DECISION

Fair Work Act 2009
s.604—Appeal of decision

Simon Parris
v
Trustees of Edmund Rice Education Australia T/A St Kevin’s College
(C2021/2816)

Appeal against decision [2021] FWC 2341 of Commissioner Lee at Melbourne on 28 April 2021 in matter number U2020/2749 - permission to appeal granted - appeal dismissed

[1] This is an appeal, for which permission to appeal is required, against a decision 1 made by Commissioner Lee (Decision) on 28 April 2021 in which the Commissioner found that Mr Simon Parris (Appellant) had not been unfairly dismissed pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The matter was listed before the Full Bench for hearing in respect of both permission to appeal and the merits of the appeal on 12 August 2021.

[3] Prior to the hearing of the appeal the Appellant and Respondent sought, and were granted, permission to be represented by lawyers.

[4] Deputy President Clancy was a member of the Full Bench as constituted to hear this application. Whilst he sat during the hearing of the appeal the Deputy President did not take part in deciding the appeal.

CONFIDENTIALITY ORDERS

[5] Commissioner Lee issued a number of confidentiality orders in relation to the proceedings before him. These included the deidentification of students who had attended Trustees of Edmund Rice Education Australia T/A St Kevin’s College (Respondent or school), the anonymisation of any person who was a student and/or under the age of 18 during the employment of the Appellant with the Respondent and the anonymisation of the names of any parents of a student during the employment of the Appellant. A further confidentiality order was issued by the Commissioner with respect to the evidence given by Student A.

[6] These confidentiality orders remain in place in relation to the proceedings before the Full Bench.

THE DECISION OF COMMISSIONER LEE

[7] The Decision of Commissioner Lee is extensive but may be usefully summarised as set out below.

[8] The Appellant was a teacher at St Kevin’s College. He commenced employment with the Respondent in January 2013. The Appellant was a maths and chemistry teacher and was also head of theatre productions for a period of time, including that covered by the incidents dealt with in the Decision. As head of theatre productions the Appellant was involved in running school musicals.

[9] Student A was a student at the school and had a role in the school musical.

[10] The Commissioner first set out a number of preliminary matters in his Decision. He then set out in detail the evidence in relation to a range of matters regarding the Appellant’s conduct. These included a warning given to the Appellant in February 2019 in relation to allegedly hugging a student in 2018. The Appellant was told by Mr Russell, then Principal of the school, ‘to be careful to ensure’ he did not hug a student again.

The incident of 14 June 2019 and conduct discovered following the dismissal

[11] The Commissioner detailed an incident on 14 June 2019 in which the Appellant called Student A out of his class. Student A left his class and went with the Appellant to sit on a couch. On 19 June 2019 the Appellant attended a meeting with Ms Canny, then Acting Headmaster of the school. Ms Canny put to the Appellant that Student A had felt uncomfortable with the Appellant’s actions and language on 14 June 2019. The Appellant agreed that he had visited Student A in class, sat with Student A on the couch, put his arm across Student A’s shoulder and used the word ‘sweetie’ in reference to Student A. 2

[12] The Appellant wrote a ‘personal reflection’ in relation to the matter on 19 June 2019 and provided that to Ms Canny. The Decision sets out that, in the reflection note, the Appellant stated:

•  That he took full responsibility for his behaviour.

•  He acknowledged being spoken to by Mr Russell in February 2019 about a student who was uncomfortable with being hugged.

•  It was not clear to him now why attaining the graphic design file from Student A was so urgent that he visited Student A in class.

•  Student A prompted him to reflect on the difference between how he sees a student-teacher relationship and how a student sees it.

•  He now needs to further reflect on the way he comes across to all students.

•  That his father’s sudden death in February and work pressure from carrying out the role as the TIC of productions may have contributed to him acting in a careless manner. 3 

[13] The reflection note also included the following:

“I recollect that I put my arm around [Student A’s] shoulder in saying thank you for the work, for which I was very grateful. Looking back, I do not know why I did this and, of course, I deeply regret it. I acknowledge that I used some sort of affectionate term in asking if [Student A] was feeling ok. Looking back, this is very odd to me now as I so rarely, if ever, speak like that. Nonetheless, I do not argue the point, and I can fully see how this would make [Student A] feel very uncomfortable.” 4

[14] On 20 June 2019 Ms Canny gave the Appellant a letter which set out a breach by the Appellant of the Respondent’s Code of Conduct and advised the Appellant that, on the advice of the Commission for Children and Young People [CCYP] a ‘Reportable Conduct Notification’ has been made. The letter further said:

“…I need to state very clearly that should there be another breach of the Code of Conduct of a similar nature, then there would be an increased disciplinary response, which could include termination of your ongoing employment.

I acknowledge your apology and the commitment you have given to be far more careful about upholding professional boundaries in the future. There must be no physical contact or informal dialogue with students.

I also note that both the student and you have requested a restorative meeting which will take place in Term 3...” 5

[15] In early Term 3 Student A ceased his involvement in the school musical and on 24 July 2019 there was a ‘restorative meeting’ attended by the Appellant, Student A and Mr Macfarlane, a teacher and Head of House for the Respondent. The Decision records that the Appellant’s evidence was that the restorative meeting’s content and outcome was ‘generally positive’ while Student A said he was ‘anxious and nervous’ going into the meeting, that in the meeting the Appellant ‘made excuses and tried to justify his behaviour’, that the meeting was ‘overwhelming and it made [Student A] feel unfocussed for the rest of day’ and that he was ‘extremely anxious’ as a consequence of the meeting. Student A said he ‘felt angry and confused after the restorative meeting’ and ‘felt it was counterproductive’.  6

[16] On 19 August 2019 Student A saw the school counsellor. 7 The Commissioner details events of the following day:

“[41] It would appear that Ms Keel reported on the counselling session with Student A to Mr Russell because on the next day, 20 August 2019, the [Appellant] was summoned to the office of Mr Russell. According to the [Appellant], Mr Russell told him that he had been told by a school counsellor that Student A had said that he had put his hand on Student A’s leg while there (sic) were on the couch on 14 June 2019. The [Appellant] denies that he did so. The [Appellant] also states that this was the first time the “hand on the leg” allegation was made and that he was upset by it. 

[42] According to the [Appellant], Mr Russell then said the following:

“•  Mr Russell told me that he had looked at CCTV footage and said that from the angles [Student A] and I were sitting, and my arm position, this action physically could not have possibly happened and could not be true.

•  I was instructed by Mr Russell that, moving forward, I was to use a particular set of stairs in the Kearney building so as to minimise the probability of crossing paths with [Student A];

•  Mr Russell told me that he was going to change my yard duty position to decrease the chance of [Student A] and I crossing paths;

•  Mr Russell also said that these arrangements would continue until the end of the school year for 2019.”

[Endnote omitted]

[43] It is apparent from the [Appellant’s] evidence that Mr Russell accepted the [Appellant’s] denials and concluded that the leg touching allegation was not true.”

[17] The Appellant met with Mr Russell in September 2019 and was advised that he was to be removed from his position of Teacher in Charge of Productions. He was also advised to continue to use alternative stairs to minimise his interactions with Student A and was offered some ‘ex-gratia’ leave in 2020 to take in addition to long service leave.

[18] On 21 October 2019 the Appellant was provided with a letter setting out the school’s formal response to the incident of 14 June 2019. The letter advised that the referral to CCYP was closed which meant the CCYP was satisfied with the investigation conducted by the school. The letter also advised that it was a ‘final warning’ that should there be any ‘behaviour, interaction or contact of a similar nature occur in the future’ there would be an ‘immediate significant disciplinary response’ which could include termination of employment. 8

[19] The Appellant was advised by the Victorian Institute of Teaching (VIT) in November 2019 that his registration was extended until June 2020 and that he was required to provide to VIT a statement, character references and a personal reflection, which he did in December 2019.

[20] A character reference was provided by Mr Russell with respect to the Appellant’s service with the Respondent.

[21] The Appellant considered, at this point, that the 14 June 2019 incident was ‘over’. 9

[22] Following some communication from the parents of Student A, Mr Russell and Ms Canny met with the Appellant on 11 February 2020, 13 February 2020 and 17 February 2020. On 17 February 2020 the Appellant was provided with a letter of ‘[c]oncerns in relation to [the Appellant’s] professional conduct’ which identified two categories of concern. The first concern was in relation to the ‘significant emotional or psychological harm to a child’ arising from his conduct on 14 June 2019. The second concern was a breach of the Code of Conduct in regard to a comment posted on his personal Twitter account on 14 June 2019 which said ‘Fosse/Verdon is a Broadway dancer’s wet dream from which I hope we all never wake up’ in circumstances where it was possible to identify the school as his employer.

[23] On the evening of 17 February 2020 a Four Corners programme aired which focussed on the Respondent. On 19 February 2020 Mr Russell announced his resignation and on 20 February Ms Canny was suspended by the Respondent. On 20 February Mr John Crowley was appointed Acting Principal.

[24] The Appellant was required to attend a meeting with Mr Crowley on 20 February 2020 and on 21 February 2020 the Appellant received a letter terminating his employment with notice. 10 The Commissioner noted that the termination letter specified the two concerns set out in the 17 February 2020 letter which are as follows:

“It is considered that these Concerns are in breach of:

•  Clause 4.2 of the EREA Code of Conduct by ensuring you do not bring yourself, EREA or the College into disrepute by inappropriate behaviours involving “Technology”, which is defined in the Code to include computers (laptops and tablets) and social media;

•  Your implied duty of good faith towards the College; and

•  Your duty not to conduct yourself in a manner likely to seriously damage or destroy the trust and confidence between yourself and the College.

Your behaviour and conduct is inconsistent with our values and the expectations of an employee in a Catholic school and has the potential to seriously damage the reputation of the College, if members of the public become aware of your conduct.

In terms of mitigating factors, the College has considered your length of service, prior performance record and other matters that you raised during our formal interview. However, I am satisfied that none of those matters outweigh the nature of your conduct such that any outcome other than dismissal is appropriate.

You will be paid out your minimum notice period and other entitlements in accordance with the Victorian Catholic Education Multi Enterprise Agreement 2018.

You should be aware that since the termination of your employment, further allegations of your behaviour towards students have come to our attention. We are currently investigated (sic) and have reported these concerns to the Commission for Children and Young People and will be reporting them to the Victorian Institute of Teaching. We reserve the right to rely upon further conduct for the purposes of substantiating your dismissal should we need to do so…” 11

[25] In the Decision the Commissioner set out the conduct of the Appellant discovered subsequent to the termination of his employment:

•  The use of the school laptop to access, view and store pornography;

•  Sending emails to students that breached professional boundaries between teacher and student; and

•  Possible dishonestly in the investigation process. 12

Policies and procedures of the Respondent

[26] The Commissioner detailed the relevant policies of the Respondent and the evidence of the Appellant as to his knowledge and understanding of those policies. 13 While the Commissioner concluded that the Appellant had a ‘clear understanding of the various obligations and responsibilities imposed upon on him as a teacher’ at the school he observed that, on the basis of the Appellant’s evidence, the Appellant ‘struggled’ to some extent with the principles in relation to physical contact with a student.14

The 14 June 2019 incident

[27] The Commissioner set out evidence in relation to the 14 June 2019 incident and made findings in relation to the evidence he preferred. 15

[28] The Commissioner rejected the Appellant’s evidence that he and Student A could be seen on the couch by students in Mr Macfarlane’s classroom, preferring the evidence of Mr Macfarlane to that of the Appellant. 16 He rejected as not credible the Appellant’s evidence that the couch was small and the ‘inference’ that this made it ‘necessary’ to be close to Student A or needed to be able to see the laptop.17

[29] The Commissioner recorded the Appellant’s evidence that he had put his arm around Student A’s shoulders and that he had said ‘what’s wrong, sweetie’ when they stood up from the couch. He noted the Appellant’s rejection of Student A’s evidence that the Appellant had hugged him a few times, hugged him at the start and the end of the conversation and hugged him by pulling him in close. The Commissioner noted that the Appellant gave evidence that he did not call what happened a hug. 18 The Commissioner observed:

[98] During cross-examination, the [Appellant] said that he did not engage in hugging, or alternately, that it was “side hug”.  The [Appellant] says that he does not describe the putting his arm around Student A as a hug. The [Appellant] denies multiple hugs. The [Appellant] says that what was involved was “a pat on the shoulder”. The [Appellant] defines a hug as two people facing and both using their arms.

[30] Mr Macfarlane gave evidence that he reviewed the video footage [from the area where the couch was positioned]. His evidence was that ‘the whole incident caused me concern’ and that ‘he thought that the [Appellant] was far too close to Student A.’ 19 When asked specifically what caused him concern Mr Mcfarlane said that:

“The intimate nature of the advance towards Student A, the two hugs that I witnessed, Mr Parris lounging across Student A with his arm around his back and his hand obviously across his legs and pointing at possibly a laptop screen that Student A had on his lap at the time. In my opinion, that’s crossing a boundary in that it is far too close to a student. 20

[31] The Commissioner noted that Mr Macfarlane’s evidence that:

•  The [Appellant] moved closer to Student A throughout the course of the incident that occurred on the couch; 

•  there were two hugs;

•  that there was a hug early on in the conversation; and

•  that there was a hug at the end of the conversation. 21 

[32] Mr Macfarlane also said that he did not observe Student A move towards the Appellant. 

[33] The Commissioner said of the conduct on 14 June 2019:

•  The Appellant agreed that the conduct was overly personal or intimate. 

•  The Appellant accepted, that he could not control his impulse. 22 

[34] The Commissioner recorded further concessions given by the Appellant in evidence:

“That is crossing that professional boundary line to refer to a student in a very, some might say intimate, but a very personal way like that, isn’t it?  -Yes.

In fact, it wasn’t just “Sweetie” because it was preceded by a couple of words, which is this, “What’s wrong, Sweetie”?  -Mm-hm” 

“Do you agree now that, looking back, that language is far too familiar between a teacher and a student?  -Yes, I agree, yes.” 23

[35] The Commissioner set out the submissions of the Respondent as to the findings he could make on the evidence including that:

•  It was open to find the Appellant misled Ms Canny in his personal reflection.

•  The Appellant minimises his ‘hug’.

•  He should find ‘there were two hugs and a slow creep forward down the couch toward a reticent Student A’.

•  The Appellant lacked candour and failed to tell the truth about what he did on 14 June 2019.

•  Mr Macfarlane’s account should be preferred. He watched the conduct on CCTV and was not challenged on his recollection and corroborates Student A on all matters (save for the leg touching) which he could not see. 24

[36] The Commissioner concluded in relation to the 14 June 2019 incident as follows:

[109] I agree that the findings above are open for the reasons described, and on the balance of probabilities, I am satisfied that is what occurred. In reaching this finding, I have taken into account the standard in Briginshaw v Briginshaw (Briginshaw).  For reasons set out more fully later in the decision, where there is a conflict in the evidence between the [Appellant] and Student A or Mr Macfarlane, I prefer the evidence of Student A and Mr Macfarlane. The [Appellant] has misled Ms Canny in his reflection for the reasons summarised by the Respondent above. The clear and cogent evidence of Mr Macfarlane corroborates what Student A claims occurred, with the exception of the leg touching. It is to that allegation that I will now turn to in more detail.

[Endnote omitted]

The leg touching allegation

[37] The Commissioner then considered the leg touching allegation. On this matter the Commissioner said he preferred the evidence of Student A to that of the Appellant and that Student A’s evidence was credible. 25

[38] The Commissioner set out the evidence of Student A:

“For a short time - perhaps 1 to 2 minutes, Mr Parris, who was on my right side, had his right hand placed on my right upper thigh while we were looking at the laptop. He was resting his right hand on my thigh as his body was turned toward me on the couch. The laptop was sitting on my lap towards my left leg, and turned so that Mr Parris could see the screen, meaning my right leg was exposed. During this time, Mr Parris ran his right hand slowly up and down my right leg, from my knee up to my upper thigh near my groin, maybe two or three times before resting his hand again. He did this as he spoke to me. Mr Parris did not touch my groin area. Mr Parris’ hand was sometimes still on my leg and sometimes moving. Mr Parris continued to speak to me as he was rubbing my leg. I felt extremely uncomfortable while he was doing this. I did not know what to do.” 26

[39] The Commissioner noted that the Appellant was ‘adamant that he did not touch Student A’s leg at all’. 27

[40] The Commissioner then set out the evidence of Student A as to whether he had raised the leg touching issue when he met with Mr Macfarlane and Mr Anthony Coyne, Dean of Students, on 17 June 2019. As to the apparent change in his evidence, Student A said that he was still processing what had happened and was ‘traumatised from the event’. 28

[41] The Commissioner concluded on this point that:

[121] Ultimately, the determination as to whether the touching of the leg occurred needs to be resolved. It is a serious allegation. To a significant extent, it must be determined having regard to findings of credit of the witnesses. I return to the consideration on this point later in the decision.

The impact of 14 June 2019 incident on Student A

[42] The Commissioner considered the impact of the 14 June 2019 incident on Student A. The evidence detailed by the Commissioner is that:

•  Following the14 June 2019 incident and, in particular the restorative meeting, Student A began to feel anxious and paranoid about seeing the Appellant. School became a ‘highly anxious place’ and that he did continue to see the Appellant and ‘the whole thing was so anxiety-inducing”.

•  He still feels embarrassed that he was hugged and touched by the Appellant.

•  He feels anxiety and anger at what happened.

•  He is ‘haunted’ by the incident.

•  He is confused as to why it happened to him.  29

[43] Student A gave evidence that he continues to see a psychologist because he ‘still [has] ongoing trauma and anxiety about what has happened and then the events afterwards’. 30

[44] The Commissioner noted that, while Counsel for the Appellant suggested other sources for the anxiety felt by Student A, Counsel agreed with the Commissioner that ‘all roads lead back’ to the 14 June 2019 incident. 31

[45] On the basis of the evidence, the Commissioner concluded that:

[131] It is apparent on the evidence that Student A is suffering from anxiety and that the anxiety was caused by the conduct of the [Appellant].

[46] The Commissioner also considered the extent of the Respondent’s knowledge of previous misconduct of the Appellant and the effect of that conduct on Student A. 32 The Appellant argued that the Respondent was aware of the misconduct of the Appellant and the anxiety of Student A but chose to give the Appellant a final warning33 and the submissions of the Respondent that ‘what was new information for the school was that there were ongoing effects of the anxiety’, the ongoing impact of the Appellant’s behaviour was ongoing and that ‘it did not know all the facts about the misconduct’ of the [Appellant].34

Touching the cheek of Student A

[47] The Commissioner considered allegations that the Appellant had squeezed the cheeks of Student A and made comments about his body. 35

[48] The Commissioner again outlined the evidence of Student A, 36 the evidence of Student B who said he had observed the cheek stroking and the denial of the Appellant of the conduct.37

[49] The Commission concluded on this as follows:

“[151] There is some variation in the description from Student A and Student B, that is squeezing of the cheeks as opposed to stroking of the cheeks. The note of Ms Canny also differs slightly with the reference to knuckles touching. It is not possible to be certain in what way the [Appellant] was touching the face of Student A given these variations. However, I am satisfied on the evidence that the [Appellant] was touching the cheeks of Student A in an affectionate manner. I make this finding as I prefer the evidence of Student A over that of the [Appellant’s]. Further, the claim that the [Appellant] touched the cheeks of Student A was corroborated by Student B.”

[50] As to whether the Appellant told Student A that he had a ‘strong diver’s body’, the Appellant’s evidence was ‘[a]gain, the word “strong”, I’ll acknowledge, but it’s not possible that I said, “You have a strong diver’s body.” ’ 38

[51] The Commissioner concluded:

“[153] I take this as an admission from the [Appellant] that he acknowledges he was referring to Student A as “strong” but denies saying that Student A has a strong diver’s body.

[154] Again, I prefer the evidence of Student A for the reasons set out later in the decision. I am satisfied that the [Appellant] would make inappropriate comments to Student A about his body in the manner described by the Student A.”

Hugging and touching other students after 14 June 2019

[52] The Commissioner considered the evidence of Student A that he had seen the Appellant hugging and touching students in the courtyard after 14 June 2019 and that the Appellant was seen hugging some students in early 2020 at an event at Newman College. Whilst the Appellant denied the incidents the Commissioner said that he preferred the evidence of Student A to that of the Appellant and determined the conduct did occur. The Commissioner said, however, of both matters that he was not satisfied, on the evidence, that the conduct constituted misconduct. 39

The Fosse/Verdon tweet

[53] The Commissioner considered the Foss/Verdon ‘wet dream’ tweet and whether it was a breach of the Respondent’s Code of Conduct.

[54] The Appellant did not dispute that he posted the tweet. 40

[55] The Commissioner outlined the following:

“[166] During the hearing, the [Appellant] accepted that:

•  The term “wet dream” involved “an erotic experience in your sleep”; 

•  He realised it could be read as sexualised language; 

•  If a person before him had not used the term, he would not have used it; and

•  It is possible to link the tweet to him being a teacher at St Kevin’s College. 

[167] The [Appellant] also contends that the tweet was posted using his private account in private time.  However, this is inconsistent with the [Appellant] agreeing that he understood the social media rules that applied to him.

[168] Ultimately, the [Appellant] submits that:

“… the [Appellant’s] conduct did not breach clause 4.2 of the Code of Conduct. There is no evidence that could justify a finding that by posting the Fosse/Verdon Tweet the [Appellant] brought the Respondent or St Kevin’s into disrepute. The only evidence about the existence of the Tweet was that it was located by the father of Student A, who had to go through a process to obtain the connection between the Tweet and St Kevin’s … and no one else brought it to St Kevin’s attention … Tellingly, there is no evidence that Student A’s father thought any lesser of the Respondent or St Kevin’s because of the Tweet […] It is simply not open for the Respondent to allege a breach of its Code of Conduct in the way suggested (and as set out and worded in the policy) and then fail to adduce any evidence that actually demonstrates the breach.” ”

[Endnotes omitted] 

[56] The Respondent submitted that it could be inferred from the tenor of the emails from the father of Student A that ‘he is livid with the [Appellant] and the [school]’ and that the ‘[t]weet breached the Code because it did bring the [Appellant] and his employer into disrepute with at least the parents of Student A.’ 41 

[57] The Commissioner found that ‘the father of Student A was extremely upset about the tweet.’ He further found that the tweet brought the Appellant and therefore his employer into disrepute. 42

Hardcore pornography on the Appellant’s school laptop

[58] The Commissioner considered the discovery, post the termination of the Appellant’s employment, that he had, while employed, transferred hardcore pornography onto a workplace device in his possession. The transfer and viewing of the pornography took place in 2016 and 2017. 43

[59] The Commissioner considered the evidence from a digital forensic and cyber security expert witness on video files deleted from the school laptop, the content of the files – which the Commission was satisfied met the definition of ‘hardcore pornography’ – and the Appellant’s evidence on the matter.

[60] The Appellant said in his witness statement in reply that he had accessed the videos from a personal external hard drive and was using the laptop like a TV screen. He said he did not use the school laptop to access pornographic sites, download content from such sites or to store pornographic content. 44 On being confronted with further evidence from the expert witness that the videos had been accessed from the school laptop and not an external hard drive the Appellant altered his evidence in cross-examination:

“So you accept that you didn’t just use the work laptop like a television screen to watch the material, you copied on and you later deleted; is that right?  -Now that I see this other evidence, I have come to recall that, yes.” 45

[61] The Commissioner considered it not plausible, given the ‘clear evidence’ already given by the Appellant, that he was able to remember further information after he saw the further forensic report.

[62] After considering the evidence of Mr Crowley as to his concerns and submissions from the Appellant in relation to the matter, the Commissioner found that he was satisfied the conduct of the Appellant was serious misconduct. 46

Grommr

[63] With respect to the Appellant using his school email account for Grommr membership for one day, the Commissioner considered, in the particular circumstances, that the conduct could not be characterised as misconduct.

Student email communications

[64] The Appellant had exchanged a number of emails with students which were discovered as part of the Forensic Analysis Report in relation to the Appellant’s school laptop. 47

[65] The Commissioner considered the content of a number of these emails sent between 2013 to 2019. The Commissioner identified the issue with the emails as ‘whether some of the content of those emails represented a breach of professional boundaries.’ After setting out some examples of emails and the relevant cross-examination of the Appellant in relation to these, the Commissioner concluded:

“[202] Having considered the evidence, I am satisfied that the contents of the emails referred to above crosses professional boundaries and constitutes misconduct on the part of the [Appellant].

[203] The [Appellant] accepted in respect to one exchange that it fails to maintain a clear distance between himself and the student. In respect of other instances, his explanations that the familiarity was driven by difficult and personal circumstances, or he was just using terms that the students used, demonstrate that even though the [Appellant] was aware of the obligations regarding professional boundaries in the Code he did not comprehend them. The [Appellant] has on numerous occasions communicated to students via email in a manner that was too familiar and had breached the Code in doing so.”

Process of dismissal

[66] The Commissioner turned his mind to the process followed to effect the dismissal of the Appellant.

[67] The Commissioner noted that one of the first acts undertaken by Mr Crowley when he assumed the role of Acting Principal on 20 February 2020 was to dismiss the Appellant from his employment.

[68] The Commissioner further noted that the Appellant was given limited notice of the meeting (being called at 3.35pm to attend a 5.00pm meeting) on 20 February 2020 and that, while the Appellant was not denied a support person, ‘in practical terms it was extremely difficult for him to arrange one given the short time frame.’ 48

[69] The Commissioner found that Mr Crowley was inconsistent in his evidence as to whether he relied on the leg touching incident as part of the reason for dismissal. The Commissioner found that while Mr Crowley ‘believed the leg touching had occurred’ it was unlikely ‘that it did not inform his decision to dismiss the [Appellant], notwithstanding that there was no mention of it in the letter of termination.’ 49

[70] The Commissioner also found that Mr Crowley:

•  did not take into account mitigating circumstances; 50

•  accepted he did not follow the process in the relevant enterprise agreement; 51

•  conceded not providing the Appellant an opportunity to respond to the proposed course of action was a missed step and stating it in the letter was an oversight; 52

•  expressed his paramount concern was to protect the safety of students; 53 and

•  met the parents of Student A for the first time shortly after terminating the Appellant’s employment but was ‘clear in his evidence’ that he was not aware of the parents’ threat to expose the Respondent to Four Corners if the Appellant was not terminated. 54

[71] The Commissioner concluded:

“[221] In my view it is apparent that if Mr Crowley had not made up his mind to terminate the employment of the [Appellant], he was very close to having done so. Taking into account that his paramount concern was the safety of students and he had formed a view that the [Appellant] was not an appropriate person to work with children, and that he believed the allegations of Student A and the parents, it is more likely that Mr Crowley was inclined to dismiss the [Appellant] prior to the meeting and was merely “going through the motions”.”

Witness credit

[72] The Commissioner considered the credit of the witnesses and concluded that:

•  The Appellant was ‘a most unsatisfactory and unimpressive witness. His evidence was often self-serving and evasive.’ He often ‘sought to minimise the conduct he was involved in and concocted dubious excuses to explain the misconduct that he admits to’. 55 The Appellant was also ‘inconsistent’ in his evidence of the need to sit close to Student A on the couch.56

•  Student A ‘was a credible and cogent witness’ 57 Claims that Student A’s credibility was in question because he did not report the leg touching to Mr Macfarlane was not supported by the evidence.58 The Commissioner was guided in his assessment of the evidence of Student A by the direction from the Chief Judge to the jury in Pell v The Queen59:

“When you are assessing the evidence, also bear in mind that experience shows the following. One, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Two, trauma may affect different people differently, including by affecting how they recall events. Three, it is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times to different people or in different contexts. And finally, both truthful and untruthful accounts of a sexual offence may contain differences.” 

•  Mr Macfarlane was to be believed as a truthful witness.

•  Student B was a credible witness.

Findings of fact

[73] The Commissioner then set out relevant findings of fact.

[74] In relation to the 14 June 2019 incident the Commissioner found that there were two hugs, ‘the hugs were constricting hugs’ where the Appellant ‘was pulling Student A in close’ and the hugs ‘were far more invasive than merely an arm around the shoulder or a side hug’ as portrayed by the Appellant. 60

[75] The Commissioner noted that the Appellant accepted the intentional nature of his conduct and ‘is prepared to admit that he made a mistake’ but does not know why he did it. 61

[76] The Commissioner set out his views in relation to the leg touching incident and said that he:

•  preferred the evidence of Mr Macfarlane that he could not see the leg of [Student A] in the CCTV footage or if it was being touched to the hearsay evidence of the Appellant who claimed that Mr Russell told him [the leg touching] could not be true; 62

•  preferred the evidence of Student A to that of the Appellant; 63

•  preferred Student A’s evidence as to what he told Ms Keel (the school counsellor) and noted what Student A said to Mr Windle days after speaking to Ms Keel; 64 and

•  accepted the evidence of Student A as to why it took him some time to ‘fully articulate what happened’ on 14 June 2019. 65

[77] The Commissioner concluded that he was ‘satisfied on the balance of probabilities that the [Appellant] on June 14, when sitting next to the Student A on the couch, put his right hand on Student A’s upper right thigh and moved it up and down his upper thigh two or three times.’ 66

[78] The Commissioner found that the Appellant had misled Ms Canny in the reflection note. and had misled Mr Russell when he denied the leg touching allegation when it was put to him. 67

[79] The Commissioner considered that the Appellant ‘demonstrated an overall lack of insight into his behaviour’ and ‘struggled with understanding his responsibilities as a teacher’. 68 He also noted that the Appellant ‘did not agree that hugging students in 2018 was a mistake’.69 The Commissioner observed that:

“[259] …the [Appellant] did demonstrate insight on some matters. He accepted that he allowed the practice of hugging in his professional life as a teacher, that he hugged on impulse, and that he initiated hugs. The [Appellant] also agreed that there are two instances of sexual misconduct by him in the school setting.”

[Endnotes omitted]

[80] The Commissioner also noted that the Appellant did acknowledged the impact of his actions of 14 June 2019 on Student A but minimised the conduct and sought to blame others for the impact of his conduct. 70

[81] Overall the Commissioner concluded that the ‘level of insight of the [Appellant] into his conduct is extremely low’. 71

Was the dismissal harsh, unjust or unreasonable?

[82] Having set out the relevant evidence and his findings the Commissioner then commenced his consideration as to whether the dismissal of the Appellant was harsh, unjust or unreasonable.

[83] In considering if there was a valid reason for dismissal the Commissioner first of all considered how he should treat the Appellant’s conduct of 14 June 2019 given the warning given to the Appellant in relation to that incident by Mr Russell in October 2019. The Commissioner considered the principals relevant to such a consideration as summarised in Conicella v Phillip W Hill & Associates Pty Ltd T/A Hunter Legal & Conveyancing 72 (Conicella) and Rankin v Marine Power International Pty Ltd 73. The Commissioner concluded:

“[272] It is apparent in this case, that Mr Russell, the decision maker at the time, had some knowledge of the wrongdoing, in respect to the June 14 incident, but did not have full knowledge. In particular, the allegation as to the touching of the leg at the June 14 incident was put to the [Appellant] by Mr Russell in August 2019 and the [Appellant] denied that it happened. The denial was believed it would seem by Mr Russell, but the truth is, as I have determined, that the leg touching did occur. Beyond the leg touching, the [Appellant] has misled the Respondent in respect to his reflection note for the reasons set out earlier. In those circumstances the Respondent cannot, applying the reasoning in Rankin, be taken to have condoned the wrongdoing. The circumstances here are that the employer has believed the employee’s denial but the denial was not truthful. In the circumstances, the earlier warning for the June 14 conduct does not constitute a barrier to a finding of valid reason for dismissal based on the [Appellant’s] June 14 misconduct.”

[84] The Commissioner also considered that the Appellant had ‘crossed the line’ and considered the risk of ‘further transgression’ and the paramount obligation of child safety 74 as observed by Wilcox J in Puccio v Catholic Education Office.75

[85] The Commissioner found that the Appellant’s conduct on 14 June 2019 – hugging Student A and sitting ‘extremely closely’ to him on the couch – ‘crossed the line that [the Appellant] admitted he crossed in 2018.’ He also considered that the Appellant ‘touched and rubbed the inner thigh’ of Student A and that his conduct had a ‘significant impact on Student A, he suffers from anxiety and requires ongoing counselling. The actions of the [Appellant] have caused harm to Student A’. 76

[86] The Commissioner concluded that the ‘conduct of the [Appellant] on 14 June 2019 was in [his] view egregious conduct. It was serious misconduct. It is most certainly a valid reason for dismissal.’ 77

[87] As to the ‘wet dream’ tweet of 14 June 2019, the Commissioner found it was ‘clearly a reference of a sexualised nature’ and while the Appellant did not think of it as such and had just used the language of an earlier tweet, it was posted online by the Appellant, it was a sexual reference and it was possible for it to be found by the public at large. The Commissioner noted that the Appellant agreed it was possible to identify him as a teacher for the Respondent. 78

[88] The Commissioner agreed that it could be inferred that the father of Student A was ‘livid’ with the Appellant and the Respondent and that it brought the school into disrepute with the father of Student A. 79

[89] The Commissioner concluded that the tweet provided a valid reason for dismissal but noted that, in terms of gravity, it was at the lower end of the scale compared to the conduct of 14 June 2019 and the storage and viewing of the pornography on the school laptop. 80

[90] With respect to the pornography on the school laptop the Commissioner concluded that the viewing of hardcore pornography to be serious misconduct and provided a valid reason for dismissal. 81

[91] In doing so the Commissioner took into account that the Appellant had stored and watched three pornographic films or clips 82 and accepted that there was a risk, that ‘students could have seen it if he had not deleted the material’ although the Appellant did not know when he did delete it. The Commissioner considered the Appellant’s conduct ‘reckless’ and a clear breach of the Respondent’s policy. Further, he considered that there was a ‘serious and imminent risk to the health and safety of students were they to accidentally view the material, and a risk to the reputation of the Respondent, were it to be discovered that a teacher that it had employed was watching and storing this material on a school device’.83

[92] The Commissioner found that the sending of the emails to students constituted a valid reason for dismissal. The Commissioner was satisfied that the Appellant did not comprehend the obligations imposed on him by the relevant boundaries contained in the Code of Conduct and that he communicated to students in a manner not consistent with professional boundaries in that he was ‘too familiar’. 84

[93] The Commissioner finally considered that the dishonesty of the Appellant in misleading the Respondent in the investigations in relation to the 14 June 2019 incident also provided a valid reason for dismissal. 85

[94] The Commissioner then considered if the Appellant had been notified of the valid reason for dismissal. He accepted that the Appellant had only been notified of the conduct of 14 June 2019 as the reason for dismissal and that the balance of the valid reasons, including the leg rubbing and the dishonesty, as found by the Commissioner were not notified to the Appellant. The Commissioner found this failure to notify the Appellant of the reasons as weighing in favour of a finding of unfairness. 86

[95] The Commissioner noted that the Appellant was not given an opportunity to respond to the reasons for dismissal although accepted that there was ‘bedlam’ at the school at the time of the dismissal which needed to be taken into account. 87

[96] The Commissioner found that there was no unreasonable refusal to allow a support person, although noted the haste of the meeting on 20 February 2020, that the Appellant was not dismissed for unsatisfactory performance and, that the school ‘had the benefit of legal advice’ with its solicitor present during the termination meeting. 88

[97] In relation to other matters under s.387(h) of the FW Act, the Commissioner took into account:

•  the warning of October 2019 and the positive reference given by Mr Russell which weighed in favour of a finding that the dismissal was unfair

•  the Appellant’s overall lack of insight into his behaviour which weighed against a finding the dismissal was unfair;

•  the failure of the Respondent to follow the disciplinary process in the relevant enterprise agreement which weighed strongly in favour of a finding of unfair dismissal;

•  the speed with which the meeting of 20 February 2020 was convened which weighed in favour of unfairness; and

•  the length of service of the Appellant including that he had not, prior to February – June 2019 been subject to warnings or disciplinary action and that he had a clean record for 28 years which weighed in favour of a finding the dismissal was harsh. 89

[98] The Commissioner weighed up all the matters set out in the Decision pursuant to s.387 of the FW Act and concluded ‘after considering all of the circumstances’ that the termination of the Appellant’s employment was not harsh, unjust or unreasonable. He consequently dismissed the application.

THE APPEAL

[99] The Appellant advances 6 grounds of appeal. 90 These are:

“1. The Commissioner erred (PJ   [279]-[280] 91) in:

a. relying upon or having regard to the Appellant’s conduct on 14 June 2019 as a valid reason for dismissal under s 387(a) of the Fair Work Act 2009 (Cth) in circumstances where the Respondent had previously determined to discipline the Appellant by issuing him with a final written warning on 21 October 2019 in respect of that incident;

b. failing to take into account, as a significant consideration on the issue of whether the Respondent had a valid reason under s 387(a) of the Fair Work Act 2009 (Cth), the fact that the Respondent did not think the Appellant’s conduct on 14 June 2019 warranted dismissal.

2. The Commissioner erred by failing to deal with, alternatively failing to provide any or any adequate reasons if the Commissioner dealt with and rejected them, the Appellant's submissions that:

a. the Commission should reject Student A's evidence that the Appellant hugged two to three students at Newman College in February 2020; and consequently

b. the rejection of that evidence had for the credit of Student A in relation to the incident on 14 June 2019.

3. The Commissioner erred (PJ[252]) in finding that the Appellant placed his right hand on Student A's inner thigh and finding placed his right hand on Student A's upper right thigh and moved it up and down the upper thigh two or three times.

4. The Commissioner erred in:

a. finding (PJ[162]) that the Appellant hugged two to three students at the Newman College retreat in February 2020; and

b. finding (PJ[157]) that the Appellant hugged and touched students after 14 June 2019.

5. The Commissioner erred in:

a. finding (PJ[109], [254], [272]) that the Appellant misled Ms Canny in his reflection note when there was no, or no proper, evidence to support such a finding and the School already had the information relied upon (PJ[108]) in support of the submission that the Appellant had misled Ms Canny;

b. finding (PJ[43], [254]) that the Appellant misled Mr Russell when there was no, or no proper, evidence to support such a finding; consequently and in the further alternative

c. finding (PJ[253]-[254]) that the Appellant was dishonest during the investigation into the 14 June 2019 incident; and consequently

d. finding (PJ[292]) that the Appellant’s conduct therefore gave rise to a valid reason for dismissal under s 387(a) of the Fair Work Act 2009 (Cth).

5A. The Commissioner committed jurisdictional error by denying, or failing to accord, the Appellant procedural fairness in coming to the findings referred to in paragraph 5 above.

6. The Commissioner erred in:

a. finding (PJ[170], [283]) that the Appellant’s tweet of 14 June 2019 breached clause 4.2 of the Respondent's Code of Conduct in that there was no, or insufficient, evidence to justify the finding that the Appellant’s conduct brought the School into disrepute; and consequently

b. finding (PJ[284]) that the Appellant’s conduct therefore gave rise to a valid reason for dismissal under s 387(a) of the Fair Work Act 2009 (Cth).”

[100] As to why it is in the public interest that permission to appeal be granted, the Appellant advances the following 5 reasons:

“1. There is a public interest in determining the extent to which an employer can rely upon conduct for which it has previously disciplined an employee as a valid reason for a later decision to terminate an employee.

2. The denial of procedural fairness to the Appellant in finding that he had been dishonest and misled the Respondent in its investigation amounted to jurisdictional error.

3. The Commission’s decision is disharmonious with other decisions of the Commission dealing with an employer’s right to rely upon conduct which it has previously disciplined an employee.

4. The Commissioner’s failure to deal with or give any or any adequate reasons for rejecting the Appellant’s submissions as to factual matters centrally relevant to the issue of credit denied the Appellant a fair hearing.

5. The decision at first instance manifests an injustice to the Appellant because of the errors in the decision.

6. The result at first instance is counter intuitive and needs to be corrected by the Full Bench.”

PRINCIPLES ON APPEAL

[101] The appeal is made under s.604 of the FW Act. There is no right to appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 92 

[102] Section 400 of the FW Act applies to this appeal. It provides that:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[103] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as “a stringent one”. 93 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.94  In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. These considerations were that:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of Decisions at first instance so that guidance from an appellate court is required, or where the Decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent Decisions dealing with similar matters…”. 95 

[104] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 96  However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.97

CONSIDERATION

[105] It is appropriate to consider the grounds of appeal in the order advanced by the Appellant in his written submissions and at the hearing of the appeal.

Appeal Ground 1 – relying on conduct for which the Appellant was previously warned

[106] As outlined above, the Commissioner took into account, in determining if there was a valid reason for dismissal, the Appellant’s conduct of 14 June 2019 which had, prior to the dismissal, been subject to a warning given to the Appellant by the Respondent in October 2019. In the Decision the Commissioner found that the Appellant’s conduct of 14 June 2019, including the leg touching incident, was ‘egregious,’ was serious misconduct, was ‘most certainly a valid reason for dismissal’ and weighed strongly against a finding that the dismissal was unfair. 98

[107] In reaching this conclusion the Commissioner took into account that the Appellant had received a warning in February 2019 in relation to a hugging incident in 2018 and a final warning in October 2019 about his conduct on 14 June 2019.

“[272] It is apparent in this case, that Mr Russell, the decision maker at the time, had some knowledge of the wrongdoing, in respect to the June 14 incident, but did not have full knowledge. In particular, the allegation as to the touching of the leg at the June 14 incident was put to the [Appellant] by Mr Russell in August 2019 and the [Appellant] denied that it happened. The denial was believed it would seem by Mr Russell, but the truth is, as I have determined, that the leg touching did occur. Beyond the leg touching, the [Appellant] has misled the Respondent in respect to his reflection note for the reasons set out earlier. In those circumstances the Respondent cannot, applying the reasoning in Rankin, be taken to have condoned the wrongdoing. The circumstances here are that the employer has believed the employee’s denial but the denial was not truthful. In the circumstances, the earlier warning for the June 14 conduct does not constitute a barrier to a finding of valid reason for dismissal based on the [Appellant’s] June 14 misconduct.”

[108] Firstly the Appellant says that the Commissioner made an error of principle which is sufficient to impugn the decision in that, contrary to the decision in Newton v Toll Transport Pty Ltd (Newton), 99 the Commissioner failed to take into account that the Appellant had received a final warning in relation to the 14 June 2019 incident when considering matters that went to a valid reason for dismissal, but rather he only considered the final warning in his consideration under ‘any other matters’ pursuant to s.387(h) of the FW Act.

[109] The Appellant contends that this error led the Commissioner to consider the final warning did not constitute a barrier to finding a valid reason for dismissal in relation to the 14 June 2019 incident.

[110] Second, the Appellant says that he regarded the issue of the final written warning in October 2019 ‘as concluding the 14 June [i]ncident’. He submits, in relation to the Decision, that:

•  The evidence does not support a conclusion that Mr Russell did not have ‘full knowledge’ of the 14 June 2019 incident. Mr Russell had viewed the relevant CCTV footage and formed a view the leg touching had not occurred and in this respect the Commissioner misunderstood the evidence;

•  Further evidence, including notes made by the parents of Student A of a meeting with Mr Russell and Ms Canny and an email from Student A’s father to Mr Russell on 13 February 2020 suggests prior knowledge of the leg rubbing incident by Mr Russell;

•  The Respondent never claimed it did not have full knowledge of the 14 June 2019 incident.

[111] The Appellant says that his conduct of 14 June 2019 did not constitute a valid reason for dismissal.

[112] The Appellant submits that the decision in Newton is authority for the proposition that an employer not terminating employment for conduct known to have occurred is a significant matter to be taken into account in determining if there is a valid reason for dismissal. 100 In reaching his decision the Appellant submits that the Commissioner erred in not giving the failure to terminate for the 14 June 2019 incident – instead issuing a final warning – due consideration.

[113] The Appellant submits that, even if it is accepted the effect of the conduct of the Appellant on 14 June 2019 had some consequences for Student A in February 2020 the question that needs to be answered is how this gives rise to a valid reason for the dismissal of the Appellant at that time.

[114] The Appellant submits that, in considering if conduct constitutes a valid reason for dismissal, fairness is a relevant consideration. 101 In any event the Appellant submits that, at the time the application for remedy from unfair dismissal was heard, Student A was no longer a student at the school, having completed his studies. The effect on Student A would therefore have ‘dissipated’ and this should have been taken into account.102

[115] The Respondent submits that it was justified in further considering the conduct of the Appellant on 14 June 2019 when it became aware at the beginning of the 2020 school year of the unresolved anxiety of Student A and that he continued to seek medical attention. The Respondent submits that this information was new information. In this respect it submits that the Commissioner was not wrong in relying on the 14 June 2019 incident.

[116] The Respondent also submits that the attempt by the Appellant to confine the meaning of conduct in s.387(a) of the FW Act so as to exclude the effect of the conduct is without foundation. It says that there is no basis to read down or confine the statutory language as proposed. The Respondent submits that the words of s.387(a) of the FW Act compels a consideration of the effect of the conduct on the employment relationship generally, including on other employees. This is manifest, it is put, in the words of s.387(a) of the FW Act ‘including its effect on the safety and welfare of other employees’.

[117] The Respondent submits that the decision in Newton stands for the proposition that earlier instances of misconduct apparently condoned by an employer can constitute a later valid reason for dismissal. To the extent the decisions in Conicella 103 and Cannan v Nyrstar Hobart Pty Ltd (Nyrstar)104 suggest some fetter on the Commission in carrying out its statutory obligations under s.387(1) of the FW Act the Respondent says this is dispelled by Newton.

[118] The Respondent says that Student A did not disclose the totality of that incident to the Respondent at the time it occurred. Further, at the time Mr Russell issued the final warning letter to the Appellant in October 2019, the Respondent was not aware of the ongoing impact of the Appellant’s conduct on Student A. To ignore the ongoing effect of the 14 June 2021 incident on Student A would be to render the child invisible, ‘contrary to all modern conceptions and legislative requirements attaching to child safety in the school environment.’

[119] We have considered the submissions of the Appellant on this point and are of the view that it misconstrues the matters considered by the Commissioner in reaching his conclusion. It is apparent from the decision, when read as a whole, that the Commissioner was aware that, at the time the October 2019 warning letter was issued, Mr Russell was aware of the allegation in relation to leg touching. The Commissioner acknowledges that this matter was raised with the Appellant in August 2019. What the Commissioner did find however was that the Respondent was not aware in October 2019 of the ongoing effects of the 14 June 2019 incident on Student A and that was new information known at the time of dismissal. 105 In any event the Commissioner, in reaching his decision, took into account the submissions of the Appellant on this point.106

[120] Whether earlier conduct for which the Appellant was warned can be relied on by the Commissioner in reaching a decision as the existence of a valid reason was reviewed most recently in Newton. After considering the relevant history of the principal of ‘condonation’ as stated in Conicello and Nyrstar the Full Bench said:

“[74] ...The relevant passage from Johnpulle is:

‘It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct … and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee.’ ’ 107 (Emphasis added)

[75] Contrary to the summation in Conicella, the Full Bench in Johnpulle was not stating a decision rule that past (condoned) misconduct cannot constitute a valid reason for dismissal. Properly understood, Johnpulle is authority for the proposition that the attitude of the employer to such misconduct – that is, at the time the employer did not think it sufficiently serious to warrant summary dismissal – is a significant consideration, relevant to whether such misconduct constitute a valid reason for dismissal. However, it is not determinative of the question. 108 

[76] If condonation was determinative it would be akin to adopting a subjective test to the question of whether there was a valid reason for the dismissal; that is, one would approach the issue solely from the perspective of the employer. Such an approach is contrary to principle. As we have mentioned, the Commission is required to conduct an objective analysis of all relevant facts in determining – on the basis of the evidence in the proceedings before it – whether there was a valid reason to dismiss.”

[121] We do not consider the approach taken by the Commissioner to be disharmonious with the approach determined in Newton. We do not consider the Commissioner in taking into account the previous conduct of the Appellant which was subject to a warning was in error, to the extent that he did take it into account. The Commissioner’s consideration of the earlier conduct that gave rise to the warning letter of October 2019 could clearly be properly considered by him in deciding if there was a valid reason for dismissal.

[122] We would observe that, even if the Appellant was correct on this point, the hugging and leg touching incidents were only two of a myriad of matters the Commissioner found provided valid reasons for dismissal.

[123] We reject the assertion of the Appellant in relation to the leg touching incident that Mr Russell had viewed the CCTV footage of 14 June 2019 and formed the view that the incident did not occur. There was no reliable evidence of any conclusion reached by Mr Russell in relation to the incident.

[124] In reply to the witness statement of Student A, the Appellant said, in his witness statement in reply filed on 14 September 2020 that:

…I touched Student A on the shoulder only. The incident was investigated by the school and in turn reported to the CCYP. This included examination of the CCTV footage of the incident, which proved that no touching of the leg had occurred and which Mr Russell confirmed. 109

[Underlining added]

[125] The admission of that part of the evidence outlined above was subject to objection from Counsel for the Respondent. Ultimately the phrase was not relied on by the Appellant. 110 Counsel for the Appellant agreed with the Commissioner that the final sentence would read ‘This included examination of the CCTV footage of the incident’.111 Counsel for the Respondent also made objection on the basis of hearsay to that part of the Appellant’s first witness statement where he said of the leg touching incident:

“Mr Russell told me that he had looked at CCTV footage and said that from the angles [Student A] and I were sitting, and my arm position, this action physically could not have possibly happened and could not be true.” 112

[126] Ultimately, while this portion of the statement was admitted, the Commissioner indicated that it would be a question of what weight he would give to the statement as Mr Russell was not being called to give evidence.

[127] We are not satisfied that the Commissioner was in error in taking into account the effects of the Appellant’s conduct on Student A or that he was in error in determining that this was relevant information not known to the Respondent at the time it issued the warning letter to the Appellant in October 2019. To construe the consideration under s.387(a) of the FW Act as being limited to the direct conduct of the Appellant and not capable of encompassing the effect of that conduct is to ignore the plain words of s.387(a) of the FW Act and to impermissibly seek to limit those matters that may be considered by the Commissioner. The valid reason must only be related to the impugned conduct which is evidently of broader reach of the conduct itself.

[128] We accept the submissions of the Respondent that, from a construction perspective, there is no legislative basis to not consider the effect of the conduct of the Appellant in determining if there is a valid reason for dismissal. Again, however, even if it was a matter that should not be considered under the valid reasons for dismissal it would not, in our view, have altered the outcome.

[129] It is, in our view, appropriate for the Commissioner to take into account the effect of the conduct of the Appellant on Student A at the time it made the decision to dismiss the Appellant. However, even if the ongoing effects of the 14 June 2019 incident on Student A were removed from the consideration of a valid reason, the remaining conduct he found to have occurred – pornography, inappropriate emails and the leg touching incident – could be found to constitute a valid reason for dismissal.

[130] We note that the Commissioner did take account of the existence of the warning letter when he considered the provisions of s.387(h) of the FW Act and found that its existence, along with a positive reference, to weigh in favour of a finding that the dismissal was unfair. We do not consider Newton stands for the proposition that such matters must be considered under s.387(a) of the FW Act if the conduct for which the warning was given is relied on to find a valid reason for dismissal.

[131] For these reasons we do not find any error on the part of the Commissioner. We are not satisfied that this ground of appeal is made out.

Appeal ground 6 – error in finding the Appellant breached the Code of Conduct

[132] On 14 June 2019 the Appellant posted a tweet referring to a ‘wet dream’. The Commission found:

“[283] I agree with the Respondent that a clear inference can be drawn from the tone and tenor of Student A’s father’s emails that he is livid with the [Appellant] and the Respondent. It is clear that the tweet has brought the school into disrepute with the father of Student A. As a parent of a student at the school, that is significant.” 113

[133] The Commissioner said that the Code of Conduct makes plain that ‘a teacher is not to bring themselves, Edmund Rice or the School into disrepute by inappropriate personal online behaviours.’ He was therefore satisfied that the tweet provided a valid reason for dismissal and, while at the lower end of the scale, weighed against a finding the dismissal was unfair. 114

[134] The Appellant submits that there was no evidence that could justify such a finding. Rather, the Appellant submits that the Commissioner ‘merely accepted the Respondent’s submissions’ that an inference could be drawn that Student A’s father was livid. The Appellant says that ‘[no] rational or reasonable inference’ could be drawn from the father’s emails of 12 and 13 February 2020 that could support a finding that the tweet brought the Appellant, and therefore the Respondent, into disrepute.

[135] The Appellant submits that it is well settled that the Commission must be satisfied that conduct relied on to find a valid reason for dismissal did, in fact, occur. 115 In this case the Commissioner could not be so satisfied.

[136] This error, it is submitted, is a significant error of fact because it was ‘foundational’ to the Commissioner’s finding of misconduct and hence, valid reason for dismissal.

[137] The Appellant submits that, to the extent the Respondent now seeks to rely on the timeline of events compiled by Student A’s parents, 116 the matter referred to in that timeline cannot support a finding that the tweet brought the Appellant or the Respondent into disrepute.

[138] For all of these reasons the Appellant says that the finding of the Commissioner is in error.

[139] The Respondent submits that the parents of Student A were ‘distraught and furious’ upon finding the tweet published by the Appellant. The Respondent submits that, despite the Appellant’s submission put on appeal that the parents of Student A were ‘completely neutral and agnostic,’ that is inconsistent with the Appellant’s closing submissions at first instance in which the Appellant outlined the events as follows:

“12 February 2020: Student A’s parents meet with Mr Russell and Ms Canny and were “angry and emotional”. Student A’s mum was “angry and upset”. Student A’s parents show Mr Russell and Ms Canny the Fosse/Verdon Tweet that had been found by Student A’s father. …Student A’s mother is said to be crying and angry stating “I want him gone, we are done. This is enough!” 117

[140] We are satisfied that, taking into account the Respondent’s submissions as to the state of the parents of Student A on 12 February 2021 in conjunction with the email of the father of Student A that evening, 118 the Commissioner could reasonably infer that the parents were distraught, angry and emotional with respect to the tweet. The email of the father cannot be seen in isolation of what occurred in the meeting with the parents, or their state, earlier that day as described in the Appellant’s closing submissions. It is apparent that the parents’ concerns went to the content of the tweet and the ability to easily link the tweet account of the Appellant to the Respondent. On Ms Canny’s suggestion that the tweet was on the Appellant’s private account and so ‘does not link to anything,’ Student A’s father replied that the Appellant’s twitter account links to his blog which references that he is a teacher “at St Kevin’s”. 119

[141] It is clear from this that, in addition to the tweet being posted on the same day as the 14 June 2019 incident, the parents of Student A were concerned that it was not difficult to find the Appellant’s link to the Respondent.

[142] In our view the evidence before the Commissioner does not support the Appellant’s submission that the parents were agnostic about the tweet when the email of Student A’s father is seen in this context.

[143] We are satisfied that there is no error on the part of the Commissioner in relation to the views of the parents. We are satisfied that the decision was reasonably open to the Commissioner on the basis of the evidence before him.

Appeal grounds 5 & 5A – errors in finding the Appellant was dishonest in the investigation and the denial of procedural fairness to the Appellant on those findings

[144] In the Decision the Commissioner found:

“[253] The Respondent invites the Commission to find that the [Appellant] was not honest and truthful during the investigation process pertaining to the June 14 incident. I agree that the evidence supports that finding. The [Appellant] did not admit to touching the leg of Student A, which objectively renders the conduct of the [Appellant] more serious than it was on the facts admitted to at the time by the [Appellant].

[254] Further, the [Appellant] misled Ms Canny in his reflection note for the reasons set out earlier. His reflection note fell far short of the conduct the [Appellant] actually engaged in. He also misled Mr Russell when he denied the leg touching allegation when it was put to him. Dishonesty in an investigation process can be a valid reason for termination, and I am satisfied that it is in this matter a valid reason for dismissal.”

[145] In considering if there was a valid reason for dismissal, the Commissioner said:

“[291] I have found, for the reasons set out earlier, that the [Appellant] was dishonest and misled the Respondent in its investigation of the June 14 incident. The [Appellant] sought to minimise, downplay and deny aspects of what he actually did to Student A on June 14 to the Respondent when it investigated it.

[292] An employee’s dishonesty may constitute misconduct and a valid reason for dismissal. The [Appellant’s] failure to be truthful with his Respondent about the conduct on June 14 is most certainly misconduct. The [Appellant] had an obligation to be truthful to the Respondent. This is particularly so where the safety of a student was in issue. This dishonesty is a further valid reason for dismissal.”

[146] There are three specific findings of the Commissioner within this ground of appeal:

•  Firstly that the Appellant ‘misled Ms Canny in his reflection note…[which] fell far short of the conduct the [Appellant] actually engaged in.’ (appeal ground 5(a)).

•  Second that the Appellant ‘misled Mr Russell when he denied the leg touching’ incident. (appeal ground 5(b)).

•  Third that the Appellant was dishonesty in the investigation which, in this case, provided a valid reason for dismissal. (appeal ground 5(c)). 120

[147] The Appellant says that the Commissioner could therefore not conclude that this conduct gave rise to a valid reason for dismissal.

Appeal Ground 5(a) - finding the Appellant misled Ms Canny

[148] The Appellant says the Commissioner’s finding that the Appellant misled Ms Canny cannot stand as neither Ms Canny nor Mr Russell gave evidence, it was never ‘squarely put’¹²¹ to the Appellant that he misled or was dishonest with Ms Canny or Mr Russell and the Respondent did not raise the Appellant’s dishonesty as a valid reason for dismissal until closing written submission.

[149] The Appellant submits that the conclusion drawn by the Commissioner that the Appellant misled Ms Canny is based on acceptance of a submission of the Respondent and not on the evidence. The Respondent’s submission was based on the Appellant’s ‘Personal Reflection’ written on 19 June 2019.¹²² The Appellant submits that the finding was not open to the Commissioner because Ms Canny did not give evidence that she was misled. In such circumstances the Commissioner’s finding that the Appellant misled Ms Canny was inferential and not based on witness credit.

[150] The Appellant submits that the evidence demonstrates that the Personal Reflection written by him and given to Ms Canny was done not in response to any request or requirement that he provide a written response. In this respect the Appellant submits that Ms Canny cannot have been misled. The Appellant submits that the evidence demonstrates that Student A reported the conduct of the Appellant to Mr Coyne and Mr McFarlane on 17 June 2019.¹²³ Mr Macfarlane records in the notes provided to Ms Canny what was disclosed by Student A and what Mr Macfarlane saw on the CCTV footage. Ms Canny met with the Appellant on 19 June 2019¹²⁴ and told him what she had been told. The Appellant accepts what is said and apologises.¹²⁵

[151] On 20 June 2019 Ms Canny wrote to the Appellant and said:

“…Thank you for attending the meetings with the Director of Studies, Mr Gary Jones and myself on Wednesday, 19 June and Thursday, 20 June 2019, where you acknowledged the above situation had occurred. You were relieved of your teaching duties yesterday and asked to go home. I note receipt of a written report by you in which you take full responsibility for your actions and reflect deeply on your inappropriate behaviour…” 126

[152] The Appellant submits that this indicates that Ms Canny was clear as to what the ‘personal reflection’ was about and does not provide a basis to conclude that Ms Canny was misled.

[153] The Respondent submits that the Appellant wrote in his Personal Reflection which he provided to Ms Canny that ‘I put my arm around [Student A’s] shoulder in saying thank you for the work…I acknowledge that I used some sort of affectionate term…’ and this was the limit of the interaction the Appellant admitted to Ms Canny.

[154] Student A gave evidence that on 14 June 2019 the Appellant hugged him a few times, hugged him at the beginning and end of the conversation, hugged him using his arm to pull Student A closer and that the hugs felt constricting.¹²⁷

[155] The unchallenged evidence of Mr Macfarlane is that, in viewing the CCTV footage, he saw a hug at the beginning and at the end of the incident of 14 June 2019.

[156] Given these circumstances the Respondent says that the ‘reflection’ of the Appellant provided was inaccurate and was ‘an exercise in minimisation’.

[157] The Commissioner considered the evidence of the Appellant in relation to the 14 June 2019 incident. The Commissioner noted a number of concessions of the Appellant as to what did occur on 14 June 2019. Following a meeting with Ms Canny on 19 June 2019 the Appellant wrote a ‘Personal Reflection’ which he sent to Ms Canny that day. In the Personal Reflection the Appellant took ‘full responsibility for his behaviour.’ 128 To the extent that the Personal Reflection dealt with the physical actions of the Appellant on 14 June 2019 it said:

“I recollect that I put my arm around [Student A’s] shoulder in saying thank you for the work, for which I was very grateful. Looking back, I do not know why I did this and, of course, I deeply regret it. I acknowledge that I used some sort of affectionate term in asking if [Student A] was feeling ok. Looking back, this is very odd to me now as I so rarely, if ever, speak like that. Nonetheless, I do not argue the point, and I can fully see how this would make [Student A] feel very uncomfortable.” 129

[158] In his evidence before the Commission at first instance the Appellant said of the incident of 14 June 2019 in relation to the ‘hug’ ‘I don’t call a hug what happened, although I can see how it can be called that.’¹³⁰

[159] Mr Macfarlane gave evidence that he had viewed the CCTV footage of the incident. His evidence was there were ‘two hugs that I witnessed, Mr Parris lounging across Student A with his arm around his back…’. He said that there was a hug ‘early in the conversation’ and another ‘at the end of the conversation.’¹³¹

[160] It was put to the Commissioner by the Respondent that it was open to him, on the evidence, to find that the Appellant had misled Ms Canny in the Personal Reflection in that he ‘minimises’ his hug to him putting ‘[his] arm around [Student A’s] shoulder in saying thank you.’ The Respondent said the Commissioner should ‘find there were two hugs and a slow creep forward down the couch toward a reticent Student A’ and that the Appellant ‘lacked candour and failed to tell the truth about what in fact he did on 14 June 2019.’ 132

[161] The Commissioner found:

“[109] I agree that the findings above are open for the reasons described, and on the balance of probabilities, I am satisfied that is what occurred. In reaching this finding, I have taken into account the standard in Briginshaw v Briginshaw (Briginshaw). For reasons set out more fully later in the decision, where there is a conflict in the evidence between the [Appellant] and Student A or Mr Macfarlane, I prefer the evidence of Student A and Mr Macfarlane. The [Appellant] has misled Ms Canny in his reflection for the reasons summarised by the Respondent above. The clear and cogent evidence of Mr Macfarlane corroborates what Student A claims occurred, with the exception of the leg touching. It is to that allegation that I will now turn to in more detail.”

[Underlining added]

[162] The Commissioner had before him the Personal Reflection provided by the Appellant to Ms Canny on 19 June 2019 following the meeting with her where the 14 June 2019 incident was raised with him. It cannot be divorced from the context in which it was provided.

[163] We are satisfied that it was open to the Commissioner to find that the Appellant misled Ms Canny in the Personal Reflection. The Appellant provided the Personal Reflection to Ms Canny, and put it into evidence (noting that in his oral evidence he shifted from a description of the incident as a ‘hug’ to being ‘a brief pat on the shoulder’ 133). The Commissioner found, on the balance of probabilities and on acceptance of the evidence of Mr Macfarlane and Student A, that the Appellant did hug Student A at least twice. This conflict between the Personal Reflection and the findings of the Commission was the basis on which the Commissioner found that the Appellant had misled Ms Canny in the Personal Reflection.

[164] We accept that the Appellant was not required to provide a written response to the matters raised with him by Ms Canny on 19 June 2019 but he voluntarily did so. He did not provide it to Ms Canny in any other context. Ms Canny appears to have taken that report as an acknowledgement by the Appellant of his inappropriate behaviour. She said as much in the Reportable Conduct Notification completed by her on 25 July 2019. 134 To the extent the Appellant was not truthful in the Personal Reflection or the Appellant lacked candour in it the Commissioner could reasonably find as he did.

[165] We are not satisfied that there was an error on the part of the Commissioner in finding that the Appellant misled Ms Canny.

Appeal Ground 5(b) - Appellant misled Mr Russell

[166] The Appellant submits that the Commissioner’s finding that the Appellant misled Mr Russell when the Appellant denied the leg touching incident is not sound as Mr Russell did not give written or oral evidence at first instance and the allegation that he misled Mr Russell was not put to the Appellant in cross-examination. To the extent this finding was based on a finding that Mr Russell accepted the Appellant’s denial as to the leg touching allegation,¹³⁵ the Appellant submits that finding ‘mistakes or misunderstands’ the evidence. The Appellant submits that the evidence does not support that Mr Russell put anything to the Appellant about the leg touching incident but rather that Mr Russell formed his own view as to the leg touching and informed the Appellant of his view.¹³⁶

[167] The Respondent submits that the Appellant’s evidence at first instance was that he denied touching Student A’s leg to Mr Russell. The Commissioner however found that that conduct had occurred and it was therefore open to the Commissioner, on the conduct he found to have occurred, to conclude that the Appellant had misled Mr Russell when he said that conduct did not occur.

[168] The Respondent submits that Mr Russell took no action against the Appellant in relation to the leg touching incident as he accepted the Appellant’s denial that it had occurred.

[169] We have carefully reviewed the evidence of the Appellant, both in his written statement and that given at first instance. We are not satisfied that it was open on the evidence for the Commissioner to conclude that the Appellant denied to Mr Russell that the leg touching incident occurred.

[170] The Appellant’s evidence is that on Tuesday 20 August 2019 he had a meeting with Mr Russell and Ms Canny. In his written evidence the Appellant said:

“Mr Russell told me that he had been told by a counsellor that [Student A] had said that I had put my hand on [Student A’s] leg while he and I were working on his laptop whilst sitting on the couch on 14 June 2019. This was not true. It was the first time that that allegation had been made. I was upset at the time to hear this allegation.”137

[171] This statement by the Appellant is ambiguous at best. Whilst he is clear that he says the leg touching was not true, it is not apparent from the evidence that the alleged conduct was put to him by Mr Russell (as opposed to Mr Russell telling him the allegation was made) or that he said it was not true to Mr Russell. The written evidence could be read that the denial was being made in the context of the statement and not as a reflection of what occurred in August 2019.

[172] The transcript of proceedings does not otherwise disclose that the Appellant was questioned on the conversation with Mr Russell on 20 August 2019. The Appellant did give evidence that he denied touching Student A’s leg in response to a direct question in cross-examination¹³⁸ but there is no reliable evidence that he denied the incident directly to Mr Russell.

[173] In this respect we are satisfied that the Commissioner misunderstood the evidence before him. To the extent that finding underpins the Commissioner’s conclusion that the Appellant misled Mr Russell, he was in error. This is an error of fact.

Appeal ground 5(c) - that the Appellant was dishonest in the 14 June 2019 investigation

[174] The Commissioner found that the Appellant had been dishonest.¹³⁹

[175] The Appellant submits that, on the grounds that he did not mislead Ms Canny or Mr Russell, it cannot be found that he was dishonest.

[176] The Respondent submits that the Appellant’s lack of candour to Ms Canny during her investigation was put to him during cross-examination. This was in the context of the Appellant putting the Personal Reflection into evidence as a contemporaneous account of the 14 June 2019 incident. It was put to the Appellant in cross-examination that he sought to diminish the extent of the hug or physical contact with Student A and that, in this, he was challenged as to the accuracy of the content of the Personal Reflection. The Respondent therefore submits that there was a sound basis for the Respondent to put in the proceedings below that the Appellant was not honest in the investigative process.

[177] The Respondent seeks to distinguish these circumstances from those in Newton where it was never put to the applicant that he was not being honest. In this case, the Respondent says it was put to the Appellant that he had been dishonest in the investigation by Ms Canny and he denied that this was so. As the dishonesty of the Appellant was put in cross-examination, the Respondent submits it was not necessary for the Commissioner to put charges of dishonesty to the Appellant.¹⁴⁰

[178] We are satisfied that there were grounds on which the Commissioner could reach his finding that the Appellant had been dishonest in the investigation. In the Appellant’s Personal Reflection, written 5 days after the 14 June 2019 incident, provided by him to Ms Canny that day and put in evidence by the Appellant, the Appellant said:

“I recollect that I put my arm around [Student A’s] shoulder in saying thank you for the work, for which I was very grateful.”141

[179] Whether the Appellant had been dishonest was put to him in cross-examination by Counsel for the Respondent.

[180] The Appellant agreed that he had told Ms Canny he could not ‘recall specifically the extent of the hug’ but that it was his best recollection at that time. The Appellant further agreed that what he said to Ms Canny ‘was so close to the events of 14 June’ he was being honest at the time.¹⁴²

[181] Under cross-examination the Appellant gave evidence, when asked why he was so close to Student A, that he had ‘leaned across to put [his] arm to say “Thank you” ’.¹⁴³ The Respondent put to the Appellant in cross-examination:

“You have come along to give evidence now, whether it be written or oral, and you have said, “No, no, no, it was just at the end, it was a half hug”, as you have described it, “It was just across the shoulder.”  That has been your evidence today, hasn’t it?---Yes.”144

[182] The Respondent also put to the Appellant in cross-examination:

“What you have done since that time is you’ve sought to diminish or reshape your evidence to now say, “Oh, no, it was a momentary half hug with a hand around him.” That’s what you're saying now, aren’t you?---Well I wrote a reflection the same day when Ms Canny spoke to me.

I am asking you whether you have changed your evidence now to diminish the extent of the hug or the physical conduct?---I’d say no.¹⁴⁵

…

No.  So, right back on 19 June, you could not recall the extent of the hug that you gave to Student A on the couch, could you?---When Ms Canny first spoke to me about it, I was taken aback and I had to think carefully about what happened and I couldn't recall it immediately, no.

But that was five days after the event, wasn’t it?---Yes

And you couldn't recall the extent of the hug.  You know that Student A is going to come along and talk about what he experienced, but now, when you come to file your material and you are giving oral evidence, you now appear to have a very clear recollection of the nature of the hug, don’t you, Mr Parris?---Yes, to the best that I can describe what happened, yes.

What I am putting to you, Mr Parris, is that you have shaped your evidence over time to diminish the nature of the wrongdoing, the hug that you gave to Student A.  That’s right, isn’t it?---No.”¹⁴⁶

[183] It is apparent from this evidence that it was put to the Appellant that he had been dishonest in the investigation in relation to the 14 June 2019 incident in regard to what he had said to Ms Canny with respect to the extent of the ‘hug’. His evidence was that he told Ms Canny on 19 June 2019 that he could not recall the extent of the hug but his evidence before the Commission was that it was ‘a half hug’ and ‘just across the shoulder’. 147 On this basis it was reasonable for the Respondent to put a submission to the Commissioner that the Appellant had not been honest in the investigation - that 5 days after the 14 June 2019 incident he could not recall the extent of the hug but now, at hearing, could recall that it was ‘a half hug’.

[184] Further, we are satisfied that it was put to the Appellant that he had sought to shape his evidence to diminish the extent of the wrongdoing and this is evident throughout the questioning of the Appellant by the Respondent.¹⁴⁸ In this respect we consider that it was squarely put to the Appellant that he was changing his evidence. We are satisfied that the Appellant understood that this was in the context of the changing of his evidence and that he had not been honest in what he had said to Ms Canny of the hug.

[185] It is not apparent however that it was put to the Appellant either by the Respondent or by the Commissioner that the Appellant had been dishonest with Mr Russell in relation to the leg touching incident. The finding of dishonesty in the investigation with Mr Russell is therefore in error.

Appeal ground 5(d) - consequent to grounds 5(a) – (c) the conduct could not have given rise to a valid reason

[186] For the reasons given above we are satisfied that the Commissioner could reasonably conclude that the Appellant had misled Ms Canny and had been dishonest in the investigation in relation to what he told Ms Canny of the extent of the hug he gave to Student A. We are not satisfied that it could be concluded that the Appellant misled Mr Russell or was dishonest in relation to the leg touching incident.

[187] The Commissioner was entitled to consider whether the Appellant’s dishonesty in dealing with Ms Canny provided a valid reason for dismissal. However, he determined the dishonesty with respect to Ms Canny and Mr Russell together 149 and it is not clear what weight was given to the dishonesty with Ms Canny compared to that of Mr Russell. For this reason we consider the finding as to dishonesty and the reliance on it as a valid reason for dismissal to be attended by doubt.

Appeal Ground 5A - denial of procedural fairness

[188] The Appellant submits that the Commissioner denied him procedural fairness in coming to the conclusions referred to in appeal ground 5 (above). The Appellant submits that, based on the reasoning in Newton it was incumbent on the Respondent or the Commissioner to squarely put such allegations of dishonesty to the Appellant and neither did so.

[189] The Appellant says the Commissioner was required to act judicially and accord the Appellant procedural fairness. The failure to do so amounted to jurisdictional error.

[190] The Respondent submits that, even if there was a denial of procedural fairness in relation to the finding of dishonesty there was no ‘practical’ injustice as the findings of a valid reason in relation to the pornography matter and the inappropriate email finding have not been challenged on appeal and these two findings alone are enough to stand a finding as to valid reason for dismissal. On these grounds alone the Commissioner could reach the conclusion he did.

[191] For the reasons given above we are satisfied that this ground of appeal is made out in relation to the finding that the Appellant misled Mr Russell and was dishonest in the investigation in relation to the leg touching incident. It was not put to the Appellant that he had misled or had been dishonest in his dealings with Mr Russell in relation to the leg touching incident. Whilst it may be difficult to accept that Mr Russell told the Appellant he had been advised of the leg touching but had reviewed the CCTV footage and considered the action ‘physically could not have happened’ without the Appellant making any comment on the allegation that is, with respect, not the test to be applied. A finding of dishonesty requires that the allegation be put to the Appellant. This much is readily apparent from the decision in Newton. This, however, did not occur in relation to the leg touching incident.

[192] We are satisfied that the Appellant was afforded procedural fairness with regard to dishonesty in relation to the hug and what he said to Ms Canny on 19 June 2019. This was put to the Appellant during cross-examination.

[193] We therefore find that this ground of appeal is made out in relation to the leg touching incident but not in relation to the extent of the hug.

[194] We concur with the Full Bench in Newton that, if a member of the Commission finds there is a valid reason for dismissal which is not expressly advanced by the employer, then it must act judicially and accord the parties procedural fairness.¹⁵⁰ However, we also agree that a failure to do so does not, of itself, render the decision invalid.¹⁵¹ In Stead v State Government Insurance Commission (Stead) 152 the High Court said, of the principal of natural justice:

“9 .…That general principle is, however, subject to an important qualification…Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

10. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.” 153

[195] We have further considered below if the error identified and the denial of procedural fairness in relation to this issue is enough to impugn the decision of the Commissioner such that it should be quashed.

Appeal ground 2 – the Commissioner failed to deal with or provide adequate reasons for rejecting the Appellant submissions with respect to hugging of students at Newman College in February 2020 and credit of Student A

Appeal ground 3 – the Commissioner erred in finding the leg touching incident occurred

Appeal ground 4 – the Commissioner erred in finding the Appellant hugged students at Newman College and other students after 14 June 2019

[196] The Appellant accepts that a challenge to these findings turns on findings as to the credit of witnesses and, therefore, sets a high bar to succeed. 154 However, the Appellant contends that the Commissioner erred by not weighing up and assessing all the evidence and inferences available from that evidence.155 The Appellant submits that, given the concerns expressed by the Commissioner, he should have rejected the evidence of Student A. The Appellant submits that the Commissioner erred because he failed to deal with the submissions of the Appellant and give adequate reasons because these submissions were ‘material to the issue of credit.’ A failure to mention these submissions in the Decision reveals that they were not considered by the Commissioner.

[197] The Commissioner also found, on the balance of probabilities, that on 14 June 2020 the Appellant put his right hand on Student A’s upper right thigh and moved it up and down Student A’s thigh two or three times. In reaching this conclusion the Commissioner indicated that he preferred the evidence of Student A to that of the Appellant. 156

[198] The Appellant submits that this finding is wrong. He submits that it was ‘clearly or glaringly improbable’ that the Appellant engaged in this conduct. He also submits that Mr Mcfarlane watched the CCTV footage of 14 June 2020 and what he saw was as it was described to him by Student A on 17 June 2019 and that Student A did not describe the incident to Mr Macfarlane and Mr Coyne on 17 June 2019 as he now put in his witness statement. Mr Macfarlane did not witness the incident as found by the Commissioner not because he could not see the Appellant’s arm and Student A’s leg in the CCTV footage but, the Appellant says, because it did not happen.

[199] The Respondent submits that the matters raised in grounds 2, 3 and 4 in the amended notice of appeal go primarily to finding of credit of the Commissioner below. Further, it submits that the Appellant does not challenge those credit findings.

[200] With respect to the Newman College matter (appeal ground 2) the Respondent says that the finding of fact of the Commissioner is based on the credit findings but did not constitute a part of the valid reason for dismissal and hence it has no impact on the outcome.

[201] With respect to the leg touching incident (appeal ground 3) the Respondent submits that the Commissioner determined that the Appellant’s denial of the leg touching incident lacked credibility. This finding, it says, was based on a ‘contested factual matrix, squarely proceeding from a credit finding.’ It submits that the Appellant must demonstrate that the finding of fact was ‘glaringly improbable’.

[202] The Respondent further submits that the Commissioner was ‘detailed and elaborate’ in setting out the evidence adduced in relation to the 14 June 2019 incident, including the leg touching, and reasoned through his findings in what it submits was a ‘hotly contested terrain.’ 157

[203] The evidence of Mr Macfarlane was neutral on the question of what he saw – having explained that the angle at which the Appellant sat on the couch obscured his view and that the screenshot 158 is one point in time in the entire interaction on 14 June 2019. The screenshot is also ‘equivocal’ because of the angle of the camera.

[204] The facts as determined by the Commissioner can, the Respondent says, be rationally reconciled. 159

[205] With respect to appeal ground 4 the Respondent submits that this covers the same ground as appeal ground 2(a). Alternatively it says the findings of fact proceed on the basis of findings as to credit. Student A was believed and the Appellant found not to be a witness of credit.

[206] Again the Respondent says that it is to the Appellant to demonstrate that the finding was glaringly improbable in a Fox v Percy 160 sense and it has failed to do so.

[207] In relation to each of these matters, much turns on the findings of credit made by the Commissioner. These findings were extensive.

[208] The Commissioner made general findings as to the reliability and credibility of the evidence of the Appellant. 161 He also found specifically of the Appellant:

“The [Appellant] was a most unsatisfactory and unimpressive witness. His evidence was often self-serving and evasive. The [Appellant] often sought to minimise the conduct he was involved in and concocted dubious excuses to explain the misconduct that he admits to. The Respondent submits that the evidence of the [Appellant] should be viewed with caution. I agree with that proposition for the following reasons.” 162

[209] The Commissioner set out detailed reasons as to why he had reached this conclusion, 163 none of which is challenged by the Appellant in these proceedings.

[210] The Commissioner found that Student A was ‘a credible and cogent witness’ throughout the proceedings. 164 In so doing he rejected the Appellant’s submissions as to why he should not find Student A’s evidence credible.165

[211] The Commissioner also found Mr Macfarlane to be truthful 166 and Student B to be credible.167

[212] Having regard to the matters set out in relation to his assessment of the credibility of all witnesses the Commissioner concluded that ‘the evidence of the [Appellant] is not preferred where it conflicts with any of Student A’s, Student B’s or Mr MacFarlane’s evidence.’ 168

[213] In DeVries and Another v Australian National Railways Commission and Another 169 the High Court observed that:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable”.”

[Footnotes omitted]

[214] In Short v Ambulance Victoria 170 the Full Court of the Federal Court said:

“In Fox v Percy [the High Court] reiterated that a finding of fact by a trial judge, based on the credibility of a witness, will usually only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that a decision was clearly improbable or contrary to compelling inferences...” 171

[215] We would observe that the matters subject to appeal, to the extent they go to findings in relation to the hugging of students after 14 June 2019 at the Newman College and at other times (appeal grounds 2(a), 4(a) and 4(b)), are not matters that affected the Decision of the Commissioner in any way. Whilst the Commissioner preferred the evidence of Student A to that of the Appellant he did not consider that he could conclude either matter was misconduct. The Commissioner reached this conclusion because he did not have adequate evidence before him to decide otherwise. We see no error in the reasoning of the Commissioner in this respect. In relation to each of these matters the Commissioner weighed up the evidence before him, made decisions as to which evidence he preferred but ultimately did not have regard to the conduct in reaching his decision.

[216] To the extent that the Respondent challenges the findings on the basis of credit, any detailed consideration of these two findings takes the appeal nowhere. Ultimately, the Commissioner did not consider these matters in making his findings as to valid reason or the determination as to whether the dismissal was unfair.

[217] With respect to the leg touching incident the Commissioner gave consideration to the evidence of Student A, Mr Windle and the Appellant. Ultimately the Commissioner found that he preferred the evidence of Student A as to what he told the school counsellor, that is that he had told the counsellor that the Appellant had touched his leg. 172 The Commissioner found the evidence of Student A to be credible and consistent with what he told Mr Windle on 23 August 2019. He also observed that the evidence of Mr Windle was not ‘seriously challenged’ and, we note, has not been challenged on appeal.

[218] Mr Windle’s evidence was that:

“In the afternoon on Friday, 23 August 2019 I was teaching Revs when I noticed that Student A was deep in a discussion with other students. I saw that he had a worried look on his face. With the Declining Performance and Vaping Incident also in mind, I approached Student A after class. I asked Student A whether there was something going on. Student A then said to me that in June 2019 Mr Simon Parris (Mr Parris) had sat down next to him on a couch in the McCarthy area and had hugged him and had put his hand on Student A’s inner thigh (the Incident). Student A said to me that the Incident had affected him more than he had thought…Student A became emotional and started to cry while he was explaining these matters to me. He was very emotional and I sensed that he was preoccupied by these matters. He seemed deeply affected in the retelling of these events…” 173 

[219] The Commissioner indicated that the evidence of Mr Mcfarlane was that, on reviewing the CCTV footage, he could not see Student A’s leg because it was obscured by the Appellant. 174

[220] With respect to the leg touching incident, the Commissioner found as follows:

“[250] Ultimately, the finding on whether or not the [Appellant] was rubbing the leg of the [Student A] comes down to one of credit, as between Student A and the [Appellant]. I have already indicated the reasons I prefer the evidence of Student A to that of the [Appellant]where there is an inconsistency.

[251] The fact that Student A took some time to fully articulate what happened on June 14 regarding the leg touching is understandable. His evidence was that he was embarrassed about it. Further, as referred to earlier, Student A was at the time of the misconduct, a minor, and he has experienced some psychological trauma as a result of it. As Student A said, he was still processing it. Student A’s direct evidence is that the told Ms Keel that the [Appellant] “touched [his] leg.” Ms Keel recorded that the [Appellant] placed his hand on Student A’s knee. I prefer the direct evidence of Student A as to what he said to Ms Keel. Further, Student A told Mr Windle only days after speaking to Ms Keel in August that the [Appellant’s] hand was on his inner thigh.

[252] The [Appellant] denies any leg touching at all. His evidence as to the June 14 incident overall lacks credibility for the reasons set out earlier. I prefer the evidence of Student A where it conflicts with the [Appellant’s]. On the balance of probabilities, I find that the [Appellant], on June 14, put his right hand on Student A’s inner right thigh. The denials by the [Appellant] that he touched the leg of Student A at all is consistent with his self-serving minimising and sanitising of the June 14 incident. I do not accept the [Appellant’s] denial that he touched the leg of Student A in the manner described by Student A. Having regard to the evidence, I am satisfied on the balance of probabilities that the [Appellant] on June 14, when sitting next to the Student A on the couch, put his right hand on Student A’s upper right thigh and moved it up and down his upper thigh two or three times.”

[Endnote omitted]

[221] Having reviewed the evidence we are not satisfied that the Appellant has identified incontrovertible facts or uncontested testimony that raise doubt as to the conclusion reached. What the Appellant has done is identify a contested issue on which there were contested facts. The Commissioner weighed these matters and reached a conclusion that was reasonably open to him.

CONCLUSION

[222] In circumstances where a jurisdictional error is identified we consider it appropriate to grant permission to appeal and we do grant permission.

[223] However, of the grounds of appeal, only those in relation to the findings of dishonesty and the related procedural fairness ground are upheld. The Commissioner found a number of valid reasons for the dismissal beyond the dishonesty. These were the conduct of the Appellant on 14 June 2019 and the effect of this on Student A, the ‘wet dream’ tweet in relation to a breach of the Code of Conduct, the storage and viewing of hard core pornography on a school device and the inappropriate emails.

[224] For the reasons given in Stead, set out above, we are satisfied that, absent the findings of dishonesty and the related procedural fairness issue, the decision of the Commissioner in finding valid reasons for dismissal, the associated findings pursuant to s.387(b)-(h) of the FW Act, and his conclusion that the dismissal was not unfair, is sound.

[225] For the reasons given, we dismiss the appeal.

VICE PRESIDENT

Appearances:

Mr J Darams of counsel for the Appellant.

Mr N Harrington of counsel for the Respondent.

Hearing details:

2021.
Sydney by telephone.
August 12.

Printed by authority of the Commonwealth Government Printer

<PR734884>

 1   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341

 2   Ibid at [32]

 3   Ibid at [33]

 4   Ibid at [34]

 5   Ibid at [35]

 6   Ibid at [36]-[37]

 7   Ibid at [40]

 8   Ibid at [46]

 9   Ibid at [50]

 10   Ibid at [61]

 11   Ibid at [62]

 12   Ibid at [67]

 13   Ibid at [69]-[70]

 14   Ibid at [71]-[72]

 15   Ibid at [83]-[109]

 16   Ibid at [86]

 17   Ibid at [101]-[102]

 18   Ibid at [90]

 19   Ibid at [94]

 20   Ibid at [94]; Transcript at PN3765

 21   Ibid at [95]

 22   Ibid at [106]

 23   Ibid at [107]

 24   Ibid at [108]

 25   Ibid at [117]

 26   Ibid at [110]

 27   Ibid at [111]

 28   Ibid at [112] and [114]

 29   Ibid at [123]-[124]

 30   Ibid at [127]

 31   Ibid at [130]

 32   Ibid at [132]-[144]

 33   Ibid at [133]

 34   Ibid at [135]

 35   Ibid at [145]-[154]

 36   Ibid at [145]-[148]

 37   Ibid at [149]-[150]

 38   Ibid at [152]

 39   Ibid at [155]-[162]

 40   Ibid at [163]

 41   Ibid at [169]

 42   Ibid at [170]

 43   Ibid at [171]

 44   Ibid at [178]

 45   Ibid at [181]

 46   Ibid at [191]

 47   Ibid at [196]-[203]

 48   Ibid at [206]-[207]

 49   Ibid at [211]-[212]

 50   Ibid at [213]

 51   Ibid at [214]

 52   Ibid at [215]

 53   Ibid at [216]

 54   Ibid at [219]

 55   Ibid at [222]

 56   Ibid at [226]

 57   Ibid at [238]

 58   Ibid at [231]

 59   [2019] VSCA 186 at [76]

 60   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [246]

 61   Ibid at [247]

 62   Ibid at [249]

 63   Ibid at [250]

 64   Ibid at [251]

 65   Ibid

 66   Ibid at [252]

 67   Ibid at [254]

 68   Ibid at [255]

 69   Ibid at [258]

 70   Ibid at [261]-[263]

 71   Ibid at [264]

 72   [2016] FWC 7906

 73   (2001) 107 IR 117

 74   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [275]

 75    (1996) 68 IR 407

 76  Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [279]

 77   Ibid at [280]

 78   Ibid at [281]-[281]

 79   Ibid at [283]

 80   Ibid at [284]

 81   Ibid at [288]

 82   Ibid at [285]

 83   Ibid at [287]

 84   Ibid at [289]

 85   Ibid at [292]

 86   Ibid at [300]

 87   Ibid at [301]-[302]

 88   Ibid [303]-[305]

 89   Ibid at [306]-[310]

 90   Amended grounds of appeal filed 30 June 2021

 91   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341

 92    Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 93   Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [43]

 94    O’Sullivan v Farrer and Another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [44]-[46]

 95   (2010) 197 IR 266 at [27]

 96    Wan v Australian Industrial Relations Commission and Another (2001) 116 FCR 481 at [30].

 97    GlaxoSmithKline Australia Pty Ltd v Makin 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth , 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office  (2014) 241 IR 177 at [28]

 98   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [280]

 99   [2021] FWCFB 3457

 100   Ibid at [75]; Appeal transcript at PN26

 101   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p. 373. See also Bista v Glad Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009 at [37]

 102   Appeal transcript at PN101-102

 103   [2016] FWC 7906

 104   [2014] FWC 5072 

 105   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [135]

 106   Ibid at [134]

 107   Toll Holdings Limited t/a Toll Transport v Johnpulle (Jonpulle) [2016] FWCFB 108 at [15]

 108   Also see Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Michael Hatwell v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092

 109   Witness statement in reply paragraph 73; Appeal Book, p. 1064

 110   Appeal Book, p. 113; Transcript PN515

 111   Appeal Book, p. 113; Transcript PN518-519

 112   Appellant witness statement dated 26 May 2020 at para 49(b); Appeal book, p. 588

 113   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341

 114   Ibid at [284]

 115   Edwards v Guidice and Others (1999) 94 FCR 561 at [6]-[7] per Moore J; Rail Corporation New South Wales v Vrettos (2008) 176 IR 129 at [27]; King v Freshmoore (Vic) Pty Ltd Print S4213 at [23]-[26])

 116   Appeal Book, p. 1186-1197, particularly at p. 1194

 117   Appeal Book, p. 1256

 118   Appeal Book, p. 831

 119   Ibid

 120   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [254]

121 Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [128]

122 Appeal Book, pp. 606-607

123 Appeal Book, p. 1077

124 Appeal Book, p. 846

125 Appeal Book, p. 847

 126   Appeal Book, p. 862

127 Appeal Book, p. 931

 128   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [33]

129 Appeal Book, 606

130 Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [90]

131 Ibid at [94]-[95]

 132   Ibid at [108]

 133   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [78]

 134   Appeal Book, p. 845

135 Ibid at [43]

136 Appellant’s submissions dated 30 June 2021 at para. 10(a); Appeal Book, p. 588-589

137 Appeal Book, p. 587

138 Appeal Book, p 182; Transcript PN1236-1241

139 Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [254]

140 See Kuhl v Zurich Financial Services Australia Ltd and Another (2011) 243 CLR 361. See also discussion in Newton v Toll Transport Pty Ltd [2021] FWCB 3457 at [105]-[112]

141 Appeal Book, p. 606

142 Appeal Book, p. 179; Transcript at PN1203-PN1207

143 Appeal Book, p. 177-178; Transcript at PN1189

144 Appeal Book, p.179; Transcript at PN1204

145 Appeal Book, p. 179; Transcript at PN1208-PN1209

146 Appeal Book, p. 180; Transcript PN1215-1218

 147   Appeal Book, p. 179; Transcript at PN1204

148 See Appeal Book, p. 180; Transcript at PN1218

 149   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [292]

150 Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [66]

151 Re Refugee Tribunal and Another; ex parte AALA (2000) 204 CLR 82 at [104]

 152   (1986) 161 CLR 141

 153   Ibid, 145

 154   Short v Ambulance Victoria (2015) 249 IR 217 at [98]

 155   See Appellant written closing submissions [36]-[43]; Appeal Book at pp. 1266-1270

 156   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341at [252]

 157   Ibid [242]-[252]

 158   Appeal Book, p. 858. See addition high resolution photo filed separately to replace Appeal Book, p. 858

 159   Fox v Percy (2003) 214 CLR 118 at [49]

 160   Ibid

 161   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [225] and [228]

 162  Ibid at [222]

 163   Ibid at [223]-[228]

 164   Ibid at [238]

 165   Ibid at [236]-[237]

 166   Ibid at [239]

 167   Ibid at [240]

 168   Ibid at [241]

 169   (1993) 117 CLR 472

 170   (2015) 249 IR 217

 171  Ibid at [99]

 172   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [115]

 173   Ibid at [117]; Appeal Book at p. 926

 174   Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [118]