Sibai v Secretary, New South Wales Department of Education [2020] NSWIRComm 1071

Industrial Relations Commission New South Wales Medium Neutral Citation: Sibai v Secretary, New South Wales Department of Education [2020] NSWIRComm 1071 Hearing dates: 6, 21 and 22 July 2020 Decision date: 21 October 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – casual classroom teacher – allegations he exposed offensive images on a computer to two female students – abusive and insulting communications with investigators – dismissal not harsh unjust or unreasonable Legislation Cited: Industrial Relations Act 1996 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Texts Cited: Nil Category: Principal judgment Parties: Abdul Sibai (Applicant)

Secretary, New South Wales Department of Education (Respondent) Representation: The applicant represented himself

Mr A Britt of counsel (Respondent) File Number(s): 2020/00120795 Publication restriction: See orders made on 6 July 2020 and reproduced at [7] of this decision

DECISION 1. The applicant, Abdul Sibai, is a former casual classroom school teacher who had been employed in a number of schools conducted by the New South Wales Department of Education ("Department"). The Secretary of the Department is the respondent in these proceedings. 2. By letter dated 8 April 2020 ("termination letter"), Ms Jane Thorpe, Executive Director of the Department's Employee Performance and Conduct Unit ("EPAC") advised the applicant that his casual approval to teach had been withdrawn and his name had been permanently placed on the list of persons not to be employed by the Department ("NTBE list"). This letter followed previous correspondence from Ms Thorpe to the applicant dated 11 March 2020 which had attached to it Ms Thorpe's sustained findings in relation to allegations of misconduct by the applicant which had been the subject of an investigation by EPAC investigators. Those allegations were: 1. During 2019, whilst employed as a casual teacher at X High School, you engaged in misconduct in that you exposed two female students, both 15 years of age, to sexual material, in that on at least five (5) occasions during term 2 of supervising year 9 students: a. During a year advisor period, you accessed inappropriate videos of a sexual nature on the classroom computer which included a video of an overweight caucasian woman with dark hair wearing a bra who was dancing and jumping around. She then partially removed her bra and played with her bare breasts; b. On at least four occasions during Year 9 visual arts classes you accessed inappropriate videos of a sexual nature on your personal Hewlett Packard laptop which included videos of women that were naked from the waist up, dancing and gyrating and showing a list of pornographic websites with descriptions and images. 1. It will be noted that I have not identified by name, the school at which the alleged misconduct by the applicant occurred. The reason for this will become apparent later in these reasons for decision. 2. Ms Thorpe's reasons for the action taken against the applicant were set out in the termination letter in the following terms: My reasons for doing so are based on the following: 1. The finding of conduct that amounts to misconduct with respect to this investigation. 2. The fact that following an investigation that you had made offensive and unprofessional comments to students- in April 2016, you were given casual approval for 12 months, conditional on you supplying reports from two principals for whom you had worked during that 12 month period. You delayed trying to obtain those reports and then were unable to obtain them because no principal has agreed to supply a report attesting that your conduct as a teacher is satisfactory. This means you have not fulfilled the requirements of your conditional casual approval. You were advised that failure to fulfill this requirement would result in your teaching approval being withdrawn. 3. The manner in which you have communicated with me and with members of my staff has been unprofessional and offensive. In my letter dated 11 March 2020, I noted that many of your communications with EPAC officers had been offensive and denigrating. I indicated that such conduct was not acceptable by an employee of the Department of Education, or by a member of the general community. In your written submission dated 1 April 2020 you responded to my specific comment and stated, "Of course they are!" You then continued to communicate in a manner that was offensive, insulting and unprofessional. You also made a number of inappropriate comments about students, namely the witnesses in this matter. Your actions in this regard show a lack of self-control and demonstrate an unwillingness or inability to remediate your behaviour and act in a professional manner. 1. Following receipt of the termination letter by the applicant, on 22 April 2020 he filed in the Office of the Industrial Registrar and Application for Relief in relation to Unfair Dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("Application"). In the Application, the applicant indicated that he was seeking reinstatement to his former position and monetary compensation. 2. The Application was the subject of a conciliation and directions hearing before me on 1 May 2020. The matter did not settle in conciliation and I made directions for the filing and serving of evidence and submissions and set the matter down for hearing commencing on 21 July 2020. 3. On 26 June 2020, the respondent filed a Notice of Motion which sought certain orders in relation to the identities of the two students who had made the allegations against the applicant set out at [2] above. The respondent's motion was supported by an affidavit affirmed by Ms Thorpe. After hearing the parties on the respondent's motion on 6 July 2020, I made the orders which are set out below (with the names of the two students substituted with the letters "A" and "B"): COMMISSIONER: I make the orders set out in the notice of motion filed by the respondent, Secretary, NSW Department of Education, on 26 June 2020 and I will read these orders onto the record now. 1. An order prohibiting or restricting, (i) the disclosure of the name, address, picture or any other material that identifies or may lead to the identification of Ms A or the doing of any other thing that identifies or may lead to the identification of Ms A. (ii) the disclosure of the name, address, picture or any other material that identifies or may lead to the identification of Ms B or the doing of any other thing that identifies or may lead to the identification of Ms B. 2. An order pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it discloses or may lead to the identification of Ms A or Ms B. 3. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996, that access to the Commission's file in the matter of Sibai v Secretary, NSW Department of Education (file number 2020/120795) is restricted, such that the parties will be consulted by the Industrial Registrar to determine whether there is any objection before any person (other than the parties) may be permitted access. I make those orders on the basis of the grounds and reasons set out in the notice of motion and the evidence provided by Ms Thorpe in an affidavit sworn 26 June 2020, which has been marked exhibit 1. It is quite common in this jurisdiction for the names of minors to not be published and for pseudonyms to be used in published decisions of the Commission, so that the identification of children is not publicised, in order to generally protect their identities and to not discourage minors from coming forward with information and evidence in matters such as this going forward. 1. Even though it was not part of the respondent's application, I have also decided to not identify the school at which the alleged misconduct by the applicant occurred as an added measure to protect the identity of the two students from being disclosed. 2. At the hearing of the Application the applicant represented himself. The respondent was represented by Mr Anthony Britt of counsel.