Williams v Secretary of the Department of Education [2023] NSWIRComm 1032

Industrial Relations Commission New South Wales Medium Neutral Citation: Williams v Secretary of the Department of Education [2023] NSWIRComm 1032 Hearing dates: 22-23, 25-26, 29 August – 2 September 2022, 8 September 2022, 11 November 2022 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Industrial Court of NSW Before: Commissioner Webster Decision: (1) The final misconduct decision of Ms Jane Thorpe, Executive Director, Department of Education, dated 1 September 2020 to the effect that Ms Williams is dismissed be set aside; (2) Pursuant to s 100D(c) of the Act, Ms Williams' employment with the Department is deemed not to have been broken by the decision of the respondent to terminate her employment effective 2 September 2020; and (3) The respondent, within 7 days from the date of the Commission's decision remove the appellant's name from the 'Do Not Employ List'. Catchwords: EMPLOYMENT LAW - Public Sector Disciplinary Appeal – serious allegations made against teacher of special needs children – principal complainant not credible - witness evidence of conduct not reliable – onus of proof subject to Briginshaw principles - Jones v Dunkel inference drawn – no misconduct proved - appeal allowed Legislation Cited: Children and Young Person (Care and Protection) Act 1998 (NSW) Ch 16A Industrial Relations Act 1996 (NSW) Ch 2, Pt 7, ss 3, 97, 100C, 100D Public Interest Disclosures Act 1994 (NSW) Teaching Service Act 1980 (NSW) Pt 4A, s 5A, s 93C Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 Claremont Petroleum NL v Cummings (1992) 110 ALR 239 Coote v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 Eparaima v Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services) [2020] NSWIRComm 1038 Evans v Braddock [2015] NSWSC 249 Fabre v Arenales (1992) NSWLR 432 Francis v South Sydney District Rugby League Football Club Ltd [2002] FCA 1306 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Greig v Director-General Department of Education and Communities [2013] NSWIRComm 1025 IMM v The Queen (2016) 257 CLR 300 Jones v Dunkel (1959) 101 CLR 615 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority [2017] NSWCA 273 McKenzie v The Queen (1996) 190 CLR 348 NBM v The Queen [2021] SASCA 105 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 Category: Principal judgment Parties: Ms Vita Bernadetta Williams (appellant) Secretary of the Department of Education (respondent) Representation: Counsel: J Steele SC with S McCartney (appellant) A Britt (respondent) Solicitors: Kennedys Lawyers (appellant) File Number(s): 2020/282137 Publication restriction: The following orders were made on 11 June 2021: 1. An order, pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 prohibiting- (i) The disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of or the doing of any other thing that identifies, or may lead to the identification of: a. [Student A] b. [Student B] c. [Student C] d. [Student D] (ii) The disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of any other student or the doing of any other thing that identifies or may lead to the identification or any other student. (iii) The disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the school, namely [School]. 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 may lead to the identification of: a. [Student A] b. [Student B] c. [Student C] d. [Student D] e. Any other student 3. An order pursuant to subs 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 may lead to the identification of the school, namely [School]. 4. An order pursuant to subs 164A(1)(c) of the Industrial Relations Act 1996, that access to the Commission file in the matter of Vita Williams v Secretary, Department of Education (File no 2020/282137) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access.