Industrial Relations Commission of New South Wales CITATION: New South Wales Independent Education Union on behalf of member and Catholic Schools Office Diocese of Maitland-Newcastle [2006] NSWIRComm 395 APPLICANT PARTIES: New South Wales Independent Education Union on behalf of member RESPONDENT Catholic Schools Office Diocese of Maitland-Newcastle FILE NUMBER(S): IRC 2211 of 2006 CORAM: Harrison DP CATCHWORDS: Application for relief re alleged unfair dismissal - transgression of teacher/student boundary - allegations denied at time of events - warning and counselling - 13 years later truth revealed - employer informed - investigation - some allegations admitted others denied - psychological and psychiatric assessment of risk to children and young people - termination of employment on basis of conduct and unacceptable risk to children and young people. Held - principle of condonement not applicable as original events dealt with on basis of denial - deception of employer constitutes serious misconduct - ongoing risk to children and young people - termination of employment not harsh, unreasonable and unjust - application for relief refused. LEGISLATION CITED: Industrial Relations Act 1996 Ombudsman's Act 1974 Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46 Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325 CASES CITED: Australasian Transport Officer's Federation v Department of Transport (1988) 25 IR 235 Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 Coleman v The Director General of School Education (IRC 4507 of 1997, Bauer J, 17 December 1997, unreported) HEARING DATES: 10/10/06, 11/10/06, 4/12/06 DATE OF JUDGMENT: 12/15/2006 APPLICANT Counsel Mr R Reitano Instructed by Ms C Mathews, NSWIEU LEGAL REPRESENTATIVES: RESPONDENT Counsel Mr J Murphy Instructed by Mr E Leahy, Solicitor of Catholic Commission for Employment Relations JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 15 December 2006 Matter No IRC 2211 of 2006 NEW SOUTH WALES INDEPENDENT EDUCATION UNION AND CATHOLIC SCHOOLS OFFICE DIOCESE OF MAITLAND-NEWCASTLE Application by New South Wales Independent Education Union (on behalf of its member) re unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 395 1 The New South Wales Independent Education Union ("the Union") seeks reinstatement of its member ("A") as a teacher with the Catholic Schools Office Diocese of Maitland-Newcastle (CSO). 2 The matter was unable to be resolved in conciliation. Arbitration proceedings took place on 10 and 11 October 2006 and 4 and 5 December 2006. 3 The identity of the student concerned should be protected, and accordingly the identity and location of the school is not to be disclosed, nor any other information divulged which would reveal the identity of the school or the student. 4 Mr Reitano of counsel appeared on behalf of "A". Mr Reitano brought evidence from "A" by affidavit and orally. "A" was subject to cross examination by Mr Murphy. Mr Reitano also brought evidence by affidavit from a colleague of "A" identified as "B" who was not required for cross examination. 5 Mr Murphy of counsel appeared on behalf of the CSO. Evidence was brought from Ms R Tyczynski, Co-ordinator - Schools in the Diocesan Child Protection and Professional Conduct Unit of the CSO; Mr G Webster, Forensic and Counselling Psychologist; Dr C Canaris, Psychiatrist; and Dr W Tinsey, Director of Schools of the CSO; all of whom provided affidavit and oral evidence and were subject to cross examination by Mr Reitano. The Evidence 6 In 2005 the CSO was contacted by a person ("the informant") with whom "A" had a brief intimate relationship alleging that: "A" had an "affair/relationship" with a female student in the early 1990's during which he phoned her at home, met her outside of schools, was in love with her, and had touched and kissed her; and that he had slept naked with his 14 year old daughter. The informant also alleged that "A" currently fantasised about female students, made inappropriate comments related to those fantasies, and had on one occasion whilst driving become so aroused at the thought of female students that he had stopped his car to masturbate. 7 Dr Tinsey deposed that he instructed Ms Tyczinski to investigate. 8 Dr Tinsey informed "A" of the preliminary findings of the investigation by correspondence dated 30 August 2005 (Ex 7, attach. A). This correspondence informed "A" that the preliminary findings were: 1 . Forming an inappropriate relationship and breaching professional boundaries and standards with [the student], a former student at [the school] from 1991-1993 is sustained to sexual misconduct. 2. Experiencing fantasises about female students and talking to other male staff about the "best looking female students" in the school is not reportable conduct. 9 The correspondence further informed "A": As one allegation has been sustained, the following action is proposed: 1. Undertake a psychological assessment with a psychologist appointed by the Catholic Schools Office. 2. Meet with the School Principal to discuss the implementation of the action plan on return to the work place. 3. Attend a long-term individual counselling program - up to 12 months. 4. Participate in a professional development program regarding professional standards and boundaries. 5. Monitoring, supervision and meetings to be organised and implemented by the School Principal. The frequency and duration will be guided by the psychological assessment recommendations. 10 There followed an explanation of the relevant child protection legislation and requirement to notify the Commission for Children and Young People (CCYP) and the Office of the NSW Ombudsman. "A" was invited to make a written response and was offered support and counselling if he so required. 11 The psychological testing was undertaken by Mr Gerard Webster, Forensic and Consulting Psychologist, who was selected by Dr Tinsey following consultation with Ms Tyczinski on the basis that Dr Tinsey was aware of his experience in the area of psychosexual health. 12 The evidence of Dr Tinsey was that he was surprised by the report by Mr Webster, which he deposed raised serious matters. 13 In November 2005 Dr Tinsey met with Mr Northam of the NSWIEU, acting on behalf of "A". Dr Tinsey proposed that a second opinion to that of Mr Webster be sought from a psychiatrist, leading to consideration that two reports be obtained; one from a psychiatrist nominated by the CSO and another from a psychiatrist nominated by the NSWIEU. This was ultimately agreed in December 2005. The CSO nominated Dr Canaris, the NSWIEU nominated Dr Lambeth. 14 During the course of discussions and correspondence between Dr Tinsey and Mr Northam, the NSWIEU asserted that the conduct in respect to the student in 1991-1993 be dismissed as beyond jurisdiction of the Ombudsman's Act 1974. 15 The evidence of Dr Tinsey was that he received the report from Dr Canaris prior to that of Dr Lambeth. Dr Tinsey deposed that he was concerned by the conclusions of Mr Webster and Dr Canaris and spoke by telephone with each of them separately to explore the potential for rehabilitation, with a view that "A" might take two years leave without pay, pursue treatment and be reassessed for return to the classroom after that period. The evidence of Dr Tinsey was that he was not encouraged by either professional that this course of action would be effective. Dr Tinsey did not contact Dr Lambeth, deposing that as Dr Lambeth did not raise the degree of problem it was not relevant to consult him in respect to the prognosis of success of a rectification process. 16 Dr Tinsey then offered "A" a retraining package to the value of $35,000.00 to assist him to move to other fields of employment. This offer was rejected by "A". 17 "A's" employment was terminated by correspondence of 2 June 2006 with four weeks notice on the basis of the conclusion reached by the CSO that he posed an ongoing risk to children. 18 Dr Tinsey confirmed that the "fantasy" allegation had not been sustained and was not relied upon in the decision to terminate "A's" employment. 19 Dr Tinsey deposed that he gave a greater weight to the reports of Dr Canaris and Mr Webster than to that of Dr Lambeth in arriving at his decision to dismiss "A" from employment. 20 Ms Tyczinski detailed her investigation of the matter which confirmed school records of the events in the period 1991 to 1993 in which "A" was in breach of the appropriate teacher/student relationship. Ms Tyczinski also gave evidence of an interview with the student, whom she deposed was most reluctant to revisit these events, having moved on with her life. 21 The particular allegations put against "A" were that he: · had inappropriate physical contact with the student in that he placed his hand on her leg under a sleeping bag whilst sitting around a fire at night on a school camp in 1991; · phoned the student's home in an attempt to speak to her, using the name of another student if family members answered the phone; · during a phone call to the student he said: "I just needed to hear your voice"; · said to the student: "I really like you", and "If only I were ten years younger"; · drove the student home from a school dance alone on an occasion when she was said to have been unwell, without seeking permission from the supervising Assistant Principal. This was at a time after "A" had been counselled and warned by the Principal and Assistant Principal to maintain a professional distance between himself and the student; · spent time alone with the student in a tent on a school camp; · attempted to kiss the student whilst on a school camp; · attempted to kiss the student following an end of year 12 Mass after which staff and students attended a local hotel; · had contact with the student outside school in stopping his motor vehicle for the purpose of talking to her, which he described as a chance encounter at a beach. · targeted and isolated the student at school by creating situations where he would be alone and speak with her privately as well as frequently choosing the student to do the demonstrations in PE · made an inappropriate comment to the student about her physique when she was in her swimming costume, commented on her "well-defined muscles" in a PE demonstration and made other inappropriate comments such as "I really like you"; "Why are you going out with him for, you could do much better than that"; I can't help how I feel"; "If you were older"; and "If I was ten years younger". · would seek the student out by walking past classrooms that the student was in, watching her from a distance in the playground, knowing her subject schedule and when she had free periods, he would be there waiting for her. · made allowances for the student in class and would not address her behaviour where similar behaviour by other students' was addressed. · sat next to the student on the bus when travelling to various sports carnivals · wrote the student a letter expressing his feelings for her. 22 "A" was required to attend a psychologist, Mr Gerard Webster, who reported to the CSO that in his opinion "A" posed an ongoing risk to students. 10. In that report, I concluded that: "A" has as (sic) sexual behaviour problem and uses denial, minimisation and blame to evade responsibility for his abusive and distressing actions. As such, I believe he poses an ongoing risk to students. While "A" may present well to others (and many aspects of his personality may be positive and appealing to others), he would need to address a number of issues before I would feel confident that his return to teaching would be safe for the children in his care. These include is (sic) dysphoric ideation, self-esteem problems, low self-esteem, need to control, emotional inhibition, avoidance of feelings, passive-dependency, distorted self-image, sexual concerns, lack of drive, antisocial tendencies, and unrealistic views of people". 11. In considering the types of strategies which could assist "A" return to teaching, as well as the likely success of those strategies, my report concluded that: There is a difficulty in identifying strategies to deal with "A's" psychological and behavioural issues, particularly in regards to his professional activities. Psychological counselling or psychotherapy would normally be recommended to address concerns such as these. However, although he may agree to treatment it is likely that he would only do so in an effort to manipulate others. It is likely that entry into treatment would only be done to avoid or reduce external pressure. Hence, his prognosis for change is poor. …… Should the school authorities not accept my primary recommendation that "A" not return to teaching at this time, then a number of protective strategies would need to be put in place. These would include that: · "A" be provided with very strict guidelines that identify activities he is permitted to participate in, and activities which are forbidden for the safety of children; · "A"s interactions with students during class time and otherwise be monitored at all times by an adult who is aware of his sexual behaviour problem. Perhaps a teachers aid could be present at all times; · any reports of abusive behaviour or grooming behaviour be referred to the Catholic Schools Office and appropriate action taken; · "A"'s performance be appraised each term to remind him of his responsibilities in regard to child-safe practices; · every child attending the school is trained in a child abuse prevention program that builds their resistance to abusers and encourages them to report abuse - regardless of whether it happens at home, school, or where ever; and · all staff be given any additional in-service training necessary to ensure that each is aware of the indicators of child abuse, the processes of grooming, the effects of child abuse, mandatory reporting requirements and school policies relating to reporting concerns that a child may be at risk of harm. 23 The evidence of Dr Tinsey is that these measures are impractical. 24 Arrangements were then made for "A" to attend two psychiatrists: Dr L Lambeth and Dr C Canaris. 25 Dr Canaris concluded that: "A" today however minimises the significance of his behaviour at the time in question and tries to rationalise it as an attempt to support the student. He continues to maintain that the student sought him out when in fact he was presented with very strong evidence to the contrary at the time in question. The fact that he seems unable to see the magnitude of the adverse impact of his behaviour on the student is cause for even greater concern. It suggests a lack of victim empathy which in the circumstances is very worrying . You have asked what strategies are needed to manage the risk. Again, as matters stand, I believe the risk cannot be contained unless "A" makes a full and frank admission of what took place. As long as he continues to deny his role in the sexualisation of his professional relationship with the student, he cannot be helped. He demonstrates that he has learned very little from his experience and currently persists in an adversarial stance which makes it impossible for him to re-assess the true nature of his behaviour. 26 Both Mr Webster and Dr Canaris gave evidence in chief and were subject to cross examination by Mr Reitano. 27 Dr Lambeth was not called nor required for cross examination. The report by Dr Lambeth is found at attach. F to Dr Tinsey's affidavit (exhibit 7). Dr Lambeth reviewed the allegations and denial by "A" of inappropriate conduct. Dr Lambeth noted anxiety, reporting that the application of well established tests concluded that "A" was not suffering depression. Dr Lambeth concluded: "A" does not suffer from any psychiatric problem. He certainly does not appear to me to have any diagnosis of any one of the sexual problems. He is a man who is currently separated; he is not in a current relationship. As I have stated above, he does have insight into the inappropriateness of his behaviour, he does deny many of the specific allegations. The question now arises as to what risk, if any, he poses to students in his employment. I believe that any such risk is minimal. There is no foundation for stating that he has any psychiatric problem which may predispose him to inappropriate behaviour and there is no foundation for stating that he has any sexual fetishism. There is foundation for stating that his behaviour in the past was inappropriate, and therefore raises suspicions of similar behaviour in the future. Given the time factor involved here, that his behaviour took place some thirteen years ago, given his insight into the inappropriateness of the behaviour, and given the fact that from the history I have there has been no further inappropriate behaviour, I believe the risk is, in fact, minimal. The question then arises as to how to manage any assessed risk. This whole episode has caused "A" a great deal of distress, and obviously has caused many questions to be asked about his ability to continue teaching. I believe that risk could be best managed by ensuring that "A" does attend for regular counselling, on a monthly basis, for a period of not less than two years. This would give him the opportunity to discuss any difficulties that he may be experiencing in the school situation and in his personal life - difficulties which may lead to ill-considered behaviour. I believe that the fact that he is currently separated and not in a relationship may also cause some degree of stress, and may also make him more vulnerable. I believe that the counselling I have suggested would be most important in helping to overcome any vulnerability brought about as a result of this. 28 Mr Reitano attacked the validity of two psychometric tests, the Minnesota Multiphasic Personality Inventory (MMPI) and the Rorschach, used by Mr Webster to reach his conclusions, on the basis of substantial controversy and criticism of the tests within the mental health profession. Mr Reitano provided evidence of the professional debate (exhibit 5). 29 Both Mr Webster and Dr Canaris defended the validity of tests relied upon in this case. 30 In his evidence (TR 11/10/06, pp 97, 98) Dr Canaris deposed: Q. Are you aware what the MMPI is? A. Yes, the Minnesota Multiphasic Personality Inventory. Q. And how do you regard that in terms of its utility as psychological or psychiatric assessment tool? A. Okay, it's a tool used principally by psychologists rather than psychiatrists. It comprises a long list of questions. Within those questions there are questions aimed at assessing the consistency of responses, whether a person has responded to the questions honestly and openly. The questions essentially aim at assessing various personality traits. It is a very widely used instrument. It's considered to have reasonably good validity and reliability so long as the person selected for it comes from an appropriate population. Now the appropriate population is a western educated middle-class background individual. You can usually generate some useful hypotheses on the basis of the test profile and those hypotheses in turn have to be tested against other information. Q. Such as what-- A. Well, such as what you see on clinical examination, what you know as a fact or what has been alleged about a person. In other words, the broad range of data that you have about that person. Q. So do you have a view as to the validity or utility of MMPI as a tool for assessing the risk that a teacher may pose to students? A. I think it certainly is a useful tool for assessing risk in broad terms. It's not going to tell you specifically what kind of risk. However, if you find that there is a high score, for example, in an area such as psychopathic deviancy you would be concerned that that teacher may not deal with his student or her student in an open and transparent manner, that he may break rules, that he may behave impulsively, that he will tend to bend rules to suit his or her purposes. So I would have some concerns knowing that someone had a very high score in such testing and it was in a teaching position. However, before acting on those, you know, I would not - you don't act on a test score, you have to act on a complete presentation. Q. Now you didn't know that, the very high score on the psychopathic deviancy score I told you about last week? A. That's correct, yes. Q. How do you respond to that in view of your own views that you formed and expressed in your own report? A. Well, I find it broadly consistent with what I found and it confirms the views I expressed and it strengthens my conviction that - I think it's the appellant. 31 "A" was required to correct his primary affidavit (Ex 2), conceding that he had lied about the allegations of conduct with the student at the time the events were initially raised, and had lied to Mr Webster and Dr Canaris in denying the alleged conduct. Q. Can I ask you can you tell his Honour why you denied that allegation when it was put to you? A. I suppose that I realised the seriousness of that situation and I guess I was acting out of fear. I was acting out of fear that I would lose my career. Q. Was there other than that allegation, you have had the opportunity in the last little while to review the other allegations that have been made against you? A. Yes. Q. Are you able to say whether you were untruthful in any of the other allegations? A. No, I told the truth in all the other allegations. 32 "A" maintained that other allegations of a sexually inappropriate nature were untrue. "A" conceded that there had been an occasion when, whilst driving his car, he became so aroused that he stopped his car amongst some trees and masturbated. "A" denied that the arousal was connected to or associated with his observation of female students in bikinis during the course of a school excursion. 33 The particular admissions made by "A" are that (TR 10/10/06): · he rang the student at home after schools hours · he did not recall members of the student's family answering the phone or his use of another student's name in such circumstances · he conceded that he may have said to the student: "I just needed to hear your voice". 34 "A" deposed that he contacted the student to check on her wellbeing in the context of her dealing with difficulties within her own family. "A" conceded that he could have given the student his number and advised her to call if she needed assistance but that he did not. 35 "A" conceded (TR p 13) that he told the student that he really liked her. 36 "A" deposed that these actions were in the context of boosting the student's self-esteem and self-confidence, which had suffered as a result of her family breakdown, and meant to provide support to her. 37 "A" conceded (TR p 14) that he criticised the boys the student was going out with and had said: "If only I was ten years younger" but denies that he said it to her when they were alone, putting that he might have said such things when she was with some of her friends in the schoolyard. 38 "A" denied that he engaged in grooming behaviour and accepted in absolute terms that sexual contact between a teacher and student is entirely unacceptable. 39 "A" denied giving the student any latitude or special consideration in classroom activities. 40 "A" further denied the allegation that he tried to kiss the student at any time, deposing that she had approached him at a hotel after the year 12 Mass in a state of intoxication. 41 "A" conceded that he had written a letter to the student. "A" confirmed that he had not written a letter directly to any other student (TR p 18). 42 "A" deposed that he sought approval from the Assistant Principal prior to taking the student home from a dance. There is no direct evidence to the contrary. 43 In cross examination "A" put that he had handled the situation with the student unprofessionally and accepted that he had overstepped professional boundaries, putting that his current perception is different to his perception at that time. 44 "A" deposed that in conveying these events to the informant in the context of their intimate relationship he had expressed regret. 45 "A" confirmed that he told the informant that during the break-up of his marriage he had slept in the same bed as his 14 year old daughter and on awakening his leg was on hers; but denied the allegation that he had been sleeping naked . The evidence of "A" was that he and his former wife were living in the family home separately week about, which was a very difficult time for all of them; and that his daughter felt very insecure, which was his reason for sleeping in the same bed with her. 46 "A" confirmed that he had not been truthful with the CSO at the time of the events with the student; during the investigation by the CSO; with Dr Webster; with Dr Canaris; or in the affidavit sworn on 7 June 2006 (TR p 28/29). 47 "A" provided evidence from a female colleague, "B", in the form of an affidavit (Ex 1). The evidence of "B" is that she is a teacher of many years experience. "B" deposed that the student sought her out for advice on how to handle what "B" described as uncomfortably close attention from "A". "B" was positive in her evidence that the student was not visibly upset, crying, or angry; and stated that she did not want "A" to "get into any trouble" but simply sought advice. 48 "B" deposed that she advised the student to excuse herself from conversation with "A" and reported the matter to the Assistant Principal, who approached "A". 49 The evidence of "B", who was not required for cross examination, is that at no time did she observe "A" cross boundaries with students or exhibit an improper or unprofessional attitude towards students. 50 There is substantial evidence of the Principal and Assistant Principal attending to the matter with "A". They did so at the time in the face of emphatic denial by "A" of the principle allegation, that of touching the student on the leg, which he now concedes was true. SUBMISSIONS 51 Mr Reitano put that "A" was employed as a teacher for some 24 years without incident or blemish. Mr Reitano relied upon Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46 for authority that the Commission is required to take into account the applicant's otherwise good behaviour. 52 Mr Reitano submitted that the CSO failed to meet the evidentiary burden of establishing misconduct; putting emphatically that the only evidence concerning the truth of any of the allegations came from "A". Mr Reitano submitted that none of the other participants, the student, the Principle or the Deputy Principle at the time, were called to give evidence. 53 Mr Reitano put that the conclusions of Dr Canaris and Mr Webster were based on facts not proven and a view taken by them adverse to the creditworthiness of "A" and should be discounted accordingly. 54 Mr Reitano submits that the primary events, which took place in 1991 to 1993, are so far removed in time and overtaken by the exemplary behaviour of "A" subsequent to the advice from the Principal and Assistant Principal to dissociate from the student, that grounds for termination of employment do not arise. 55 Mr Reitano further put that the events of 1991, having been dealt with by the then Principle and Deputy Principle in a manner considered appropriate at the time, invoke the principle of condonation and could not be revisited for further disciplinary purposes. Mr Reitano referred me to Burge v NSW BHP Steel Pty Limited (2001) 105 IR 325; Australasian Transport Officer's Federation v Department of Transport (1988) 25 IR 235; and Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16. 56 Mr Reitano further submitted that consideration should be given to the fact that the termination of "A's" employment was not based upon contemporary conduct but upon a perception of future risk. 57 Mr Reitano referred to the decision of Bauer J in Coleman v The Director General of School Education (IRC 4507 of 1997, 17 December 1997, unreported) wherein the process of condonement and consideration of the applicant's good employment record were applied, resulting in reinstatement. 58 Mr Murphy submits that the opinions of the psychologist and psychiatrists were conclusive and that "A's" conduct in respect to the student and his preparedness to lie when it suited him allow no other conclusion than that termination of employment is appropriate and the Commission should not intervene. 59 Mr Murphy put that, despite the fact that the bulk of the allegations concerned events which occurred a considerable time in the past, the CSO held a responsibility to ascertain whether "A" posed an unacceptable ongoing risk to the children and young persons under its care. 60 Mr Murphy put that "A's" conduct, based upon his admissions, and the ongoing risk represented to students justified termination of employment. CONSIDERATION 61 Relying entirely upon the evidence of "A" as to factual matters, the inescapable conclusion is that "A" was prepared to lie to conceal his conduct where it was to his advantage. 62 The principle of condonement is not available in this matter as the issues dealt with by the Principle and Deputy Principle at the time of the events, 1991-1993, were on the basis of emphatic denials by "A" in respect to events which he now concedes did occur. 63 The judgment in Coleman is distinguished on the facts and is not helpful in this matter. 64 The fact that "A" deceived his employer could, by itself, amount to a foundation for termination of employment. 65 An argument was developed that the information passed to the CSO by the informant was done so out of spite, consequent upon the breakdown of that relationship; and whilst divulged as a matter of honesty in an intimate relationship, have been distorted and should not be relied upon. 66 Both of these assertions are rejected. The motives of the informant are immaterial to the validity of the allegations. The employer is duty bound to act upon the information, however acquired; first to determine validity and then in accordance with its obligations to the protection of children and young people in its care. 67 The CSO pursued an appropriate investigation. Consideration by the CSO was founded upon the results of that investigation and assessment by qualified medical practitioners, not upon the allegations. This is an appropriate course which I adopt. 68 I accept the submissions of Mr Murphy that the CSO had an obligation to assess risk to children and young people in its care. 69 The evidence is that the CSO undertook that task by engaging Mr Webster and Dr Canaris, recognised professionals in the field, who reached similar conclusions against the continuation of "A's" employment. These conclusions have sustained the test of cross examination. The fact that Mr Webster and Dr Canaris arrived at findings of credit adverse to "A" was vindicated by his admission that he concealed the truth of his conduct from them. The conclusions of Mr Webster and Dr Canaris are not so discounted as contended by Mr Reitano. 70 I do not find that the professional controversy diminishes the utility of the MMPI or Rorschach Tests applied. The only direct evidence of the validity and utility of these tests comes from Mr Webster and Dr Canaris, both accredited professionals with substantial experience in the relevant area. I accept the evidence of Mr Webster and Dr Canaris in respect to the validity of those tools. The conclusions reached by Mr Webster and Dr Canaris are of greater importance and weight and are against the continuation of employment of "A" in a child related occupation. 71 The report by Dr Lambeth, said to favour "A", appears to examine the likelihood of depression; it does not suggest "A" be returned to teaching duties without an extensive remedial program. 72 I find that the remedial programs suggested by Mr Webster and Dr Lambeth are impractical and would place an onerous, if not impossible, burden on the CSO. 73 Having regard to the conduct admitted by "A", in particular his admission that he had touched the student on the leg and subsequently lied about it to the CSO, Mr Webster and Dr Canaris; and the conclusions reached by Mr Webster, Dr Canaris and Dr Lambeth, I conclude that the termination of "A's" employment is not harsh, unreasonable or unjust. 74 It is not necessary to make factual findings in respect to other allegations, however, it is appropriate to note that the evidence of "B" confirms inappropriate conduct by "A" towards the student which tips the balance of probability against him. Without any further direct evidence no findings are made. 75 Consideration of the previous employment record of "A" does not outweigh the risk associated with his continued employment, nor in my opinion can the altered perception deposed by "A" outweigh the risks of continued employment. 76 There is no basis for intervention by the Commission. The application for reinstatement is refused. oo0oo 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.