Campbell v Dept. Education and Communities. [2012] NSWIRComm 1022

Industrial Relations Commission New South Wales Medium Neutral Citation: Campbell v Dept. Education and Communities. [2012] NSWIRComm 1022 Hearing dates: 28/05/12,29/05/12,30/05/12,01/06/12,27/07/12,02/08/12,09/08/12,10/08/12,24/08/12 Decision date: 11 September 2012 Before: Ritchie C Decision: Catchwords: High school teacher- application for unfair dismissal.-allegations of misconduct involving female students-unsupervised, unofficial out of school outings,- failure to follow directions- inappropriate electronic communications between applicant and students- applicant given opportunities to respond- decision taken to terminate. Commission found that applicant had breached the Code of Conduct and Excursions Policy and had failed to follow reasonable direction not to contact female students. Found termination not harsh, unreasonable or unjust. Legislation Cited: Industrial Relations Act, 1996 Teaching Service Act,1980 Teaching Service Regulations Commission for Children & Young People Act, 1998 NSW Ombudsman 1974. Cases Cited: NSW Teachers federation ( on behalf of Debra Balsters) and NSW Dept. of Education and training (2008)NSWIRComm32 Category: Principal judgment Parties: Applicant: Mr L Campbell Respondent: NSW Department of Education & Communities. Representation: Mr A Britt for the respondent. Mr S Sapuppo for the applicant. File Number(s): IRC 1764 of 2011

DECISION

Background 1Mr Leon Alexander Campbell (the applicant) filed an unfair dismissal claim under section 84 of the Industrial Relations Act, 1996 against the Director-General Department of Education and Communities (the respondent) on 17 November 2011. 2The applicant had received correspondence on 28 October 2012 from the respondent informing him that an investigation was being conducted by the Employee Performance and Conduct Directorate (EPAC). 3In correspondence dated 12 November 2010, the applicant received correspondence stating that further information had been received by EPAC in relation to the allegations that he may have engaged in an improper relationship with Year 11 female students Wendy Peng and Kitty Wang, in particular in relation to the alleged nature and frequency of his contact with the girls outside of school hours without the knowledge and approval of his principal. The applicant was directed to undertake non-teaching alternative duties at the North Sydney Region Hornsby Office. 4The applicant had received correspondence from the respondent dated 21 March 2011 which detailed allegations against the applicant which stated occurred whilst he was employed as an English Second Language (ESL) English Teacher at Asquith Girls High School during 2010. 5The applicant responded to the allegations in correspondence dated 29 April 2011.In summary he denied the allegations as framed and as implied. 6The applicant received correspondence dated 13 September 2011 from the respondent stating what findings had been made with respect to the allegations, the five possible disciplinary actions and the opportunity to have an interview with a representative of the respondent before any final decision was made. The original allegations, which included attachments, made against the applicant were: Allegation A on a number of occasions in the first half of the school year, you informed a number of your then Year 11 ESL female students that you were organising a number of out of school hours activities and inappropriately informed the students that the activities you were organising would not require the permission or knowledge of the principal, and not require the students' guardians to complete permission slips, as this would create unnecessary barriers and problems. Allegation B you developed and maintained inappropriate personal relationships as opposed to professional relationships with a number of female students in that: 1. in relation to a then Year 11 female student, Ms Wendy Peng, you: a) in or about October, met with her on number of occasions around midday on a Sunday and spent an inappropriate amount of time alone with her, while taking private lessons in Chinese from her in cafe bars and/or restaurants in or around the Hornsby Westfield Shopping Centre, for approximately two hours, including but not limited to: (i) attending the "Blu cafe bar restaurant" with her; (ii) attending a coffee shop in or around the "Borders Books" shop with her; b) paid an amount of $20.00 to Ms Peng for her to provide you with lessons in Chinese at these meetings; c) around midday on a Sunday in October, after meeting Ms Peng at the "Borders Books" shop in Hornsby Westfield Shopping Centre you: (i) attended the "Blu Cafe bar restaurant" with her and had a coffee with her; then (ii) without her prior knowledge and that of her guardian, drove Ms Peng in your motor vehicle from Hornsby Westfield Shopping Centre to a bush walking track at or near Turramurra; then (iii) took her on a bushwalk; then (iv) took her to a waterfall where you held her wrist as she climbed with you by the use of a rope; (v) after spending a number of hours on the bushwalk, drove her in your motor vehicle to her residence at 4 Lochinvar Place, Hornsby; d) around midday on another Sunday in October, after meeting Ms Peng at or around Hornsby Westfield Shopping Centre you: (i) attended a coffee shop in or near the "Borders Books" shop with her and had a coffee with her; then (ii) without her prior knowledge and that of her guardian, drove Ms Peng in your motor vehicle from Hornsby Westfield to a bay in or near Pittwater; (iii) made inappropriate physical contact with her by carrying her in "piggy back" fashion on your back, with her arms and legs wrapped around you, through the water to a small dinghy; then (iv) rowed in the dinghy with her to a yacht where you then spent some time alone with her; then (v) took her downstairs into the cabin of the yacht where you spent some time alone with her; then (vi) consumed alcohol in her presence in the form of one or more beers; then (vii) rowed in the dinghy with her from the yacht to a mooring and again made inappropriate physical contact with her by carrying her in a "piggy back" fashion on the front of your torso, with her arms and legs wrapped around the front of you, through the water and onto the beach; then (viii) took her into a nearby restaurant where you spent some time with her; (ix) drove her in your motor vehicle to her residence at 4 Lochinvar Place, Hornsby, at or around 6.00 pm; e) in relation to (d) (iv) - (vi) above, during the time spent on the yacht, you had inappropriate conversations with Ms Wang, beyond the expectations of a professional teacher-student relationship, or a mentoring relationship, and divulged information about: (i) your mother; (ii) your siblings; (iii) your daughters; (iv) your marital situation, including that you had been divorced; (v) your girlfriend/s; f) around midday on another Sunday in October, after meeting Ms Peng at or around Hornsby Westfield Shopping Centre you: (i) attended a coffee shop in or near "Borders Books" with her and had a coffee and meal with her; (ii) without her prior knowledge and that of her guardian, drove Ms Peng in your motor vehicle from Hornsby Westfield to the area known as "Sydney's northern beaches"; (iii) took Ms Peng to a number of these beaches, including but not limited to Palm beach, and then took her for walks along the beaches; (iv) at one of the beaches, came into physical contact with her by placing your arm around her shoulder; (v) without her prior knowledge and that of her guardian, drove Ms Peng in your motor vehicle from the beach to a nearby house, where you spent time alone with her; then (v) after you entered the unoccupied house, you took Ms Peng around to the backyard and walked with her around the garden and showed her the flowers growing in the garden; then (vi) drove Ms Peng in your motor vehicle to a restaurant where you spent some time with her having a meal; (ix) drove her in your motor vehicle to her residence at 4 Lochinvar Place, Hornsby, at or around 6.00 pm; g) on a number of occasions during October, sent inappropriate text messages to Ms Peng's mobile telephone, including but not limited to saying words to the effect of: (i) "another beautiful day for our bushwalking"; (ii) "thanks for the lesson, it's been a pleasure talking to you"; (iii) "another beautiful day for us beautiful people" - with a "smiley face"; (iv) "thanks for your patience"; (v) "nice breast"; h) during 2010, had inappropriate conversations with Ms Peng, beyond the expectations of a professional teacher-student relationship, or a mentoring relationship, including but not limited to: (i) divulging information about your marriage and how you became divorced; (ii) talking to her about your children; (iii) informing her that you were visiting China at the end of 2010, and would contact her after you arrived, with a view to visiting her at her home in the Shanxi province; i) engaged in the conduct alleged in 1 (a) - (h) without the express permission or knowledge of your principal; 2. in relation to a then Year 11 female student, Ms Kitty Wang, you: a) in or about September and October, met with her on several separate occasions in the late afternoon on a weekday and spent an inappropriate amount of time alone with her, while taking private lessons in Chinese from her in cafe bars and/or restaurants in or around the Hornsby Westfield Shopping Centre, for approximately two hours, including but not limited to: (i) attending the "Blu cafe bar restaurant" with her; (ii) attending the "Thyme Square Cafe bar restaurant" with her; (iii) walking with her to either Hornsby railway station or outside of the Hornsby RSL Club after some of these meetings; b) paid an amount of $20.00 to Ms Wang for her to provide you with lessons in Chinese at these meetings; c) in or about September and October, you consumed alcohol in the form of one or more beers in the presence of Ms Wang while attending the "Blu cafe bar restaurant" with her; d) in or about September and October, you consumed alcohol in the form of one or more beers in the presence of Ms Wang while attending the "Thyme Square café bar restaurant" with her; e) on or about 23 September, after attending the "Blu cafe bar restaurant" in the late afternoon on a weekday with Ms Wang, you: (i) at around 6.00 pm, without her prior knowledge, took her for a meal at a nearby Chinese restaurant, namely "Tims BBQ Restaurant", and spent an inappropriate amount of time alone with her, while having dinner with her; (ii) after having dinner with her, walked with her to Hornsby Railway Station; f) in or about October, after attending either the "Blu Cafe bar restaurant" or the "Thyme Square cafe bar restaurant" in the late afternoon on a weekday with Ms Wang you: (i) at around 6.00 pm, without her prior knowledge, took her for a meal at a nearby restaurant, namely "Tims BBQ Restaurant", and spent an inappropriate amount of time alone with her, while having dinner with her; (ii) after having dinner with her, walked with her to Hornsby Railway Station; g) in or about October, on one or more occasions after attending either the "Blu café bar restaurant" or the "Thyme Square cafe bar restaurant" in the late afternoon on a weekday with Ms Wang, offered to take Ms Wang to have dinner with you at a nearby restaurant, and offer which she declined; h) in or about October, on one or more occasions after attending either the "Blu café bar restaurant" or the "Thyme Square cafe bar restaurant" in the late afternoon with Ms Wang, you offered to drive Ms Wang home in your motor vehicle, an offer which she declined; i) in or about October, gave to Ms Wang a gift of a colour television; j) in or about October, after attending one of the cafe bar restaurants above, on a weekday in the late afternoon with Ms Wang, you: (i) drove Ms Wang home in your motor vehicle to her residence at 7-10, 14 Webb Avenue, Hornsby; (ii) after her arriving at her residence, gave her the above television; k) in or about September and October, sent several text messages to Ms Wang's mobile telephone to organise the times and places for the above meetings to take place; I) on a number of occasions during 2010, sent inappropriate text messages to Ms Wang's mobile telephone, including but not limited to saying words to the effect of: (i) "you're like the sun"; (ii) "even your smile can't save me"; m) during 2010, had inappropriate conversations with Ms Wang, beyond the expectations of a professional teacher-student relationship, or a mentoring relationship, including but not limited to the following: (i) divulging information about your childhood including that your father had left your mother; (ii) asking her if she had a boyfriend; (iii) informing her that you would contact her after you arrived in China during December 2010 with a view to visiting her in her home province in China; n) in or about late October, early November, you contacted Ms Wang on her mobile telephone and had an inappropriate conversation with her, and informed her that: (i) you were under investigation by the Department of Education and as a consequence you could be fired; (ii) she should delete all the text messages you had sent her; iii) she should delete your name and mobile number as a contact from her mobile telephone; o) on about 8 November, you sent a number of text messages to Ms Wang including but limited to: (i) sending her a "smiley face"; (ii) using words to the effect of, "I am going to have an interview"; (iii) using words to the effect of, "no I am there on Wednesdays only today and tomorrow no real escape for you poor little buggers ha ha"; p) by engaging in the conduct in (n) and (0) above, failed to abide by the direction provided to you by Mr Barnett, in a letter to you dated 28 October, in that you failed to ensure that you did not communicate with Ms Wang via mobile telephone, other than as required in your role as an English teacher (copy of letter is at Attachment 1); q) engaged in the conduct in 2 (a) - (0) without the express permission or knowledge of your principal; 3. in relation to a then Year 11 female student, Ms Jennifer Cha, you: in or about Term 1, on a Saturday evening immediately after attending a bushwalk with Ms Cha and Ms Kitty Wang, you sent a text message to Ms Cha, and said words to the effect of, "pleased to have accompanied two beautiful girls"; b) during 2010, you sent a large number of text messages of a personal nature, outside of school hours to Ms Cha, including but not limited to saying to her words to the effect of: (i) "sorry about hitting your head"; (ii) "you're like my arm hair"; (iii) "I am on my boat looking up to the sky, it is beautiful; (iv) "Iuv you"; (v) "jumping jenny"; c) on 21 May, in the evening following a school mufti day, you sent a text message of a personal nature to Ms Cha, saying to her words to the effect of: "are you meeting your boyfriend today, that's why you look pretty"; d) during Term 2, you: (i) invited one or more of your then Year 11 ESL female students, including Ms Jennifer Cha, to see a light show at the Sydney Opera House; (ii) sent one or more text messages to Ms Cha in relation to the making the arrangements for students to attend the light show with you; e) between but not limited to the period from 14 June to 4 August, you engaged in regular inappropriate "chat room" conversations with Ms Cha via a social networking site, including conversations of a personal nature, including but not limited to the following: (i) in the late hours of the evening of Monday 14 June (public holiday): (ii) in the late hours of the evening of Monday 26 July: (iii) in the late hours of the evening of Wednesday 4 August; (copy of "chat room" conversations is at Attachment 2) f) engaged in the conduct in 3 (a) - (e) without the express permission or knowledge of your principal; g) on 15 November, you sent an inappropriate email to Ms Cha in which you divulged information about a number of directions you had been given by the Department relating to this investigation, along with personal and private information about the sending of emails. You also divulged information about visiting Ms Cha during the summer school holidays as well as advising her that the Department must not know of your intended visit (copy of email is at Attachment 3). h) on 15 November, you sent another inappropriate email to Ms Cha in which you divulged information about this investigation and your work placement, along with personal and private information about your medical and legal issues, including the types of leave you intended taking (copy of email is at Attachment 4). i) on 17 December, while you were visiting China, you sent an inappropriate email to Ms Cha in which you divulged information about your whereabouts in China, and information about directions you had been given by the Department relating to not contacting students (copy of email is at Attachment 5). j) in relation to the above allegations (g), (h) and (i), you failed to abide by a direction given to you by Mr Kevin Schipp, Relieving Director, EPAC, in a letter dated 12 November, that you not directly communicate with any female student via any electronic means including email (copy of letter is at Attachment 6). 4. in relation to then Year 11 female students Ms Kitty Wang and Ms Jennifer Cha, you: (a) in the early afternoon on a Saturday in or about Term 1 met with Ms Wang at the Westfield Hornsby Shopping Centre; then (b) purchased some food and drinks with her; then (c) met up with Ms Cha at the fountain adjacent to the Shopping Centre and then drove with Ms Wang and Ms Cha in your vehicle from Hornsby to a car park in or near a bush walking track in Berowra; then (d) took them both on a bushwalk; (e) had lunch with them; (f) while having lunch, you had an inappropriate conversation with Ms Wang and Ms Cha, and divulged information about your marital status, including how your wife had sought a divorce for you while you were living in China; (g) took each of them separately up to a lookout by holding onto their hands and climbing with each of them up steep rocks; (h) took each of them through water which included them having to walk with you without their shoes and socks; (i) around 5.00 pm, drove Ms Wang and Ms Cha in your motor vehicle to Ms Cha's residence at 26 Hillcrest Road Berowra where you entered the residence and spoke to her guardians and had a coffee with them; (j) engaged in the conduct alleged in 4 (a) - (i) without the express permission or knowledge of your principal; 5. in relation to then Year 11 female students, Ms Kitty Wang, Ms Chris Wu and Ms Wendy Peng, you: (a) around midday in or around the April school holidays, met with the three students at the fountain adjacent to the Hornsby Westfield Shopping Centre; (b) attended a coffee shop adjacent to the Hornsby Westfield Shopping Centre with the three students and had a coffee with them; then you (c) drove them in your vehicle from Hornsby to Manly; where you (d) took them for a walk along Manly beach; (e) took them climbing up onto some rocks at the beach; (f) took them to a park; (g) took them into a cafe bar restaurant and had a meal with them; then (h) drove them in your motor vehicle back to Hornsby at or around 6.00 pm; (i) engaged in the conduct in 5 (a) - (h) without the express permission or knowledge of your principal and the students' guardians: 7Ms Thorpe's findings were: She dismissed Allegations B1(i) and B2 (j)(ii) and (q). She sustained all other allegations. Allegations A,B1(c),(d),(f), (g), B2(e)(i),(g),(i),(k),(l),(m),(i),(n),(o) and (p),B3(a)-(j), B4 and B5 constitute misconduct. The other allegations are not misconduct. 8 The applicant received correspondence dated 28 October 2011 which directed the applicant to resign giving him 14 days to comply. If he failed to resign he would be terminated. He did not tender his resignation. 9A letter dated 14 November 2011 from the respondent to the applicant terminated his services effective from that date. Further it was expressed that his name would be placed on the list of persons not to be employed by the respondent. 10The matter was originally set down for hearing for four days but took nine days to complete before my Decision was reserved.