WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 00986 CORAM :Acting Senior Commissioner P E Scott HEARD : Wednesday, 19 August 2015, Thursday, 20 August 2015, Friday, 21 August 2015, Wednesday, 7 October 2015 Written submissions Friday, 11 September 2015, Friday, 2 October 2015 DELIVERED : Tuesday, 3 November 2015 FILE NO. : U 99 OF 2014 BETWEEN : Paul Ralph Kendall Applicant AND Government of Western Australia Department of Education Respondent CatchWords : Unfair dismissal – Teacher – Breaches of discipline – Department of Education Code of Conduct – Breaches of the Code of Conduct – Maintaining professional boundaries with student – Teacher-Student relationships – Standards and Integrity Directorate – Application to receive new evidence – Whether to re-open the hearing – Rules of evidence Legislation : Industrial Relations Act 1979 s 26(1)(b) Public Sector Management Act 1994 s 80(b) School Education Regulations 2000 reg 38 Result : Application dismissed Representation: Applicant : Mr P Kendall on his own behalf Respondent : Mr D Anderson of counsel === REASONS FOR DECISION === Background ¶1 The applicant, Mr Paul Ralph Kendall, claims that he was harshly, oppressively or unfairly dismissed from his employment with the respondent as a teacher. He worked for over 18 years, mainly at Kalamunda Senior High School, teaching English. He is now in his early 60s. ¶2 Mr Kendall was dismissed following allegations, an investigation and findings that he had breached discipline, contrary to s 80(b) of the Public Sector Management Act 1994 (the PSM Act) by contravening the Department of Education Code of Conduct (the Code), in particular that he had failed to maintain professional boundaries with a student. The findings all relate to Mr Kendall’s conduct in relation to a Year 12 female student, who I will refer to as ‘the student’. ¶3 The first finding was that Mr Kendall exchanged mobile telephone numbers and personal email addresses with the student and engaged in subsequent contact with her by mobile phone and email in relation to non-school related matters. ¶4 The second finding was that Mr Kendall developed a close personal relationship with the student, in which they spent a large amount of time together, during and outside of school hours, and spoke at length about non-school related matters. On several occasions, he was alone in his classroom with her, at times with the door closed. On occasions, he hugged her in his classroom where he was alone with her. He allowed her to engage in regular physical contact with him and also kiss him on the forehead. On a number of occasions outside of school hours, he attended coffee shops in Kalamunda with her, meetings that predominantly involved just the two of them. On many occasions, he drove her in his private vehicle to evening debating contests involving a drive of approximately 30 minutes each way, and he was alone in his vehicle with her. Once again, this is said to be contrary to the Code in that he failed to maintain professional boundaries by spending an inordinate amount of time alone with the student in addition to engaging in inappropriate physical contact with her. ¶5 The third finding was that on the evening of Friday, 14 September 2012, Mr Kendall attended an Upper School Performance Night held at the Kalamunda Performing Arts Centre (KPAC). At the end of the evening, he was in the company of the student and had arranged to drive her home. She was quite upset at the time due to an altercation with another person. Once in the vehicle with her he locked the doors and then approached her, placing an arm around her and kissing her on the lips. He used his hand to touch her on the breasts. This caused her to feel very awkward, uncomfortable and upset towards him. The respondent says that these actions are contrary to the Code in that Mr Kendall failed to maintain professional boundaries with a student, by engaging in inappropriate physical and sexual contact. The Grounds ¶6 The grounds of the application as filed, allege bias in the investigation and oppression based on the length of time the investigation took, and on procedural matters. However, at the commencement of the hearing, those grounds were amended. Mr Kendall now challenges the findings themselves. He acknowledges that he exchanged private phone numbers and email addresses and had contact with the student by mobile phone and email about non-school related matters, that he had been alone in his classroom with the student at times with the door closed, that he had regular physical contact with her, attended coffee shops with her, predominantly just the two of them, and was alone with her in his vehicle in the evenings as he drove to and from debating contests. He says, though, that the context in which these things occurred provides mitigation and that there was nothing inappropriate or improper in that conduct. He denies the third allegation. The Investigation and Decision Process ¶7 Members of the respondent’s Standards and Integrity Directorate investigated the allegations. They interviewed the student; her mother; a number of former students; teachers Ms Kylie Ogg, Ms Jane Sayer-Henderson and Ms Denise Hewitt, his head of department; the school Principal, Ms Kathleen Ritchie, and the school psychologist Ms Jennifer Edmonds. The student was interviewed on both 23 April 2013 and 6 June 2013. The other witnesses were interviewed in April, May and June 2013. Mr Kendall was interviewed on 23 July 2013. ¶8 An investigation report was prepared and submitted to the Director General with recommendations that it was open to the Director General to find that there was sufficient evidence to support each of the allegations and to find that Mr Kendall had committed breaches of discipline. The Investigation Report was provided to Mr Kendall and he was given an opportunity to respond to the Investigation Report, its findings and to the respondent’s proposed penalty of dismissal. ¶9 Mr Kendall responded by letter dated 28 March 2014 of two pages in length, attaching a response to each of the interviews recorded in the Investigation Report, totalling 49 pages of responses. ¶10 The respondent then wrote to Mr Kendall by letter dated 11 April 2014, advising him that consideration had been given to his written submission, maintaining that termination of employment was the most appropriate action and terminating his employment. Attached was a document addressing his written response. ¶11 Nearly six months after the dismissal, at her instigation, the student provided a further statement to the investigators. The Evidence ¶12 Mr Kendall called evidence from a number of parents and former students about his teaching and support of those students, and whether they felt comfortable with his interaction with the students, particularly dealing with them alone. This evidence was supportive of him and was to the effect that he had made a real contribution to their education and the parents and students felt comfortable with him. ¶13 One of those former students, K, also gave evidence that she was instrumental in getting the student involved in the debating team. However, the student’s and her paths had diverged over time. She said that she did not believe the allegations against Mr Kendall, that the student was a bored teenager who was attention seeking. She also said that the student and another student ‘used to go get high all the time in the bathrooms at school’, that she would tell her friends she was high. ¶14 Desiree Anne Chapman, the school chaplain, gave evidence of an altercation between the student and a parent on 14 September 2012 at the KPAC hall, in which there were loud, raised voices. Ms Chapman also gave evidence that Mr Kendall’s relationship with the student in school helped the student get through school – that the student had changed and was more settled and actually working. ¶15 Mr Kendall gave evidence essentially affirming the contents of his responses to the allegations contained in record of interview of 27 July 2013 and correspondence with the investigators and the Director General. ¶16 Mr Kendall described how he had been the student’s English teacher. He said his relationship with the student was a friendship, an innocent friendship. They exchanged personal mobile telephone numbers and personal email addresses so as to make arrangements regarding the debating team. Any incidental personal exchanges were quite innocent. Mr Kendall says he does not send emails with non-school related content to any other students, although he did to the student. ¶17 Mr Kendall says he also gave his mobile phone number to another student in 2012 as she was the debating captain. ¶18 Mr Kendall also acknowledges that firstly, he and the student visited Dome coffee shop ‘which is situated virtually opposite the school’ (exhibit 1, tab 2), half a dozen times and Merchant coffee shop twice. He said Dome was a very public place, and was visited by staff and students of the school. On one occasion they attended the coffee shop in the presence of the school librarian, and on another occasion, another teacher and another student. It was essentially to discuss debating and other matters, ‘just simply conversation’ (exhibit 1, tab 4). ¶19 He acknowledged being alone with the student in his vehicle, driving approximately 30 or 40 minutes from her house, approximately four to five times. Mr Kendall said that he took the student in his car to interschool debating events because she had no other way of getting there. ¶20 He said at the end of the interview on 27 July 2013, ‘I have not had contact with [the student] since I haven’t been at school’, and he was excluded from the school from 20 May 2013. ¶21 Mr Kendall does not remember giving the student permission to engage in regular physical contact with him but suggests that there were ‘the essential hugs that sometimes she did’ … ‘[the student] is a very tactile person by nature. She hugs everybody … [students] and other teachers that she gets on with and likes’ … ‘hugs were the extent of her physical contact with me. I don’t know how many times she hugged me, I didn’t initiate the hugs’ (exhibit 1, tab 4). ¶22 In cross-examination, Mr Kendall said that the student would launch herself on people. He said that she hugged him and others, but that when she hugged him, he did not reciprocate (ts 122). He said he told her that she could not do that. He says that ‘I would have spoken to her about it. I don’t recall what I said. The hugs did not cease as a result of my conversation with her’. He says, ‘[t]hey didn’t happen very often, I didn’t think about it’ (exhibit 1, tab 5). ¶23 He says that on the evening of 14 September 2012 at KPAC, the student was ‘terribly distraught’ and he comforted her. In the interview on 23 July 2013 he said: … After a while, I can’t remember who or what pacified the situation. I said to [the student] ‘Come on, let’s get you home.’ My car was parked in the school car park by the school exit, facing the road – if I was a metre more I would have been on the pavement, under a street light. (Diagram drawn) On entering the car park, [the student] burst into a torrent of tears. She was in a terribly distraught state. She then put her arm on my arm and we walked to the car. It’s a difficult situation for anyone to be in, when you see somebody you are friendly with and you care about in that situation, all you can do is offer them some degree of comfort. What I did was say ‘Look, let’s get in the car now.’ I opened the door, she got in the car, we sat there for about a couple of minutes. She calmed down, I said ‘Are you alright now?’ and her answer was in the positive. I can’t remember if we discussed the incident because logic would have it that it wouldn’t have been any use to calming her down. She was in a state of calm, so another couple of minutes and I said ‘Right, we are off, lets go.’ That was it. What really annoyed me, I don’t even want to say some of this to be honest because it makes me feel horrible, but ‘you have locked the doors.’ I didn’t lock the doors of the car, I didn’t do that. I just sat her in there and calmed her down and drove home. Another dot point ‘This has caused [the student] to feel very awkward, uncomfortable and upset towards you her teacher.’ My answer to that is ‘Balderdash.’ This occurred on 14 September which was a long, long time ago and since then [the student] and I have been good friends without any awkwardness on her part. Exhibit 1, tab 4, ‘Allegation 3’ ¶24 In his letter dated 28 March 2014, Mr Kendall also said: … [The student] states that I gave her a hug as she was upset. She was very upset outside the PAC but was not crying at that time. She was being pacified by some friends when she hugged me in front of lots of people including the drama teacher and the chaplain. No one thought it was unusual as she was very upset. We then went to my car which was parked in the school car park and she took my arm and started to cry about six or seven steps away from the car. It was a torrent of tears and was the release for all the night’s emotions and tensions associated with a drama production of this kind. Add this to the fight with [another student’s] mother and it was a very emotional night. She berated me for not coming to her support when she was involved in the fight between her and [another student’s] mother. She was very annoyed with me for not siding with her. I did not tell her that I thought she was in the wrong as I did not want to upset her further. However, she knew she was in the wrong and I would say that this was one of the causes of her anger. We talked for a few minutes in the car, I pacified her a bit, and I then drove her straight home. We did not stop on the way. When asked about what happened in the car [the student] replied that ‘Nothing happened.’ This is correct. … Exhibit 1, tab 7, 47 ¶25 In his evidence, Mr Kendall denies that when they got into his car he locked the doors, that he placed his arm around the student, that he kissed her on the lips and that he touched her on the chest and on the breast. ¶26 Mr Kendall denies the student’s statement that prior to her second interview, they arranged to meet and that he picked her up in his car. He denied this meeting happened. Accordingly, he denies urging the student to say that nothing happened between them and that it would finish him – he would lose his job and that it would cause him to commit suicide. ¶27 He also says that when he received emails from the student dated 20 March and 24 March 2014, asking how he was doing, and if they were still friends, he did not respond. He says that the student did not finish their friendship by her subsequent email of 13 May 2014 (KW1 to her statutory declaration 31 July 2015), but that he ended the situation by going to the student at her work sometime between 24 March and 13 May 2014. He was dismissed by letter dated 11 April 2014, which he says he received some weeks later. ¶28 The respondent approached the evidence in chief of its witnesses by each of them merely affirming the truth of the records of their interviews with the investigators contained in the Investigation Report. They were cross-examined by Mr Kendall. ¶29 As set out in [7] and [11], the student was interviewed three times. The first two interviews were part of the investigation. In these interviews, the student denied that what is set out in the third finding occurred. The third interview occurred some six months after Mr Kendall was dismissed and in this interview she recanted on what she said in the first two interviews regarding that incident and claimed to be now telling the truth. This interview was at her instigation. ¶30 In her statement to the investigators on 23 April 2013, the student gave detailed information about her relationship with Mr Kendall. She said that it started in around March 2012, when she was in Year 11. A friend got her to join the Debating Team, which was organised and run by Mr Kendall. Students would attend Mr Kendall’s room at lunchtime to practise and learn debating. Separate teams would go on separate days. Although she was not actually a member of the Debating Team, the student helped Mr Kendall with the organisation. She would be in his classroom every lunchtime to help. Prior to this, she said her relationship with Mr Kendall had simply been that of teacher and student. However, once she started helping him with the debating team, they started talking and became friends. They exchanged personal information, including that he told her that he had been diagnosed with depression and that he took pills. He also told her about his wife and children, parents and siblings, and his relationships with them, what he was like as a younger man and the effect of his depression on him. She called him either Kendall or Paul. The only other teacher she called by their first name was Ms Kylie Ogg, who she also described as a friend. ¶31 She and Mr Kendall exchanged telephone numbers to enable them to contact each other regarding the debating team. They would send text messages to each other quite often. The latest text message she received from Mr Kendall was about 11 pm and the earliest about 8 am. ¶32 The student said that she and Mr Kendall would ‘talk all the time at school; during recess, lunch, before school, after school, just whenever’ (exhibit 1, tab 5, 4). She said it was just the two of them that talked to each other. The student said that she would ‘wag classes and go to his class and talk to him’. ‘He would usually have a free lesson each day or sometimes I would just sneak into his class and sit at the back’. She memorised his timetable and matched it against her own. She went to his class nearly every day from second term onwards, ‘apart from a few months around the time of the year when we’d had a fight’. ¶33 The student said that quite often she would be alone with Mr Kendall in his classroom while they were talking, sometimes the door would be closed and other times it would be open. She knew that other students and teachers saw them together in his classroom, alone. She said that they probably thought that it was weird, just like all the students did. She said that whilst none of the teachers spoke to her about her being with Mr Kendall all the time, they used to give them looks in the hallways and Mr Kendall knew they used to talk behind his back all the time. She said it was a bit annoying that everyone was talking about her and Mr Kendall. She said ‘[i]t did make me think that they were worried about what might happen sexually between Mr Kendall and me’. She did think it was weird from the beginning but also only saw it as a friendship. She said she also knew that other students thought that Mr Kendall was molesting her. She and Mr Kendall talked a bit about the rumours but Mr Kendall did not really want to talk about them and just said to downplay them. ¶34 When asked about the fight she had had with Mr Kendall in early November 2012, she said it was a lot of misinterpretations but that she just could not remember pretty much any of it. They did not talk about what had happened or the fight, and they both thought the other did not ‘want to be friends anymore, so we just didn’t talk for ages’. She spoke to her friend J, and probably Ms Ogg and her friend S, about the fight, although she said S did not like her relationship with Mr Kendall because she thought it was weird and that she, the student, agreed that the relationship was weird. ¶35 When asked about what had happened in Mr Kendall’s car on the night after a debate, she said nothing happened, he drove her home and she went to bed. She said that over the Christmas holidays in 2012, they kept in contact mainly by email and text, and both had a hotmail account. ¶36 She explained the circumstances of them going for coffee at Dome in Kalamunda after school and how he would drive them in his car. They would go about once a week and be there from 4 pm to 6 pm. ¶37 She said they were still friends in 2013 and she was still helping with the debating team, that she just did not see or speak with Mr Kendall as much as she used to because she was busy. They had exchanged emails regarding the investigation. ¶38 When asked if Mr Kendall would get into trouble as a result of what the fight was about, she said ‘[p]robably’. She said she felt safe around Mr Kendall. ¶39 While the student says that her mother was aware of her having coffee with Mr Kendall and of his driving her to debating events, she said she knew they saw each other in his class in addition to seeing him briefly after school before she picked her up. ¶40 In the first two interviews as part of the investigation, the student denied the details of the third allegation, saying that Mr Kendall had not misconducted himself and explained, too, that after the performance at KPAC she was angry with him because they had had a fight, he had isolated her for a number of weeks and was not talking to her. She had stopped emailing him, so he decided that they were not friends anymore and stopped talking to her and ignored her. ¶41 The student said that Mr Kendall had never tried to kiss her at any time and had never alluded to wanting to kiss her or touch her. They had physical contact at school – sometimes they would hug, probably about three times a week on average, usually just as a greeting. She says she kissed him only once, on the cheek, because he was feeling down. ¶42 In the interview on 23 April 2013, the student also said that during the year she had been suicidal and ‘when you’re feeling like killing yourself, you don’t want to go to class’. Mr Kendall was a teacher and friend to her. She said he told her that she should not be skipping her classes, but she said that if she did not go to his class, she would just go somewhere else. ¶43 In the interview of 6 June 2014, the student said that she had told lies to one of her friends, J, about what had occurred on the evening of the performance at the KPAC. She said she did so because she was angry with Mr Kendall because they had had a fight, Mr Kendall ‘had isolated me for a number of weeks and wasn’t talking to me, which pissed me off’ (exhibit 1, tab 5, 29). She says she told J ‘because [J] was getting close to Mr Kendall as friends. I guess I was jealous’. She said that as time went by, the lie got bigger, including that he had kissed her, touched her around the breast region and that the car doors were locked. She provided a rationale for various aspects of the story. ¶44 On 2 October 2014, around six months after Mr Kendall’s dismissal, the student was again interviewed by officers of the Standard and Integrity Directorate of the Department. She says that the information she provided at this interview was to correct, to change, some of the information she had provided at the previous two interviews in which she had denied that anything had occurred in respect of Mr Kendall’s conduct in his vehicle after they had attended the KPAC. This is the information provided by the student to the investigators. ¶45 On 16 April 2012, the student turned 16 years of age. She remembered the incident following the visit to the KPAC, that it occurred in September/October 2012 because it was two years ago and at the time of the interview it was October 2014. (The school calendar indicates that this event occurred on 14 September 2012 (exhibit 1, tab 5, attachment F)). ¶46 The student’s mother dropped her at the KPAC. She and Mr Kendall had an understanding they would meet each other there. The student went back stage to see some of her friends and then she sat next to Mr Kendall during the performance. ¶47 At the end of the performance, the student went back stage to see her friends. She was upset from watching her friend, S, perform a piece which was quite emotional for S. The student then had a heated argument with the foster mother of another friend, about the whereabouts of her friend. This argument occurred about 9.30 – 10.00 pm, after the performances had finished, and in the backstage area of the KPAC. ¶48 When the student went to the front of the KPAC, she relayed to S and Mr Kendall the argument she had had and she started crying. She became quite emotional. There were others milling about then dispersing. ¶49 It was understood that the student would be taken home by Mr Kendall. S asked the student if she was going home with her, S, and the student indicated that she understood that S was probably going to have friends around for a while and that as she, the student, was tired, she wanted to go home. S went home with her mother. As Mr Kendall drove past the student’s home to go to his own home, she was going to get a ride with him. ¶50 The student and Mr Kendall walked to his car in the car park, some short distance from the front of the KPAC. She was crying. When they reached the car, he gave her a hug. She described how they put their arms around each other and the hug lasted for between 10 and 20 minutes. They stayed that way while she stopped crying. She thinks she pulled away. She felt uncomfortable that it had gone on for so long. She said it felt like it went on for ages. ¶51 By this time, the student noticed that everyone else had left. She and Mr Kendall got into Mr Kendall’s car. She put on her seatbelt. He did not put his on. He looked at her and hugged her again, leaning over with his left arm around her shoulders and the other above her waist, on her ribcage. She wrapped her left arm under his. This lasted for a couple of minutes. ¶52 During this time, according to the student, Mr Kendall kissed her once on the cheek and two to three times on the forehead, then on the cheek again, each kiss she described as a peck. He then asked if it was okay for him to be doing that and she did not respond. He kissed her on the lips, for a longer time, possibly 30 seconds. He asked her if it was okay, and she said yes, and he kissed her again. She then remembered that his hand had come up from her ribcage to her left breast. She felt nauseous. He asked her again if it was okay and she said yes, and he was caressing her breast. ¶53 The student says that she sat stationary, frozen with shock. She cannot remember what happened from that point. ¶54 The student says she arrived home about 12.30 am. She had a shower, which she would not normally do but would normally go straight to bed. She said she remembered feeling dirty. She had a shower for about half an hour and described herself as ‘zoned out’ and sitting on the floor and feeling really sick. ¶55 The student says she undertook counselling, and a therapist had said she had blocked out what had occurred. ¶56 A week or so after the incident, Mr Kendall began ignoring her. She says she later initiated them talking again. By this time, an investigation into the incident had commenced. ¶57 The student said that after Mr Kendall had been suspended from work, during the course of the investigation, she had been interviewed once by the Standards and Integrity investigator and was to be interviewed again. She wanted to speak to Mr Kendall about it. She contacted him and he picked her up. They discussed the situation, including that he indicated to her that they should say that nothing happened between them and that he would be in some difficulty otherwise; if she told the truth, it would finish him. He said that he would lose his job and that it would probably cause him to commit suicide. She says he kissed her briefly. ¶58 The student says that at some later date, possibly in February 2014, Mr Kendall called into her work and asked her to support him in a case against the Department, that he was paying a lawyer, that he wanted her to say that nothing had happened and she thinks that he said something about suicide. ¶59 The student said that she now felt able to tell the investigators these things because she was free of Mr Kendall’s manipulation, that she had previously said things to protect him. At the end of the interview, she said ‘Thanks for hearing me and believing me after I lied twice’. ¶60 At the interview, the student provided to the investigators a copy of an email she had sent to Mr Kendall on 13 May 2014 to a private email address he had previously provided to her: This will probably be the last you hear of me. I’m saying goodbye after 2-3 years of being friends. I apologize for the abrupt email to end this, but I couldn’t of done this another way. A part of my morals tell me that leaving this friendship at this time of unfortunate circumstances is wrong, but then a lot of me wants to break free of you. I have come to realize over the past year that there was not as much friendship as I thought there was between us. I have realized that you are manipulative, very persuasive and selfish and that I can not be in any type of contact with you for my own sake. You have caused me a lot of pain and despite you trying to convince me that what happened was no big deal; I feel that it was morally wrong of you to do what you did. I was 16, a child Paul. You must have known that it wasn’t going to sit right with me, but I suppose you thought you could keep me under your wing until I accepted it. Admittedly you succeeded for a long time. I am curious though, what did you think was going to happen once I was out of high school? I guess I’ll never know. Just for the record, I never thought of you as a monster or a sick man and I still don’t. You did nothing that god won’t let you into heaven for. You've always been one step ahead, but today I end this. I heard that you have done something like this before. Maybe you haven’t, maybe you have. I don’t care. But if I find out that you have done this sort of thing again, I will take what I have, what I know and I will tell them the truth. I will not hesitate. The pressure that you put me under to protect you, to lie for you was selfish. You were willing to let me take the blame while you took no responsibility. There are a lot of unspoken thoughts between us and all of it is probably better left unsaid. As I said the other night, I wish for you to let the case go, for your sake. This has ended for me, I will not support you if you decide to take it further because I have already let it go and in the process of moving on. I wouldn’t want you to get angry about this email but it is my way of ending it and finally explaining how I feel. I have stood by you and stood up for you all this time. I have supported you, lied for you and been there. So please do me this courtesy and don't reply back to me, let me go. I really do hope you find some happiness. I hope you stay with your wife and I hope you can beat this spiral and find a better future not in teaching but in something new. Exhibit 1, tab 9, KW1 ¶61 There were suggestions in the evidence that the student used marijuana. The student was asked in examination in chief if she had taken any kind of drugs in the past and she acknowledged smoking marijuana a few times. She was asked if she recalled if she took any type of drugs on the night of 14 September 2012 and she said no (ts 224). ¶62 The student’s mother was interviewed on 23 April 2013. She noted that the student related well to Mr Kendall and to Ms Kylie Ogg. She was not aware, though, of anything being weird or blatantly obvious that there was something not right in the relationship. Mr Kendall came to see them at home one day after school and asked if it would be all right if he drove the student to events at Perth College. He said that ‘other kids had to go in as well as their parents couldn’t take them’ (exhibit 1, tab 5, 8). She could not recall signing a permission slip. She thought that the student and Mr Kendall had met a couple of times for coffee but thought that there were a couple of the student’s friends with them. She was not aware of it just being the two of them going for coffee, however if it was the case, it did not bother her. As long as her daughter was home by a reasonable time then she was not concerned. She knew that they had each other’s phone numbers, which was expected because of the debating team. She said that towards the end of the previous year, the student said that he, Mr Kendall, had started going a bit strange, ‘as far as weird in class and had a few meltdowns.’ ¶63 She said that her daughter had received an A in English. She thought that Mr Kendall understood her daughter better than other teachers. ¶64 The student’s mother was not called to give evidence. ¶65 One of the student’s friends, J, was interviewed on 10 May 2013. She said that she had been a friend of the student’s since Year 9. She described the situation of the student being involved in the debating team and that Mr Kendall would sometimes drive the student to debating. J said that she did not think that it sounded right when the student told her that she and Mr Kendall had gotten really close; she said that she ‘thought he liked her.’ ‘Mr Kendall would hug her, call her baby and all relationship type stuff that you do and flirting’. She referred to them having fights and stopping talking. ¶66 J also gave details about Mr Kendall’s private life, and said that ‘one time I found [the student] with Mr Kendall, who was having a mental breakdown because of some dramas with his wife’ (exhibit 1, tab 5, 10). ¶67 J told the investigators that about half way through 2013, the student told her something had happened between her and Mr Kendall relating to the performance night at the KPAC. The student was very upset after an argument with another student’s mother. She described what the student told her had happened in Mr Kendall’s car, that he had ‘molested her’, that he ‘started kissing her’ and she asked him to stop and she had to push him away. J said that ‘I know she didn’t want to dob on him and get him into trouble or fired or anything’. She said the student first began telling her about the incident after school had finished for the year, and told her more about it in 2013. ¶68 J also described how on J’s birthday, the student organised for herself, the student, Ms Ogg and Mr Kendall to have coffee at Dome. Mr Kendall drove them in his car. She said that ‘[t]his was the first time I’d seen his car, although [the student] had described his car to me before, when she told me about the incident after the drama performance night.’ She described how at Dome they sat at a booth, with Mr Kendall and the student sitting next to each other on one seat, and J and Ms Ogg on the other. She said that Mr Kendall and the student were literally leaning on each other and mucking around. She said that the student kept kissing Mr Kendall’s forehead and Mr Kendall had his arm around the student, and they sat back leaning on each other. ‘They were like teenagers’. She said Mr Kendall did not seem too bothered that Ms Ogg and she, J, were sitting on the other side of the table. She said that it appeared to her that Mr Kendall and the student were instigating the interaction with each other. Mr Kendall hugged the student after she had kissed him on the forehead. ‘[The student] had her hands on his chest and Mr Kendall put his arms around her, like they were in a relationship.’ At one stage, she believed she saw the student had her hand on Mr Kendall’s leg. ¶69 J said that she went to coffee with the student and Mr Kendall on another occasion, in March of that year, and that they had behaved in the same way. ¶70 J said that after the coffee at Dome, Ms Ogg spoke with her about what was going on between the student and Mr Kendall because of how they were interacting with each other, then immediately said ‘No, I don’t want to know’. She then said that the following day at school, Ms Ogg spoke to her and said that she should not have said that she does not want to know about the relationship between Mr Kendall and the student, so she asked J to tell her what she knew. J told Ms Ogg what she knew about that relationship, including what the student had told her about what had occurred in Mr Kendall’s car. According to J, after that, Ms Ogg went straight to the principal and told the principal. ¶71 J said she also went to the principal and told her that this was a very delicate thing and to take care how she approached the student otherwise the student would lockdown and lie to her. ¶72 J’s cross-examination was limited to the comments she made to the investigators about Mr Kendall having a mental breakdown. She conceded that it was not actually a mental breakdown but that he was having what she described as a ‘nasty … paddy’ (ts 221-2). She was not cross-examined about her description of what the student told her about the incident after the KPAC event, about the visit to the coffee shop with Ms Ogg, Mr Kendall and the student, or about her conversation with Ms Ogg. ¶73 Ms Kylie Ogg gave a statement to the investigators on 14 May 2013. She had been a relief teacher at KSHS in term 1 of 2013. She had worked closely with Mr Kendall and she referred to Mr Kendall’s relationship with his wife and his depression. Ms Ogg described the student, as a vulnerable girl whom she knew had depression. She had worked closely with her and talked to her a lot and she, the student, became engaged in school and was going well. She says that when she finished up at the school, the student was upset because she said she was the first person she had been able to talk to for a while. Ms Ogg referred the student on to Mr Kendall and told her that he was a good guy and would recognise her potential. ¶74 Ms Ogg described Mr Kendall as an exceptional teacher who could challenge and relate to students. ¶75 Ms Ogg told the investigators that when she had been at coffee with Mr Kendall and the student, she saw the student leaning up against Mr Kendall and leant her head on his shoulder at one stage. Mr Kendall had seemed quite comfortable with it and the student had been leaning against him for about a minute. She said she knows that the student can be a little forward and that you need to draw boundaries with her, and that she, Ms Ogg, figured that Mr Kendall had not drawn his boundaries with her. ¶76 Ms Ogg said that several weeks later, J and the student were both in her classroom after class and they mentioned something about the student dating a particular boy, and there was a comment to the effect that Mr Kendall was feeling insecure or jealous. She said immediately that she did not want to hear it, that Mr Kendall was a friend of hers, that if they continued to discuss the matter, she would need to report it, and discouraged them from discussing the matter. She said that the matter kept gnawing at her and she went back to J and told her that she should not have stopped them from telling her things. She also spoke to the student and became more concerned. The student asked what would happen to Mr Kendall if he had done something inappropriate, to which she responded that it would depend upon what had happened. The student then denied that she could remember anything happening between them, that she did not want to talk about it because she was afraid Mr Kendall would lose his job. Ms Ogg did not push the student further. She said that she did see that the student and Mr Kendall were still seeing and talking to each other, and it appeared as though they were arguing at times. J told her that Mr Kendall was ‘playing with her head again’ (exhibit 1, tab 5, 16). ¶77 Ms Ogg then reported the matter to Denise Hewitt, Mr Kendall’s head of department at the school, who took it further and reported it to Ms Ritchie. ¶78 Ms Ogg says that the student would say things in her presence such as Mr Kendall was ignoring her in class, that she was going to confront him and ask whether or not they were friends. She says that the student said to her at one time ‘I don’t want him to lose his position, teaching is the world to him … that he’d probably fall into depression and could kill himself’ (exhibit 1, tab 5, 16). ¶79 Ms Ogg also says that the student told her, after her interview with the investigators, that she had lied to the investigators. Ms Ogg told her that she would tell the investigators that the student had lied, and the student did not seem upset about this. She also told Ms Ogg that it was not important, ‘it was silly, it was my fault anyway, I didn’t stop him’. ¶80 S was interviewed by the investigators on 18 June 2013. At the time, she was a Year 12 student and had been friends with the student since Year 8. She said that once the student and Mr Kendall became friends, the student ‘kind of blew me off a bit’. She saw Mr Kendall and the student interacting with each other mainly because of the debating sessions. She said that they would sit next to each other a lot and the student would touch him, putting her hand or arm on his shoulder. They were acting like close friends. ¶81 S described how after the drama performance night towards the end of 2012, the student had called her because she was upset. She said it was when the Year 11s were doing their monologues and RSP’s, which would have been 14 September 2012. She said that towards the end of the night the student was really upset and had been crying because she had been in an argument with someone else’s mum. S described what happened during the course of the evening and said that: Later that night, [the student] called me at home from her mobile phone and she was really upset and crying. This was a few hours after I had got home. I think I was watching TV at the time when she called. She told me that Mr Kendall gave her a lift home. She said that before leaving the PAC, Mr Kendall was comforting her. [The student] also told me that she was feeling really upset about her dad as well. [The student] said Mr Kendall gave her a hug. At that moment, [the student] said she was thinking Mr Kendall was kind of being like a father to her, so she was feeling a lot more comfortable. [The student] said that he drove her home, but they stopped on the side of the road, not far from her house and she was pretty upset still. I don’t think [the student] wanted him to pull up in her driveway. She said that Mr Kendall gave her a hug, then he kind of leaned over and kissed her and put his hand up her shirt. I asked her where he kissed her and she said on the lips. She said it felt like it went for ages. [The student] said she just froze when it happened. [The student] did not say any more about how Mr Kendall put his hand up her shirt. Once it stopped, [the student] said she got out of the car and walked home. [The student] said that she did not stop what happened and that is the main thing and why she feels like it was her fault. She said she could have got out of the car but she did not. ¶82 S then described that for some time afterwards, the student and Mr Kendall did not even look at each other or talk for ages, for several months, and that the student was really depressed. After some time, they started talking again. She said that the student was getting angry with Mr Kendall because he was ignoring her and completely blanking her in class. She said she thought the student confronted him about it and they started talking again. ¶83 S says that since the phone call on the night of 14 September 2012, she and the student had spoken about what happened a few times, that the student said she really could not remember any more and she just blocked it out of her memory, and she just wants to move on and pretend it did not happen. The student also told her that she had lied to people by saying that nothing had happened because she did not want people to get into trouble, such as J and Ms Ogg. The student subsequently told her that she is now lying about the matter. ‘She told me that I probably won’t be interviewed, because she told people and SID that she made it up. I got really angry at her and asked her why she would say that. [The student] said that she just doesn’t want it to go on anymore.’ ‘She told me not to say anything, because she didn’t want to seem like she’s telling another lie.’ ¶84 S’s evidence was largely unchallenged, particularly her evidence as to what the student told her in the phone call which S said occurred late at night on the night of the incident following the concert at the KPAC. ¶85 Ms Jane Elizabeth Sayer-Henderson gave evidence of a hug she observed between Mr Kendall and the student in the classroom. She described it as ‘a complete hug’ and her demonstration of it was of Mr Kendall enfolding the student in his arms. She used the term ‘embrace’ but then withdrew that word (ts 180), however, it seems to be a very apt description, that it was reciprocated. ¶86 Ms Sayer-Henderson acknowledged that while she saw Mr Kendall and the student through the glass in the classroom door, she did not see the whole of the classroom and it may be that there were other students working at the back of the class who she did not see. ¶87 A student, T, gave evidence of seeing Mr Kendall and the student alone in the classroom two or three times. ¶88 Denise Hewitt, Mr Kendall’s head of department, described her observations of him as a teacher and his interactions with students. She said that he does extra activities and students respond particularly well to him. ¶89 Ms Hewitt said that approximately a week before Easter, Ms Ogg approached her and raised a concern about a discussion relating to Mr Kendall’s friendship with the student. Ms Ogg was concerned that the student was about to make some kind of disclosure, and said to the student that if she did, Ms Ogg would have to report it. From then, the student said nothing further. ¶90 Ms Ritchie advised Ms Hewitt to raise with Mr Kendall the issue of appropriate boundaries. She did not approach Mr Kendall because in the meantime J spoke with the psychologist who advised Ms Hewitt that the matter was being reported to Standards and Integrity. ¶91 Ms Hewitt had previously witnessed the student in Mr Kendall’s classroom chatting frequently, and saw no reason to be concerned. ¶92 Ms Hewitt also said she was unaware of Mr Kendall transporting students except for Mr Kendall having told her he took the student home from debating one night and that her parents approved of him doing so. ¶93 Ms Hewitt also described Mr Kendall as reciprocating in a hug from the student. She said she saw the student standing further down the room while Mr Kendall was standing in his classroom near his desk. She said the student walked towards Mr Kendall and gave him a hug. ‘She placed both arms around him and he did the same – placing his hands on her back.’ ‘It wasn’t a lingering hug, it was just a big hug’ (exhibit 1, tab 5, 20). She did not perceive it to be untoward or sexual. However, she said that if a student is hugging a teacher, the teacher should not allow it to happen and should call a halt to it to discourage it, rather than reciprocate. The teacher is the one in control of the situation (ts 192-3). ¶94 Ms Hewitt said she would be shocked if the complaint was proven, but is ‘not shocked that someone has started to talk in this way, because it happens when you set yourself up in a friendship with a student’ (exhibit 1, tab 5, 21). ¶95 Kathleen Ritchie, the Principal of the school, was interviewed on 14 May 2013. Ms Ritchie says that within a period of a few days, she received a number of reports from staff members seeing Mr Kendall hugging the student when they were in a classroom alone. It was subsequently brought to her attention that they were having coffee together after school hours. Ms Ogg then reported that she had received a partial disclosure from the student. The school psychologist, Jennifer Edmonds, then reported that J had spoken to her about her concerns in relation to an incident that occurred between the student and Mr Kendall in a car in 2012. J also went to Ms Ritchie. ¶96 In respect of her comments about Mr Kendall’s support for the student and of that support being important for her at the time, Ms Ritchie makes it clear that it was better for the student to be talking to someone than to have no one to talk to. The student did not want to have access to the chaplain, to counselling or to the psychologist, but it was important for her to have someone to talk to and he was that someone. ¶97 Ms Ritchie said that the staff are aware that they are not qualified to deal with what I take to mean students’ personal issues and should refer particular difficulties to those with proper training. In this case, she says that had she known that Mr Kendall was involved with the student to such an extent, including having her in his classroom alone, taking on a counselling-type role with her and going for coffee with her, she would have had his line manager speak with him about the wisdom of those things or she would have spoken to him herself. She says that these are things that staff cannot do, that it was common sense that it was not wise for a man of Mr Kendall’s age to develop a close relationship with a 16 year old girl, that particularly given his age and experience, he should have known better. She would also be strongly opposed to a teacher transporting a child in their car, particularly alone, even if the parents consented. If she had known, she would have said it was not to happen. ¶98 Ms Ritchie said each staff member should be acutely aware of what is appropriate and what is not, and that the Code addresses those issues. She went on to say that Mr Kendall ‘is an intelligent and articulate man, who would be aware of that, whether he chose to take advice or not. He sees himself exterior to the rules, so to speak,’ not that he is oblivious to the rules. The rules about having distance with students are important and Mr Kendall was not listening to the rules such as not having students in his car etc. She clarified that he is not an indiscriminate rule breaker. Application to re-open ¶99 Mr Kendall filed his closing submissions on 2 October 2015. They included a statutory declaration of Donna Vaughan, his own account of an encounter with the student following the conclusion of the hearing on Friday 21 August 2015, and comments regarding the purported views of the Teachers Registration Board of Western Australia (the Board). ¶100 I heard from the parties about whether to re-open the hearing for the purpose of this new evidence being received. ¶101 The test for re-opening a case after the close of evidence to admit new evidence is: (a) When the material interests of justice require it; (b) Where the new evidence would probably produce a different result; and (c) Where the evidence could not have been discovered before the trial. (Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 per Wolff CJ at 89) Consideration and conclusions regarding new evidence 1. Ms Vaughan’s statutory declaration ¶102 The statutory declaration of Donna Vaughan relates to the altercation between herself and the student on the night of 14 September 2012 at the KPAC. This evidence was not able to be produced at the hearing because, according to Mr Kendall, Ms Vaughan was difficult to contact as a result of her having moved and now apparently living in Queensland. Mr Kendall says her statutory declaration demonstrates ‘the almost febrile atmosphere which evolved during the evening of the school presentation on 14th September 2012 and which was the cause of much anger and malevolence later in the evening’. ¶103 Firstly, I note that there was no suggestion that Mr Kendall wished to have Ms Vaughan called so that her evidence, if it is relevant, could be tested. Secondly, there is no dispute that the student and Ms Vaughan had an altercation that night. Nor is there any dispute that the student was very upset that evening as a consequence of both S’s performance and the argument. In her interview of 6 June 2013, the student said ‘[t]he argument shook me up a bit, especially after having watched [S’s] osp … I was a bit of a mess that night actually’. ‘I cried this night, because I was upset’. ¶104 In her interview on 2 October 2014, the student again acknowledged that both S’s performance and the fight with Ms Vaughan were ‘very’ and ‘quite’ emotional respectively. She said ‘I was distraught, crying’, and that when she and Mr Kendall walked to his car, ‘I was still emotional’ (exhibit 1, tab 9, KW2, P3 and later). ¶105 During cross-examination, the student acknowledged that she had been upset and cried. She had cried on Mr Kendall’s shoulder, making his jacket quite moist (ts 235). ¶106 Therefore, as there is no dispute about the matter the subject of Ms Vaughan’s statutory declaration, the material it covers is not new, and there is no intention to call Ms Vaughan to test the evidence should it be necessary, there is no need for the hearing to be re-opened to receive it. 2. The student approaching Mr Kendall after the hearing ¶107 The second piece of evidence relates to the student approaching Mr Kendall after the hearing, and, according to Mr Kendall, saying ‘Paul, I’m so sorry’. They are said to have talked for some 30 minutes. He does not seek to recall the student to deal with this evidence. ¶108 I conclude that it is not necessary to re-open the hearing to receive this evidence. As Mr Kendall acknowledges, the meaning of the words is a matter of interpretation. The student has already given clear, unequivocal evidence. There is nothing to suggest that this new evidence, particularly without her being recalled, might produce a different result. 3. The views of the Board ¶109 The job the Commission is required to perform in this case is to assess the evidence and decide whether Mr Kendall has conducted himself in the manner alleged and whether he has been unfairly dismissed. Therefore, the views of the Board and its officers are not relevant and will have no effect on the result of this matter. ¶110 In the circumstances, the hearing will not be re-opened to receive the new evidence contained in the applicant’s closing submissions. Consideration ¶111 The Commission must act only on material that is logically probative and relevant to issues raised in the proceedings (Mr Cesare Violanti and Mrs Somsri Violanti Trading as Kwinana Pizza v Liam Christopher Porter [2014] WAIRC 01246; (2014) 94 WAIG 1840 [47]). ¶112 Mr Kendall argues that the evidence he has presented to the Commission about his approach to teaching, his dedication to his students and how they responded to his teaching is relevant. At one stage in the hearing, he referred to it as ‘advertising’ whilst recognising that it is not strictly relevant. ¶113 The relevant issues in this case are about his conduct towards one particular student, not to students generally. The issues do not relate to whether he is a good, successful, inspirational teacher. They do not relate to whether he had behaved appropriately to the multitudes of students he has taught over his career. There is no suggestion in the allegations made against him that he has a propensity to conduct himself inappropriately towards students generally or towards a particular group of students. Therefore, much of the evidence he sought to elicit from a number of parents and students about his teaching and behaviour towards students is irrelevant to whether he conducted himself in the manner alleged and found in respect of the student. ¶114 The Commission is not bound by the rules of evidence (Industrial Relations Act 1979 s 26(1)(b)). That is not to say it may ignore those rules. It may receive hearsay evidence and give it appropriate weight. However, where evidence of a statement to a witness by a person is received into evidence, not to establish the truth of the statement, but to establish the fact that the statement was made is not hearsay and is admissible (Subramanian v Public Prosecutor [1956] 1 WLR 965, 969 (PC)). ¶115 The evidence of Ms Ogg, J and S as to what occurred between Mr Kendall and the student on 14 September 2012 is not firsthand evidence. However, the student told each of them aspects of what occurred and denied certain things in a way which suggested that the third finding was true. This is of significance. Whilst those witnesses cannot attest to the truth of what she told them, the fact of the student telling them enables inferences to be drawn and supports her own direct evidence to the Commission. Assessment of witnesses ¶116 The rule in Browne v Dunn (1893) 6 R (HL) 67 provides that a cross-examiner of a witness must put to the witness the nature of the case which the cross-examiner’s client proposes to rely on in contradiction to that witness (see also Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197 [31]). In considering the way in which the case was conducted, I have taken account of Mr Kendall representing himself and that he has attempted, in difficult circumstances, to cross-examine witnesses. However, he is intelligent and articulate. I advised him on a number of occasions of the need and the reason for him to cross-examine witnesses by challenging the evidence that they had given in examination in chief which was contrary to the case he was putting. Yet he failed to challenge significant parts of J’s and S’s evidence, other than a very small amount which was peripheral. When it came to the student’s evidence, he needed to be urged to cross-examine her beyond very limited matters. ¶117 I have carefully considered all of the evidence. The seriousness of the allegations and the consequences flowing from any findings, particularly allegation 3, requires clear, unequivocal proof (Briginshaw v Briginshaw (1938) 60 CLR 336). There is much that is not in contention, but is a matter of context. The main matters of contention relate to whether Mr Kendall reciprocated in hugging the student and what did or did not happen between Mr Kendall and the student after the performance at the KPAC on 14 September 2012. ¶118 Having observed the witnesses as they gave evidence and having examined that evidence, where there is conflict between the evidence of Mr Kendall and that of the student, I prefer the evidence of the student. I do so taking full account of her initially denying the incident in the car on 14 September 2012 and of subsequently saying that she had lied to the investigators in both of the first two interviews. The reasons for her doing so are clear – they had been friends; she was fully aware of the damage her revelations would do to Mr Kendall’s teaching career; knowing that teaching was very important to him and that he was subject to depression; that he might harm himself, and she felt a sense of responsibility for him and was afraid of what the effect on him might be. She left it until after he had been dismissed and their relationship was over to be truthful because by then, it was not her statement that would bring consequences for him. There was no other obvious purpose in her providing the information at the third interview. ¶119 Also, the student indicated that she felt a sense of responsibility for what had happened between them because she did not stop him. This, too, is highly likely to be part of the reason why initially she did not want to acknowledge to the investigators what had happened. However, it must be clear that it is not her conduct that is the cause for concern, it is that of the teacher. ¶120 When Mr Kendall put to the student the details of the allegations as to his conduct on 14 September 2012 as he was obliged to do, she looked him in the face and clearly gave answers, maintaining her version of events given after the dismissal in the third interview, and being forthright about drug use. I was impressed with her self-assurance even though it was quite clearly a difficult experience for her to be confronted in this way and that she chose to give evidence in open court, facing the man she had accused, latterly, of inappropriate conduct. She was quite open in acknowledging that in her first two interviews she had denied any inappropriate conduct on Mr Kendall’s part because she wanted to protect him and herself. She said they were friends back then and ‘I wanted to protect him and me’. She said I should prefer her most recent interview as to what had occurred, and I do so. ¶121 The student’s statement to the Investigators on 2 October 2014 that she spoke with Mr Kendall after the investigation had begun is also consistent with Ms Ogg’s statement that the student became aware of the issue of Mr Kendall’s behaviour towards her being reported after J was called out of class to see the counsellor, and that she heard that Mr Kendall and the student later had coffee, talking about the fact that the nature of their relationship had been reported. Although the timing does not match the student’s evidence, nor does the fact of it being a meeting over coffee as opposed to a meeting in his car, it is highly likely that Mr Kendall and the student met and discussed the issue of the reporting and investigation of his relationship with and conduct towards her. He picked her up in his car and they drove to a street not far from her home. That the student told Mr Kendall that they should tell the truth and his response that to do so would finish him, is consistent with Ms Ogg’s evidence that the student had said to her that she did not want Mr Kendall to lose his job, that teaching was everything to him, that he would ‘probably fall into depression and could kill himself’ (exhibit 1, tab 5, 16). ¶122 It is also clear that Mr Kendall spoke to the student about his personal life, about his relationship with his wife and his children, and that it was not merely as part of life experiences in lessons that he was providing to her as teacher to student, but as a friend. ¶123 She also told S on the night of the incident at KPAC of what had occurred. ¶124 There is no evidence to suggest that the student is inclined to make up stories. ¶125 I also accept Ms Ogg’s evidence as being truthful. As with S and J, I accept Ms Ogg’s evidence of what the student told her about the circumstances involving Mr Kendall, not for the truthfulness of the student’s statements to them, but that the student made those statements to them. However, I also accept as truthful the student’s evidence of what occurred between herself and Mr Kendall. ¶126 Mr Kendall’s body language and tone towards Ms Ogg was quite hostile and was the only witness he treated like this. I conclude that he treated her this way because she had been a friend and he now saw her as betraying that friendship. He sought to diminish her by referring to her as being ‘only’ a relief teacher (ts 260), as if that in some way diminished the significance of her evidence. Other witnesses such as the school principal, Ms Ritchie, and his head of department, Ms Hewitt, who were not friends with him, he treated with respect and some distance. ¶127 I also found Mr Kendall’s evidence self-serving, pedantic, in some cases misleading and others to be untruthful. He allowed the student’s mother to believe that other students may be travelling with him when it was only ever her daughter. He pointed out that Dome café was ‘very nearly opposite the school’ (exhibit 1, tab 5, 36) but drove the student and himself there. The Investigation Report refers to it being some 350 metres away from the school and not within sight of the school. He downplayed the significance of the student and he regularly having coffee together by saying that they saw other people from school there, yet only twice did others join them. When they did, both Ms Ogg and J described the physical contact between them, which Mr Kendall not only allowed but seemed comfortable with. While Ms Ogg did not describe the level of contact between Mr Kendall and the student as being of the same magnitude as described by J, even the conduct described by Ms Ogg was of the student leaning on him as being cause for her to be concerned that he was not maintaining professional boundaries. ¶128 Mr Kendall said in his interview on 23 July 2013 that since the evening of 14 September 2012, the student and he ‘have been good friends without any awkwardness on her part’ (exhibit 1, tab 4, Allegation 3). However, the evidence of the student and S, in particular, was that Mr Kendall and the student did not talk to each other for some time, had a fight, a misunderstanding, did not want to be friends for some time after the incident. The student said that they had a fight, he had isolated her for a number of weeks and was not talking to her. She had stopped emailing him. S said that the student and Mr Kendall did not even look at each other or talk for ages, like several months. ¶129 When the allegations were originally put to Mr Kendall, it is true that they contained an element of vagueness, for example that he and the student spent ‘a large’ amount of time together, and that they had a ‘close personal friendship’. In the interview on 23 July 2013, Mr Kendall referred to these as abstract concepts. He took objection during the hearing to the vagueness of those terms. The Findings ¶130 As to the first finding, having examined all of the evidence, I find, without hesitation, that Mr Kendall and the student exchanged personal email addresses and telephone numbers. They may have initially done so for the purpose of her assisting with the debating team. However, given that they were often in communication outside of school hours as well as during school, given that Mr Kendall acknowledges the friendly banter and the personal friendship between them, and given the student’s evidence about the level of her knowledge of his personal life, I have no hesitation in finding that it is highly unlikely that they used email and mobile phones to engage only in school related communication. ¶131 As to the second finding, there can be no contention that Mr Kendall and the student developed a close personal relationship – they were friends. Even when she was not attending as a student in his class, she was in his classroom, often daily, and they engaged in discussion including about his personal circumstances. He was alone in his classroom with her, with the door closed. Mr Kendall commented in response to the suggestion that the student leaned against him for a time at the coffee shop, saying he did not notice anything unusual about that. This suggests that, as with the hugging at her initiative, he did not take appropriate steps to ensure there was proper distance between them, to protect both himself and the student. In fact, by his engagement with her alone in the classroom, albeit in view of people passing by, with the door shut, in having coffee with her on a regular basis and in being alone with her in his car, he allowed a high level of physical contact on numerous occasions, such that it became normal. He may not have initiated hugging the student, but he reciprocated on at least two occasions. The student’s evidence is of her hugging him regularly. In the circumstances of all of the evidence and in particular that of Ms Ogg, Ms Hewitt and Ms Sayer-Henderson, it is highly likely that he regularly reciprocated and did not reject her physical contact with him. If he did reject it, he did not persist to bring it to a halt. ¶132 There is no contention that Mr Kendall and the student attended coffee shops in Kalamunda. According to Mr Kendall’s evidence, it was at least six times at Dome and twice at Merchant. They were outside of school hours where mostly there was just the two of them together. There is also no contention that Mr Kendall drove the student, alone, in his private vehicle a number of times. He did not report this, nor did he seek appropriate consent from her parents, except he says he had informal consent on one occasion when the student’s mother believed other students may be included, when in fact they were not. ¶133 A number of circumstances cause me to be satisfied that it is highly likely that the third finding, with the exception of the allegation of locking the doors, is true. (Even the student’s account in her third interview and in her evidence before the Commission does not suggest Mr Kendall locked the car doors.) Those circumstances are that the student and Mr Kendall regularly had physical, affectionate contact. They were frequently alone together. On the night, the student was upset, vulnerable and in need of comfort. Mr Kendall comforted her, holding her for a time while she cried and then composed herself. They were then alone in his car for some time before they left the car park at the KPAC. Within a short time of the incident, the student rang her friend, S, in a distressed state and told her about it. Over the following weeks, she told a remarkably similar story to her friend, J. By the way she spoke in Ms Ogg’s presence a few months later, the student made clear that she was concerned about the incident but was in a state of conflict because, to seek the adult support she needed, it required her to place Mr Kendall, a person she had a close friendship with, whose personal circumstances and mental state she was aware of, in jeopardy. She also felt some responsibility for not stopping him. ¶134 She told a number of people, including Ms Ogg and S, that she did not want to remember what happened, she did not want Mr Kendall to get into trouble, possibly lose his job and harm himself. J told Ms Edmonds that the student would deny that anything untoward had happened. ¶135 Although he did not expressly say so, I infer that Mr Kendall suggests that the student made unfounded accusations against him about the situation at the KPAC, because she was upset following the argument with the parent and that he did not support her in that argument. However, when he had the opportunity to put that proposition to the student, he did not do so. In any event, it was not denied that the student was very upset that night and that Mr Kendall comforted her. According to the student and other witnesses, she and Mr Kendall had a falling-out after the incident. There is no evidence about what it was about. On the other hand, Mr Kendall says there was no such difficulty or awkwardness between them and they had remained friends. Therefore, it is difficult to conclude that she made up a story of such significance as a way of getting back at him for not supporting her argument with the parent at the KPAC. ¶136 When asked about the fight she and Mr Kendall had after the night at the KPAC, she told people she could not remember what the fight was about. She also told Ms Ogg, after she had been interviewed, that she had lied in the interview. When Ms Ogg said she was going to tell the investigators, the student did not seem upset. It is clear to me that the student wanted adult support and help to get out of the lie that nothing had happened. ¶137 The student’s responses to the investigator’s questions led the investigator to believe that her denials were not genuine (exhibit 1, tab 5, 47, 3.81). ¶138 After the dismissal, the student felt she could tell the truth. ¶139 In making this finding about the third matter in particular, I am conscious of the seriousness of the allegation and the consequences flowing from the finding. Breaches of the Code ¶140 The findings against Mr Kendall are all said to constitute breaches of s 80(b) of the PSM Act by contravening the Department’s Code, by failing to maintain professional boundaries with a student. ¶141 The PSM Act s 80(b) provides: 80. Breaches of discipline, defined An employee who — … (b) contravenes — … (ii) any public sector standard or code of ethics; … commits a breach of discipline. ¶142 The Code is a public sector code of ethics. It provides a number of principles. At cl 1 – Personal Behaviour, it states that: As employees of the Department we behave with integrity in all personal conduct and treat all others with due consideration. Employees are expected at all times to behave ethically and act with integrity. In practice, this means employees: treat others with respect, dignity, courtesy, honesty and fairness and with proper regard for their rights, safety and welfare; … encourage positive work habits, behaviour and personal and professional workplace relationships and boundaries; do not engage in behaviour that may bring your own reputation or that of the Department and the Public Sector into disrepute; and do not tolerate or participate in behaviour that is inconsistent with these principles. Exhibit 3, Department of Education Code of Conduct (the Code) Principles ¶143 Department of Education, How to Comply with our Code of Conduct (the Handbook), cl 1.3 – Maintaining professional boundaries with students (exhibit 3) provides: 1.3 Maintaining professional boundaries with students Teachers and those people who work directly with students have an influential relationship with them. They have the ability to significantly impact on students’ lives in important and long lasting ways. The relationships between staff members and students are characterised by differing roles and an imbalance of power based on factors such as age, authority and gender. As an employee of the Department you are responsible for maintaining a professional role with the students you come into contact with. This means establishing clear professional boundaries with students that help to protect everyone from misunderstandings or a violation of the professional relationship. ¶144 Under the Boundary of Communication, the Handbook provides a number of examples of violations. These include: … examples … to assist you in establishing and maintaining appropriate boundaries: … Correspondence of a personal nature including letters, email, phone, SMS text, and on social networking sites i.e. Facebook, Twitter etc. (not including class postcards or bereavement cards, etc). ¶145 Under the Boundary of Personal disclosure, the examples of violations include: Discussing the personal details of your lifestyle or the lifestyle of others. However, it may be appropriate and necessary at times to draw on relevant personal life experiences when teaching. ¶146 Under the Boundary of Physical Contact and Interaction, the examples include: Unwarranted, unwanted and/or inappropriate touching of a student, personally or with an object such as pencil or ruler. Initiating or permitting inappropriate physical contact by or on a student, e.g. massage, tickling games. … Being alone with a student for purposes or reasons that do not fall within a staff member’s role or responsibilities. … Driving a student unaccompanied, without appropriate consent. ¶147 Under the Boundary of Targeting Individual Students, the examples include: Adopting a welfare role that is the responsibility of another staff member e.g. a counsellor, or doing so without the knowledge of key staff members. ¶148 The Handbook continues that: Professional boundary violations represent a breach of trust. When you violate boundaries you risk: harmful consequences for the student; seriously undermining the learning process; seriously undermining your professional reputation; disciplinary action against you. You are not to, under any circumstances, engage in an intimate, overly familiar or sexual relationship with a student. Improper conduct of a sexual nature by a staff member with a student encompasses all forms of sexual activity including, but not limited to, the following: kissing and/or caressing; … unwarranted and inappropriate touching; … communicating or corresponding with students about sexual or personal feelings for the student; and … 1.3.1 Good practice in managing professional boundaries The following self-assessment questions may assist you in assessing your application of professional boundaries: Am I dealing with a particular student in a manner that differs from how I would deal with another student under the same circumstances? Is my dress/availability/language with a particular student different from usual? Would I do or say this if a colleague were present? Would I condone my conduct if I observed it in another adult? Could the consequences of my actions have negative outcomes for a student or for me? If I were a parent would I want an adult behaving this way towards my own children? … 1.3.6 Physical Contact with Students Appropriate physical contact with students is governed by Regulation 38 of the School Education Regulations 2000 and the Department’s Behaviour Management in Schools policy, and is subject to a test of reasonableness. Pursuant to both of these provisions, physical contact with students should only occur as is reasonable. Some examples of this contact include: the delivery of First Aid, during Physical Education; and where personal care of a student is required Care – includes the administering of First Aid, during Physical Education, and where personal care of a student is required due to age or disability. Maintaining Order – maintaining order should use only such force as is reasonable in the circumstances. Restraint – restraining a student should only occur as a last resort. Some examples include the protection of the student or others from harm, for self protection, or to prevent damage to property. … Exhibit 3 How to Comply with our Code of Conduct, 5 – 8 ¶149 Therefore, the Code and the Handbook provide that employees are to act with integrity and behave ethically, having regard for the rights, safety and welfare of others. It requires employees to maintain personal and professional workplace relationships and boundaries. In particular, the Handbook provides that the teacher is responsible for maintaining a professional role in relation to students, and to establish appropriate communication, disclosure and physical boundaries. It explains the consequences. ¶150 I find that Mr Kendall breached the requirement to maintain professional boundaries with a student that are necessary in the teacher-student relationship. He did so by exchanging personal mobile phone numbers and email addresses and communicating with her in non-school related matters. He developed a close personal relationship with her, spending a large amount of time with her during and outside of school hours. He was in his classroom and in his car alone with her. He spent time at coffee shops with her, usually on their own, albeit in public. ¶151 Further, there is evidence, which I accept, that Mr Kendall would cut the student off or stop speaking to her when she did things that displeased him, in a way which is not consistent with the objective conduct of a mature teacher towards a 16 year old student. Rather, it is the conduct of an offended friend or of some manipulation by him towards her. It was not the proper relationship of teacher and student. ¶152 He not only allowed her to have physical contact with him by hugging him, leaning on him and touching him, but reciprocated when she hugged him. Although he says he told her not to hug him, the fact that she did so regularly makes it clear that he took little positive action to prevent it. ¶153 To have at least protected himself, Mr Kendall ought to have informed his head of department about the hugging and the other activities such as transporting the student in his car and having coffee. He had a friendship, a close personal relationship, with a vulnerable 16 year old female student. ¶154 He hugged and kissed her and touched her breast. ¶155 Therefore, Mr Kendall failed to maintain professional boundaries in communications, personal disclosures, physical and sexual conduct. He did so in circumstances which required the student to believe she needed to lie to protect him and did so. Conclusion ¶156 The test for whether a dismissal has been harsh, oppressive or unfair is whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right (The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Services and Miscellaneous, WA Branch (1985) 65 WAIG 385). ¶157 In all of these circumstances, Mr Kendall did not maintain the professional boundaries required of him in many ways in regard to this student. A teacher who cannot maintain professional boundaries to the extent that occurred here and does so to the point where the student lies to protect the teacher, demonstrates that the person ought not be a teacher. Dismissal was an appropriate penalty. I also note that Mr Kendall says that the penalty of dismissal would be appropriate if he had conducted himself as alleged in finding 3 (ts 37). ¶158 Therefore, the application must be dismissed.