Industrial Relations Commission New South Wales Medium Neutral Citation: Alf Pace v Managing Director, TAFE Commission [2011] NSWIRComm 1052 Hearing dates: 6 - 9 June 2011 Decision date: 18 October 2011 Before: Macdonald C Decision: (1) Order for reinstatement (2) Order for continuity of service Catchwords: UNFAIR DISMISSAL APPLICATION - Section 84 of the Industrial Relations Act 1996 - Applicant engaged as a TAFE teacher since 1983 - Applicant working at Nirimba College of TAFE at time of dismissal - Applicant teaching carpentry to apprentices - students made complaints about applicant's conduct in class - complaint by a mother of a student about applicant's harassing phone call to her re her son's conduct in class - applicant suspended - investigation into complaints - respondent (per Sue Hartigan) expressed opinion that applicant had engaged in misconduct - applicant invited to respond to possible disciplinary action including dismissal - applicant responded in writing and engaged law firm - Applicant dismissed - HEARING - respondent carried onus - only one of six findings of misconduct for dismissal of applicant made out - some findings of inappropriate conduct but held not to be misconduct - procedural unfairness - substantive unfairness - order of reinstatement Legislation Cited: Industrial Relations Act 1996 Cases Cited: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Category: Principal judgment Parties: Alf Pace (Applicant) Managing Director, TAFE Commission (Respondent) Representation: Ian Collins Solicitor (Applicant) Christopher Miles Department of Education and Commuities (Respondent) File Number(s): IRC 1087 of 2010 DECISION 1This decision concerns an application (IRC 1087 of 2010) by Mr Alf Pace ("the applicant") for unfair dismissal against his former employer, Managing Director, TAFE Commission ("the respondent"). The unfair dismissal application was made pursuant to section 84 of the Industrial Relations Act 1996 (" the Act "). 2The file was set down for conciliation before Bishop C and failing settlement, programmed for a hearing. 3The hearing took place before myself (Macdonald C) on 6, 7, 8 and 9 June 2011. The parties filed written final submissions subsequent to the hearing: 6 July (applicant), 25 July (respondent) and 11 August 2009 (applicant in reply). 4At the hearing, the applicant was represented by Mr I Collins, solicitor who called the applicant as a witness. 5At the hearing, the respondent was represented by Ms E Brus, barrister who was assisted by Mr C Miles, Acting Manager/Industrial Relations Advocacy. Ms Brus called the following witnesses: Zachary Page TAFE student Thomas Madgwick TAFE student Blake Thomas TAFE student Chris Greenwood Head Teacher, Carpentry Liz Olson Mother of a TAFE student Susan Hartigan Director, Western Sydney Institute of TAFE Matthew Guest TAFE student 6Several of the respondent's witness appeared by way of a summons issued under section 165(3)(b) of the Act : Page, Madgwick, Thomas, Olson and Guest. BACKGROUND 7The applicant was engaged as a TAFE teacher in carpentry since 1983. At the time of his dismissal, he was working at the Nirimba College of TAFE. 8Complaints were received by the respondent towards the end of 2009 as to the conduct of the applicant. The complaints were lodged by students, and by a mother of a school student undertaking a TVET class (TAFE class for school students and conducted on TAFE campus). 9The complaint by the students related to the applicant's conduct as a substitute teacher in carpentry on Friday, 30 October 2009. The complaints went to alleged inappropriate commentary to two students. The complaint by the mother of a student concerned the applicant's alleged harassment towards her in telephone calls to her on 9 and 14 November 2009. 10The complaints were made the subject of an investigation by Susan Hartigan, Director, Western Sydney Institute of TAFE. The investigation was given to a Peter Mulhall of Risk Management and Consulting Services, in November 2009. 11On 3 May 2010, a further complaint was received by Ms Hartigan against the applicant. This complaint did not form part of the reasons for dismissal. 12Ms Hartigan wrote by letter of 6 May 2010 to the applicant advising him of the additional complaint and that she had received the investigator's report, which found that there is sufficient evidence to uphold a number of the allegations against the applicant. Her letter advised of the applicant's suspension from duty. (Ex 5, Annex B) 13By letter of 24 May 2010, Ms Hartigan advised the applicant that she had considered the investigator's report and she was of the opinion that the applicant had engaged in misconduct. The letter set out three incidents (the students' and mother's allegations) and put the applicant on notice as to her consideration of taking disciplinary action, including the option of dismissal. The applicant was given the opportunity to respond by either a submission or an interview with Hartigan. (Ex 5, Annex C) 14Various items of correspondence then followed between Ms Hartigan and the applicant's solicitor, being Mr Ian Collins. Apart from addressing the issue of Ms Hartigan's show cause letter of 24 May 2010, the items of correspondence also raised the applicant's fitness for work and workers compensation claim by the applicant. 15By letter of 20 August, Ms Hartigan wrote to the applicant and his solicitor advising of her decision that the appropriate disciplinary action was her direction that the applicant resign his employment. Failing compliance with this direction by 3 September 2010, then the applicant would be dismissed. (Ex 5, Annex K) 16Following an extension of time being granted for the applicant to consider his position, his solicitor wrote by letter of 8 September 2010, advising that the applicant would not submit his resignation. The letter also referred to the applicant's "psychological injury arising out of the nature and condition of his employment and the conduct of the employer". The letter also advised of the applicant's protections under the Workers Compensation Act. (Ex 5, Annex N) 17By letter of 20 September 2010, Ms Hartigan dismissed the applicant from his employment, effective from 20 September 2010. (Ex 5, Annex O) FINAL WRITTEN SUBMISSIONS For the Applicant 18Mr Collins, solicitor for the applicant, put the following in final written submissions: (a) The applicant had been a full time teacher at Western Institute TAFE from 1986. (b) The applicant first developed a psychological injury in 1998 and came under the care of a psychiatrist (Dr Pusic) following a "prank" by students in which he was electrocuted. (c) On 30 October 2009, the applicant was called upon on short notice and inadequate instruction, as a substitute teacher for a Mr Melvin. Complaints were made by students about the applicant's behaviour towards some students: swearing at students and "grabbing" at Mr Page (a student). The applicant denies swearing and "grabbing" at Mr Page, but may have come into physical contact when he bumped into Page. (d) On 9 November 2009, a student Andrew Olson, made a public blackmail threat against the applicant that caused the applicant further distress. A previous but less serious incident (a student's action against the applicant) had been dealt with by the applicant contacting the parent direct and seeking an apology. The applicant sought to arrange a suitable apology for Olson's public blackmail threat and, on reflection, the applicant required a written apology instead of a verbal apology as initially requested. The applicant telephoned for Mrs Olson on numerous occasions and they had two telephone conversations. Mrs Olson complained that this constituted bullying and harassment. The respondent considered such telephone contact to be a basis for dismissal. The applicant considered the matter to be serious (he had also reported it to the police) needing immediate resolution and he was following a precedent already set in a far less serious matter. (e) An investigation was carried out by Peter Mulhall into the allegations of misconduct (swearing, "grabbing" and harassment) against the applicant. The investigator did not appear to have been fully instructed or requested to investigate the response given by the applicant. (f) The applicant submitted a Workers Compensation claim as a result of the distress caused in large part by the complaints and the manner in which those complaints were investigated by the respondent. He succeeded in this claim and was awarded compensation. The applicant was terminated on 20 September 2010, which was within the six month period of statutory protection under Part 8, Workers Compensation Act 1987. (g) The final written submissions contained an evaluation of the evidence and character assessment of the witnesses. (h) In conclusion, the final written submissions stated that the applicant was treated unfairly and unreasonably. He denied the alleged misconduct. Even if the applicant had lost his temper and swore at students on 30 October 2009, he was provoked by unruly student behaviour - and a one off incident after 25 years of teaching is not a basis for termination. (i) The applicant sought reinstatement, by way of a suitable return to work plan to be arranged by the respondent's workers compensation insurer, the applicant's doctor and the respondent (in the usual way). For the Respondent 19Ms Brus, barrister for the respondent, put the following in final written submissions: (a) The relevant legislation before the Commission is the Industrial Relations Act 1996, given that the applicant had filed a section 84 unfair dismissal application. The matter before the Commission is not an application for reinstatement of an injured worker and the Commission should not have regard to the provisions of the Workers Compensation Act 1987. (b) The applicant's dismissal for misconduct arose out of events on 30 October and 9 November 2009. (c) As to the events of 30 October 2009, the Commission should prefer the weight of the evidence of the four against that of the applicant. There is no evidence that would enable an inference to be drawn that any of the witnesses colluded about the evidence they provided to the investigator or to the Commission. (d) The applicant was aware of the various policies and procedures pertaining to his own conduct as a teacher and student discipline and that these policies applied to him: The Code of Conduct and The Student Discipline Mandatory Procedure. (e) If the Commission accepts the evidence of the respondent's witnesses, it must conclude that the applicant was untruthful (in denying the allegations of misconduct) during the course of the investigation and before the Commissioner. Further the applicant's claim in his written submissions that he may have acted as alleged but that this was due to provocation, is at odds with the applicant's evidence to the Commission. (f) As to the misconduct on and after 9 November 2009, this misconduct arises out of the applicant's claim as to the alleged conduct of a student, Andrew Olson. The applicant claimed that the student engaged in some very poor behaviour and when the applicant challenged the student about his conduct, the student allegedly threatened to make allegations of improper sexual contact by the applicant. As to this claim by the applicant, there were no witnesses brought forward to corroborate this claim by the applicant. (g) As to this claim of Andrew Olson's threatened allegations of improper sexual contact, the applicant was aware of the Student Discipline Mandatory Procedures for dealing with the same. Instead, the applicant telephoned the student's mother. (h) There is significant dispute between the applicant and the mother (Kerrie Olson) as to what the applicant told the mother. He says he advised of her son's threat to make allegations of improper sexual contact by the applicant. The mother denies this was raised. It is open to the Commission to find on the evidence that the applicant's allegation is a fabrication and this goes as well to his credit as a witness. It is open to the Commission to find that the applicant's claim as to the alleged student's threat of improper sexual contact, was firstly made by him after the mother lodged her letter of complaint to Mr Greenwood, the Head Teacher, Carpentry. (i) Even if the Commission accepted that Andrew Olson made the blackmail threat, the steps taken by the applicant (calling the mother and demanding a verbal apology and later a written apology) to resolve the issue were contrary to the processes he should have adopted under the student discipline guidelines. (j) The respondent accepts it is required to prove that the misconduct occurred and that the relevant standard of proof is that stated within Briginshaw v Briginshaw (1938) 60 CLR 336. (k) The applicant was not denied procedural fairness during the investigation and thereafter. The investigator was available for cross-examination, but was not called by the applicant. (l) The applicant's dismissal was not harsh, unjust or unreasonable. (m) Even if the Commission held that the dismissal was unfair, then the remedy of reinstatement should not be ordered. Any order for compensation would need to an amount that took into account and deducted the applicant's receipt of workers compensation payments. Applicant in Reply 20Mr Collins, for the applicant, filed written submissions in reply. Amongst other things, the applicant submitted that even if the Commission found that the applicant used inappropriate language, that in itself does not necessarily constitute "misconduct" which has its own and particular meaning. Mr Guest, a student summonsed by the respondent, gave evidence that it was not unusual for teachers to swear. The students, as well, were adult students in a building and construction class. It was not put to the applicant in cross-examination, that his blackmail threat allegation was a fabrication. The respondent failed to call the investigator as a witness when the inadequacies of his investigation were revealed. CONSIDERATION Reasons for Dismissal 21In late 2009, the respondent received a number of complaints about the conduct of the applicant. Complaints were made by students and by the mother of one of the students who had made a complaint. The applicant was advised of the complaints. 22Ms Hartigan appointed an external investigator to conduct an investigation into the eleven allegations/complaints against the applicant. 23The investigation process included interviews with several persons. There were informal interviews with several persons , which were documented in file notes and email messages. The applicant declined to be interviewed but provided a written response. (Ex 6, Annex 16) 24The investigator provided a report, dated 25 March 2010, into the allegations. Six of the allegations were held to be made out against the applicant: allegations 2, 3, 4, 5, 7 and 11. 25On 6 May 2010, Ms Hartigan wrote to the applicant to advise she had received the investigator's report and that she had decided to suspend the applicant from duty on pay. The suspension was instigated on receipt of additional and separate complaints which did not form a ground for dismissal. 26On 24 May 2010, Ms Hartigan wrote to the applicant advising him of her view that he had engaged in misconduct. The six allegations were then set out for his consideration and response. The six allegations are contained in three paragraphs within that letter. Paragraph one contains allegations 2, 3, 4 and 5 respectively. Paragraph two is allegation 7. Paragraph 3 is allegation 11. 27The three paragraphs are set out below and are the reasons for the dismissal of the applicant: "1. On or about 30 October 2009 while Mr Zachary Page and other students were in your carpentry class you did the following: a. Referring to Mr Page you said to the class words to the effect 'one of you put your hand up to kick him out or I will' . b. When Mr Page was late back after 'smoko break' and he was passing by you, you aggressively grabbed him on the arm. c. You called Mr Page a ' fuckwit ' and a ' dickhead' . d. As Mr Page was heading out for lunch he said to you ' if you are not going to teach us is there any point being here? and you replied ' if you don't like it go home.' 2. On or about 30 October 2009 you called a student in your carpentry class, Mr Thomas Madgewick, ' a smart arse' when you made a mistake and he corrected you. 3. You harassed Ms Liz Olsen, the mother of Crestwood High School student Andrew Olsen who was a student in your carpentry class, by telephoning her on 9 and 14 November 2009 in relation to demands for an apology for her son's alleged behaviour in class. On the first occasion, you told her that if Mr Olsen did not appear interested in the class and as he was 17 years old he could easily be removed from the course as he did not need to be there. On the second occasion, you told her (untruthfully) that your supervisor had told you that her son was required to provide a written apology to you for his behaviour or he would not be allowed to continue with his course." Onus 28The respondent accepted that it carried the onus of proof in respect of establishing that the misconduct had occurred and that the relevant standard of proof is that set out in: Briginshaw v Briginshaw (1938) 60 CLR 336. 29There were six findings of misconduct by Ms Hartigan, set out in her letter of 24 May 2010. Five findings of misconduct centred around the applicant's classroom of 30 October 2009. The misconduct findings arise from Complaint Forms submitted by several students from that 30 October classroom. The applicant denied the allegations/complaints set out in the Complaint Forms. This meant that there was a conflict in the evidence between certain students and the applicant. 30The applicant's solicitor raised issues about the students' motivation and collusion in making their complaints. 31Having considered the relevant evidence, the Commission finds that the students were not motivated to make false allegations against the applicant arising out of his telephoning the employers of these students to advise that the students had not attended class all day but had left early without permission. Most of those students had been docked wages by their employer for that early departure and hence had the possible motivation to seek revenge on the applicant and make up their allegations. The Commission rejects that motivation claim. 32The Commission also finds that the students in deciding to make their complaints did not collude in that regard, even though their complaints were made on the same day. 33Five of the six findings of misconduct arise out of complaints made by several students against the applicant. In deciding whether the alleged conduct (as opposed to misconduct) complained of by the students had taken place, the Commission was persuaded to accept that the alleged conduct had taken place because of the weight of the students' evidence against the applicant's case. The applicant did not bring any of the students (as witnesses) who were present during the class of 30 October 2009 to rebut the alleged conduct. The Investigation Process 34The respondent decided to refer the original list of eleven allegations to an outside investigator for investigation. The letter making that investigation process request came from a Wendy Whittaker, R/General Manager Services. (Ex 6, TAB 1). That letter refers to attached policy documents for assistance in the investigation. Two of those policy documents became exhibits in the proceedings before the Commission: Guidelines for the Management of Conduct and Performance (Ex 6, TAB 4) and Code of Conduct Procedures (Ex 6, TAB 3). 35As to the former policy document (Ex 6, TAB 4), Ms Whittaker's letter draws the investigator's attention to Misconduct Procedures, section 7, page 13. Paragraph 12 of section 7 is titled: Preparation of the Investigation Report. There are then listed eight factors for inclusion by the investigator in the Investigation Report. Relevantly, factor 5 requires the investigator to express a view as to whether, on the balance of probabilities, the officer or permanent employee has engaged in the alleged conduct. Factor 6 requires an assessment to be made by the investigator of whether any proven conduct constitutes misconduct. Factor 7 requires the investigator to set out a recommendation, if appropriate, on whether the matter should be treated as a disciplinary matter. 36The investigator put together his report and forwarded it to the respondent. The Investigator's Report was the subject of objection by the applicant's solicitor as to its tender. After hearing the advocates on the point, the Commission ruled in favour of the applicant's solicitor that the Investigator's Report not form part of the evidence. 37Arising out of the Commission's deliberation of the decision to be issued in this matter, the Commission sought to ascertain what policies (but in particular what paragraph/clause of any policies) had been breached by the applicant in terms of Ms Hartigan's findings of misconduct for six allegations/complaints against the applicant. Ms Hartigan's 24 May letter to the applicant stating that she had made six findings of misconduct was silent on these particulars. 38Despite the Investigator's Report itself not forming part of the evidence, the Commission turned to that report to seek out those particulars, if present. The report to some extent was of some assistance as to those particular policy breach identifications. But the Commission in reading the report was alerted to a possible serious flaw in the investigation process. This flaw turns on factors 5, 6 and 7 listed above. 39The Investigation Report duplicates the eight factors set out in the Misconduct Procedures, as (a) to (h) inclusive. (pp 5-6). The investigator deals with the original list of eleven allegations and at the end of the consideration of each allegation, he puts his finding on the evidence. This finding comes under the heading: The Investigator's View. Under this heading, he makes his balance of probabilities finding. This particular process is factor 5 of paragraph 12, Preparation of the Investigation Report, being carried out. 40The investigator finishes all the allegations in the same way. Having done so, the next, and as it turns out, the final heading in his report is: The Investigator's View On Whether The Matter Should Be Treated As A Disciplinary Matter. He holds that six of the allegations should be so treated. This process by the investigator is factor 7 being carried out. 41However, on the Commission's reading of the Investigator's Report, factor 6 has not been carried out. This is the factor that requires the investigator to "provide an assessment of whether the conduct appears to constitute misconduct if the investigator believes that the conduct as alleged has occurred". 42So, the relevant three factor process required of the investigator pursuant to the Misconduct Procedures, section 7, is that the investigator determines whether the alleged conduct occurred, on the balance of probabilities; if so, does that conduct constitute misconduct; and then express a view as to whether that misconduct is to be treated as a disciplinary matter. 43The Investigator's Report is silent on why he is of the view that his six findings of conduct having occurred, constitute misconduct . There is a positive requirement under the Respondent's Misconduct Procedures, section 7, that such an " assessment " be made by the investigator. 44The Investigator's Report includes extracts from policies, being the Code of Conduct (Ex 6, TAB 3) and the NSW TAFE Commission Student Discipline Policy. These policy extracts are found under the title, Relevant Policies And Procedures. The extracts are not married up by the investigator to his six findings of conduct having occurred in order to know which policy has been breached by that conduct finding. It is not the Commission's role to second guess how the marry up occurs, if at all. 45If the Commission's reading of the Investigator's Report is correct as to there being no assessment as to why the conduct that has been found to have occurred, constituted misconduct, then there is a knock-on effect in respect of Ms Hartigan's letter of 24 May 2010. The 24 May 2010 Letter 46Ms Hartigan wrote to the applicant by letter of 24 May 2010, advising that she had considered the Investigator's Report and that she had formed the opinion that the applicant had engaged in misconduct. Six allegations constituting her finding of misconduct were set out in that letter. But how did Ms Hartigan form the view that the applicant had engaged in misconduct, given that the investigator appears not to have made such an assessment? In that regard, the Misconduct Procedures, section 7, stipulates that a decision maker, in forming an opinion as to whether misconduct has occurred, "must" consider the Investigation Report, inter alia. (Ex 6, TAB 4, p28). The foregoing issues, presumably were not raised with Ms Hartigan under cross-examination, because the Investigator's Report was not made part of the evidence. Hartigan's Findings of Misconduct 47Irrespective of the foregoing commentary on the Investigator's Report and the apparent lack of an assessment as to why certain conduct, constituted misconduct, the Commission was not able to discern any respondent policy/procedure statement that prohibited a decision maker from making a finding of misconduct in the absence of such an assessment by an investigator. 48Be that as it may, Ms Hartigan's letter of 24 May 2010, does not set out how she came to the finding that the six listed allegations, constituted misconduct. Alleged Misconduct of 30 October 2009 49Paragraph 1 of the 24 May 2010 letter of Ms Hartigan sets out the four complaints which she held to be misconduct. 50Paragraph 1(a) states that the applicant said to the class, in respect of Mr Page, words to the effect, "one of you put your hand up to kick him out or I will". 51The Commission is unable to determine the source for Ms Hartigan's finding that these were the words uttered by the applicant - given that none of the complaints by the students assert that the applicant/teacher uttered these words in class. Their complaints (Complaint Form) are part of Exhibit 6/TAB 2. Three of the students refer to the applicant asking the class "to vote" Mr Page out of the class. (see Complaint Form of Page, Thomas and Guest) The fourth student (Madgwick) records nothing of this issue. 52Ms Hartigan, under cross-examination, said she read the investigator's report "thoroughly and (that) I consider thoroughly the information that's given to me". (Tr 09/06/11, pg 12, line 8 to 20) 53The investigator interviewed Page, Thomas and Madgwick. He had an informal interview (which were documented in file notes arising out of telephone conversations and e-mail messages) with Mr Guest (the fourth student) It is only Mr Madgwick who utters the almost identical words set out by Ms Hartigan in her 24 May letter. 54Mr Madgwick told the investigator the following: "One of you put your hand up to kick him out and I will". (Ex 6, TAB 7, pg10) (emphasis added) Ms Hartigan's wording set out in her letter of 24 May, uses the word "or" instead of "and". 55Although Page, Thomas and Guest agreed that the applicant said the words "to vote" Page out of the classroom, and not "kick" Page out, Ms Hartigan seems to have decided to use Mr Madgwick's version of the words uttered. His version was put for the first time on 4 December 2009 - several weeks after the incident. He did not refer to this incident in his Complaint Form, dated 6 November 2009. 56There is a distinction, in the Commission's mind, between voting a student out of the classroom, as opposed to kicking out which can carry a connotation of physical force being applied. 57The Commission finds, based on the evidence of Page, Thomas and Guest, that the words uttered were as follows: "to vote on whether or not a student, Mr Zachary Page should be excluded from the class". 58Ms Hartigan states that it is her opinion that her version of the words uttered by the applicant, constitute misconduct. No explicit explanation is advanced by Ms Hartigan in her 24 May letter as to why that is so. On the second page of her 24 May letter she refers to an act of parliament and its objectives which require that appropriate standards of conduct and work related performance be maintained, that the integrity and reputation of TAFE and staff members be protected and enhanced and that the public interest be protected, but otherwise no explicit explanation is advanced to support her finding of misconduct. 59The Commission read the interview transcripts of the investigator for Page, Thomas and Madgwick. Even though the "to vote" utterance was made to Page, he was not interviewed about that issue. Nor was Thomas questioned about that issue. It is only Madgwick who raises the issue and then he uses a version of words ("kick him out") not accepted by the investigator. 60In reading the transcripts of interview, the Commission sought to understand the context in which the accepted version of words was uttered. As only Madgwick raised the issue before the investigator, then his interview is the one for seeking to establish context. The investigator asked what brought on the applicant uttering the Madgwick/Hartigan version of words. Mr Madgwick gives a speculative response as to what was in the mind of the applicant and that speculation is of no assistance as to context. Mr Madgwick is further questioned on the issue by reference to Page's personality which was described as being "a bit out there". Importantly, as to context, Madgwick states that Page's conduct was "not that bad" in respect of attempting to explain the utterance by the applicant. (Ex 6, TAB 7, pp9-10) 61The Commission is not able to ascertain the context as to the words uttered. Were the words uttered in aggression or anger or in jest? The Commission does not know. The onus was on the respondent to show that these words constituted misconduct and the respondent has failed to do so. 62The second complaint against the applicant is set out in paragraph 1(b) and is as follows: "When Mr Page was late back after "smoko break" and he was passing by you, you aggressively grabbed him on the arm." 63Again, as for the first allegation above, Ms Hartigan's letter of 24 May does not cite the appropriate policy document that catches this particular type of conduct ("aggressively grabbed"). 64The investigator interviewed Page and Thomas who were the only students who gave information about this incident. Page's Complaint Form states that the applicant "grabbed me aggressively grabbed me on the arm. I told him to let go and that he's not permitted to do that." (Ex 6, TAB 2) The context for this incident is that Page and other students were late back for class after a smoko break. The applicant asked/told Page (the first student to enter the classroom) to sign the roll book acknowledging his lateness and was also told by the applicant that Page's employer would be advised of the lateness. Page said that telling his boss would cause problems and walked away from the applicant who then grabbed him. 65Mr Thomas' Complaint Form of 6 November 2009, stated that the applicant "laid a hand on a student in the class...." (Ex 6, TAB 2) His original complaint does not use the term, "aggressively grabbed". In the interview with the investigator on 4 December 2009, Thomas said that the applicant grabbed Page and pulled him back. He advised he could not say if the grab was done with force. He also stated that when Page told the applicant that the latter was not allowed to touch Page, the applicant responded, "I'm sorry, I'm sorry for touching you". (Ex 6, TAB 6, pp8-10) 66Mr Page was cross-examined and his evidence was to initially say that the grabbing was not an assault but in the same answer said he was grabbed pretty damn hard and "come to think about it, it was pretty much assault". (Tr 07/06/11, p58, line 31-42) 67The applicant denied this allegation. 68Given the foregoing evidence of Page and Thomas, the Commission concluded on the balance of probabilities, that the applicant grabbed Page and according to Page, did so aggressively. 69Ms Hartigan's letter of 24 May is silent on what policy was breached by this conduct and why that conduct constituted misconduct. Ms Hartigan's witness statement is silent, as well on this specific policy breach issue. 70Ms Hartigan's witness statement refers to the Code of Conduct but no specific policy section is identified as dealing with physical contact between teacher and student. The Commission's reading of the Code of Conduct identifies a section on this issue: Relationships Between Staff And Students (Ex 6/TAB 3). Paragraph 29 of that section is headed: Physical contact with students. Paragraph 29.1 reads: "Staff must not engage in conduct that could assault a child, young person or student. Assault generally involves either hostile or reckless application of force or the threat of some force, regardless of whether harm to the child, young person or student has been established". 71If the foregoing extract represents the policy breached by the applicant by his conduct finding of having "aggressively grabbed" a student, then in what way does "aggressively grabbed" marry up with "hostile or reckless application of force"? The witness statement of Ms Hartigan is silent on the point - let alone her letter of 24 May 2010. 72The student Page who made the initial complaint of being, "aggressively grabbed", said under cross-examination that it was "pretty much assault" but did not elaborate further in order to determine if his use of the word "assault" translated into "hostile or reckless application of force". 73The Commission has found that the conduct of "aggressively grabbed" alleged by Page and supported by Thomas, took place. The Commission was not taken to the policy said to be breached by this conduct. The Commission believes that the relevant policy on assault is paragraph 29 of the Code of Conduct. Evidence was not provided to show that "aggressively grabbed" equated to "hostile or reckless application of force" in order to meet the definition of "assault". However, the evidence of Page was that he was grabbed "pretty damn hard" and the context surrounding that incident, including the immediate contrition, leads to the Commission finding that the conduct by the applicant was inappropriate and a matter for the head teacher to take up with the applicant. 74The third complaint is set out in paragraph 1(c) as follows: "You called Mr Page a "fuckwit" and a "dickhead". 75The applicant denied this allegation. 76The Complaint Form of Page dated 6 November 2009, sets out the above assertion. The Complaint Form of Guest, same date, records the applicant using the same language but does not identify the student. In his interview with the investigator on 4 December 2009, Thomas identified the student as Page. (Ex 6, TAB 6, pg 14) Thomas said nothing of this issue in his Complaint Form but in his interview advised that the applicant had used the above two terms to Page. (Ex 6, TAB 6, pg10) 77Ms Hartigan's letter of 24 May does not identify which policy has been breached by this allegation. 78In her witness statement, Ms Hartigan refers to the manner in which the applicant spoke to Page and said that that manner "was inconsistent with the duty of care to students, and the Code of Conduct requirement to ensure work place communication is professional and respectful to students and colleagues". (Ex 5, para 35) There is no referencing to the section/paragraph of the Code of Conduct being sourced by Ms Hartigan. The Commission's reading of the Code of Conduct, has identified two paragraphs that arguably would be on point: "Professional and appropriate behaviour" (paragraph 16.8) and "Respect for people and property" (paragraph 17.1). 79The Commission finds, on the balance of probabilities, that the applicant engaged in the conduct as alleged: he called Page a "fuckwit" and a "dickhead". 80The Commission was given evidence that the swearing by the applicant was not restricted to him. Mr Guest stated that students swear from "time to time", and that "it happens" that TAFE teachers swear. (Tr 09/06/11, p34, line 1 to 20) Assuming that the two policy references referred to above are on point, the Commission holds that the use of the term "fuckwit" to label a student is inappropriate and more than that, it would arguably constitute misconduct given its belittling and obscene nature. This incident was a matter where the respondent could decide to apply disciplinary action but not that of dismissal. The applicant's length of service and this one-off incident mitigates against dismissal. The use of the term "dickhead" is inappropriate, but is not viewed by the Commission as constituting misconduct because it is not used in an obscene way. 81The fourth allegation is paragraph 1(d) and is as follows: "As Mr Page was heading out for lunch he said to you "if you are not going to teach us is there any point being here?" and you replied "if you don't like it go home" ". 82Ms Hartigan's letter of 24 May does not explain why this allegation constitutes a finding by her of misconduct. 83The applicant was written to by letter of 22 December 2009 by the investigator. This correspondence set out the eleven allegations against him (Ex 6, TAB H). The applicant responded in writing (Ex 6, TAB 16). The applicant denied this allegation (see second last page). 84Ms Hartigan's witness statement does not advise which policy was breached by this allegation and does not advise why this allegation, if true, constitutes misconduct. Accordingly, the respondent has not made out its case that this conduct constituted misconduct. However, it may have been an inappropriate response to give by the applicant. As such, this matter could have been dealt with, other than by dismissal, by say the head teacher conferring with the applicant. 85The fifth allegation, which Ms Hartigan found to be misconduct, is set out at paragraph 2 and is that the applicant called a student (Thomas Madgwick) in his carpentry class, "a smart arse" when the applicant made a mistake in the classroom and the student corrected him. This complaint was lodged by Madgwick in his Complaint Form which also recorded that the foregoing term was said in an "aggressive tone". (Ex 6, TAB 2) 86In his interview of 4 December 2009, Madgwick stated that he took the foregoing term "as a joke straight up but I don't know, I just thought after the day I was pretty annoyed. Maybe I took it a bit far but I don't know". Under further questioning as to whether it was said as a joke, he responded, "Well, I thought not aggressive but sort of assertive, sort of try to show me who's boss as well". Further he advised it was said "like loud but not aggressive" and the applicant was not smiling. (Ex 6, TAB 7 pp6-7) 87The Commission notes that in his Complaint Form, Madgwick described the foregoing term as spoken in an "aggressive tone" but in his interview, said not aggressive but assertive. 88The applicant denied this allegation. 89The respondent's final submissions do not state that the complaint of Madgwick was witnessed by any of the other students. It seems then that it is a case of Madgwick asserting this complaint (the "smart arse" conversation) and the applicant denying the conversation took place. 90Ms Hartigan's letter of 24 May 2010, does not explain why she held this alleged conduct to be misconduct. Her witness statement is also silent on that issue and silent as to what policy was breached. 91This allegation, as already stated, is one where no witnesses are involved. However, the Commission is inclined to accept that the incident occurred on the basis that the Commission has accepted the accounts of various students as to their complaints against the applicant. Having made that decision that the conduct occurred, as claimed by Madgwick, the issue then is whether it constitutes misconduct. No evidence has been provided by Ms Hartigan as to how she determined that it was to be labelled as misconduct. 92The Commission makes the same deliberation for this matter as it did for the other words, "fuckwit" and "dickhead". The Commission finds that the use of this term is inappropriate but does not constitute misconduct, as it is not used in an obscene way. Again, it is a matter not warranting dismissal, but dealt with by say, the head teacher conferring with the applicant, given his lengthy service as a teacher and the one-off nature of the day, out of a twenty-six year career. 93The Commission refers to the Respondent's Submissions at paragraph 4.10 wherein it is asserted that "Mr Pace accepts that if the allegations (being the five allegations pertaining to 30 October, - the Commission) are established to be true, such conduct would amount to a breach of the Code of Conduct". A transcript reference is given: "T.41 (6/6/11)" 94The Commission's reading of the transcript shows that Mr Pace (the applicant) was not being asked about all five allegations falling within the events of 30 October. He was being asked about the words, "fuckwit", "dickhead" and "smart arse" and these words of alleged misconduct fell within two of the five allegations of misconduct. The other three allegations went to (a) one of you put your hand up to kick him out or I will, (b) aggressively grabbed Mr Page; and (c) if you are not going to teach us.... On the Commission's view of the respondent's claim that Mr Pace had conceded he had breached the Code of Conduct, if the allegations are true, the Commission finds that he was only making a concession for two of the five allegations of misconduct. Further, his concession scenario went only to breaches of the Code of Conduct. He was not asked that if he had breached the Code of Conduct, then he had also engaged in misconduct, per some policy provision. Alleged Telephone Misconduct 95The sixth allegation is set out at paragraph 3 and arises from the applicant telephoning a mother (Ms Olson) of a student (Andrew Olson) on 9 and 14 November 2009. 96Ms Hartigan's letter of 24 May 2010 to the applicant states that the applicant "harassed" the mother on those two dates by telephoning her and demanding an apology for her son's alleged behaviour in class. The letter then says, "On the first occasion (9 November), you told her that if Mr Olson did not appear interested in the class and as he was 17 years old he could easily be removed from the course as he did not need to be there. On the second occasion (14 November) you told her (untruthfully) that your supervisor had told you that her son was required to provide a written apology to you for his behaviour or he would not be allowed to continue with his course". Although not stated by Ms Hartigan in the letter, the supervisor referred to above was Mr Chris Greenwood, Head Teacher, Carpentry. 97Ms Olson contacted Greenwood by telephone on Monday 16 November 2009 and followed up with her letter to him by same date. Her letter begins with "...regarding harassment from Mr Pace (the applicant)". (Ex 6, TAB 2) 98Ms Olson's letter details her telephone conversations with the applicant. In the first conversation of 9 November, she informed the applicant that she would discuss the concerns raised by the applicant with her son. As to these concerns, "I (Ms Olson) assured him (the applicant) that Andrew would apologise for the inappropriate behaviour and language in his class. Mr Pace (the applicant) appeared to accept this resolution". Ms Olson then states that she spoke to her son and "explained to him that regardless of the situation his language was inappropriate and he would apologise to Mr Pace". She records the son raising his own concerns as to matters raised by the applicant in the classroom with students. 99As to the second telephone call (Saturday, 14 November), Ms Olson describes this as a "disturbing phone call" from the applicant who informed her that he had left phone messages (since 9 November) for her to contact him. Ms Olson was unaware of these messages. The applicant now required a written apology from her son otherwise he would not be allowed into his class on the Monday. 100Ms Olson asked why the agreed verbal apology was no longer the case. The applicant, she said, responded that his supervisor (Chris Greenway - sic. Greenwood) said a written apology was required or else the son would not continue with his course. Elsewhere she said that the applicant became "more agitated" for the written apology but that if a verbal apology was made, then it had to be in public to which Ms Olson responded in the negative as she saw that as a public humiliation. The applicant, she said, then called for a public apology in front of himself and Greenway (Greenwood) to which Ms Olson agreed. But she then records that the applicant demanded a written apology. Eventually, Ms Olson hung up the phone. 101Ms Olson's letter finishes with her concerns about the whole incident being "extremely disturbing" and she is concerned that the applicant will target, harass and bully her son. (Ex 6, TAB 2) 102Ms Olson was interviewed by the investigator on 4 December 2009. (Ex 6, TAB 9) 103The investigator wrote to the applicant by correspondence of 22 December 2009 asking for a response to the original list of eleven allegations, which became six findings of misconduct by Ms Hartigan in her letter of 24 May 2010. The applicant responded in writing. (Ex 6, TAB 16) 104The applicant's response deals with firstly the events in the classroom of 9 November 2009 (involving amongst other students, Andrew Olson) and the subsequent telephone calls to Olson's mother. 105As to the classroom events, he states that three students were swearing in class and were 30 minutes late back from the break. Another student, Andrew Olson was late to class and late back from the break. He did not appear to carry out the requested work or read the worksheet. He played around and behaved in a disruptive way. Andrew Olson accused another student of having smoked marijuana during a toilet break and he, Andrew Olson, pulled his pants down and exposed his underpants to other students about three times. The applicant said he spoke to Andrew Olson about his behaviour. 106One of three students who had been swearing, started hitting a bottle with a sledge hammer during the practical exercise causing distress to the other students and the applicant. That occurred about 5.30pm. The applicant then went to see the Head Teacher Mr Britton in his office at about 5.35pm and reported the incident. Mr Britton told the student in question to sit outside his office. 107At approximately 5.55pm on 9 November (Monday), the applicant addressed the classroom about the learning attitude of students and advised he would be contacting some of the school principals of the classroom students. Andrew Olson is reported to have interrupted the applicant and said, "If you ring my principal I will state that you Mr Pace (the applicant) had touched me, that you had touched my bottom". The applicant recorded that he was disgusted when threatened with such false allegations. 108The applicant dismissed the class, went to his office and then Mr Britton's office. The student was still sitting outside Mr Britton's office at 6.00pm. The applicant told the student to go home as the class had finished. 109The applicant then stated that there was no Head Teacher in the section available for him to speak to at that time in order to report the Olson incident. 110He said he was shocked and upset by what he saw as an attempt to blackmail him not to report a breach of student discipline by a threat of falsely charging the applicant with sexual misconduct. The threat was particularly distressing to him in the context of a former teacher of the section some years ago, unknown to other teaching staff at the time, had committed sexual misconduct with minor students and later committed suicide when those crimes were exposed. 111He said the threats of Olson made him feel distressed, upset and anxious. He decided to telephone Olson's parents. 112The applicant agreed he telephoned Ms Olson on 9 and 14 November 2009. As to the 9 November phone call, he disagreed with Ms Olson's account that the call concerned the son's language or any damage to classroom equipment. He phoned to report the son's threat of making an untrue allegation of sexual misconduct in regards to the applicant contacting the son's school principal. He requested an apology which, he said was initially resisted in a hostile tone but eventually she agreed that the son would apologise before the next class in front of the Head Teacher. The phone conversation ended then. 113The applicant stated that another teacher, Brett Russell, was present during this 9 November telephone conversation with Ms Olson. 114On reflection, the applicant decided on a written apology. He recalled a recent incident in September 2009 where a written apology had been given by a student concerning the student engaging in an inappropriately sexualised behaviour in class (miming his performing a sexual act on the applicant while the applicant's back was turned). That incident had been dealt with by the student's school principal by having the student and his parents in attendance, with the student providing a written apology and the student being advised why what he did was wrong. 115The applicant telephoned Andrew Olson's school principal the next day, Tuesday 10 November but the school principal was unable to take the call. The applicant spoke to the school principal on Wednesday, 11 November. 116The school principal for Andrew Olson is Mr Stephen Brewer. The investigator spoke over the phone to him in March 2010. The investigator emailed Brewer, setting out a summary of their phone discussion. Importantly, for a reason to be explained later, this email confirms that the applicant raised with the school principal, that Andrew Olson "had threatened to report him (Mr Pace) for touching him". (Ex 6, TAB 13) 117The applicant attempted to speak with Ms Olson again but was only able to leave messages with (presumably) one of the children. Not having received a return phone call, he phoned again on the following Saturday morning, 14 November and spoke with Ms Olson. 118As to this conversation, the applicant said he wanted a written apology. He denied that he said that Greenwood required the apology to be in writing or that it was a pre-requisite to her son's continuing the course. He denied that he suggested that the apology be given in front of the Head Teacher because that had already been agreed in their first conversation of 9 November. He agreed he gave Greenwood's details to Ms Olson upon her request. He denied he wanted to publicly humiliate her son. Their conversation was terminated. 119The applicant denied that he harassed Ms Olson. He said he accepted that he would have sounded, not agitated, but at least upset by the incident, by Ms Olson's rejection of what seemed to the applicant to be a reasonable request and by Ms Olson's hostile and dismissive tone. 120Ms Hartigan's letter of 24 May says that the applicant "harassed" the mother through telephone calls on 9 and 14 November, in relation to demands for an apology. It seems, then that the misconduct found by Ms Hartigan is the harassing nature of the telephone calls of 9 and 14 November. Ms Hartigan does not cite in the letter which policy document was breached by the applicant's conduct. 121Although it seems that the misconduct finding by Ms Hartigan is based on "harassment", the cross-examination of Ms Hartigan elicited a different response. Thus, the misconduct was the making of the phone calls and hence making contact with a parent of a student. The content of the phone conversations was not the issue. (Tr 09/06/11 - p14, lines 19-30) 122Ms Hartigan's witness statement added a new matter to this telephone incident, but one which did not form part of her six findings of misconduct set out in her letter of 24 May 2010. Ms Hartigan deposed that in contacting Ms Olson, the applicant breached the Privacy and Personal Information Protection Act, through his disclosing information about a TAFE student to a third party, even though it was a disclosure to the student's parent. (Ex 5, para 37) The Respondent's Submissions does not raise this matter as an issue to be addressed by the Commission and accordingly, it is not addressed. 123The allegation then against the applicant, according to Ms Hartigan and for which a finding of misconduct is found, is the act of the phone calls and hence making contact with a parent of a student. Ms Hartigan did not identify which policy was breached by the applicant's conduct. The Commission was not taken to a policy document in which it is stated that there is a prohibition on teachers from contacting a parent(s) of a student. The respondent, accordingly, has not made out its onus of proving that misconduct occurred. 124Even if there was such a policy, the circumstances surrounding the making of the phone calls would need to be considered in terms of any mitigation defence. There is a policy requirement for a decision maker (that is, Ms Hartigan) to consider "mitigating or extenuating circumstances if available at this stage" (Section 7.8.3.4 - Guidelines for the Management of Conduct and Performance: Ex 6/TAB 4) The evidence before the Commission has elicited the following mitigating circumstances: (a) The threat by the student of reporting him on a false charge of sexual misconduct, shocked and upset the applicant. He said the threat was particularly distressing to him in the context of a former teacher of the section some years ago, who had committed sexual misconduct with minor students and later committed suicide when those crimes were exposed. (b) Only two months before the November telephone calls with Ms Olson, a student engaged in an inappropriately sexualised behaviour in class (miming his performing a sexual act on the applicant while the applicant's back was turned). (c) The applicant said his first phone call with Ms Olson took place in the situation where another teacher was present during the phone conversation. This teacher was identified by the applicant as Brett Russell. This teacher was not questioned as to his knowledge about the applicant's conduct during his telephone conversation with Ms Olson. (d) The Respondent's Submissions stated that the "so-called blackmail allegation only surfaced after Ms Olson forwarded her letter of complaint to Mr Greenwood (the applicant's supervisor) on 16 November 2009". Part of the evidence gathered by the investigator, contradicts this proposition. As already stated in this Decision, the applicant telephoned the student's school principal on Tuesday 10 November but the school principal (Stephen Brewer) was unable to take the call. The applicant telephoned the following day, Wednesday, 11 November and spoke to Mr Brewer who confirmed that the applicant raised with him that a student "had threatened to report him (the applicant) for touching him (the student)". (Ex 6, TAB 13) This evidence was gathered by the investigator in his dealings with Mr Brewer. This evidence shows that the applicant had raised this issue before the second phone call with Ms Olson and thus before Ms Olson forwarded her letter of complaint to the applicant's supervisor, Mr Greenwood. (e) The foregoing evidence that the applicant raised the allegation of the threat of sexual misconduct, between the first and second phone calls, with the school principal, is evidence of a contemporaneous kind that assists his claim that he raised this threat with the student's mother in the first and second phone calls. This contemporaneous evidence is significant given that the respondent relies upon the mother's denial that the applicant raised the threat with her during these conversations. The Respondent's Submissions on this issue asks the Commission to conclude that the applicant's threat allegation is a fabrication on his part and then raises the issue of credit as a witness against the applicant because of that alleged fabrication. But the applicant's contemporaneous evidence leads the Commission to the opposite conclusion. Summary of Findings of Misconduct 125Ms Hartigan's letter of 24 May 2010 states that she has found that the applicant had engaged in misconduct. Her letter lists six findings of misconduct. 126The Commission pointed out that Ms Hartigan's letter does not explain how she came to the view that the six listed conduct findings, constituted misconduct. 127The Commission pointed out that Ms Hartigan's letter is silent on what policy and what section, paragraph, or clause of that policy has been allegedly breached by each of her findings of misconduct. This caused the Commission itself to go searching for a policy (section, paragraph or clause) to marry up with each finding of misconduct. This was speculative marrying up and then not successful for all of Ms Hartigan's findings of misconduct. As to not being able to marry up a finding of misconduct against a policy provision, what policy states that it is prohibited for a teacher "to vote" a student out of class and to do so, is misconduct? 128During the Commission's trawling through the respondent's policies, it came across the following clause in the Code of Conduct (Ex 6, TAB 3): "10. Breaches of the Code 10.1 Serious breaches of this code by staff will be deemed misconduct and may lead to disciplinary action....." What is meant by the term, "Serious breaches"? No explanation is provided by the policy and it would seem that its meaning is subjective - in the eyes of the decision maker. 129As to the first finding of misconduct by Ms Hartigan ("to vote" Page out of the class), the Commission held that the respondent had not established this finding of misconduct. 130As to the second finding of misconduct by Ms Hartigan ("aggressively grabbed"), the Commission held that the finding of misconduct had not been made out by the respondent but the Commission held that the applicant had engaged in such conduct and it was inappropriate. 131As to the third finding of misconduct by Ms Hartigan (called Page a "fuckwit" and "dickhead"), the Commission held that the finding of misconduct had not been made out by the respondent but the Commission held that the applicant had engaged in such conduct and it was inappropriate. 132As to the fourth finding of misconduct by Ms Hartigan ("if you (Page) don't like it go home"), the Commission held the applicant's response to be inappropriate. 133As to the fifth finding of misconduct by Ms Hartigan (called Madgwick "a smart arse"), the Commission held that the finding of misconduct had not been made out by the respondent but the Commission held that the applicant had engaged in such conduct and it was inappropriate. 134As to the sixth finding of misconduct by Ms Hartigan (the act of phoning the mother of a student), the Commission held that the finding of misconduct had not been made out by the respondent. UNFAIR DISMISSAL CLAIM 135The applicant claimed that he had been unfairly dismissed on two grounds: procedurally and substantively. Procedural Unfairness 136The Applicant's Submissions assert that the denial of procedural fairness arose out of the applicant's submissions being ignored and the investigation flawed and limited. There is no further explanation for the Commission to consider in support of the foregoing proposition. 137Putting aside that there was no further explanation, the Commission makes its own observations on this procedural fairness issue. 138The Investigator's Report was flawed on the Commission's reading of it. As already advised in this Decision, the Commission formed the view that the investigator had not carried out one of the factors required in an investigation: provide an assessment of whether the conduct, constitutes misconduct. This is factor (f) as set out in the Investigator's Report. Although that assessment seems not to have been carried out, it did not render the investigation process null and void. That assessment factor could be cured by the decision maker setting out her reasoning as to why she found that misconduct had occurred - that is, make her own assessment. 139Ms Hartigan did not carry out that assessment process. She merely asserted in her letter of 24 May that she had made findings of misconduct. This meant that the applicant was not aware of the reasoning for the finding of misconduct and could not respond to that reasoning process. That this would have been an important issue for the applicant, is demonstrated by Ms Hartigan's letter of 24 May 2010, in which she advised the applicant that she was contemplating giving him a direction to resign his employment. The applicant's livelihood was on the line and he was entitled to know her reasoning for finding that the applicant had engaged in misconduct. 140Further to the foregoing, Ms Hartigan's letter does not identify which policy (section, paragraph or clause) has been breached in respect of her finding of misconduct. Ms Hartigan's letter extracts the objectives from Part 6A of the Technical and Further Education Commission Act 1990 but without explanation as to how any one or more of those objectives apply to her findings of misconduct. It can be argued that the first objective, "To maintain appropriate standards of conduct...." covers the issue of swearing in the class by the applicant. But that only makes out a case that the applicant has engaged in an in appropriate standard of conduct and does not, of itself, address the issue/the reasoning as to why that conduct, constitutes misconduct. 141For the reasoning set out above, the Commission finds that the applicant was denied procedural fairness. Substantive Unfairness 142Ms Hartigan's letter of 24 May sets out six findings of misconduct. The Commission concluded, after a consideration of the evidence, that the respondent had not satisfied the onus of proof upon it, to establish that the misconduct had occurred for five of the six findings of misconduct by Ms Hartigan. 143As to that one finding of misconduct, it was not a matter warranting dismissal, given the applicant's lengthy service and being a one-off incident in a twenty-six year career. 144Given that the respondent has not made out its findings of misconduct to warrant dismissal, the Commission finds that the dismissal of the applicant was substantively unfair. In particular, the Commission finds that the dismissal was unjust and harsh: Byrne v Australian Airlines Ltd (1995) 185 CLR 410. The dismissal was harsh because the applicant was not guilty of the misconduct on which the respondent acted. The dismissal was harsh in its consequences for the personal and economic situation of the applicant. The applicant has been a teacher in various capacities since 1984 and full time since 1986 as a building and construction teacher. (Ex 3) Clearly the dismissal has deprived the applicant of a long standing career and that livelihood. The applicant has a dependant wife and three dependant children, aged 18, 15 and 13 (as at 3 February 2011). (Ex 4, Workers Compensation Commission, Certificate Of Determination, pg 15) That Certificate Of Determination also gives an insight into the applicant's personal circumstance arising out of his work situation. It states: "There is no dispute that Mr Pace is suffering from a chronic depressive disorder and panic disorder...." and "There is no dispute that Mr Pace's psychological injury is work-related and that his employment with the respondent was a substantial contributing factor to that injury". (pg 11) That same document sets out the applicant's work related incidents giving rise to the quoted findings above and these incidents include those covered by the misconduct findings of Ms Hartigan. 145The Commission has also found that the dismissal was procedurally unfair and does so on the ground of being harsh. That is, the respondent per Ms Hartigan has failed to "properly apply" its policy to make an assessment as to why certain conduct constituted misconduct, in order that the applicant could know the reasoning for the findings of misconduct and respond accordingly, given that his livelihood was on the line: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389. 146Although the Commission found that there was one finding of misconduct sustained by the respondent but not warranting dismissal, the Commission also found that some of the conduct engaged in by the applicant was inappropriate: the aggressive grabbing of Mr Page and language (smart-arse, fuck-wit and dickhead). If the respondent had of determined to dismiss the applicant on these inappropriate matters, the Commission would still find the dismissal harsh, having regard to all the circumstances of the case. Thus, for example, the inappropriate conduct is confined to the events of a single day when he was a substitute teacher and he has a long standing career as a teacher. Remedy 147The Applicant's Submissions (filed 8 July 2011) sets out the applicant's remedy as reinstatement with a suitable return to work plan to be arranged by the respondent's Workers Compensation insurer, in consultation with the applicant's doctor and the respondent, in the usual way. 148The respondent was opposed to the remedy of reinstatement in the event the Commission found the dismissal unfair. The remedy of reinstatement (and re-employment) was opposed on the ground of practicability of reinstatement, as given by Ms Hartigan in her witness statement. (Ex 5, paras 52 to 55) 149Ms Hartigan's witness statement raises two objections to the applicant's unsuitability for re-instatement or re-employment. One objection goes to his medical health (physical and mental). The other objection goes to "Mr Pace appears to have ongoing difficulty dealing with students..." As to this objection, Ms Hartigan's findings of misconduct that went to the applicant's adverse interaction with students, was confined to one day out of a twenty-five year teaching period. As to her first objection on medical grounds, Ms Hartigan states that if the applicant was reinstated, it is likely she would be required to have him referred for a medical examination to determine his fitness to continue in employment as a carpentry teacher. As to that objection, that is not an impediment to an order for reinstatement. It is a matter for Ms Hartigan as to whether she exercises that solution. If she did so, then her recourse to a medical solution for the applicant is a variant of the medical solution put on behalf of the applicant for his reinstatement - return to work program. 150Having considered the evidence on this issue of practicability of reinstatement, the Commission is not persuaded to deny the remedy of reinstatement on this ground. 151The Commission will issue orders for the reinstatement of the applicant and continuity of employment. ORDERS The Commission hereby makes the following Orders: (a) Mr Alf Pace is to be reinstated by the managing Director, TAFE Commission into his former position occupied by him immediately prior to his dismissal. (b) The employment of Mr Pace is to be taken not to have been broken by his dismissal. (c) The orders of the Commission shall take effect within twenty-eight days from the date of this Decision. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2011