Industrial Relations Commission of New South Wales CITATION: Mahmoud v Department of Education and Training [2006] NSWIRComm 56 PARTIES: Tosson Mahmoud NSW Department of Education and Training FILE NUMBER(S): IRC 3872 of 2003 CORAM: Grayson DP Unfair dismissal - Alleged misconduct - Applicant charged by police and convicted of assaulting school principal - Misconduct established on the evidence independently of criminal proceedings. CATCHWORDS: Held, misconduct justified termination of employment - No warrant for intervention of Commission - Application dismissed LEGISLATION CITED: Crimes Act 1900 Industrial Relations Act 1996 CASES CITED: Pastrycooks Employees, Biscuit Makers Employees and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 HEARING DATES: 17/05/05, 18/05/05, 13/03/06 DATE OF JUDGMENT: 03/24/2006 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr S Benson of counsel instructed by Mr P Quinn, Senior Industrial Officer, Department of Education and Training JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 24 March 2006 Matter No IRC 3872 of 2003 Tosson Mahmoud and Director - General of Education and Training Application by Tosson Mahmoud re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 56 1 These proceedings have followed a protracted course largely due to related proceedings in the local Court in which the applicant, Mr Mahmoud was charged with and convicted of common assault. The victim of the assault was Ms Cheryl Binns, principal of The Grange Public School at Minto where the applicant was engaged as a casual relief teacher on 22 May 2003. 2 The matter proceeds by way of an application for relief from alleged unfair dismissal under Chapter 2 Part 6 of the Industrial Relations Act 1996. In the course of the proceedings, and in addition to the application for relief the applicant filed various notices of motion with which I will deal compendiously given that they effectively seek the same relief or in the alternative relief which is beyond the Commission's power to grant. I refer here to the applicant's claim for monetary compensation in the amounts of: · $450000 for lost earnings and injury to health, · $58000 for case preparation, · $2000 for stationery, computer use, photocopying, telephone calls, facsimile and transport costs, · $900000 for permanent irreversible damage to livelihood and work · $12000 for costs incurred in relation to disciplinary matters in Eagle Vale High School and Kingswood High School where the applicant had taught on prior occasions. 3 To the extent practicable, the proceedings have been adjourned pending the outcome of the criminal proceedings including at one stage, a private assault charge brought by the applicant against Ms Binns which was dismissed early in 2004 at Campbelltown Local Court. 4 The assault charge brought by the police against the applicant was heard in the same place later in 2004 and as earlier observed, a conviction was recorded. It seems the applicant was given a suspended sentence and placed on a two-year good behaviour bond under the relevant provisions of the Crimes Act. He thereafter commenced appeal or review proceedings, the course of which was somewhat obscure in spite of the Commission's efforts to elicit from the applicant an estimate of their nature and likely duration. The proceedings were said by the applicant at different times to be in either the District Court or the Supreme Court or both. At all events, and absent more precise information in that regard, this matter was programmed for hearing and was heard on 17 May 2005 and 18 May 2005. 5 The disposal of the matter was then further delayed after evidence had been taken by a sequence of requests from the applicant, who represented himself, for extensions of time for the filing and service of written submissions. Those requests were granted on terms and in the ultimate absence of compliance with varied directions, the applicant was informed that further failure in that regard may result in the matter being determined on the material already before the Commission. In the result, written submissions were filed albeit some considerable time later (most recently on 13 March 2006) and the matter now proceeds to decision. 6 In addition to the documentary material tendered and relied upon by the parties, the following witnesses were called: - · Mr Tosson MAHMOUD, the applicant · Mr Gary WALDEN, School Education Director Macarthur School Education Area · Mr Patrick QUINN, Senior Industrial Officer, Department of Education and Training · Ms Cheryl BINNS, Principal of The Grange Public School · Ms Maree RAYNHAM, Assistant Principal of The Grange Public School · Ms Maria O'ROURKE, Teacher at The Grange Public School · Ms Rebecca LEECHBURCH - AUWERS, Teacher at The Grange Public School 7 It might be usefully observed at this point, independently of any estoppel which may operate to preclude a finding in this Commission contrary to the finding in the criminal jurisdiction (namely, that the applicant assaulted Ms Binns) that the evidence leaves no room for doubt in my mind that there was a palpable failure on the applicant's part to obey a lawful and reasonable direction given to him by Ms Binns; that the applicant's bellicose behaviour towards Ms Binns was unwarranted and unjustified and that in conducting himself in the manner he did towards Ms Binns and others including the numerous school students who are said to have observed his behaviour, he placed himself in a position which made his continuing employment as a professional teacher untenable. 8 I say that in due deference to the applicant and his strongly held belief that he is the victim of a conspiracy against him perpetrated by Ms Binns. The applicant's evidence and written submissions make regular reference to the incident giving rise to the police arresting him as being a feminist, racist plot against him and also to his efforts as a self-described social reformer to eradicate the so-called virus of feminism from society. I found no objective basis upon which it could be found that there was such a conspiracy. 9 If the above words seem to be of a somewhat extreme character, it should be observed that they expressly represent the concepts upon which the applicant bases his case and in so doing, upon which he claims to have been wronged by Ms Binns, the police, the criminal courts and the respondent to these proceedings who determined that his approval to teach should be revoked. 10 The incident or series of incidents which triggered the events described above, occurred at The Grange Public School on 22 May 2003 in the manner (as I am comfortably satisfied) which is described by Ms Binns and the other witnesses called and relied upon by the respondent. To the extent that such evidence is at odds with the applicant's evidence, I prefer the former. 11 In a contemporaneous statement taken by police, Ms Binns described the series of incidents in this way: 1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false. 2. I am 43 years of age. 3. I am currently employed as the Principal at the Grange Public School, Benham Road, Minto. I have been at the school in this role for the past eighteen months. My duties entail the well running of the school whilst caring for the needs and welfare of the students and staff employed. 4. On Thursday the 22nd of May, 2003 I arrived at the school around 8:30 am. During the morning I conducted a staff meeting. The assistance of a number of casual relief teachers had been arranged prior to the meeting. During this staff meeting I saw one of the relief teachers arrive at 8:55 am. This relief teacher I know as Mahmoud. 5. At about 9:30 am I had a conversation with Debbie Mcillwain who is one of my assistant principal(sic) about the relief teacher Mahmoud. This conversation was about the way in which Mahmoud was treating the children. 6. At around 10:20 am I was in my office when Racheal(sic) Armer who is one of my teachers came into the office. Racheal(sic) Armer informed me that there was a problem down in one of the class rooms with the relief teacher Mahmoud. 7. I walked down to F block to ascertain what was occurring with the relif teacher as I was concerned with the children. As I walking towards the class rooms I could hear a male yelling. I could not make out what he was saying. 8. As I turned the corner I saw Rachael Armour facing Mahmoud. There was a child standing next to Rachael facing in(sic) the wall and another child behind Mahmoud also facing the wall. Mahmoud was yelling at Rachael "These two boys have been making fun of me all morning. They went around in the library and went around to the computer and pressed buttons." Rachael did not reply to this. 9. I walked over to the wet area and I said, "Excuse me my name is Cheryl Binns. I am the school principle(sic) can I speak to you outside please". Mahmoud looked at me the he turned back and looked at the children. Mahmoud raised his voice and said something back to the children. I am unable to recall what he said. 10. I walked away from Mahmoud attempting to get him away from the children. Mahmoud then came out and walked up to me. Mahmoud said "This is a bad class". I said "I want to talk to you about the way you were talking to the children". Mahmoud started to get agitated lifting his shoulders. 11. I said, "I want you to come to the office to talk to me". Mahmoud said, What is the problem?" I said, "I've got some children in the office who had said that you had threatened to slap their faces". He didn't respond immediately then he said, "Who are these children". I said, "I can't tell you the name of the children. The department has processes in place to deal with this. I will talk to you in the office". 12. Mahmoud became more agitated and he was invading my personal space by leaning in towards me. Mahmoud said, "I know what this is about. I know your type". During this Mahmoud(sic) voice was raised. I said, "Calm down I want to talk to you about this in the office". 13. Mahmoud said, "You're a racist and feminist". At that point I recognise(sic) that this were(sic) going to get out of hand. I said, "I want you to collect your things and go please." Mahmoud walked back into the class room. I followed him(sic) Mahmoud started yelling at the children "You tell me who the children are who said I was going to slap there(sic) face". 14. I said, "Please don't address the children. Collect your things and go". The children appeared scared and worried. I then spoke to Mrs Armour who then escorted the children from the class room. Mahmoud collected up his belongings on a trolley. 15. Mahmoud started walking behind the children yelling, "Who are these children. Who are the children who said I do these things". Mahmoud has gone to follow the children into another class room. Katherine McNamara who is another teacher came out of her class room and I spoke to her. Katherine McNamara went back into her class room. 16. Mahmoud was walking in front of me and he was ranting. Another teacher Heather Nash came out of a room and Mahmoud pushed past her. As Mahmoud did the wheels of his trolley went over her feet and Heather Nash almost fell over. I said, "Mrs Nash are you okay". Mrs Nash was okay. I said, "Go to the front office and call the police". 17. Mrs Nash left and Mahmoud walked into an empty class room. Mahmoud was walking in the direction of a group of school children. I was worried about the children so I stood in front of the class room door and some how Mahmoud pushed past me. I got in front of Mahmoud and I spoke to Mrs Emma Lewis who is another teacher about her students. 18. Emma Lewis got her students together and they started to walk off. Mahmoud was yelling at the children and myself "You are a feminist". We walked around to the assemble(sic) area and there were three or four of the children. Mahmoud was still ranting and yelling. I spoke to one of the teachers who ushered the kids into the library. 19. I was standing on the stairs preventing Mahmoud from getting at the children in the library. I said, "I am not going to give you access to the library". At this time I put my arms out. I did not touch Mahmoud who was standing at the bottom of the stairs. 20. Mahmoud came up the stairs and started pushing on my arms. I grabbed the hand rail. I said, "The police are coming. I want you to leave now". Mahmoud was still ranting I am not sure what he was saying." 21. I then stood in front of the library door. Mahmoud said, "I am going to speak to the children now". I said, "You can't. There is a process in place for this. You can't investigate it now". Mahmoud said, "I am going to get in there. I am going to talk to the children". 22. Mahmoud lowered his left shoulder and he started ramming into me. He was hitting me in my arms. He did this about three times. Mahmoud then went over and banged on the library windows. Mahmoud then came back to me and at the time another teacher Maria O'Rouke(sic) was standing next to me. 23. Mahmoud again lowered his shoulder and charged at me again. He did this about another three or four times. Mahmoud was still yelling that he wanted to get to the children. Each time Mahmoud shoulder charged me I would fall back into the door. 24. Mahmoud went back down the stairs and said, "I am going to contact the premiers(sic) office right now". I said, "Please do. I want you to leave the school". Mahmoud said, "I am going to ring an ambulance you have hurt my arm". He did speak to someone on his mobile telephone. 25. Mahmoud continued to carry on in an aggressive manner. Mahmoud said, "I am going to take this to the end of the line. This is a war between you and me. I will be back here everyday". The police then arrived and I spoke to them. 26. At no time did I give any permission to push, hit or assault me in any way or form. 12 The police facts sheet attached to Mr Quinn's affidavit records the events in these terms:- FULL FACTS On Thursday the 22nd of May, 2003 the defendant attended The Grange Public School, Benham Road, Minto. The defendant is currently employed by the Department of Education as a relief teacher by The Grange Public School. At the time the defendant was in charge of a mixed class of year four and year five students. … During the course of the morning the defendant had cause to chastise a number of students. The chastisement was in the form of yelling at students. As a result of the defendant's behaviour the victim who is the principal of the school went to speak to the defendant. … The defendant at this stage was still yelling at the students. The victim was of the opinion that the behaviour of the defendant was unacceptable as he was scaring the students. The victim requested the defendant cease yelling at the children and return to her office. … The defendant at this stage was agitated and aggressive and refused to listen to the victim. As a result the victim requested that the defendant leave the school grounds. he defendant refused to cooperate with the victim and was intent on abusing the students. … The victim managed to usher the students into the school library for safety. The victim and a number of other teachers then formed a human barrier between the defendant and the students. The victim continued to direct the defendant to leave the students alone and leave the school grounds. … The defendant then lowered his shoulder and charged at the victim three or four times hitting her in the chest in an attempt to get into the library. The defendant than banged on the library windows yelling at the students inside. The defendant then went back up to the victim and again lowered his shoulder charging at the victim three or four times more. Again striking her in the chest. … The defendant was not able to gain entry into the library. The defendant then stated, "I am going to take this to the end of the line. This is war between you and me. I'll(sic) will be back here everyday". A short time later police arrived at the school and the victim and witnesses were spoken to. … The defendant was then spoken to and the allegation of assault was put to him which he denied. The defendant was then placed under arrest. Whilst being placed under arrest the defendant spat at another school employee which missed. … The defendant was then conveyed to Macquarie Fields Police Station and introduced to the custody manager. 13 It should be observed here that a significant part of the applicant's own evidence supports the fact of an assault against Ms Binns. For example, the applicant produced and played a tape recording of at least part of the running confrontation with Ms Binns and without wishing in any way to overstate the position, the applicant is plainly heard to be in a highly charged emotional state and is plainly refusing to in any way submit to the direction by Ms Binns that he vacate the school premises. He is equally plainly intent on taking matters into his own hands in terms of conducting his own investigation into the issues raised with him by Ms Binns at the outset of the confrontation. 14 The applicant was unable or unwilling throughout the proceedings to accept that his conduct was wrong and that his sense of being falsely accused by Ms Binns could not provide even the flimsiest justification for the verbally and physically abusive course of conduct he chose to follow. 15 I am comfortably satisfied that the respondent has discharged the onus of demonstrating serious misconduct on the part of the applicant on 22 May 2003. (see for example Pastrycooks Employees, Biscuit Makers Employees and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70) and I have reached that conclusion without the necessity of taking into account the material received on subpoena from the New South Wales Police and the Clerk of the Court at Campbelltown Local Court such material having been tendered by the respondent and admitted into evidence. The material is the subject of later complaint by the applicant that he was not afforded sufficient opportunity to answer it in preparing his case. In the result, the subpoenaed material although tendered by the respondent, was not specifically relied upon save in the case of the Campbelltown Court files, for the conviction and to the extent that those files provide a record of the fact of a conviction against the applicant which fact is not denied, they are not prejudicial as I am disposed. The applicant seems to have approached the matter unnecessarily on the basis that he can argue here that he was wrongly convicted when clearly, that is not a matter for the Commission. 16 As to whether the applicant's dismissal was harsh, unreasonable or unjust notwithstanding that he misconducted himself, the respondent submitted that it is relevant to have regard to whether and to what extent the applicant's behaviour can be explained or excused on the basis of provocation. Further and in answer to that enquiry, the respondent submitted that even if the initial complaint (upon which Ms Binns acted) had no substance, the applicant as a professional teacher must be accountable for his actions within the school environment and must be expected to conduct himself according to proper and professional standards. In my opinion, he palpably failed in that regard and it cannot be said on the evidence as it stands that his conduct is excusable on the grounds of provocation. 17 In terms of whether the applicant should, as it were, be given a second chance, the respondent points to prior reported incidents of improper conduct which were the subject of ongoing investigation and an invitation to the applicant to show cause why his approval to work as a casual teacher should not be revoked. 18 Evidence as to these prior incidents and the invitation to show cause was adduced by the applicant as attachments to his main affidavit (Exhibit 2). 19 The first such incident occurred on 18 June 2002 at Eagle Vale High School and gave rise to an allegation that the applicant had engaged in improper conduct of a physical nature against a student. 20 The respondent wrote to the applicant on 25 July 2002 giving the applicant the opportunity to respond to the following allegations that had been levelled against him whilst employed as a casual teacher at Eagle Vale High School. The allegations were: 1. On or about Tuesday 18 June 2002, during Period 1 in Classroom 221, whilst teaching 7P a language class, grabbed a male student by the shirt and pushed him to the ground; 2. On or about Wednesday 19 June 2002, during Period 5 or 6, at approximately 11:58 am in classroom 221, whilst teaching 7V a language class: (a) Grabbed a male student by the hand and squeezed it hard; (b) Grabbed a male student by the hand and twisted it hard. 21 The applicant was the subject of further allegations whilst employed as a casual mathematics teacher at Kingswood High School. In particular, on 25 February 2003 the respondent wrote to the applicant advising him that he was the subject of a claim of improper conduct against students on 8 November 2002 and giving him the opportunity to respond. Particulars of the allegations of improper conduct were set out as follows: (1) Picked up a schoolbag belonging to Year 7 student and threw it out of the classroom door resulting in breakage to her mobile phone and lunch box. (2) Said to students in the class words to the effect of "Shut the fuck up you bloody children"; then (3) Poked a Year 7 student in the head, and said to her words to the effect of "Shut up"; then (4) Grabbed a Year 7 student's school bag and threw it out of the door of the classroom resulting in the breakage of her mobile phone. 22 On 28 March 2003 the respondent wrote to the applicant requesting he show cause why his approval to teach as a casual ought not be withdrawn. In that letter the respondent alluded to the previous correspondence dated 25 July 2002 and 25 February 2003 and noted that these letters provided him with specific allegations made against him but that to date he had not provided specific responses to those allegations. 23 On 10 April 2003 the applicant sent a letter of response to the respondent which was aggressive and confrontational in tone. The letter commenced with the following sentence: This is in reference to your very insulting, degrading, humiliating, revengeful, hostile, vexatious, shocking, illegal, unprecedented, racist, discrediting, aggressive, provocative and disrespecting of my seniority, great achievements, experience and high professionalism letter(sic) of 28 March 2003. The letter prompted a response from the respondent dated 11 April 2003 to the effect that the respondent did not feel the applicant had addressed the specific allegations of improper conduct at Eaglevale High School and Kingswood High School. In this letter the respondent gave the applicant further opportunity to provide a response to the specific allegations and to make submissions as to why his approval to work as a casual teacher ought not be withdrawn. 24 It was against this contextual background that the applicant taught at The Grange Public School on 22 May 2003 the day on which he was arrested and although it must be recognised that these other allegations of misconduct have and are given the standing of allegations only, it is clear that as at 22 May 2003 they had yet to be satisfactorily answered by the applicant and were still under active consideration when overtaken by the events of 22 May 2003. It may be assumed, safely I think, that absent sufficient explanation by the applicant, they may well have provided grounds in their own right for the applicant's removal from the list of approved casual teachers. 25 Accordingly and although not determinative in their own right of unsuitability to teach, they must inevitably count against the applicant in terms of whether his misconduct on 22 May 2003 should be regarded as an aberration. 26 There is then on the respondent's argument the question raised by the evidence as to the applicant's strongly held views on feminism. As earlier observed the applicant portrayed himself as a so-called social reformer and as the following extract from his affidavit reveals, his agenda for social reform finds no place for feminism and no way to describe feminism other than in derogative terms: I am the prime mover behind the concerns and the changes which are going on for two years now all over the Country in the field of Education, gender relations, feminism and the other related very serious national, social and family matters and which are covered extensively in the media. As a social reformer, I am in constant correspondence with the Prime Minister and the Premiers of the States giving them concrete, very serious and fundamentally important assessments about the above mentioned matters in particular about the elimination of the virus of feminism from the body of the Nation and the steps taken to steer the driving wheels of the Nation in the right direction. They all listen to what I say, believe in it and act accordingly without delay. 27 Plainly and again as the respondent submits, our society permits its citizens an entitlement to hold views on the broadest possible range of matters and to agitate within the limits of the law for the advancement of those views. In the applicant's case, however, his clear commitment to the elimination of what he perceives as the virus of feminism raises inevitable questions about the practicability of his employment in a work environment such as teaching where many of his peers and many of those who may exercise supervisory control in the work environment are female. I agree with and accept the proposition advanced by the respondent that the strong views held by the applicant as a social reformer count against his application for relief rather than as he would have it, in favour of it. 28 The applicant, in my opinion, has not demonstrated the necessary grounds to warrant intervention by the Commission. The application is accordingly dismissed and these proceedings concluded. 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.