WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES “RN”, APPLICANT v. ROMAN CATHOLIC BISHOP OF BUNBURY, RESPONDENT CORAM COMMISSIONER J H SMITH DELIVERED WEDNESDAY, 18 APRIL 2001 FILE NO APPLICATION 18 OF 2000 CITATION NO. 2001 WAIRC 02585 _______________________________________________________________________________ Result Application dismissed Representation Applicant Mr P Marsh and Mr A Gill of Counsel Respondent Mr G Bartlett of Counsel _______________________________________________________________________________ Reasons for Decision. 1 Mr “RN” (“the Applicant”) made an application under s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) on 6 January 2000 claiming that he was harshly, oppressively and unfairly dismissed by the Roman Catholic Bishop of Bunbury (“the Respondent”) on 17 December 1999. The Respondent employed the Applicant as a teacher at a primary and secondary College in the country. The Applicant is seeking an order that he be reinstated to his former position. The Applicant was summarily dismissed on 17 December 1999 following an investigation by the Principal of the College and a finding by her that the Applicant was guilty of sexual misconduct in respect of a student. The misconduct was alleged to have occurred during a painting class in a storeroom. 2 At the outset of the hearing Counsel on behalf of the Applicant advised the Commission that the Applicant is also seeking an order under s.23A(1)(a) of the Act that he is entitled to be paid a sum of money as payment in lieu of long service leave. 3 In light of the nature of the allegations the Commission made an order that the proceedings be conducted in private and that no details or particulars or any other matter likely to lead to the identification of the child in respect of whom misconduct was alleged to have been committed should be published. In light of that order the Reasons for Decision identify the following persons by their initials as follows— Mr “RN” the Applicant Ms “AC” the College Principal “AG” the student “JCG” AG’s sister Mr “JG” and Mrs “EG” AG’s parents 4 Prior to the commencement of the hearing the parties filed an Agreed Statement of Facts. The statement of facts and the material documents referred to in the statement of facts are as follows— 1. The Respondent, employed the Applicant as a teacher commencing in 1986 at the College. 2. The Applicant was employed on a permanent full- time basis. 3. On 31 October 1997 the Applicant was directed not to attend work by the College, but remained on full pay pending the result of a criminal in- vestigation into allegations of indecent dealing with a child less than 13 years of age. 4. On 18 November 1997 the Applicant was charged on complaint pursuant to Section 320(4) of the Criminal Code 1913 (WA) that he indecently dealt with one “AG”, a student in the Applicant’s class. 5. The Applicant entered a plea of Not Guilty be- fore a Court of Petty Sessions on 20 November 1997. A condition of bail was that the Applicant was not to enter, approach or attend the College. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1227 81 W.A.I.G. 6. On 13 October 1998 a Court of Petty Sessions found that there was sufficient evidence to com- mit the Applicant for trial on the charge. 7. On 17 May 1999 the Department of Public Pros- ecutions entered a nolle prosequi in relation to the charge against the Applicant of indecent deal- ing. 8. On 18 May 1999 a meeting took place between Mr Paul Andrew (Co-Coordinator, Employee and Community Relations Team, School Personnel Section, Catholic Education Office), Ms “AC” (Principal of the College), both acting on behalf of the College, and Mr Ivan Sands (then Secre- tary of the Independent Schools Salaried Officers’ Association) acting on behalf of the Applicant. This meeting was not convened specifically to discuss the Applicant’s return to work, however at the end of the meeting, in light of the nolle prosequi having been entered the day before, the Applicant’s return to work was discussed. 9. By letter dated 20 May 1999 from the Applicant’s representative (Mr Sands) to the College’s repre- sentative (Mr Andrew), it was confirmed that the Applicant was seeking medical advice regarding his health. 10. By letter dated 20 May 1999 from the College’s representative (Mr Andrew) to the Applicant’s representative (Mr Sands), it was confirmed that the Applicant would be placed on sick leave and that the College would provide all reasonable assistance to facilitate his return to work. 11. By letter dated 28 June 1999 from the College’s representative (Mr Andrew) to the Applicant’s representative (Mr Sands), it was confirmed that the Applicant could return to work at the College as soon as he was medically fit to do so. 12. On 15 September 1999 a graduated return to work program was formulated for the Applicant by Countrywide Injury Management (a Rehabilita- tion Provider) and agreed to by the Applicant and the College. 13. By letter dated 24 September 1999 from Ms “AC” (Principal of the College), to staff and parents of children attending the College, it was reported that the Applicant would be returning to his teach- ing duties at the College during Term Four. The letter states— “On behalf of myself and the College Board and after consultation with the Rev. Peter Quinn, Bishop of Bunbury, we would advise that Mr “RN”, teacher of some 15 years serv- ice at the College will be returning to his teaching duties at the College during Term Four. The reason for Mr “RN’s” absence is com- mon knowledge, however in May this year all allegations against him were unilaterally with- drawn. As such, in the eyes of the State and the Church, there is no case to answer by him, either to the community or to his employer. Mr “RN’s” return is fully supported by the College and we request that staff and the Col- lege community will welcome his return and provide whatever assistance he may require. If any staff or parents have concerns relating to this matter I am happy to meet with people on an individual basis to discuss any issue that they may have.” 14. The letter dated 24 September 1999 referred to above was an agreed statement between the Ap- plicant and the College. 15. At a meeting on 30 September 1999 it was agreed between the Applicant, the College and the Re- habilitation Provider that the Applicant would begin the return to work program at the com- mencement of Term Four, on 11 October 1999. In attendance at the meeting were the Applicant, the Applicant’s wife, Mr Terry Wilson (Head of School Personnel Section, Catholic Education Office), Mr Sands, Ms “AC” (Principal of the College) and Ms Ros Collins (Countrywide Re- habilitation). 16. On or about 29 October 1999 the College’s Prin- cipal Ms “AC” received a letter from Minter Ellison (Solicitors for the parents of “AG”) re- minding the College of its responsibilities as educators of children and detailing alleged inac- curacies contained in its letter to parents dated 24 September 1999. The letter states— “We act for Mr “JG” and Mrs “EG”. Our clients have handed to us a copy of your circular letter to parents dated 24 September 1999. In your circular letter you state or imply the following— 1. All allegations against Mr “RN” were universally withdrawn; 2. In the eyes of the State, there is no case to answer by him; and 3. There is no case to answer by him to the community. The correct version of events is as follows— 1. For now, the criminal indictment against Mr “RN” is not proceeding. 2. On 13 October 1998 a Court of Petty Sessions found that there was a case to answer, that is, sufficient evidence to commit Mr “RN” for trial to the Dis- trict Court at Albany on charges of indecent dealing with a child under 13 years. 3. None of the allegations against Mr “RN” have been withdrawn. 4. The charges against Mr “RN” have not been withdrawn. 5. The Crown has advised that they are not proceeding on the indictment. The proceedings have been stayed. 6. The case against Mr “RN” remains and can be revived. You may wish to verify the matters we have raised directly with the DPP if in fact you haven’t already done so. Your letter is, with respect, totally misleading and, as you can no doubt imagine, wholly of- fensive to our clients. Among other things, your letter implies that there was no substance in the case against Mr “RN”. As you can, and no doubt do, appreciate, the fact that the State does consider that Mr “RN” has a case to answer in relation to his dealings with our clients’ daughter, causes them very real and very deep and enduring emotional pain. Your circular letter has clearly and un- necessarily fuelled and prolonged that pain. The purpose of writing to you is twofold. First, given the inaccuracies of your circular letter, we are instructed to request that you publicly apologise to our clients (by means of another circular letter to the entire school com- munity) in a form that our clients approve, retract the inaccurate statements and set the record straight. Second, and perhaps more importantly, to cor- respond with you as evidence of a formal notification (reminder) to you of your respon- sibilities as educators towards your pupils. The fact that Mr “RN” is entitled to the presump- tion of innocence does not, in our opinion, exonerate him. Nor does it entitle you to step back from your responsibilities and legal duty of care towards the remaining students of the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1228 school. As you well know, the allegations that have been made against Mr “RN” are serious and warrant close deliberation by you in or- der for you to ensure that a proper environment is maintained for your pupils. Certainly it is our clients’ opinion that he is totally unfit to fulfil the role of a teacher. We are specifically instructed by our clients to formally notify you that you must now as- sume full responsibility for the consequences of Mr “RN’s” conduct in the school. Unless you are completely satisfied, based upon a thorough and unbiased analysis of the facts, then you may well remain legally exposed should similar or related incidents occur in the future. In any event, the responsibility is now yours. Please may we have your early response in relation to the request for an apology.” 17. By letter dated 11 November 1999 from the Col- lege’s representative (Mr Andrew) to the Applicant’s representative (Mr Sands), the Col- lege requested that the Applicant respond to the allegations made against him. The allegations were contained within that letter. The letter states— “I refer to our telephone conversation today regarding allegations that were made against Mr “RN” in October 1997 by the “G” family. The “G’s” have alleged that Mr “RN” inde- cently dealt with “AG” who was a student in Mr “RN’s” class at the time. As per your di- rections I am forwarding you this correspondence. On 17 May 1999 a nolle prosequi was pre- sented regarding charges against Mr “RN” and as a consequence there will be no further pro- ceedings against Mr “RN” in relation to those allegations by the DPP. At the time that these proceedings took place the College was not aware of the allegations in any detail and as a result did not pursue the matter with Mr “RN”. Recently the College has been notified by the “G” family of the details of the allegations and as a consequence the College is of the opin- ion that Mr “RN” should respond to the allegations. The “G’s” have also requested that further inquiries are made regarding these al- legations. To this extent the College requires Mr “RN” to respond to the following allegations. The allegations centre around an alleged inci- dent that occurred on Friday 24 October 1997. The following has been alleged by “AG” via her mother Mrs “EG”— 1. That on Friday 24 October 1997 Mr “RN” indecently interfered with “AG”. 2. That Mr “RN” indecently interfered with “AG” in the storeroom of his Year Five classroom by painting areas of “AG’s” genitalia with a paintbrush. 3. That while in the storeroom Mr “RN” squeezed “AG’s” breasts. 4. That while in the storeroom Mr “RN” exposed his penis to “AG” and secreted bodily fluids from his penis over “AG’s” face. The College believes that the nature of these allegations are extremely serious and Mr “RN” is required to respond to the above allegations. As these allegations are extremely serious I strongly recommend that Mr “RN” seeks the appropriate advice when making his response. To provide Mr “RN” with an appropriate pe- riod of time to provide a detailed response Mr “RN” is directed not to present himself for duty at the College until this matter has been resolved. During this time Mr “RN” will re- main on full salary and accrue all normal benefits. Ivan we spoke briefly in the manner in which these allegations are to be put to Mr “RN” and I proposed two options— 1. That we meet with you, Mr “RN”, Ms “AC” and myself, or 2. That you forward this information to Mr “RN” where upon Mr “RN” or yourself can contact the College should the need arise. Whichever option is chosen or we agree to another proposal the College requires a re- sponse from Mr “RN” which is to be forwarded to Ms “AC” and received by no later than 26 November 1999. Should you or Mr “RN” require clarification of any of the issues that has been raised you can contact Ms “AC” directly at the College during normal hours. Should Mr “RN” need to attend school to ob- tain any personal items he can contact Ms “AC” directly who will arrange access to the College. The College considers these allegations to be extremely serious and if proven Mr “RN’s” contract of employment with the College will be reviewed and termination of his employ- ment may occur. If the College can assist Mr “RN” in any way please contact Ms “AC” directly.” 18. By letter dated 12 November 1999 from the Ap- plicant’s representative (Mr Sands) to the College’s representative (Ms “AC”), the Appli- cant requested further details of the allegations against him. The letter states— “Further to the fax received from the Catholic Education Office containing allegations against Mr “RN”, we would advise that Mr “RN” has given his authority to the ISSOA to act on his behalf in this matter. To that extent therefore any contact, meeting and/or discussion that the employer wishes to have in regard to this matter must be directed to this office. In respect to the alleged allegations and as a means of appropriately addressing this mat- ter, Mr “RN” requests that the employer— (a) provide to this office details in writing from the “G” family, stating clearly the nature of the allegations being made; and (b) provide the basis upon which these al- legations have been made. Upon receipt of those details, Mr “RN” will respond accordingly. In view of the time frame for response im- posed by the College, we would expect the above details to be forwarded to this office by Friday 19th November 1999. Should you wish to discuss any details regard- ing this matter you can contact Ivan Sands directly during normal office hours.” 19. At a meeting on 16 November 1999 between Ms “AC” and the Applicant, Ms “AC” requested that the Applicant respond to the allegations in writ- ing. The Applicant requested that “G’s” put the allegations in writing. 20. By letter dated 18 November 1999 the College’s representative (Mr Andrew) notified the Appli- cant’s representative (Mr Sands) that the Applicant had been advised of all allegations against him, the nature of the allegations, who WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1229 81 W.A.I.G. made the allegations and when the alleged inci- dents allegedly occurred. Therefore the College would not supply further details of the allega- tions against the Applicant and required a response to the allegations by 26 November 1999. The letter states— “I refer to your letter of 12 November 1999 to Ms “AC”, Principal of the College regarding Mr “RN”. As you are aware I am assisting the College in this matter and in future I request that all correspondence pertaining to this mat- ter be sent to the Catholic Education Office for my attention. You were advised of the allegations made by the “G” family against Mr “RN” by way of facsimile on Thursday 11 November at your request. You requested that the allegations be sent to you directly so that you could contact Mr “RN” to advise him of the allegations. Also contained within this letter was a requirement that Mr “RN” was not to present himself for work so that he could respond to the allega- tions. I contacted you by telephone on Monday 15 November to advise you that Mr “RN” had presented himself at the College on Friday 12 November and Monday 15 November. Dur- ing our telephone conversation you advised that you had spoken to Mr “RN” on the previ- ous Thursday and Saturday. You advised that you had not conveyed to Mr “RN” that he was not required to present himself for work. You also conveyed that while you advised Mr “RN” that allegations against his conduct had been raised you had not advised him of the details of these allegations. You also stated that you sent Mr “RN” a copy of the letter dated 11 November 1999 in Friday’s mail. It is the expectation of the College that the ISSOA, acting on behalf of Mr “RN”, would advise Mr “RN” of the content of the letter of 11 November in its entirety. Ms “AC” met with Mr “RN” on Tuesday 16 November where Mr “RN” advised her that he was not aware that he was to respond to any allegations. Mr “RN” also advised that while he had spoken to you either on Wednes- day or Thursday, the contents of the letter dated 11 November were not discussed. Mr “RN” did not mention any discussion he had with you on Saturday. These comments by Mr “RN” are contrary to comments that you have previously made. Mr “RN” also stated that the College would be hearing from the legal firm, Slater and Gordon regarding this matter. As the College has received a letter from you stating that the ISSOA was acting on Mr “RN’s” behalf the College was somewhat unclear as to who is representing Mr “RN”. You confirmed that the ISSOA was represent- ing Mr “RN” after I telephoned you on 16 November 1999. As you have been represent- ing Mr “RN” in the past regarding this matter and based on your letter to the College of 12 November the College confirms that you rep- resent Mr “RN”. However the College is concerned about Mr “RN’s” claim that he had not been informed of the information for- warded to the ISSOA on 11 November and to this extent the College will now copy all cor- respondence to Mr “RN” to ensure he is fully informed. Your letter of 12 November 1999 requests that— In respect of the alleged allegations and as a means of appropriately address- ing this matter, Mr “RN” requests that the employer— (a) provide to this office details in writing from the “G” family, stating clearly the nature of the allegations being made; and (b) provide the basis upon which these allegations have been made. The College contends that this information has been provided to Mr “RN”. Mr “RN” has been advised of all the allegations, the nature of the allegations, who has made the allegations and when the alleged incidents allegedly occurred. The College is of the opinion that all the in- formation that Mr “RN” requires to respond to the allegations has been provided to him. The College will await Mr “RN’s” response to the allegations, which is to be received by the College no later than 4.00pm Friday 26 November 1999. The College wishes to proceed with this mat- ter expeditiously and fairly. We put you on notice that should we experience any similar difficulties in dealing with this matter through the ISSOA, then we will, as we are entitled to, deal with Mr “RN” directly. Should you require any further information I can be contacted on 9212-9267 during nor- mal office hours.” 21. By letter dated 25 November 1999 from the Ap- plicant’s representative (Mr Sands) to Ms “AC”, the Applicant denied each of the allegations con- tained in the letter of 11 November 1999, referred to above. The letter states— “In response to you letter of 11th November regarding the allegations made against Mr “RN” we have been instructed to issue the following response from Mr “RN”— “Dear Ms “AC” Before formally responding to the al- legations made in your letter dated 11th November 1999, I wish to indicate for the record that on the 16th November 1999 I formally requested of you a copy of Mrs “EG’s” written substan- tiation of the complaints and allegations against me, to which you advised that you would obtain them for me. The College has not provided that in- formation or given any confirmation that such details exist. Despite that, however, my response to the allegations is as follows— 1. That on Friday 24 November 1997 Mr “RN” indecently in- terfered with “AG”. Response: I unequivocally and unreservedly deny such allega- tion. 2. That Mr “RN” indecently inter- fered with “AG” in the storeroom of his Year Five classroom by painting areas of “AG’s” genitalia with a paint- brush. Response: I unequivocally and unreservedly deny such allega- tion. 3. That while in the storeroom Mr “RN” squeezed “AG’s” breasts. Response: I unequivocally and unreservedly deny such allega- tion. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1230 4. That while in the storeroom Mr “RN” exposed his penis to “AG” and secreted bodily flu- ids from his penis over “AG’s” face. Response: I unequivocally and unreservedly deny such allega- tion. Yours faithfully Mr “RN” 25th November 1999 The ISSOA, on behalf of Mr “RN”, repeats the request that the accusers forward to Mr “RN”, in writing, the details of the allegations and the sub- stantiation and/or basis upon which these allegations have been made.” 22. By letter dated 2 December 1999 from the Col- lege’s representative (Mr Andrew) to the Applicant’s representative (Mr Sands), the Ap- plicant was informed that an investigation into the allegations would be undertaken and in the event that the finding supported the termination of the Applicant’s employment he would be given the opportunity to put any reasons to the College as to why his employment should not be termi- nated. The letter states— “I refer to your letter of 25 November to Ms “AC” on behalf of Mr “RN”. I respond of behalf of Ms “AC”. Mr “RN” has claimed that at a meeting on 16 November 1999, Ms “AC” gave an un- dertaking to provide information from the complainant in this matter. Ms “AC” re- futes that any such undertaking was provided and this has been confirmed by Mr Danny O’Neil, Head of Primary who was present at this meeting. Ms “AC” has stated that Mr “RN” did re- quest this information but was advised by Ms “AC” that the letter dated 11 Novem- ber 1999 contained the specific allegations, the nature of the allegations, who made the allegations and when the alleged incidents occurred. At no time did Ms “AC” state or imply that Mr “RN’s” request for a copy of the complainant’s statement would be met. The College believes that Mr “RN” has been provided with adequate information to respond to the allegations. The College is of the opinion that procedural fairness has been afforded to Mr “RN”. The College also contends that Mr “RN” has been afforded the opportu- nity to respond to the allegations. The allegations are specific and set out in a manner to make it easier for Mr “RN” to respond. In addition, an appropriate timeframe for such response has been allowed and Mr “RN” has been given the opportunity to obtain advice. The College believes that the principles of natural justice in this instance have been met and that it is not incumbent on the College to provide Mr “RN” with all statements of evidence relat- ing to this matter. As Mr “RN” has already responded to the allegations, the College invites you to set out the basis for Mr “RN” now needing further information from the complainant. If you believe Mr “RN” has a legal entitlement to receive a copy of the statement, then please set out the legal basis for this claim with support- ing authorities. The College will then consider its position in light of any fur- ther information you provide. It is the intention of the College to ad- vise Mr “RN” of the outcome of the investigation and to provide Mr “RN” with the findings of the investigation as soon as possible. In the event that the findings support the termination of Mr “RN’s” employment, Mr “RN” will also be given the opportunity to put any reasons to the College as to why his employment should not be terminated. Mr “RN” may elect to— 1. further respond to the allega- tions in writing and put in writing any reasons why his employment should not be ter- minated; and/or 2. meet with Ms “AC” and myself in relation to paragraph 1 above. We suggest a meeting could be ar- ranged on Thursday, 9 December 1999. If this is suitable to Mr “RN” then he can bring a support person with him (and we understand that you would probably attend in that role). Please advise me by 2.00pm on Fri- day, 3 December 1999 of the manner in which Mr “RN” elects to respond. If you require to discuss this matter or require our position to be clarified in any way whatsoever please contact me on 9212 9267.” 23. By letter dated 7 December 1999 from the Col- lege’s representative (Mr Andrew) to the Applicant’s representative (Mr Sands), the Col- lege requested a response to its letter dated 2 December 1999. 24. By letter dated 10 December 1999 from the Col- lege’s representative (Mr Andrew) to the Applicant’s representative (Mr Sands), the Ap- plicant was informed that any further response to the allegations contained in the letter dated 11 November 1999 referred to above, should be made in writing by no later than 12 noon, Mon- day 13 December 1999. This letter advised that as a result of the College’s investigations, the College was of the view that the allegations against the Applicant were proven. The Appli- cant was offered a final opportunity to put reasons to the College why his employment should not be terminated. 25. On 10 December 1999 a compulsory conference was convened in the Western Australian Indus- trial Relations Commission pursuant to s.44 of the Industrial Relations Act 1979 on application by the Applicant’s union to discuss the standing down of the Applicant from teaching duties. 26. The Applicant continued to be stood down from teaching duties, following the conference. 27. By letter dated 13 December 1999 from the Ap- plicant’s representative (Mr Sands) to the College’s representative (Ms “AC”), the College was requested to communicate to the Applicant’s legal representative, reasons why the Applicant’s employment as a teacher at the College should not be reinstated. 28. By letter dated 14 December 1999 from the Col- lege’s representative (Ms “AC”) to the Applicant, Ms “AC” detailed the Applicant’s response to the allegations made against him as understood by the College. The Applicant was given a final op- portunity to add information to his responses. 29. By letter dated 16 December 1999 from the Ap- plicant’s representative (Mr Andy Gill, Dwyer Durack, Barristers and Solicitors) to the College’s WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1231 81 W.A.I.G. representative (Ms “AC”), the Applicant reiter- ated his denial of all of the allegations made by the College. 30. By letter dated 17 December 1999 from the Col- lege’s representative (Ms “AC”) to the Applicant, the Applicant was informed that his employment at the College was terminated, effective immedi- ately. The letter states— “The College has provided you with a number of opportunities to respond to the serious allegations made against you. Your only response has been to deny the allega- tions. We have invited you to raise any other matters for us to consider in making a de- cision whether or not to terminate your employment, but you have not taken up our invitation. Given the seriousness of the allegations and your unsatisfactory responses to them, the College has no alternative but to terminate your employment for serious misconduct. Your employment at the College is termi- nated effective immediately. Please immediately return all material or property in your possession or control be- longing to the College including, without limitation, all keys, files, documentation, publications, computer equipment, soft- ware, discs, lists or student records and any other information or material, in any me- dium whatsoever relating to the College.” Background 5 The Applicant was employed full-time as a four-year trained teacher at the College. His terms and conditions of his employment were regulated by the Independent School Teacher’s Award 1976 (“the Award”) and the Western Australian Catholic Schools (Enterprise Bargaining) Agreement No. 1 of 1998 (“the Agreement”). At the time of termination he was paid $1901.78 per fortnight. 6 The witnesses at the hearing gave their evidence in chief by way of written statements of evidence. The Applicant and Mr Ivan Sands, a former Secretary of the Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers (“ISSOA”) gave evidence on behalf of the Applicant. 7 Ms “AC” (the College Principal), Mrs “EG” (“AG’s” mother), Detective Sergeant Darren Seivwright, Detective Sergeant Trevor Evans, Mr Terrence Wilson (the Head of Employee and Community Relations Catholic Education Office) and Ms Kathryn O’Brien (a Psychologist), gave evidence on behalf of the Respondent. 8 Both the Applicant and Mr Sands were cross-examined at some length by the Respondent’s counsel. Prior to the Respondent’s witnesses giving evidence the Applicant’s counsel informed the Respondent’s counsel, that the Applicant did not wish to cross-examine Mrs “EG”, Detective Sergeants Seivwright and Evans, and Ms O’Brien. Despite this advice the Respondent’s counsel called each one of those witnesses and the Applicant’s counsel cross-examined each of those witnesses with the exception of Detective Sergeant Seivwright. However in relation to each of those witnesses only part of their evidence was challenged in cross-examination on behalf of the Applicant. The Applicant’s evidence of the events of 24 October 1997 9 When the College Principal, Ms “AC”, conducted an investigation into the alleged misconduct by the Applicant in respect of the student “AG”, the Applicant did not provide any information to the Principal or to any other persons employed by the Respondent about his version of events that occurred on 24 October 1997 other than to deny the allegations. However at the hearing of this matter the Applicant’s statement of evidence in-chief addressed the events of that day in a very detailed way. The Applicant testified that he prepared his statement of evidence in- chief from notes made by him when the allegations were first raised with him on 30 October 1997 because he was informed by his solicitor to make detailed notes of the events that occurred on 24 October 1997. 10 The Applicant said that he had taught “AG” since the beginning of 1997 and that she is a profoundly Down’s Syndrome child with a neurological disorder. He said that she has marked problems with walking and running, she drags one foot as she walks and her speech is affected. He also testified that “AG” has problems with oral communication and is generally very difficult to understand. Further that she suffers from a hearing disability and wears two hearing aids. In 1997 she was 11 and she had a mental age of about six. 11 The Applicant testified that he arrived at work at the College between 8.00am and 8.30am on 24 October 1997. When he arrived he opened up the classroom and went inside. He said there were no children in the classroom and no children followed him in because the first siren had not sounded. He only stayed in the classroom for about a minute and he went to the canteen and ordered his lunch. He said at 8.40am he returned to the classroom to let the children in so they could prepare for their lessons. From 8.40am to 8.50am he was with the children in the classroom and did not leave. At 8.50am the siren sounded for the second time indicating the lessons were commencing for the day. The lessons commenced after the morning prayer session. He then taught mental maths followed by a maths quiz and a formal maths lesson. He said the maths lesson concluded at 9.55am. The next lesson was religious education which finished at morning recess. Morning recess was for 20 minutes from 10.25am to 10.45am. 12 The Applicant said that on the day in question he was rostered on playground duty and his rostered times for duty were all of recess and half of lunchtime. He was rostered on duty that day with another teacher, Mrs Gallimore. During morning recess the Applicant and Mrs Gallimore were met by the Primary Principal who asked them to pose for a photograph for use in the school magazine. After the photo was taken he returned to the classroom for the recommencement of lessons. 13 The Applicant then undertook lessons between 10.48am and 12.25pm which were reading, reading comprehension, english/grammar and spelling skills. The siren went at 12.25pm for lunch. He said he and the children said their lunchtime prayers and ate their lunch in the classroom between 12.25pm and 12.35pm. At 12.35pm he was required to start playground duty. He did the playground duty with Mrs Gallimore and was relieved by the second duty staff somewhere between 12.48pm and 12.50pm. 14 The Applicant said he then went to the staff room and he stayed in the staff room eating fruit and browsing through the newspaper until the siren sounded at 1.10pm. He and his pupils returned to the classroom. The students commenced silent reading at 1.15pm for half an hour. 15 At about 1.45pm the Applicant entered the storeroom and began preparing for a painting class whilst the children sat very quietly doing their silent reading in the classroom. The storeroom adjoins the Applicant’s classroom. He gathered a number of two litre bottles of paint and assorted colours and put them on a desk at the back of the classroom adjacent to the storeroom entrance. He also gathered some A3 size paper, egg cartons (to put paints in), ice-cream containers to put clean water in and paint brushes in assorted sizes. He also placed this material on the desk at the back of the classroom near the entrance to the storeroom. He then instructed the children to create “dangerous creatures” posters. As it was a nice sunny day quite a few children decided to sit out on the grassed area right outside the classroom. He said he took paint bottles and egg cartons out to the grassed area to distribute to the groups. He said there were about 20 to 22 children outside on the grass and the remainder were spread out in the classroom. Some of the desks were pushed together to provide a larger working area. 16 The Applicant testified that “AG” was outside the classroom sitting with about 4 or 5 other girls, one of WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1232 whom was her friend and minder. He said that “AG” stayed with this group and then got up and wandered about as she usually did. She visited other groups and looked at what they were doing. He testified that “AG” wandered around very frequently and this was nothing new. He said she was allowed to do this providing she did not disrupt other children who were working. 17 The Applicant testified that “AG” started painting and filled her paper up with meaningless scrawl. She asked for another piece of paper and he told her she could go inside and get a piece from the desk just inside the door at the back of the room. He said she then started painting on that piece of paper, mixing up her paint and generally filling the paper again. He said that about halfway through the lesson “AG” moved from the grassed area where she was originally sitting to a spot on the concrete pathway very close to the classroom door. He said he told her to put some old newspapers down to protect the concrete pathway from spillage, because her physical disability and lack of fine motor skills had a profound affect on her ability to co-ordinate her movements in using these sorts of materials with any degree of care and/or dexterity. He said he obtained old newspaper for her and put it down on the path. 18 He said that throughout the lesson he circulated around the student groups both inside and outside the classroom supervising, advising and helping as and when needed. At about 2.30pm to 2.35pm a number of parents began standing around the immediate area of the pathway and around the top of the stairs. 19 The Applicant testified that throughout the lesson students came to him and asked if they could go into the storeroom to get fresh or different coloured paints. He said all the students knew they had to come and ask before entering the storeroom to take any fresh materials. Further that the storeroom door was open so he could keep an eye on the comings and goings from a supervisory and control point of view. 20 He said that the day and the lesson was regular and uneventful, that nothing unusual or out of the ordinary happened. The lesson drew to a close at approximately 2.55pm to 3.00pm with the children cleaning up the materials and returning the art materials to their appropriate places. The children used a wet area to assist in the clean up process. The wet area is a shared area, next to his classroom and was central to other classrooms. 21 He said that he did not notice any paint on “AG” nor did he have cause to speak to her specifically about anything during the time of cleaning up or in the last 15 minutes of the day. 22 He said the class was dismissed at 3.10pm on the sounding of the final siren and he left the school premises at 3.20pm with his three sons as one of his sons had an appointment with a doctor to remove stitches from his hand. The criminal investigation 23 The Applicant testified that the first he knew about the allegations made by “AG” was on 31 October 1997, when the Police came to his house with a search warrant. He said the Police conducted a search of his house and found no illegal articles whatsoever. It was common ground that the Police seized several pornographic videos which were later returned to the Applicant. 24 The Police asked the Applicant to accompany them to the Police Station and undertook a video-taped record of interview. The Police put allegations to the Applicant that during art class whilst in the storeroom, he painted “AG’s” breasts, indecently dealt with her, masturbated and ejected semen on her. The Applicant strongly denied all of the allegations. The Police requested that he provide samples of his blood for the purpose of forensic and DNA testing. He then attended a hospital and gave three samples of his blood. 25 The Applicant was charged by the Police on 18 November 1997 with an offence under s.320(4) of the Criminal Code that he indecently dealt with “AG”, a child under the age of 13 years. 26 The forensic report was tendered into evidence on behalf of the Applicant. The forensic report was prepared by Mr Aleksander Bagdonavicius, a Senior Scientist in the Forensic Section of the Biology section of PathCentre. He examined a shirt, skirt and underpants from “AG” and pieces of paper and swabs. The result of his examination was that no blood or semen was detected on any of the items. The Respondent’s investigation into the events that occurred on 24 October 1997 27 Ms “AC” testified that she commenced as Principal at the College on 1 January 1999. She said that during her induction in November 1998, Mr Paul Andrew from the Catholic Education Office, briefed her on the alleged incident concerning Mr “RN”. At that time Mr “RN” was suspended on full pay awaiting trial charges of indecent dealing with a minor. 28 On 17 May 1999 the Principal was advised that the criminal proceedings had been withdrawn. She said that the College believed that as the matters had been withdrawn the College could take no action against Mr “RN”. Accordingly she said that she then met with Mr Paul Andrew and Mr Ivan Sands on 18 May 1999 to discuss a return to work by Mr “RN”. The discussions are set out in paragraph 4 (8)-(11) of these Reasons. 29 Ms “AC” testified that in July 1999 an ISSOA circular produced specifically for the College contained an article titled “RN-Return to Work”. In that article members of ISSOA were advised that ISSOA was negotiating with the College to return Mr “RN” to teaching duties. Ms “AC” said that this information circular fuelled discussion and concern among staff in the College community. She said that on 15 September 1999 Mr “JG” (“AG’s” father) telephoned her from Melbourne and informed her that he had heard that Mr “RN” was returning to work at the College and wanted to know if this was true. He said that if she heard his wife tell the story of what had happened that “we would never allow Mr “RN” to return to the College”. He asked Ms “AC” to contact his wife and listen to the story. 30 On Thursday, 23 September 1999 Ms “AC” met with Mrs “EG”. Mr Paul Andrew was also present. She said that Mrs “EG” spoke with reference to detailed notes and said that the family had asked the Director of Public Prosecutions not to proceed any further with the charges because of the pressure on the family and the children. 31 Ms “AC” gave evidence that Mrs “EG” told her the following— • “That when she had come home on Friday, 24 Octo- ber 1997 (which was “AG’s” birthday) her older daughter “JCG” had told her that “AG” had ‘spotted her pants’. • She took “AG” to the toilet and that “AG” had be- come upset, saying ‘it hurts’. • She had put “AG” in the bath and when she was washing her she noticed red paint on “AG’s” breast. • That when “JCG” asked “AG” who had done that she had replied, Mr “RN”. • That “AG” had said Mr “RN” hurt her and while she was saying this she squeezed her breasts. • That “AG” was unable to do up her own buttons. • That the following day she had asked “AG” again who had painted her and she said, Mr “RN” and again “AG” had said that he had hurt her. That “AG” placed her hand inside her mother’s blouse and squeezed her mother’s nipple to demonstrate. • That “AG” had said she had seen Mr “RN’s” penis, that he had a ‘little baby’ in it that was ‘hiding’ and had got ‘bigger, bigger, bigger’. And that “AG” had demonstrated this with her hand. • That “AG” had said that Mr “RN” had done a ‘wee in her face’. • That “AG” had said ‘sh, baby sleeping’, and that Mr “RN” had a secret baby.” WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1233 81 W.A.I.G. 32 On 24 September 1999 Mrs “EG” spoke to Ms “AC” again and showed Ms “AC” pictures “AG” had drawn of Mr “RN” and his ‘baby’ and a poem written by “AG’s” sister, “JCG”, titled “Broken Doll.” 33 On 24 September 1999 a letter was sent (on behalf of the College) to the parents of the students advising that the Applicant would be returning as a teacher at the College during Term Four. The letter is set out in paragraph 4 (13) of these Reasons. 34 Mr “RN” was to return to work on a graduated program arranged by his rehabilitation providers where initially he was to have no class contact. The return to work program required that when Mr “RN” had class contact he was to work with another teacher. The teacher who replaced Mr “RN” as a temporary teacher stated that he would not teach in partnership with Mr “RN”. Another teacher was approached who was a representative of ISSOA. Initially the teacher agreed. On 11 October 1999 the second teacher informed Ms “AC” that he would not be part of Mr “RN’s” return to work. 35 Mr “RN” returned to work on 13 October 1999. A staff morning tea was held to welcome him back. He did not attend work again until 22 October 1999. He attended again on 25 October 1999 and 27 October 1999. He then attended from 1 November 1999 until 15 November 1999. He did curriculum work in that time and did not have any class contact. It was apparent from the Applicant’s evidence that when he returned to work he was generally shunned by staff members. He said they were “rude” and unfriendly to him. The Applicant conceded that some of the teachers did not want him to return to work. It was put to him that he advised Ms “AC” that if she did not stop the ladies in the canteen gossiping about him then he would stop them himself. He said that he told her that it was her role to do something about it and that if she did not want to do anything about it in terms of having a chat with them then he would. Mr Sands was involved in the discussions with teachers of the College about Mr “RN’s” return to work. He agreed in cross-examination that the majority of teachers at the College were not supportive of Mr “RN’s” return to work. 36 On 29 October 1999 Ms “AC” received a letter from Minter Ellison on behalf of Mr “JG” and Mrs “EG”. The letter is set out in paragraph 4 (16) of these Reasons. 37 On Saturday, 30 October 1999 a meeting was held between Mr “JG” and Mrs “EG”, the Respondent (Bishop Peter Quinn ), Mr Paul Andrew, two members of the College Board, Friar Galloway (Parish Priest), the Primary Principal and Ms “AC”. Mr “JG” and Mrs “EG” stated that the criminal proceedings had been “stayed” and made reference to a letter from Catherine Morgan, Crown Prosecutor dated 11 October 1999 which stated that Mr “JG” and Mrs “EG”, “‘requested that the matter not proceed further … due to the effects of stress being experienced by both “AG” and “JCG” because of the pending court proceedings it was not in their best interests that the matter proceed further”. The letter also stated— “The entry of a nolle prosequi does not establish the innocence of an accused. However, while the result of the Crown declining to proceed further is not the same as an acquittal (finding of “not guilty”) by a jury, Mr “RN” has not been convicted of the offences, and therefore, as a matter of law, is given the benefit of the presumption that a person is innocent until proven guilty beyond a reasonable doubt. A preliminary hearing was held before Mr Cicchini SM in the Perth Court of Petty Sessions on 13 Octo- ber 1998. The Magistrate found that there was a prima facie case, that is, sufficient evidence to com- mit the accused for trial to the District Court on charges of indecent dealing with a child under 13 years.” 38 Mr “JG” and Mrs “EG” requested that the College undertake an investigation. 39 Ms “AC” testified that both the Crown Prosecuter’s letter and the letter from Minter Ellison raised significant questions in her mind with regard to the conflict of Mr “RN’s” return to teaching duties and the duty of care owed to students in the College. Accordingly she determined that an investigation should be instituted. 40 On Tuesday, 9 November 1999 Ms “AG” read the following— • The Statement that Mrs “EG” had given to the Po- lice on 29 October 1997. • The Statement that “JCG” had given to the Police on 8 January 1998. • The transcript of the interview between Detective Senior Constable Seivwright and “AG” which had taken place at the College dated 13 November 1997. • The transcript of the committal proceedings in the Court of Petty Sessions on 13 October 1998. 41 On 10 November 1999 Mr Paul Andrew and Ms “AC” met again with Mrs “EG”. During this meeting Mr Paul Andrew read a report written by Mr Gareth Merriman, Human Relations and Sexuality Consultant Psychologist. The report was made on 27 November 1997. The report was tendered without objection into evidence in these proceedings as an attachment to a witness statement of Mrs “EG”. The report contains a detailed summary of an interview conducted by Mr Merriman with “AG” on 14 November 1997. In that interview “AG” described the events the subject of the charge laid against Mr “RN” and she demonstrated what she alleged had occurred by using anatomically detailed dolls of a male and female. Also at the meeting on 10 November 1999, Mrs “EG” drew Ms “AC’s” attention to the pictures that “AG” had drawn of “the baby”. Ms “AC” said Mrs “EG” spoke of the stress on the children and the family, the difficulty of the decision not to pursue the criminal proceedings, the counselling “JCG” had received and the blame that “JCG” had placed on herself. Mrs “EG” reiterated the matters her daughter (“AG”) had informed her about the events that she said occurred in the storeroom. 42 Ms “AC” testified that Mrs “EG’s” story was very compelling and she was very disturbed by it. She said that when Mrs “EG” told the story it was obviously the story of her child but the detail in her opinion was detail that no child of that age should ever know. She said Mrs “EG” told it in a language that she (Ms “AC”) did not believe any adult could ever make up, particularly when she spoke about “the baby” and the penis. Ms “AC” said it was the language of a child and the story of adult details 43 On 11 November 1999 the College requested that the Applicant respond to allegations made against him. The letter was a letter to the Union and is set out in paragraph 4 (17) of these Reasons. 44 On 16 November 1999 Ms “AC” met with Mr “RN”. Ms “AC” testified that the purpose of the meeting was to make sure that Mr “RN” had been informed of the contents of the letter of 11 November 1999 and discuss with him his attendance at the College. Mr “RN” had claimed he had not seen the letter dated 11 November 1999 and he did not know anything about it. Ms “AC” gave Mr “RN” a copy of the letter and he read it. She said Mr “RN” became very angry, said that this was going to be very damaging to the school and threatened legal action. 45 By letter dated 12 November 1999 the Union requested further details of the allegations made against Mr “RN”. That letter is set out in paragraph 4 (18) of these Reasons. Although further details were requested from Mrs “EG”, Mrs “EG” did not provide any further information. Mrs “EG” informed Ms “AC” by letter that it was her (Mrs “EG’s”) view that she had already fully explained the circumstances and provided all documentation to the College. 46 About that time the Primary School Principal advised Ms “AC” that seven of the nine primary school teachers had requested that they not teach at the same year level as Mr “RN” in 2000. 47 Through the Union, Mr “RN” was asked to respond to the allegations again. A copy of the correspondence is set out in paragraph 4 (19) and (20) of these Reasons. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1234 48 By letter dated 25 November 1999 the Applicant provided a response. The text of that response is set out at paragraph 4 (21) of these Reasons. Essentially the document contained a denial of the four allegations of misconduct. 49 After receipt of the letter of 25 November 1999 and after consulting Mrs Therese Temby, the Director of Catholic Education, Ms “AC” determined that she saw no alternative but to dismiss Mr “RN”. She testified that in considering the evidence she had before her, she believed that Mr “RN” was guilty of indecent dealings with “AG”. She said she took into consideration Mr “RN” was a teacher with responsibility for the care of students, his teaching career and his family. 50 In coming to her decision on whether to terminate Mr “RN’s” employment she testified she considered— • The nature of the allegations. • The compelling evidence presented to her. • The failure of Mr “RN” to respond satisfactorily to the allegations put forward within what she believed was a reasonable time frame. • The impact on the “G” family. • The pursuit of the matter by the “G’s” and the ensu- ing pressure from the “G’s”. • The letter from Minter Ellison Lawyers. • The letter from the Crown Prosecutor. • The impact on the school—with parents seeking not to have their children taught or supervised by Mr “RN” and the withdrawal of students from the Col- lege. • The impact on the staff and the refusal of staff to teach with Mr “RN”. • The duty of care owed to the children currently in the College. 51 She testified that she did not wish to take any risk with children. She said that a number of parents raised the duty of care issue with her when raising concerns about Mr “RN” teaching their children and Minter Ellison Lawyers had also raised this concern. She testified as Principal of the College she needed to be confident that staff were taking reasonable care to ensure the safety of students in their care. She testified if Mr “RN” were to remain a member of staff at the College, or indeed were to be reinstated, she did not believe that she could fulfil her responsibilities with regard to duty of care. 52 When cross-examined about the matters she had regard to, Ms “AC” testified that she took into account the transcripts between Detective Sergeant Seivwright and “AG” and the statements given to the Police by Mrs “EG” and “JCG”. She said she also considered the psychologist’s report by Mr Gareth Merriman and she formed the view that there was a consistency of allegations made against Mr “RN”. Further she also said also had regard to court transcripts and the impact on the “G” family. She said that she regarded the response by Mr “RN” was unsatisfactory in that there was a bare denial of the allegations and there were no details at all from him about what he did on the day in question. She said she was aware that Mr “RN” had copies of the court transcripts and of all of the documents in the Police Brief. She said that she expected that Mr “RN” would have responded with something along the lines of the evidence he had given in these proceedings in terms of the very fine detail of what he did on the day in question. She said there was no attempt by him to give any sort of explanation. Accordingly she regarded his response as inadequate. 53 Ms “AC” testified that from the time the announcement was made to the school community that Mr “RN” was returning to the College, the College was under a great deal of pressure. She said that both herself and the Head of Primary received letters from parents requesting that their child or children not be taught by Mr “RN”. She said she also received telephone calls and had meetings with parents concerned about the return of Mr “RN”. She gave uncontradicted evidence that she held 20 interviews which were initiated by concerned parents and teachers. She said that parents threatened to withdraw their children from the College if they were to be taught or supervised by Mr “RN”. She also gave uncontradicted evidence that between July 1999 and February 2000 the College had a significant reduction in numbers particularly in the primary section. She said students had finished school for 1999 prior to the dismissal of Mr “RN” so a formal announcement was not made that he would not be at the school in 2000 until the commencement of the 2000 school year. The enrolment figures produced on behalf of the College show that the total number of primary students was 523 in February 1999, 510 in July 1999 and 434 in 2000. Ms “AC’ testified that it was her view that a significant fall in enrolments was a direct result of the “RN” matter and that she believed that the community lost faith in the College. Evidence given by Mrs “EG” and other witnesses for the Respondent 54 Mrs “EG” testified that she is the mother of three children, two of whom are girls. She said “JCG” is now aged 15 years and “AG” 13 years. She gave uncontradicted evidence that “AG” is unable to dress herself. 55 Annexed to the witness statement of evidence in-chief of Mrs “EG” is a copy of the statement that she made to the Police on 29 October 1997 which formed part of the Police Brief. In that statement she says on the day in question, 24 October 1997, her daughter “JCG” brought it to her attention that “AG” had spotted in her pants, so she took “AG” to the toilet and then ran a bath for her. She said that “AG” was visibly upset and she noticed she had three to four strokes of red paint across her right breast. When she asked “AG” who did that, “AG” immediately said Mr “RN”. Mrs “EG’s” statement then set out in some detail what her daughter “AG” told her what happened in the storeroom. 56 Also annexed to Mrs “EG’s” witness statement of evidence in-chief is a copy of the transcript of proceedings of the preliminary hearing held on 13 October 1998 in which Mrs “EG” gave evidence. In addition a copy of a statement made by Mrs “EG’s” daughter, “JCG”, is annexed. This document also formed part of the Police Brief. “JCG” says in that statement that she assisted “AG” to change her clothes when “AG” arrived home from school on 24 October 1997 and that she observed that she had some painted lines on her right breast. “JCG” in her statement says she asked who did that and that “AG” informed her that it was Mr “RN”. 57 In a supplementary witness statement of evidence in-chief by Mrs “EG”, she testified that on 24 October 1997 that she and her husband called into the College on their way to TAFE. She said that her husband stayed in the car and that she walked up the path to “AG’s” classroom. She said that all of the children were on the lawn out the front of the classroom and that “AG” was in a group on the right hand side of the path. She said that “AG” had her head down and was painting. She said that she kissed “AG” on the top of the head and left to attend TAFE. She said that she did not see Mr “RN” and could not see anyone in the classroom. 58 The only aspect in which Mrs “EG’s” evidence was challenged in cross-examination was whether all of the children from “AG’s” class were on the lawn. She was asked whether she went to the classroom door, to which she replied “No”. 59 Detective Sergeant Darren Seivwright gave evidence that he interviewed “AG” on 13 November 1997. Annexed to his statement is a copy of his statement that formed part of the Police Brief that contained the text of his interview with “AG” on 15 November 1997. His statement also contained text of an interview conducted at the College with “AG” in the presence of Mrs “EG” on 15 November 1997 where “AG” indicated to him what she says Mr “RN” did and showed Detective Sergeant Seivwright the location of the events she said that occurred in the storeroom just off the main classroom area. Detective Sergeant Seivwright was not cross-examined by the Applicant’s counsel. In that statement Detective Sergeant Seivwright says he asked “AG” where was the rest of the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1235 81 W.A.I.G. class when you were in the storeroom with Mr “RN” and she pointed outside and said “out there”. Legal Principles 60 The ordinary standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities. Where criminal conduct is alleged a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ at 170-171). 61 As both parties point out, the question to be determined by the Commission is whether the legal right of the Respondent to dismiss the Applicant has been exercised harshly or oppressively against the employee so as to amount to an abuse of that right (Ronald David Miles, Norma Shirley Miles, Lee Gavin Miles and Rose & Crown Hiring Service trading as The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 386). 62 Where an employee is dismissed summarily the onus is on the Applicant to demonstrate the dismissal was not fair on the balance of probabilities. However, there is an evidential onus upon the employer to prove that the summary dismissal is justified (Newmont Australia Ltd v The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1998) 68 WAIG 677 at 679). 63 The Applicant contends that his dismissal was harsh, oppressive and unfair because— (a) The Respondent’s inquiry into the alleged mis- conduct was inadequate; (b) On a proper assessment of the evidence he should be found to have not committed the acts alleged; (c) The Respondent started the process of his return to work and permitted this process to run for sev- eral months before dismissing him. 64 The Applicant contends that the Commission is not bound by any determination or facts made by the inquiry conducted by the Respondent. The Applicant contends that the Commission is bound to consider whether, on the evidence in proceedings before it, the termination was “harsh, unjust or unreasonable” (provided the evidence considered was in existence when the decision to terminate the employment was made). Further that the facts that existed at the time of the dismissal which come to light only after the dismissal can be considered on the basis that they may make it clear that the dismissal was harsh, unjust or unreasonable. 65 In The Department of Social Security v Uink (1977) 77 IR 244, the Full Bench of the Australian Industrial Relations Commission at 254-255 considered the decision of the South Australian Industrial Commission in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 where it was held by the Full Bench of the Industrial Commission of South Australia— “An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Sub- stantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investiga- tion leading up to the decision to dismiss is just. Where the dismissal is based upon the alleged mis- conduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it dem- onstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant mat- ters 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 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. A failure to satisfactorily estab- lish any of those matters will probably render the dismissal harsh, unjust or unreasonable. If a fact or facts come to light subsequent to the dis- missal which cast a different light on the Commission of the alleged misconduct, such fact or facts will not necessarily or automatically render the dismissal harsh, unjust or unreasonable. In our view in such circumstances what will need to be considered is whether the employer, if it had acted reasonably and with all due diligence, could have ascertained those facts before the dismissal occurred. The Commission is required to objectively assess the subjective actions and beliefs of the employer as at the time of dismissal and not at some subsequent time: see Gregory v Philip Morris (1998) 24 IR 397 at 413; 80 ALR 455 at 471; see also Stearnes v Myer SA Stores Print No 9A/1973 at 5. Whether the employer will satisfy that objective test will depend upon the facts of each case. The gravity of the alleged offence will dictate the nature and extent of the inquiry which the employer must con- duct. An employer must ensure that an employee is given as detailed particulars of the allegations against him/her as is possible, an opportunity to be heard in respect of such allegations, and a chance to bring forward any witnesses he/she may wish to answer those allegations.” 66 The Full Bench of the Australian Industrial Relations Commission held that the decision in Bi-Lo Pty Ltd v Hooper required some reconsideration in light of the High Court decision in the Byrne v Australian Airlines Ltd (1995) 185 CLR 410. After doing so the Full Bench of the Commission held that the Commission was bound to consider on the evidence in the proceedings before it whether the termination was harsh, unjust or unreasonable. 67 In Byrne v Australian Airlines Ltd Brennan CJ, Dawson and Toohey JJ at 430 followed Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 in which it was held that the facts which existed at the time of dismissal but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable. McHugh and Gummow JJ made similar observations at 465-468. 68 The High Court made these observations in the context of considering the procedures adopted by the employer and whether all facts could have been disclosed by an investigation by an employer. In my view the Full Bench of the Australian Industrial Relations Commission in Department of Social Security v Uink goes further than the reasoning of the High Court in Byrne v Australian Airlines Ltd and invites the Commission to consider the evidence given in proceedings de novo. If that approach is correct, then procedural fairness would be irrelevant in considering whether a termination is harsh, oppressive or unfair. Further it is clear that the Full Bench of the Commission made the observation as obiter, because it determined that the inquiry in the matter under consideration was unfair. However the Full Bench in my view rightly concluded that if an inquiry held by an employer was unfair the Commission may investigate the merits of the evidence itself. 69 In any event as a single Commissioner of this Commission I am bound to apply the decision of Bi-Lo Pty Ltd v Hooper as it has been approved by the majority of the Full Bench of this Commission in Western Mining v Australian Workers’ Union (1997) 77 WAIG 1079 at 1084. 70 The Applicant contends that the Respondent’s inquiry was inadequate because the Respondent— (a) delayed its inquiry more than two years after the alleged event occurred and about six months af- ter the charges were formally dropped. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1236 (b) despite requests by the Applicant took no inter- views with potential witnesses in particular students and teachers and parents when it was obvious such witnesses might be material. (c) failed to undertake any objective forensic analy- sis of the evidence. (d) failed to seek and or consider evidence that might have been in the possession of the Police, for example the Police forensic report and to estab- lish if a medical examination occurred and if so what was the result of that examination. (e) failed to make any attempt to establish the sur- rounding circumstances at the time or times at which the alleged events might have occurred. (f) failed to assess the weight or cogency of the evi- dence. (g) failed to consider what further evidence might be obtained. (h) failed to direct specific questions to the Appli- cant. (i) failed to provide to the Applicant the evidence upon which the allegations were made or alter- natively to provide specific details of the evidence. (j) permitted Ms “AC” to be exposed to and influ- enced by irrelevant and prejudicial matters including anonymous letters and highly emotional matters such as Mrs “EG’s” and “JCG’s” reac- tions to “AG’s” allegations. (k) acted upon the assumption that the Applicant had “detailed information” in his file that thereby ren- dered his denial of the accusations inadequate. (l) failed to have any regard to the need for the evi- dence to be sufficiently persuasive having regard to the nature of the allegation and the conse- quences of a finding before making a decision. (m) the employer failed to consider the objective prob- ability of the events alleged occurring in the circumstances at the time. 71 Whilst it is the case that the gravity of the alleged offence dictates the nature and extent of an inquiry which the employer must conduct and that the charge of this particular nature should not be found proved lightly by an employer, employers are not required to have the skills of police investigators or lawyers (Schaale v Hoechst Australia Limited (1993) 47 IR 249 per Heerey J at 252 and Amin v Burswood Resort Casino (1998) 78 WAIG 2441 per Fielding SC at 2442). Delay 72 It is clear from the evidence that the Applicant was not prejudiced by any delay in the inquiry in that the Applicant had made detailed notes of the events that occurred on 24 October 1997 within a few days of the events occurring. Further with exception of “AG’s” drawings, “JCG’s” poem and Mr Merriman’s report, all of the material considered by Ms “AC” was material prepared by the Police for the prosecution in late 1997 and contained in the Police Brief. 73 The Applicant had the opportunity of providing to Ms “AC” a detailed account of the events that he said had occurred on 24 October 1997, yet he did not provide any information other than to make a bare denial. 74 In Ludwig Stephan Miskiewizc v City of Belmont (1995) 75 WAIG 1811 the President (with whom Beech C and Parks C agreed) at 1817 observed— “In Associated Dominion Assurance Society Pty Ltd v Andrew and Another [1949] 49 SR (NSW) 351 Herron J said at pages 357-358— ‘… a duty lies upon an employee in general terms to give information to his employer such as is within the scope of his employment and which relates to the mutual interest of em- ployer and employee. If an employee is requested at a proper time and in a reasonable manner to state to his employer facts concern- ing the employee’s own actions performed as an employee, provided that these relate to the master’s business, the employee is bound, generally speaking, to make such disclosure. … Questions asked relating to the employee’s activities could be so reasonable and fair that to refuse the information may well be disobe- dience justifying dismissal. Such conduct may be inconsistent with duty and may impede the employer’s legitimate business association. It certainly could destroy all confidence between master and servant which is an essential fea- ture of such contracts.’ ” 75 In relation to an alleged failure to interview potential witnesses it is apparent from the version of events recounted by “AG” that the events said to constitute the misconduct took place in a closed storeroom where only the Applicant and “AG” were present. Until the Applicant’s witness statement was filed in these proceedings the Respondent had no notice that the Applicant says that during the painting class the door of the storeroom remained open at all material times. Further that not all children were outside the classroom, some were inside. 76 Perhaps if the Applicant had provided the explanation that he has to this Commission, inquiries may well have been made to children in “AG’s” class as to where they carried out painting activities on the day and whether the storeroom door was closed at any time during the painting class. Forensic Analysis of the evidence 77 The forensic biology report prepared by Aleksander Bagdonavicius indicates that no blood or semen was detected on any of the items collected by the Police. Detective Sergeant Seivwright gave uncontradicted evidence that the forensic biology report did not take the Police by surprise in the context of the allegations. He said that sometimes they get positive results back when they are not expecting them and sometimes they get negative results when they are expecting positive results. In light of the report to Mrs “EG” by “AG” that at the time the incident occurred that Mr “RN” had taken her clothes off and put them on the shelf and in light of the fact that none of the allegations make an allegation of sexual penetration it cannot be maintained that the standard of investigation required the Principal to ascertain whether a forensic report had been obtained and whether a medical examination of “AG” had been carried out. Evidential issues 78 It was argued on behalf of the Applicant that there is an inconsistency between the versions of events that “AG” accounted to Mr Merriman, to her mother (Mrs “EG”) and to Detective Sergeant Seivwright. In the evidence given by Mrs “EG” in the preliminary hearing, Mr Marsh on behalf of the Applicant pointed to his submission to different versions of events. In particular it is said that in Mrs “EG’s” statement to the Police there was no mention of painting “AG’s” vagina, whereas in the interview between Detective Sergeant Seivwright and “AG”, Detective Sergeant Seivwright says that “AG” opened her legs apart and indicated being painted on the vagina using a paintbrush. Further counsel points to the interview with Mr Merriman, in which Mr Merriman records that when introduced the “adult dolls” to “AG”, “AG” had the doll in her left hand and she pulled the underpants down, looked at the penis, grabbed the penis with her right hand fingers and made a tugging action with the penis four to five times and said “Not too hard”. In the Merriman report, Mr Merriman also records that he asked “AG” to draw a picture where paint was put on her body. He says that she drew a large circle around the belly button and drew marks on the ankles up to the legs and stopped and asked what the marks on the legs were she replied “paint on legs”. It was argued that these accounts are inconsistent with other accounts given by “AG” that she had paint on her chest and on her vagina area. As I understand the submissions made on behalf of the Applicant are that it is contended WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1237 81 W.A.I.G. that Ms “AC” should have had regard to the inconsistencies and found the different versions of events rendered the accounts unreliable. 79 There was very little cross-examination of Mrs “EG” or Detective Sergeant Seivwright. In particular there was no cross-examination about what “AG” reported to her mother, Detective Sergeant Seivwright or Mr Merriman. 80 Counsel on behalf of the Applicant submitted that what “AG” said to those people is untestable in that they merely repeat what somebody else has said. Further it said on behalf of the Applicant that the admissibility of their evidence in this regard is not raised (presumably because the Commission is not bound by the rules of evidence) but it is contended that the Commission has to make an assessment of a cogency of that evidence. 81 In Queensland Health v Robinson and Grimley (1999) 160 QGIG 194 Justice Williams held at 195— “Whether the tribunal be a court of law where the for- mal rules of evidence apply, or a tribunal such as the Commission which is not bound by the strict rules of evidence, once material is formally admitted into evi- dence then it is evidence for all purposes. If a statement is tendered without the maker being required for cross- examination then the court or tribunal must have regard to the contents of the statement in arriving at its deci- sion; the weight to be attached to it is something which must be assessed in the light of all the circumstances. Here the material was put in without challenge and without any of the persons responsible for preparing the documents being required for cross-examination. In the circumstances here that was tantamount to an admission of the contents of those documents. It ap- pears to me on a reading of the transcript that the representatives of the respondents were effectively saying to the Commissioner that these documents showed the steps taken by the employer subsequent to the incident and the reasons for dismissal. This did not challenge any of that material but submitted that in any event the dismissals were harsh, unjust and un- reasonable.” 82 Whilst it maybe a case that there are some inconsistencies in relation to what parts of “AG’s” body she says were painted, Ms “AC” as Principal of a Catholic College cannot be expected to analyse material in the same way as a police officer or a lawyer. In addition “AG” it is not an adult, she is a child with a intellectual disability. In any event Mrs “EG’s” evidence that she observed paint on “AG’s” breasts is uncontradicted and Mrs “EG’s” evidence that “AG” was in a distressed state on the day in question or that she cannot undress herself was not challenged. In addition, it is clear from all the accounts given by “AG” that she was consistent in her accounts in respect of one of the allegations, that is, that whilst in the storeroom Mr “RN” exposed his penis to her and secreted bodily fluids from his penis over her face. 83 It is also argued that Ms “AC” closed her mind during the investigation to any possibility other than that the Applicant had committed the alleged sexual misconduct. In any view this contention cannot be made out as Ms “AC” carefully considered all of the material that was provided to her. She made more than one request of the Applicant that he respond to the allegations. Further even after she had concluded the allegations were proven the Applicant was offered another opportunity to put reasons why he should not be dismissed. 84 Also it is argued that Ms “AC” failed to provide to the Applicant the evidence upon which the allegations were made or provide specific details of the evidence. With the exception of the first allegation all the other allegations were properly particularised. Further, it is clear that the Applicant had copies of all the materials contained in the Police Brief and that he also had a copy of the transcript of the preliminary hearing at the time he was asked to respond to the allegations. 85 It is argued that Ms “AC” was influenced by irrelevant and prejudicial matters including anonymous letters and highly emotional matters such as Mrs “EG’s” and “JCG’s” reactions to “AG’s” allegations. 86 In my view there is no evidence that Ms “AC” was influenced by the anonymous letters. Firstly, when cross- examined Ms “AC” testified that letters from parents were taken into account when she made the decision to terminate but the anonymous mail and letters did not form part of her deliberation that led to the conclusion that Mr “RN” had committed the acts of misconduct. Secondly, that although Ms “AC” testified that she had regard to the impact of the allegations and alleged misconduct on the family, she testified that what she considered, was their response to what happened or what was alleged to have happened to “AG”. Thirdly Ms “AC’s” decision to terminate the Applicant must be considered in light of the duties of the Respondent to protect its students. In Balfour v Attorney General [1991] 1 NZLR 519 the Court observed at 524— “… 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 ... Their prime duty must be the protection of the chil- dren, if possible to prevent problems rather than await their occurrence. They also have a duty to their em- ployees, 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 ulti- mate need for a balanced judgment on the validity of the suspicion is not lost sight of.” Conclusion 87 In my view the Applicant’s notes of his account of the events he said occurred on 24 October 1997 should have been made available to Ms “AC”. By failing to provide any information which could possibly provide a defence to the allegations of misconduct, it cannot be said that, Ms “AC” did not honestly and genuinely believe or did not have reasonable grounds for believing Mr “RN” was guilty of the misconduct alleged. Further the evidence considered by Ms “AC” was in my view compelling. Consequently it cannot be maintained that the Respondent has abused its right to terminate the Applicant. 88 Even if I was to conclude that the Applicant was harshly, oppressively or unfairly dismissed I would not make an order that the Applicant be reinstated. This is because I am of the view that reinstatement or re-employment of the Applicant is impractical, as the relationship between the parties has broken down. In reaching this view I have had regard to all of the evidence including evidence that— (a) The College is located in a country town whereby it appears from the evidence given in these pro- ceedings that the nature of these allegations against the Applicant are well known. There is uncontradicted evidence that when it was thought that Mr “RN” was to return to teach at the Col- lege that enrolments at the College dropped. Further it was apparent from the evidence that a majority of teachers at the school refused to teach with the Applicant. (b) Detective Sergeant Evans testifed that— “I became involved in the investigations into allegations made by “AG” that she was inde- cently dealt with by Mr “RN”. A search warrant to search Mr “RN’s” resi- dence was obtained. In another matter, I previously searched Mr “RN’s” residence on 28 June 1996. On this occasion Mr “RN” was co-operative through- out this search that revealed a quantity of handguns and a hand grenade. A couple of the handguns had ammunition in the maga- zines. Mr “RN” was subsequently charged with possession of unlicensed firearms and convicted. 89 The Applicant pleaded guilty to an offence of possession of unlicensed firearms in the Court of Petty Sessions. Detective Sergeant Evans gave evidence that he executed WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1238 a search warrant of Mr “RN’s” premises in June 1996 and seized 12 items. A self-loading Winchester rifle, a repeating Bentley shotgun, a self-loading Colt rifle, a self- loading Colt pistol, a self-loading Luger pistol, 49 rounds of 12-gauge ammunition, 200 rounds of .223 calibre ammunition, 73 rounds of .32 calibre ammunition, 81 rounds of 9mm ammunition, 50 rounds of .22 calibre ammunition and 30 rounds of .223 calibre ammunition and a hand grenade. The Applicant testified that the hand grenade was a practice grenade and two of the guns were antiques. However Detective Sergeant Evans testified the hand grenade was treated as a live grenade and placed into a safe in the Detective’s office and was removed by the army disposal. This evidence was not known to the College at the time of the termination. 90 Whilst the information about the conviction would not be sufficient to conclude that the employment relationship has irretrievably broken down, this evidence together with the other evidence (including the evidence given by Ms “AC” about the Applicant’s attitude to the Respondent in instituting disciplinary action) makes it clear that a relationship of trust between the Applicant and the Respondent could not be restored. Claim for Long Service Leave 91 The Applicant claims that he is entitled to be paid 19.6 weeks pay in lieu of long service leave pursuant to Clause 18 of the Agreement. 92 It is accepted that the Industrial Magistrate has jurisdiction to hear and determine a claim for breach of the Award and the Agreement under s.83 of the Act. 93 Pursuant to s.83(1a) of the Act an application for enforcement of an award or industrial agreement shall not be made otherwise than to an Industrial Magistrate. In Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623 at 2626 the President observed that it was established in Mt Newman Mining Co Pty Ltd v TWU (1984) 64 WAIG 1075 (for the reasons expressed in Minister for Works and Water Resources v AMWSU (1983) 63 WAIG 1389) the Commission does not have any jurisdiction to hear and determine matters which are essentially for enforcement and recovery of wages under an award. In Mt Newman Mining Co Pty Ltd v TWU the President at 1076 observed— “…An award is said to govern relations between the parties to a contract of employment as to all matters with which it deals (Amalgamated Collieries of W.A. Ltd v True (supra)). So that whatever entitlement the drivers had, as well as the obligation of the employer to pay wages, was in that sense governed by the award (see also section 114 of the Act). Proceedings to enforce payment imply contravention or failure to comply with provisions of the award and may bear the character of enforcement proceedings which by section 82 and section 83 of the Act are to be insti- tuted before an Industrial Magistrate and not otherwise. An employer is obliged to pay wages in accordance with the award and an order requiring the employer to meet that obligation operates to en- force the award. Consistent with the decision of the Full Bench of the Commission in Hon. Minister for Works and Water Resources v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1983) 63 W.A.I.G 1389 and for the reasons there set out the Commission does not have jurisdiction to hear and determine proceedings which are essen- tially for enforcement or recovery of wages owing under an award. In the respondent’s submission the claim for payment of working time lost, though it arose out the contract of employment, was not a claim to enforce the award. It is unnecessary to explore that distinction because I am inclined to the view that neither the claim nor the order which granted relief related to enforcement of an award as such. In fact the employees were in no position to enforce the award and it was not claimed that the employer had, to use the words of section 83 “contravened or failed to comply with” the award.” 94 Clearly the claim for payment of long service leave is a claim for recovery of wages. Consequently the Commission has no jurisdiction to hear and determine the Applicant’s claim for payment of long service leave. 95. In light of my findings, I will make an order that the Applicant’s application be dismissed. 2001 WAIRC 02584