him, a maximum of 2 m away. He went up to ½ m behind Mr Landwehr and dropped a rock down Mr Landwehr’s pants. He did a quick turn to his left and walked off. Within five seconds he was 2 m away and Mr Landwehr had walked up to him and grabbed him.
143 The evidence of Mr Simion, Ms Hunt and Student BR was that Mr Landwehr was bent over demonstrating screeding to the students and the students were standing in a semicircle around him. The evidence of Mr Simion and Student BR was that the students were 2 m away. Student BR and Ms Hunt state that Student BR walked away from Mr Landwehr. Student BR says he was 2 m from Mr Landwehr when Mr Landwehr grabbed him. This is corroborated by Ms Hunt who stated that Mr Landwehr took 2 -3 steps towards Student BR before grabbing him.
144 Given the consistencies in Ms Hunt’s and Student BR’s account, I find it is more likely that Student BR walked away from Mr Landwehr after dropping the rock down Mr Landwehr’s pants, rather than ran away.
145 Whilst Mr Simion’s evidence is that Student BR was running, and this is consistent with Mr Landwehr’s statement in the First Response that Student BR ‘ran off’, there are aspects of Mr Simion’s evidence that are inconsistent with the generally consistent evidence of Ms Hunt and Student BR.
146 Firstly, Ms Hunt and Student BR gave evidence that in the seconds between Mr Landwehr first yelling and then grabbing Student BR, that Student BR was 2 m, or 2-3 steps, from Mr Landwehr. In contrast, Mr Simion stated that Student BR had run 510 m in this time.
147 Secondly, Ms Hunt and Student BR gave evidence that Mr Landwehr had grabbed Student BR’s shirt at his left shoulder. In contrast, Mr Simion stated that Mr Landwehr had grabbed Student BR’s shirt at the chest area, below his chin.
148 Thirdly, Ms Hunt and Student BR gave evidence that after Mr Landwehr had grabbed Student BR, that Mr Landwehr had pulled Student BR such that Student BR had been pulled forward by a few steps. The pulling was described by Student BR as being jolted along with no more than three tugs. In contrast, Mr Simion’s evidence is that after Mr Landwehr grabbed Student BR, that he did not see Student BR’s body move at all, describing Student BR as standing still.
149 Fourthly, Student BR gave evidence that Mr Landwehr said to him that, ‘If you were at a work site it would be more than a pull by a teacher, you could possibly get hit’. The Allegations Letter states that Mr Landwehr shouted these words at Student BR. The Union’s written submissions states that this aspect of Allegation 3 is not disputed. In contrast, Mr Simion’s evidence was that Mr Landwehr did not make any reference to Student BR being in a workplace, but made the comment that Student BR was being rude and disrespectful and if he did not settle down that he would be kicked out of the class.
Regulation 38
150 The Union contends that the Report lacks an examination of whether Mr Landwehr’s contact with Student BR complied with Regulation 38(c)(i).
151 I disagree. The analysis on page 21 of the Report states (emphasis added):
Mr Landwehr stated he used physical contact with [Student BR] to address safety and welfare concerns as [Student BR] could have harmed himself on the nearby work tools/materials. Mr Simion provided evidence that there were bricks, tools and holes in the area and an accident could have occurred if [Student BR] ran around.
Contrary to Mr Landwehr’s and Mr Simion’s statement regarding safety concerns, the evidence provided by Mr Simion, Ms Hunt and [Student BR] supports that Mr Landwehr actions towards [Student BR] were not in the context of addressing safety concerns but in angry retaliation to [Student BR] dropping a rock down his pants. Of significance, Mr Landwehr and the witnesses provided evidence that immediately after [Student BR] dropped the rock down Mr Landwehr’s pants, Mr Landwehr walked towards [Student BR], took hold of his clothing shoulder and verbally chastised him for putting a rock down his pants.
…
The Accident/Incident Investigation Report (AIIR) Form, completed by Mr Landwehr (Attachment F) makes no mention of any safety concerns regarding [Student BR] or the class during the incident. Mr Landwehr stated on the AIIR Form, that ‘I grabbed the student by the shoulders and chastised him for his behaviour’, this being further evidence that Mr Landwehr was reacting to [Student BR’s] behaviour as opposed to addressing any safety concerns or preventing any harm to [Student BR]/the class.
152 Based on the above passages in the Report, it can be reasonably inferred that Mr Landwehr’s conduct was considered in the context of Regulation 38(c)(i) but ultimately rejected.
153 Ayling provides that when considering whether an act placed at risk the safety of a student, the test is objective and not subjective. The test is whether a reasonable person in all the circumstances would consider there was a risk to the safety of the student: Ayling [157]. The concept of risk conveys the possibility of danger rather than actual danger: Ayling [157] citing R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 (1177).
154 Given that I have found that the evidence supports Student BR was walking (rather than running) away from Mr Landwehr when the physical contact occurred, I do not consider Mr Landwehr’s claim that he made physical contact with Student BR because there was a possibility of danger to Student BR’s safety to be sustainable for the following reasons.
155 Mr Simion’s evidence was that there were bricks and holes, tools, brick pavers, concrete, wheelbarrows and piles of sand around, which is consistent with Mr Landwehr’s statement in the First Response that, ‘there was tools and other construction material around that could potentially cause harm to [Student BR].’
156 However, Student BR’s evidence was that the area was ‘rocky all the way around, sandy and rocks where - - - we were just paving it.’
157 Further, there was no mention of any safety risk in the account given by Mr Simion and Student BR to Nathan Brown, Deputy Principal immediately following the incident, which was recorded in an email Mr Brown sent to the Principal and Rowena Howe on 25 September 2020 at 11.48am. The email concludes, ‘I am going to get a relief to sit in now and get [Mr Landwehr] to fill out the incident report.’
158 There was also no mention of any safety risk in the Accident/Incident Investigation Report (AIIR) Form completed by Mr Landwehr on 25 September 2020 (Form). On the Form, the incident is recorded as occurring at 9.50-10am. On the Form, Mr Landwehr states that the incident was contributed by ‘The child’s/students action/behaviour’, and in the section, ‘What (if any) training has been received for the task?’ Mr Landwehr states, ‘Behaviour Mgt – teacher.’
159 Mr Brown countersigns the Form, noting that ‘4 parties were involved in or witnessed part of or all of the incident’, and in the section ‘Contributing factors’ that, ‘The incident was initiated by the students poor behaviour’.
160 Had there been a possibility of danger to Student BR’s safety, justifying Mr Landwehr’s physical contact, it would have been logical for both Mr Simion’s report to Mr Brown immediately after the incident and Mr Landwehr’s account upon completing the Form to mention the safety concern.
161 Although the immediate area may have contained equipment and potential trip hazards, considering I have found it more likely that Student BR was walking (not running) away from Mr Landwehr when the physical contact occurred, I do not find it likely that the equipment or the site itself posed a risk to Student BR’s safety.
162 The Union contends that the Report dismissed the accounts of Mr Simion, Mr Landwehr and Student BR, who were involved in and present at the incident, as being ‘from a tradesperson point of view in the workplace.’
163 The full context of the analysis on page 22 of the Report follows:
The accounts provided by Mr Landwehr, Mr Simion and [Student BR] appeared to be from a tradesperson point of view in the workplace, in that [Student BR] instigated the incident so Mr Landwehr’s reaction to [Student BR] was reasonable and not all that serious. Neither Mr Simion or [Student BR] are Departmental employees and may not understand the Department’s expectations of a teacher. Ms Hunt, being an independent witness to the incident and a Departmental employee, perceived that someone should have intervened between Mr Landwehr and [Student BR], this being a reasonable expectation based on the circumstances of the incident.
164 It can be reasonably inferred from the above passage that the accounts were evaluated based on the evidence presented. In the First Response, Mr Landwehr states that the class was a Certificate II in Building and Construction, and regarding Student BR he states, ‘I got up to stop him, I placed my hands on his shoulders to calm him down and explained the consequences of the impact of his actions should it be a real work site’. Mr Simion, when questioned, stated he did not recall Mr Landwehr referring to the site as a workplace, but suggested that if such a reference was made, it would have been a good one, as Student BR would have faced dismissal for putting a rock down someone’s pants in the workplace. Student BR’s evidence was that he understood Mr Landwehr’s comment to him, because ‘obviously they’re trying to prep us for when we go into a TAFE course. And obviously if we’re going around on a worksite putting rocks down people’s plumber cracks and obviously there is a big possibility we could get hit for it.’
165 It is also reasonably clear, that the analysis evaluates the evidence against the Department’s expectations for a teacher. In situations where physical contact occurs in a workplace, relevant factors include provocation and the reasonable proportionality of the response: 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 [13].
166 In contrast, the Guidelines state, ‘physical contact is not appropriate as a response to mere “bad behaviour” by a student’ and, ‘It is not appropriate to make physical contact with a student (e.g. tapping, pushing, grabbing, poking, pulling, blocking, slapping, punching) to ensure they comply with directions.’
167 Further, the issue of provocation of a teacher by a student is not to be seen in the same way as provocation between fellow employees: Landwehr No. 4 [22].
168 Under the circumstances, I find the analysis in the above passage (as appears on page 22 of the Report) to be reasonable in assessing whether Mr Landwehr’s conduct constituted a breach of Regulation 38.
169 The Union additionally argues that this passage refers to Ms Hunt as an independent witness, while not attributing a similar characterisation to Mr Simion, who provided a firsthand eyewitness account of the incident. It also inaccurately attributes to Ms Hunt that she ‘perceived that someone should have intervened between Mr Landwehr and [Student BR]’ which Ms Hunt did not actually provide as evidence.
170 I disagree. Ms Hunt’s evidence was that she was not involved in the incident, observed it from her office window, and did not know any of the individuals involved. Given these circumstances, I do not consider it unreasonable to describe her as an independent witness.
171 Further, Ms Hunt’s evidence was on the following terms, and consistent with the statement in the Report that she ‘perceived that someone should have intervened’:
[A]nd nobody else sort of - I mean everyone was sort of, you know, watching sort of a little dumbstruck and the other teacher didn’t react either.
…
I was quite surprised cos I was waiting for the student to actually, ah, retaliate or push or - or whatever but, um, he didn’t. And no one came to his aid or even reacted because I then looked at the other teacher to see if the other teacher was going to intervene. But there was nothing, nobody flinched.
172 The Union contends that the Report erroneously attributes statements to Mr Simion, Ms Hunt and Student BR, specifically that Mr Landwehr’s ‘actions towards [Student BR] were not in the context of addressing safety concerns but in angry retaliation to [Student BR] dropping a rock down his pants.’ The Union also contends that the analysis on page 21 of the Report stating, ‘The evidence shows that Mr Landwehr’s demeanour at the time was angry and aggressive’ lacks supporting evidence and is highly prejudicial.
173 I disagree. The evidence is that Ms Hunt prepared a statement within 1-2 hours of the incident, which states, ‘As I was doing my work, I heard a loud voice of someone yelling and getting angry.’
174 This aligns with Ms Hunt’s interview, in which she stated she turned around upon hearing a loud, emotionally driven voice, and observed Mr Landwehr ‘shouting quite loudly’ at Student BR from a couple of inches from Student BR’s face.
175 Further, this is consistent with Student BR’s evidence that Mr Landwehr was ‘really frustrated and mad, like you could tell by his tone and face’, and Mr Simion’s evidence that Mr Landwehr loudly said to Student BR, ‘What are you - what are you doing?’
176 The Union objects to the analysis on page 21 of the Report stating, ‘Mr Landwehr could have refrained from using physical contact and in the first instance he could have verbally addressed [Student BR’s] behaviour in order to deescalate the situation’, when the evidence of Mr Simion was diametrically opposed to that conclusion.
177 The Union submits that the incident happened quickly, and the evidence of Mr Landwehr and Mr Simion was that it was unrealistic or unreasonable to expect Mr Landwehr to make a verbal attempt before making physical contact in the circumstances.
178 Whilst Mr Landwehr addresses Student BR’s general behaviour in the First Response, he does not address first making a verbal attempt before making physical contact with Student BR:
[Student BR] can be a distracting student. He can get worked up quickly, become very hyperactive and act out in ways that could harm himself or others. I have to constantly deal with his behaviours and calm him down. I need to get him to stop doing what he is doing and get focussed on settling him down in order to keep both him and the class safe from some of his behaviours.
179 Mr Simion gave evidence that considering his experience dealing with Student BR for 68 months, even if Mr Landwehr had told Student BR to stop running, it would not have made a difference. Mr Simion gave further evidence that if Student BR is in a blank mood, he will stare off into space, while in ‘more agro moods’ he needs to be told four or five times before the message sinks in.
180 The Proposed Outcome Letter outlines the expectations for Mr Landwehr to first attempt other non-physical interventions (emphasis added):
Physical contact with students should be avoided, both for their protection and to safeguard staff members. Any physical contact used on a student must be reasonable, proportionate and necessary in the circumstances and should only be used when all other non-physical interventions have been considered and exhausted.
You are responsible for establishing and maintaining professional boundaries in your interactions with students to help protect everyone from any misunderstandings or a violation of the professional teacher/student relationship.
In particular, I acknowledge in your response that you believe your physical contact with [Student BR] was minimal. In the circumstances, however, physical contact with [Student BR] was not required. Your actions towards [Student BR] reflect that you were reacting to his poor behaviour, not for any other reason. As such, you breached your professional boundaries with [Student BR].
181 The Proposed Outcome Letter attaches the Report. The Report summarises Mr Simion’s evidence on page 14 as follows:
It would not have made any difference if Mr Landwehr had told [Student BR] to stop running around, because [Student BR] was unpredictable and did not comprehend [what] he was told. [Student BR] was being stupid and the only way Mr Landwehr could stop [Student BR] from running around was to grab him.
182 The Report also contains the following analysis on page 21:
There is no evidence that Mr Landwehr verbalised safety concerns to [Student BR] during the incident or addressed his behaviour in any other way than immediately utilising physical contact and chastising him. Mr Landwehr could have refrained from using physical contact and in the first instance he could have verbally addressed [Student BR’s] behaviour in order to deescalate the situation.
183 In the Second Response, Mr Landwehr states:
When the student made unexpected physical contact with me, with the intention of pulling some kind of prank, this was in a similar fashion and in a similar physical way to how I was previously assaulted in the workshop. This previous assault was very traumatic on me and I have not completely recovered from the memory and the emotional hurt of the incident.
This caused me to react completely by surprise and seemed to trigger my bodies natural defence response to being assaulted again. It was a complete nervous reaction that shocked me and, regrettably I did make contact with Blake. I believed at the time I was giving him an appropriate warning about his conduct, with concerns for his safety had he done this to somebody else in the future who may not take kindly to his actions.
184 In the Second Response, Mr Landwehr refers to a ‘nervous reaction’ to the ‘unexpected physical contact’. Whilst the Proposed Outcome Letter and the Report specify the expectation of Mr Landwehr to first attempt non-physical interventions, Mr Landwehr does not address this in the Second Response. He did not, at the time, contend that nonphysical intervention would have been futile in the circumstances.
185 Consequently, I find it was reasonable for the Report to conclude that, consistent with the Guidelines, Mr Landwehr should have initially attempted a non-physical intervention, which he did not do.
186 The Union contends the Report reached a wrong and misleading conclusion that was not reasonably available on all of the evidence, namely that:
It is reasonable to conclude Mr Landwehr reacted in a disproportionate and angry manner to a seemingly innocuous practical joke by [Student BR], where there was no danger to anything but Mr Landwehr’s pride. Based on Mr Landwehr’s reaction to [Student BR], it is likely that he felt somewhat taunted or agitated by [Student BR’s] behaviour. Mr Landwehr was not physically provoked or threatened by [Student BR] and there was no justifiable reason for Mr Landwehr to use physical contact with [Student BR] in the manner that he did. His actions were unreasonable and unnecessary.
187 I disagree. Student BR’s evidence was that the rock being dropped down Mr Landwehr’s pants would not have caused any pain, only frustration.
188 Additionally, considering I have found it more likely that Student BR was walking (not running) away from Mr Landwehr thus no risk to Student BR’s safety existed, and it was reasonable for Mr Landwehr to attempt a non-physical intervention before making physical contact with Student BR as required by the Guidelines, I find the Report’s conclusion to be reasonable in light of all the circumstances.
189 For the preceding reasons, I find that Mr Landwehr’s physical contact with Student BR was not reasonable contact that was excused by Regulation 38(c)(i) and I find it was reasonable for the Report to state that Mr Landwehr’s ‘actions towards [Student BR] were not in the context of addressing safety concerns.’
Other contentions regarding the Report
190 The Union contends that the analysis on page 21 of the Report that Student BR ‘indicated Mr Landwehr looked mad and as if he may strike [Student BR]’ was taken from the evidence of the Deputy Principal that was inconsistent with Mr Simion’s evidence. The Union objects to this evidence as hearsay evidence because the Deputy Principal was not interviewed by Ms Pelham as part of the investigation into Allegation 3.
191 Mr Simion’s evidence was that he did not believe Mr Landwehr intended to fight Student BR. Based on his experience working with Mr Landwehr for 6-9 months, Mr Simion stated that even when students try to bait and rile Mr Landwehr, he may yell and scream, but has never reached a point where Mr Simion thought he would hit or fight a student.
192 This is consistent with Student BR’s evidence that Mr Landwehr has ‘a very short temper’, and ‘can get mad pretty easy’, although, ‘this is the worst I would say has ever happened and, um, he’s never actually grabbed anyone before or anything else.’
193 However, this is inconsistent with a record made by the Deputy Principal within two hours of the incident. The Form notes that the incident occurred at 9.50-10am, and the Deputy President sent the email at 11.48am, summarising what Mr Simion and Student BR had informed him on the morning of the incident. The Report attaches both the Form and the email. The email states (emphasis added):
Upon the rock hitting/going down the pants (unsure), Mr BL turned and grabbed [Student BR] by his shirt around the left shoulder region and dragged [Student BR] around a little bit. [Student BR] said that Mr BL was yelling at him to stop doing stupid stuff. [Student BR] noted that BL looked very mad and looked like he may strike [Student BR] but BL did not physically hit him. The whole incident was over in 5 to 10 seconds according to [Student BR].
194 Given the nature and timing of the Deputy Principal’s email, I do not find it unreasonable for the email to be included in the Report. Where the rules of evidence do not apply, an investigator is entitled to base their conclusions on material that has probative value, with the weight to be given to such material being a matter for the investigator: Parnell v The Roman Catholic Archbishop of Perth [2021] WAIRC 00102; (2021) 101 WAIG 186 citing Parnell v The Roman Catholic Archbishop of Perth [2020] WAIRC 00420; (2020) 100 WAIG 1216 [177].
195 Further, given that the Report accurately summarises and includes the Deputy Principal’s email in its entirety, I do not find it unreasonable for the analysis to refer to the email’s content.
196 The Union contends that the Report neglects to mention the class being a VET class aimed at preparing students for placements with employers, even though this information would have been reasonably accessible during the investigation.
197 I disagree. The Report summarises the evidence of the witnesses on pages 12-15. On page 12, Student BR’s evidence is summarised to include reference to a TAFE site, and Mr Simion is noted as a TAFE Lecturer. Further, the Deputy Principal’s email of 25 September 2020 is attached and refers to the class as the ‘BCN Cert class’, and the First Response is attached, in which Mr Landwehr states that the class is a ‘Certificate II in Building and Construction.’
198 The Union submits that the remark Mr Landwehr made to Student BR that, ‘If you were at a work site it would be more than a pull by a teacher, you could possibly get hit’ was made in the context of preparing students for work placement. However, if the comment was problematic such as to amount to wrongdoing or misconduct, it could have been addressed with counselling or coaching.
199 The analysis on page 21 of the Report states:
It could be accepted that Mr Landwehr had good intentions towards [Student BR] in terms of addressing safety concerns and [Student BR’s] behaviour, however, the manner in which he acted does not reflect good intentions by a teacher in a school setting.
…
It is not considered to be Mr Landwehr’s role as a teacher to explain to a student when/how physical violence could occur in the workplace. As, such a verbal reference by Mr Landwehr is considered inappropriate.
200 If Mr Landwehr’s remark to Student BR was made in isolation, it may have been reasonable to conclude that counselling or coaching may have been a proportionate response. However, the remark was made concurrently with the physical contact.
201 Given I have found that it was reasonable for the Report to conclude the contact was a reaction in ‘a disproportionate and angry manner to a seemingly innocuous practical joke by [Student BR], where there was no danger to anything but Mr Landwehr’s pride’, I further find that it is reasonable for the Report to conclude that a remark made in such circumstances is inappropriate and contrary to the Code of Conduct.
202 The Union contends that the Report fails to mention Mr Simion’s evidence regarding 9899% attendance in Mr Landwehr’s class compared to attendance on other days of the week, which would have been relevant to the broader context of the incident and presented Mr Landwehr positively. However, I do not find this argument assists Mr Landwehr for the following reasons.
203 Firstly, the Report does not include everything a witness stated during their interview. Four witnesses were interviewed regarding Allegation 3. The Report summarises these interviews, Attachments I-K and the First Response across three pages, with the analysis and conclusion across 1½ pages.
204 Secondly, a single incident of an unreasonable use of force by a teacher against a student, unless permitted by Regulation 38, is ‘culpable and inexcusable, and would justify dismissal’: Landwehr No. 4 [65].
205 The Union disputes that Mr Landwehr’s physical contact was driven by frustration from having a rock placed down his pants. The Union further asserts that even if there was a finding that the contact was made out of frustration, considering this was a VET class, the contact took place in a reasonably restrained manner.
206 I disagree for the following reasons.
207 Firstly, absent a valid reason for making physical contact with a student, physically moving a student by grabbing their clothing is not considered to be minimal or restrained contact: James.
208 In James the College found Year 7 teacher Mr James’ actions unreasonable, rejected his contentions that he used minimal force out of a concern for the safety of students, and found his actions amounted to misconduct [6]. Mr James gave evidence that the student was being disruptive and refused to return to his seat, so Mr James grabbed the back of the student’s blazer collar with his left hand, adjusted the student’s seat with his right hand, and put the student down on his seat [28]. Mr James acknowledged that The Victorian Teaching Profession Code of Conduct prohibits the touching of a child without a valid reason, and claimed he considered the student to be a threat to the welfare of the other students, and as the student was small, he only moved the student 11½ m [31]-[32]. Fair Work Commissioner Bissett accepted the student was a difficult and unruly child, but found, ‘I have trouble conceiving a circumstance where it is appropriate to lift a student off the floor by the collar of his blazer. Even if there were grounds that warranted MF being touched or lifted by Mr James, the way he did go about that is astounding. Further, Mr James lifted MF high enough to place him on his seat, clearly higher than necessary to move him out of harm’s way’ [85].
209 Secondly, whilst the class was a VET class, in circumstances where I have found it was reasonable for the Report to conclude that ‘Mr Landwehr reacted in a disproportionate and angry manner’, it follows that Mr Landwehr’s statement in the First Response that the contact was ‘minimal, and appropriate at the time in order to maintain the safety of the class and to ensure [Student BR’s] welfare as there was tools and other construction material around that could potentially cause harm to [Student BR]’ is unable to be substantiated.
210 The Union contends that the Report reached an exaggerated conclusion, unsupported by any evidence, and inconsistent with the whole of the evidence, that Mr Landwehr’s conduct ‘could have escalated the incident resulting in [Student BR], or another student/staff member, physically retaliating against Mr Landwehr.’
211 I agree that there is no evidence suggesting the potential for another student/staff member to physically retaliate against Mr Landwehr. However, I disagree with the claim that there is no evidence regarding the possibility of Student BR retaliating against Mr Landwehr. Ms Hunt’s evidence was that she ‘was quite surprised cos I was waiting for the student to actually, ah, retaliate or push or - or whatever but, um, he didn’t.’
212 In any event, the full context follows (emphasis added):
It is reasonable to consider that Mr Landwehr’s action of physically grabbing and moving [Student BR] (a Year 11 Student), could have escalated the incident resulting in [Student BR], or another student/staff member, physically retaliating against Mr Landwehr.
213 Given Ms Hunt’s evidence of the potential for Student BR, a Year 11 student, to retaliate against Mr Landwehr, I find it reasonable for the Report’s analysis to state that Mr Landwehr’s actions ‘could have’ escalated the incident.
Conclusion regarding Allegation 3
214 For the reasons stated, I find that Mr Landwehr’s physical contact with Student BR was not authorised by Regulation 38, consistent with the analysis on page 21 of the Report that:
Contrary to Mr Landwehr’s and Mr Simion’s statement regarding safety concerns, the evidence provided by Mr Simion, Ms Hunt and [Student BR] supports that Mr Landwehr actions towards [Student BR] were not in the context of addressing safety concerns but in angry retaliation to [Student BR] dropping a rock down his pants.
215 Therefore, as outlined in the Allegations Letter, Mr Landwehr’s conduct breached:
(a) Regulation 38; and
(b) the Code of Conduct.
216 As to a consideration of the mitigating circumstances at DrakeBrockman [66], the Proposed Outcome Letter states that the respondent expressly considered Allegation 3 in the context of Mr Landwehr’s employment history, and his disciplinary history in relation to similar incidents to Allegation 3. The Proposed Outcome Letter states:
I have considered your 15 years of employment with the Department and your significant experience as a Design and Technology teacher.
I also have considered your discipline history and the fact that you were previously found to have committed a breach of discipline on 10 June 2015, in relation to similar incidents to allegation 3. As a result, you received a fine of one day’s pay, a reprimand, and improvement action by way of counselling from your principal regarding the Department’s policies on physical contact and completion of the Department’s online Accountable and Ethical Decision Making course.
In relation to the reprimand you received, you were informed that the community has an expectation that Departmental employees will behave in a manner that reflects the important role they have in modelling community values and standards. It was deemed that your actions were wholly inconsistent with these values and standards.
It was made clear to you that a repeat of this kind of behaviour may well have more serious repercussions. I consider that your conduct as outlined in the allegations, particularly allegation 1 and 3, are serious matters. I must have confidence that someone in your position will properly perform their duties and act appropriately in the presence of students. I no longer have trust or confidence in you to perform your duties to the required standard.
Of concern, and relevant to my decision, I note the six incidents relating to the allegations occurred within a five month period in 2020, and four of these allegations relate to physical contact with students.
217 The breach of discipline on 10 June 2015 was summarised in Landwehr No. 2 as follows:
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 decisionmaking and undertake counselling [5].
218 The Dismissal Letter refers to another incident in 2012:
In 2012, you received improvement action from Mr Neale Armstrong, Principal, Western Australian College of Agriculture – Harvey, in respect to a complaint that you used unnecessary physical contact, by grabbing a student and swinging him towards a bin, in reaction to him verbally abusing you. It is recorded that Mr Armstrong counselled you about the Department’s policies on physical contact and provided you with the Department’s Code of Conduct 2011. In relation to your improvement action Mr Armstrong recorded:
§ In an email to you, dated 6 August 2012, “… the meeting between you and I on July 6th 2012, was an important part of the process to understand how some situations can very quickly become inflamed. Your assurances of choosing a different student management option and personal letter outlining some issues you were dealing with in your private life, together with the view that this was a one off event, leads to the belief that you have learned a great deal from this situation, and acceptance, that should this situation arises in the future, the outcomes are very likely to be different.”
§ “Mr Landwehr agreed to step back from issues when confronted by students, look at cues when students are baiting staff and take a few breaths before over reacting.”
219 The Dismissal Letter also refers to the education and training provided to Mr Landwehr in relation to the Department’s expectations regarding physical contact with students, namely, Classroom Management Strategies workshops on 14 August 2019, 12 September 2019 and 24 October 2019, and the Department’s on-line Accountable and Ethical Decision Making course on 30 July 2012 and 26 May 2015.
220 The Dismissal Letter states:
I would have expected that given the previous counselling, education, training and your ongoing assurances, that you would understand the standard of behaviour expected in your role.
Of relevance, the Director General’s letter to you in 2015, regarding your physical contact with a student stated:
· A repeat of this kind of behaviour that resulted in the need for this action may well have more serious repercussions.
· To avoid any further allegations of misconduct, the Director General directed you to avoid the behaviour that resulted in that finding of a breach of discipline.
221 Prior acts of misconduct are relevant as background to the assessment of the cumulative significance of subsequent conduct: Connor [50].
222 Connor [50] states (footnote omitted) (emphasis added):
The relevant principle was stated by Shepherd J in John Lysaght (Australia) Ltd v Federated Iron Workers Association; Re York:
“It is no doubt possible for the company to waive particular acts of misconduct that would otherwise have justified dismissal without notice. These particular acts could not subsequently be used for this purpose once the decision was made not to rely on them. The act of misconduct, however, does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man’s service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act or misconduct should not bring about a dismissal.”
223 The Union accepts the respondent was entitled to consider Mr Landwehr’s prior physical contact with students and does not challenge the prior contact as irrelevant or as unsubstantiated: cf Puccio v Catholic Education Office (1996) 68 IR 407 (Puccio) (418).
224 However, the Union argues that Allegation 3 should have been differentiated from the prior incidents because the contact in Allegation 3 was authorised by Regulation 38.
225 For the reasons stated, I do not consider Mr Landwehr’s contact with Student BR was authorised by Regulation 38. Therefore, I find the respondent was entitled to place weight on his disciplinary history for the reasons outlined in Puccio (emphasis added):
It cannot be doubted that to dismiss a school teacher with 13 years experience on the ground of serious misconduct is a matter likely to cause considerable hardship to him and indirectly to his family, and to impair, if not destroy, his future prospects for employment as a teacher. Those are matters appropriately to be weighed, and they were, in my view, given serious consideration by the respondents. On the other hand the care, safety and well-being of students is a matter also entitled to great weight. Where a teacher commits a clear breach of a direction squarely related to safety and welfare issues after due warning, the school, generally speaking, will be left with no option but to terminate the services of the teacher. To allow the teacher to continue would be to allow a foreseeable risk of further transgression by the teacher to occur. The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee’s capacity or conduct within the meaning of s 170DE(1) of the Act to dismiss an employee even where reported misconduct is disputed by the employee: see Sangwin v Imogen (unreported, Industrial  Relations Court of Australia, von Doussa J, 8 March 1996) (417).
226 The Union contends that dismissal for Allegation 3 is unjustifiable when Mr Landwehr continued to teach at the School for over a year, without further incident.
227 In Scott, Ms Scott admitted to tapping a student on the head, although she denied that she used an unreasonable degree of force [123]. The employer summarised Ms Scott’s conduct as ‘relatively minor’ and therefore subjected the penalty of reprimand, which the Commission characterised as unfortunate [130]. The Commission found Ms Scott’s conduct was not covered by Regulation 38. Further, notwithstanding the lengthy time to pursue the disciplinary process (over 16 months), the Commission found the penalty was reasonable and that Ms Scott was afforded natural justice and procedural fairness [125], [133].
228 For the reasons outlined in relation to Allegation 1, given the number and seriousness of the allegations, I do not find a disciplinary period of 7-8 months between the Allegations Letter and the Dismissal Letter to be prejudicial to Mr Landwehr (as submitted by the respondent, the alternative would have been to suspend Mr Landwehr without pay), or to render a justifiable dismissal unjustifiable in the circumstances.
229 For the preceding reasons, I am satisfied the respondent has discharged the onus of establishing that Mr Landwehr was guilty of Allegation 3 and that the misconduct justified dismissal: DrakeBrockman [66].
Procedural fairness
Union’s contentions
230 The Union raises three grounds of serious denials of procedural fairness in relation to Mr Landwehr’s dismissal.
231 Firstly, the Union contends that the disciplinary process was marred by apprehended bias and noncompliance with the Commissioner Instruction and s 22A of the PSM Act, because of Ms Pelham’s participation in the compressed air incident investigation.
232 Secondly, the Union maintains that Ms Pelham failed to conduct a thorough investigation conforming to the Discipline Standard and s 21 of the PSM Act.
233 Thirdly, the Union asserts that Mr Landwehr was denied the chance to address the Investigation Outcome Briefing Note (Briefing Note 1) and the Disciplinary Outcome Briefing Note (Briefing Note 2), which they allege distort the evidence and contain prejudicial statements.
Respondent’s contentions
234 The respondent maintains that disciplinary proceedings are summary and administrative, functioning as a means for employers to gather evidence in order to ascertain if a condition of employment has been breached.
235 The respondent argues that a fair-minded lay observer would not conclude bias from Ms Pelham’s involvement in the compressed air incident investigation. Rather, a fairminded lay observer would consider Ms Pelham’s employment in SID and her participation in a related investigation involving the same employee and similar circumstances as unremarkable.
236 The respondent argues that the Briefing Notes are internal documents, summarising the evidence and recommending the proposed action, with all pertinent material submitted to the respondent for examination. Moreover, there is no evidence implying the respondent was biased or unable to make, or did not make, the dismissal decision.
Consideration
Bias
237 The Union relies on the cases of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Minister for Immigration and Multicultural Affairs v Legeng (2001) 205 CLR 507, Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester), Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (Ex parte H), McGovern v KuRing-Gai Council [2008] NSWCA 209; (2008) 251 ALR 558 (McGovern), Greyhound Racing NSW v Cessnock & District Agricultural Association Inc [2006] NSWCA 333 and Webb v The Queen (1994) 181 CLR 41 as establishing the principles for determining an allegation of apprehended bias.
238 The Union also relies on Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (Hot Holdings) (448-449) [22]-[24] (Gleeson CJ), Isbester [60] (Gageler J) and Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 [101][103] (French J) as authority for the proposition that the respondent can be deprived of the appearance of impartiality if she acted on the recommendation of Ms Pelham and Ms Pelham’s involvement and conduct gives rise to an apprehension of bias.
239 The Union submits that the test for perceived bias is the same as the test for apprehended bias: Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 [94], where the Commissioner Instruction, issued pursuant to s 22A of the PSM Act, required the disciplinary process to be fair and free of perceived bias.
240 The Commissioner’s Instruction states:
When acting under Part 5 of the PSM Act (Divisions 1 and 3), employing authorities must comply with the PSM Act, the rules of procedural fairness, the Discipline Standard (Public Sector Standards in Human Resource Management) and this instruction.
…
The employing authority is to ensure that he or she, or any delegate or authorised person, acts fairly when dealing with disciplinary matters and that all issues of perceived or actual bias, or conflicts of interest are appropriately recorded and resolved.
241 The statement of agreed facts notes that ‘the Union forwarded’ the First Response and the Second Response to the respondent. The respondent maintains that Mr Landwehr was represented by the Union (an organisation specialised in providing industrial support and representation) during the disciplinary process, and the bias issue was not raised until these proceedings. Consequently, the respondent remained unaware of the bias allegation and was unable to address it before finalising the decision to dismiss Mr Landwehr. The respondent contends that this should be differentiated from a scenario where Mr Landwehr raised the bias allegation with the respondent, and she did not address it.
242 Regardless, the respondent maintains there was no bias. Ms Pelham did not investigate Allegation 1 and Allegation 3 single-handedly. The interviews were generally conducted by a pair of SID investigators.
243 The general approach to whether there is a reasonable apprehension of bias is whether a fairminded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power: McGovern [9], [42], [72], [82]-[83], [113].
244 The application of the apprehended bias rule, when considered outside the judicial system, must accommodate the different nature of the body or tribunal whose decision is in question and the different character of its proceedings. Attention must be paid to the relevant statutory provisions, if any, the nature of the inquiries to be conducted, and the specific subject matter associated with the decision under consideration: Ex parte H [5].
245 In examining allegations of employee misconduct, the respondent contends that the rules concerning apprehended bias do not apply to investigators unless the perceived bias reaches a level that could potentially undermine the impartiality of the ultimate decisionmaker in the determination they render.
246 The respondent asserts that for any bias attributable to Ms Pelham to be of consequence, it would need to influence the respondent’s decision in such a manner that she did not, or could not, apply an independent mind to the decision free of that bias.
247 In the case of immigration officers, the obligation to act in a way that does not generate a reasonable apprehension of bias is applicable to all ‘officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officers plays an important part in the process, and if a person with such a role does not act impartially, the decision itself cannot be said to have been made in an impartial manner’: McGovern [181] citing Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 [45].
248 In Hot Holdings [24], Gleeson CJ explained that a distinction must be drawn between an officer having ‘a central role’ and one whose involvement was ‘peripheral’ and whose contribution was not significant: McGovern [182].
249 Ms Pelham conducted 11 interviews, eight of which were conducted together with another SID investigator. The Report includes spaces for the typed name, position and signature for three members of SID – Ms Pelham, Mr Milward and Mr Wells. The Report was signed by Ms Pelham and Mr Wells on 30 July 2021.
250 The respondent submits that the escalation process for the Report was for it to be escalated to Craig Ward (A/Executive Director, Professional Standards and Conduct) (Mr Ward) for review, before being escalated to the respondent to make a decision regarding the Proposed Outcome Letter.
251 The respondent submits that the escalation process for Briefing Note 1 is similarly escalated to Mr Ward for endorsement, before being escalated to the respondent to make a decision. Briefing Note 2 is escalated to Darren Wallis (A/Director, SID) for endorsement, before being escalated to Mr Ward for endorsement, before being escalated to the respondent to make a decision.
252 The respondent maintains that she is the exclusive decision-maker. She argues that although Ms Pelham contributed to the preparation of the Report and the recommendations for the drafts of the Proposed Outcome Letter and Dismissal Letter, Ms Pelham did not possess decisionmaking authority.
253 The respondent contends that the Union has not furnished any evidence suggesting she was incapable of making, or did not make, the decisions concerning Mr Landwehr’s employment. She submits that, in the absence of any contrary evidence, the presumption to be made is that she was capable of, and did in fact, make the decisions regarding Mr Landwehr’s employment.
254 In my assessment, the evidence substantiates that Ms Pelham did not function as a decisionmaker concerning Mr Landwehr’s employment. The evidence corroborates that she did not occupy ‘a central role’ but rather served in a ‘peripheral’ capacity in regard to the decision-making process for Mr Landwehr’s employment: McGovern [182].
255 I find no grounds to suggest that the respondent did not solely make the decisions concerning Mr Landwehr’s employment. Furthermore, I see no basis to determine that the respondent was or might have been influenced by bias due to Ms Pelham’s involvement in the compressed air hose incident investigation.
256 Having found the Report offers a largely accurate summary of the witness evidence, and the analysis and conclusions can reasonably be drawn from the entirety of the evidence, I also find no grounds to suggest that a fair-minded lay observer might reasonably apprehend that Ms Pelham might not approach the investigation of Allegation 1 and Allegation 3 with an impartial mind because of her previous involvement in the compressed air hose incident investigation.
257 In this respect, I agree with the respondent’s arguments and do not believe that a fairminded lay observer might reasonably apprehend that Ms Pelham, an investigator with SID tasked with examining the misconduct of the respondent’s employees, might not approach the investigation of Allegation 1 and Allegation 3 with an impartial mind due to her previous involvement in the compressed air hose incident investigation.
Discipline Standard
258 Under s 21 of the PSM Act, the Public Sector Commissioner establishes minimum standards of merit, equity and probity to be complied with in the public sector in the recruitment, selection, appointment, transfer, secondment, performance management, redeployment, discipline and termination of employment of employees (Standards).
259 The Standards are principles-based rather than comprising rules (https://www.wa.gov.au/organisation/public-sector-commission/public-sector-standards-human-resource-management), and are established with regard to the principles set out in s 7, s 8 and s 9 of the PSM Act, the context and language of which are in the nature of guidelines and are not mandatory in nature: Director General, Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244 [145] (Hasluck J).
260 The Discipline Standard states:
The minimum Standard of merit, equity and probity is met for discipline if:
· decisions are based on a proper assessment of the facts and circumstances prevailing at the time of the suspected breach of discipline.
· the employing authority ensures procedural fairness is applied to all parties.
· decisions are impartial, transparent and capable of review.
261 The terms ‘reviewable decision’, ‘registered employee’, ‘job’ and ‘proper assessment’ in the Standards are defined. The term ‘proper assessment’ is defined as ‘A genuine and thorough examination that takes into account all relevant facts and circumstances that are reasonably available and known at the time of the decision.’
262 The Union submits that the Discipline Standard was breached in two ways.
263 Firstly, there was not a proper assessment of the facts. The Union argues that in relation to Allegation 1, Ms Pelham conducted the investigation under the assumption that the 2019 Machine Usage Chart applied, even though the compound mitre saw was not covered by that document. Moreover, she failed to acknowledge that the prevailing standards for a compound mitre saw used by Year 10 students did not necessitate direct supervision. Furthermore, instead of conducting a comprehensive inquiry to address conflicts in evidence regarding whether Mr Landwehr instructed Student SS to use a metal ruler at the saw and whether he granted permission to Student SS to continue cutting, Ms Pelham simply resolved those conflicts against Mr Landwehr without further inquiry.
264 Regarding Allegation 3, the Union contends that instead of conducting a comprehensive inquiry to address the conflict about whether Student BR was walking away or running around dangerously, Ms Pelham dealt with the discrepancy by omitting any reference in her analysis to Student BR running around the tools and materials. This omission was significant because a conclusion that Student BR was running around would have supported a finding that Regulation 38 was engaged. Additionally, in her analysis, Ms Pelham did not engage in any, or any proper, evaluation of Regulation 38, despite the allegation stating that there was noncompliance with Regulation 38.
265 Secondly, there was an absence of procedural fairness. The Union asserts that Briefing Note 1, which was produced simultaneously with the Report, was notably prejudicial to Mr Landwehr. Additionally, it was sent to the respondent but not provided to Mr Landwehr.
266 Regarding the Union’s contention about a proper assessment of Allegation 1 and Allegation 3, I have determined that the conclusions reached in the Report were reasonably available based on all the evidence, and that the respondent satisfied the evidential onus as outlined in DrakeBrockman [66].
267 Implicit in this finding, is that the respondent ‘conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal’: DrakeBrockman [49] citing Bi-Lo (229230).
268 As such, I do not consider the Union’s contention that the respondent breached the Discipline Standard by failing to properly assess the facts to be sustainable.
Briefing notes
269 The Union contends that in relation to Allegation 1, Briefing Note 1 refers to a generic saw and makes no reference to the compound mitre saw in circumstances where the 2019 Machine Usage Chart had been updated to refer to the compound mitre saw. Further, Briefing Note 1 refers to Mr Landwehr having been ‘given’ the 2019 Machine Usage Chart when there was no evidence of this.
270 For reasons already stated, I have found, based on the evidence, that it was reasonable for the Report to use the term ‘saw’ as referring to the saw that was used by Student SS on the day. I make the same finding in relation to Briefing Note 1.
271 For reasons already stated, I disagree with the argument that it was essential for the Report to acknowledge the update to the 2019 Machine Usage Chart. As mentioned, I do not believe that modifying the 2019 Machine Usage Chart to include a compound mitre saw undermines a finding related to Mr Landwehr’s negligence or carelessness. I make the same finding in relation to Briefing Note 1.
272 I agree that there is no evidence supporting the statement that Mr Landwehr was ‘given’ a copy of the 2019 Machine Usage Chart. Instead, the evidence provided by Ms Naik and Mr Nielsen was that Mr Landwehr would have been aware of the 2019 Machine Usage Chart as it was located in the classrooms and machine workshop area, and was discussed in Learning Area and OSH Training meetings in Term 1 week 2 of 2020.
273 However, I do not consider the statement that Mr Landwehr being ‘given’ a copy of the 2019 Machine Usage Chart to discredit the disciplinary process when the evidence supported a finding that Mr Landwehr would have been expected to be cognisant of the 2019 Machine Usage Chart as part of his responsibilities. Consequently, irrespective of whether Mr Landwehr was formally provided with a copy of the 2019 Machine Usage Chart or not, it was reasonable for Briefing Note 1 to state that, ‘he was responsible for understanding the student supervision requirements when using machinery’.
274 Concerning Allegation 3, the Union asserts that Briefing Note 1, prepared concurrently with the finalisation of the Report, compares incidents involving physical contact in 2012, 2014 and 2015 as concluding that Mr Landwehr resorts to physical contact when provoked (when on this occasion, there was a safety risk to Student BR), which might lead a reasonable lay observer to be concerned that Ms Pelham prejudged the outcome of Allegation 3.
275 For reasons previously mentioned, I have found, based on the evidence, that Mr Landwehr’s physical contact with Student BR was not authorised by Regulation 38. This finding aligns with the analysis on page 21 of the Report, from which it is reasonable to infer that Mr Landwehr’s conduct was evaluated in the context of Regulation 38 but ultimately dismissed.
276 Based on the reasons provided, I have found that Mr Landwehr’s previous physical contact with students is a relevant consideration (as was acknowledged by the Union), on which the respondent was justified in attributing weight.
277 Further, there is no evidence that Briefing Note 1 was not prepared after the Report was finalised. Whilst the date under Ms Pelham’s signature on Briefing Note 1 is stated as 30 June 2021, I agree with the respondent’s submission that it is reasonable to assume that this is a typographical error and should be read as 30 July 2021.
278 Moreover, the purpose of Briefing Note 1 appears to be to provide the respondent with a summary of the disciplinary outcomes that are available to the respondent, ranging from a reprimand, or a fine not exceeding five days’ pay, to a reduction of classification level, and/or dismissal from employment; and to make a recommendation on the proposed disciplinary outcome for the respondent’s consideration and action. In this context, I do not believe that a fair-minded lay observer would consider the inclusion of Mr Landwehr’s prior disciplinary history in Briefing Note 1 would indicate pre-judgment.
279 Particularly where, Briefing Note 1 specifically refers to and attaches advice from the State Solicitor’s Office and advice from the Department’s Legal Services, that it is open to the respondent to impose the following outcomes in respect of the six allegations:
Allegation 1 – dismissal from employment.
Allegation 2 – a reprimand and improvement action by way of completing the Department’s online AEDM course.
Allegation 3 – dismissal from employment.
Allegation 4 – a reprimand and improvement action by way of completing the Department’s online AEDM course.
Allegation 5 – a reprimand and improvement action by way of completing the Department’s online AEDM course.
Allegation 6 – a reprimand and improvement action by way of completing the Department’s online AEDM course.
280 The Report and Briefing Note 1 state that all six allegations were substantiated. Whilst allegations 2, 3 and 5-6 relate to physical contact with a student, of these, only Allegation 3 has resulted in a proposed outcome of dismissal from employment.
281 It is reasonable to infer from this, that there was a consideration of the nature and context of the physical contact in relation to each allegation in determining the proposed outcome, which speaks against the assertion of prejudgement.
282 Further, it is also reasonable to infer that the proposed outcome did not arise from the prejudgment of Ms Pelham, but instead was proposed after having obtained legal advice from both the State Solicitor’s Office and the Department’s Legal Services.
283 In the circumstances, I do not believe that a fairminded lay observer might reasonably apprehend that Ms Pelham had prejudged the outcome of Allegation 3.
284 The Union contends that it was procedurally unfair for Briefing Note 1 to be produced concurrently with the Report, and for Mr Landwehr to be denied an opportunity to see and respond to Briefing Note 1 and Briefing Note 2.
285 Having reviewed Briefing Note 1 and Briefing Note 2, I find that they are (with the exception of the statement that Mr Landwehr was ‘given’ a copy of the 2019 Machine Usage Chart in Briefing Note 1), an accurate summary of the relevant sections of the Report (in the case of Briefing Note 1) and of the Second Response (in the case of Briefing Note 2).
286 In addition to summarising the Report, Briefing Note 1 offers a synopsis of Mr Landwehr’s past disciplinary matters, an outline of the disciplinary options available to the respondent in the given circumstances, an analysis of the First Response, an observation that Mr Landwehr ‘does not comprehend how his actions are inappropriate’ which presents an ongoing risk, and a recommendation stating, ‘Should you agree with the findings and the proposed actions, a draft letter for Mr Landwehr is attached for your consideration.’ Briefing Note 1 includes designated spaces for the typed name, position, and signature of three SID members – Ms Pelham, Mr Milward, and Mr Wells. Briefing Note 1 is signed by Ms Pelham and the date under her signature is typed as 30 June 2021 but for reasons stated this is likely a typographical error, and it is more likely she signed Briefing Note 1 on the same day that Mr Wells signed it, namely on 30 July 2021.
287 In addition to a summary of the Second Response, Briefing Note 2 provides an analysis of the responses in the Second Response and a consideration of mitigating circumstances, a summary of a recent matter brought to SID’s attention through a complaint from the School Principal, and a recommendation that ‘Based on all the information, it is open to the Director General to maintain the findings and impose the action as proposed. A final outcome letter is attached for consideration by the Director General.’ Briefing Note 2 includes designated spaces for the typed name, position and signature for three SID members, and was signed by Ms Pelham (undated), and by Mr Staples and Susie Baker (Manager Investigations) on 30 September 2021.
288 The respondent asserts that the Briefing Notes are internal documents, and as a result, Mr Landwehr does not possess the right to respond to them.
289 I do not consider that the existence of internal documents, specifically Briefing Note 1 and Briefing Note 2, should be construed as an infringement on procedural fairness. These internal documents serve as summaries and assessments for the respondent’s consideration. They appear designed to facilitate internal discussions, analysis, and decision-making. Consequently, I do not consider the procedural fairness afforded to Mr Landwehr to be affected by the presence and content of these internal documents.
Conclusion regarding procedural fairness
290 The failure of an employer to adopt a fair procedure can render the dismissal unfair: Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 (Bogunovich) (3645).
291 If procedural fairness was not afforded and the outcome would have been altered had it been afforded, this alone can render a dismissal unfair: West Australian Branch, Australasian Meat Industry Employees’ Union v Geraldton Meat Exports Pty Ltd [2001] WAIRC 03573; (2001) 81 WAIG 2523 (Australasian Meat Industry) [101].
292 The evidence in this matter is that:
(a) the Allegations Letter dated 22 February 2021, expressly invited Mr Landwehr to respond in writing, or to contact Ms Pelham to respond in person;
(b) three weeks later, on 15 March 2021, Mr Landwehr responded to the Allegations Letter by the First Response, which was forwarded to the respondent on Mr Landwehr’s behalf by the Union;
(c) the Proposed Outcome Letter dated 6 August 2021, expressly invited Mr Landwehr to respond in writing, or to contact Ms Pelham to respond in person;
(d) the Proposed Outcome Letter attached the Report in its entirety;
(e) two weeks later, on 20 August 2021, Mr Landwehr responded to the Proposed Outcome Letter by the Second Response, which was forwarded to the respondent on Mr Landwehr’s behalf by the Union; and
(f) within seven weeks, the Dismissal Letter dated 7 October 2021, notified Mr Landwehr of the respondent’s decision to terminate his employment.
293 I agree with the respondent’s argument that there can be no justifiable criticism that Mr Landwehr was not interviewed by Ms Pelham when the Allegations Letter and the Proposed Outcome Letter explicitly invited him to contact Ms Pelham to respond in person.
294 The respondent submits that Mr Landwehr, and his representatives who forwarded the First Response and the Second Response on his behalf, were furnished with the Report and invited to present any relevant information to the respondent, but did not raise any procedural irregularities regarding the disciplinary process until these proceedings.
295 I agree with the respondent’s submission that in the circumstances, Mr Landwehr was provided with a fair opportunity to respond to the allegations made against him.
296 The central task for the investigator was to obtain credible relevant and significant evidence that addressed whether Mr Landwehr had committed the acts of misconduct. I find the respondent’s representatives carried out that task, and Mr Landwehr was given an adequate opportunity to answer all adverse information that was relevant to the allegations of misconduct: DrakeBrockman [115].
297 Mr Landwehr was provided with detailed particulars of Allegation 1 and Allegation 3, an opportunity to be heard in relation to the allegations, and the chance to bring forward any witnesses or other evidence, and to raise any concerns about the investigative process, in answer to the allegations: Bi-Lo (230).
298 The parties agree that the Union forwarded the First Response and the Second Response to the respondent on Mr Landwehr’s behalf. In the circumstances, it cannot be said that Mr Landwehr was denied the time to reflect on the allegations and to seek advice before answering the allegations: cf Sangwin v Imogen Pty Ltd [1996] IRCA 100 (Sangwin) (30).
299 For the preceding reasons, I find Mr Landwehr was given fair and specific warning that he was in jeopardy of dismissal and was given an opportunity to respond: Bogunavich (3645).
300 I find no basis for a conclusion that the respondent prejudged the issue and failed to conduct a proper investigation: cf Sangwin (30).
301 On the contrary, I find that Mr Landwehr was given an adequate opportunity to answer adverse information that was credible, relevant, and significant to the issues of whether he committed misconduct and whether he should be dismissed, and was provided with an opportunity to make representations and to provide material to the respondent that was centrally relevant to these issues: Drake-Brockman [113].
302 As such, I find that Mr Landwehr was provided with procedural fairness, as part of the obligation on the respondent on instituting disciplinary action, to ensure he received a fair go: Drake-Brockman [113].
303 As noted, there were various statements in the Report (and Briefing Note 1) that did not completely or accurately summarise a witnesses’ evidence. As stated, I do not consider the analysis or conclusion in the Report (or Briefing Note 1) to be undermined by these incomplete or inaccurate statements. I consider any procedural irregularity to arise from these statements to be of a minor nature and would not have altered the outcome such as to render the dismissal unfair: Australasian Meat Industry [101].
304 I find Mr Landwehr was afforded both substantive and procedural fairness in relation to the dismissal: BiLo (229).
305 I am satisfied that the respondent did not exercise her legal right to dismiss in a manner so harshly or oppressively as to amount to an abuse of that right: Undercliffe.
Conclusion
306 For the preceding reasons, I am satisfied that the Union has not discharged the onus to establish that Mr Landwehr’s dismissal was harsh, oppressive or unfair.
307 As a result, it is unnecessary to consider the orders the parties ask the Commission to consider on a finding of unfair dismissal.
308 Accordingly, application CR 33 of 2021 will be dismissed.