[2012] FWA 2562 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
APPLICANT
v
ACT Department of Education and Training
(C2010/6045)
COMMISSIONER DEEGAN |
CANBERRA, 26 MARCH 2012 |
Finding of misconduct - Appeal - Dispute resolution clause enterprise agreement - Facebook - Teacher - Students as friends - Allegations proven - Penalty confirmed.
[1] This matter arises from an application for the settlement of a dispute in accordance with a dispute settlement procedure. 1 The applicant, is a school teacher who, for all relevant purposes, was covered by the ACT Department of Education and Training Teaching Staff Enterprise Agreement 2009-2011 (the Agreement).
[2] On 9 December 2009 a letter containing a number of allegations was sent to the applicant requesting a response. In essence it was alleged that the applicant :
[3] An investigation was conducted into the allegations and a Report was completed by the investigating officer on 5 March 2010. In the report the investigating officer recommended that it be determined that the misconduct was proved and that the applicant be dismissed. The delegate with responsibility for making the decision found that the misconduct had been proven, but decided to reduce the applicant’s salary by one increment and reiterate the final warning given to the applicant on 15 August 2008 in relation to another disciplinary matter.
[4] On 15 July 2010 the applicant appealed the decision of the delegate. The Appeal Panel recommended that the delegate’s decision be upheld and on 22 December 2010 the Chief Executive Officer accepted the recommendation of the Appeal Panel and confirmed the delegate’s decision.
[5] On 30 December 2010 the applicant’s solicitor lodged, on the applicant’s behalf, an application pursuant to s.739 of the Fair Work Act 2009 seeking the “setting aside of the findings/decisions (misconduct/penalty)”.
The Applicant’s Evidence
[6] An outline of submissions and evidence was filed on the applicant’s behalf on 30 March 2011. That outline essentially dealt with the applicant’s evidence as follows:
“The key evidence in this matter presumably relates to the Facebook page entries allegedly discovered by Ms Lauren Harman.
The Applicant has given evidence in writing and twice orally that and has been available to be cross examined on evidence that :-
The Applicant’s credibility and integrity has not been satisfactorily challenged.
...” 3
[7] Annexed to the applicant’s outline of submissions was a document she had submitted to the Appeal Panel. In that document the applicant stated that:
[8] In the same document the applicant stated that she had complained to Mr Whitton and Ms Harman (the two departmental officers who had interviewed her in September 2009) about being bullied while she was at W School and, within two weeks of speaking with Ms Harman about the matter, Ms N had complained about her visit to W School.
[9] In her evidence the applicant said that she was a teacher who had last worked at W School on 1 July 2009. She had since been employed at two other schools. She agreed that she had had a telephone interview with Mr Dougal Whitton and Ms Laurel Harman and that a transcript of that interview had been filed in the current proceedings
[10] It was the applicant’s evidence that she had had nothing to do with the appearance of students on her Facebook page. She had told this to Mr Whitton and Ms Harman during the telephone interview and the Appeal Panel. When asked if she was aware that it was the Department’s view that it was wrong to contact students on Facebook she stated that she knew that it was wrong to contact them by private email and phone but that Facebook wasn’t explicitly spoken about at W School.
[11] According to the applicant in 2009 she had the bare minimum of privacy settings on her Facebook page but had since increased the level.
[12] The applicant recounted her version of what occurred when she visited W School on 24 August 2009. In essence she stated that she had gone to W School on her way to another appointment nearby. She had met with several staff and then visited her former class a few minutes before the lunch break. She claimed she had knocked on the door and asked Ms L, the class teacher, for permission to enter. According to her evidence Ms L replied “yes”. She had had some interaction with the children and then left shortly before the bell for lunch rang. The applicant denied that there had been any unpleasantness at the school that day.
[13] The applicant was asked whether she had had any conflict with any person at W School as a result of her holding the position of staff equity officer during her employment at the school. She replied that at times there were minute amounts of conflict and that there were issues with the principal when she acted as a support person for another staff member.
[14] When questioned about her interactions with Ms Harman prior to late August 2009 the applicant responded that she had spoken to her by telephone and occasionally emailed her regarding issues at W School. She recalled telephoning her in April 2008 and emailing her on 9 August 2009. Ms Harman had not given her any advice. According to the applicant although she had asked Ms Harman about a transfer she was not transferred until July 2009, and no investigation was ever conducted into her complaints about W School.
[15] It was also the evidence of the applicant that she had attended a meeting with Mr Whitton and Ms Harman and complained of harassment at the school. Mr Whitton had advised her to file a formal complaint.
[16] Under cross-examination the applicant agreed that she had been a teacher at W School for the first half of 2009 and that a number of named students, BL, AO, CM and ZW, were students at the school at that time. She also agreed that the four named students appeared on the Facebook page that Ms Harman claimed to have downloaded from the website on 24 August 2009.
[17] The applicant also agreed that when she visited W School on 24 August 2009 it was a school day and school was in session. She had not asked permission from the principal at her current school to visit W School. Her reason for leaving her school was to attend the Centre for Teaching and Learning. It was her evidence that she had taken the opportunity to visit W School to see a teacher, Ms C. She agreed that she had not sought permission to visit Ms L’s class but maintained that had Ms L said “no” she would not have entered. It was also her evidence that Ms L had no idea that she was coming until she turned up outside the class, but stated that she had spoken to one of the students, AO, and stated that she would try to visit. She agreed that AO may have told other students that she was likely to visit.
[18] The applicant’s attention was drawn to the statement of AO in which AO claimed that the applicant had conveyed on Facebook that she was going to visit the school. The applicant agreed that she had seen the statement. It was also put to the applicant that another student, BL, had indicated to Ms L 5 that the applicant intended to visit the class and that she, too, had received the information via Facebook. The applicant agreed that there were two students, previously taught by her at W School and who were on the Facebook page downloaded by Ms Harman, who claimed that the applicant had communicated with them on Facebook.
[19] So far as her visit to Ms L’s classroom was concerned, the applicant agreed that Ms L was teaching when she arrived but claimed that she was “winding up” as it was the last three minutes of class. She also agreed that the students were pleased to see her but claimed that, at most, only two, AO and BL, left their chairs to greet her. She denied that several students had left their seats as claimed by Ms L. The applicant agreed that several students had said words to the effect that Ms L was “harder than her” and stated that she had replied “Good”. She agreed that children aged 12 to 14 can be impressionable and guided by the behaviour of teachers. She disagreed that in saying that Ms L was “harder than her” the students were paying her a compliment.
[20] Under questioning by Mr McCarthy the applicant accepted that it was critical that a teacher be able to command the respect of students and that teaching staff show respect for other teaching staff in the presence of students. She also agreed that while she stated that she was in the classroom for about three minutes and Ms L stated it was for ten minutes, no actual teaching was conducted while the applicant was present. The applicant initially disagreed with the proposition that Ms L lost control of the classroom when she arrived but eventually acknowledged that, to an extent, control was lost. She also agreed that she was aware of Ms L’s characterisation of the incident in which she claimed to have felt “undermined”. The applicant conceded that Ms L was struggling with the class but disagreed that her entering the classroom had made it difficult for Ms L to settle the class.
[21] When questioned further, the applicant agreed that she was a teacher of about seven years experience and that she was aware that teachers are in a position of trust, and considerable authority, with children. She conceded that it was vital that the dynamic of teacher and student be respected at all times and that it is very important that the line between the professional relationship, of teacher, and a personal relationship, of friend, not be crossed.
[22] The applicant was referred to the Teachers’ Code of Professional Practice 6 (the Code) and acknowledged that she was familiar with it. She agreed with the following statement contained in that document;
"The primary aim of disciplinary action is to maintain proper standards of conduct by teachers to protect the reputation of the public service, the department, and to maintain public confidence in the integrity of teachers. The aim is to not to punish even if the consequences for a teacher are severe".
[23] The applicant was also taken to that part of the Code that states that “teachers act with fairness and integrity when they avoid conflicts between their private interests and professional responsibilities." The applicant agreed that having children as friends on a Facebook site would be contrary to that statement.
[24] Under further cross-examination the applicant conceded that:
[25] According to her evidence the applicant was aware, at least by end March 2009, of the Departmental email setting out the policy advice on the use of social networking sites by teachers and agreed that that advice to teachers included the statement “never communicate with students.” It was then put to the applicant that the only way students could have been included as friends on her Facebook site would be if she had accepted them as friends or requested them to be friends and been accepted. In response the applicant suggested that, if the Facebook page downloaded by Ms Harman was genuine, then the students may have been on the page waiting to be accepted. She conceded that if the students had been included on the page through her accepting them as friends then she would have been in breach of the Code. She also stated that in those circumstances she would have “gladly resigned”.
[26] When taken to the witness statement of Ms Laurel Harman 7 the applicant agreed that she had received an email from Mr Dougal Whitton on 22 September 2009 posing a number of questions. The email asked the applicant whether she had students as friends on Facebook and requested a meeting with her. The applicant agreed that she had replied to the email later the same day agreeing to a meeting and attaching three screen shots of her friends' list on Facebook. She also stated that “no students from W or any school bar my own daughter are on my Facebook friends' list”. She claimed that while she had not answered Mr Whitton’s questions directly she had answered them “by inference”.
[27] The applicant conceded that a number of people included on the friends’ list on the Facebook page downloaded by Ms Harman were in fact her friends, but reiterated her claim that the three students on the first page of that document were not, had never been and would never be on her Facebook friends' list. She also noted that the document attached to Ms Harman’s statement did not have a date on it and claimed that it would have been possible to create the document using Photoshop or by cutting and pasting a word document. The applicant stated that she had created a page in that manner quite easily. It was put to her that she had, in fact, created the pages she forwarded to Mr Whitton in order to mislead him about the friends on her page. The applicant denied this suggestion.
[28] The applicant agreed that when Mr Whitton had questioned her during the interview she had emphatically denied ever having students from W School as friends on her Facebook page. After being reminded by Mr McCarthy that she was on oath, the applicant again denied that she had ever had students from W School as friends on her Facebook page.
[29] The applicant conceded that, at about the time she had sent the screen shots of her Facebook friends’ list to Mr Whitton, she had altered the security settings on her Facebook account so that her friends’ list could longer be viewed by third parties. She agreed that she had been unaware of the download by Ms Harman until it was sent to her by the investigating officer in December 2009. She stated that she believed that the downloaded pages were a “mock-up”.
[30] It was the applicant’s evidence that she had put forward two explanations for how the students may have appeared on the Facebook page downloaded by Ms Harman - that her Facebook account had been hacked into and the students added by persons unknown or that the page had been ”mocked-up”. It was put to her that the latter was a suggestion that Ms Harman had created a false document and then printed it off and falsely represented to the Department that it was actually a representation of her Facebook page. The applicant denied that she was making such an accusation against Ms Harman. The applicant stated that she was affronted by the fact that, while both she and Ms Harman had produced screen shots purporting to be of her Facebook page, the page produced by Ms Harman was accepted as correct while the document she produced was considered false.
[31] The applicant was taken to Ms Harman’s evidence in which she claimed to have viewed the applicant’s Facebook page using her home computer and to have printed the pages that she had viewed. The applicant stated that she did not accept that evidence as there was no independent third party who witnessed Ms Harman downloading and printing the pages. The applicant conceded that if her alternative suggestion was correct and her Facebook account had been hacked, and the students placed on the site by someone else, then Ms Harman would have seen the page that she claimed to have downloaded and printed. The applicant agreed that she claimed not to have seen students on her Facebook page, despite visiting the page two or three times a week at the relevant time.
[32] It was also put that the hacker must have removed the students from the website because when the applicant visited a day or two later the students were no longer there. The applicant stated that that was possibly the case, and that Ms Harman must have visited the website in a one or two day period between the applicant’s visits to the site. The names of the students must have been both added to and removed from the website in the same period. The applicant also noted that she did not check her friends’ list on every visit.
[33] It was then put to the applicant that the only differences between the list of friends on the Facebook page printed out by Ms Harman and the list prepared for Mr Whitton by the applicant was that every “friend” who was a student had been omitted, and that she herself had deleted the students before sending the screen shots to Mr Whitton. The applicant denied having done this.
[34] The applicant was then taken to a letter 8 which she had received on 26 June 2008 informing her of the outcome of a misconduct investigation. The applicant agreed that the outcome of the investigation was that she was given an admonishment in the form of a final warning and the deferral of her incremental progression. She also conceded that the allegations of misconduct were found to have been proved. The applicant stated that she did not agree with that finding but agreed that the substance of the investigation had been allegations that she had screened illegally copied DVDs to students and had supplied students with DVDs rated R18+. The applicant also conceded that the Report of the misconduct investigation noted that “the strong weighting of the evidence shows... [the applicant]... has been untruthful throughout the investigation”. The applicant stated that she took affront (sic) to that. She agreed, however, that she was aware of the final warning against her when the matter of the Facebook page was raised with her.
The Respondent’s Evidence
[35] Ms Louise Harman, Assistant Manager, Employee Relations with the ACT Department of Education and Training, filed a statement of evidence 9 in which she noted that in August and September 2009 she had acted in Mr Dougal Whitton’s position of Employee Relations Manager. It was her evidence that:
[36] It was also Ms Harman’s evidence that on 17 March 2009 all ACT teachers had been sent a copy of an advice by the Department dealing with the use, by teachers, of social networking sites. Teachers were required to comply with the Teachers Code of Professional Practice which included complying with Departmental policies.
[37] According to her statement Ms Harman wrote to the applicant on 10 September 2009 concerning the applicant’s visit to W School on 24 August 2009, and also alleging that the applicant had communicated with a student through the social networking site, Facebook. The applicant was given an opportunity to respond and was directed to attend an interview with Ms Harman and Mr Whitton on 23 September. The interview was eventually conducted by telephone, at the applicant’s request. Notes 13 were taken and the applicant requested to confirm the accuracy of the record. At the hearing the witness confirmed that the printout attached to her original statement and marked Annexure D was the document obtained when she pressed the print button while viewing the applicant’s Facebook page on 24 August 2009. She noted that she had accessed the applicant’s Facebook site through her husband’s Facebook account and that this is why his name, Graham Harman, appeared on the document.
[38] Ms Harman was also questioned about her dealings with the applicant prior to August 2009. She recalled attending a meeting with her manager, Dougal Whitton, in December 2008 regarding the applicant’s issues with other staff at the Wanniassa School. It was her belief that Mr Whitton had asked the applicant to put her complaints in writing but could not recall ever seeing those complaints in sufficient detail to enable an investigation to be conducted. The applicant had sent an email 14 on 22 February 2009 indicating that she did not intend to file a grievance in relation to those matters.
[39] It was Ms Harman’s evidence that the only other contact she had with the applicant prior to August 2009 was when she contacted the applicant’s new principal requesting that person to assess the applicant as having satisfactory teaching performance to gain an incremental advancement to comply with part of the discipline action that resulted from a previous matter. The applicant had been copied into the letter to the principal.
[40] According to Ms Harman she had also attended another meeting with the applicant in November at the request of Mr Bateman. The purpose of the meeting had been to inform the applicant of the outcome of her appeal relating to the earlier misconduct allegations. She had had no other contact with the applicant until the Facebook matter arose.
[41] Under cross-examination Ms Harman could not recall having any dealings with the applicant in April 2008. Ms Harman had no involvement in the misconduct allegations involving the DVDs. She also confirmed that when she had looked at the applicant’s Facebook page in August 2009 she had identified four current students at W High School and two former students of that school. She agreed that she had only accessed the applicant’s Facebook site on one occasion. It was her evidence that it did not matter how many students were on the page: it was the same whether there was one or six. The matter was raised with the applicant about a month after Ms Harman had printed the page showing the students as friends. She agreed that in the intervening period a report had been received from the school concerning Facebook contact between the applicant and students. That report had been made by the principal of the school. Ms Harman conceded that she knew there had been conflict between the applicant and the principal.
[42] Ms Harman’s evidence was that a statement had been received from one of the students concerned when the Department had requested further information about the matter. The student’s statement had been provided by the principal in response to the Department’s request. It was normal procedure for the Department to ask the school to provide such information.
[43] According to the witness, at the time she accessed the applicant’s Facebook page she was not herself a regular user of Facebook and had no knowledge of Facebook security. Nor did she, in August or September 2009, seek any advice or expertise in relation to Facebook. It was her evidence that at the time she accessed the applicant’s page it did not occur to her that the students’ names could have appeared on that page without the active participation of the applicant. She stated that she was not involved in any request by the Department for expert advice involving Facebook.
[44] When asked why the Department had not commissioned a proper inquiry into the matter, including interviews with the students concerned, Ms Harman explained that it was not the Departmental policy to involve students in matters regarding the behaviour of their teachers. When it was put by Mr Lander that the matter also concerned the behaviour of students Ms Harman replied that the employee relations area of the Department was not involved with the behaviour of students. It was also her evidence that it never occurred to her that the students’ names may have appeared on the page because a student had hacked into the site and placed them there. Ms Harman agreed that she assumed the names were on the page due to some action of the applicant. Further, Ms Harman stated that she did not understand how Facebook worked but staff had been directed that they should not have students as friends on their Facebook page.
[45] When re-examined Ms Harman noted that where an allegation is made by a student against a teacher then that student will be interviewed, but where the matter is not instigated by a student the Department prefers not to involve students in inquiries about teachers as it brings into question the relationship between the student and the teacher and can impinge on the relationships with other teachers at the school. It also requires the involvement of parents so more people are made aware of the issue. It was Ms Harman’s evidence that the focus of the Department’s concern was the presence of students on the applicant’s Facebook page, not who students had on their pages.
[46] The Department also called as a witness Mr Andrew Campbell, an Information Technology security analyst employed by the ACT Government. A statement 15 of Mr Campbell’s evidence had been filed. The witness described the process by which friends could be added to a person’s Facebook page. He noted that the person accepting the friend must positively approve the person requesting to become their friend before the requesting party would be added as a friend. He also noted that once a person is accepted as a friend the person who has accepted them is listed as a friend on the requesting person’s Facebook list. Once that occurs it is not apparent which person made the request but it is apparent that both parties had a role in the decision.
[47] It was the evidence of Mr Campbell that it would not be easy for a Year 8 student to access and manipulate a person’s Facebook page. He stated that the student would need to know the credentials - the user name and password - of the relevant Facebook account. He agreed with the suggestion that it would be no easier than accessing a person’s internet banking account. He was not aware of any manner in which a Facebook account could be accessed by other means.
[48] The witness was shown Annexure D to the statement 16 of Ms Harman and agreed that it appeared to be a printout of a friends’ list from a Facebook page. It was Mr Campbell’s evidence that only those friends who had been positively accepted would appear on the friends’ list. Persons with requests pending were not listed as friends.
[49] When cross-examined by Mr Lander the witness stated that he had had several years experience using Facebook and agreed that since 2009 the security options for the site had changed. He denied that it was easier to hack into or manipulate a Facebook page in 2009 than it is today, noting that a user name and password authentication would be required, as it was in 2009. It was also the evidence of Mr Campbell that the process for adding friends to a person’s Facebook account had not changed since 2009.
[50] It was put to Mr Campbell that the applicant’s former partner, Mr J, had made a statement in which he claimed that he was readily able to do certain things to any Facebook account such as add names and photographs. Mr J had produced and printed a Facebook page which he claimed he had created. It was the witness’s response that he did not believe that the process undertaken by Mr J actually involved the altering of an authenticated Facebook account. If Mr J had the user name and password he would be able to add names.
[51] Mr J’s’ statement was read to the witness and then he was asked if it was his evidence that the statement made by Mr J was false. Mr Campbell replied that the statement could be interpreted in multiple ways.
[52] In response to a series of questions from Mr Lander, it was the evidence of Mr Campbell that:
[53] When re-examined Mr Campbell reiterated that altering an internet page belonging to another person was not realistically possible without access to that person’s user name and password. He agreed that it was possible to create a mock-up or false document and print it off but that document would have no bearing on what was actually contained on the website, as it was merely produced by a graphics or word processing program.
[54] Ms G, Deputy Principal, W School, was called to give evidence about an email that she had sent to the Principal of the school on the evening of 27 August 2009. It was Ms G’s evidence that on 27 August 2009 she had had a discussion with the Principal, Ms N, concerning staff, including the applicant, who had Facebook friends, and as the Principal was not familiar with the Facebook system Ms G volunteered to use her Facebook account to see what she could find. That evening she had logged into her Facebook account and searched the applicant’s name. She had accessed the applicant’s Facebook page and had taken, and saved to her computer, a “screen shot” of what she had found. She had sent the two pages she had saved, by email, to the Principal. She had also printed the pages for the Principal in case the email failed. Having emailed the document to the Principal she had had no further involvement with the matter. The email with the attached document 17 was tendered in evidence.
[55] Ms G was also asked whether she was familiar with the way Facebook worked and replied that she was. She was then asked a number of questions about the document attached to Exhibit R4, Ms Harman’s supplementary statement. It was her evidence that some of the annotations on the document would not be visible on a Facebook screen but would have been added at some later stage. She was not aware of any way a Facebook screen page could be annotated but thought that it was possible to manipulate a page that had been downloaded
[56] It was the evidence of Ms G that she had been working at W School since January 2009 and that the applicant had been a teacher there when she started work but left in July 2009. According to Ms G she had not had any falling out or disagreement with the applicant during the six months they had worked together at the school, and had interacted with her only in the normal course of teaching duties.
[57] When cross-examined Ms G stated that she had had a meeting with the applicant in April 2009 concerning difficulties the applicant was experiencing with a number of students in her class who were disruptive, not following directions and not learning. The witness had told the applicant that they would put a plan in place to get the students back into the classroom and learning. Ms G denied that the applicant had said to her that the applicant’s supervisor was unsupportive, callous and rude. The witness did not recall the applicant mentioning her supervisor.
[58] Ms G also recalled another meeting, with all the teachers of the class identified by the applicant, held to discuss strategies that could be put into place to assist the students. It was her evidence that the applicant had walked out of the meeting in distress when another staff member told her that she needed to be flexible in dealing with the students. Ms G could not remember which staff member made the remark.
[59] It was put to Ms G that she did not have a very complete recollection of her dealings with the applicant, a suggestion she denied. The witness also denied disliking the applicant and a suggestion that the applicant had told her that she thought Ms G was unsupportive.
[60] Finally, Ms G stated that she had downloaded the Facebook pages at her home using her own computer and used her own private account to access Facebook. When she sent the downloaded pages to the Principal she did so using her work email address.
[61] When re-examined Ms G was asked to compare the printout of the Facebook page made by Ms Harman 18 with the printout of the Facebook page the witness downloaded on 27 August 2009. She noted the similarities in the names and photographs of the “friends” listed on the two printouts. She noted that while 33 friends were on her list only 30 were on Ms Harman’s list printed the day previously, and that there were new names that appeared to have been added at a time between the two printouts. She also noted that while advertisements are regularly changed on the site the fact that the same advertisement appeared on both the printout made by Ms Harman and that which she made was probably because the downloads occurred at about the same time.
The Applicant’s Submissions
[62] It was put that the applicant’s evidence throughout the investigation, the appeal and the current proceedings had been consistent, in that she had denied facilitating or encouraging “the presence of student photos on her Facebook page”, had no knowledge of the presence of the students’ photos on the page, and had not communicated with any students though Facebook. The applicant had also consistently denied disrupting Ms L’s class at W High School and telling “untruths” to Mr Whitton and Ms Harman.
[63] So far as the evidence of other witnesses was concerned it was submitted that:
[64] It was put that it was not the submission of the applicant that Ms Harman or Ms G manufactured the Facebook pages they claimed to have downloaded in August 2009, as she was not in a position to make such an assertion. It was put however that “it remains a possibility along with hacking, photo-fitting by students or others or interference by some person”.
[65] It was also submitted for the applicant that the respondent had adduced no evidence of contact via Facebook between the applicant and any student, and had not called as a witness the student who had made the statement or the teacher who had produced the statement.
[66] It was submitted on the applicant’s behalf that even had Ms J known of the presence of students on her Facebook page and failed to remove them this would not, of itself, constitute misconduct as the “nature of the communication” was relevant.
[67] Finally, it was put that the ACT Human Rights Act guaranteed freedom of expression and freedom of association, and these rights could not be read down by “subsidiary (sic) legislation such as the Teachers Code of Professional Practice let alone by policy advices”.
[68] In essence, it was put that there had been no misconduct on the part of the applicant.
The Respondent’s Submissions
[69] The respondent’s closing submissions noted that the parties had agreed that the proceeding before the tribunal was a merits review concerning the three allegations (paragraph [2] above) made against the applicant that had been found proven by the investigating officer and confirmed on appeal. It was also submitted that the tribunal could be satisfied, on the balance of probabilities, that each of the allegations was proved.
[70] In relation to allegation one, that the applicant had students of W School on her Facebook account friends’ list and contacted them through that account, the respondent relied on the following evidence to submit that the allegation had been proved:
[71] The Respondent submitted that the applicant’s suggestions that the Facebook pages downloaded by Ms Harman and Ms G were either mock-ups or the result of hacking of her Facebook account were not credible, given the evidence of the witnesses that they had each, separately, downloaded and printed the applicant’s page directly from the computer screen on separate days. Similarly the suggestion that the applicant’s Facebook page had been hacked to include the students, but that their names had been removed from the friends’ list before the applicant next used her account, was fanciful. It was put that the evidence of Mr Campbell as to the unlikelihood of such a scenario occurring was to be accepted.
[72] So far as allegation 2 was concerned it was put for the respondent that the applicant’ sworn evidence was sufficient to make out this allegation. She had admitted to visiting W School in school hours without the permission of her principal, without signing the visitors book and without permission of anyone at the school. She had also admitted entering Ms L’s classroom without prior notice, and that her visit caused the teaching in that room to cease.
[73] In relation to allegation 3 the respondent contended that the tribunal should find that allegation 1 has been made out and that the applicant had been untruthful when she denied in her interview with Mr Whitton and Ms Harman that she had ever had students of W School as Facebook friends. It was also submitted that the applicant had continued to be untruthful in her responses to the Appeal Panel and to the tribunal when she continued to deny the fact that she had students as Facebook friends.
[74] Finally, it was the submission of the respondent that the tribunal should find that each of the three allegations against the applicant has been proven and confirm the penalty initially imposed.
[75] So far as the submissions made on behalf of the applicant were concerned the respondent submitted that:
Consideration
Allegation 1
[76] I am satisfied, on the balance of probabilities, that the applicant had accepted as friends on her Facebook account a number of students, including four members of the class she taught at W School in the first half of 2009. I am also satisfied that at the time the applicant invited or accepted these students as Facebook friends she was aware they were students and aware her actions were contrary to the Teachers Code of Professional Practice and Departmental Policy.
[77] I accept in full the evidence given by both Ms Harman and Ms G as to the reason (i.e. a student claiming to have been contacted by the applicant through Facebook) they separately located the applicant’s Facebook site and the fact that they downloaded screenshots of that site when it was located. I accept that the documents tendered in evidence were the printed copies of the screens downloaded separately by Ms Harman and Ms G, and that those documents were not mock-ups or in any way manipulated by them.
[78] I am completely satisfied that the documents tendered through Ms Harman and Ms G were representations of the applicant’s Facebook page and her list of friends on that site on the dates the witnesses attested to having printed the screenshots.
[79] Moreover I am satisfied, on all the evidence before me, that the students listed as friends on the applicant’s account were either invited by her to be friends or accepted by her as friends. I do not accept any suggestion that the students’ names were placed on that site by an unknown hacker. Contrary to the submissions made on the applicant’s behalf there is no evidence before me that hacking of Facebook accounts for the purpose of adding uninvited friends is, or was in 2009, either prevalent or simple. I accept the evidence of Mr Campbell that the only way in which a friend could be added to a Facebook site in August 2009, and today, is if someone with the correct user name and password accepted the person as a friend.
[80] In my view the suggestion that an unknown person hacked the applicant’s Facebook account for the purpose of adding students to her friends’ list without her knowledge is not credible. One of the students on the friends’ list was BL, who had indicated on or about 17 August 2009 that the applicant had communicated her intention to visit the school “through Facebook”. Given that this claim was made well before the applicant’s visit to the school I find it persuasive evidence that the applicant both had students as her Facebook friends and communicated with the students via that medium. Given that BL was a student listed as the applicant’s Facebook friend on the list sighted (and produced) by Ms Harman and Ms GI am satisfied of the fact that BL told Ms L of the applicant’s intention to visit the school. That fact, together with the fact of the applicant’s visit one week later, is sufficient evidence for me to be satisfied, on the balance of probabilities, that the applicant had communicated with BL through Facebook.
[81] Despite the submissions put for the applicant I draw no adverse conclusions from the respondent’s failure to call as witnesses the Year 8 Students on the applicant’s friends’ list. The reasons advanced for not involving the students are both cogent and responsible. The suggestion that they should be called to give evidence in a matter relating to the discipline of a teacher is, in my view, both irresponsible and shows poor judgment. I can only hope that the applicant, as a teacher, was not supportive of the submission made by her representative that the children be called. In any event there is sufficient evidence before me to satisfy me that the allegation has been proved to the standard required, without the necessity for the further involvement of children in the matter.
Allegation 2
[82] I am satisfied, on the evidence given by the applicant herself in the proceedings before me, that she visited W School on 24 August 2009 and by her visit to Ms L’s classroom disrupted the teaching of that class. How much of a disruption that visit may have caused is not the subject of the allegation. Given the applicant’s own evidence about the visit I am satisfied that teaching ceased and that students interacted with the applicant.
[83] On the applicant’s own evidence she had not sought her principal’s permission to visit the school. She did not sign the visitor’s book at the school.
[84] The extent of the disruption caused by the applicant’s visit is of little consequence. As a teacher she should have been aware that to make an unannounced visit to her former class may have caused difficulties for the current teacher. She admitted as much during her evidence. She should not have made the visit without seeking prior permission from Ms L and she should not have disrupted the teaching of that class, given that she had no authority to be making the visit to the school at the time.
[85] Clearly the second allegation against the applicant is made out on the evidence.
Allegation 3
[86] I have found, on the balance of probabilities, that Allegation 1 is proven and that the applicant in August 2009, had as Facebook friends a number of students of WSchool, who had formerly been in her class at that school earlier in 2009. I am also satisfied that the applicant not only knew that those students were listed as her friends on her Facebook account but that she was instrumental in them being so listed. I am satisfied that she advised the student BL, through Facebook, of her intention to visit the W School. In all these circumstances I am satisfied that when the applicant denied in her interview with Mr Whitton and Ms Harman that she had ever had students from W School listed as friends on her Facebook page, she was deliberately telling an untruth.
[87] The applicant has compounded her misconduct in lying to Ms Harman and Mr Whitton in September 2009 by reiterating that lie in her statements to the appeal panel and in her evidence, on oath, in these proceedings.
[88] I am satisfied, on the balance of probabilities that Allegation 3 has been made out on the evidence.
Conclusion
[89] I find, on the balance of probabilities, that each of the allegations made against the applicant, as set out in paragraph [2] above, is proved.
[90] It was the submission of the respondent that if I found that the allegations against the applicant were made out I should confirm the penalty imposed by the delegate. I accept the submission and determine that the penalty imposed by the delegate and confirmed by the Chief Executive should stand.
[91] In my view the penalty imposed by the delegate was an appropriate response to the applicant’s conduct in communicating with students through Facebook and disrupting Ms L’s class. The penalty might even be considered lenient in light of the final warning issued to the applicant in December 2008 and her dishonesty throughout the investigation and subsequent proceedings.
COMMISSIONER
Appearances:
Mr D Lander for the applicant
Mr G McCarthy, of Counsel, for the respondent
Hearing details:
2011.
Canberra
October 19, 20
Final written submissions:
Applicant: 31 October 2011 and 2 December 2011
Respondent: 28 November 2011
1 Section 739 Fair Work Act 2009
2 Note: In this decision, for cogent privacy reasons, a number of individuals have been are referred to by the first initial of their last name only.
3 Applicant’s submissions of 30 March 2011 at p.4
4 Note: In this decision, at the request of the respondent, and for cogent privacy reasons, students are referred to by initials only.
5 Exhibit R1 p139
6 Exhibit R2
7 Exhibit R3
8 Exhibit R1 page 100
9 Exhibit R3
10 Exhibit R3Annexure A
11 Exhibit R3 Annexure B
12 Exhibit R3 Annexure D
13 Exhibit R3 Annexure G
14 Exhibit R5
15 Exhibit R6
16 Exhibit R3
17 Exhibit R7
18 Exhibit R3Annexure D
19 (1959) CLR 298
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