CITATION : 2012 WAIRC 01035 CORAM : COMMISSIONER S J KENNER HEARD : THURSDAY, 9 SEPTEMBER 2010, WEDNESDAY, 16 NOVEMBER 2011, WEDNESDAY, 6 JUNE 2012, MONDAY, 11 JUNE 2012, MONDAY, 2 JULY 2012, TUESDAY, 3 JULY 2012, WEDNESDAY, 4 JULY 2012, THURSDAY, 5 JULY 2012, MONDAY, 16 JULY 2012, TUESDAY, 17 JULY 2012, WEDNESDAY, 15 AUGUST 2012 DELIVERED : WEDNESDAY, 21 NOVEMBER 2012 FILE NO. : U 72 OF 2010 BETWEEN : MS MARGARET SUSAN WEBB Applicant AND DIRECTOR-GENERAL DEPARTMENT OF EDUCATION Respondent Catchwords : Industrial law (WA) - Alleged harsh, oppressive or unfair dismissal - Allegations of poor conduct and behaviour - Prior inconsistent statements - Issues of procedural fairness - Principles applied - Application dismissed. Legislation : Industrial Relations Act 1979 s 26(1)(a) and (c) Result : Application dismissed Representation: Applicant : In person Respondent : Mr M Danger of counsel Solicitors: Applicant : Respondent : State Solicitors Office Case(s) referred to in reasons: Geoffrey Johnstone v Ron Mance Acting Director General Department of Education (2002) 83 WAIG 1553 Reasons for Decision 1 The applicant Ms Webb was employed as a teacher at Derby District High School, which is located in Derby in the Kimberley region of the State. Ms Webb has been a teacher since about 1980. Between August and November 2007 Ms Webb was informed by the Department of Education that a number of disciplinary investigations were to be undertaken against her under the Public Sector Management Act 1994. Those investigations related to some 16 alleged breaches of discipline. The disciplinary incidents occurred on various dates during the course of 2007. The allegations, in the main, related to the use of inappropriate language to or in the presence of students; inappropriate use of force against students; a failure to report a student disclosure; and an attempt to interfere with a disciplinary investigation being conducted by the Department. As a result of the investigations, Ms Webb was charged with ten breaches of discipline. 2 By letters of 19 March and 1 April 2010, Ms Webb was informed by the Director General of the Department, Ms O’Neill, that most of the disciplinary charges were made out. By letter of 24 April 2010, the Department informed Ms Webb that her employment was terminated. The investigation and enquiry process under the PSM Act was very lengthy and took from late 2007, through to and including 2009. 3 As a consequence of notices given to Ms Webb under s 240 of the School Education Act 1999, Ms Webb was suspended from the school on 6 November 2007 and suspended without pay on 22 February 2008. Ms Webb has not been back to the school since. 4 By these proceedings, Ms Webb now challenges her dismissal by the respondent and seeks reinstatement. Relevant principles 5 The relevant principles in relation to proceedings of this kind are well settled. An application by a teacher challenging their dismissal under the PSM Act enables the Commission to hear the matter de novo, depending on the circumstances of the case: Geoffrey Johnstone v Ron Mance Acting Director General Department of Education (2002) 83 WAIG 1553. The onus is on Ms Webb to establish her claim. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 239 The charges laid and the outcome 6 As noted above, the allegations against Ms Webb, and the findings as a result of various investigations and disciplinary enquiries, are set out in letters to Ms Webb of 19 March and 1 April 2010. Given the nature of the allegations and the substantial body of evidence led in these proceedings, it is useful at this juncture, to set out the charges and findings in full as contained in the Department’s letter of 19 March 2010. Formal parts omitted, it provides as follows: 1. On Friday 15 June 1007 at Derby District High School you behaved in an inappropriate manner towards a member of staff, namely Catherine Martin. By way of further clarification it is claimed that you stated to another staff member that you “would run Cath out of town. I will get my elders on to her to get her out” or similar. 2. At about 11.40am on Friday 29 June 2007 at Derby District High School near the cooking room you behaved in an inappropriate manner towards a number of students, namely Kyle Angwin, Byron Moore and Clinton Waldron. By way of further clarification it is claimed that the group of students attended at the cooking room requesting that they store some sausages in a refrigerator and you yelled at them “P.Off… get away from me.” 3. At about 11.40am on Friday 29 June 2007 at Derby District High School near the cooking room you used inappropriate force against a student namely Clinton Waldron which was not authorised justified or excused by law. By way of further clarification it is claimed that you ejected Clinton Waldron from the cooking room by grasping him by the collar and pushing him out of the room. 4. On an unspecified date in September 2007 you attempted to persuade three child witnesses to change their evidence provided to the Department of Education and Training in a current disciplinary process. By way of further clarification, it is claimed that you caused a document to be produced, which you then presented to three child witnesses, namely Aaryn Harrison, Clinton Waldron and Kyle Angwin and requested that they sign it. The document stated that their evidence previously given in writing to the Department on 29 June 2007 was false, and that they now wished to retract this evidence, thus exonerating you from any wrong-doing. The evidence given by the three children on 29 June 2007 resulted in a disciplinary process being initiated by the Department which you were notified of in writing on the 27 August 2007. 5. At about 8.02am on 5 November 2007 at Derby District High School, 10 Anderson Street, Derby, you used inappropriate language towards a fellow member of staff in the presence of students. By way of further clarification, it is claimed that you approached a female member of staff, namely Natasha Cockram, and confronted her in relation to a local complaint matter, involving Ms Webb and Ms Cockram, currently being dealt with by the Principal. You addressed Ms Cockram in a common area in school grounds, in the presence of a number of students close by who were making their way to class. You used words similar to “You little liar, I asked year 10 students, you made it up”. You were advised that there were students nearby, and were requested to desist, but continued and stated: “You’re a lying little shit” and “Don’t tell me to shut up you little bitch”. You made all of these comments in a loud manner so all persons in the vicinity could clearly hear them. 6. On an unknown date, during the middle of May 2007, you received information from a student and failed to report it to the Principal, in direct breach of the Department of Education and Training “Child Protection Policy”. By way of further clarification, it is claimed that you received a disclosure from a female student, namely “L”, [words omitted], and failed to notify the Principal of the details of the disclosure. 7. On an unknown date, during term one 2007, at Derby District High School you used inappropriate physical action towards a student which was not authorised, justified or excused by law. By way of further clarification, it is claimed that at about 11.00 am, on either a Wednesday or a Friday, during a S.O.S.E. lesson, you used inappropriate physical action towards Kyle Jordan Angwin, a Year 10 male student. It is claimed that you grabbed a baseball hat from Kyle’s head and used the hat to hit him once to the side of the head. You then walked away with the hat. 8. On an unknown date, during term one 2007, at Derby District High School, you used inappropriate physical action towards a student, which was not authorised, justified or excused by law. By way of further clarification, it is claimed that at an unspecified time on either a Wednesday or a Friday, during a S.O.S.E. lesson in the computer room you used inappropriate physical action towards Aaryn Harrison (Aaryn), a Year 10 male student. It is claimed that during the class, Aaryn was misbehaving and you approached him. As you got close, Aaryn slid from his chair and attempted to hide under the table. You used your foot to stamp on Aaryn’s legs which were protruding out from under the desk. 9. On an unknown date, during term one 2007, at Derby District High School, you used inappropriate physical action towards a student, which was not authorised, justified or excused by law. By way of further clarification, it is claimed that at an unspecified time on either a Wednesday or a Friday, during a S.O.S.E. lesson in the computer room you used inappropriate physical action towards Harley Kennedy, a Year 10 male student. It is claimed that you walked up to Harley (who was sitting at his desk) and you used both of your hands to grab 240 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. his hair and pull him from his seat towards you so that his chest was on the desk. You then released your grip and Harley sat back down. 10 On Thursday, 23 August 2007, at Derby District High School, you used inappropriate language towards students. By way of further clarification, it is claimed that you opened the door of the cooking room and shouted at two male students who were loitering around the cooking room door and tapping on the window. You shouted words similar to “fuck off” towards the two students (possibly Glen Dann and Ishmael Barunga). (Charge 6 anonomized by the Commission) 7 Five of the eight charges upheld, charges 1, 4, 5, 6, and 9, recommended that Ms Webb’s employment be terminated. Charges 3, 7 and 10 led to recommendations that the Department reprimand Ms Webb. 8 At the outset of these proceedings, given the length of time over which the various Investigations and Inquiries had taken place, and some delays in the commencement of these proceedings by reason of adjournments sought by Ms Webb, the Commission sought clarification from counsel for the Department, as to how the various charges found to be proven, were to be relied upon for the purposes of these proceedings. Counsel indicated that charges 2, 7, 8 and 9 were abandoned. Charges 1, 4, 5 and 6 were relied upon by the Department to support its decision to dismiss Ms Webb. Charges 3 and 10 were relied upon by the Department to oppose reinstatement, in the event that the Commission found Ms Webb’s dismissal to have been harsh, oppressive or unfair. 9 For the purposes of dealing with the allegations found proven, I will deal only with those on which reliance was based to terminate Ms Webb’s employment. In the event that any of Ms Webb’s challenges to those findings are made out, it will then be necessary to consider those charges referred to by the respondent as going to the issue of reinstatement. Charge 6 – May 2007 fail to report disclosure by a student 10 This was the most serious allegation against Ms Webb. It was contended by the Department that in about mid May 2007, a student, L, then 14 years of age, disclosed to Ms Webb that she had suffered a serious reportable incident in Derby. The allegation was that Ms Webb had failed to report this disclosure to the School Principal, Mr Henderson, at the first opportunity, in accordance with the Department’s Child Protection Policy. As a consequence, and as would be obvious, the Department contended this had significant detrimental effect on the student, then a child, and her family. It is convenient to set out the relevant terms of the Policy, which are cls 4.1 and 4.2 as follows: 4.1 GENERAL All staff are responsible for acquiring the appropriate knowledge and understandings about child protection and respond appropriately to concerns of child maltreatment. All public schools take reasonable actions to establish and maintain safe learning environments for all children. Such actions may involve assistance from district staff or other departments or non-government agencies. … To reduce the risk of suicidal and self harming children, decisive action must be taken by district or school staff regarding any concerns they have about a child and as early as possible. … 4.2 REPORTING CHILD MALTREATMENT Everyone working in a school needs to be able to recognise the risk factors and indicators of child maltreatment (refer to Appendix 1) to identify children who may be at risk and communicate these to the principal, either verbally or in writing. The principal must report the concerns as appropriate to the Department for Community Development (DCD) or the Western Australian Police Service (police). If the concern relates to the conduct of a person other than a Department employee, the principal must report the concern to DCD. In addition if the concern relates to possible criminal conduct, the matter must be reported to the police. … Student disclosures must be responded to appropriately by staff and the child supported. If a disclosure from a student is ignored or dismissed the student continues to be placed at risk. Written records of all concerns of maltreatment and disclosures that form the basis of a maltreatment report must be securely stored by the principal. This information must be provided to DCD and the police upon request (refer to Appendix 7). The role of school staff is not investigative in matters of child maltreatment. Staff must report concerns to the principal who will action them appropriately. Staff may seek advice from professional colleagues including student services to clarify concerns and determine ongoing support for a child. Such consultation must be documented. In order to avoid interfering with any investigative process initiated by DCD or the police, the principal (DD) must seek advice from DCD or the police as is appropriate prior to informing the parent / carer of a concern of maltreatment. … 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 241 11 There was much evidence about this charge. Ms Webb testified that on 14 July 2007, during the school holidays, L and two friends, S and B, went to her house late one night. At the time Ms Webb had her son at home for the school holidays. They were watching a DVD. Ms Webb testified that she heard a knock on her door and when she answered it, she saw the girls. Ms Webb said the girls appeared to have been drinking and were intoxicated. Ms Webb said at first she told the girls to go away. However, they then proceeded to tell her that L had suffered a serious reportable incident about one week prior. On hearing this, Ms Webb said that she told them that she would immediately take L back to her mother. However, L did not want this as she feared the consequences. Ms Webb maintained that she told the girls that given what she had been informed, she would have to disclose this to the Principal at the School as soon as school returned after the holidays. Ms Webb also testified that she was aware that the Principal, Mr Henderson, was away on holiday at this time. 12 On returning to school at the beginning of term three, Ms Webb said that she spoke to Mr Henderson either on the first or second day of term and told him what had been disclosed to her. She said that she told Mr Henderson “quickly” prior to the beginning of a staff meeting. Ms Webb said that she also told a Deputy Principal “Jenny” and “Richo”. Ms Webb testified that when she told Mr Henderson of the disclosure, he just looked at her in a surprised way and didn’t say anything. In cross- examination, whilst Ms Webb initially said that she told Mr Henderson in the staff meeting, she later said that it occurred just prior to the staff meeting. Ms Webb also said that the disclosure took place in the library. 13 When it was put to her in cross-examination that her evidence about telling Mr Henderson of the disclosure was inconsistent with her statement to the Investigators, when she told them that she could not really remember where and when the report of the disclosure to Mr Henderson took place, she said she was overwhelmed with the number of charges she was then responding to. When she was informed by L of the serious reportable incident, Ms Webb said that she was asked by L not to tell anyone about it and made to promise that this would be the case. At the time the disclosure was made to her, Ms Webb testified that she made no attempt to telephone the Principal or a Deputy Principal, to inform them. 14 Furthermore, Ms Webb was not able to explain how it was that other school staff, such as the Principal Mr Henderson and a teacher Ms Hughes, were aware of the incident in late June if the disclosure took place at her home on the night of 14 July. When this question was put to her, Ms Webb described this as a “miracle”. 15 Despite indications that she may not do so, evidence about the incident was given by L. It was obviously traumatic for her to relive the circumstances of the event some five years earlier. L said she went to see Ms Webb at her house. She thought this was in July some time, after the Derby races and in between the Boab Festival. She had her friends S and B with her at the time. L testified that she was not drunk but was affected by other substances at the time. L said to Ms Webb that something bad had happened to her while her friend S had been away at another school during the term. L said she did not want to tell S what happened over the phone and only told her when she came back to Derby in the July holidays. 16 Understandably, L testified that the incident and events surrounding it were a part of her life that she had tried to block out. She said that the serious reportable incident occurred sometime earlier, either just prior to or after Easter 2007. L did say that she probably told her friend B before telling S, and this was probably in about May or June. The first person she told was her partner. When it was raised with her in cross-examination, L was unable to say why she told the Investigators in November 2007, that the first adult who approached her about the incident was Ms Webb at school, about a week or two after the incident. She also told the Investigators that she told her friend B one or two days after the incident and S a few days after that. 17 L told the Investigators that she thought that one or other of S or B had told Ms Webb about it, which led to Ms Webb asking her about the incident at school. L also confirmed that as far as she was aware, Ms Webb “stuck to her word”, and did not tell anybody about her disclosure. However, when it was put to her in cross-examination, she also was not able to explain how another teacher, Ms Hughes, knew of the incident in late June 2007. 18 S was L’s best friend and is related to Ms Webb. She said that she only became aware of the serious reportable incident when she returned from school in the holidays at the end of the second term. S testified that L wanted to see Ms Webb so they went to see her at her house in July at around the time of the Derby Races. S seemed to think that L may have told her other good friend, B, about the incident at school during the first term. I pause to observe that this is consistent with what L told the Investigators. S did also say that on the night that the girls visited Ms Webb at her home in July, she was “pretty out of it”. As with L, S could not explain, when it was put to her in cross-examination, how other teachers at the school knew of the incident in late June. 19 Evidence was also given by L’s mother and grandmother. Her grandmother, J, was at the time, the school nurse at Derby District High School. She testified that in late June 2007, she received a telephone call from her daughter, E, L’s mother, to go to their house. E and L were there and they informed her of the serious reportable incident and L also told her that she had disclosed it to Ms Webb earlier at school. The conversation with her daughter and granddaughter took place just before she went on long service leave on 9 July, which immediately preceded her retirement in early November 2007. A copy of the school newsletter, tendered as exhibit R4, bears this out. J also gave evidence in her capacity as a nurse, about the effect of delay in reporting, as she has been trained on the impact. She testified that there can be major legal and health consequences and a loss of forensic evidence. In her view, the failure to report the disclosure in a timely way had an enormous impact on L and has contributed to her poor self-esteem. 20 L’s mother, E, also gave evidence. She was understandably, at times, very emotional. E testified that she received a telephone call from a friend, Eva, about ten weeks after the incident, to the effect that if she had problems with L of recent times, it was because she had suffered a serious incident. E was informed that Ms Webb was made aware of the incident. The contact from Eva to E would have been in about late June 2007. It was unclear on the evidence how Eva found out about the incident. 21 E said she immediately went to “Shum Gee and Jenny’s” place, where she knew Ms Webb would be. E confronted Ms Webb and asked her why she did not tell her about the serious reportable incident. E testified that Ms Webb replied that L had asked her to promise not to tell anyone about the incident. According to E, Ms Webb informed her that the incident had occurred about ten weeks prior, and it was clear to E that Ms Webb had known about it for a long time. E said that she immediately 242 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. took Ms Webb down to the police station to report the incident. Ms Webb said she knew who did it and even drew a mud map as to where she thought it had occurred. 22 Some months later, after the Investigators had arrived at the school to investigate the allegations against Ms Webb, E said that Ms Webb came to her house. According to E’s testimony, Ms Webb told her that L’s friends, B and S, told her about the incident on the night that it happened. Also, Ms Webb told her that it was “illegal” for L to take part in an interview with the Investigators and she said that L should not attend. Ms Webb told E that she was also saying the same thing to all of the other parents of children who were to be interviewed. 23 E testified that if she had known of the incident at the time, then both herself and the teachers at the school would have understood why L was so hard to control and angry all the time and was getting into trouble. 24 The Principal of the school at the time, Mr Henderson, said that a staff member, Jenny Hughes, came to see him with a note which referred to Ms Webb having knowledge of a female student having suffered a serious reportable incident. The mother was concerned that Ms Webb and the school had not informed her of the allegation. The note from Ms Hughes was dated 27 June 2007. Given the seriousness of the event, Mr Henderson said he asked Ms Hughes to sign and date the note but a short time later, she retracted it. Ms Hughes said that she did so because fear of retribution by Ms Webb. However, she provided an unsigned copy of the note to Mr Henderson. When this was put to him, he could not recollect receiving an unsigned copy of the note at the time. 25 Mr Henderson confirmed that he was not away on holiday at the time Ms Webb suggested that he was. He had to undergo a minor surgical procedure, which took place during the school holiday period, but otherwise remained in Derby. In terms of Ms Webb’s assertion that she reported the disclosure to him at the beginning of term three, Mr Henderson categorically denied this. He said at no time was there any advice to him from Ms Webb of L’s disclosure to her. Moreover, Mr Henderson testified that in the first week of term three, Ms Webb was not at school as she was on leave. Ms Webb returned to school in the second week of term three, on 31 July. Mr Henderson said he had a meeting with her to discuss issues raised in the second term, in relation to her control of students and the need for a fresh start in the new term. In particular, Mr Henderson referred to his advice to Ms Webb, that students stop calling her “Auntie Margie” because this blurs the boundaries of the student teacher relationship. 26 Ms Hughes testified that J went to see her on 27 June to report the disclosure by L to herself and her mother. Ms Hughes said that she was also informed that Ms Webb had known about this for a long time and had not reported it. As the teacher responsible at the time for behaviour management, Ms Hughes said that she had been dealing with behavioural problems with L in the previous term and when she was informed of what had happened, she said that the “penny dropped”. Ms Hughes said she immediately prepared a note of what she had been told by J which was dated 27 June 2007 and gave it to Mr Henderson. She did so because she understood that reporting obligations required teachers to report disclosures immediately. Ms Hughes confirmed that after a short time thinking about the matter, she withdrew the signed letter because of fear of retribution from Ms Webb, and replaced it with an unsigned copy. 27 Ms Hughes also testified that shortly after becoming aware of what happened she spoke with L to let her know that she was aware of the situation and that she had arranged counselling for the same day. In terms of the obligation to disclose, Ms Hughes referred to training for staff at the beginning of the teaching year 2007, at which Ms Webb was present, which emphasised the importance of the immediate reporting of disclosures because of possible adverse consequences for the students. 28 I have had the opportunity to observe closely the witnesses giving their evidence in relation to this matter over many days of hearings. Having done so, I do not accept Ms Webb’s version of the events. Also, regrettably, I do not accept L and S’s testimony as to the timing of the disclosure. L’s testimony was completely at odds with the interviews she gave to the Investigators in November 2007 as to the incident, only some months after the event. I accept the obvious trauma that such an incident would cause to a young girl in L’s situation. I also consider however, that her statements made to the Investigators at that time, to be a more reliable guide as to what occurred in 2007, than what has been said some five years later, in 2012. 29 A copy of the transcripts of the interviews conducted with the Investigator Mr Skamp, were tendered as exhibit R3 as business records of the Department. An affidavit was put on by the Department, verifying the accuracy of the transcripts as transcribed from the audio recordings. Also tendered, as part of the business records of the Department, were the Investigation and Inquiry Reports as exhibits R5 to R12. The Investigator and the Inquirer were acting as delegates of the Director General of the Department under the PSM Act. 30 To the extent that the evidence of L was inconsistent with the transcript of her interviews in November 2007, as a prior inconsistent statement, which was put to her in cross-examination, this entitles, but does not require the Commission to reject her testimony: see Cross on Evidence loose-leaf Ed par 17545. Whilst not bound by the rules of evidence, the Commission can have regard to the content of the interview statements, as business records of the Department, in these circumstances, not only for the purposes of discrediting the testimony of the witness but also, in the case of inconsistencies established in cross- examination, for the purposes of establishing the truth of their content. In each case it will be a question of the weight to be attached to the statements contained in the records. 31 Whilst L’s best friend S was not interviewed by the Investigators, I consider her evidence to have been given sympathetically to and in support of Ms Webb. S was not an independent witness, being a relation of Ms Webb. Also, the fact that she said on the night that it was alleged that the girls made the disclosure to Ms Webb at her home on 14 July, that she was “out of it”, further detracts from the credibility of her evidence. This is all the more so given the passage of some five years from the time of the alleged disclosure to Ms Webb at her home, to the time of these proceedings. 32 Furthermore, for reasons that I will come to in dealing with charge four, I have deep reservations as to whether any person associated with Ms Webb would be able to give evidence untainted by her influence over them, either tacit or explicit. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 243 33 I also found Ms Webb’s explanation of when she said she reported the disclosure to Mr Henderson, said to be in the beginning of term three, as wholly unconvincing. As counsel for the Department pointed out, Ms Webb’s explanation in cross- examination as to how this report to Mr Henderson took place, kept changing. At first, Ms Webb said that she told Mr Henderson on the first or second day back in term three in a staff meeting. It then became just prior to the staff meeting outside the room. Later, the alleged report to Mr Henderson took place in the library. Additionally, when it was pointed out to Ms Webb that she was in fact on leave in the first week of term three, she said that the report must have occurred in the second week of term three instead. 34 In contrast to the shifting sands of Ms Webb’s testimony, I found the testimony of witnesses called by the Department on this issue to be credible. First, I deal with the evidence of E. I found her testimony to be compelling. Obviously, even after several years, reliving the events of 2007 was very traumatic for her, as for her daughter. E became aware of the incident from her friend Eva, she thought in July 2007, but more probably it was late June. She went straight to Ms Webb and confronted her. Ms Webb told her that the incident had occurred some ten weeks prior. Ms Webb had promised to L not to tell anyone. Ms Webb and E went to the police station to make a report but L was not prepared to sign a formal complaint. E was clearly distressed at the knowledge that her daughter had been subject to such trauma, and Ms Webb had not reported her disclosure, despite the obligation to do so without delay. 35 At about the same time, L’s grandmother, J, was informed of the incident. She immediately informed Ms Hughes. On the basis of Ms Hughes’ testimony, and the note she prepared, this would have been on 27 June 2007. J described the impact of the delay in reporting such an incident in terms of the loss of forensic evidence, potential psychological damage due to a lack of prompt counselling and support, and the impact she observed, as a professional and as a grandparent, on L. Additionally, J confirmed L’s original statement to the Investigators, when she testified that she was told by L that her disclosure to Ms Webb took place at the School, not long after the incident occurred. 36 Ms Hughes confirmed the report from J and her immediate contact with Mr Henderson. On Ms Hughes’ testimony, being responsible for behaviour management issues, the impact on L of the delay in reporting the disclosure became obvious to her in retrospect. Ms Hughes also confirmed the refresher training that staff had received at the beginning of the 2007 school year, and the importance of disclosure. 37 Ms Webb’s promise to L to not tell anyone of the serious reportable incident was borne out in the testimony of Mr Henderson. As noted, he was emphatic that there was no mention of it to him by Ms Webb at the beginning of term three, despite her assertions to the contrary, or at any other time. Mr Henderson only found out from Ms Hughes, when he was given the note on 27 June. The only meeting he had with Ms Webb was in the second week of term three, which was not to discuss L, but to discuss problems with Ms Webb’s performance, in particular her over familiarity with students. There was clearly ample opportunity for Ms Webb to make a report to Mr Henderson of the disclosure, but none was made. 38 Overall, I found J, Ms Hughes and Mr Henderson credible witnesses. Additionally, their testimony was generally consistent with their interviews with the Investigators. I accept their evidence. However, even if, contrary to the Department’s contentions, I was to accept Ms Webb’s testimony and Ms Webb did report the disclosure to Mr Henderson some time in the second week of term three, as counsel for the Department rightly observed, this was many days after being told by L of the incident and contrary to the obligation on teachers, to report such a serious disclosure without delay. 39 The timing of the knowledge of E and J, Ms Hughes and Mr Henderson was also telling. None of Ms Webb, L or S, were able to explain how it could be, if Ms Webb had been told of the incident at her home on the night of 14 July as she claimed, and then first reported it to Mr Henderson in the second week of term three, that by the end of June, the others were already aware of the incident. 40 On balance, I am well satisfied that contrary to the obligations imposed on her by cl 4.2 of the Child Protection Policy, Ms Webb failed to report L’s disclosure. This was based on a completely misguided notion of an attempt to be L’s “friend”, which put L, very sadly, at great risk of serious emotional and physical harm. Such a failure of duty was, of itself, in my opinion, sufficient to justify termination of employment. Charge 1 – Behaved in inappropriate manner on 15 June 2007 towards Catherine Martin 41 By this charge, it was asserted by the Department that in mid June 2007, Ms Webb spoke to a fellow teacher Ms Natasha Cockram about another teacher, Ms Catherine Martin. Ms Martin has since married and her surname is now Apanah. For convenience, however, and consistent with the documents in evidence, I will refer to her by her former surname. It was alleged that in this conversation, which took place outside Ms Cockram’s classroom, Ms Webb informed Ms Cockram, who Ms Webb knew to be a friend of Ms Martin, words to the effect that she would “run Cath out of town. I will get my elders on to her to get her out”. The Department also contended that Ms Webb did this because Ms Martin was the source of a number of complaints to the Department about Ms Webb’s conduct and behaviour in the school. In so acting, the Department contended that Ms Webb was attempting to intimidate Ms Martin into ceasing this activity. She used Ms Martin’s friend, Ms Cockram, for this purpose, rather than confront Ms Martin directly. 42 Ms Webb testified that the reason that she spoke to Ms Cockram, along with another teacher Mr Haines, was to “sort out” why Ms Martin was, as she put it, “stalking” her and writing letters of report about her throughout the year. Ms Webb said that she asked Ms Cockram to assist her to find out what Ms Martin’s difficulties with Ms Webb were. On the day in question, when Ms Webb asked Ms Cockram to speak with her outside of her classroom, Ms Webb said she did not say she would run Ms Martin out of town. Rather, she referred to the fact that elders in the town keep an eye on government organisations and get rid of those who aren’t doing the right thing. Ms Webb testified that her elders are not from Derby as she comes from Fitzroy Crossing. 43 Furthermore, in cross-examination, Ms Webb said that Ms Martin did not understand her as she had no “cultural awareness” training. She said that Ms Martin misconstrued her behaviour with students. She spoke with Ms Cockram to try and get some results, as she knew Ms Cockram had a better rapport with Ms Martin than she did. Ms Webb did accept, however, that she 244 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. was not only annoyed, but became angry and upset by Ms Martin’s complaints about her in the workplace, as she considered that Ms Martin was trying to “set her up”. 44 Ms Cockram’s version of the events regarding this incident was quite different. She testified that not long after she started teaching at Derby District High School as a new teacher, Ms Webb seemed to want to get to know her and other younger new teachers. According to Ms Cockram, Ms Webb said she wanted to work with them rather than with teachers such as Ms Martin and Ms Hughes, who Ms Webb regarded as “know it alls” who thought that they ran the school. 45 Ms Cockram testified that on Friday 15 June 2007 she was in her class teaching. Ms Webb came to the door and asked her to step outside the classroom. When she did so, Ms Webb came up close to her in her “personal space”. Ms Webb asked Ms Cockram if she had been talking about Ms Webb. Ms Cockram replied that she had not. Ms Webb went on to say that she was not happy with Cath Martin, she was “going to run her out of town … [she did] not want her in the school … I’ve got my family here – we can run her out of town.” Ms Cockram described the manner in which this was said as with intensity and Ms Webb, as she was saying this, slapped the back of one hand into the palm of her other hand. Ms Cockram testified that she felt quite intimidated by this behaviour as Ms Webb appeared to be quite aggressive. 46 As they were just outside of the classroom at this time, Ms Cockram said she was concerned that her students could see what was occurring through the classroom windows and was concerned about what the students may have thought about this incident. 47 As she considered Ms Webb’s approach and comments to her as being serious and not in any way in jest, Ms Cockram passed on what was said to her to Ms Martin. According to Ms Cockram, Ms Martin was both annoyed and surprised. Ms Cockram said she was aware that Ms Webb and Ms Martin had had some “run-ins” in the past. After telling her about the incident, Ms Martin asked Ms Cockram if she would put the conversation she had with Ms Webb in writing. Ms Cockram testified that she was initially reluctant to do so, because of her fear of retribution from Ms Webb. However she decided to do so and the handwritten note she prepared was tendered as exhibit R18. Ms Cockram’s evidence was that she prepared this note at the end of the school day on 15 June after the incident. 48 When in cross-examination, Ms Webb put to Ms Cockram that Ms Webb’s elders do not come from Derby as she is from Fitzroy. Ms Cockram was emphatic in her response that Ms Webb said these things to her on the day. Allied to this, Ms Cockram said that as a result of cultural awareness training she had received in Broome, she was aware that aboriginal family members can be transient and may move from town to town to attend, for example, funerals etc. 49 Ms Martin testified that Ms Cockram came to see her as she was preparing to go to a school sport class. They went to Ms Martin’s room where Ms Cockram relayed the conversation she had with Ms Webb. Ms Martin said that she was shocked by what she was told and would not expect this from a colleague. This caused her considerable anxiety and stress and she felt directly threatened. Ms Martin said she was aware that it may have been because of a series of incidents previously, when Ms Martin had reported various matters involving Ms Webb to the Principal. As a result of these events, and the threat made to her by Ms Webb, Ms Martin said that she avoided Ms Webb and undertook some counselling. 50 I found Ms Cockram to be an impressive witness. Her evidence was forthright. I accept her testimony. Ms Cockram’s testimony was supported by a contemporaneous note which she made shortly after the incident, in her own hand. The note relevantly reads: Margie pulled me out of class to speak to me. Was questioning me about students etc. Then mentioned teacher’s names that she doesn’t get along with. Margie then mentioned her dislike for Cath and said exactly “I will run Cath out of town, I will get my elders on to her to get her out”. I feel uncomfortable if Margie found out about this as she intimidates me. 51 I am satisfied from Ms Cockram’s testimony, that Ms Webb did use the words alleged and did so in an intimidating manner towards Ms Cockram such that she came very close to her and gesticulated with her hands in an aggressive fashion. I also consider that Ms Webb had a motive to do so by “getting at” Ms Martin through Ms Cockram whom she knew to be a friend of Ms Martin. In my view, this was done for the purposes of intimidating Ms Martin and was consistent with Ms Webb’s testimony that she was angry and annoyed with Ms Martin. 52 I also found Ms Martin to be a credible witness and I accept her evidence. I accept that whilst she may not have taken Ms Webb’s statement literally, she was nonetheless threatened by it and it made her feel very uncomfortable around Ms Webb. I also accept the Department’s submission that Ms Webb, by this conduct, was attempting to bully Ms Martin and she used Ms Cockram to deliver a message to her, in an endeavour to stop Ms Martin raising complaints as to Ms Webb’s conduct and behaviour. Additionally, requesting Ms Cockram to leave her students whilst she was teaching her class, to discuss this matter, would have been clearly disruptive and distracting to both Ms Cockram and her students alike and inappropriate for that reason also. 53 I do not consider Ms Webb’s contention in relation to “cultural awareness” as having any substance at all. Such contentions were peppered throughout Ms Webb’s testimony and were thinly disguised allegations of racism. In my view, the complaints of the Department in relation to Ms Webb’s conduct and behaviour had nothing at all to do with cultural awareness. They had everything to do with proper standards of professional conduct by teachers in the workplace, regardless of racial or ethnic background. Charge 4 - In or about September 2007 attempt to persuade three child witnesses to change their evidence concerning a disciplinary investigation 54 By this allegation, it was asserted that Ms Webb interfered with the Investigation by the Department into the disciplinary allegations, by having three children retract their allegations of poor behaviour and conduct by Ms Webb. This was said to have been achieved by Ms Webb preparing a letter for the three students to sign, to the effect that a previous complaint letter of 29 June 2007, was false. The letter of 29 June is exhibit R1. It refers to the incident in the school cooking room on that day, 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 245 where the Department alleged that Ms Webb displayed inappropriate behaviour and used inappropriate force against a student Clinton Waldron. It was alleged that Ms Webb forced the student out of the cooking room by grasping his collar and pushing him backwards out of the door. Clinton Waldron and two other witnesses to the incident, students Kyle Angwyn and Aaryn Harrison, signed the letter. 55 The later and further letter, said to have been procured by Ms Webb, is undated and unsigned. It was exhibit R2. It had three spaces for the three students to sign. The letter says that the original complaint letter of 29 June 2007 was written on the suggestion of Ms Martin and made statements about Ms Webb’s conduct and behaviour that were not true. The letter says that the boys were sorry for the accusations and that the original complaint letter should not have been written in the first place. 56 As to this issue, Ms Webb testified that it arose from an incident on 29 June when the school was hosting a visit from the Minister for Education and the Director General of the Department. Ms Webb was cooking lunch with students in her cooking class, for the visitors. It was common ground that Ms Webb was very busy and under considerable pressure on this day. Ms Martin was also involved in supervising a visiting group from another school, and was preparing a barbeque for them. An incident, the subject of charges two and three occurred. Ms Webb alleges Ms Martin coerced the three boys involved to write the letter of complaint. Ms Webb said that Ms Martin took the three students to the school computer room where she assisted them in the preparation of the letter. The letter was then given to the Principal Mr Henderson. 57 Some time later in term three, Ms Webb raised the issue of the 29 June complaint letter in her class. She testified that some students were complaining that teachers had put them on behaviour management programs. In the course of this issue being discussed, Ms Webb told the students that she had also received a complaint letter (exhibit R1), which had been given to the Principal, and she was horrified by it. By writing the letter, the three boys concerned who signed it, had taken her job away from her. In her evidence, Ms Webb testified that in saying this to the class, she did not try to influence the students in any way and did not tell them to write another letter or to change the original complaint letter in any way. 58 Ms Webb testified that she wanted to explain to the boys concerned the ramifications of the letter. She told the class that they “need to go home and discuss with [their] parents what to do. It’s a very serious situation and the only way that it can be fixed is if [they] document the truth of how the first letter was actually written”. In her interview with the Investigators on 5 December 2007 Ms Webb said at p 39: I said well you boys you just telling me that you've that I’ve lost my job. If any child in any school writes something like that about a teacher then there jobs gone. I said you boys have just taken my job from me. I said thank you very much after 29 years I said don't tell me about these things boys you better go home to your parents, talk about it and bring me back your thoughts in writing because that's the only way that you are going to save me now. And Kyle and Clinton said Oh were sick of signing letters, were not signing letters to no-one and I said I don't blame you Bubs. You don't have to sign letters and Aaron said you know Miss Webb I wrote that first letter. I said well why did you write it because you weren't even there. It was Kyle and Clinton he said because they're my mates and they were so upset and he said I'm going to write the second letter to tell the truth because you are a good teacher and we don't want you to loose your job. I said well baby I don't think one signature's gonna be enough but go talk to your mother and then bring me a letter. On the Monday the following week I was given a letter by Aaron and that's my response to that allegation and I'm sick of the lies and the by people like our Admin who are supposed to stand for justice and the truth the kids are the only ones telling the truth in all of this. [sic] 59 Ms Webb testified she does not recall what she told the Investigator. 60 In her next class with this group, Ms Webb testified that she was handed a letter by Trent Ozzies, signed by Aaryn Harrison, to the effect that the original complaint letter was untrue and was prepared under pressure from Ms Martin. 61 When cross-examined as to exhibit R2, that being the letter of retraction, Ms Webb said that Trent Ozzies was asked by Aaryn Harrison to help with typing the letter. Neither Aaryn Harrison nor Kyle Angwin gave evidence. Trent Ozzies did give evidence and it was to the effect that Aaryn Harrison approached him in a class and asked him to give him some help with a letter. Trent agreed. He and Aaryn Harrison went to the computer laboratory and Aaryn Harrison dictated to him the letter which Trent then typed up. Trent printed out one copy of the letter which only had Aaryn’s name on it, which Aaryn signed (exhibit A2). Trent realised that he needed the signature of all three boys, so he printed three more copies of the letter with spaces for signatures for each of the boys. 62 Trent said he took one copy to Clinton Waldron. Clinton looked at the letter, but tore it up and threw it in the bin, according to Trent. Trent took another copy to Kyle Angwin who put it in his bag and took it home with him. Trent did not see this copy of the letter again. Trent testified that he had no knowledge of whether the letter was ever signed. According to Trent, Ms Webb had no involvement in the preparation of this letter of retraction. 63 In the absence of testimony from Kyle and Clinton, I am not able to conclusively determine their response to the production of the second letter, exhibit R2. However, on the strength of Trent Ozzies’ evidence, it is open to infer and I do infer, that both Kyle and Clinton did not agree with the content of the letter of retraction because one of them threw it in the bin and the other did not sign it. More relevant, however, is the reason the letter came into existence. I accept Trent Ozzies’ testimony that Ms Webb was not directly involved in the production of the retraction letter. However, the content of the transcript of the interview with the Investigator on 5 December 2007 is very revealing. Despite the fact that discussion about such matters by a teacher with students in a class is, of itself, highly inappropriate, given the position of authority Ms Webb had in the student- teacher relationship, the suggestion to “bring me a letter” and the reference to “bring me back your thoughts in writing because that’s the only way you are going to save me now”, was clear interference with the complaint process. 64 The message to students was abundantly clear in my view. Ms Webb was telling her students that she was about to lose her job as a teacher. The only way to save it was for the students to write a letter of exoneration. In my view this was a clear attempt to pervert the course of the Investigation process which was commenced as a result of the original complaint letter of 29 June 2007. In my view, this could be the only rational reason for Ms Webb raising this matter with the students in the class 246 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. on the day in question. Ms Webb was aware that some of the students were sympathetic to her situation and the suggestion to “bring in a letter” was a direct appeal to that sympathy. 65 Also, whilst it is not possible to finally determine the issue in the absence of evidence from the other students involved, I have considerable doubts that exhibits R1 and R2 were written by the same person, as alleged. The manner of composition, language used and structure of the letters is completely different. Charge 5 – 5 November 2007 – use of inappropriate language to a fellow teacher in the presence of students 66 This allegation concerns an incident that occurred at the school early in the morning on 5 November 2007, at about 8am. It involved Ms Webb and another teacher, to whom I have referred above, Ms Cockram. A conversation took place between them in the presence of students. It was alleged that Ms Webb confronted Ms Cockram in relation to some matters being dealt with by the Principal Mr Henderson. Ms Webb was alleged to have called Ms Cockram a “liar”, a “lying little shit”. When told by Ms Cockram to shut up, Ms Webb is said to have responded in words to the effect “don’t tell me to shut up you little bitch”. 67 As noted earlier in these reasons, Ms Cockram was at the time, an inexperienced and young teacher at the school. On occasions, Ms Cockram was required to do relief teaching in Ms Webb’s home economics class, as were others, because of a substantial number of absences by Ms Webb. Ms Webb testified that on one occasion, on 23 October 2007, after being absent on sick leave, she found her Home Economics Teacher’s Aide, Ms Dwyer, in tears in the classroom. Ms Webb asked Ms Dwyer what was wrong. Ms Dwyer told her that Ms Cockram had reported to her that the students were saying that Ms Webb had told them the “cooking classes were failing because Ms Wendy Dwyer…was not preparing properly and that she was tardy and disorganised.”: T26. Ms Webb testified she informed Ms Dwyer that this was not true and that the home economics lessons were successful. Ms Webb said she also told Ms Dwyer that she should not listen to gossip from other teachers. 68 Ms Webb lodged a number of complaints about this matter with Mr Henderson. Initially, Ms Webb asserted that the teacher concerned was Ms Martin. Ms Webb assumed this, because of the number of prior complaints Ms Martin had made to Mr Henderson about Ms Webb’s conduct and behaviour. Subsequently, Ms Webb lodged a ‘formal grievance’ against Ms Cockram. It was alleged that Ms Cockram was unprofessional by raising what she had been told by her year 10 class with Ms Dwyer. Ms Webb requested a meeting with both Mr Henderson and Ms Cockram to resolve the issue. Ms Webb accused Ms Cockram of lying in order to avoid her own unprofessional behaviour. In the written complaint, Ms Webb made an allegation of racism by saying to Mr Henderson “is it only aboriginal teachers that are capable of unprofessional behaviour”. Copies of the written complaints from Ms Webb to Mr Henderson are attached to exhibit A1. 69 Ms Webb became aware that it was in fact Ms Cockram who was the relief teacher in her home economics class on this occasion and not Ms Martin as a result of asking other staff who the relief teacher was on this particular day. Ms Webb said she decided to approach Ms Cockram to arrange a meeting. At about 7:40am on 5 November Ms Webb said she saw Ms Cockram walking on the path towards the manual arts room of the school, and moved across to cross paths with her. Ms Webb said she had the email from Mr Henderson in her hand at the time. Ms Webb said that she went up to Ms Cockram and said words to her to the following effect: Excuse me Ms Cockram can we please set up a meeting time with the principal over the Ms Dwyer incident because it was you who I need to see as Wendy had mentioned your name: T27 70 Ms Webb said that Ms Cockram then responded by shouting words to the following effect: Oh why don’t you shut up.: T27 71 Ms Webb testified that she was shocked by the incident and had not been spoken to like this in 27 years of teaching. 72 Ms Webb denied she swore at Ms Cockram. She said it was Ms Cockram who was loud. Ms Webb testified that she responded by calling Ms Cockram a “chit” and a “bit”. A ‘”chit” according to Ms Webb, is a “young precocious woman”. A “bit” was said by Ms Webb to be an Aboriginal/English word for a “wannabe”, a “young woman getting a bit above herself”: T63. While Ms Webb said that she was not able to recall what she said to the Investigator on this issue, when it was put to Ms Webb that she told the Investigator that she used these words “chit” and “bit” deliberately, so that Ms Cockram may have thought she swore at her, Ms Webb denied this. 73 In terms of Ms Cockram’s experience, Ms Webb also made the point of saying that Ms Cockram was only “two or three years out” and that Ms Webb was a senior and experienced teacher and that “there is a pecking order”: T62. This theme, of describing other teachers with whom Ms Webb had encounters with as being “junior” or “two to three years out”, was repeated on a number of occasions throughout Ms Webb’s testimony. 74 The evidence of Ms Cockram as to this incident could not be more of a contrast. She said that on or about the Friday prior to the confrontation with Ms Webb on Monday 5 November, she was on duty in the school grounds. She saw Ms Webb who yelled at her to “check your pigeon hole”. Ms Cockram did so. In it she found a note from Ms Webb. The note accused Ms Cockram of slander. It related to the issue of Ms Dwyer, about which Ms Webb had complained to the Principal, but the note did not refer to it specifically. Formal parts omitted, the note from Ms Webb to Ms Cockram reads as follows: I am writing to you to inform you that I have lodged a formal grievance against you for unprofessional behaviour through the spreading of gossip and misinformation designed to malign and undermine my name and teaching relationship with my teacher assistant. Natasha who the hell do you think you are going about the school forum gossiping about me and my teaching situation. You don't even know what teaching is about yet so I would like you mind your own business and keep out of mine. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 247 Schools don't need people who are adders spreading poison through the school with this sort of childish and unprofessional behaviour. I thought you were a great person and teacher but your nothing but a petty little gossip and not a very nice person at all. In future I will take much stronger action than this and formally charge you with slander and defamation if I catch you being so unprofessional again. 75 A copy of the note was tendered as exhibit R19. 76 Ms Cockram said that she was shocked and shaken when she saw the note. She testified that she felt intimidated by it. There was no invitation in the note to a meeting with Ms Webb and the Principal to discuss Ms Webb’s grievance. 77 The following Monday morning Ms Cockram arrived at school. She testified that she did not want to see Ms Webb and she tried to avoid her. To do so, she waited for the siren to go before leaving her office, thereby minimising the possibility of running into Ms Webb. Ms Cockram’s office was close to Ms Webb’s home economics classroom. A “mud map” of the layout of this area, including the home economics classroom, Ms Cockram’s office and a corridor/walkway adjacent, was prepared for the Investigator and a copy was tendered as exhibit R20. 78 As Ms Cockram was not teaching in period one, after waiting for the siren to sound, she left her office to go to the administration office to see if she had any relief teaching for the day. According to Ms Cockram, she saw Ms Webb with her students walking down the corridor. As soon as Ms Webb saw Ms Cockram, Ms Webb started to shout at her and swear. Ms Cockram said she recalled Ms Webb calling her a “lying little shit”, and a “little bitch”. Ms Cockram said she told Ms Webb to stop. Ms Webb came closer to Ms Cockram and kept going. At this point, Ms Cockram did tell Ms Webb to “shut up”. Ms Cockram testified that Ms Webb was aggressive and was pointing her finger at her and yelling. Ms Cockram said there was certainly no request from Ms Webb to meet with her and Mr Henderson to discuss Ms Webb’s grievance. 79 Ms Cockram said she was shaken by this encounter. When counsel for the Department asked her reaction to this Ms Cockram said at T260: What - what was your reaction? If you could describe it in a bit more detail?---My heart was going a million miles an hour. I was a bit shaky, and I was angry, and I wanted to let rip back, but at the same time, you know, you’re at school, you’re surrounded by students. I was trying to get her to stop. She wouldn’t stop, and then just - just - yeah, more than anything intimidated and a bit shaken up and just frustrated, the fact that there’s, you know - older member of staff having a go at one of the younger members of staff just really inappropriately, I think, anyway. 80 When asked further by counsel for the Department about whether Ms Webb was swearing, Ms Cockram said at T260: Do you recall what she said?---First it was, “You lying little shit.” I remember that, because I was, like, well, what have I - you know, what have I done here? I haven’t made up anything. And then she had said some other stuff coming close to me. Exactly what, I can’t remember. When she was up on the ramp looking down at me she, yeah, called me a little bitch, but all the other words in between - not exactly - not exactly sure. I just remember those because - I said, in a place of work with kids around you kind of - you kind of step back when you hear that directed at you. 81 After this confrontation, Ms Cockram said that she went back to her office and rang one of the Deputy Principals. She told him that she was going home as she was shaken up by the incident. When she got home, Ms Cockram wrote a note that day about the incident. The note records Ms Webb’s use of swear words directed at Ms Cockram. A copy of this handwritten note was tendered as exhibit R21. The next day, on 6 November, Ms Cockram made another note of the incident, to the same effect, but in which as she put it, she tried to “write it out a bit more officially”. This note was exhibit R22. 82 Whilst she was not interviewed as a part of the Investigation, another teacher, Ms Preedy, was present in the home economics room at the time of the incident. She provided a written statement to the Investigator. Ms Preedy was not called to give evidence, but a copy of her statement was tendered as a part of the business records of the Investigation process as exhibit R23. While it is a question of weight, Ms Preedy did note that she heard Ms Webb’s voice and she sounded “loud and obviously angry”. Ms Preedy did not hear the words used by Ms Webb or the other person’s reply. To that extent, Ms Preedy’s statement is consistent with the evidence of Ms Cockram, but I cannot place much weight on it for the reasons just stated. 83 Having already found Ms Cockram to be a credible witness, her account of this incident was compelling. The fact of the contemporaneous notes made by Ms Cockram at the time of the incident is also of considerable weight. Whilst Ms Cockram accepted that she should not have told Ms Webb to “shut up” in the presence of students, I am satisfied it was in response to the conduct and behaviour of Ms Webb. 84 I did not find Ms Webb’s explanation of this incident at all convincing. It was clear from the evidence that prior to 5 November, Ms Webb was very upset with Ms Cockram. Whilst this may, in view of Ms Cockram’s evidence as to her conversation with Ms Dwyer, have been the result of a misunderstanding, Ms Webb’s complaint to Mr Henderson and the language used in it, and importantly, exhibit R19, the note left by Ms Webb in Ms Cockram’s pigeon hole, showed hostility towards Ms Cockram. I have no doubt on the evidence, that on the morning of 5 November, when Ms Webb saw Ms Cockram, she decided to give her “a piece of her mind”. I accept that Ms Webb was loud and aggressive, and used the language alleged towards Ms Cockram. The suggestion, on Ms Webb’s testimony, that Ms Cockram reacted angrily to Ms Webb’s alleged calm and measured request for a meeting, by telling Ms Webb loudly, to “shut up”, does not make sense and is inherently incredible. Blurring of the teacher-student boundaries 85 A consistent theme in the case for the Department was the assertion that Ms Webb blurred the boundaries of the teacher- student relationship. It was contended that the blurring of boundaries was demonstrated, for example, by students referring to Ms Webb as “Aunty Margie”, the giving of food to the students, and allowing students to visit Ms Webb at her home. It was put by the Department that this compounded problems for Ms Webb in the behaviour management of her students. A large 248 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. and obvious consequence of this blurring of the boundaries, was the failure to report the serious disclosure incident involving L, because L asked Ms Webb not to report the disclosure and trusted that Ms Webb would not tell anyone. 86 Whilst I have no doubt that Ms Webb had the best of intentions towards her students, I accept the blurring of the boundaries was a real problem for her. In part, the Principal, Mr Henderson, was attempting to be responsive to this issue in his counselling of Ms Webb about keeping an appropriate separation from personal relationships of kinship and the professional teacher-student relationship. I accept also, however, on the evidence, the response of the school in terms of the behaviour management policy, was sometimes lacking. The evidence showed that the “red card” system did not always work as it should, and this no doubt made the difficulties Ms Webb was experiencing with some students, even more difficult. While such a failure of the system from time to time no doubt made the hard job of a teacher harder, it is of itself no justification for poor behaviour and conduct of a teacher. Teachers must lead by example, and model the standards of behaviour expected of them. Procedural fairness 87 Ms Webb’s particulars of claim as originally filed, raised various allegations that she had been denied procedural fairness. Ms Webb was represented by a firm of solicitors at the time. Later, Ms Webb was represented by the State School Teachers’ Union, and in its amended particulars of claim, similar allegations were made. As at the hearing of the claim, Ms Webb was unrepresented. Accordingly, the Commission gave Ms Webb an opportunity to explain her contentions in this regard, when parts of the original and amended particulars of claim were pointed out to her. 88 Ms Webb said she thought the process of the Investigation was unfair because the Investigator, Mr Scamp, let children be interviewed, some without parents being present. She also said that as the Investigation went on, more charges were laid. Ms Webb said some allegations were not specific enough, for example referring to “unknown dates and unknown times”. 89 Detective Sergeant Scamp was called to give evidence. He was the Investigator who conducted the investigations into the allegations against Ms Webb at the time. Mr Scamp is a Detective Sergeant in the Western Australian Police. He confirmed the transcripts of the interviews of witnesses, which run to some 742 pages, which were tendered as exhibit R3, were those of the interviews he conducted and they are accurate. Detective Sergeant Scamp testified that he interviewed Ms Webb on at least two occasions, and there was no complaint raised by Ms Webb as to the process of the interviews. This is confirmed in the transcripts where in both interviews, on 15 November and 5 December 2007, when expressly asked about it, Ms Webb made no complaint or expressed any concern about the process of the interviews. All the interviews with children were with the permission of their parents. 90 I have carefully read all of the relevant interview transcripts and the Investigation and Inquiry Reports. The total of these materials run to nearly 1,000 pages. In my view, the process adopted by the Department was thorough and fair. All material allegations were put to Ms Webb and she was given ample opportunity to answer them. The same applies to the Investigation and Inquiry Reports. The consideration of the evidence and materials was fair and balanced. Whilst they are not in any way binding on the Commission, as proceedings of this kind are in the nature of a hearing de novo, I consider that the conclusions contained in the Reports were reasonably open. All of the interview transcripts and Investigation and Inquiry Reports, and the documents referred to in them, were provided to Ms Webb. She was given an opportunity to comment on the Department’s proposed courses of action arising from each of them. There is no basis to conclude that the outcome of the disciplinary process was tainted by procedural unfairness in any way: Johnstone. Conclusion 91 For all of the foregoing reasons, I am not satisfied that Ms Webb had made out her case challenging the findings arising from the disciplinary charges laid against her. In view of my conclusions in this regard, there is no need to consider the other findings, recommending reprimands, as they were only relied upon by the Department to resist reinstatement. 92 On all of the evidence and the submissions before the Commission, I am not persuaded that the dismissal of Ms Webb was harsh, oppressive or unfair. Accordingly, the application is dismissed. 2012 WAIRC 01036 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MS MARGARET SUSAN WEBB APPLICANT -v- DIRECTOR-GENERAL DEPARTMENT OF EDUCATION RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 21 NOVEMBER 2012 FILE NO/S U 72 OF 2010 CITATION NO. 2012 WAIRC 01036 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 249 Result Application dismissed Representation Applicant In person Respondent Mr M Danger of counsel and Ms R Owen Order HAVING heard the applicant in person and Mr M Danger of counsel and Ms R Owen on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby dismissed. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00097 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PHILIP WETTON APPLICANT -v- ORD RIVER SPORTS CLUB RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE FRIDAY, 22 FEBRUARY 2013 FILE NO/S B 141 OF 2012 CITATION NO. 2013 WAIRC 00097 Result Application discontinued Representation Applicant Mr P Wetton Respondent Mr G Arnold (as agent) Order WHEREAS an application was filed in the Commission pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 11 September 2012 and 22 November 2012 conferences between the parties were convened; AND WHEREAS at the conclusion of the conference held on 22 November 2012 no agreement was reached between the parties; AND WHEREAS on 15 February 2013 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. SECTION 29(1)(b)—Notation of— Parties Number Commissioner Result Amanda Lee Port The Kim Green Family Trust Trading As BCJ Plastic Products U 257/2012 Commissioner J L Harrison Consent order issued Trevor Vernon Herron The Owners of Zenith City Centro Strata Plan 55731 U 221/2012 Chief Commissioner A R Beech Discontinued 250 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. CONFERENCES—Matters arising out of— 2013 WAIRC 00141 DISPUTE RE INDUSTRIAL ACTION WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WA COUNTRY HEALTH SERVICE APPLICANT -v- LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH DATE THURSDAY, 14 MARCH 2013 FILE NO/S C 15 OF 2008 CITATION NO. 2013 WAIRC 00141 Result Application closed Representation Applicant Mr C Gleeson Respondent Ms A Samson Order WHEREAS at a conference in this matter held on 6 June 2008 the parties reached an agreement for an interim payment of $2.40 per shift to all cleaners who are rostered as ward-based cleaners who could be called upon to make and carbolise a discharge bed; AND WHEREAS the conference was adjourned to allow further discussions between the parties to continue; AND WHEREAS at a reconvened conference held on 7 February 2013 the Commission was informed that the parties have reached agreement on a multi-skilled patient support services worker model which now has been fully implemented and agree that the interim payment agreed on 6 June 2008 is no longer necessary, NOW THEREFORE I, having heard Mr C Gleeson for the applicant and Ms A Samson for the respondent, and by consent, pursuant to the powers in s 44(6)(bb)(i) of the Industrial Relations Act, 1979, hereby order: 1. THAT the agreement between the parties made on 6 June 2008 for an interim payment of $2.40 per shift to all cleaners who are rostered as ward-based cleaners who could be called upon to make and carbolise a discharge bed is cancelled from 7 March 2013. 2. THAT the application C 15 of 2008 is hereby closed. (Sgd.) A R BEECH, [L.S.] Chief Commissioner. CONFERENCES—Matters referred— 2012 WAIRC 00158 DISPUTE REGARDING THE EMPLOYERS REDEPLOYMENT OF UNION MEMBERS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) AS THE HOSPITALS FORMERLY COMPRISED IN THE METROPOLITAN HEALTH SERVICE BOARD; THE PEEL HEALTH SERVICES BOARD; THE WA COUNTRY HEALTH SERVICE RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 19 MARCH 2012 FILE NO. CR 1 OF 2012 CITATION NO. 2012 WAIRC 00158 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 251 Result Direction issued Representation Applicant Ms E Palmer Respondent Mr N Fergus Direction HAVING heard Ms E Palmer on behalf of the applicant and Mr N Fergus on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – (1) THAT evidence in chief in this matter be adduced by way of signed witness statements which will stand as the evidence in chief of the maker. Evidence in chief other than that contained in the witness statements may only be adduced by leave of the Commission. (2) THAT the applicant file and serve upon the respondent any signed witness statements upon which it intends to rely no later than 21 March 2012. (3) THAT the respondent file and serve upon the applicant any signed witness statements upon which it intends to rely no later than 23 March 2012. (4) THAT the parties give notice to one another of witnesses they require to attend at the proceedings for the purposes of cross-examination no later than two days prior to the date of hearing. (5) THAT the applicant and respondent file and serve an outline of submissions and any list of authorities upon which they intend to rely no later than three days prior to the date of hearing. (6) THAT the parties have liberty to apply on short notice. (Sgd.) S J KENNER, [L.S.] Commissioner. 2012 WAIRC 00438 DISPUTE REGARDING THE EMPLOYERS REDEPLOYMENT OF UNION MEMBERS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION