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Employee Performance and Conduct Unit ("EPAC") advised the applicant that his casual approval to teach had been withdrawn and his name had been permanently placed on the list of persons not to be employed by the Department ("NTBE list").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. Background 1. The applicant commenced employment with the Department as a casual classroom teacher in 2009. Since then he has worked in a variety of public high schools. 2. A great deal of evidence was produced during the proceedings by the respondent which related to previous disciplinary issues involving the applicant. These issues had resulted in the applicant having been the subject of a number of previous investigations by EPAC investigators. In light of the decision that I have reached in this matter, it is unnecessary for me to canvass the applicant's past disciplinary history and I do not propose to do so. 3. The respondent also raised an issue concerning the applicant's failure to produce reports from two school principals which he had been required to do arising from previous disciplinary issues which had resulted in the applicant being given a conditional approval to teach. I do not propose to further canvass this issue. 4. In September 2019, EPAC was notified of allegations of misconduct by the applicant. Two female Year 9 students alleged that, at the end of Term 2 2019, they saw the applicant watching inappropriate material on a computer during class. 5. On 17 October 2019, Ms Thorpe wrote the applicant in relation to his failure to produce reports from two school principals and also advised him that on 17 September 2019 a child protection allegation concerning his conduct had been made in relation to a period of casual teaching at X High School at the end of Term 2 2019. Ms Thorpe advised the applicant that the matter was being investigated and that the specific allegation would be provided to him in writing at a later time. He was advised that Ms Liz Munro, Principal Investigator, would undertake the investigation and prepare an Investigation Report. At the outset of the investigation, Ms Munro separately interviewed both Ms A and Ms B. These interviews were digitally recorded and transcribed. 6. On 4 December 2019, Ms Munro emailed the applicant and advised him that a letter detailing the allegations would be sent to him during the upcoming holiday period. 7. On 9 December 2019, the applicant sent an email to Ms Munro in the following terms: Thanks. And just so you know, I will be publishing your name, and ECRAPS name, and my response to each allegation, on social media, on every site I can possibly think off, if I see ridiculous allegations like that observed by your Donkey counterparts in the previous Investigation. 1. Later on 9 December 2019, Ms Munro wrote to the applicant and advised him of the allegations which are set out at [2] above. The applicant was asked to respond to the allegations. 2. On the same day, 9 December 2019, the applicant sent an email to Ms Munro which contained the following: I have absolutely no clue or idea of what the Hell you are on about regarding the videos you claim I accessed. I absolutely deny such a stupid and baseless accusation, and common sense would dictate I would not be stupid enough to do such a thing I literally have no idea how the Hell such a claim came into your hands, other then to say you are directly targeting me. I deny all allegations you claim, and you are more then welcome to take my laptop and scan the Hell out of it. Every allegation is an absolute lie, and I would never do such a stupid thing. here is no way in Hell I would do such stupid things, and how on Earth such claims have been made is absolute non-cense. We, as teachers, are not stupid. We know every thing we do on our pc and our accounts are logged, by a password and user name identity. What a stupid thing to accuse me off. If any video was shown or seen, my account was either hacked, or it was spam, or it was something shown unexpectedly, like when you scroll down on your facebook and videos from spam or some clown just play automatically. There is now way such things are true, you'd have to be an absolute idiot to do such things, and I ask you to provide your evidence to back up your ill and ugly, targeted claims. I will be phoning the union as soon as I can get days of work to deal with such stupid claims. 1. When asked by Ms Munro by way of email, "Is that your response?", the applicant replied as follows: No, not entirely, I will let the federation lawyers deal with your pathetic attempts to defame me, like the pathetic excuse of a Human being that you are. Bare with me. 1. On 19 December 2019, the applicant provided a further response to Ms Munro in which he denied the allegations. 2. On 9 January 2020, as part of an exchange with Ms Munro, the applicant sent an email to her in the following terms: Dear Communists at ECRAP I'd like to thank you for you waste of TAX payer funded money on this 3rd investigation, and would like to know why it is taking so long for you, as the old, incompetent, brain dead and out of touch ladies, that you are. You have all the info you need, why would it take you months to decide what to do? You were recently investigated for your completely out of touch ways, and your arrogant and unjust practices, have you not changed? I would also like to know where I can make complaints to regarding your investigative practices. I can clearly see that I am being targeted by your communist ways, and want justice. Please advice me of all the channels I can use to get some change in your communist led organisation. I want to know the outcome and why its taking so long so the lawyer representing me can take the next steps. 1. An Investigation Report was finalised by EPAC investigators on 26 February 2020. The Investigation Report contained the following: 5. Recommendations It is recommended that: * The conduct alleged at Allegation 1a and 1b is sustained and constitutes misconduct. * The sustained reportable conduct is reported to the NSW Office of the Children's Guardian. 1. Ms Thorpe's letter to the applicant of 11 March 2020, which is referred to at [2] above, was provided to the applicant as an attachment to an email from Ms Munro on 12 March 2020. In addition to providing the applicant with her findings in relation to the specific allegations against the applicant, Ms Thorpe also stated: Further, many of your communications with EPAC officers have been offensive and denigrating. Such conduct is not acceptable by an employee of the Department of Education, or by a member of the general community. 1. On 19 March 2020, the applicant sent an email to Ms Munro in the following terms: I have received the documents, and based on the large amount of crap within them, I will need more time to go through it… 1. In another email to Ms Munro sent on the same day, the applicant stated: Communicating with the union now, bare with me. I myself have completed my own analysis of your amateur investigation, but it is as colourful as the other reports I sent, with very descriptive language regarding you and your communist leaders. I don't think they will let me send it to you. I'll see what they say and go from there. 1. On 1 April 2020, the applicant sent the following email to Ms Munro: Dear Ms Munro Against the union advise, considering I couldn't care less what the outcome will be, and considering I can take this further, legally, and possibly sue, and considering I will be making this report public, my response is attached. Good Luck. 1. Extracts from the attached "report" of the applicant, in which he denied the allegations and responded to Ms Thorpe, are set out below: In a letter dated 11th March, 2020 by the head communist, Jane Thorpe, Executive director at EPAC, you said "I do not understand why you would be accessing your Facebook site while you are supposed to be teaching or supervising a class ". You need to first learn how to do your, before you advise others on how to do theirs. You're a promoter of injustice, a person who always claims in their reports arrogantly "allegations are sustained" yet when we look at them carefully, we find a mountain of lies and contradictions. It is you, the incompetent one, and the one who leads an incompetent and corrupt staff, that needs to be told how to do things. You, and your government body, is absolutely and completely out of touch, and yet you're the "Executive director". Amazing. …………………… You then said "many of your communications with EPAC officers have been offensive and denigrating". Ofcourse they are! You're an organisation that feeds on injustice and BIASED ways. You, and your team of Monkeys, are the most incompetent of workforces out there… You're ways are the ways of HITLER… ……………………. …How the Hell do you work, and maintain a high paying government job, with such stupidity? HOW? The corruption, prejudice and incompetence is phenomenal, You said, as the amateur, biased and incompetent one, "The student's evidence is credible"… ……………………… You IDIOTS call that a detailed description. Your stupidity and incompetence is beyond me. You clowns now have a time, a place, a computer, so go and get your Youtube video O retarded, and out of touch one! …………………….. I want you Monkeys to spend another $10,000 of tax money on this investigation and find those websites. I know I'm incident, you clowns, so I want you to go ahead with the search… How blind, and stupid you are. …………………….. …You should become a detective. You're way too smart, qualified and intelligent to be working at ECRAP. ……………………. Furthermore, Donks Munrow, the demented one… Such ONE SIDED ways, such incompetence on behalf of ECRAP. I'm flabbergasted, and I find it difficult to comprehend the clear incompetence, corruption, and prejudice ECRAP staff uphold. This begs belief. ……………………. You, the clown, biased, incompetent goose that you are then said… ……………………. How is this contradictory fool?... All that you fake investigators provided was a statement from 2 unreliable female students… How is this contradictory genius. Please explain. …………………….. I will be making this report public to expose the corruption, communism, prejudice, and incompetence within your workplace. Every social media page I can find, every social media website, webpage, web link, will have this report, in various sections, available for people from the DEC and the community to see and comment. Lets get others involved so we can have a constructive debate regarding your Tyrannic ways. The names I will list will be the ECRAP names listed in this report (Jane Thorpe, Elizabeth Munrow, Nicole McFarlane). If you threaten to sue me for "defamation", I'll be more then happy to defend myself in court. I have nothing to lose and everything to gain… ……………………… Regards Abdul Sibai Stupid people buster 1. On 2 April 2020, Ms Thorpe wrote to the applicant and directed him not to publish any material associated with the investigation which had been provided to him to assist him with his response and which was confidential. Ms Thorpe further stated: Further, the denigrating manner in which you have written to me and the emotive and inappropriate way in which you continue to correspond is entirely unacceptable, and may call into question whether or not you are an appropriate person to be teaching students. If you continue to correspond in this matter, you may be subject of further allegations of misconduct. 1. On the same day the applicant responded to Ms Thorpe by email in the following terms: I can assure you, without a shadow of a doubt, it will get published. I will maintain confidentiality of the students only. For you to say I need to keep your incompetence and one sided ways hidden, is unacceptable. Your name, and the name of all those of EPAC staff will be available all over the Internet, on all websites and social media pages linked to Education. My objective is to expose the CLEAR corruption persistent within the lines of EPAC. Furthermore, I agree my communication with EPAC has been unprofessional in denigrating, and this is only due to the fact that we, as teachers, have to deal with such incompetence, such arrogance, such corruption and one sided ways that, as a Human Being, my patience has run out. This is not reflective off me as a person, but reflective of the matter in which I am dealing with, and the enormous prejudice I am suffering at the hands of EPAC. You have accused me of a very nasty, very ugly act, WITH NO EVIDENCE WHATSOEVER. You have crossed the line. I know I am innocent and as such I have requested, multiple times in my reply, for you to complete and Internet search of my DEC ID. When you are innocent, you have nothing to hide. Ill wait these results. My apologies for my negative remarks, but as a Human, I can only take so much in before I lose my patience. 1. Following receipt of the termination letter of 8 April 2020, the applicant posted the following on the teach.NSW Facebook page: Head Communist: Jane Thorpe (EPAC) Subordinate: Elizabeth Munro (EPAC) Both accused me of accessing an adult website on the DoE computer and the DoE system. The investigation was one sided, no IT evidence present as no search was done (they refused to do one), the student (one from 10 in the class) gave a very sketchy story which could not be backed up, and no time, date, or day mentioned. My teacher registration was then revoked. This is the injustice and fate of men who work in Schools. EPAC is clearly an government organisation based on corruption, incompetence and tyrannic ways. I need help exposing these communists. The hearing 1. During the hearing of the Application, the applicant maintained his denial of the allegations set out at [2] above. 2. During the cross-examination of the applicant, the following exchange occurred with Mr Britt, counsel for the respondent: Q. Now, do you recall calling EPAC "ECRAP"? A. That's correct, many times. Q. Is that part of your comedic personality? A. Yeah, it is. I should be a comedian. Q. Well, you'll have an opportunity after this, sir, being a comedian, if you can't teach? A. That's excellent. I'm not returning back to teaching anyway. Q. So you're not seeking reinstatement or re-employment? A. Seeking reinstatement-- Q. But if you're not returning back-- A. --to clear my name. Q. But if you're not returning back to teaching, sir, you're not-- A. Just to clear my name. Q. You don't want to teach again? A. That's correct. It's just to clear my name. Q. Thank you, sir? A. Just to clear my name. 1. Towards the end of the second day of the proceedings, Mr Britt tendered into evidence unsworn witness statements of Ms A and Ms B. It had been the intention of the respondent to call these two students to give evidence in the proceedings but, as I was informed, both of them had refused to come to the Commission for that purpose. In tendering these witness statements, Mr Britt quite properly conceded that, because they were unsworn and because neither of the deponents was available to be cross-examined, they would be of "limited weight". 2. The issue of reinstatement was again raised in final submissions when the following exchange occurred: BRITT: …The question of remedy is a matter that I think, given the Commission's comment, may well be dealt with at a later date if required. So I don't really seek to address you at that stage in respect of this. But what we have here is an applicant who told us in the witness box he doesn't want reinstatement because he doesn't want to teach again. APPLICANT: No, I do want reinstatement. I don't want-- BRITT: He told us in the witness box yesterday he didn't want-- APPLICANT: I do want it because I want-- COMMISSIONER: You'll get a chance in a minute, Mr Sibai. BRITT: His evidence in the witness box was he does not want to work as a teacher, that's what reinstatement means, and he doesn't want compensation. But perhaps those are matters to be addressed at another stage. But what we do say is there's ample material before the Commission in relation to the other matters that the department relied upon and matters that have been subsequently discovered to provide a valid reason for the termination of this applicant and in all of the circumstances, given the history of this matter, any decision to terminate was not harsh, unjust or unreasonable. Unless the Commission has any questions, they're our submissions. COMMISSIONER: Yes, thank you. Now you have an opportunity to respond to what Mr Britt has just said. Is there anything else you want to put to me? APPLICANT: …He said that I don't want to work as a teacher. It's not that I don't want to work as a teacher. It's that I want my name cleared. That's more important to me, is my name cleared. I might go back to teaching, I didn't go to uni for nothing, but I am more concerned that about clearing my name. I know I'm innocent. Now, I know-- COMMISSIONER: You did say yesterday that you were not seeking reinstatement. APPLICANT: Did I? COMMISSIONER: You said that, yes. APPLICANT: I correct myself then. I must - I know in the papers I said I did want that, just to clear my name. So in my papers, in the last paper that I gave you it does say on the bottom I would like. I know that I have behaved in a way that I shouldn't of behaved. I've said it openly. I know that but it's only to EPAC staff. It's been to no one else. It's been to no other staff member within the DET and again that was out of frustration. It's out of the fact that I know I'm innocent. They keep saying I'm guilty. They keep saying that they're right, they're, you know, it's like they're right, I have to accept them and that's it. There's no way forward. I'm just not that type of person. I'm more of a fighter, that's all. I'm 100% - 100% I admit I shouldn't of spoken that way. I admit it but what's done is done. I can't turn back the future - I can't turn back the past, sorry. Yeah, no, that was it. I can't remember anything else he said. Determination 1. It is clear that the primary basis for the termination of the applicant's employment was the finding by Ms Thorpe that the allegations of misconduct by the applicant, which are set out at [2] above, had been sustained. However, as neither Ms A nor Ms B was called as a witness, their witness statements have not been tested and carry little, if any, weight. 2. On the material before me, I am unable to make a finding either way in relation to these allegations. I am certainly unable to find, on the balance of probabilities, but adopting the cautious approach espoused by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, that the applicant did commit the misconduct which formed the basis of these allegations. But that is not the end of the matter. 3. Ms Thorpe made it clear in the termination letter, part of which is set out at [4] above, that in deciding to withdraw the applicant's casual approval to teach and to place his name on the NTBE list, she also took into account the manner in which the applicant had communicated with her and other EPAC staff (see [16]-[29]). 4. The level of vitriol, denigration and insult in these communications is quite extraordinary. They span an extended period of time from late 2019 through to April 2020 and continued in defiance of repeated warnings by Ms Thorpe that these types of communications were completely unacceptable. 5. I reject entirely the applicant's "excuse" to the effect that this tirade of abuse arose out of him losing his patience with the manner in which EPAC officers were conducting the investigation into the allegations against him. He was clearly outraged that the investigators preferred the evidence of the two complainants over the applicant's denial of the allegations. They were simply doing their job. 6. I also reject entirely the applicant's claim that "…it's only been to EPAC staff. It's been to no one else. It's been to no other staff member within the DET and again that was out of frustration", as somehow excusing his appalling conduct. 7. Officers of the Department, such as Ms Thorpe and Ms Munro, are entitled to perform their duties at work without being subjected to the outrageous type of use repeatedly hurled at them by the applicant. 8. His communications alone provided the respondent with a valid reason to terminate the applicant's employment. I find that the termination of the applicant's employment was not harsh, unjust or unreasonable. 9. The Application is dismissed. John Murphy Commissioner ********** Amendments 21 October 2020 - In paragraph 2 changed "is" to "his" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2020