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. Aspects of this decision have been redacted to comply with the orders made on 11 June 2021 for the restriction of publication of certain information. decision 1. Ms Vita Bernadetta Williams (appellant) has lodged an appeal against the decision to terminate her employment by way of letter dated 2 September 2020. At the time of the dismissal, the appellant was an Assistant Principal at the School1 employed by the Secretary of the Department of Education (respondent). At the time of her dismissal, the appellant had been in the Teaching Service for over 30 years and had occupied the position of Assistant Principal since 2013. 2. The appellant was dismissed after an investigation found that she had engaged in misconduct warranting termination of her employment. The alleged misconduct was as follows (collectively, the allegations): 1. In 2014, the appellant engaged in unnecessary and/or excessive physical contact against Samuel Baker, when she used her hand to bend and/or twist Samuel by the wrist when he would not comply with her direction to "get up" from the ground (the wrist allegation). 2. In early Term 3, 2017, the appellant engaged in unnecessary and/or excessive physical contact directed at support student, Grace White, while demonstrating to classroom teacher, Ms Angela Corfield, how to manage Grace's behaviour while Grace was being toileted, when: 1. The appellant hit Grace to the face from her chin in an upwards motion; and 2. The appellant took Grace by the chin, squeezed her face and shook her, while saying, "See what I am doing? This way she will remember when you touch her face, what you did to her". 1. (the hitting allegation) 2. After engaging in the conduct in Allegation 2, the appellant instructed Ms Corfield to conceal her improper conduct, using words to the effect of: 1. "Make sure you don't do this in front of any SLSOs" 2. "Don't tell anyone about this". 3. (the secrecy allegation, collectively the hitting and secrecy allegation) 1. Around mid-Term, 2, 2018, while conducting a Wednesday (monitor) meeting with several classroom teachers in her office, the appellant improperly instructed staff in using coercive physical contact towards students when the appellant: 1. Demonstrated an unapproved physical technique to apply force to students by pinching or pushing into their upper neck or shoulder area with her thumb or finger if they failed to comply with her direction (including referencing student, Thomas Taylor). 2. Told teachers that they "should not let anyone else see them do this" in respect of the demonstrated physical technique. 3. (the demonstration and secrecy allegation) 1. I have decided that the conduct alleged against the appellant in respect of the allegations is insufficient to prove that it occurred. My reasons for that decision follow. Background 1. The appellant was an Assistant Principal employed on a permanent basis by the respondent. She commenced her employment as a classroom teacher appointed to the School on 21 July 2008. 2. In 2013, the appellant was promoted to Assistant Principal. She worked in that position at the School until 22 January 2019. On that date, she was directed to undertake non­teaching alternative duties at Macquarie Park Education Office commencing 29 January 2019. The appellant began a period of sick leave and did not commence duties at the Macquarie Park Education Office. Ms Williams was dismissed from the Teaching Service effective 2 September 2020. 3. There was no evidence of the appellant being the subject of any disciplinary or performance processes prior to the allegations the subject of this appeal. 4. In January 2019, the Employee Performance and Conduct Directorate (EPAC) now known as the Professional and Ethical Standards Directorate (PES) was contacted by Ms Angela Corfield, teacher, with the support and assistance of Mr Andrew Petersen (classroom teacher and NSW Teachers' Federation Representative). Ms Corfield disclosed concerns about potentially inappropriate practices at the School that involved numerous staff, including executive members, teaching staff and School Learning and Support Officers (SLSOs). Ms Corfield's concerns were deemed to attract Public Interest Disclosure (PID) status. 5. Ms Corfield made several allegations that involved the appellant and her treatment of students at the School. These included the hitting and secrecy demonstration and secrecy allegations as set out above at [2]. 6. During the investigation, a further allegation was raised relating to conduct alleged to have occurred in 2014. It was alleged that the appellant had engaged in unnecessary or excessive physical force against a male student by twisting his wrist to force him to comply with her instructions to stand up from the ground. 7. On 7 May 2019, the allegations were reported to the NSW Police Force and the case was allocated to Detective Senior Constable (DSC) Lieschke on 10 September 2019. On or around 16 December 2019, DSC Lieschke says that a decision was made not to charge the appellant. 8. On 20 December 2019, police released information and associated documents regarding their investigation to PES pursuant to Ch 16A of the Children and Young Person (Care and Protection) Act 1998 (NSW). 9. By letter dated 16 January 2020, the appellant was advised of the allegations of misconduct and provided with an opportunity to respond. 10. The appellant provided a written response to the allegations by way of an undated letter and attached documents in support. 11. An investigation report was completed, and the matter was referred to Ms Jane Thorpe then Executive Director, EPAC, for consideration. 12. By letter dated 15 June 2019, Ms Thorpe advised the appellant that she was of the opinion she had engaged in misconduct and that she was considering disciplinary action. She indicated that the most severe action she was considering imposing was to dismiss the appellant from the Teaching Service. 13. Ms Thorpe provided the appellant with a copy of the investigation report with annexures and her preliminary findings. The appellant was advised that redactions were made to the investigation report as several witnesses were granted PID status and certain redactions were made to meet requirements of the Public Interest Disclosures Act 1994 (NSW) (PID Act). 14. Ms Thorpe provided the appellant with an opportunity to make a submission in respect of her preliminary findings and her proposed penalty prior to a final decision. She also offered the appellant an opportunity to respond to the findings by way of an interview. 15. By letter dated 29 June 2020, the appellant's legal representatives wrote to Ms Thorpe and advised that the appellant would require additional time to respond. They also requested an un-redacted copy of the investigation report. 16. By letter dated 8 July 2020, Ms Thorpe wrote to the appellant's solicitors and provided a further and updated version of the material with amended redactions. Ms Thorpe advised that the respondent had received the consent of the complainant (Ms Corfield) to release her identity and as such was releasing aspects of the report and evidence that related to her. Ms Thorpe advised that some material was provided by NSW Police under Ch 16A of the Children and Young Persons (Care and Protection) Act 1998 and this was summarised in the report that was made available to the appellant. She also noted that some redactions remained where witnesses gave evidence about different matters investigated by the respondent that did not go to the allegations put to the appellant. 17. By letter dated 1 September 2020, Ms Thorpe wrote to the appellant, dismissing her from the Teaching Service and placing her name on the Department's, "Not To Be Employed List" (NTBE List). Relevant legislation and legal principles 1. These proceedings are brought under Ch 2 Pt 7 of the Industrial Relations Act 1996 (NSW) (the Act). By subs 100C(2) of the Act, the Commission may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. 2. In Marroun v State Transit Authority [2017] NSWCA 273 the Court of Appeal examined the Commission's jurisdiction under Ch 2 Pt 7. The principles derived from that decision were usefully consolidated in a decision of Sloan C in Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 at [22]: 1. An appeal under Ch 2 Pt 7 is a fresh hearing of the allegation of misconduct (or an administrative hearing de novo). (In Marroun it was common ground that the proceeding before the Commission was a fresh hearing: at [29]. The Court stated that a conclusion that an appeal under Ch 2 Pt 7 is a fresh hearing was supported by the decision of the High Court in Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60: at [30]; see also [32] and [34].) 2. An appeal by way of fresh hearing means that the appellate body "stands in the shoes of" the original decision-maker. Where there is a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed: at [35]. In other words, the Commission is to engage in a two-step process: first, to determine whether the employee has engaged in the misconduct alleged; and second, if the employee has engaged in that misconduct, to determine what disciplinary action is to be taken: at [45]-[47] and [62]. 3. If the allegations of misconduct on which the original decision-maker relied are not proven to the satisfaction of the Commission, the Commission is obliged to allow the appeal: at [62]. 4. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer: at [35]. The appeal is "a fresh exercise of administrative power"; it is not the exercise of a different power for the first time: at [48], relying on Calman. 5. Post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven: at [56], citing Maritime Services Board v Murray (1993) 52 IR 455. 6. If the Commission allows the appeal, it may consider post-decision events or conduct in determining whether some lesser form of disciplinary action was appropriate: at [62] and [63]. 1. The misconduct must be established on the balance of probabilities. As stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at pp 361-2: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. …Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 (Neat Holdings) pp 170-171, Mason CJ, Brennan, Deane and Gaudron JJ stated: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 1. The disciplinary powers exercised in relation to public sector employees are protective in nature: Eparaima v Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services) [2020] NSWIRComm 1038 at [25] citing Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173]. Further, in relation to these proceedings, s 5A of the Teaching Service Act 1980 (NSW) (Teaching Service Act), provides that the protection of children is a paramount consideration. Section 5A is in the following terms: 5A 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 an officer or temporary employee 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. The appellant was terminated pursuant to Pt 4A of the Teaching Service Act, which has as its objects: "(a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, (b) to protect and enhance the integrity and reputation of the Teaching Service, (c) to ensure that the public interest is protected." 1. The meaning of misconduct as alleged in this matter is to be derived from s 93C of the Teaching Service Act, not the common law: see Greig v Director-General Department of Education and Communities [2013] NSWIRComm 1025 at [40]. 2. Where the misconduct is not admitted, it is upon the respondent to establish, with evidence, that the allegations can be sustained. There is no presumption that the respondent's investigation outcome is correct. 3. In these proceedings, the Commission is faced with irreconcilable evidence about events which form the basis of the allegations against the appellant. The Commission's assessment of the witness evidence, the reliability and credibility of their accounts is of central relevance in these proceedings. 4. There is a distinction to be drawn between the concepts of credibility and reliability. As explained by Nettle and Gordon JJ in IMM v The Queen (2016) 257 CLR 300 at [114]: "… The credibility of a witness was commonly understood as meaning the "truthfulness" of the witness – whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness's ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time…." 1. Parties to proceeding where there are contested facts may advance their case on the basis that the credibility and reliability of evidence are inextricably intertwined. On the other hand, it may be that the credibility and reliability of a particular witnesses is challenged separately and independently: NBM v The Queen [2021] SASCA 105 at [35]. 2. A finding that a witness is not credible, is not a finding that will be arrived at quickly. In McKenzie v The Queen (1996) 190 CLR 348 at pp 373-374 it was stated: "Sometimes repeated assertion of false evidence can tend to establish the criminal intention of the witness, especially where the falsity is 'inescapable and self-evident' or where it leaves no reasonable cause for a belief that it is true. But honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved. In R v Dickson it was rightly said: '[I]t is essential to distinguish between honesty and accuracy and not assume the latter because of belief in the former.' The converse is also true." 1. Given the unreliability of human memory, there are obvious difficulties which affects the witnesses' recollection of events, relating to events that are alleged to have occurred which occurred several years ago: see Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[16] and Coote v Kelly [2016] NSWSC 1447 at [100]-[102]. The respondent submitted that in this matter, the Commission should give primacy to the contemporaneous, or near contemporaneous documents, and in particular the transcripts of interview with the witnesses by the respondent's investigator, Mr Luke Naividi. However, these interviews took place a considerable time after the alleged incidents. Further, none of the respondent's direct witnesses took contemporaneous notes of the alleged events which are the subject of these proceedings. 2. In respect of determining the credibility of a witness, in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[141] it was observed: "Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly form the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): '... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.' Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility..." 1. In Evans v Braddock [2015] NSWSC 249 at [73] it was observed: "The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]." 1. The respondent has the onus to establish allegations occurred to the civil standard of proof. The principles in Briginshaw and Neat Holdings are relevant: see above at [2323]-[2424]. In this matter, the paramount consideration is the protection of children: s 5A of the Teaching Service Act. However, the respondent still has the onus of establishing their case to the requisite standard of proof. It is not to be assumed that the appellant had engaged in the conduct, subject to her proving otherwise. To the contrary, the evidence is to be evaluated in the context of the "conventional perception" that teachers caring for children with special needs would not ordinarily engage in the conduct alleged. In fairness, the appropriate approach of the Commission is that it will not lightly make a finding that, on the balance of probabilities, the appellant engaged in such conduct. Respondent's Case 1. The respondent relied upon the following affidavit evidence: 1. Affidavit of Mr Daryl Currie affirmed 15 December 2020 (Ex R13). Mr Currie was the Acting Executive Director of the PES. Mr Currie's evidence exhibited documents relied upon by the decision-maker, Ms Jane Thorpe, Executive Director, PES (Ex DOE-1). 2. Affidavits of Ms Angela Corfield sworn 8 December 2020 (Ex R8) and 8 April 2021 (Ex R9). Ms Corfield is a classroom teacher. Ms Corfield was an important witness. She gave evidence in respect of the hitting and secrecy, and demonstration and secrecy allegations. Ms Corfield is the only person giving direct evidence in respect of the hitting and secrecy allegation for the respondent. 3. Affidavits of Ms Carina Van Wyk sworn on 11 December 2020 (Ex R1) and 1 April 2021 (Ex R2). Ms Van Wyk is a teacher and disability support worker. She gave evidence relevant to the wrist allegation. 4. Affidavit of Ms Deborah Maree Lenon, sworn 7 December 2012: Ex R6. Ms Lenon is a classroom teacher and gave evidence with respect to the alleged incident in 2015 involving Samuel Baker (the wrist allegation). 5. Affidavits of Ms Rebecca Kate Taylor sworn 9 December 2020 (Ex R20) and 31 March 2021 (Ex R21). Ms Taylor is an SLSO. Ms Taylor gave evidence in respect of the wrist allegation. She also gave unparticularised evidence that the observed the appellant engage in excessive physical force on students to make them comply. 6. Affidavit of Ms Vanessa Ann Fahmy sworn on 31 March 2021: Ex R3. Ms Fahmy was a SLSO in the appellant's classroom at the School in 2017. She gave evidence in respect of the hitting and secrecy allegation. Specifically, Ms Fahmy gave evidence in respect to the appellant's evidence that she was not able to leave student, James Lee at the time she was alleged to have engaged in the misconduct relating to Grace White (the hitting and secrecy allegation). 7. Affidavits of Ms Brigette Baird sworn 11 December 2020 (Ex R4) and 31 March 2021 (Ex R5). Ms Baird is an SLSO. Ms Baird was the SLSO in Ms Corfield's classroom in 2017, when the hitting and secrecy allegation allegedly occurred. 8. Affidavits of Ms Jennifer Gaskin affirmed 7 December 2020 (Ex R14) and 31 March 2021 (Ex R15). Ms Gaskin is a teacher. In 2017, Ms Gaskin took the appellant's class, when the appellant was on Relief from Face to Fact (RFF) one day a week and Wednesdays 11:30 am - 1 pm in terms 1 and 2, 2017. 9. Affidavits of Mr Peter Charles Dawson sworn 7 December 2020 (Ex R11) and 26 March 2021 (Ex R12). Mr Charles is a teacher. He worked at the School as a casual teacher in 2017, relieving the appellant on Mondays for RFF during term 3 and 4. He gave evidence in respect of the demonstration and secrecy, and the hitting and secrecy allegations. 10. Affidavits of Ms Trisha Dass sworn 9 December 2020 (Ex R24) and 30 March 2021 (Ex R25). Ms Dash is a teacher. She gave evidence in respect of the demonstration and secrecy allegation. 11. Affidavits of Mr Mark Joseph Gosbell sworn 31 March 2021 (Ex 22) and 29 August 2022 (Ex 23). Mr Gosbell gave evidence with respect to the removal of items from a classroom in late 2019 said to belong to the appellant. He also annexed a document recording "Duress calls" in 2017. Mr Gosbell also annexed documents relating to assistance provided to Ms Baird, SLSO in 2017 as a result of an injury she sustained. 12. Affidavits of Mr Andrew James Peterson affirmed 14 December 2020 (Ex R16) and 31 March 2021 (Ex R17). Mr Peterson is a teacher and Teachers' Federation Representative. Mr Peterson gave evidence of concerns raised with him about the School by other teachers, including Ms Corfield. He also gave evidence in respect of the falling out of relations between some of the teachers at the School. 13. Affidavits of Ms Karen Lee Johnston sworn 7 December 2020 (Ex R18) and 31 March 2021 (Ex R19). Ms Johnston is an SLSO. She was the SLSO in the appellant's class in 2018. 14. Affidavit of Ms Sarah Jane Bavell sworn 24 March 2022: Ex R7. Ms Bavell is Deputy Principal working at Newington Public School. She gave evidence in response to that of the appellant and Ms Unsworth in respect of a conversation which occurred in respect of Ms White and Mr Peterson in 2018. 1. Several of the respondent's witnesses gave evidence with respect to the culture and the relationships between staff at the School. Suffice to say that this stemmed from "a falling out" of certain staff members after a social gathering during the Easter period in 2018 where individuals consumed tank water which resulted in serious illness to several people (the Easter 2018 incident). There was also evidence with respect to their overall impression of the appellant's interactions with students at the School, her capabilities and professionalism. The appellant additionally relied upon 25 character references. These were of very limited probative value in determining whether the allegations could be substantiated. With few exceptions, which I have considered in detail in this decision, the evidence about the appellant's interactions with children and her work as a teaching professional was favourable to her. 2. Mr Currie and Ms Bavell were not required for cross-examination. The remaining witnesses for the respondent were required for cross-examined by the appellant. 3. The Commission conducted a site visit at the School on 29 August 2022 with both parties present. The parties tendered as an agreed statement of facts, a document outlining the visit titled "Attendance note" (Ex A9). 4. The respondent relied upon final submissions filed on 24 October 2022 (RS). These submissions included a document titled Schedule A which addressed issues of credit and reliability of the evidence (RSA). The respondent also relied upon final submissions in reply filed on 9 November 2022 (RSR). Appellant's Case 1. The appellant relied upon the following evidence: 1. Affidavit of the appellant sworn 5 March 2022 (Ex A8). Broadly, the appellant denies the allegations made against her. I have considered the appellant's evidence in greater detail in the decision below. 2. Affidavits of Ms Unsworth sworn 5 March 2021 (Ex A11), 11 June 2021 (Ex A12) and 18 June 2021 (Ex A13). Ms Unsworth is a teacher and the Assistant Principal at the School since 2013. She gave evidence with respect to the interpersonal falling out between herself, and Mr Peterson and Ms White because of the Easter 2018 incident. Ms Unsworth also gave evidence regarding the culture and personal interactions between relevant staff after the Easter 2018 incident. She also gave evidence with respect to the appellant's availability in 2017 due to her care for James Lee, the recording of duress calls and responding to the evidence of Ms Taylor. 3. Affidavits of Ms Dalia Elena Dulinskas dated 5 March 2021 (Ex A15) and 20 June 2021 (Ex A16). Ms Dulinskas is a teacher and Assistant Principal at the School. Ms Corfield took over her class in 2017 when she was on a period of leave. It was during this period the hitting and secrecy allegation was alleged to have occurred. Ms Dulinskas gave evidence in respect of each of the allegations. 4. Affidavit of Ms Ylana Bloom sworn 5 March 2021 (Ex A17). Ms Bloom is a speech pathologist. 5. Affidavit of DSC Luke Lieschke sworn 14 December 2020 (Ex A7). DSC Lieschke was the Police Officer allocated the case in relation to the alleged assault of Grace White. DSC Lieschke gave evidence with respect to his investigation, communications with witnesses and interview with the appellant. 1. Mr Lieschke was not required for cross-examination. The appellant also relied upon other documentary evidence which I have referred to as required in this decision. 2. The appellant relied upon final written submissions filed on 4 November 2022 (AS). Both parties delivered closing oral submissions before the Commission on 11 November 2022. Consideration 1. The Commission is required to stand in the shoes of the decision maker and decide if the allegations made against the appellant are proven. It is convenient to consider the demonstration and secrecy allegation first. That is because an analysis of this allegation is relevant to the determination of the credibility of Ms Corfield, and the reliability of the evidence she has given in the context of the hitting and secrecy allegation. For ease of reference, I have set out the demonstration and secrecy allegation again below. The demonstration and secrecy allegation Around mid-Term, 2, 2018, while conducting a Wednesday (monitor) meeting with several classroom teachers in her office, the appellant improperly instructed staff in using coercive physical contact towards students when the appellant: (a) Demonstrated an unapproved physical technique to apply force to students by pinching or pushing into their upper neck or shoulder area with her thumb or finger if they failed to comply with her direction (including referencing student, Thomas Taylor) ("the demonstration allegation"). (b) Told teachers that they "should not let anyone else see them do this" in respect of the demonstrated physical technique ("the secrecy allegation") (collectively "the demonstration and secrecy allegation") 1. The respondent relied upon the evidence of Ms Angela Corfield, Ms Trisha Dass, and Mr Peter Dawson, classroom teachers in respect of the demonstration and secrecy allegation. In response, the appellant gave evidence denying the allegation. 2. The respondent's principal witness in support of the demonstration and secrecy, and the hitting and secrecy allegations was Ms Corfield. Ms Corfield commenced working as a teacher for the respondent as a casual in the beginning of term 4, 2016 at Baulkham Hills High School in their support unit. From early term 1 of 2017, she commenced working, also on a casual basis, at the School. During 2017, Ms Corfield worked on a regular basis as a casual and for various blocks of time to replace teachers on leave during the school year. In 2018, Ms Corfield secured a 12-month contract at the School with her own class. Prior to commencing her teaching career, Ms Corfield worked as a Registered Nurse. 3. Ms Corfield made a formal complaint to PES in respect of a number of matters relating to the appellant, including the hitting and secrecy allegation and the demonstration and secrecy allegation in January 2019: Ex R8 at [13]. Ms Corfield committed her concerns in respect of the School to writing in a document addressed to "Darryn" (PES Complaint): DOE-1 at pp 290-295. The PES Complaint contained very serious allegations, not only in respect of the appellant's conduct being examined in these proceedings, but also in respect of a number of other employees at the School, including that: 1. Ms Louise Van Kruyssen wanted to "break-in" students, which she stated involved "a rough process, that includes a very authoritarian approach and frightens the child into submitting to the behaviors expected by the teacher." She alleged this was terminology used by the appellant and that she taught the concept to her SLSOs. 2. Mr Daniel Van Kruyssen was cruel towards two students by requiring them to do constant walking or running, or heavy lifting, or a large number of step-ups upon on the bench seats. Ms Corfield also alleged that Ms Van Kruyssen grabbed another student running in the pool area and pushed them into the pool. 3. Mr Kruyssen splashed a child in the face in the pool, which she had observed "others" do as well. Ms Corfield claimed that he continued to do so after the child asked him to stop. 4. The appellant and Ms Jenny Unsworth (Assistant Principal) laughed at her when she complained about Ms Van Kruyssen wanting to "break in" students. 5. Mr Neale Rudland, Acting Principal did not action complaints made to him by Ms Corfield following a meeting lasting over 2 hours in September 2018. Ms Corfield claimed that she told Mr Rudland during that meeting about the allegations the subject to these proceedings relating to the appellant. 6. Mr Gurrier-Jones, Principal did not action her complaints about a number of issues about the School, including "violence against the students" and that he did not ask for details of her complaint to Mr Rudland. 7. Ms Unsworth hit a particular student on more than one occasion and that she proudly told her fellow colleagues about how "she slaps him around and hits him because 'he deserves it' and called him names." 8. Ramona Bodnar, SLSO hit the same student as Ms Unsworth "on more than one occasion." 1. In addition to the allegations the subject of these proceedings, Ms Corfield made the following additional complaints about the appellant's conduct: 1. The appellant intimidated her, including by standing very close to her so she could not comfortably move and was unable to stand up to have a level conversation with the appellant, after she complained about her SLSO, Ms Van Kruyssen, 2. The appellant acted inappropriately when preparing a report of one of her students ahead of the student attending a psychiatric visit. Ms Corfield accused the appellant of pushing the student to her limits and using an aggressive tone with her leading to the student uncharacteristically acting out. Ms Corfield expressed concern that this led to the student being misrepresented in the report being prepared for the psychiatrist, that could result in "inappropriate medication administration." Within this context, Ms Corfield stated, "As a registered nurse I have also worked in a situation where sometimes truths have had to be embellished to ensure that clients receive adequate care and funding." 1. The PES Complaint is an unstructured scattergun of serious allegations against a wide co-hort of teaching and teaching support professionals. Ms Corfield adopted emotive language in the document, which often lacked particulars where serious allegations were made. 2. Ms Corfield demonstrates a lack of objectivity in the PES Complaint. For example, Ms Corfield imports her assumption of the reasons for the appellant's actions in the context of preparing a report for a psychiatrist about a student, as though it were fact. If the content of the PES Complaint were true in its entirety, Ms Corfield was effectively blowing the whistle on wide-spread and systemic abuse of vulnerable children at the School. The complaint alleges abuse was known by the Principal and Deputy Principal of the School, who were not acting on allegations when these were brought forward. On its face, the allegations seem inherently unlikely, and worthy of close scrutiny. As a general proposition it is improbable that people working in the public education system would conduct themselves in this manner, yet alone openly, and in concert with each other. By the of the nature of the alleged conduct, it would be reasonable to expect that there would be others at the School who would be able to verify the abuse alleged was occurring. 3. In the PES Complaint, Ms Corfield stated with respect to the demonstration and secrecy allegation: "Early term two, 2018, I was in Vita's office for our regular meeting, that was supposed to work on communication passport education for new staff, however, [it] was anything Vita felt she wanted us to learn. Trisha Dass, Peter Dawson, and I were in her office and she was teaching us behaviour management as we were discussing the student's patterns of learning and how we can help our students when they are escalating. She wanted to teach us some tricks, manoeuvres, that she knew that would help us be able to control our students when they were acting in a way we wanted to stop. She demonstrated on each of us the way in which she uses her finger and thumb to dig in pressure into the nurse on top of someone's shoulder/neck as a gentle reminder to them that they need to behave for you. She demonstrated on myself Peter and Trish she then stood directly behind Trish and spoke for a minute or so before demonstrating again on Trish Peter and then myself. The pain that she inflicted on my nerves or muscles that day lasted for over 24 hours. The three of us looked at each other throughout this process and said nothing. She was using time that was meant to be spent on assessment and programming, to teach us how to hurt children into do doing what we want them to do. As new beginning teachers on a class in an SSP we would not feel that we knew better than an executive staff to speak up against her in front of other colleagues." 1. Ms Corfield gave affidavit evidence that during 2018 she attended some meetings that the appellant conducted on Wednesday mornings. These meetings were held in the appellant's office and were initially concerning the Communication Passport, although the discussions shifted to discuss patterns of learning and discussions about dealing with their most difficult students: Ex R8 at [66]. 2. Ms Corfield gave affidavit evidence in respect of a meeting when Ms Dass and Mr Dawson were in attendance and the appellant was discussing one of Ms Dass' students, Thomas Taylor. She stated that they were discussing "how [Ms Dass] could best handle that student when their behavior was escalating." 3. Ms Corfield stated (at [74]-[78] of Ex R8): "The three of us were sitting on the opposite side of the desk to Ms Williams. Ms Williams then walked behind us and she said, 'I've got something I can show you'. She then walked to my shoulder, she used her thumb to dig into the upper part of my shoulder, neck area and dug in her finger or thumb quite deeply and gave it a wriggle, a real push. It was in between my shoulder blade and my neck. I don't know if she was digging into my muscle or nerve. It hurt and I felt like my shoulder buckled underneath. I felt pain and tenderness in that area for about 24 hours afterwards. She said, 'See how you can feel that, and you don't like that, well that's what your student will do, they won't like that either'. Then she did the same to Peter and then to Trish. Ms Williams was talking while she was demonstrating this. She said something along the lines of 'This will work. They will do what you need them to do and they are going to behave better'. Ms Williams also said, 'Don't let anybody see you do this' or words to that effect. Then she again demonstrated that manoeuvre again on each of us where she pushed in the same spot on me." 1. Ms Corfield stated that towards the end of 2018, maybe "19 or 20 December 2018" she approached Mr Dawson and Ms Dass separately. She gave evidence that she asked them, "Will you come forward and report with me? Do you have anything else to report?" She gave evidence that whilst she doesn't have a great recall of what each person said, they both agreed "it should be reported but neither offered to come forth and report it": Ex R8 at [82]. She stated that Ms Dass informed her that Ms Virginia McKenzie, SLSO wanted to talk to her about reporting an incident involving the appellant. 2. Ms Corfield gave evidence that she reported the demonstration and secrecy allegation, along with her account in respect of the hitting and secrecy allegation to Mr Neale Rudland, Deputy Principal in or around September 2018. At the time, he was relieving principal. She stated that she had messaged Mr Rudland because she was experiencing some issues with her SLSO, Ms Louise Van Kruyssen. In respect of the demonstration and secrecy allegation, she gave evidence (Ex R8 at [55]-[56]; DOE – 1 p 293): "I also told Neale that Ms Williams had demonstrated a maneuver on me in her office and that it hurt. I said, 'She is hurting kids into submission. She is hurting kids to change their behaviour. That is what she is doing. It's not okay.' I said, 'It's not ok for her to touch me in the workplace and its not ok for her to touch the students like that either.'" 1. Ms Corfield stated that she got very little response from Mr Rudland and he did not ask her to write anything down for him: Ex R8 at [50]-[61]. Ms Corfield stated in the PES Complaint that Mr Rudland's response to her reports of the appellant intimidating her was that he "looked up to the ceiling and laughed" and she was offered no further conversation, comment, action or investigation. The respondent did not lead any evidence corroborating Ms Corfield's account of her earlier complaint about the appellant's conduct to Ms Rudland. The uncontested statement of DSC Lieschke was to the effect that he attended the School and told Mr Rudland that Ms Corfield said that she had reported the incident to him. Further, DSC Lieschke stated that he requested a copy of records in respect of the incident from the School, but there were none: Ex A7 at [27]; and [29]. 2. Ms Corfield presented as a nervous witness, which is not unsurprising given she was not familiar with the Commission's setting. However, on occasion, her answers under cross-examination were not responsive to the question she was asked. Ms Corfield was also sometimes reluctant to respond openly: see for example, Tcpt, 25 August 2022, at p 70 (39) - p 71 (11). She did change her evidence in the witness box. Ms Corfield gave evidence that she had complained about the appellant being violent in a meeting with the Principal on 20 December 2018, only to change her evidence to confirm that she did not do so when taken to the PES Complaint: Tcpt, 25 August 2022 p36 (45); p 42 (19). 3. Ms Trisha Dass worked at the School on a temporary contract from May to December 2018. When she started at the School, she attended the weekly meeting in the appellant's office on Wednesday mornings that started at 8 am and went for about half an hour. 4. Ms Dass presented as an intelligent and truthful witnesses who struggled to recall the details of the meetings she attended with the appellant. Ms Dass was open and non-defensive when giving her evidence. For example, she was quick to admit that her memory of the events had deteriorated. She gave evidence that she enjoyed the sessions with the appellant and looked up to her. 5. She conceded that she found it difficult to remember anything specific about the meetings with the appellant, both when she was interviewed by Mr Naividi and it was even more difficult to recollect at the hearing. She confirmed she did not take any notes at these meetings and had nothing to assist her memory of what occurred during them. 6. Ms Dass gave affidavit evidence that her account provided to Ms Naividi in a recorded interview on 23 January 2019 was true and correct to the best of her recollection: Ex R24 at [10]. Ms Dass told Ms Naividi that Ms Corfield had come to her with concerns, including in respect of the demonstration and secrecy allegation and that there were "a few things she was unhappy about". She informed Mr Naividi that she had been told by Ms Corfield that the appellant had said words to the effect, "Don't let your SLSO see this" but that she did not recall this being said: DOE – 1 at p 226 (524)-(525). 7. Ms Dass gave the following affidavit evidence (Ex R24 at [22]-[32]): "During the interview, (commencing lines 269) Mr Naividi asked if there was ever any discussion around physical, or demonstrations around how to physically manage students, from a teacher's perspective. I responded, asking, 'In what way? Like..' Mr Naividi then said, 'So I have some information that there may have been a demonstration around how to kind of take hold of a particular student?'. I responded, 'I can't remember anything of that, no' (line 276). Mr Naividi then said at lines commencing 277 that he had information that in those meetings with Angela and Peter she would demonstrate on each of us a particular hold to the neck. He asked if I knew anything about that at all and I said that I could not remember anything like that. Mr Naividi then said, 'so your account is that you don't recall being in one of those meetings where she's kind of demonstrated any sort of physical ­ physical manoeuvre or anything like that?'. During the interview I was not sure what Mr Naividi meant by the term 'physical management of students.' When I first heard that term during the interview I immediately thought of grabbing or handling students in a rough manner like pushing them. When Mr Naividi said (commencing at line 301) 'So your account is that you don't recall being in one of those meetings where she's kind of demonstrated any sort of physical - physical manoeuvres or anything like that'. I knew the situation he was referring to in terms of the weekly mentoring sessions I attended with Vita. This helped to clarify my response. I knew I needed to talk to my support person to get a second opinion. I asked to stop for a break and I had a discussion with my support person then returned to the interview and discussed a student of mine called [Thomas Taylor]. [Thomas] was a very difficult student and could get very violent. I then told Mr Naividi that I had asked Vita what I could do to manage him. And Vita said to me, 'You could do this' and she then demonstrated using two of her fingers and applying pressure into the shoulder. She demonstrated that on me." 1. It is unclear whether Ms Dass maintained that the appellant applied pressure to her shoulder and or neck area as the following extract of the transcript at the conclusion of the interview with Mr Naividi demonstrates (DOE – 1 p 227 (504)-(539)): "Navidi: All right the time is 2:52, and we're just having another break – one sec. Okay, we're just staring again – the time is 2:54. Okay, Trisha I was just asking if you've discussed this or if there was any conversations? Dass: So Angela and me are the only ones that [were – kind of could talk to 15:45] – [she was 15:45] two doors down from me, we're both beginning teachers. She actually came to me with these concerns about Vita and I can't remember. The only thing I told you that I can remember is what I've spoken about, but she actually – we have had talks about this you know and there was a few things she was unhappy about. So but… Navidi: As in Angela? Dass: Yeah. Navidi: Okay. Dass: But that was the only, you know the thing, with that… Navidi: So just for the purpose of the recording, Trisha is just showing me the thing as in… Dass: Yeah. [Laughs] Navidi: …that touched them, it looks like you're pointing to the back of your neck? Dass: Yeah. And she told me about the SL – you don't tell your SLSO that, but I honestly cannot remember. Navidi: Okay. So that – okay, well that – we'll just expand on that. So you do – there was a conversation with Angela around… Dass: Mm. Navidi: But what – I guess what you're saying that your recollection is in relation to the only thing you can kind of remember is the – is a touch to the arm… Dass: Yeah. Navidi: …where – and that was kind of specifically in relation to managing [Thomas]? Dass: Yeah. And I think I remember that because it was my situation, you know, yeah." 1. In the interview, Ms Dass stated (DOE – 1 p 222 (350)-(352)): "Naividi: Did she – did she demonstrate that to you only, or was it to… Dass: I think it was just to me – you know to me – that's it." 1. Ms Dass gave evidence that she knew touching a child in this manner was wrong but taking into account her inexperience and the fact that she really respected the appellant, she knew the best thing to do was listen to what the appellant had to say: Ex R24 at [34]. 2. Consistent with her interview, Ms Dass stated that towards the end of the 2018 school year she had a discussion with Ms Corfield about the demonstration by the appellant. In that conversation, Ms Corfield described the demonstration as using two fingers on the neck. Ms Dass recalled Ms Corfield saying that the appellant said, "Don't tell your SLSO" but Ms Dass could not recall the appellant saying that to her: Ex R24 at [39]. 3. Ms Dass stated that DSC Luke Lieschke emailed her in September 2019 and advised her that he was investigating an alleged assault that was supposed to have occurred in 2017. She ultimately decided not to provide a statement in respect of the police investigation. 4. Under cross-examination, Ms Dass gave evidence that she takes her obligations seriously and she would report conduct by another teacher such as hurting a child or a teacher. She confirmed that when Ms Corfield spoke to her about the demonstration in the context of wanting to make a complaint, she could not recall it. Ms Dass gave evidence that had she not been approached by Ms Corfield, she would not have given any further thought to what had happened during those meetings. She confirmed that the appellant did not do anything to hurt her. She gave evidence that the meetings were positive, and the appellant was "very warm and welcoming": Tcpt, 31 August 2022, p 11 (15)-(37). 5. Mr Peter Dawson gave evidence with respect to the demonstration and secrecy allegation. In 2018, Mr Dawson was offered a 12-month temporary contract at the School and for the first time he had his own class in a support school for an entire year. The appellant offered to be a mentor to him and Ms Corfield. 6. Mr Dawson stated that he would meet with the appellant and Ms Corfield one morning a week and they would discuss things such as how to make sure their classroom was suitable for the students' needs. The conversations then developed into some discussion about the Communication Passport. 7. Mr Dawson said the meetings started out with just him and Ms Corfield. He recalled that Ms Dass started to attend the meetings in term 3, 2018. 8. Mr Dawson's evidence with respect to the allegation was vague. He did not keep any notes from the meetings, and he conceded that he could not remember details. He was interviewed by Mr Naividi on 29 January 2019. Mr Dawson recalled that Ms Corfield had some concerns about the meetings prior to him being interviewed by Mr Navidi. 9. When asked by Mr Naividi whether he could recall the appellant showing a maneuver around how to physically manage a student, Mr Dawson stated that he remembered "...there was something around the back of the shoulders or something". He remembered that something took place, but he could not remember any of the specifics. 10. Mr Dawson sent an email to DSC Lieschke on 14 October 2019, in which he stated that he attended a mentoring session with the appellant and two other staff members and that he did witness the appellant showing how to use pressure points on students "if necessary". Mr Dawson also wrote that he never had to use pressure points on any students, "it was more of a precautionary measure". He stated that he did not wish to make a statement in respect of the appellant because in his experience she was a very experienced teacher that loved the students and wanted the best for them: see DOE -1 at pp 305-306. 11. Mr Dawson gave affidavit evidence that on reviewing his email to DCS Lieschke, he would prefer to describe what the appellant did as a demonstration of a physical restraint rather than a demonstration of the use of pressure points: Ex R11 at [27]. 12. Mr Dawson was cross-examined in the proceedings. He gave evidence that he remembered the meeting taking place and that restraints were taught, including restraints being shown by the appellant. He did not remember what specific restraints were shown. Mr Dawson's evidence was that the restraints were shown in the context of discussing how to deal with being attacked by a student. His evidence was that he was not hurt by the demonstration and did not know that Ms Corfield was hurt: Tcpt, 30 August 2022, pp 10-11. 13. Mr Dawson agreed that he understood that he would have been obliged to report the conduct alleged in respect of the demonstration allegation and that he had not made a complaint about the appellant. He agreed that he did not see anything that would cause him to make a report. Mr Dawson's evidence was that had he not been approached, he would not have given the meeting any further thought: Tcpt, 30 August 2022, p 11. 14. In re-examination, Mr Dawson was asked how the appellant demonstrated physical restraints when being attacked by a student and he responded, "She modelled it on the three of us in the room". 15. Mr Dawson did not directly address the secrecy allegation in his affidavit. However, in the interview with Mr Naividi (which he attested was true and correct, in his affidavit), he stated (DOE-1 at p 196 (219)-(249)): "Navidi: Was there ever an occasion where, that you can recall, where Vita made any comments around, if you do this then make sure you don't do it in front of an SLSO. Or don't do it in front of anyone else. Do you know anything about that at all? D: [Pause] I know that, I can't think of a specific incident, but I know that - I think Vita is good at playing, I don't know, one against the other I suppose sometimes. I don't agree with that. But... Navidi: As in students or teachers? Dawson: Oh, pretty much with - I mean in relation to students and SLSOs. I can't think of a situation, but - I can't really think of a situation, but she, yes, she was - yeah, I think it's - I know that in some ways she was, yeah, she - I know she had, she did, has said that sort of thing. But I can't think of an example of what, a context of what she put that in. But yeah, there was - I believe that she did say that, yes, but I can't think of a context. Yeah. Navidi: So she has made comments to you around, if you do something in particular not to do it in front of an SLSO? Dawson: I really - my memory is a bit vague so I can't really, but I would be happier not to say anything because my memory is a bit vague around what exactly she had said. So I would rather say that I - if I can't back it up I would rather say that I don't - that I'm not - yeah. I know that she would have, yeah, she did often say stuff like that. But my memory is vague on what she said it in relation to, so yeah, I'd probably rather say, no. Navidi: All right, so that's fine. Dawson: Yeah. Navidi: I understand. Dawson: Yeah." 1. Mr Dawson gave the following evidence under cross-examination with respect to the secrecy allegation (Tcpt, 30 August 2022, p 8 (19) – p 9 (5)): "Q. And you'd agree that you'd take it seriously if someone demonstrated a technique to hurt a child and then said, 'Never let an SLSO see you hurt the child'? A. Can you be more specific? Q. Well, as part of your professional obligations, if, hypothetically, someone was to demonstrate a technique which hurt a child-- A. Yeah. Q. --and then to say to you, 'Never let an SLSO see you do this technique,' that's something that you'd also have to report? A. Um-- Q. For example, if someone was to demonstrate a technique which inflicted pain on you that lasted for 24 hours and suggest that you might use that as a technique to try and control your students and then to say, "Don't let any SLSO see you hurt a child in that manner," that's something that you'd have to report? A. Okay, yes. Q. And you yourself, it's fair to say, never made any complaint about Ms Williams and any concerns that you might have had concerning Ms Williams and child protection issues. Do you agree with that? A. Yes, I agree with that. Q. And you never made any complaint about Ms Williams allegedly physically assaulting students, did you? A. No. Q. And you never made any complaint about Ms Williams allegedly hurting students to control their behaviour, did you? A. No, I didn't, no. Q. And can the Commissioner take it that that's because in your dealings with Ms Williams, both in the Wednesday morning meetings and otherwise, that you never saw any issues or you never saw Ms Williams engage in behaviour which would cause you to make a report? A. Yeah, in my opinion, yeah, correct." 1. I found Mr Dawson to be an unimpressive witness and his evidence unreliable. During the hearing, he appeared to have trouble comprehending the questions being asked of him, pausing for long periods and giving unclear responses to questions. He gave an account to DSC Lieschke that he had observed the appellant demonstrating a technique involving pressure points, only to state in his evidence that these were "holds" as outlined above. This was despite having had the benefit of time to consider the allegations and gather his recollection prior to responding to the DSC Lieschke's request for information in writing. 2. Further, Mr Dawson demonstrated before the Commission that he was liable to change his evidence depending on what was suggested to him. For example, when giving evidence, he seemingly agreed that there was a practice of recording duress calls by responding "Mm hm", only to change his evidence to say that he didn't know, when he was asked to clarify his response: Tcpt, 30 August 2022, at p 12 (34)-(48). 3. The appellant denies the demonstration and secrecy allegation. It was common ground that the appellant conducted mentoring sessions with staff at the School. The appellant stated that one of the techniques which she would regularly teach in the mentoring sessions was the use of touch cues from the Communication Passport. She gave evidence that the techniques originated from a collaborative process with staff at the School on the most effective non-verbal cues: Ex A8 at [108]-[114]. 4. Ms Jane Thorpe, Executive Director, PES included the following findings in respect of the demonstration and secrecy allegation in her letter of 15 June 2020 to the appellant: "Allegation 4 (a) and (b) What is not in dispute is that Ms Williams did hold meetings with a few less experienced staff members before school one morning per week to provide them with advice and assistance about a range of strategies for working with their students. What is also not in dispute is that the named employees attended some of those meetings. One witness provides detailed evidence of being shown by Ms Williams how to find a pressure point between the neck and the shoulder blade by digging the thumb into the point as a student behaviour management strategy. They stated Ms Williams demonstrated the technique on the three staff and when she did it to them, they remained sore for 24 hours afterwards. Two other attendees were interviewed about this matter. Both were somewhat equivocal with the Investigator, with one employee constantly referring to their support person about what they should or should not say. One employee was more forthcoming with police and stated to police Ms Williams had demonstrated how to use pressure points to manage student behaviour in one of the meetings. Their version corroborated that of the primary witness. I am satisfied there is sufficient evidence to sustain the allegation. There is no departmental policy that permits students' behaviour to be managed by using pressure points to control behaviour. I sustain the allegation and find the conduct to be misconduct." 1. Ms Thorpe did not set out the basis upon which she determined that the secrecy allegation was substantiated. The investigation report in evidence provided the following (DOE – 1 at p 60): "In relation to [the secrecy allegation], the complainant was clear that Ms Williams advised the teachers not to carry out the manoeuvre in front of SLSO's (implying another witness). As noted, this was somewhat corroborated by Mr Dawson and per the conduct in [the hitting and secrecy allegation], is conduct in which Ms Williams has a tendency to engage. As such, it is argued that, on balance there is sufficient evidence to sustain [the secrecy allegation]." 1. The respondent conceded there were differences between the recollections and evidence of Ms Corfield, Ms Dass and Mr Dawson. However, it was submitted that the Commission should be satisfied that the appellant did demonstrate "certain holds to be used on students as a way to control them" and the Commission should find made out, the demonstration and secrecy allegation: RS at [254]-[257]. The findings the respondent submitted the Commission should make are not the same as the findings required to establish the demonstration and secrecy allegation. Consideration of the demonstration and secrecy allegation 1. It is important to reflect upon the seriousness of the demonstration and secrecy allegation. Ms Corfield gave evidence, as set out above that the appellant, when demonstrating the alleged technique, said words to the effect: 'See how you can feel that, and you don't like that, well that's what your student will do, they won't like that either'. 'This will work. They will do what you need them to do and they are going to behave better'. 'Don't let anybody see you do this'. 1. In the PES Complaint Ms Corfield stated that the appellant: "…wanted to teach us some tricks, manoeuvres, that she knew that would help us be able to control our students when they were acting in a way we wanted to stop." "…was using the time that was meant to be spent on assessment and programming, to teach us how to hurt children into do doing what we want them to do." 1. She also stated that she had informed Mr Rudland that the appellant "had no right to touch anybody's body in the workplace whether it be a staff member that she be demonstrating on, or worse, a student who she was teaching a lesson to respect her through physical pain." 2. Consistent with her account of the words spoken by the appellant during the meeting, Ms Corfield's evidence was that the demonstration was painful. She claims that the appellant inflicted pain on her and that persisted for 24 hours. 3. Neither Mr Dawson, nor Ms Dass gave evidence that corroborated Ms Corfield's account of the meeting. As stated above, I am of the view that Ms Dass was a truthful witness: see [6161] above. She was candid in stating that she did not recall the demonstration until she was approached by Ms Corfield about it. The high point of Ms Dass' evidence in support of the demonstration allegation was that in the context of discussing how she could manage a difficult student, the appellant said to her, 'You could do this' and she then demonstrated using two of her fingers and applying pressure into the shoulder. Although she gave evidence that she felt the demonstrated technique was "wrong" she did not explain why or how she formed that belief. Her evidence under cross-examination was that she would not have thought of the demonstration again, were it not for Ms Corfield raising it: Tcpt, 31 August 2022, p 11 (24). 4. Ms Dass' evidence was that the appellant did not demonstrate this on the other participants – just her: see above at [6666]. She did not give evidence of the physical contact causing her pain or suggest that the appellant was demonstrating a process of applying "coercive physical contact" to manage a child's behaviour. 5. Mr Dawson's recollection was that the demonstration was aimed at self-defence when a teacher was being attacked by a student. Ms Dass and Mr Dawson both had a poor recollection of the meeting, despite the appellant speaking to them about it afterwards and prior to the meeting with Mr Naividi. Both Ms Dass and Mr Dawson gave positive evidence about the appellant and the meetings they attended with her. 6. Neither Mr Dawson, nor Ms Dass could recall Ms Corfield exhibiting any pain or discomfort because of the demonstration they recall during a mentoring meeting. Given the description of Ms Corfield, it seems inherently unlikely that neither Mr Dawson, nor Ms Dass would not notice or recall the pain inflicted upon Ms Corfield she described in her evidence. They both agreed they understood their obligations to report child protection issues and did not do so because they did not observe the appellant conduct herself in a way that warranted reporting. I do not believe that if the appellant conducted the meeting as alleged by Ms Corfield, and said the things she attributed to her, this would have gone unnoticed by Mr Dawson and Ms Dass. 7. It is inherently unlikely that Mr Dawson and Ms Dass would forget if the appellant stated in the meeting that they "should not let anyone see them do this" in respect of the alleged demonstrated technique. The remark would be memorable and alarming. The comment points to the appellant knowing that what she was demonstrating was inappropriate and wrong, such that it needed to be hidden from the view of others. As a matter of common sense, the appellant would be taking an extraordinary risk making this statement in front of three work colleagues. 8. I disagree that Mr Dawson's interview "somewhat corroborated" Ms Corfield's account that those words were said: see [87] above. Mr Naividi put the proposition that the appellant made comments about hiding conduct from others in a leading manner: see [81] above. Mr Dawson was uncommitted to agreeing to Mr Naividi's suggestion that the appellant engaged in that conduct. Further, he did not suggest at any time that words to that effect were said by the appellant in the context of the meeting where the alleged conduct occurred, at any time. 9. Further, and for completeness, I reject the reasoning of the investigator that the fact that Ms Corfield gave evidence that a similar statement was made in the context of the hitting allegation supports the proposition that the statement was made in the context of the demonstration allegation. The fact that Ms Corfield gave evidence that a similar statement was made by the appellant more than once, does not make it more likely that the statements were made. In this regard I have considered the evidence of Ms Taylor which suggested the appellant made similar comments as unreliable for reasons I will turn to below at [116]- [118]. 10. Ms Corfield did not immediately report the alleged conduct in respect of the demonstration and secrecy and hitting and secrecy allegations. Ms Corfield offered the following account of why she did not complain about the conduct until sometime after the alleged incident (at Ex R8 at [46]-[49]): At the time of the incident I was really caught off guard. I knew what she did was wrong but at the same time, she was someone who I highly respected and she was an executive at the school. I had a lot of respect for Ms Williams at or around that time I had often said that I wanted to be just like Ms Williams. I told Ms Williams that I wanted to be her. At the time I was unsure of what to do. I now wish that I had reported this incident at the time. I regret not doing so. As indicated in my initial document I prepared and provided to the Employee Performance and Conduct Directorate, I apologised for not reporting what I saw and experienced earlier. I felt that my attempts to let the senior executive at the school know what was going on went no further. The environment at the school was such that I felt that no one at the school in an executive position wanted to hear me raising my concerns. Also, these were the actions of an executive member of staff, an Assistant Principal and so I began doubting the importance of what I eventually reported. Ms Williams was not the only staff member that I witnessed acting in an inappropriate manner towards students. It felt like a lot of people saw things, but nothing happened. I had never seen Ms Williams hit a student before that incident. I had seen Ms Williams use what I would describe as a rough approach with certain students." 1. A delay in reporting allegations of improper conduct does not inexorably lead to the conclusion that the allegations are false. There may be a range of reasons why a person chooses to delay making a complaint. However, Ms Corfield's account of her being reluctant to come forward because of her respect for the appellant, and or fear of "going against her" (see DOE-1 at p 1201) seems inconsistent with her willingness to make complaints in other contexts and about other people. During 2018, Ms Corfield made several complaints about her SLSO to the Principal, Mr Gurrier-Jones and Deputy Principal, Mr Rudland with the support of Mr Peterson: Tcpt, 25 August 2022 at p 33. Ms Corfield made a complaint to her SLSO to Mr Gurrier-Jones as late as 20 December 2018, yet she still had not informed him of her concerns about the appellant. She had every opportunity to raise her complaint about the appellant's conduct with the Principal and did not do so. 2. Ms Corfield also gave evidence that she had made complaints about other staff in the context of her previous employment as a social educator and a nurse. Under cross-examination, she stated (Tcpt, 26 August 2022, p 38 (29)-(34)): "Q. And do you agree that in 2018 you said to Ms Weis, "I loved to dob in everyone at the hospital and I'm going to do it here"? A. Yes, no, that is not correct. They are not the words that I used. I did discuss with her that I have reported previously and I was proud that I was able to do that and that I was suggesting if she had things that she might like to come forward with as well. But that is not the words I used." 1. It is inconsistent with Ms Corfield being proud to report improper conduct and to encourage others to do so, that she would herself fail to come forward with the conduct she alleged against the appellant for such a considerable time. 2. Given the nature of the conduct alleged, there is no doubt that Ms Corfield would be professionally obliged to report it if she witnessed it. Ms Corfield gave evidence that she was aware of her professional responsibilities and the requirement to report inappropriate conduct immediately. She was candid in her evidence that she had failed in her responsibilities by delaying her report. 3. Both parties submitted the Commission should draw a Jones v Dunkel ((1959) 101 CLR 615) inference against the other in respect of the failure to call Mr Rudland. The respondent submitted "it was open to the Appellant to call Mr Rudland to support her case in respect to these allegations and her 'case theory' about why Ms Corfield reported the allegation under the apparent influence of Mr Petersen as part of his 'feud' with Ms Unsworth and potentially, Mr Rudland": RS at [143]. 4. In Francis v South Sydney District Rugby League Football Club Ltd [2002] FCA 1306 Lindgren J held: All three of the following requirements must be met before I may draw the Jones v Dunkel inference: "(a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.": Payne v Parker [1976] 1 NSWLR 191 (CA) at 201 per Glass JA. 1. The respondent submitted that it would be expected that Mr Rudland would be called by the appellant and not the respondent, noting that he did not observe any of the alleged incidents. Despite this, both parties submitted that his evidence would elucidate "a particular matter". 2. Mr Rudland's evidence was notably absent because it would have been relevant to the credibility of Ms Corfield's account that she complained about the alleged conduct before lodging the PES Complaint. There is no evidence from either party as to why Mr Rudland was not called by them. This was despite there being an obvious reason the respondent would not call Mr Rudland, namely he had a reason not to tell the truth if he had received the complaint as alleged: Fabre v Arenales (1992) NSWLR 432 at pp 449-450. If what Ms Corfield says is true, and she did disclose her allegations in September 2018, Mr Rudland should have taken steps to investigate or examine the veracity of the allegations immediately. If he did receive the complaint and did not do so, he is likely to have engaged in serious misconduct himself. 3. Mr Rudland, as Deputy Principal, is a senior employee of the respondent. Although it was open to the appellant to call Mr Rudland as a witness, he was "more available" to the respondent than the appellant: Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at p 259. The failure of the respondent to call Mr Rudland, warrants an inference being drawn that his evidence would not have assisted the respondent's case. That does not result in a finding that he would have given evidence that assisted the appellant. In addition to the absence of any documentary records of the alleged complaint about the appellant to Mr Rudland in September 2018, the inference serves as an additional reason to not accept Ms Corfield's evidence that this occurred. 4. The respondent submitted that none of their witnesses have an interest in the outcome of the proceedings. In making this submission, the respondent listed Ms Corfield as a person who had a great deal of respect for the appellant: RSA at [3]. Although Ms Corfield gave evidence of having respect for the appellant, that clearly changed at some point prior to her making the PES Complaint. The evidence was that the Easter 2018 incident had caused a rift in relationships within the School and the appellant was perceived as being in Ms Unsworth's "camp", while Ms Corfield was in Mr Peterson's "camp". There was an insufficient evidentiary basis to conclude that this division motivated Ms Corfield's complaint. Ms Corfield's reasons for making her complaint does not need to be resolved for the determination of this matter. 5. By making the allegations Ms Corfield made, for whatever reasons she did, she placed herself in a situation where she had much to lose in these proceedings. She had spoken to witnesses in respect of her accusations, requesting their support. She must have been aware the Commission would need to decide if she was telling the truth when she gave her evidence. Ms Corfield had a personal interest in the outcome of the proceedings because her integrity had been directly questioned by the appellant in response to her accusations. 6. For the reasons I have outlined, I am of the view that Ms Corfield was giving untruthful evidence when she gave her account of the demonstration and secrecy allegation. I have decided that given her willingness to give untruthful evidence, she is not a credible witness. I have arrived at this conclusion for the reasons I have outlined, but also having had the benefit of observing her give evidence before the Commission: see [5959] above. 7. Accordingly, I have concluded that the respondent has not discharged its onus of establishing that the demonstration and secrecy allegation occurred. The hitting and secrecy allegation The hitting allegation In early Term 3, 2017, the appellant engaged in unnecessary and/or excessive physical contact directed at Grace White, while demonstrating to classroom teacher, Angela Corfield, how to manage Grace's behaviour while Grace was being toileted, when: (a) The appellant hit Grace to the face from her chin in an upwards motion (b) The appellant took Grace by the chin, squeezed her face and shook her, while saying, "See what I am doing? This way she will remember when you touch her face, what you did to her" ("the hitting allegation") The secrecy allegation After engaging in the conduct in [hitting allegation], the appellant instructed Ms Corfield to conceal her improper conduct, using words to the effect of: (a) "Make sure you don't do this in front of any SLSOs" (b) "Don't tell anyone about this" ("the secrecy allegation") (collectively, "the hitting and secrecy allegation") 1. The respondent relied upon the evidence of Ms Angela Corfield to substantiate the hitting and secrecy allegation. In 2017, Ms Angela Corfield commenced working at the School as a casual teacher for the respondent. Ms Corfield replaced Ms Dalia Dulinskas, taking her class when she was on long service leave for the last three weeks at the end of term 2 and the first three weeks of term 3, 2017. Her account is as follows (Ex R8 at [23]-[45]): "In the first few weeks of term 3, 2017, I was replacing Assistant Principal Dalia Dulinskas on her class while she was on leave. I believe that the block I worked on this class was for about 6 weeks. I believe that the dates of this block should be 12 June 2017 to 30 June 2017 then two weeks of the school holidays then back on class from 16 June to 4 August 2017. [Grace White] was in this class. Brigett Baird was the School Learning Support Officer (SLSO) on that class. I did not work in this class on Mondays as this day was a permanent day of executive release from face to face (RFF) for Assistant Principal Dalia Dulinskas. That is, on Monday's Dalia was replaced by another teacher while she had RFF. I believe that Sheridan took the class on those Mondays when I was replacing Dalia as she did when Dalia was not on leave and was on class. I cannot now recall Sheridan's last name. On those Mondays I would have worked in other classes at the school. [Grace] was approximately 10 years old and had behavioural issues. One of the issues involved her smearing her faeces over classroom desks, walls and nearby people. We were trying to toilet train her and she would often take her nappy off and throw her nappy over the fence or put in on the ground or put her hands in her nappy or undies. If people tried to help her, she would strike out at them. At some stage I had mentioned this behaviour to Ms Vita Williams. While I was on this class Ms Williams was my supervisor. At that stage I thought very highly of Ms Williams. I respected her for what I had thought to be her very professional and experienced practice and an admirable ability to earn the respect of students at the school. On a more casual basis, I felt as though as colleagues we had a very good working relationship and I could speak openly to her and seek advice or simply share my experiences of day to day occurrences at the school. I had no ill feeling toward Ms Williams and openly spoke of my respect for her. Ms Williams said to me, "Next time this occurs let me know and I will come and show you some strategies" or words to that effect. A few days later, [Grace] had had a bowel motion and put her hands in her pants. I cannot recall if she was wearing a nappy or undies at the time. Brigett Baird and I took [Grace] to the bathroom located in the classroom to clean her up. I called Ms Williams to seek her assistance with [Grace]. I'm fairly certain I used the phone in my room to call her on the phone in her classroom, but it could have been from a mobile phone to her mobile phone. Ms Williams attended the classroom and I recall that Brigett and I were cleaning [Grace's] hands in the sink as they had faeces on them. Ms Williams then said to Brigett Baird, "You can go back into the classroom" or words to that effect. Given that there were other children in the classroom that needed to be supervised I did not see any issue with this. Ms Williams put gloves on and then said to me, "I am going to show you something. Never do what I am about to do in front of an SLSO. Do you hear what I am saying?". I didn't really know what I was going to see. This made me feel uncomfortable … I said, "Yeah, ok". Ms Williams then said, "Watch carefully what I am about to do". I then saw Ms Williams hit [Grace] across her face with an open palm. The blow was directed from the point of her chin in an upwards direction. She slapped her from the side and upwards, from her chin upwards. [Grace] appeared to be stunned. She stopped what she was doing, and she appeared to look scared. She started to cry and had tears in her eyes. Ms Williams said, "See. Did you see what I just did there? You make sure you never do that when an SLSO is watching you. Never let anybody see you do that, but you see what I did there?'. I said "yes". I then saw Ms Williams grab [Grace's] chin firmly and she squeezed and shook Grace's chin. She then said to me, "Now every time you touch their face like this, see what I am doing here, they will remember what you did to them". I recall that [Grace] showed obvious signs of distress and fear. She looked really frightened. Ms Williams then directed and led [Grace] over to the wall while holding her chin. I recall that Ms Williams said something to [Grace] along the lines of, "You don't touch your poo". [Grace] seemed to comply with Ms Williams' instructions. … She was crying with real tears and had a frightened look on her face. Afterward Ms Williams cleaned up [Grace] she left the classroom and [Grace] returned to her normal activities." 1. Ms Corfield gave evidence that she did not keep any contemporaneous notes with respect to the incident. It was put to Ms Corfield on several occasions during the cross-examination that she had fabricated her account of the allegations. She denied this was the case. 2. Although the respondent did not refer specifically to the evidence of Ms Taylor in their submissions with respect to this allegation, her evidence, if accepted, would increase the likelihood that the appellant engaged in the hitting and secrecy allegation. Ms Taylor's gave extraordinary evidence of misconduct by the appellant. She stated ([40]-[45] of Ex R20): "I saw her grab students by the face to get their attention with a tighter fingers gripping them than I thought necessary. I saw her jerk a student's chin and push their face side to side. I saw her grab a student by the back of the neck to direct the student. I saw her smack a student under the chin while the student was on the toilet. One particular student I recall was sent down to Vita from the seniors. I can't remember his name. Vita was using her finger to smack him on the ear. I thought the smacks on the ear were quite hard. While she was smacking him on the ear she would say, 'You need to listen' and asking 'Are you listening?' … I had seen her jerk a student's chin and push their face side to side. Vita also suggested that I should use the strategy of putting pressure on certain parts of the student's hand to get them to stand up or to stop them from dropping. She also mentioned squeezing fingers or bending fingers to make children comply. I disregarded these suggestions she made and did not use them. She would also make comments like 'Just don't let teachers see you do this', or don't let anyone else see you do this' when she was showing me something like a physical action to get the students to comply." 1. I found Ms Taylor to be an unimpressive witness. She was evasive under cross-examination. For example, she gave a contradictory account of whether her memory had improved since her interview with Ms Naividi. Further, she did not give direct and open responses to questions about whether she kept notes of the incidents she alleged she observed: Tcpt, 30 August 2022, p 11 (36)-(36). There was no corroborating documentary evidence of her account, such as a file note or evidence of the complaints she claims she made to Executives of the School. Under cross-examination, she stated that she could not remember specific students, or their names or faces. She also stated that she could only remember "elements" of incidents: Tcpt, 30 August 2022, pp 62-63. I find that Ms Taylor did not provide that detail because the conduct did not occur. Had the conduct she alleged occurred, she would have been able to particularise it with approximate times and the identity of children she accused the appellant of abusing. It is inherently unlikely that she would not be able to provide any such details given the alarming nature of what she claims to have seen. 2. Under cross-examination, Ms Taylor conceded that she is friends with Ms Corfield and that they socialised outside of the School in 2017 and 2018. She also admitted that she had spoken to Ms Corfield about the allegations she had made against the appellant prior to her interview. This is the most likely explanation for why her non-particularised allegations so closely align with the accusations of Ms Corfield. Having observed Ms Taylor give evidence and for the reasons set out above, I find that she was an untruthful witness, giving false evidence in the hope that would assist Ms Corfield in substantiating her allegations. Ms Taylor's evidence is unreliable and I give it no weight. 3. The appellant denies the hitting and secrecy allegation. She stated in her affidavit (Ex A8 at [86]): "I did not, and would never have, behaved in the manner alleged." 1. In answering the hitting and secrecy allegation, the appellant gave what might be described as an "alibi defence", consistently referred to her need to care for a very high needs student James Lee during 2017. In her written response to the respondent in respect of the allegation, she stated that (Ex DOE – 1, at pp 323-324): "For the whole of 2017 I spent every minute of every school day with that boy – from the time he arrived at school to the time he was picked up after school finished." 1. The appellant also stated that during the whole of 2017, she did not attend to any duress alarms due to the demands of caring for James Lee. Her evidence was that during her RFF time on Mondays and part of the day on Wednesdays, she would remain in the classroom because of James Lee. 2. Ms Jenny Gaskin, classroom teacher gave evidence that she relieved the appellant during her RFF during terms 1 and 2 of 2017. Mr Peter Dawson, classroom teacher also gave evidence that he relieved the appellant during terms 3 and 4 of 2017 when she was on RFF. The appellant's affidavit evidence in chief was that the evidence of Ms Gaskin and Mr Dawson was "denied and wholly untrue": Ex A8 at [106]-[107]. 3. However, before the Commission, the appellant sought to correct her evidence in chief, making the following statement (Tcpt, 31 August 2022, p 27 (17) – (44)): "Q. I understand you want to make some corrections to paragraphs 105 to 107 of that affidavit? A. I do. Q. Would you like start with your corrections to paragraph 106 please? A. Commissioner in 2017, I had a little boy six-and-a-half years old who came to my classroom. He had extreme violent destructive behaviour. My time was solely spent with him including my RFF. In term 2 I introduced swimming sessions and they were done every morning. Towards the end of term 2, his behaviour improved and in my RFF he had short periods being in a calm, settled state. When I talked to my staff and they felt comfortable I was able to leave him during my RFF. I was a phone call away. My class staff knew where I was and so did my executives. Q. Ms Williams, are there corrections that you'd like to make with respect to paragraph 107? A. Yes. In term 2 I introduced swimming sessions and in term 3 they continued but in the first two weeks we had daily swimming sessions. My classroom was scheduled for what was the second session of the whole school program. I was in the water in session 1 and I remained in the water for session 2 because I was asked by the staff from swimming to remain in the water. Towards the end of term 3, [James'] behaviour improved, they became longer in duration. I had asked the staff if they felt comfortable if I was to leave the classroom. During my RFF I did that. I was a phone call away. My class staff knew where I was and so did my executives. His behaviour continued to improve in term 4. Commissioner, despite [James'] behaviour improvements he still continued to have extreme outbursts and he still did in 2018." 1. The appellant qualified her evidence under cross-examination that she believed she had not left James Lee when she was on RFF in 2017 at the time that she swore her affidavit: Tcpt, 31 August 2022, p 28 (46)-(48). She was unable to give clear evidence with respect to when she realised that her affidavit evidence in chief was wrong in that respect: Tcpt, 31 August 2022, p 32 (5) - p 32 (6). 2. The appellant's evidence in chief and during cross-examination was that she did not attend duress alarms, including to assist with toileting in 2017, again because of her care of James Lee. The appellant was taken to the Duress Log from 2017, where it was documented that the appellant attended incidents on 17 March 2017 and 29 June 2017: Ex R14. When the appellant was taken to the first of these entries, she asked to see whether James Lee was at the School on that day. The respondent tendered a document titled "Student Yearly Absence Report" in respect of James Lee that indicated he was present on 17 March 2017: Ex R29. Ultimately, the appellant conceded under cross-examination that the evidence that she did not attend duress calls in 2017 was untrue: Tcpt, 1 September 2022, p 41 ln (13)-(15). 3. The appellant gave evidence during cross-examination that she was absent from James Lee when presenting to other schools on the Communications Passport at the end of terms 3 and 4 of 2017. However, she also gave evidence that she attended the Willans Hill School in June 2017, in term 2. The appellant offered an explanation that James Lee would have been at home during this period. However, the School attendance records of James Lee indicated that he was not absent on the relevant day: Ex R29. 4. The parties led evidence with respect to the characteristics of Grace White. The evidence was consistent that Grace was a student who exhibited challenging behaviours and did not have control of her arms, which she would flap if she did not like something. Grace was difficult to toilet and was known to inappropriately smear her faeces. It was also undisputed that Grace was a student who was capable of vocalising if she was unhappy. Ms Brigette Baird, SLSO gave evidence of an incident where another student scratched Grace and she screamed: Tcpt, 23 August 2022, at p 65 (22)-(32). She gave the following evidence (Tcpt, 23 August 2022, at p 66 (1)-(16): "Q. And when you say that you did observe [Grace] responding to that, you mean yelling out? A. Yeah, I also have observed her crouching in a corner and crying from just falling off her chair. But then other times I've observed her just standing there and in shock, so she doesn't necessarily have the traditional reactions and that's not uncommon in disability, because of the way they - again, I'm not a medical professional, but the way their brain is wired. Q. Yes? A. So I have observed her doing the opposite as well, a couple of times, but I wouldn't actually say - it's hard to know because I've worked with her for a number of years, even including last year, I mean, so to remember her at this age is very hard to remembering her now, because she actually has changed a lot." 1. The Commission attended the School on 29 August 2022 and inspected the areas where the wrist and the hitting and secrecy allegations were alleged to have occurred: Ex A9. The toilet was located in a bathroom shared between two classrooms. The bathroom was located at the back of those rooms with doors opening to the two adjoining classrooms. The bathroom had three cubicles separated by shower curtains: Ex A1 p 1. The toilets are not visible looking into the bathroom from the classroom. 2. Ms Venessa Fahmi, was the appellant's SLSO in 2017. She gave evidence that students would go to the toilet at set times, but also at other times as necessary (Tcpt, 23 August 2022, p 35 (15)). Ms Fahmi agreed under cross-examination that (Tcpt, 23 August 2022, p 36): 1. she could hear what was going on in the bathroom; 2. when in the bathroom you wouldn't know if someone else was entering the area; 3. if a student cried in the bathroom or yelled, the teacher in the other class would be able to hear it if the door was open; 4. it was the practice of the school that if you heard a commotion or an incident or something happening in the bathroom, the teacher on the other side would inquire whether everything was "ok"; and 5. as a matter of ordinary practice, she would keep an ear out to hear what's going on in the toilet, in case someone needed assistance. 1. Ms Brigette Baird, was the SLSO in Ms Dalinskas' classroom in 2017. Although she gave evidence that she recalls the appellant attending the classroom of Ms Corfield, she was unable to confirm "100%" if this had occurred in 2017, as it could have been in 2018: Ex R4 at [16]. Her evidence when cross-examined was that (Tcpt, 23 August 2022, at pp 63-64): 1. the bathroom doors could be open or closed; 2. anyone could enter from either classroom; 3. If a child called out from the bathroom, there was a reasonable likelihood that they could be heard from either classroom; 4. There was set toileting times, but also there "would have been times when students chose to go to the toilet themselves. We had a few children in the classroom that would do a bowel motion and you would just have to change them anyway, they were in a nappy, so you not leave them in a nappy a long time"; 5. Although not common practice, she recalled times when she would have assisted Ms Lenon next door; and 6. As an SLSO working in a SSP setting, she would naturally assist co-workers if she heard a child in distress or an adult in distress. 1. With respect to the capacity of staff to hear if a person screamed from the bathroom, Ms Baird gave the following evidence (Tcpt, 23 August 2022, p 71 (33)- p 71(4)): "Q. You could hear it - so if someone was to scream in that bathroom? A. It would depend - I cannot a hundred per cent say. It would depend on the level of the scream. It would depend - children in our - in our settings scream when it's not always appropriate to scream, keeping in mind there is also noises going on in the classroom. There could be four children screaming around me, which was not unusual in that classroom where I was working. We would often have something playing on the smartboard so there is often other noises at play, so I can't a hundred per cent say that I would always hear every single thing. Q. But you did hear - you have heard-- A. I have heard. Q. --screams, yells, noises? A. Yes. Q. And you have gone into the bathroom after you've heard that to see what - or checked up on what's happening-- A. Yes. Q. --in that thing? A. Yes." 1. The evidence also confirmed that toileting would usually be the role of the SLSO in the classroom, but it was not unusual for a teacher to attend to this task. Ms Dulinskas gave evidence that she "absolutely" attended to the toileting of Grace in 2017: Tcpt, 2 September 2022, p 67 (19)-(21). Further, there was evidence that Ms Baird, had a wrist injury during the relevant period. 2. There was also evidence led by the parties in respect of the use of the "duress calls" requesting assistance and how these were recorded. There was no evidence of a duress call being logged, but this is not inconsistent with the manner in which Ms Corfield claimed that appellant came to assist her with respect to the toileting of Grace. She claimed the appellant offered her assistance directly and not through the processes associated with "duress calls". 3. In her letter of findings, Ms Thorpe stated with respect to the hitting allegation (DOE-1, p 28): "Ms Williams denied that she engaged in the conduct outlined in the allegation i.e. slapping the student across the cheek and grabbing their chin while toileting them. She further advised she could not have engaged in the conduct as she had her own particularly challenging student in 2017 and did not go into other classes to assist. She described the allegation as a 'lie'. A school employee provided a detailed interview about the conduct to EPAC and a consistent version in a police report. They stated they raised their concerns with the school executive at the time but were concerned the principal did not address these concerns in any way. The police did not proceed to charges because other potential witnesses were reluctant to make statements to the police, although one witness confirmed to the police it was not unusual for an executive staff member to come in to assist with challenging behaviours and the SLSO may be asked to leave. Reluctance to provide police statement is not unusual. However a witness was very clear that Ms Williams did come into the class to assist on a number of occasions in 2017 and other staff also confirmed Ms Williams would go and assist teachers with challenging behaviours at that time. This calls the veracity of Ms Williams' response that she did not leave her classroom to assist other in 2017, into question. I find the complainant to be most credible and sustain the incident occurred as alleged. The conduct amounts to misconduct." 1. In respect of secrecy allegation, Ms Thorpe stated: "Again this allegation refers to the incident outlines in [the hitting allegation]. The allegation is that Ms Williams told the employee to make sure they did not do this in front of any SLSOs and not to tell anyone about what she was showing them to do when toileting the student. Essentially this is one person's version of events against the other. On this occasion, I prefer the evidence of the witness. It is detailed and credible and they raised their concerns at the time and then provided consistent versions of what had been said. There is also evidence from other staff that Ms Williams did sometimes make commentary to the effect 'not to tell SLSOs' when discussing certain techniques with teachers." Consideration of the hitting and secrecy allegation 1. Having carefully considered the evidence, I have concluded that the respondent has not discharged the onus of proof to establish that the appellant engaged in the conduct alleged in the hitting and secrecy allegation. In arriving at this conclusion, I have paid close regard to the objective circumstances relating to the allegation. These do not support the conclusion that the appellant engaged in the alleged conduct. In addition, as I have outlined above, I have found Ms Corfield to be a person willing to give untruthful evidence. 2. There is no dispute that the conduct alleged is serious misconduct warranting termination if proven. The appellant would have been aware of this risk. At the time of the incident, Ms Corfield had worked casually at the School for a term and a half. Why the appellant would place such extraordinary trust in Ms Corfield, was not explained by the evidence. It is inherently unlikely the appellant would place her future teaching career in the hands of a new casual teacher. 3. There were several witnesses who gave an account of Grace being a child who could and did vocalise when she was hurt: see above at [128128]. Although the evidence was that the classrooms could by noisy, and Grace didn't always call out when hurt, there must have been a real risk, known to the appellant, that Grace might react in a way that would draw immediate attention to the circumstances of her distress. It is inherently unlikely the appellant would engage in the alleged conduct given this risk and the presence of others in the adjoining classrooms. 4. The time and location of the alleged events was not conducive to the incident being kept secret between Ms Corfield and the appellant. The toilets are a shared facility located at the back of the two classrooms with doors leading from each into the facility. There are two toilets separated only by curtains. The students, SLSOs and teachers could come and go into the area at any point in time without notice. 5. These objective circumstances, namely, Ms Corfield being new and casual, the openness of the toileting area, the risk of Grace vocalising and drawing broader attention and its accessibility to other people and students make Ms Corfield's account less plausible. 6. Ms Corfield's delay in reporting the incident is also relevant to the believability of her account of the conduct occurring: see above at [100]-[103]. Similarly, it is inconsistent with the alleged conduct having occurred that Ms Corfield complained about her SLSO engaging in "stomping" behaviour to the appellant in 2018, when she had other people within her reporting structure to approach: Tcpt, 25 August 2022, pp 31-33. 7. I have decided that the evidence of Ms Corfield about the hitting and secrecy allegation is not credible. It is inherently unlikely the appellant would engage in the conduct, and the objective circumstances do not support Ms Corfield's account of what was alleged occurring. I have additionally found Ms Corfield to be a witness lacking in credibility, which is a further reason, I am not persuaded by her evidence with respect to the hitting and secrecy allegation: see [5959]; [8936]-[111111] above. 8. As the respondent has the onus to establish the conduct occurred, with evidence, I have found it unnecessary to consider in detail the appellant's evidentiary case denying it. For completeness, I note that the appellant's initial account that she could not have assisted Ms Corfield as alleged during 2017 was not credible. The appellant did leave James Lee during 2017, including during her RFF. She did attend duress calls in 2017, including on days when she was not on RFF. The appellant also left the School when James was in attendance to present on the Communications Passport. I reject the contention that the appellant could only have visited Ms Corfield's classroom on a Monday or Wednesday when she was on RFF. However, the evidence supports the conclusion that she was less available to assist other teachers and students in 2017 because of her care of James Lee. The evidence was consistent that James was a child that required special attention and it was the appellant's main role in 2017 to provide that care and support. However, the fact that the appellant gave evidence, sometimes emphatically which was clearly wrong and discredited, does not mean that she engaged in the conduct alleged against her. 9. Ms Thorpe in her letter of findings also concluded that the appellant's account with respect to her non-availability was false. She went on to state in her conclusion that she found the "complainant to be most credible" before stating that the allegation was sustained. A determination of whether the appellant engaged in the alleged conduct was not simply a matter of determining whether Ms Corfield was more credible than the appellant. The primary task was to determine whether, on the balance of probabilities, the allegations could be substantiated, considering the principles espoused in Briginshaw, based on the evidence against the applicant. It was not to be assumed she engaged in the behaviour unless she proved otherwise. 10. Ms Thorpe determined that Ms Corfield complained about the appellant's conduct "at the time". This is factually incorrect. Even on her own version, Ms Corfield did not complain about the conduct until September 2018, more than a year after the alleged event. A critical analysis of the credibility of Ms Corfield's account in the letter of findings is lacking. 11. It follows that I am not persuaded by Ms Corfield's account of the hitting and secrecy allegation. The respondent has not substantiated the allegation on the evidence. The wrist allegation In 2014, the appellant engaged in unnecessary and/or excessive physical contact against Samuel Baker, when you used your hand to bend and/or twist Samuel Baker by the wrist when he would not comply with your direction to "get up" from the ground. 1. The respondent's witnesses who gave evidence in respect of this allegation were Ms Carina Van Wyk, Classroom Teacher, Ms Rebecca Taylor, SLSO and Ms Deborah Lenon, Classroom Teacher. Ms Virginia McKeznie, SLSO who was the principal complainant in respect of the wrist allegation, did not give evidence. The appellant denied the conduct alleged in the wrist allegation. In addition to her own evidence, the appellant relied upon the evidence of Ms Dalia Dulinskas, Assistant Principal. 2. In her affidavit, Ms Van Wyk stated that in 2014, she saw an interaction between the appellant and Samuel Baker. Ms Van Wyk said she was in her classroom with Ms McKenzie, and another teacher by the name of "Debbie". She stated ([11] of Ex R1): "I saw Vita Twist [Samuel's] arm. He showed hurt on his face. [Samuel] had a really high pain tolerance and if he showed pain in his face I knew he was really hurting. I recall seeing his face and knowing that it must have hurt him." 1. Ms Van Wyk stated that she recalled Ms McKenzie spoke to the appellant about the incident at that time: [13] of Ex R1. 2. Under cross-examination, Ms Van Wyk gave evidence that she had spoken to Ms McKenzie about the incident before her interview with Mr Naividi, but not in detail. She could not recall speaking with Ms McKenzie after the interview, but conceded it was possible: Tcpt, 22 August 2022, pp 48-49. Ms Van Wyk had also spoken to Ms McKenzie about her non-participation in the proceedings as a witness: Tcpt, 23 August 2022, p 21 (1)-(24). 3. There is a real danger that Ms Van Wyk's perception of what she saw with respect to the wrist allegation was influenced by her discussions with Ms McKenzie. Under cross-examination, she responded as follows to a line of questioning by Senior Counsel for the appellant (Tcpt, 23 August 2022, p 13 (40) – p 14 (29)): "Q. But you can't recall whether there was anything that would require-- A. No he was outside, he was not in the classroom where he was supposed to be. So he was outside and before, Mrs Williams has gone to him before to help us, so that's why that's not an assumption, that's normal procedure in the school that if a student needs help and other teachers were not allowed to help, the APs were instructed to help. And because [Samuel] was that kind of student, that's why she often helped and that was the one time that we allegedly, what we think we saw something. But just a normal procedure for her to intervene when that specific student or another student needed help or needed guidance or needed to support or whatever. So I can't say it's ...(not transcribable)... it happened more than once that she would step in. …… STEELE: Yes, but I'm setting some context. I will set the context differently. Q. In your last answer, you said, "We thought we saw something". We. Is that because as a result of discussions that you've had with Mrs McKenzie? A. No. Q. Well who's the 'we'? A. Okay, yes it is, because that is a normal thing to do. To discuss situations in your classroom, your SLSO, she works with you closely, so we discuss things all the time." 1. Ms Van Wyk under cross-examination gave a number of important concessions including that she could not recall (Tcpt, 23 August 2022, p 12): 1. exactly where the appellant and Samuel were located at the time of the alleged incident; 2. whether Samuel was lying, sitting or standing; 3. where the appellant touched Samuel or her precise movement; and 4. whether Samuel pulled a face, or made a sound. 1. Ultimately, Ms Van Wyk conceded that she could not say that she saw the appellant twisting Samuel's arm: Tcpt 23 August 2022, p 15 (6). 2. Neither Ms Taylor, nor Ms Lenon gave direct evidence supporting the alleged incident. In respect of the alleged incident, Ms Taylor gave evidence that she recalled moving through the school but could not remember if she was with her students or was walking to get them. She stated that she recalls the appellant and Ms McKenzie "standing close and over the top" of Samuel who was on the ground. Ms Taylor gave evidence that she did not think this was unusual, as students at the school dropped a lot: Ex R20 at [31]. 3. Ms Taylor deposed that Ms McKenzie told her that she had seen the appellant hurt Samuel. She also stated that Ms McKenzie informed her that she had confronted the appellant about what she had seen: Ex R20 at [32]. When cross-examined, Ms Taylor admitted that she did not see or hear anything out of the ordinary, and it was possible she may not have considered the incident further, had she not spoken with Ms McKenzie about it: Tcpt, 30 August 2022, p 58 (21)-(47). 4. Ms Lenon gave evidence that she was standing in her classroom in the doorway when she saw Samuel drop to the ground in the playground and the appellant go to him. She stated that her view of the student was partially blocked by the appellant. Ms Lenon gave evidence that she did not see what the appellant did to encourage him to stand up but that he did so quickly, which surprised her as Samuel was usually difficult to get back on his feet when he decided to drop: Ex R6 at [10]. 5. When cross-examined, Mr Lenon confirmed that she was unable to see how Samuel got up. This was consistent with her evidence in chief. Ms Lenon conceded that her main recollection of the event was Ms McKenzie's reaction to it. She confirmed she would not have given the incident further thought if Ms McKenzie had not made comments to her about it: Tcpt, 23 August 2022, p 84 (5)-(15). 6. The appellant denied ever using excessive force with respect to Samuel: Ex A8 of [84]. In her written response to the allegation, she stated that because she was not provided with a date in respect to the incident, "it makes it very difficult to address the allegation": DOE-1 at p 321. The appellant stated that she recalled in June 2014 she assisted with Samuel who had dropped to the ground by stating "up please". She said that he had responded positively to her voice. 7. The appellant stated that she had been informed by Ms Dulinskas, Assistant Principal, that Ms McKenzie had not liked the way she had interacted with Samuel and that Ms McKenzie's perception of what happened was not accurate: DOE-1 at p 321. The appellant also stated that the incident was raised with her by Mr Peter Gurrier-Jones, Principal and she recounted the events to him. She also alleged that "throughout 2017, on several occasions it was brought to my attention that [Ms McKenzie] was publicly stating that she was out to get" her. 8. The appellant gave evidence that in her written response to the allegation, she guessed that the incident "might have related to one in June 2014 when I recall assisting Deborah [Lenon], Teacher who was having difficulty supporting [Samuel Baker] when he 'dropped' to the ground on playground duty": Ex A8 at [83]. The allegation as it was put to the appellant lacked specificity as to the timing or location of the event. 9. The appellant also relied upon the evidence of Ms Dalia Dulinskas, Assistant Principal. Ms Dulinskas gave evidence about an incident in 2014 involving the appellant's interaction with Samuel. She stated that the events may not relate to the same incident. Her recollections were that she observed the appellant guide Samuel across the playground using a "supportive hold". She then observed Ms McKenzie yelling at the appellant in an aggressive tone, but she did not recall the words used. Ms Dulinskas gave evidence that she told Ms McKenzie, words to the effect: "If you don't like what you see you need to go and talk to [the principal of the School]": Ex A15 at [34]-[41]. Consideration of the wrist allegation 1. The Department comprehensively summarised the evidence of the witnesses in respect of the wrist allegation in their submissions: [11]-[71] of RS. They concluded ([72] of RS): "Although the Respondent concedes that the evidentiary foundation of the allegation is less than the other allegations that when all the evidence is considered including those matters in [RSA], the Commission can be satisfied that this allegation is made out." 1. The respondent's submissions lacked an analysis of the evidence or an explanation as to how, given the concessions made by their witnesses and in particular Ms Van Wyk, the wrist allegation could be made out. 2. The respondent argued that the appellant ought to be found by the Commission to lack credit and therefore be regarded as an unreliable witness. However, the respondent (properly) conceded that "it is also possible that the Appellant's lack of credit and the reliability of her evidence has been impacted by her medical condition": RSA at [20.18]. 3. The wrist allegation relates to events that are said to have occurred in 2014. Although there was evidence the alleged conduct was raised with the appellant at the time, no further or formal action was taken. Mr Naividi conducted his interviews in respect of the witnesses to the allegations in early 2020. The reliability of the witness evidence in respect of the wrist allegation was materially impacted by the passage of time since the alleged event occurred. The appellant's capacity to respond to the wrist allegation was impacted by the delay in it being investigated. She had to guess that the incident was the same as the one raised with her in 2014 when Ms McKenzie accused her of mistreating Samuel. 4. I am unable to conclude from the respondent's evidence that the appellant engaged in the conduct alleged. After Ms Van Wyk conceded, she could not recall seeing the appellant twist Samuel's arm, there was no other direct evidence to substantiate the alleged conduct. Ultimately, no one gave evidence that they recalled observing the appellant engage in the act she was accused of in the wrist allegation. If Ms Lenon's evidence is accepted, there may have been a range of reasons for Samuel rising to his feet quickly. The appellant's explanation that Samuel responded positively to her voice is plausible. 5. To the extent that the respondent is submitting, the Commission should rely upon the recollection of events given by Ms Van Wyk stated in her witness statement and to Mr Naividi, I decline to do so for the following reasons: 1. The accounts given to Mr Naividi in respect of the wrist allegation did not occur immediately after the alleged event. Rather that version was given on 21 March 2020, more than 5 years later. 2. Ms Van Wyk conceded under cross-examination that she had spoken to Ms McKenzie about the incident. There is a real danger that Ms Van Wyk's perception of the event was influenced by Ms McKenzie. 1. As stated above, Ms McKenzie did not give evidence in the proceedings. Further, from the evidence of Ms Van Wyk, the only explanation for this was that she did not wish to participate in the matter: Tcpt, 23 August 2022, p 21 (23)-(24). In the transcript of her interview with Ms Naividi, Ms McKenzie stated that, "I saw she went to sit next to [Samuel] and grab his, sorry, grab his hand around there and twist". The transcript was not admitted into evidence for the truth of its contents. The respondent could have but did not summons Ms McKenzie to give evidence. Given Ms McKenzie had given an account of having directly observed the incident, her evidence would have been important. 2. The absence of Ms McKenzie's evidence in these proceedings was also critical because she discussed the allegation with each of the respondent's witnesses in respect of the allegation. In the absence of Ms McKenzie giving evidence in these proceedings, the account of Ms Taylor about what Ms McKenzie said to her about the events has no probative value in proving the wrist allegation in these proceedings. In any event, I have found Ms Taylor to be an unreliable witness who lacks creditability for the reasons I have set out above: see above at [116116]-[118118]. 3. I have also found that the evidence of the appellant and Ms Dulinskas do not assist the respondent's case. It is unclear if Ms Dulinskas is referring to the same incident or if her memory is so impacted by the passage of time that key details have been lost. 4. I have decided that the respondent's evidentiary case is insufficient to sustain, on the balance of probabilities, the allegation that the appellant used her hand to bend and or twist Samuel Baker's wrist, as alleged. Outcome of the appeal and relief 1. It follows from my findings above that the appeal should be allowed. The respondent has not proved the appellant engaged in the alleged conduct on the balance of probabilities. It is unnecessary to consider further the appellant's contention that the appellant was denied procedural fairness in the investigation proceed: AS at [16]-[42]. The appellant does not claim compensation in these proceedings: Tcpt, 11 November 2022, p 38 (33)-(38). She seeks the following orders: 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 IR Act, Ms Williams' employment with the Department is deemed not to have been broken by the Decision of the Department; and 3. The Department, within 7 days from the date of the Commission's decision remove the appellant's name from the 'Do Not Employ List' maintained by the Department. 1. The respondent submitted that the Commission does not have power to make an order directing the respondent to remove the appellant's name from the NTBE list. 2. Before detailing the appellant's submission on this point, it is convenient to set out ss 100C and 100D of the Act: 100C Decisions with respect to appeals (1) (Repealed) (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited-order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment. (Emphasis added) 1. During final submissions, Mr Britt elaborated on the respondent's position with respect to the NTBE List order (Tcpt, 11 November 2022, p 45 (35)-(41)): "We say you don't have the power to do it. It doesn't prevent you allowing the appeal and if you allow the appeal she's employed. But you don't actually have the power to direct the department to change its list. Notwithstanding you may make orders which are - sorry, notwithstanding the objects talked about, fair and just, you don't have a discretion at large to make any order the Commission thinks fit. You are constrained by the terms of the Act." 1. Ms Steele SC for the appellant argued that the Commission has the power to make the order requiring the removal of the appellant's name from the NTBE List, referring to Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069 where Chief Commissioner Kite SC (as he was) stated at [30]: "The context begins with the words of s 100D(1). The subsection makes clear that the section only operates if the Commission decides to allow the appeal in some way. That and the opening words of the subsection drive one back to s 100C(2). That subsection clearly vests a broad discretion in the Commission enabling it to "allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit". Section 100D expressly does not limit s 100C. The construction for which the appellant contends would limit the powers vested in the Commission by s 100C." 1. The appellant argued that the submission that Mr Britt of the respondent that the Commission does not have power to make the relevant order flies in the face of s 100C. Ms Steele SC also referred to [34] of the decision where it was stated: "The effect of the submission is to constrain, in one way or another, the discretion of the Commission which the provisions so evidently grant in order to enable the Commission to do justice between the parties. In that context I note the first of the Objects of the A listed in s 3 of the Act is: 3 Objects The objects of this Act are as follows: (a) to provide a framework for the conduct of industrial relations that is fair and just, … That is another aspect of the context which militates against the appellant's submission." 1. There is some ambiguity in the way in which ss 100C and 100D are drafted. Section 100C (2) refers to "decisions" that may be made, while s 100D speaks to "orders" by the Commission "with respect to payment of salary and continuity of employment". A decision to place a person on the NTBE List is not a disciplinary decision from which a person can appeal pursuant to Pt 7 of the Act: see s 97(1) and Molloy v Secretary, Department of Education [2022] NSWIRComm 1100. However, s 100D (1) is express in its terms that it does not intend to limit s 100C, which in my view, is indicative that by s 100C, the legislature intended that the Commission has power to make orders with respect to a public sector disciplinary appeal. 2. The intention of the Act is to provide a framework for the conduct of industrial relation that is fair and just. I consider that the respondent placed the appellant's name on the NTBE List as a direct consequence of the respondent's dismissal. Given my finding that the appeal from the decision should be upheld, the order sought will do justice between the parties in reversing the consequence of the respondent's decision. While the respondent will be required to employ the appellant by operation of the appeal being upheld, the order sought is directly ancillary or incidental to the order upholding the appeal. It would be contrary to the clear intention of the Act, to repose the Commission with the jurisdiction to conduct public disciplinary appeals, if it could not make an order requiring the respondent to remove the appellant's name from the NTBE List. 3. As a matter of discretion, I will make the order requiring the appellant's name to be removed from the NTBE List because it is necessary to do so to do justice between the parties, given the findings I have made in this decision. Whilst the effect of upholding the appeal is that the appellant will be employed by the respondent, without the removal of the appellant's name from the NTBE List, the effects of the respondent's decision may continue to impact upon her future employment with the respondent. Orders 1. I make the following orders: 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'. Janine Webster Commissioner ********** Amendments 27 April 2023 – 1. Typographical corrections made to Paragraphs [127], [148] and [151]. 2. Redactions made in Paragraphs [1], [6], [37] (11), [42] (iv), and [109]. 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: 27 April 2023