Industrial Relations Commission of New South Wales CITATION : Jason Wilson and Department of Education and Training [2000] NSWIRComm 20 PARTIES : APPELLANT: Jason Wilson RESPONDENT: Department of Education and Training FILE NUMBER: IRC1735 of 1999 CORAM: Walton J Vice-President; Kavanagh J; Bishop C CATCHWORDS : Appeal - leave to appeal - teacher - unfair dismissal - allegations of sexual misconduct - principles for appeal and review of facts on appeal - need for particular reasons on findings of fact based on credibility of witnesses when facts denied - advantage held by primary member in observation of witness - employer's established procedures to be followed for procedural fairness - procedural defects vitiate decision to dismiss - manifest injustice in investigation - teacher's right to be heard - investigation involving minor and parents right to be at interview - compensation Industrial Relations Act 1996 s84 s89 s130 LEGISLATION CITED : s136 s137 Teaching Service Act 1980 s50(5)(b) s50(6) s85 Ward v Director of School Education (1998) 80 IR 179 Martin v Byrnes (unreported, Court of Appeal, Priestley, Stein JJA and Sheppard AJA, 25 May 1999) Walsh v Law Society (1999) 164 ALR 405 Hand v Adelaide Bank (1997) 72 IR 289 CASES CITED : State Rail Authority of NSW v Earth Line Constructions Pty Ltd (In Liq & Ors) (1999) 160 ALR 588 Newton v NSW Police Service (unreported, Wright J, President, Hungerford and Schmidt JJ, No IRC 98/5393, 6 April 1999) Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Johnson v Catholic Education Office, Diocese of Parramatta (unreported, Cahill J, Vice-President, Schmidt J and Tabbaa C, IRC97/5641, 21 August 1998) Antonakopoulos v State Bank of NSW (unreported, Wright J, President, Walton J, Vice-President and Redman C, IRC98/6863, 30 July 1999) HEARING DATES: 08/13/1999; 10/15/1999 DATE OF JUDGMENT: 03/21/2000 APPELLANT: Mr S. Crawshaw, SC with Ms Lowson (Barrister) SOLICITOR: MacMahon Associates, Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Ms C. Ronalds (Barrister) SOLICITOR: Department of Education and Training JUDGMENT: 19 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL COMMISSION CORAM: WALTON V-P KAVANAGH J BISHOP C Date: Tuesday 21 March 2000 MATTER NO. IRC1735 of 1999 JASON RAYMOND WILSON & NSW TEACHERS' FEDERATION v DIRECTOR-GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING Application by Jason Wilson for leave to appeal and appeal against a decision of McKenna C given on 26 March 1999 in Matter Nos 3519 and 4008 of 1998 DECISION OF THE COMMISSION 1 This is an application by Jason Wilson ("the applicant") and the NSW Teachers Federation ("the Federation") (jointly "the appellants") for leave to appeal and, if granted, an appeal from a decision of McKenna C given on 26 March 1999 in proceedings brought by the applicant under s84 and proceedings brought by the Federation pursuant to s130 of the Industrial Relations Act 1996 ("the Act"). 2 The learned Commissioner considered the termination of employment of the applicant who had formerly been employed as a casual teacher by the Department of Education and Training (NSW) ("the Department"). 3 On 3 July 1998 the applicant, after various departmental proceedings, was advised by letter: Your approval to teach in any capacity with the New South Wales Department of Education and Training is withdrawn as of the date of this letter and your name will be placed on the Not To Be Employed (NTBE) List ... As a consequence of placement on this List you are ineligible for employment in any Government school in New South Wales. 4 The matter went before the Commissioner by way of an application joined by both the applicant and the Federation. 5 The Commissioner, by order made on 9 December 1998, suppressed the student's name, the name of the school and other relevant identifying circumstances. Under the order, the female student in question was referred to in the decision of the Commissioner as "Miss H". The Full Bench of the Commission made no suppression order and in the absence of any submission on the matter makes no observation as to its appropriateness. The parties used the pseudonyms adopted by the Commissioner in their submissions before the Full Bench. It will be convenient to use those pseudonyms in this judgment. 6 Two allegations were made against the applicant, the most serious was of improper conduct of a sexual nature which involved a female student who was then aged 16 years at a school where the applicant worked. 7 The second allegation was the applicant continued a relationship with Miss H despite being directed by the Department not to have any contact with students from the school over the period of the Department's investigation of the allegation. 8 The hearing before the Commissioner was conducted pursuant to s84 of the Industrial Relations Act 1996. 9 On 13 August 1999 we determined to grant leave to appeal; upheld the appeal and made the orders, in part, sought by the applicant. We determined to give reasons for our decision and to consider the balance of orders sought by the applicant at a later time. This decision contains our reasons for decision and our determination as to certain orders sought by the applicant. THE EVIDENCE 10 The applicant commenced employment with the Department as a casual teacher in Mathematics and Computer Studies in 1996. He was placed as a casual teacher at a number of country High Schools. At the commencement of 1997 he worked as a full-time casual teacher at a country central school in a township of some fifteen hundred people with the school comprising approximately 180 students and 14 to 15 staff. In the first term the applicant worked full time, while for the remainder of the year he worked a nine day fortnight. 11 On 16 December 1997 the Principal of the school requested the applicant to attend the principal's office where the applicant was handed a letter of the same date. The text of the letter is as follows: An allegation has been made that you engaged in improper conduct, including conduct that could amount to improper conduct of a sexual nature with a student. The allegation will be investigated and you will be contacted as soon as possible. You are directed for the period of the investigation not to discuss this matter with any student or staff member of [the school]. You are also directed not to have contact with students of [the school], including face to face contact, telephone contact, contact by letter, by e-mail or contact through an intermediary. You are directed not to attend [the school] for the rest of the 1997 school year. You will continue to be paid until Friday 19 December 1997, which is the date when your employment as a supply casual with [the school] concludes. You are also directed not to seek casual employment in any New South Wales government school during the course of the investigation. Any application for permanent employment will not be considered or a record of employment be issued during the period of the investigation. . . . 12 The letter was signed by Gillian Shadwick, Assistant General Director of the Department. The applicant was stood down from teaching on that date. 13 The applicant was provided with a copy of the procedures by which the allegation was to be investigated. They are called, "Procedures to be followed in response to allegations of improper conduct of a sexual nature by a staff member against a student, 97-018 (SO17)." 14 In accordance with the terms of his engagement as a casual teacher the applicant's period of employment ceased on 19 December 1997. On 5 January 1998 the applicant was offered a permanent appointment at another Western District's High School. He accepted the position but also advised the Department he was currently under investigation. Following this disclosure, he was advised the offer was withdrawn and no offer of employment would be made to him until the investigation was completed. 15 We shall shortly describe the evidence before the Commissioner as to the Departmental inquiries into this allegation. 16 William Rogers, the Principal of the Central School, received certain information from the Principal of another school about a sexual relationship between a student and a teacher on his staff. He then spoke to the applicant and another male staff member and cautioned them about not involving themselves in end-of-year school parties. Mr Rogers then received a written statement from a teacher which statement alleged she had been informed there was a sexual relationship between the applicant and a student. 17 Mr Rogers obtained a further statement from a teacher's aide. As Principal he then referred these statements to the Department's Case Management Unit ("the CMU") in accordance with Departmental guidelines entitled "Child Protection: Procedures to be followed in response to allegations of improper conduct of a sexual nature by a staff member against a student 97-018". These are the same procedural guidelines which the applicant was informed would be used to investigate the allegation made against him. 18 On 11 December 1997, the Principal reported the allegation to the New South Wales Police in the area. On 22 December 1997 he reported the allegation to the Department of Community Services (DOCS). He made these reports on the advice of the CMU who advised, as Principal, he had an obligation to notify DOCS pursuant to the Departmental guidelines called "Child Protection: Procedures for recognising individual child abuse and neglect. 97-019." The CMU activated these procedures through the principal as the pupil, at the time of the alleged misconduct, was a minor aged 16 years. The advice of the CMU led the Principal to act upon procedures outlined in two separate Departmental guidelines. 19 Arising from the notification to DOC, Ms Dawn Clay, a DOC's officer interviewed Ms H at the school. Ms H was interviewed on no notice and without her parents in attendance. The parents had not been advised of the interview. Ms Clay prepared a report arising out of her interview of 13 February 1998 with Ms H and forwarded it to the CMU on 26 February 1998. 20 The Department's CMU Investigator, Mr Preece, accepted Ms Clay's Report as to both its content and conclusion. He then chose not to re-interview Ms H. He determined the Department would act on the written statement by a DOC's officer arising out of her interview with Ms H. Some interviews were then conducted with staff members, which interviews were about who had said what about the issue, rather than direct evidence as to the alleged sexual conduct. The investigator made recommendations arising out of the DOC's interview and conclusions and an assessment of other statements. 21 The Department then sent a letter dated 17 March 1998 to the applicant. He received the letter on 20 March 1998 signed by the Chief Investigator of the CMU, Ms Blackadder, which letter relevantly reads as follows: . . . On the basis of information before me I require you to respond in writing to the following allegations: 1. That following [the school's] Year 12 party of Thursday 16 October 1997, [you] formed a relationship with a Year 11 female student, namely [Ms H], and that you had sexual intercourse with that student on several occasions between that date and the end of the 1997 school year. 2. That you have continued a relationship with [Ms H] since the end of 1997 school year despite being directed in the letter of 16 December 1997 not to have any contact with students from [the school] over the period of the investigation. 22 On 31 March 1998 the applicant denied the allegations in a letter to the Department which read as follows: I refer to your letter dated 17 March 1998 (which I received on 20 March 1998) concerning allegations that I engaged in conduct of a sexual nature with a student. The first allegation I respond NOT GUILTY. The second allegation I respond NOT GUILTY. 23 By letter dated 3 May 1998 the Department gave notice to the applicant to show cause why his Approval to Teach should not be withdrawn and why his name should not be placed on the Not To Be Employed List ("the NTBE List"). 24 On 7 July 1998 the applicant made a written statement explaining his actions on the night of the school party. He denied he had engaged in sexual intercourse with Ms H. He acknowledged he was a friend of Ms H's family and continued to have contact with the family and other students. As to the Department's ban on any contact between the applicant and Ms H's family, the applicant revealed contact had been at the family's invitation, and he maintained he had a right as an individual to continue contact with the family. So far as his contacts with the students since the letter standing him down from work dated 16 December 1997 he commented any contact "was only at a student's initiation" and did not involve any discussion on the subject of the allegations. 25 The applicant then received on 3 July 1998 (before his reply to the allegations was received by the Department) the letter which withdrew his authority to teach and notified him his name was to be placed on the NTBE List. THE DECISION 26 The learned Commissioner made the following finding: I am satisfied, on the civil standard according to the balance of probabilities, that the applicant engaged in improper conduct of a sexual nature with Ms H. Further, she held: I am satisfied that the relationship between the applicant and Ms H went beyond that which might ordinarily and properly be expected as between a teacher and student, albeit one involving a teacher who also is a family friend. I am satisfied that the applicant failed to observe his duty to maintain appropriate professional and personal boundaries that are required of him as a school teacher. I am satisfied that the applicant and Ms H had a level of personal involvement which exceeded to the relevant degree that to which the applicant and Ms H admitted in these proceedings. 27 The learned Commissioner gave the following reasons: . . . I have been influenced particularly in my conclusions in this case by matters going to (the) strained nature of aspects of the evidence by the applicant and Ms H about their conduct and relationship, as well as their demeanour in the proceedings. In its content and delivery, the evidence of the applicant seemed to me to have a tendency to be implausible or unconvincing or both. Apart from the content of the evidence, the applicant's demeanour had the appearance of being oddly indifferent in cross-examination, particularly given the nature of the matters which were being put about him and Ms H. I drew from the applicant's demeanour inferences which affected adversely my assessment of the content of his evidence. My conclusions also have been influenced strongly by the tenor of the evidence of Ms H and her demeanour in the witness box. I accept the submissions by counsel for the Department that aspects of the evidence of Ms H were internally inconsistent, and, at times, inherently implausible. I took much of the evidence given by Ms H, in both its content and style of delivery to be intended to protect the applicant. THE SUBMISSIONS 28 Mr Crawshaw SC with Ms Lowson of counsel, for the appellants, submitted that leave to appeal should be granted; that the Commissioner erred in finding, on the evidence, the alleged misconduct occurred; that the Commissioner erred in relying upon her assessment of the credibility of the witnesses to make her finding; and that there were procedural defects in the investigation of the matter by the department such as, (i) a failure to apply the proper Departmental procedures and statutory provisions to the investigation of the allegations; (ii) the inappropriate use of the Notification of the Withdrawal of the Approval to Teach and the placement of Mr Wilson's name on the Not to be Employed List (NTBEL). As to the allegation of improper conduct 29 Mr Crawshaw submitted the highest the Commissioner put her finding as to the fact of the alleged improper conduct was she was satisfied: . . . on the civil standard according to the balance of probabilities, that [Wilson] engaged in improper conduct of a sexual nature with Ms H. 30 Mr Crawshaw submitted both the applicant and Ms H denied there had been any sexual contact between them. The only evidence before the Commissioner of such contact arose from an admission by Ms H in the interview conducted between Ms Clay and Ms H in February 1998. Ms H agreed she had given the admission. In the hearing before the Commission Ms H gave sworn evidence the admission had been false. Her evidence as to the interview was she was called from the classroom with no warning and had felt "nervous and distressed". After cross examination on this description of her feelings during the interview she described the feeling as "uncomfortable", and a feeling which remained at a "constant level" during the course of the interview. 31 Evidence revealed there was no record of the words used by Ms H in making the admission in the contemporaneous notes of Ms Clay. Mr Crawshaw submitted the Commissioner, while not accepting the credibility of the applicant and Ms H, also said: The evidence of the approach adopted by the employee of the Department of Community Services, Dawn Clay, and the information she elicited from Ms H was an influential part of the case. But rather than being influenced particularly by any specific matters, my conclusions in this case are drawn from an assessment of the content and context of all of the evidence, coupled with my observation of the demeanour of the witnesses. 32 Mr Crawshaw submitted this reasoning gave no indication as to what degree, if any, the Commissioner relied upon Ms Clay's evidence. The applicant submitted if she did so rely she was in error as the evidence was not direct or even circumstantial evidence of the fact of a sexual relationship. Further, the reasoning of the learned Commissioner gives no expressed attention to Ms H's retraction of her concession at the hearing. The appellants submitted there was required from the Department contrary evidence against which the applicant's and Ms H's evidence of denial of the alleged sexual relations could be tested to allow the Commissioner to make a decision based solely on her assessment of their credibility. 33 The appellants further submitted the evidence of Ms Clay was not sufficient to justify a finding of fact on the charge of improper sexual conduct. There was no evidence as to when or how often the alleged improper conduct occurred; no evidence as to the nature of the alleged improper conduct or where the alleged incident or incidents occurred. Hence, the Commissioner's findings of necessity were in such vague terms such as "engaged in improper conduct of a sexual nature", "went beyond that which might ordinarily and properly be expected as between a teacher and student" and "had a level of personal involvement which exceeded to the relevant degree that to which the applicant and Ms H admitted in these proceedings". 34 The appellants submitted such findings, even if they can be sustained, do not establish to the requisite standard of proof that the applicant engaged in a sexual, or even romantic, relationship with Ms H. In support of this proposition the appellants submitted in the absence of any evidence concerning the alleged improper conduct (or, in the alternative, where the only material available was the evidence of Ms Clay) the Commissioner erred in finding that the applicant engaged in improper conduct of a sexual nature with Ms H. 35 As to the charge of improper conduct, the Department submitted the Commissioner in her decision sets out her process of reasoning, her findings and the evidence upon which she bases her findings. Ms Ronalds, counsel for the Department, submitted the Commissioner is entitled to consider any matters relevant when making her determination. The approach taken and the weight she gives to the evidence of individual witnesses and to documents are all matters properly within the exercise of her power in making the decision. The Department submitted the Commissioner drew her conclusion "from an assessment of the content and context of all the evidence" and this comment indicates she took the proper approach in her decision making. 36 As to the evidence of Ms Clay, the Department submitted it is not necessary for the Commissioner to indicate the "degree", if any, of her reliance on the evidence of Ms Clay. The appellants' submission, which attempted to assign some proportionality to particular evidence or an individual witness, revealed a misunderstanding of the proper approach to the decision making process. The Commissioner made her finding and gave reasons fully and properly discharging her obligations. The Department submitted all the issues related to Ms Clay's evidence, the contents of and the conduct of the interview with Ms H were before the Commissioner and such issues were considered by the learned Commissioner and rejected. 37 As to the need for the Commissioner in her reasoning to have assessed Ms H's denial the Department submitted there is no proper basis for the proposition advanced by the appellants that "little weight should be attached to the interview between Ms Clay and Ms H". 38 Contrary to the appellants' submission, the Department submitted the Commissioner was not required to consider in detail the evidence of the applicant and Ms H. The Commissioner assessed their credibility as witnesses and dismissed them as to credit through the usual processes available to any decision-maker acting judicially. The advantage the Commissioner enjoyed in seeing and hearing the witnesses is obviously not available to the Full Bench and there is no proper basis to sustain any submission that she failed to use or palpably misused the advantage. 39 As to the interview process the Department submitted Ms H volunteered the crucial admission to Ms Clay. The interview occurred several months after the applicant's approval to teach had been withdrawn because of the allegations about a sexual relationship between him and Ms H. Ms H was unable or unwilling to offer any cogent explanation for the information she had provided to Ms Clay or her lack of action since to advise Ms Clay that the information was incorrect. 40 The Department generally submitted there is no proper basis for the submission that the Commissioner failed to deal with evidence. All issues were canvassed before the Commissioner and the Commissioner rejected the approach urged on her by the appellants. The Department submitted that in the very nature and extent of the exercise of the Commission's powers in making the decisions required by s84, the Full Bench should be satisfied the Commissioner considered all relevant facts and issues in making her decision and preferred one view of the evidence. As to the application of the principles of natural justice and procedural fairness 41 The relevant finding of the learned Commissioner was: I accept there was evidence upon which it could be concluded that some criticism might be made about some procedures adopted in relation to the allegations concerning the applicant. However, even if there were defects in the procedures adopted by employees of the Department (and other agencies), such defects would not, in view of my finding concerning the principal issue as to whether the alleged misconduct had occurred, lead me to make a finding of harsh, unreasonable or unjust dismissal such as to warrant any discretionary intervention in the applicant's favour. 42 Mr Crawshaw for the appellants challenged the procedural integrity of the CMU investigation and submitted evidence as to this issue was not examined by the learned Commissioner or given consideration by her in her decision-making. 43 He submitted the Department did not follow their own established procedure and therefore the conduct of the investigation was flawed such as to ensure the applicant was not given procedural fairness throughout the investigative process. 44 The appellants submitted the Department had established procedures outlining the appropriate investigative steps to be undertaken. There was a significant diversion from the Department's procedures which procedures it had notified the applicant would be followed during the investigative process. The breaches of procedure which should have been given consideration by the Commissioner were: while awaiting the applicant's response to the allegations the applicant's Approval to Teach was withdrawn and he was placed on the NTBE list, in breach of the Department's procedures; there was no parental consent to or attendance at the interview with Ms H as should occur under Departmental procedures; the follow-up interview with the parents as requested was conducted in an unsatisfactory manner with Mrs H, and did not occur at all with Mr H. 45 Mr Crawshaw submitted the application of the dual procedures where reliance was placed on a DOCS interview conducted under a different set of procedures to the interview procedures of the Education Department did not allow the applicant fairness or justice. He submitted the procedure used by Ms Clay did not reveal open questioning and submitted the tone of the interview with Ms H on analysis addressed Ms H as a victim. Further, Ms Clay's contemporaneous notes did not refer to matters of significance which appeared first in the Record of Interview made some two weeks after the interview. Ms H was given no opportunity to review the notes or the Record of Interview to confirm they correctly reflected the content of the interview. 46 The appellants submitted Mr Preece, the investigating officer of the CMU, did not interview the student named by the teacher, Ms Carrall as the informant of "rumours"; he did not interview Ms H's parents; he did not interview a second student, who was one of the original sources of the allegation and did not disclose that the student had refused to be interviewed. 47 All such evidence as to a lack of fairness in the conduct of the investigation, the appellants submitted, was not considered by the Commissioner in the reasoning for the decision. 48 The Department submitted that while responsible for the conduct of the DOCS interview, it accepted the advice of the DOCS officer, Ms Clay, who recommended to their Department officers that Ms H not be further interviewed as she was a vulnerable age in relation to sexual matters. Further, the Department submitted it chose to conduct no further interview in Ms H's own interests to ensure she did not suffer from a "systems abuse" which could have occurred with continuing questioning about an allegation of sexual intercourse with the applicant. 49 The Department submitted properly based on the information held by the Department at the time, the decision to rely on Ms Clay's interview and other matters in evidence to withdraw the applicant's Approval to Teach and place his name on the Not to Be Employed List was based on validly obtained information such as to allow the Commission to determine the decision was fair and reasonable. 50 The Department submitted the appellants have not established any proper basis for the Commission to intervene in the Commissioner's decision as no miscarriage of justice has occurred. As to the allegation the applicant continued a relationship with Ms H against the Department's directive 51 The appellants submitted it is not clear from the Decision whether the Commissioner has made a finding the applicant's contact with Ms H's family would justify his dismissal. If the Commissioner made such a finding the appellants submitted such is clearly in error. Further, this allegation was put to the applicant in support of a charge of improper conduct of a sexual nature. The fact the applicant continued limited contact with Ms H's family and through them with Ms H, the appellants submitted, does not establish improper conduct of a sexual nature or a "relationship" with Ms H. 52 Further, the appellants submitted the Department does not have the capacity to direct a casual teacher after the teacher's contract with the Department has ended. The Department did not direct the applicant not to have contact with the parents of students, and it was the applicant's, Mrs H's and Ms H's evidence that it was the family unit with whom the applicant had contact, not Ms H personally. 53 The Department submitted there is no miscarriage of justice in relation to the finding that the second allegation was made out. The Department gave a lawful direction to the applicant and he failed to observe it. It was put the applicant conceded that he failed to observe it by the very evidence of his visits to the home of the "H" family and by the uncontested evidence of Ms H and Mrs H. The Department also submitted the appellants have not made out any proper basis for the finding in relation to the second allegation be "dealt with on appeal". As to defective application of procedures and statute 54 A defendant is not permitted to substitute procedures for statutory or regulatory provisions. Dunford J held in Ward v Director of School Education (1998) 80 IR 179: . . . where there is a statute governing such employment, the employment must comply with the terms of the statute, which substitutes a code and displaces or overrides any common law or prerogative rights which would otherwise exist but which are inconsistent with the code prescribed by the statute ... otherwise provisions, manifestly intended for the protection and benefit of the officer, would be rendered superfluous, useless and delusive. 55 The appellants submit the applicant was a temporary/casual employee and hence the provisions of s50 of the Teaching Service Act 1980 applied to him. Section 50(5)(b) provides that a temporary employee may be dismissed at any time. Section 50(6) provides nothing in s85 prevents the Director-General of Education from exercising, at any time, his power to dismiss a temporary employee under sub-section (5). 56 The appellants submitted that the applicant comes within the disciplinary provisions of that Act. Section 83 refers to "an officer or temporary employee", and pursuant to s50 a temporary appointment includes a casual employee. Section 84 mandates that a breach of discipline by, inter alia, a temporary employee shall be dealt with by the Director General or prescribed officer, with reference to the Regulations (being the Teaching Services Regulations 1996) that make provision for the conduct of such inquiries. 57 The appellants submitted that once the Department elects to deal with a casual employee for breaches of discipline then ss83 and 84, and the Regulations, must apply to the investigation into the alleged breach of discipline. It submitted the legislature intended that these sections and the Regulations would govern such investigations, as the section specifically refers to temporary, and hence casual, employees. 58 Mr Crawshaw submitted the Department followed the procedures only in part - that is, by advising the applicant of the allegation by letter dated 16 December 1998 letter and by commencing a CMU inquiry (Clause 7) - and did not follow the further statutory provisions. In particular, the Department did not follow the procedures in clauses 9b and 10 as there was no referral of the matter to the Legal Services directorate, no appointment of a Prescribed Officer, and no notice of charge. The applicant emphasises that this investigative process is entirely additional and separate to the investigation conducted by CMU, and did not occur in the applicant's case. They submitted on appeal, the learned Commissioner gave no consideration as to this evidence or the weight of it. 59 As to this appellate point the Department submitted it was entitled to and did conduct its investigation in accordance with its guidelines and the Commissioner was not required to satisfy herself that other steps could have been taken. CONSIDERATION 60 An appeal brought under Part 7 of Chapter 4 of the Act attracts the principles which apply to appeals stricto sensu on questions of fact and law: see Re Solicitors (State) Award (No 3) (1996) 72 IR 225 at 234 and Stone Microsystems (Australia) Pty Ltd v Kwong (1997) 42 NSWLR 160 at 163. 61 The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: (Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley, Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made. 62 This Commission and its predecessors have adopted the above view: (Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154). 63 An appellate court is however regarded as being in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed. 64 The High Court in Walsh v Law Society ((1999) 164 ALR 405 at 419) recently looked at the question of disturbing the findings of the primary tribunal, warning: . . . the appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses. ( Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193 at 197-8; 54 ALJR 378 at 381; cf McCormack v FCT (1979) 143 CLR 284 at 323-4; 23 ALR 583). In particular circumstances, it will be open to an appellate court to reach conclusion contrary to those of the court or tribunal below, notwithstanding a credibility finding. (see, for example, State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq ) (1999) 160 ALR 588 at 607, 620-2, 632-3; 73 ALJR 306 at 321 paras [63]-[64]; 331-2 para [93], 340 para [146]. Sometimes it will be authorised to reject those findings where they are "glaringly improbable" ( Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 at 57; 59 ALJR 842 at 844 or "contrary to compelling inferences" of the case. ( Chambers v Jobling (1986) 7 NSWLR 1 at 10; cf State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq ) (1999) 160 ALR 588 at 620-2, 73 ALJR 306 at 321 paras [93].) But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this court. (see for examples Jones v Hyde (1989) 85 ALR 23; 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354; Devries v Australian National Railways Commission (1993) 177 CLR 472; 112 ALR 641. For recent example see Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599. 65 As to the particular finding of credit made by the Commissioner in this case, in Hand v Adelaide Bank 1997 72 IR 289 at 290, the Full Bench of this Commission held: . . . To decide the matter on subtleties of demeanour and hesitancy of response is not wrong as such. However it will be a rare case where this, standing alone, justifies such a strong condemnation of a witness. Where a witness's testimony is to be rejected as a lie, in our opinion he or she is entitled to a rigorous and detailed justification in the reasons citing cogent grounds for that conclusion: (see State Bank of SA v D'Marco (unreported Duggan J S3978). 66 Further, in the State Rail Authority of New South Wales v Earth Line Constructions Pty Limited (In Liquidation & Ors) (1999) 160 ALR 588 at 619 Kirby J warned: There is a growing understanding by both trial judges and Appellate Courts of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the court room. 67 His Honour further commented (at 618): They (the courts) need to minimise, and not exaggerate, the role of the judicial assessment of credibility from appearances. 68 The learned Commissioner determined the applicant's demeanour was "oddly indifferent", and "his evidence strained" with a "tendency to be implausible or unconvincing or both". As to Ms H's evidence, she simply states aspects of her evidence were "internally inconsistent and at times inherently implausible". The learned Commissioner did not state what aspects of Ms H's demeanour influenced her. 69 Notwithstanding the limitations upon an appellate court when considering whether to intervene to correct factual findings, we find the learned Commissioner fell into error through her decision based almost exclusively on her assessment of the credibility of the key witnesses. 70 We find the learned Commissioner erred in finding, as a question of fact, improper sexual conduct, the truth of which was denied (and such denial corroborated) based upon her observations of the demeanour of the witnesses. This is particularly where the conclusion reached by the Commission was contrary to the only direct evidence before her on the issue in the proceedings. The most persuasive evidence led by the Department was that of Ms Clay as to what Ms H said in the interview, the truth of which was later denied by Ms H; which evidence was taken without any guardian present and where no follow up interview was conducted even though the procedures required same. Further, the Department was put on notice by the father and others there was a retraction by Ms H prior to this litigation but the Department choose to continue the termination procedures against the applicant without further interviewing the father or Ms H. These considerations were all in the evidence before the Commissioner. 71 The Commissioner had an obligation to cite in her reasoning cogent grounds for her conclusion that the direct evidence of the applicant and Ms H were not to be believed and, in essence, that record of interview of Ms H accepted as the true account of the relationship between Ms H and the applicant. 72 The Full Bench is of the view the Commissioner's findings based on credit without consideration of all the evidence led to a finding we find improbable. The advantage enjoyed by the Commissioner by reason of having seen and heard the witnesses at trial is not sufficient to explain or justify her conclusions (Thomas v Thomas [1947] AC 484 Watt J at 488). 73 As to the issue of procedural fairness, the Full Bench of this Commission in Warren David Newton v New South Wales Police Service (unreported, Wright J, President, Hungerford and Schmidt JJ, No IRC 5393 of 1998, 6 April 1999) recently held: The discussion of 'procedural fairness' is of course to be understood in its particular context - submissions made to the Commission by employees challenging their dismissal from employment. They have arisen in a different context to the discussion of general law notions of procedural fairness in cases such as Kioa v West (1985) 159 CLR 550, where the High Court discussed the 'common law duty to act fairly in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' (see 584-585 per Mason J; see also 600-601 per Wilson J and 630-631 per Deane J). 74 However, a denial of procedural fairness in the termination of employment will plainly be relevant to determining whether or not a dismissal was harsh, unjust or unreasonable. The High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 considered the provisions of an award which provided that dismissal was not to be harsh, unjust or unreasonable. McHugh and Gummow JJ considered the relationship between matters of procedure and merit by observing (at 465-466): The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation ( Maxwell v Murphy (1957) 96 CLR 261 at 285-287; McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 19-20, 40, 48-50). In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a). That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second. 75 Brennan CJ, Dawson and Toohey JJ considered the same issue and concluded ((1995) 185 CLR at 430): 'Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a) ( Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 471, 473, per Wilcox and Ryan JJ; Wheeler v Philip Morris Ltd (1989) 97 ALR 282 at 306-307, per Gray J). . . . It was not, therefore, a permissible approach for the Full Court to reach a conclusion adverse to the Department based upon the procedure employed in dismissing the applicant without considering whether the trial judge was correct in reaching the conclusion that there was sufficient evidence to establish that the applicants were involved in the misconduct alleged against them. 76 In Johnson v Catholic Education Office, Diocese of Parramatta (unreported Cahill J, Vice-President, Schmidt J and Tabbaa C, IRC5641 of 1997, 21 August 1998) the Full Bench looked at whether and to what extent there was a lack of procedural fairness involved in the decision to dismiss, made predominantly on the basis of reports. 77 The Court held (at 5): . . . we consider that the commissioner was in error in concluding that, even if there existed procedural unfairness in the dismissal of the applicant, it was insufficient to render the dismissal harsh, unreasonable or unjust, and in dismissing the applicant's application on the grounds that her claim that harshness, unreasonableness or injustice had occurred in regard to the termination of her employment had not been made out. That error, in our opinion, was of such a nature as to warrant corrective intervention by the Commission in these appeal proceedings. And further (at 6): . . . the denial of an opportunity to respond to the matters upon which the decision to dismiss rested leads us firmly to the view that the applicant's dismissal was harsh, unreasonable and unjust. 78 More recently, the Commission considered a failure by an employer in dismissing an employee to apply appropriate procedures adopted by the employer in considering the termination of an employee. In Antonakopoulos v State Bank of New South Wales (unreported, Wright J, President, Walton J, Vice-President and Redman C, IRC98/6863, 30 July 1999 at 4, 5 and 8) the Commission found: . . . a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. 79 We adopt, with respect, these conclusions. 80 An examination of the Department's investigation of these allegations leads us to find there was a manifest injustice in the investigation of the allegation leading to the notice to show cause. 81 The denial of the opportunity for the applicant to respond to the matters upon which the decision to dismiss rested; the investigating officer's decision not to follow the Departmental guidelines for the proper conduct of the investigation; the use of two Departments conflicting disciplinary guidelines to investigate the matter; the reliance on interviews conducted with a minor without the parents present and without their consent; the reliance on interviews conducted outside the Departmental guidelines and the refusal to consider the parents recorded views are all matters which establish to our satisfaction a lack of procedural fairness. We consider the Commissioner was in error in concluding that, even if there existed procedural unfairness, it was insufficient to render the dismissal harsh, unreasonable or unjust. We make this finding in the light of our conclusion that there was no proper basis, on the evidence before the Commissioner, to have found that the applicant engaged in the improper conduct alleged against him. However, the nature of the procedural defects may have been sufficient in this case to vitiate, of themselves, the decision to dismiss the employee. 82 In any event, we have concluded, as in Johnson, that the failure of the Commissioner to properly consider the appropriateness of the procedural steps taken (or failed to be taken) in the investigation process was an error of such a nature as to warrant intrusion by the Commission in these appeal proceedings. We find the decision to dismiss in these circumstances was harsh, unreasonable and unjust. 83 We determine the decision at first instance, amounted to a miscarriage of justice such that the Full Bench ought to intervene to set aside the decision. 84 We find this matter is of such importance that, in the public interest, leave to appeal should be granted. The importance of the statement of principle in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) & Ors (1999) 160 ALR 588 and in particular the judgment of Kirby J (at 615) becomes relevant: Sometimes where principles have been accepted for a very long period, it is useful for a court such as this to re-examine them in the light of social and technological changes and changes which have occurred in the administration of justice since the rules were first expressed. As Sir Thomas Bingham MR observed in R v the Ministry of Defence ; E x parte Smith [1996] QB 517 at 544: "A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z." We must ever be on our guard that we have not reached the new time without noticing it. 85 The Commission is persuaded that questions as to procedures adopted by the Department and other entities investigating and dealing with the applicant concluding a teacher's right to be heard on allegations before his Authority to Teach is withdrawn and name is placed on a Not to be Employed List are matters such as to attract public interest. We have also granted leave having regard to the issue of the Commissioner's findings based on the credit of the applicant. 86 Having regard to the conclusion we have reached we are satisfied that the requirement to demonstrate the public interest as required by s88(2) of the Act has been satisfied. ORDERS 87 In this appeal, the appellants sought the following orders: 1. Leave to appeal be granted; 2. The appeal be upheld; 3. The whole of the decision of Commissioner McKenna be set aside; 4. Orders that: (i) Mr Wilson approval to teach be reinstated immediately; (ii) Mr Wilson's name be removed from the Not To Be Employed List, and advice to that effect together with a new list omitting his name be circulated to all schools forthwith; (iii) Mr Wilson be reinstated as a permanent full-time employee from the first day of teaching in 1998 and remuneration paid from that date of payment; (iv) In the alternative to (iii) that Mr Wilson be remunerated as a casual employee engaged for 9 days per fortnight from the first day of teaching to the last day of teaching in 1998, from the first day of teaching in 1999 until the date of payment. 5. In the alternative to 4, that the matter be remitted for hearing in accordance with the law. 88 After the hearing of this appeal, the Commission on 13 August 1999, before publishing its reasons, granted Orders 1, 2, 3, 4 (i) and (ii) and gave leave for further written submissions directed to the other orders as pleaded. 89 After judgment was reserved the Commission received from the appellants further submissions then further amended submissions in relation to the reinstatement of the applicant. Since the Commission gave its first Orders following the hearing the following steps occurred. On 7 September 1999, the appellants filed and served submissions that addressed the details of any further orders sought in relation to the proceedings. On 9 September 1999 the Department offered the applicant a permanent position at Moree High School. The applicant declined to accept the offer (having on 3 September 1999 amended his list of schools and deleted Moree High School therefrom). In consequence thereof the appellants did not now press the making of orders 4(iii), (iv) and 5. 90 The appellants then sought the orders set out in an Amended Proposed Minutes of Orders dated 7 September 1999 as follows: Pursuant to s89 of the Act, the Commission orders that: (i) Mr Wilson be treated as a 100 day casual teacher for the period of 12 months from the date of the order. (ii) All entitlements accrue to Mr Wilson as if there had been no break in his employment as a casual teacher. (iii) Mr Wilson be notified of any prospective casual vacancies at any of the nominated schools (as amended). 91 In the alternative, pursuant to s136(1) of the Act that the Commission makes an award that: (i) Mr Wilson be treated as a 100 day casual teacher for the period of 12 months from the date of the order. (ii) All entitlements accrue to Mr Wilson as if there had been no break in his employment as a casual teacher. (iii) Mr Wilson be notified of any prospective casual vacancies at any of the nominated schools (as amended). 92 Arising out of the submissions as to these orders, the Full Bench re-convened. Argument was presented by both parties and further written submissions were subsequently received from both parties to the appeal. Arising from this process, the appellants submitted further draft Orders in the alternative for the Commission's consideration under s89(3) or s136. These are the final orders to which the Commission now directs its attention. 93 The appellants alternative orders now before the Full Bench are: The Commission orders pursuant to s89(3): In circumstances where Mr Wilson's reinstatement to Cobar High School is impracticable and in circumstances where the Commission on 13 August 1999 ordered that Mr Wilson's approval to teach be reinstated and his name be removed from the Not To Be Employed List the Commission hereby orders: (i) that Mr Wilson be re-employed as a casual teacher, and that Mr Wilson's period of employment with the Department shall be taken not to have been broken. (ii) that the Department pay to Mr Wilson remuneration for the period 1 January 1998 to 13 August 1999 calculated on the basis of permanent full-time employment. In the alternative, the Commission orders: In circumstances where the Commission on 13 August 1999 ordered that Mr Wilson's approval to teach be reinstated and his name be removed from the Not To Be Employed List the Commission hereby orders: (i) that Mr Wilson be re-instated to his former position as a casual teacher, and that Mr Wilson's period of employment with the Respondent shall be taken not to have been broken. (ii) that the Respondent pay to Mr Wilson remuneration for the period of the whole of the 1998 school year and the 1999 school year up to and including 13 August 1999 calculated on the basis of full-time casual employment with the status of a 100 day casual. In the alternative, the Commission orders pursuant to s136(1) (b) of the Act: (i) that Mr Wilson be paid an amount equivalent to the remuneration that he would have received as a full-time permanent teacher from January 1998 to 13 August 1999. In the alternative: (ii) that Mr Wilson be paid remuneration as if he had continued to obtain employment as a 100 day casual for 1998 and 1999 up until 13 August 1999 calculated on the basis of his actual days employed in 1997. 94 The appellants primary submission is the applicant is entitled to be reinstated as a permanent teacher in accordance with s89(1), although as the applicant submitted the Commission would find such reinstatement impracticable. 95 We shall commence by reviewing the applicant's employment history. In 1997, the applicant was appointed as a full time casual to Merriwa Central School. That appointment ended on 19 December 1997. On 5 January 1998 the applicant was offered and importantly accepted employment as a permanent teacher of science at Cobar High School. He then advised he was the subject of an investigation and on 6 January 1998 the department advised the offer was withdrawn. The applicant, after the Full Bench delivered its partial orders, was offered a permanent teaching position at Moree High School. The applicant was advised that if he refused the offer of a permanent appointment at Moree High School he would lose his priority. He refused the offer. 96 Section 89 of the Act states: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. . (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. . . . Section 136 of the Act states: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. Section 137 states: 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. Note. See also claim for remedy under Part 6 of Chapter 2 (Unfair dismissals). (emphasis added) 97 In the terms of s89 of the Act the applicant submitted the issue is whether our orders of 13 August 1999 had the effect of: ( i) re-employing the applicant as a casual teacher or (ii) reinstating the applicant to his former position as a casual teacher. 98 The appellants' first submission is directed to which subsection of s89(1) or (2) of the Act applies. It submitted as to the question of re-instatement or re-employment the 13 August 1999 orders had the practical effect of returning the applicant to casual teaching employment. 99 The issue before the Full Bench is whether the applicant is entitled to rely on the Department's actions in offering him permanent employment at Cobar High School while he was being investigated and his acceptance of the offer provides to the applicant argument that he had a binding employment contract. 100 The appellants submitted that the contract came into existence on the basis of the oral exchange, it was not dependent upon the letter of appointment. Such is the way the Department operates. Conversely, if a teacher declines an oral offer the teacher will have his or her priority date relegated to the date of refusal. The appellants submit the fact that declining an oral offer has this effect supports the appellants' submission that the oral offer to and acceptance by the applicant of a permanent appointment to Cobar High School created a contract of permanent employment between the Department and the applicant. 101 Applying the law of contract, they submitted the Department's purported withdrawal of the offer of employment would be a breach of contract in relation to which, absent these proceedings, the applicant would be entitled to relief. Accordingly the appellants submitted it is appropriate to accord the applicant relief by reinstatement to the permanent position to which he was appointed. 102 Under Departmental rules further steps have to be completed after acceptance – such as a police record search and health assessment. The applicant submitted they are conditions subsequent to the creation of the contract. The Department would only be entitled not to perform the contract in the event that those conditions were not met by the applicant. The principles that courts apply when considering the role of contractual conditions are set out in Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 552: Generally speaking the court will tend to favour that construction that leads to the conclusion that a particular stipulation is a condition precedent to performance as against that which leads to the conclusion that the stipulation is a condition precedent to the formation or existence of a contract. In most cases it is artificial to say, in the fact of the details settled upon by the parties, that there is no binding contract unless the event in question happens. Instead, it is appropriate in conformity with the mutual intention of the parties to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform. Furthermore, it gives the courts greater scope in determining and adjusting the rights of the parties. For these reasons the condition will not be construed as a condition precedent to the formation of a contract unless the contract read as a whole plainly compels this conclusion. (emphasis added) The Teachers' Handbook relevantly reads: 1.3.2.1 (b) The appointment of a teacher to the permanent staff is a medical examination and providing proof of name and age. 1.3.2.1.1 (c) Confirmation of a teacher's permanent appointment will depend upon the satisfactory completion of a performance assessment. 1.3.2.1.2 (a) All teachers must satisfy a Healthquest examination to be eligible for confirmation of a permanent appointment. 1.3.2.1.5 (a) Written notification of permanent appointment on probation is sent to teachers by regional office and notification of appointment is published in the Education gazette section of School Education News. 103 The Department submitted as to the proposed orders, that the only issue before the Full Bench for determination is the quantum of compensation to be awarded to the applicant, if any. They submit further events have occurred since the initial orders made at the conclusion of the hearing on 13 August 1999. The Department submitted no order pursuant to s89(1) or (2) of the Act can be made by the Full Bench from 29 October 1999. The Department submitted orders which cannot be implemented within a known time or reasonable time cannot be properly made by the Commission. 104 The Department submitted a further and possibly more crucial factor is that the applicant now states that he does "not desperately wish to return to teaching at present" and he has been advised by the Federation that an appointment to one of his nominated schools "is unlikely to occur for some years", and at present he is "not concerned about the date". While the applicant attributes some of the reason for his attitude is related to his reaction to this litigation, the Department submits this reason is untested by cross examination and cannot be relied upon by the Commission in making any determination. 105 Given the appellants' views, even if it was possible within the meaning of ss89(1) or (2) to make an order for reinstatement or re-employment (which the Department contends is not legally possible), the Department submitted the Commission cannot make such an order in the face of such evidence. 106 The Department submitted the two orders made in relation to the approval to teach being reinstated and his name removed from the Not to be Employed List ("NTBE List") had the effect of creating the opportunity for him to seek casual teaching. Those orders went no further than that and it is noted that the applicant has not availed himself of that opportunity (for him) to seek casual teaching. That position appears to be reflected in both of the orders most recently proposed which use that date as the cut-off date for the assessment of remuneration. 107 If the Commission determines an amount of compensation is payable the Department submits a s89(1) or (2) order cannot be made and only s89(5) and not s89(3) or 89(4) of the Act come into operation. Therefore, the maximum amount of compensation payable is for an amount not exceeding the amount paid 6 months prior to his dismissal. The appropriate period would need to be determined by the Commission. 108 Alternatively, it was submitted that Proposed Order 1 cannot be made given its reference back to the offer of a permanent appointment at Cobar High School as that was not the "former position" held by the applicant as at 16 December 1997. The date which the Commission take into account the Department submits is the date he was stood down from teaching. The Department submitted the applicant was paid for the remaining few days of his contract and it expired. 109 In relation to proposed Order 2, the Department submitted there is no certainty or guarantee that the applicant would have gained employment as a casual teacher for all or any of the periods claimed. There is no central allocation of casual teaching and the availability for these past periods cannot be readily or easily ascertained by the Department. In addition, there should be a reduction of the amounts he has earned during the nominated period pursuant to s89(6). 110 In reply the applicant submitted there is no legal fiction attached with the orders sought by the applicant herein. The applicant has sought relief from the Commission in respect of his unfair dismissal by the Department and now seeks an order of re-employment or, (if submissions in respect of the Cobar position are not accepted), reinstatement to the position that he formerly held as a casual teacher which depends upon the holding by the applicant of his approval to teach and his name not appearing on the Not to be Employed List. In addition, he continues to seek employment as a permanent teacher as evidenced by the continued existence of his application for same. 111 In any event, it is submitted that the orders for remuneration that are sought by the applicant pursuant to s89(3) are equally available by way of an award made pursuant to s136(1)(b) which could be in the following terms: (i) that Mr Wilson be paid an amount equivalent to the remuneration that he would have received as a full-time permanent teacher from January 1998 to 13 August 1999. Or in the alternative: (ii) that Mr Wilson be paid remuneration as if he had continued to obtain employment as a 100 day casual for 1998 and 1999 up until 13 August 1999 calculated on the basis of his actual days employed in 1997. 112 We consider that the Department is correct in its submission that the appellants do not now seek reinstatement or re-employment. In truth, the applicant does not now want a permanent teaching appointment in the geographic area he originally nominated. He simply wishes to remain on the employment list. 113 From the evidence we are persuaded the applicant would have accepted the permanent position at Cobar High School. 114 The Commission is persuaded by the respondent's arguments that orders pursuant to s89(1) or (2) are not available. The Commission is of the view it cannot make an award for compensation pursuant to s136(1) because of s137(3). The Commission is of the view an award can be made pursuant to s89(5). It finds an order for 6 months of compensation would be appropriate given the extreme nature of the unfairness suffered by the applicant, the procedural defects identified in the proceedings below, and the long period of investigation during which time the applicant was precluded obtaining employment at least with the Department 115 We accept the applicant's submission that his period of non remuneration during the Department's investigation should be treated as leave without pay pursuant to s89(5) and the compensation calculated on the basis of his remuneration in 1997. For the purposes of s89(6) the Commission takes into account evidence of the applicant's alternative employment but makes no deduction related to same. As to the Orders of the Commission 116 The Commission endorses the orders already made pursuant to s89(1) of the Industrial Relations Act 1996: 1. Leave to appeal be granted; 2. The appeal be upheld; 3. The whole of the decision of Commissioner McKenna be set aside; 4. From 13 August 1999: (i) Mr Wilson's approval to teach be reinstated; (ii) Mr Wilson's name be removed from the Not To Be Employed List, and advice to that effect together with a new list omitting his name be circulated to all schools forthwith; Further the Commission orders: 5. An award of compensation to the applicant for 6 month's salary calculated on the basis of his remuneration in 1997. 117 Leave to apply as to costs. *********** 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.