DISPUTE RE ALLEGED UNFAIR DISCIPLINARY PROCESS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2019 WAIRC 00140 CORAM :Commissioner D J Matthews HEARD : Tuesday, 19 February 2019 DELIVERED : THURSday, 21 March 2019 FILE NO. : CR 6 OF 2018 BETWEEN : The State School Teachers' Union of W.A. (Incorporated) Applicant AND The Director General, Department of Education Respondent CatchWords : Applicant's member alleges unfair disciplinary process - Lack of particulars - Use of "propensity evidence" - Allegation of collusion - Member's physical limitations - Inconsistencies in evidence relied upon - Failure to obtain all relevent evidence - Criticisms of process not made out - Disciplinary process fair - Application dismissed Legislation : Evidence Act 1906 section 31A Result : Application dismissed Representation: Counsel: Applicant : Mr J Theodorsen as agent and with him Ms H Olivieri Respondent : Ms J Vincent of counsel and with her Mr M Staples Solicitors: Respondent : State Solicitors’ Office Case referred to in reasons: Shane Jamieson v The Director General, Department of Education (2018) 98 WAIG 235 === REASONS FOR DECISION === The applicant says the process conducted by the respondent against its member which resulted in its member being penalised by the respondent was unfair because: (1) allegation one was not properly particularised, in that the date the misconduct was alleged to have occurred was not given with sufficient precision; (2) alleged conduct was inappropriately cast by the investigator as establishing a “propensity” on the part of the applicant’s member to engage in other alleged conduct; (3) the respondent failed to give any, or any proper, weight to a contention that witnesses colluded against the applicant’s member; (4) the respondent failed to give any, or any proper, weight to evidence of the applicant’s member’s physical abilities and limitations; (5) the respondent failed to assess, or properly assess, and act upon inconsistencies in the evidence of witnesses; (6) the respondent failed to obtain evidence from certain named persons; and (7) the respondent failed to obtain further and better evidence from certain named persons. In dismissing the application I will deal with each of the grounds said to impugn the disciplinary process. Let me do so, however, against the background of a finding that the process was, on the whole, amply thorough, professional and fair. The process had the following notable features. It was commenced by a letter which put the allegations to the applicant’s member in writing with specific details being given of the alleged wrongdoing. The letter included reference to the relevant statutory material. The letter invited the applicant’s member to “provide a written or personal submission” in relation to the allegations. The letter included a link to a document entitled “A Guide to the Discipline Process – Public Sector Management Act 1994”. A thorough investigation into the allegations then followed, conducted by an experienced investigator within a directorate of the respondent’s organisation charged specifically with doing such work. As part of that investigation almost twenty witnesses were spoken to and extensive documentation was obtained and examined. The investigation led to the production of a twenty-three page report in which the evidence gathered was summarised and analysed. Importantly, the applicant’s member was given the opportunity to tell her side of the story as part of the investigation. Importantly also, the investigator made no findings, nor purported to make any findings, although the report did contain recommendations for the respondent. A copy of the investigation report was provided to the applicant’s member for her comment, along with an indication of the respondent’s provisional views on penalty, if she were to find misconduct. The response of the applicant’s member was carefully analysed by the investigator who produced a six page “table form” document entitled “Analysis of Ms Pauline Floate’s Written Response to the Proposed Findings”. Everything of relevance went to the respondent, under cover of briefing notes, for her consideration and ultimate decision. On the face of it this is a good process. It is to be remembered that employers do not have to conduct investigations into disciplinary matters that are the equivalent of investigations into breaches of the criminal law conducted by the police. The respondent conducts investigations that tend toward such a standard, possibly because of the gravity of the decisions the respondent makes based upon them, decisions that could have grave implications for the concerns of teachers, but I repeat that she is not obliged to conduct investigations similar to police investigations. Of course, while the respondent clearly takes disciplinary processes very seriously, this does not mean that an unfair process may not be established in a given case. In this case, however, I do not find merit in any of the criticisms of the process put forward. I deal with each in turn. In relation to (1), sufficient particulars were given, when the whole of the allegation is read, for the applicant’s member to know what the respondent was alleging. The name of the student concerned, the location of the alleged wrongdoing, the time of the day and the nature of the wrongdoing were all included in the allegation. The lack of precision in the date did not, in all of the circumstances, make it in any way unfair for the applicant’s member to be called upon to answer the allegation. In relation to (2), the investigation report included, at paragraph 3.16, the following: “The evidence provided by witnesses as to the conduct of Ms Floate in respect of allegation 2 should also be considered, as it demonstrates that Ms Floate has a propensity to grab the collar of a student when managing behaviour.” The investigation report also includes, at paragraph 3.31: “The evidence provided by witnesses as to the conduct of Ms Floate in respect to allegation 1 should also be considered, as it demonstrates that Ms Floate has a propensity to grab the collar of a student when managing behaviour.” The whole issue of what is sometimes referred to as “propensity evidence” is a minefield in the legal arena. In criminal matters the use of such evidence is regulated by section 31A Evidence Act 1906 and many decisions at common law and upon that section and its equivalents elsewhere. Of course, the disciplinary process here was not one into an offence but the matters of policy and logic that have driven regulation of the area in the criminal domain remain alive in any scenario in which “propensity evidence” rears its head, or is said to do so. The way in which the report invokes “propensity evidence” here points up many of the problems with which the law has grappled over the years. A mention of only a couple, in question form, may suffice to illustrate the point: (1) is the matter of “collar grabbing” really so remarkable and unique as to qualify it as a “similar fact” where it occurs more than once?; and (2) how can unproven evidence of one incident be relied upon to prove another incident and, in this case, vice versa? That is, how can an allegation prove another allegation? These issues of (1) getting to the bottom of whether the facts here were relevantly “similar” and (2) deciding whether this was an example of “boot strapping”, in that one unproven allegation was being used to prove another, were not grappled with in the “Analysis of Ms Pauline Floate’s Written Response to the Proposed Findings” after the applicant’s member criticised the passages set out at [18] above. Instead the document stated in relation to each allegation that “propensity evidence is not relied upon” and that the evidence is “merely supportive”. While I can understand what is being said, it is a hopeless position. In any matter, so called “propensity evidence” is either “in” or “out”. Reliance upon it cannot be disavowed at the same time as it is said to “support” a conclusion. The whole issue of whether evidence has a “propensity” to support a certain conclusion should have, in fairness, been avoided by the investigator as if it were the plague. The issues of weighing the probative value of such evidence against its prejudicial effect, and exercising discretion as to its use, are ones which vex lawyers and courts and they should only be discussed by an investigator into a disciplinary matter, let alone invoked, after careful and considered legal advice has been obtained. Nonetheless, here the effect of the paragraphs cannot, viewed objectively, be considered so great as to render the process unfair. The issue of “propensity” is raised by the investigator in a section of the investigation report headed “Analysis” which comprises 17 paragraphs, in relation to allegation one, and 15 paragraphs, in relation to allegation two. It is clearly not a key issue in those analyses. The cases were in no way built upon what the investigator called “propensity evidence”. The case on both allegations relied upon direct evidence and not propensity evidence. If the paperwork or any other evidence had suggested in any way that the respondent had relied upon the particulars of one unproven allegation to find another unproven allegation to be made out then this may have been a problem for the respondent. However, there is nothing to suggest this occurred and I find that where there is direct evidence of the wrongdoing, and reliance upon that direct evidence is clearly the preponderant theme of the investigation report and its analysis, it would be an overabundance of caution to strike the process out because of the offending paragraphs. In relation to (3), the applicant’s member raised, during the process, that 18 students had been interviewed and that “only 6 were able to recall anything and then with significant inconsistencies.” The applicant’s member went on to contend that “those 6 [names of five students were provided by the applicant’s member] are all close friends who have clearly colluded.” The applicant’s member provided no evidence to support the assertion that the students had colluded despite asserting that it was a “clear” case and offered no explanation for how students who had colluded could arrive at versions of the event which had “significant inconsistencies.” I am not necessarily critical of the applicant’s member for not providing evidence to support an allegation of collusion, as it would be difficult for a teacher accused of wrongdoing to approach students to investigate such a belief, but I do note the lack of an explanation for why the case is “clear” and for how students may both collude effectively and give inconsistent versions. Either the collusion works against a person effectively or it does not. Here the applicant’s member seems to want to have it both ways; to allege collusion and point to and rely upon inconsistencies. The applicant’s member, as part of the process, pointed the finger very clearly at one named student and says that he is a proven liar and, it seems, a ringleader of the collusion. The investigation report to its credit directly confronts the applicant’s member’s allegations concerning collusion and the role of the named student in it. I say “to its credit” because, to my mind, the idea that one young boy had led five others into a grand conspiracy against the applicant’s member could have been dismissed out of hand as preposterous, and especially so given there was no evidence put forward to support it. However, the respondent, through her agents, actually dealt with this issue in a very mature and professional way. Assuming that the respondent read and relied upon the relevant parts of the investigation report dealing with the allegations made by the applicant’s member, her rejection of them cannot be impugned. As I say, if the respondent had simply rejected the proposition out of hand as being preposterous this could not have been impugned. In relation to (4), the applicant’s case here involves the setting up and knocking down of a straw man. The respondent never alleged the superhuman feats of strength the applicant’s member says she is physically incapable of performing. No sensible reading of the allegations has the applicant’s member lifting and/or carrying children by their collars at all, let alone over a distance. If the applicant’s member truly believed that the allegations involved the carrying of children by their collars this is unfortunate, but it is not a mistake caused by the respondent or any infelicitous or inelegant writing by the respondent or her agents. I cannot believe that any reasonable person could possibly understand the allegations to contain such particulars. In any event, if the applicant’s member was physically incapable of performing such feats it is neither here nor there given no such feats, on any reasonable reading of the allegations, were alleged to have occurred. In relation to (5), the applicant’s written submissions refer me to pages two and three of its member’s letter dated 8 November 2017, which I have read along with the written submissions and the transcript of the applicant’s oral submissions. I have paid close attention to the material relating to inconsistencies in evidence because such inconsistencies should be of interest to persons charged with coming to conclusions on the basis of that evidence. In this case, I am asked to review the respondent’s conclusions and I do so on the basis that the respondent came to her conclusions on the balance of probabilities but taking into account that the allegations were of a serious nature. That is to say no more than the respondent had to take the task seriously and to make sure that the evidence truly allowed her to come to the conclusions that, on the balance of probabilities, the allegations had been proven. As I say, in discharge of such an obligation, inconsistencies between versions will obviously be of interest. However, the effect inconsistencies ultimately have on the decision making of the respondent cannot be ‘codified’ by a decision of the Western Australian Industrial Relations Commission. It is not for me to prescribe a certain approach to inconsistencies. Each case will be different. Presumably, however, the respondent would be looking to see whether the inconsistencies, where established, go to material matters and will always be mindful of whether inconsistencies, where established, actually undermine evidence and if so whose evidence and in what way. The respondent may in some cases, as here, ultimately rely upon a body of evidence which comprises the recollections of more than one person of the same event. There may be inconsistencies within that body of evidence. Sometimes those inconsistencies will be such that a review may find that it was not safe for the respondent to rely upon that body of evidence. The inconsistencies may be on material matters or be too numerous or for some other reason make reliance upon the body of evidence unsafe and unfair. Without making any attempt to codify the correct approach in inconsistencies, and in making that comment I eschew any attempt to raise my comments in Shane Jamieson v The Director General, Department of Education (2018) 98 WAIG 235 to the level of legislative comment on the correct approach to inconsistencies, I do not find the inconsistencies pointed to in the material I have referred to as making the respondent’s ultimate decision unsafe or unfair. In saying this, I would have been comforted if an explanation had been sought as to why one student [initials CW] had told a teacher on 17 February 2017 that she “did not witness the event” but later gave evidence about it and I would have also been comforted if an attempt had been made to explain why another student [initials AF] said something happened at the end of 2016 having previously said it happened at the beginning of 2016. However as I say, on the whole, and taking into account all of the evidence gathered and put before the respondent, it is not possible to conclude that her reliance on the body of evidence she relied upon was, because of the inconsistencies within it, unsafe or unfair. In assessing whether they ought reasonably be considered to have this effect I take into account the age of the witnesses, the number of students who gave evidence having a consistent theme on allegations one and two and the lack of materiality in the inconsistencies. I note, however, that every case will turn on its own facts and that no complete approach can be dictated by the Western Australian Industrial Relations Commission to the respondent or equivalent decision maker on the question of the use and effect of inconsistencies. In relation to (6) and (7), these attacks upon the process conducted by the respondent were tested by the applicant calling the evidence it said ought have been obtained by the respondent and was not. This was a slightly unusual way to deal with an allegation that a process was unfair for failure to obtain such material but in the end it proved a convenient and time efficient way to deal with the assertion. The evidence that was led contributed almost nothing to the relevant body of evidence. Ms Floate’s evidence told us nothing that was not already known or, perhaps put more accurately in the present context, could not and did not add anything to that which Ms Floate had already had the opportunity to put before the respondent. The evidence of Ms Browne-Harmer and Ms Marinovich may have been helpful in firming up a date for allegation one, but I have found the lack of precision with the date to be neither here nor there. Their evidence did not cover the entire period in allegation one. Even if it had, this would simply mean a particular required amendment, not that there was anything unfair about the process. I do not know what the evidence of Mr Davey was intended to add to what was already in the papers that were before the respondent, and which could have been commented on by the applicant’s member in submissions to the respondent. In fact, as far as I can tell, the applicant’s member commented on the evidence at the bottom of page three of her letter of 8 November 2017. The evidence of Ms Craigie was completely irrelevant. If an assertion is to be made that the respondent failed to gather material evidence I would have, with the greatest of respect, hoped for more when the assertion was put to the test by allowing the party making it to call the evidence the respondent is being criticised for not having herself gathered. Finally, on this point, the applicant submitted in oral closing submissions that on allegation two “12 students were not interviewed” because they said they didn’t see anything and this was not satisfactory because “even if they only stated they didn’t see anything, we then have a statement in front of the decision-maker from each student which assists in corroborating Ms Floate’s account of events [and which also] assists in rebutting any sense of a propensity theory but also if any one of these students had been standing next to or close to Ms Floate or the complainants at the time that would have been a very powerful bit of evidence to have.” I reject the submission. Of course, it is not simply a numbers game, but I do find that a sufficient number of witnesses from the potential pool gave accounts such that the respondent had before her a credible body of evidence. I also find that a statement from a child witness that they “didn’t see anything” does not necessarily, as the applicant asserts, “assist in corroborating Ms Floate’s account of events”. It may be accepted, I think without controversy, that, on the facts alleged in these cases, children may not have seen anything because they were simply not looking. Evidence to the effect that the subject children “must have seen it if it occurred” or “could not possibly not have seen it” was not given and given the circumstances in which the wrongdoing occurred, could not have been sensibly given.