Industrial Relations Commission New South Wales Medium Neutral Citation: Chu v Secretary, NSW Department of Education [2021] NSWIRComm 1019 Hearing dates: 24 September 2020. Final documentation from applicant received 21 October 2020. Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – School Learning Support Officer – allegations of misconduct – unnecessary physical contact with a year 1 student – misconduct admitted – dismissal not harsh unreasonable or unjust Legislation Cited: Education (School Administrative and Support Staff) Act 1987 Industrial Relations Act 1996 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Ony Chu (Applicant) Secretary, Department of Education (Respondent) Representation: Applicant was self-represented Mr A Britt of counsel (Respondent) File Number(s): 2020/00207006 Publication restriction: Names and locations suppressed in accordance with Orders made on 24 September 2020 pursuant to s 164A of the Industrial Relations Act 1996 DECISION 1. This is an Application for Relief in relation to Unfair Dismissal ("Application") by Ony Chu, a former employee of the NSW Department of Education ("Department") who was employed, up until the time of her dismissal, as a School Learning Support Officer ("SLSO") at various public schools conducted by the Department. 2. The applicant commenced employment with the respondent, the Secretary of the Department, on 17 September 2014. She was employed as a "temporary employee" pursuant to section 21 of the Education (School Administrative and Support Staff) Act 1987 ("SASS Act"). 3. By letter dated 15 May 2020, Jane Thorpe, Executive Director, Employee Performance and Conduct Directorate ("EPAC") of the Department, advised the applicant that her casual approval to work for the Department had been withdrawn and her name had been permanently placed on the list of persons not to be employed by the Department ("NTBE list"). The applicant was provided with this letter on 18 May 2020. The stated reasons for taking this action were sustained findings of misconduct by the applicant arising from her having engaged in unnecessary physical contact with a year 1 student at a school where she worked. 4. The Application was filed with the Commission on 14 July 2020, some 57 days after the applicant was notified of the termination of her employment with the Department or 36 days outside the 21 day time limit for filing unfair dismissal applications provided for in subsection 85(1) of the Industrial Relations Act 1996 ("Act"). The respondent takes a jurisdictional objection to the Application on this basis. I propose to exercise my discretion under subsection 85(3) of the Act to accept the Application out of time. The applicant is unrepresented. After she was notified of the termination of her employment she made further written representations to Ms Thorpe who, by letter dated 23 June 2020, confirmed that the decision to withdraw the applicant's casual approval and place her name on the NTBE list stood. The applicant has mistakenly taken 23 June 2020 to be the date of the termination of her employment which, had this been the case, would have meant that the Application had been filed within the 21 day time limit. However, acceptance of the Application out of time will have no bearing on the ultimate outcome of this matter. Background 1. The background to this matter is conveniently set out in the Employer's Reply to the Application, part of which is set out below: 5. In May 2019, the Employee Performance and Conduct Directorate ('EPAC') was notified of allegations of misconduct by the Applicant. It was alleged that on 29 May 2019, the Applicant physical assaulted a 6 year old male student (AV) by slapping him across the face, twice. 6. The incident was witnessed by the School Administration Officer. The Applicant also provided a statement acknowledging that she slapped the AV on the face on two occasions. 7. The matter was referred to NSW Police. Ultimately, the parents of the AV indicated that they were not willing to pursue the matter criminally and the criminal matter was closed. 8. By letter dated 31 May 2019, Ms Thorpe, Executive Director, EPAC advised the Applicant that as a result of the allegations, she had determined to temporarily withdraw the Applicant's permission to work in any NSW Department of Education school or facility. She was further advised that her name was also going to be placed temporarily on the Department's Not To Be Employed (NTBE) List Ms Thorpe advised the Applicant that she would be provided with specific allegations and an opportunity to respond (Tab A). 9. The Applicant was provided with a letter dated 28 June 2019, setting out the allegations and providing her with an opportunity to provide a response (Tab B). 10. The Applicant prepared a written response to the allegation dated 28 June 2019 and sent this response (undated) to EPAC on 3 July 2019. (Tab C). The Applicant admitted some of the conduct. She stated that the AV called her a bitch and she 'mentally snapped and slapped his face''. He called her another name, which she did not understand and she ''slapped him again". 11. In her response, the Applicant then defended herself and states that she acted ''closely to the Code of Conduct". She referred to "mentally snapping partly because I was not trained to deal with such degree of violence and the situation was too much for me to bear alone and partly recalled his past possession of a knife and numerous aggressive behaviours. I panicked and feared that he would run to his left to the staffroom kitchen to get any sharp..'' 12. A second letter of allegations was issued to the Applicant dated 9 December 2019 (Tab D). 13. The Applicant provided a written response to the second letter of allegations (Tab E). 14. An investigation report was prepared and Mr Rob Easton/ Relieving Executive Director made findings that several of the allegations were sustained. Mr Easton then requested to be provided with any further relevant information. 15. By letter dated 21 January 2020, Mr Easton wrote to the Applicant and provided her with a copy of the investigation report and his findings. He advised that he was considering permanently removing her approval to work with the Department and permanently placing her name on the NTBE list. Mr Easton also indicated that he was required to refer the Applicant's name to the Office of Children's Guardian as the conduct constituted a serious physical assault. 16. On 7 February 2020, the Applicant advised that she intended to seek the services of a psychologist and was in the process of making an appointment. Following this, she intended to make a submission. The Applicant requested a two week extension in the time to make her submissions. She was provided until 28 February 2020 to provide her response. 17. On 28 February 2020, the Applicant provided a submission where she raised some concerns about the investigation and requested a further extension of time to provide a psychologists report. She was granted an extension to provide a submission 18. By letter dated 3 March 2020 Ms Thorpe, ED, EPAC advised the Applicant she was willing to grant her a further extension to enable her to obtain a psychologist's report. She was given until 8 May 2020 to submit any report. Ms Thorpe also addressed a number of issues that the Applicant had raised in her submission. 19. On 8 May 2020, the Applicant provided a further submission to Ms Thorpe together with a report from Ms Pratley, Forensic and Clinical Psychologist. She also provided a letter from Mr Peter Allen, Psychologist who advised that that the Applicant is consulting him for psychological therapy to address issues of emotional regulation. 20. By letter dated 15 May 2020, Ms Thorpe wrote to the Applicant and advised her that after considering all relevant information, including the material provided by the Applicant, she had decided to withdraw her casual approval to work for the Department and permanent place her name on the NTBE list (Tab F). 21. The Applicant was provided with this outcome letter by email on 18 May 2020 and she confirmed receipt of that letter on the same day (Tab G). 1. The letter to the applicant of 28 June 2019 (Tab B to the Employer's Reply) contained the following particulars of the allegation that the applicant had engaged in unnecessary physical contact with the student (Allegation 1): a) pulled him with force by the wrist/arm when escorting him from the classroom to the school office; b) pushed him onto a chair in the office area; c) grabbed him as he ran towards the toilets in the office area and pushed him back onto the chair; d) used your hand to slap him to the face while in the office area; e) used your hand to slap him to the face a second time while in the office area. 1. In her response to Allegation 1, the applicant claimed that the student involved in the incident exhibited behavioural problems. She described him running around the classroom and generally misbehaving. The classroom teacher instructed the applicant to take the student to the office. The student was defiant. The applicant claimed that she "physically pulled him out of the room". 2. The applicant stated that, when she finally got the student to the office, there was a struggle and she "pushed him to sit on the sofa chair in fear that his violence might escalate". According to the applicant, the student called her "Bitch!" and "[a]t that moment I mentally snapped and slapped on his face". The applicant further stated: Straight away he called me another name which I don't understand and I slapped him again. Now it seemed that he came back to himself. He stopped fighting, sat down and started sobbing. There were no more verbal and physical confrontations. The relief office lady offered him an ice pack. 1. The applicant claimed that she "had acted closely to the Code of Conduct in this incident" and that she had never been trained to deal with children like this particular student, whose "anti-social behaviour" she described in detail. 2. In the letter to the applicant dated 9 December 2019 (Tab D to the Employer's Reply) the applicant was provided with a further particular of Allegation 1 and a second allegation (Allegation 2) in the following terms: f) shoved him against the wall in the office foyer area (prior to the conduct outlined at allegation 1b)). 2. After the conduct outlined at allegation 1d) (i.e. the first slap to the face), in response to (the student) yelling "I don't want to be here at school", you screamed back at him words to the effect of "l don't want to be here at school either". 1. In her written response, the applicant did not admit Allegation 1 (f) but did admit Allegation 2. 2. An investigation into the allegations was conducted by David Berthon, Investigator, EPAC, and an investigation report prepared and submitted on 17 December 2019. In that report, Mr Berthon recommended that "the conduct alleged at allegations 1 (b), (c), (d), (e), (f) and 2 is sustained" and that "the decision maker finds that the sustained conduct at allegations 1(b), 1(c), 1(d), 1(e), 1(f) and 2, constitutes misconduct" and that "the decision maker finds that the sustained conduct at allegations at 1 (d) and (e) amount to reportable conduct". 3. The applicant provided a number of further written responses to the allegations and the findings in the investigation report. She made a number of complaints of procedural unfairness in the process. The applicant also provided Ms Thorpe with a report prepared by Jessica Pratley, Forensic and Clinical Psychologist dated 1 April 2020 as well as a letter dated 30 April 2020 from her treating Clinical Psychologist, Peter Allen. 4. After considering the recommendations in the investigation report and the applicant's responses to the allegations, Ms Thorpe adopted Mr Berthon's recommendations and Mr Easton's preliminary findings and determined to terminate the applicant's employment. Ms Thorpe's letter to the applicant of 15 May 2020 (Tab F to the Employer's Reply) stated as follows: Dear Ms Chu I refer to my letter dated 3 March 2020 where I provided you a further extension of time to provide a medical report following findings of misconduct against you. I have now carefully considered your further written response received on 8 May 2020 and including a clinical psychologist report and a letter from your treating psychologist. Thank you for providing that material. I found your response somewhat contradictory. On one hand you were most apologetic for your actions in slapping the student and admitted the conduct was unacceptable, but on the other hand you seem to dispute the serious nature of the conduct. I cannot think of any circumstance where it would be reasonable to slap a student on the face, particularly on more than one occasion. I accept you may have "snapped" following the student's difficult and provocative behavior, but that does not justify the conduct. I note your view that you were not treated fairly because you were not granted an extension and you should have been told you could provide medical evidence. I did grant you an extension to supply medical evidence. Mr Easton's first letter went to you in January 2020 so you have had 3.5 months to supply responses. Further, there is no requirement for the Department to request medical evidence. It can, however, be helpful to a decision maker to understand whether there is any medical reason that may have caused you to engage in such conduct and any risk you would further engage in similar conduct. I concur with Mr Easton's preliminary findings. There is insufficient evidence to sustain Allegation 1 (a). There is sufficient evidence to sustain Allegations 1 (b) - (e) and Allegation 2. The sustained conduct would amount to misconduct if you were a permanent employee. I note the detailed and thorough report supplied by Ms Pratley, Forensic and Clinical Psychologist. I note her view this situation was a very particular situation and that in this circumstance you engaged in what she describes as a 'fight or flight response'. She also noted that without greater insight into the causal factors for this reaction, you may resort to such a response if confronted with a similar situation. She seemed to think it unlikely you would be confronted with such a situation again. Unfortunately, the nature of SLSOs' work in schools means you can be confronted with students with difficult and provocative behavior on a daily basis. While any employee will benefit from better training and support, there are circumstances where you have to make on the spot decisions and may not be able to rely on the support of other staff. I am most concerned that you do not fully appreciate your conduct is totally unacceptable by an employee of the Department of Education in any circumstances, despite the provocative behaviour of the student. The Department not only has a duty of care to students but they have a duty of care to you if it is considered that by your conduct, you are not suited to engage in such work. I have determined to withdraw your casual approval to work for the Department and permanently place your name on the list of persons not to be employed by the Department of Education (NTBE list). Should you wish to request a review of placement of your name on the NTBE list, no sooner than two years from the date of this letter you may email ntbe@det.nsw.edu.au and provide reasons why your name should be removed from the list. This matter is required to be reported to the Office of the Children's Guardian (OCG) as it amounts to an allegation of reportable conduct by an employee. The conduct does amount to a serious physical assault but it will be the decision of the OCG whether they agree with that assessment. Case for the applicant 1. In support of the Application, the applicant relied upon three witness statements prepared by her in which she has made a series of complaints about the manner in which she has been treated by the Department. The third witness statement was forwarded to the Commission directly by the applicant on 21 October 2020, after the proceedings had concluded on 24 September 2020. This witness statement repeated many of the points previously made by the applicant and referred to the termination of the applicant's application for a Working with Children Check clearance by the Office of the Children's Guardian, a matter over which this Commission has no jurisdiction. I did not formally admit this third statement into evidence but noted its contents and determined that nothing within it, even if admitted into evidence, would change the outcome of this matter. 2. I have considered the applicant's evidence and submissions closely but, because of the determination I have reached based on the applicant's own admissions, I do not propose to canvass this material further in this decision. Case for the respondent 1. The respondent relied upon evidence from Ms Thorpe and a number of former work colleagues of the applicant as well as a large amount of documentary material, including Mr Berthon's investigation report. Again, because of the determination I have reached based on the applicant's admissions, I do not propose to canvass this material in this decision. Determination 1. As stated at [2] above, the applicant was employed as a "temporary employee" pursuant to section 21 of the SASS Act. However, the applicant's employment status, whether it be temporary, permanent or otherwise, has no bearing on my determination of this matter. 2. Section 7A of the SASS Act is in the following terms: 7A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to a member of the school administrative and support staff under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 1. It is difficult to conceive of a situation that violates this "paramount consideration" more than a member of school staff twice slapping the face of a six year old child as the applicant did on 29 May 2019. 2. I have given earnest consideration to the matters raised in mitigation by the applicant, including the provocative behaviour of the child as a result of which, according to the applicant, she "mentally snapped". I have also considered the contents of Ms Pratley's report. I can find nothing in any of this material that renders the applicant's conduct on 29 May 2019 anything other than serious misconduct warranting the termination of the her employment for the reasons set out in Ms Thorpe's letter of 15 May 2020 (at [14] above) with which I fully agree. 3. Under cross-examination, the applicant made the following concessions: Q. Prior to you being dismissed, the department set out what it believed was the basis for your dismissal? A. Sorry, sorry? Q. The department provided you with reasons as to why the department had decided to dismiss-- A. Yes, yeah. Q. And prior to the department doing that, you'd had an opportunity to say things during the investigation? A. Yes. Q. And you took up that opportunity? A. Yes, I did. Q. And prior to Ms Thorpe writing to you in May, you provided further information to the department as well, didn't you? A. Yes, I did. Q. Including the ability to provide a medical report? A. Yes, I did. …………………………. Q. …. Do you say that the allegations are not serious? A. Hitting a child is serious. Q. You'd agree with me slapping a child on the face is serious? A. Slapping a child on the face is serious. Q. And in fact slapping a child twice on the face is even more serious? A. Yes, I agree. 1. I am satisfied that, in effecting the termination of the applicant's employment, the respondent afforded her procedural fairness and complied with the relevant parts of section 88 of the Act. 2. The dismissal of the applicant was not harsh, unreasonable or unjust. The Application must be dismissed. The respondent has asked that the issue of costs be reserved. Orders 1. The Commission makes the following orders: (1) The Application for Relief in relation to Unfair Dismissal filed by Ony Chu on 14 July 2020 is dismissed. (2) If either party wishes to address the Commission on the question of costs that is to be done in writing within fourteen days of the date of this decision. John Murphy Commissioner ********** 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: 19 March 2021