DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chris Adams
v
Department of Education and Training
(U2017/1402)

Application for an unfair dismissal remedy.

[1] Mr Chris Adams alleged the termination of his employment on 18 January 2017 by the Department of Education and Training was unfair.

Permission to appear

[2] Mr Peter Hull, a legal practitioner sought permission to appear for Mr Adams and Mr Brendan Avallone of Counsel sought permission to appear for the Department. Mr Hull submitted that Mr Adams would not be able to represent himself effectively and it would be unfair not to permit him to be represented. Mr Hull opposed the Department being given permission to appear. He submitted that there was a significant disparity in resources between the parties and the Department had internal lawyers who could represent it effectively. Mr Avallone did not oppose Mr Hull being given permission to appear but submitted that the Department should be given permission to be represented by him. He submitted that the Department had filed, with its material, an application for permission to appear. Mr Hull, despite communicating with Mr Avallone in the preceding week, had not put the Department on notice that he was opposing permission being granted. Had he done so, internal lawyers could have been briefed. Mr Avallone submitted that the matter involved significant complexity and it would enable the matter to be dealt with more efficiently if he were granted permission to appear. Otherwise the matter would need to be adjourned.

[3] I granted both parties permission to be represented. I accepted that Mr Adams could not represent himself effectively. I further considered that the matter involved some complexity and that permitting representation would enable the matter to be dealt with more efficiently. There was significant material filed by the Department. There were potentially legal arguments about its admissibility. Further Mr Hull had notified that he wished to call a significant number of witnesses to speak to Mr Adams’ character and skills as a teacher. There were potential arguments about the relevance of such evidence. I also consider it would have been unfair to deny the Department permission in circumstances where Mr Adams was represented by a legal practitioner who had carriage of this matter since before the dismissal and who had detailed knowledge of the matters to be determined. In exercising my discretion I have had regard to the fact that Mr Hull did not advise the Department or the Commission prior to the hearing that permission was opposed.

Adjournment application

[4] On 18 May 2017, Mr Hull sought an adjournment of the proceeding because of the large amount of material filed by the Department including The Royal Commission into Institutional Responses to Child Sexual Abuse Interim Report and the Betrayal of Trust Inquiry. Mr Hull submitted that he had not had sufficient time between the filing of the material and the hearing date to take instructions.

[5] The Department opposed the adjournment application and noted that Mr Hull had previously sought an adjournment of the matter which had been rejected by Deputy President Clancy. The initial directions in this matter were issued on 22 March 2017. Mr Adams’ material was due to be filed by 10 April 2017; the Department was due to file on 1 May 2017; and the hearing was due to commence on 22 May 2017. At the request of Mr Adams, and with the consent of the Department, those dates were varied and he was due to file by 24 April 2017 and the Department by 15 May 2017. Again at Mr Adams’ request, and with the consent of the Department, the dates for compliance were altered to 26 April 2017 and 17 May 2017 respectively. Mr Adams complied with those directions, save and except that he filed a further witness statement on 17 May 2017. The Department submitted that any difficulty faced by Mr Adams was of his own making. Further, except for the documents set out above, Mr Adams was familiar with the material relied upon by the Department. In its email of 18 May 2017, the Department submitted that “the Report is referred to by way of context regarding the respondent’s focus on the provision of child-safe environments and the requirements of members of the Victorian teaching service. The respondent is not intending to take any of the witnesses to any specific findings of the Report, and they are not matters in relation to which the applicant needs to provide instructions. Their relevance, or otherwise, can be a matter of closing submissions.”

[6] I advised the parties that I would consider the adjournment application at the commencement of the hearing and at that time the application was pressed.

[7] At the hearing, Mr Avallone advised that the Department would not be tendering these documents. He submitted that there would be significant inconvenience to the Department and its witnesses if the matter were adjourned.

[8] I did not grant the adjournment. While there was only a short time between the filing of the Department’s material and the hearing, Mr Adams was familiar with the material relied upon by the Department. A copy of the investigator’s report which detailed the allegations was provided to Mr Adams on 6 June 2016. While that did not contain the attachments, on 29 September 2016 in response to a request from Mr Hull, a copy of the attachments were provided. Further, on 18 January 2017, Mr Adams received a letter of termination which included the final findings of Mr Stephen Gniel, the Regional Director of the South Eastern Victorian Region, who made the decision to terminate Mr Adams’ employment. In those circumstances, I did not consider that Mr Adams would be prejudiced if the matter proceeded.

Further witness evidence

[9] Mr Adams attached to his witness statement fourteen letters of support from colleagues and parents of students. On 18 May 2017, he advised that he wished to call ten of the signatories to give evidence and would seek to tender the letters signed by ten persons who would not be able to attend the hearing. He further advised that he wished to call viva voce evidence from Mr Greg Richards, an expert witness, “to provide an opinion on the academic development in persuasive writing of the cohort at Caulfield Junior College taught by Mr Adams. … he has examined the Naplan results for CJC over the period 2012 to 2015.” He further advised that he wished to lead additional evidence about the “Earn & Learn” program from Mr H who co-authored one of the letters. He further advised that he wished to call Ms T to give evidence about the impact of Mr Adams’ teaching on her daughters and the events of November 2015.

[10] By email dated 18 May 2017, the Department objected to the calling of Mr Richards without the earlier provision of an expert report. It objected to expert evidence being called viva voce. This matter was resolved by the Department not objecting to the Naplan results being tendered. 1 The Department advised that in relation to those who had provided letters it required them for cross-examination. It reserved its position in relation to the other witnesses but asked that if there were witness statements they should be provided to the Department.

[11] At the hearing, Mr Hull further advised that he also wished to call Mr M who was the School Council President at the time.

[12] I asked Mr Hull the relevance of the evidence to be called from the letter writers as they gave no evidence of the alleged incidents and their letters merely expressed their opinions. Mr Hull indicated that he wished to call further evidence in chief from the witnesses. I ruled that given the directions he would not be permitted to call further evidence in chief from the witnesses. No witness statements had been prepared and there was no explanation as to why this had not occurred. As the Department did not object to their inclusion as attachments to Mr Adams’ statement, they would be before me but if he wished to call them he would be limited to what was in the letters. Mr Hull decided in light of that ruling that he would not call those persons.

The background

[13] Mr Adams taught year 4 students at Caulfield Junior College. He commenced teaching in 2006 and started teaching at Caulfield Junior College in 2010 and obtained a permanent role at the beginning of 2014. Caulfield Junior College has an autonomous French speaking school operating on its premises which teaches a French curriculum with an independent French Principal. The two classes Mr Adams taught in 2015 were taught alternative weeks in French and English. 2 Mr Adams was, prior to November 2015, well regarded by his colleagues, the children and their parents.3

[14] On 5 November 2015, the Principal, Ms Amanda McLean received complaints from parents that Mr Adams had told an inappropriate story to the children. Further, the parents complained that Mr Adams had told the children not to tell their parents. 4 On 6 November 2015, Ms McLean received further complaints from two other parents namely that:

● as part of the Earn & Learn program conducted by Mr Adams he had asked a student on a date and asked her to show him how to dance.

● Mr Adams had told a story about someone having a baby.

● Earn & Learn centred around Mr Adams and that the kids had badges with Mr Adams’ face on them.

● as part of Earn & Learn, Mr Adams had paid $200 Earn & Learn dollars for a massage. 5

● one parent also told Ms McLean her child’s version of the ‘Wedding Story’. 6

[15] On the same day, Ms McLean met with one of the original complainants who alleged that Mr Adams:

● sits on the couch and asks students to lift him from the couch;

● pushes girls onto the couch; and

● pushed things off a student’s desk at the start of the year and made the children pick them up.

[16] On 6 November 2015, Ms McLean met with Mr Adams and put some of the complaints to him, in particular:

● inappropriate storytelling;

● asking a student for a date and asking her to dance as part of Earn & Learn;

● Earn & Learn being all about him and paying girls $200 for a massage; and

● letting kids buy games using tokens.

[17] Ms McLean further advised that there were concerns about him telling students not to tell their parents about the stories and that some parents saw this as an inappropriate use of power and manipulation.

[18] After meeting with Mr Adams, Ms McLean provided him with a letter detailing the

complaints. 7

[19] Ms McLean subsequently received further complaints from parents namely:

● a student was told if she massaged Mr Adams at lunch time she would get more Earn & Learn points;

● Mr Adams had in the previous year called a child ‘cutie’ and ‘hottie’ and asked if he had a girlfriend and said “someone like him would have lots of girlfriends”;

● there was a role play involving a cool guy and a nerd which was videoed;

● Mr Adams had placed his hand around a child’s hand and kissed it; and

● Mr Adams asked if a child had a boyfriend. 8

[20] On 10 November 2015, Ms McLean met with Mr Adams and advised him of the further complaints and sought his response. 9

[21] On 12 November 2015, Ms McLean received a further complaint that Mr Adams had cried in front of the children. 10

[22] On 12 November 2015, Ms McLean advised Mr Adams of her findings and that she would appoint someone to be his mentor. She advised him that a repeat of the conduct may result in action under Division 9A or 10 of the Education and Training Reform Act 2006. 11

[23] On 17 November 2015, Ms McLean advised the parents of the outcome of the investigation. However some of the parents did not accept Ms McLean’s decision and pressed their complaints with the Police and the Department. 12

[24] On 19 November 2015, Ms McLean received a complaint from parents about a story, which they considered inappropriate, written by their child and that they considered that this resulted from Mr Adams’ teaching. 13

[25] On 23 November 2015, Ms McLean referred Mr Adams for an independent medical examination to determine if he was fit to teach. 14

[26] On 30 November 2015, Ms McLean received further complaints from parents about their child’s writing which featured Mr Adams. 15

[27] On 1 December 2015, Ms McLean met with other parents who were concerned about the content of their child’s writing. 16

[28] On 16 December 2015, Ms McLean received from a parent a YouTube link to the “top 10 Jean Claude Van Damme fight scenes” which Mr Adams had allowed her child to watch as a reward for having finished their homework. 17

[29] On 18 December 2015, Ms McLean received another complaint from a parent about the content of her child’s writing and questioned Mr Adams’ responsibility. 18

[30] On 14 January 2016, Mr Adams was declared fit to teach and was assessed as not being a threat to the community or a risk to the health and safety and well-being of others. 19

[31] On 1 February 2016, the Department advised Mr Adams that, as a result of the complaints dealt with by Ms McLean and the subsequent complaints, it would conduct an inquiry under Division 10 (Misconduct) of Part 2.4 of the Education and Training Reform Act 2006. As a result Mr Adams was suspended on pay. 20

[32] An investigation was undertaken and a copy of the investigator’s report was provided to Mr Gniel. 21 On 6 June 2016, Mr Adams was provided with a copy of the report and provided with an opportunity to respond to the report.22 Mr Gniel then considered the report and on 6 September 2016 provided Mr Adams with his preliminary views and provided him with an opportunity to respond.23 On 18 January 2017, Mr Gniel advised Mr Adams that he had decided to terminate his employment and he was paid four week’s pay in lieu of notice.24

The reasons for the dismissal

[33] Mr Gniel determined that Mr Adams had:

[34] While allegation 1.5 was found by Mr Gniel not to be substantiated, the Department relied on one of these allegations in support of its submission that there was a valid reason for the dismissal. That allegation (1.5.3) was that during one interview in the Earn & Learn program in 2015, Mr Adams (performing the role of the interviewer) asked a female student (performing the role of the interviewee) a question along the lines of “all government officials are having dinner together on Fridays would you like to join us?” The Department alleged that Mr Adams originally told Ms McLean, the Principal of Caulfield Junior College, that he would sometimes ask questions like “how old are you?” and “do you want to go on a date?” during Earn & Learn interviews. 26

The evidence

[35] Mr Adams gave evidence on his own behalf and relied on documents prepared by him or his representative in response to the allegations, the investigator’s report and Mr Gniel’s preliminary findings. In addition, Mr Adams relied on letters of support from colleagues and parents that were attached to his witness statement.

[36] Mr Adams also called Ms X, a parent of one of the children in his class, to give evidence of what she was told by her child about what occurred on 4 November 2015. As well, she gave evidence of the controversy that arose in the school community about the complaints made against Mr Adams.

[37] The Department relied on the evidence of Ms Vicky Phyland who was at the relevant time the Assistant Principal at Caulfield Junior College; Mr Tim Douglas who had been the Principal at Caulfield Junior College; Ms Debbie Schmauder who had been an Assistant Principal at Caulfield Junior College from 2012 to 2014 and Ms McLean who was the Principal during 2015 and 2016.

[38] No direct evidence was called by the Department about the allegations. While the investigator’s report was before me it was not tendered as to the truth of its content. By which, I mean the statements taken by the investigator and in one case the Police, which were attached to the investigator support were not tendered as evidence of the conduct.

[39] As a consequence, to support its submissions the Department relied on records of interview conducted with Mr Adams by Ms McLean and the investigator as well as communications between Mr Adams and/or his representative and Ms McLean and Mr Gniel.

[40] I will now consider the evidence before me to determine whether the conduct alleged by the Department occurred. It should be noted at this point that Mr Hull submitted that some of the allegations were allegations about Mr Adams’ performance as a teacher and not his conduct. I will address this latter in the decision.

Allegation 1.1.1

[41] Mr Adams operated a reward system in his classroom whereby students were rewarded for good behaviour by being given tokens. Students could use the tokens to buy a special treat. Mr Adams had a practice of, at the end of some school days, telling students a silly story. The students were able to use their tokens to have a character in a story named after them. It was Mr Adams’ evidence that this was the most popular and sought after purchase. 27

[42] It was agreed by the parties that I could accept Mr Adams’ and Ms X’s evidence about the story.

[43] On 4 November 2015, Mr Adams told the following story:

It “involved a couple being married by a priest who had to suddenly interrupt the ceremony because he urgently needed to go to the toilet. When he got there, however he couldn’t go. One of the other characters, a girl at the wedding also had to go to the toilet. She mistakenly went into the boys’ toilet only to find and surprise the priest. He swung around in shock but was unable to stop himself and accidentally wee’d on the girl’s dress, to everyone’s embarrassment and discomfort ….. A jumble of silly events followed, along the lines that the marriage was finalised but the groom got drunk at the reception and passed out and his bride decided she would have rather married his father. The whole affair then came to a hurried end of mayhem, murder and self-strangulation.” 28

[44] Ms X said her child (Y) told her the following:

“there was a wedding involving a couple of kids in the class at which Y was officiating as the priest. In the middle of the ceremony Y had to go to the toilet but could not go so while he was trying one of the girls was sent to look for him and surprised him just as he was about to go and he accidently sprayed some pee on her dress. They then went back to the wedding and everyone went back to the groom’s house afterwards and there was some drama and they were all arguing and the bride declared her love for the groom’s dad and the groom got depressed and then everyone died.”

[45] There is no dispute that this is the story told by Mr Adams.

Allegation 1.1.2

[46] Mr Adams was interviewed by the investigator. He was provided with a record of the interview and provided with an opportunity to make corrections. In his interview Mr Adams said that he does recall this but it was not about giving birth or procreating it was just one of the students who was an adult in the story having a baby. 29

[47] In his response to the investigator’s report Mr Adams said that “the premise of the story was not the student/character “having a baby.” In the story, one character was an adult female, the other character, was her child. There was no reference to the character “having a baby.” 30 In his response to Mr Gniel’s preliminary view it was said that “he told a story about an adult, as was ordinarily the case with the stories he told, albeit named after one of the children, who had a baby.”31

[48] While there was some initial confusion as to what this allegation involved, Mr Gniel clarified that he did not intend to convey in his preliminary view that the character was a grade 4 student who had a baby. He accepted that Mr Adams told a story about an adult with the student’s name having a baby. 32 It is clear, from the admissions of Mr Adams that he told a story about an adult with the student’s name who had a baby.

Allegation 1.1.4

[49] In his interview with the investigator Mr Adams said he never told this story and found it quite disgusting. 33 There was no direct evidence before the Commission that Mr Adams told this story. I am therefore unable to conclude that this conduct occurred.

Allegation 1.1.5

[50] Mr Adams was not questioned about this allegation by the investigator. In his response to the investigator’s report he said that he had no recollection of that occurring. 34 There was no direct evidence before the Commission that Mr Adams told this story. I am therefore unable to conclude that this conduct occurred.

Allegation 1.2.1 -1.2.4

[51] Mr Adams did not deny the content of these written pieces. I am therefore satisfied that this conduct occurred.

Allegation 1.2.5

[52] Mr Adams concedes that he showed the children the YouTube clip. I am therefore satisfied that this conduct occurred.

Allegation 1.2.6

[53] Mr Adams agreed that he made the video. It was his evidence that the children wrote the scripts and that the children volunteered to play the characters. 35 Further, Mr Adams said that the parents were given a copy of the video in 2014 and nobody had raised a complaint about it with him.36

[54] I am therefore satisfied that the conduct occurred. However given the evidence of Mr Adams and in the absence of any expert evidence to that effect I am not satisfied that the material contained adult themes that were not appropriate for children aged 9 and 10.

Allegation 1.2.7

[55] There was no expert evidence before the Commission on which I could find that the children’s stories contained high levels of violence or that this was a result of Mr Adams’ teaching. I am therefore not satisfied that this allegation has been substantiated.

Allegation 1.3

[56] In his evidence in chief, Mr Adams said that “at the beginning of each year I made a particular point of saying to the children in the class that because my stories were all make-believe and silly nonsense, they should not be taken outside the classroom. I did this because I thought that was a sensible precaution, to reinforce the point that the stories are made up fun and shouldn’t be retold in the schoolyard where they might take on a different character.” 37 He said it was never his intention that the children keep anything from their parents but he understood that it might be interpreted that way.38

[57] Ms McLean raised this allegation with Mr Adams on 6 November 2015. She took notes at that meeting. She told him that there was concern around him telling children not to tell their parents about the stories. He said that at no stage did he tell the children they would get into trouble. 39

[58] A further meeting was held that day and in response to the allegation that he told the children not to tell adults, Ms McLean’s notes recorded Mr Adams’ response as follows: “when I asked them at the start of the year I asked them if they liked it. If parents heard this out of context, they will be upset by it.” 40 Ms Phyland’s notes of the same meeting record him saying that he said something along the lines of: “if adults hear this and don’t know what is behind it they won’t know/like it.”41

[59] In his response to the initial allegations put by Ms McLean, Mr Adams said “early in the year, when I first told a story, I stated something on the lines of ‘you know that these stories are not true and are just meant to be silly fun? You should probably not re-tell the story to anyone, because they may not like them and I will be told not to tell them anymore.” 42

[60] In his interview with the investigator Mr Adams said as follows in response to this allegation:

“The context of that was that, OK in the story you may have been this guy and you may have been this guy and this happened to you but that’s not true of course. And what I am saying these stories are not true. That’s not how I think about you, it is not how others think about you blah, blah blah. So as soon as we leave this room I don’t want you talking about the stories any more in case you go, ‘ha, ha, ha you were the nerd or ha, ha, ha you were the whatever.’ So I said that once at the start of the year and did not say it again. At no stage did I mention the words ‘you’ll have to do work as a punishment if you.’ Whoever mentioned that – it’s just ridiculous. Never said, “don’t tell your parents.” Never said, “don’t tell the Principal… That’s not accurate.” He also said that when saying that I said when you leave the classroom don’t mention the stories to anyone like don’t talk about it in the yard, don’t talk to your parents – I meant like that sort of thing… when you leave the classroom the story’s done. That’s what I was trying to say.” Mr Adams accepted that he gave the same speech at the beginning of each year. Mr Adams said that some of the students told their parents about the story all through the year. 43

[61] In his response to the allegations to the investigator, Mr Adams said “only once, at the start of the year, I told the students, don’t discuss these stories outside of the classroom, for the simple reason that they are meant to be silly, humorous fun and I didn’t want the children making fun of each other based on their roles in the story. This was never discussed again during the year. At no stage did I ever threaten the students that they would be forced to do more work if they talked about the stories outside the classroom.” 44

[62] It is clear that there are some inconsistencies in Mr Adams’ account of what he said to the children. Mr Hull submitted that his earlier statements were less reliable as they were done in the context that Mr Adams had decided to accept the complaints, admit his responsibilities and move on. While that may have been the case, I doubt that Mr Adams made statements to Ms McLean that were not true. I therefore accept her evidence which is supported by Ms Phyland that Mr Adams did tell the children that if adults found out about the stories they would have to stop.

[63] I am satisfied that Mr Adams did tell the children not to tell anyone about the stories and that if they did, they would have to stop.

Allegation 1.4.1

[64] Mr Adams does not deny that he accepted a massage from two students. However he denies the allegation and says that there is no absolute rule about physical contact between teachers and students. It was submitted that physical contact is permitted if there is a valid reason.

[65] In his initial response to this allegation, he said that when the student asked if he wanted a massage he stupidly said yes. He acknowledged that this was totally inappropriate. 45 In his interview with the investigator he acknowledged that it happened but said it was just that the student had businesses and he sought to support their businesses by buying goods and services using tokens. It was actually Earn & Learn money rather than tokens. In this case a business with a nail and massage business and he did not want his nails done so he had a very short massage which he paid for with tokens as part of the Earn & Learn program. He said the only part of his body that was massaged was the shoulder – no other part of his body. He acknowledged that accepting the massage from the students was wrong.46

[66] I am therefore satisfied that the conduct occurred.

Allegation 1.4.2

[67] In his initial response to Ms McLean’s allegations he described this incident as arising in an interview with one of the students. He asked her what ideas she had for the country. In her response, she said something to do with dance/disco. He asked her could she teach someone to dance who had no idea how to. There was a quick ten second twirl and I said something like “you’re a genius, you are an amazing teacher”. 47 In his interview with the investigator, he denied putting his arm around the student.48

[68] It is clear that Mr Adams held the student’s hand as she twirled around. However I am not satisfied on the evidence before me that he placed his arm behind her waist. Nevertheless he engaged in physical contact with the student. To the extent that that contact was relied upon, I am satisfied that it occurred.

Allegation 1.4.3

[69] In response to the allegations, he denied that the students could use tokens to sit next to him on the couch. He said that the tokens were paid to sit on the couch, not specifically to sit next to him. If they sat next to him there would be a significant distance between himself and the children. 49 He maintained this response in his interview with the investigator.

[70] There was no evidence before the Commission to support this allegation. I am not satisfied that this conduct occurred.

Allegation 1.4.4

[71] In his response to the allegations, Mr Adams denied ever kissing a student’s hand. 50 Ms McLean gave evidence that Mr Adams acknowledged kissing a student’s hand.51 While this was not recorded in Ms McLean’s notes, Ms Phyland’s meeting notes make reference to “kissing girls hands- CA acknowledged.”52

[72] In his interview with the investigator he said this never happened. He did however say that he “may have grabbed her hand but I don’t recall the rest of that happening… I don’t remember what I said or may have said.”

[73] Ms McLean attached her notes of her conversation with the parent. That note recorded the complaint as “puts his hand on the child’s hand and kisses his own.” 53 I am therefore satisfied that there was never an allegation that Mr Adams kissed the child’s hand, rather the allegation was that he kissed his own hand whilst holding the child’s hand.

[74] I am satisfied that this conduct occurred. I am satisfied that Mr Adams acknowledged this in his meeting with Ms McLean.

Allegation 1.5.4

[75] Ms McLean gave evidence that she raised this complaint with Mr Adams at the meeting on 6 November 2015 he admitted asking the question “do you want to go on a date?” This is reflected in the notes Ms McLean took at the time. 54 Similarly, Ms Phyland recorded in her notes that Mr Adams said in the interview “maybe we could go on a date”.

[76] In his response to the allegations, Mr Adams said that during the interview he would ask students what their hobbies were. At the conclusion he would ask both boys and girls in a completely joking manner the following: “all the government officials have dinner together on Fridays would you like to join us?” I didn’t mention the word ‘date’. 55 He reiterated this in his interview with the investigator.

[77] I am satisfied that Mr Adams did admit to Ms McLean that he asked the student on a date as a part of the interview. I am satisfied that the notes, while not a verbatim account, record accurately the matters discussed and Mr Adams’ response. I am therefore satisfied that the conduct occurred.

Allegation 1.6.1

[78] In his initial response to this allegation Mr Adams said that the children brainstormed different country names which he wrote on the board. They were then narrowed down to six and the students voted for the name and they chose Chrisrael. 56 The students were given an option of whether they wanted to create the money, the badge, the pledge, the national anthem. They had complete control of how this was done. It was their decision to include him as a teacher on the flag and write about him as part of the national anthem.57 In his interview with the investigator he repeated this explanation and in response to the suggestions that the children should have been in charge of this country he said that he felt that as he was the teacher he should be in charge and therefore it was appropriate that he should be the Prime Minister.58

[79] There was no direct evidence from any other witness about how Chrisrael came about. There was no evidence that students were required to wear badges bearing Mr Adams’ image nor that they were required to pay a fine if they didn’t.

[80] I am therefore not satisfied that the allegation is substantiated.

Allegation 1.6.2

[81] The video was not in evidence before the Commission. Mr Adams, in his initial response to the allegation, said that the students are in charge of the choreography of the videos. He accepted that in one scene for a few seconds they are treating him as a key figure. Mr Adams said he was not aware at the time that a student was going to put her hands on his shoulders otherwise he would not have allowed it. 59 In his interview with the investigator he said that all the parents were given a copy of this video last year and none had raised any issues or concerns.60

[82] I am therefore not satisfied that this allegation is substantiated.

Allegation 1.8

[83] Mr Adams acknowledged that he cried in front of the children. He said that Ms McLean had told the students why their favourite programs had been removed. After she left, one of the children apologised to him in front of the class because he felt that the class’s poor behaviour had been the reason why these programs had been stopped. When he tried to explain to the children that this was not their fault and that none of what had happened was their fault, he became emotional. 61 He repeated this explanation in his interview with the investigator.

[84] I am therefore satisfied that this conduct occurred.

Previous incidents

[85] Ms Phyland gave evidence of meetings she attended when Mr Adams had been spoken to by Mr Tim Douglas, the previous Principal. On one occasion she said it was alleged that Mr Adams had referred to a child using a French term of endearment which roughly translated as ‘sweetheart’. Mr Douglas advised Mr Adams that the behaviour was not appropriate. 62 On another occasion an allegation was made that Mr Adams was tutoring a student outside of school hours and the student felt uncomfortable. She recalled Mr Douglas telling Mr Adams that as a male teacher he had to exercise considerable care in respecting the boundaries between himself and his students.63

[86] Mr Douglas gave evidence that there were two other allegations about Mr Adams. One involved playing with a female student’s hair and the other involved Mr Adams having a female student sit on his knee. He recalls telling Mr Adams not to do things like this because it could cause a lot of trouble. He said he gave him a clear verbal warning. He said that he did not place anything on Mr Adams’ file about these allegations or the verbal warning. 64

[87] Some 12 to 18 months later, some teachers reported some inappropriate conduct by Mr Adams and raised it with the Assistant Principal. Mr Douglas does not recall the nature of these incidents but he recalls that he gave Mr Adams a further reprimand and told him not to behave in that manner and there would be serious consequences if he continued to do so. 65

[88] Ms Debbie Schmauder was the Acting Assistant Principal at the Caulfield Junior College in 2012 and prior to that was a Leading Teacher for grades 3 and 4. It was her evidence that during team meetings there would be regular discussions about the need for teachers to be careful. Even if a student was upset, teachers were told not to comfort them by giving them a hug or making physical contact with them and if a teacher found themselves alone in a room with a student they should try to stand in the doorway to enable them to be visible to someone else. 66

[89] Ms Schmauder gave evidence that she discovered Mr Adams sitting in an empty classroom with a female student after hours with the door closed. She asked the student to leave the classroom and asked him what he was doing. Mr Adams said he was tutoring the student. Ms Schmauder told him that it was completely inappropriate to be sitting in a classroom with any student after hours with the door closed and no one around. She also asked him if he was aware that he needed the permission of his Principal to undertake other work outside of his teaching position. She raised this issue with Mr Douglas and Ms Phyland and she attended a meeting at which Mr Douglas explained to Mr Adams that he should not be tutoring students from the College and that he was placing himself in a tricky situation by being in a classroom with a student on his own. They discussed why this was inappropriate and risky behaviour. 67

[90] Ms Schmauder recalls another incident in which parents of a female student complained about a comment Mr Adams was alleged to have made about how good the student looked in her bathers. Ms Schmauder attended a meeting with Mr Adams and Ms Phyland where there was discussion about what is appropriate for teachers to say to students and that he even if he did not mean anything inappropriate by the comment, he needed it to be very careful particularly in his position as a male teacher, as comments can be misunderstood and misinterpreted by students and parents. 68

[91] She recalled a further complaint from a parent who said that Mr Adams made their daughter feel uncomfortable. It was alleged that he had flicked her hair and massaged her shoulders. Ms Schmauder was not involved in any follow-up of this complaint.

[92] Mr Adams said in response to the allegation that he had inappropriately used the French word for ‘hot’ that “yes, just seeking to define that, saying the word, “I feel hot”, but if you put other words in front of it can change the meaning of that phrase completely.” 69

[93] Mr Adams denied telling a student she was a bikini freak. But he accepted that in relation to these incidents he had been spoken to about professional boundaries. 70

[94] Mr Adams recalled Ms Schmauder finding him tutoring a student alone in a classroom. 71 He recalled Ms Schmauder speaking to him about this but not Mr Douglas. While he does not recall any conversation about professional boundaries, he did recall her telling him he should not be alone in a classroom with a student.72

[95] Mr Adams also recalled the complaint about comments he was alleged to have made about a student in her bathers. Mr Adams said he denied this at the time. He recalled a conversation with Mr Douglas and that Mr Douglas told him he needed to be careful about comments to students. 73

[96] Mr Adams also recalled a complaint about rubbing or flicking a girl’s hair. He said did not think it was rubbing. He said Mr Douglas spoke to him and told him he should not have been in that situation. He also recalled that boundaries were talked about. 74

[97] In his interview with the investigator Mr Adams denied that he had ever had a child sitting on his lap. 75 In that interview Mr Adams said that a couple of lapses of judgement over a seven year period was not unreasonable.76

[98] Apart from Ms Schmauder, the witnesses’ memories of these events are vague. There was no investigation of the allegations at the time and there was no suggestion of any impropriety on the part of Mr Adams. So much was evidenced from the fact that no formal warning was given to Mr Adams about any of these incidents. Interestingly there is no evidence that Ms Phyland advised Ms McLean during her investigation of the complaints of these earlier incidents and discussions.

[99] While I make no findings in relation to these allegations, I am satisfied that on more than one occasion Mr Adams was spoken to about the need to be careful in his relationships with students, in particular he was spoken to about appropriate professional boundaries. So much was accepted by Mr Adams. 77

Harsh, unjust or unreasonable

[100] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[101] Mr Hull either conceded or accepted that it was open for the Commission to find that there was a valid reason for dismissal arising from each of the following allegations:

1. the story told on 4 November 2015; 78

2. telling children not to tell others about the stories; 79

3. taking a child’s hand in his hand and kissing his hand; 80

4. showing the children the Van Damme video clip. 81

[102] Mr Hull submitted that twirling a student as she danced as part of the Earn & Learn program or permitting two students to massage Mr Adams did not constitute conduct that provided the Department with a valid reason for dismissal. In relation to all the performance issues, it was submitted that none of the allegations constituted a valid reason for the dismissal.

[103] In relation to the massaging and twirling, Mr Hull noted that the Victorian Institute of Teachers Code of Conduct prohibited teachers from touching students without a valid reason. He submitted that in relation to the massage the contact was initiated by the students as that was the service they were offering. Mr Adams was buying services from each of the students’ businesses and therefore there was a valid reason for the touching. Similarly, as part of Earn & Learn, Mr Adams was interviewing a student and when the student was asked what extra she brought to the position she referred to dancing and all Mr Adams did was ask the student if she could show him how to dance and he took her hand whilst she did a twirl. Again it was submitted that there was a valid reason for the touching. 82

[104] I do not accept this submission. I do not accept that there was a valid reason for the physical contact. In both cases Mr Adams had a choice. He could have declined to accept the massage and not taken the student’s hand. There was no submission that Mr Adams was unaware that he should not have physical contact with a student. I am therefore satisfied that on both occasions he breached his obligations as a teacher. Had these incidents stood alone I would not have found that they constituted a valid reason for his termination. However when taken with the other conduct I am satisfied that this conduct supports a finding that there was a valid reason for the dismissal.

[105] I am also satisfied that holding a student’s hand whilst kissing his own hand involved unnecessary physical conduct. While Mr Hull submitted that the context in which this conduct occurred is not known, it is difficult to imagine any circumstance in which such physical conduct was for a valid reason. I am satisfied this conduct occurred and supports a finding that there was a valid reason for the dismissal.

[106] While I was satisfied that Mr Adams did ask a student on a date was part of an interview in Earn & Learn, I am not satisfied that this conduct provided the Department with a valid reason for dismissal nor do I consider it supports a finding that there was a valid reason for the dismissal.

[107] Mr Hull submitted that crying in front of the class was not a valid reason for the dismissal 83 and I agree. This was a difficult time and I accept Mr Adams’ evidence of the circumstances that led him to cry in front of the children. I am not satisfied that crying in front of the class in those circumstances was of itself a valid reason for the dismissal nor contributed to there being a valid reason for dismissal.

[108] Of all the incidents, I consider his admission that at the commencement of each year that he told students stories he had made up, he told the students not to tell anyone about the stories, was a serious breach of his obligations as a teacher. That conduct, it was submitted by the Department, put the children at risk and I agree. Mr Hull submitted that whilst accepting that the children might misunderstand what was said, that this conclusion would be a step too far and was speculation. I accept, and the Department did not allege, that there was any risk to the children from Mr Adams. However what Mr Adams did was legitimise children keeping secrets from others including their parents. That it was their teacher who told them to keep a secret, may have led a child to accept such an instruction from a less benign person. I accept the evidence that not all the children did as Mr Adams said but that does not diminish the seriousness of the conduct.

[109] In this matter, I am satisfied that the conduct which Mr Adams conceded provided a valid reason for the termination when taken together establish that there was a valid reason for the termination of Mr Adams’ employment. I am further satisfied that this conclusion was supported by his conduct in having unnecessary physical contact with his students.

s387(b) whether Mr Adams was notified of that reason;

[110] It was not contested that Mr Adams was notified of the reasons prior to the decision being made to terminate his employment.

s387(c) whether Mr Adams was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[111] It was not contested that Mr Adams was given an opportunity to respond to those reasons prior to the decision being made to terminate his employment.

s387(d) any unreasonable refusal by the employer to allow Mr Adams to have a support person present to assist at any discussions relating to dismissal;

[112] It was not contested that Mr Adams was not denied the opportunity to have a support person present with him in any discussions relating to the dismissal.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Adams had been warned about that unsatisfactory performance before the dismissal;

[113] The Department submitted that this dismissal was not related to performance. Mr Adams on the other hand contended that many of the matters relied on by the Department did relate to performance.

[114] It was submitted that the extent that the nature and style of Mr Adams’ teaching and the interaction with students were matters of legitimate concern, those issues should properly have been addressed as matters of unsatisfactory performance. This was how the Principal at first instance dealt with these matters. It was submitted that, in response to pressure being brought to bear by a small but very vocal group of parents, the Principal’s determination was disregarded and Mr Adams was subject to further investigation. It submitted that the further issues were almost entirely limited to Mr Adams’ teaching materials and if there was genuine concern about these further issues, then they should have been referred back to the Principal for her investigation and determination.

[115] In relation to some of the matters characterised by Mr Hull as performance matters I have not found that they were a valid reason for the dismissal or support the conclusion that there was a valid reason for the dismissal. Accordingly I do not consider this criterion to be a factor in this decision.

s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[116] Mr Adams submitted that the Department had the resources to properly and adequately deal with the issues that arose. It submitted that the Principal’s investigation of Mr Adams’ conduct was conducted in consultation with and under the guidance of the Department’s Conduct and Ethics Branch. It submitted that this should have been the end of the matter. It submitted that the Department’s decision to reinvestigate the complaints was undertaken to appease a small but organised group of complainant parents. That this investigation took almost a year resulted in unfairness to Mr Adams.

[117] The Department submitted that this submission was irrelevant to this criterion however it accepted that it was a relevant consideration under s387(h). I accept that submission. Given there was no submission that the procedures followed by the Department in effecting the dismissal were defective, it is difficult to see how these criterion have any relevance.

s.387(h) and other matters

[118] It was submitted that the process followed by the Department was unfair. Ms McLean conducted an investigation into the allegations and was satisfied that Mr Adams was not a danger to the children and that he should be warned in relation to his conduct and he should be provided with a mentor to improve his practice as a teacher. It was submitted that it was not open to the Department to reopen these complaints. To the extent that there were new complaints they should have been dealt with separately. As those complaints related to Mr Adams’ performance they should not have been treated as misconduct.

[119] It was further submitted that the process followed by the Department was unfair because of the length of time it took the Department to finalise the enquiry. During this nearly 12 months Mr Adams was left in limbo whilst his reputation was being attacked. This was particularly so given the underlying accusations of impropriety.

[120] It was further submitted that the dismissal was harsh because the gravity of the conduct was at the lower end. It was submitted that there was no impropriety and no ill intention. It was submitted that the conduct was inadvertent. Mr Hull submitted that the misconduct was not done deliberately or knowingly. It was ill advised and accidental. Mr Adams had nine years of service and was a highly effective and inspiring teacher. This was evidenced by the significant improvement in the Naplan results received by this cohort of students as well as the letters of support from parents and colleagues.

[121] It was further submitted that the dismissal was harsh because unless Mr Adams is reinstated, it will result in the secession of his career. It was submitted that it will be, if not impossible, extremely difficult for him to gain employment as a teacher.

[122] While it was accepted that Mr Adams had been spoken to about crossing the line with his students he had never been provided with a written warning about inappropriate boundaries. It submitted that the decision of the Principal was the correct decision.

[123] It was submitted that what occurred was an orchestrated campaign that was conducted to secure Mr Adams’ dismissal. It was submitted that Mr Adams was treated terribly throughout this whole episode. He was removed from his job and left in limbo for some 14 months; he was muzzled while his detractors had free range to denigrate him apparently at will; he was reported and subject to police inquiries on two occasions; he was required to undergo two assessments of his mental health; and throughout he was subjected to vilification, abuse and innuendo.

[124] The Department submitted that it was not improper for it to conduct a further investigation into Mr Adams’ conduct. In particular it relied on the fact that in reaching her conclusions Ms McLean was not aware of the incidents referred to by Mr Douglas, Ms Phyland and Ms Schmauder. Further it submitted that there were additional complaints.

[125] The Department submitted that the fact that there were divisions in the school community was irrelevant. It submitted that it received complaints and it was appropriate that they be investigated.

[126] In response to the submission that the termination was particularly harsh given its impact on Mr Adams’ career as a teacher, the Department submitted that Mr Adams is still able to teach in non-government schools.

[127] The Department submitted that in assessing whether there was a fair go all round, regard had to be had to more than the interests of the Department and Mr Adams. In this case, it submitted that regard needed to be had to the obligations of the Department to provide a child safe environment for children in Victorian government schools.

[128] In assessing whether the termination was harsh, I have to have regard to the gravity of the conduct as well as the particular circumstances of Mr Adams. I accept the submissions of Mr Hull that the investigation took an inordinately long time. I have some sympathy for the submission of Mr Adams that the appropriate sanction was that decided by the Principal. However that submission ignores the fact that Mr Adams had been spoken to previously about appropriate professional boundaries. While I accept that Mr Adams was not issued with any formal warnings about these allegations Mr Adams accepted that he was spoken to by his managers about the need to maintain professional boundaries.

[129] I also accept that Mr Adams was the victim of unjustified innuendo and accordingly suffered reputational damage. I also accept that it will be extremely difficult, if not impossible, for Mr Adams to gain employment as a primary school teacher again.

[130] I do not accept that the Department was precluded from conducting a further investigation in light of Ms McLean’s findings. I also do not consider that this further inquiry was unfair. While I accept that Mr Adams felt hamstrung by the confidentiality requirement he was able to advise the investigator of those persons he thought she should interview. Further there was no submission that he sought and was denied access to the children’s writing, had he wished to contest those allegations.

[131] I am unable to conclude that the dismissal was harsh. Had it not been for his statement to his students, that they should not repeat the stories outside the classroom, I may have reached a different view. However this conduct was particularly serious as it legitimised children keeping secrets from others at the behest of a person in authority. I accept the submissions of the Department that that had the potential to put children at risk from others. Mr Adams, as an experienced teacher, should have been aware of this. It was not apparent even at the hearing that Mr Adams accepted the seriousness of this conduct. At most he accepted that his comments could be misinterpreted or misunderstood.

[132] I am satisfied there was a valid reason for the termination of Mr Adams’ employment and that he was provided with an opportunity to respond to those allegations before the decision was taken to terminate his employment. I am unable to conclude that the dismissal was harsh given the admitted conduct was not trivial or unimportant. Mr Adams’ application for an unfair dismissal remedy is therefore dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

P. Hull for the Applicant.

B. Avallone for the Respondent.

Hearing details:

2017.

Melbourne:

22, 23 and 24 May.

<Price code C, PR593309>

 1   Exhibit A17

 2   Exhibit A1 at [2]-[3] and attachments 1-4

 3   Ibid at [5] and Transcript PN 1680-1682

 4   Exhibit R7 at [11]-[12]

 5   Ibid at [18]-[20]

 6   Ibid at [19]

 7   Ibid at [36]

 8   Ibid at [37], [40] ,[41], [45] and [46]

 9   Ibid at [47]

 10   Ibid at [58]

 11   Ibid at [62]

 12   Ibid [67]-[69]

 13   Ibid at [70]-[71]

 14   Ibid at [73]

 15   Ibid at [80]

 16   Ibid at [82]

 17   Ibid at [88]

 18   Ibid at [89]

 19   Ibid at [93]

 20   Exhibit R10 at attachment 7

 21   Ibid at [25]-[28]

 22   Ibid at [29]-[30]

 23   Ibid at [35]

 24   Ibid at [73]

 25   Ibid at tab 14 and tab 28

 26   Outline of submissions of the Department of Education and Training at [31]

 27   Exhibit A1 at [11]

 28   Ibid at [13]

 29   Exhibit A3 at page 5

 30   Exhibit A5

 31   Exhibit A8 at page 15

 32   Exhibit R10 at tab 28

 33   Exhibit A3 at page 5

 34   Exhibit R10 at tab 10 at document 23

 35   Exhibit A3 at page 7

 36   Ibid

 37   Exhibit A1 at [18]

 38   Ibid

 39   Exhibit R7 at attachment 9

 40   Ibid at attachment 10

 41   Exhibit R6

 42   Exhibit A2 at page 2

 43   Exhibit A3 at page 8

 44   Exhibit R10 at tab 10 at attachment 22

 45   Exhibit A2 at page 2

 46   Exhibit A3 at page 9

 47   Exhibit A2 at page 2

 48   Exhibit A3 at page 9

 49   Exhibit R10 at tab 10 at attachment 22

 50   Ibid

 51   Exhibit R7 at [48]

 52   Exhibit R6 at page 9

 53   Exhibit R7 at tab 22

 54   Ibid at tab 10

 55   Exhibit R10 at tab 10 at attachment 22

 56   Ibid

 57   Ibid

 58   Exhibit A3 at page 11

 59   Exhibit R10 at tab 10 at attachment 22

 60   Exhibit A3 at page 11

 61   Exhibit R10 at tab 10 at attachment 22

 62   Exhibit R5 at [10]-[11]

 63   Ibid at [12]-[13]

 64   Exhibit R8 at [6]-[8]

 65   Ibid at [9]-[10]

 66   Exhibit R9 at [6]

 67   Ibid at [11]

 68   Ibid at [14]

 69   Transcript PN 858

 70   Ibid at PN 860

 71   Ibid at PN 864

 72   Ibid PN 864-872

 73   Ibid PN 873-878

 74   Ibid PN 881-885

 75   Exhibit A3 at page 9

 76   Ibid

 77   Transcript PN 831 and 860

 78   Ibid PN 2180

 79   Ibid

 80   Ibid PN 2181

 81   Ibid

 82   Ibid PN 2191-2198

 83   Ibid PN 2201-2203

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