Industrial Relations Commission New South Wales Medium Neutral Citation: Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Hearing dates: 9, 10, 11 October 2013; 23 October 2013; 27 November 2013; 18 December 2013. Decision date: 08 January 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal dismissed Catchwords: Alleged unfair dismissal - probationary teacher - annulment of probationary appointment for misconduct - allegations of physical contact with students including punching and wrestling - allegation of unsafe teaching practices resulting in student being injured - allegation of breach of direction not to come into physical contact with students - difficulties of modern teaching environment - reliability of evidence - level of proof of misconduct - effect of s.5A of Teaching Service Act - Department's obligation to provide for safety of students - teacher's duty of care to students - allegations established on evidence - misconduct established - annulment not harsh, unreasonable or unjust - application dismissed . Legislation Cited: Evidence Act 1995 s.140 Industrial Relations Act 1996 s.84, 88, 89 Teaching Service Act 1980 s.5A, s.5A(2), s.93B, s.93C. Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412 Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995) Jones v Dunkel (1959) 101 CLR 298 Geyer v Downs (1977) 136 CLR 91 Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Puccio v Catholic Education Office (1996) 68 IR 407 Re Barrett v Women's Hospital Crown Street (1947) AR (NSW) 565 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Category: Principal judgment Parties: Mr Stephen Krix - Applicant Director-General, Department of Education and Communities - Respondent Representation: Mr A Vernier (Applicant) Mr P Ginters (Respondent) Messrs A R Walmsley & Co - Applicant Ms M Buchanan - Respondent File Number(s): IRC 1265 of 2012 DECISION 1This is an application brought pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') by Mr Stephen Krix against the decision of the Director-General, Department of Education and Communities, ('the Department') to annul his probationary appointment as a teacher. It is not contested that the annulment of Mr Krix's appointment was a 'dismissal' within the meaning of the Act. 2Mr Krix's probationary appointment was annulled on 30 November 2012 by way of a letter from Mr Kevin Schipp, A/Director, Employee Performance and Conduct of the Department. 3It was annulled for reason that the Department found that Mr Krix had committed a number of acts which were said to constitute misconduct. 4Although a number of allegations were put to Mr Krix, ultimately the particulars of allegation found to be proven and held to be misconduct were, as set out in the letter from Ms Jane Thorpe to Mr Krix dated 12 September 2013, Allegations 1(a) to 1 (j) inclusive, 2 (g), (h) and (l), 3 (a)-(d), and 4. I note that one sub-particular of Allegation 4 could not in fact be made out on its face. The Commission's powers in applications brought pursuant to s.84 5This is an application pursuant to s.84 of the Act. The Commission is therefore obliged to determine whether the dismissal constituted by Mr Krix's annulment was harsh, unreasonable or unjust. That is the test, and those words are each to be considered and given their full effect; the Commission is to deal 'expressly and specifically with the tripartite statutory test': National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; 146 IR 441. 6The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view It is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465. 7I note here that this application was lodged within the 21 days prescribed by the Act. Effect of the provisions of the Teaching Service Act 8There is a further legislative context to consider. Mr Krix's employment was in part governed by the terms of the Teaching Service Act 1980. The Teaching Service Act deals specifically with discipline and punishment of persons employed by the Respondent as teachers. Indeed, 'misconduct' is defined in s.93 of the Teaching Service Act, a point to which I return below. On Mr Krix having been found to have committed misconduct, the range of punishments which were available to the decisionmaker are set out at s.93B of the Teaching Service Act. 9Further, it must be noted that the powers exercised by the Director-General (or his delegate) in this case were necessarily exercised having specific regard to s.5A of the Teaching Service Act which, summarised, provides that any action taken in respect of an officer must have regard to the paramount consideration of the protection of children. 10That statutory obligation is expressly provided, at subs. 5A(2) of the Teaching Service Act to have effect despite anything in the Industrial Relations Act. 11Accordingly, in determining whether a decision to dismiss was harsh, unreasonable or unjust, the Commission must include in its consideration that a necessary element in the decisonmaker's decision to dismiss was consideration of the protection of children pursuant to an express statutory obligation to do so. 12In my view it is further clear that the Commission itself must, in determining an application under s.84 brought by a dismissed person whose employment was governed by the Teaching Service Act, have regard to the protection of children, not only in its assessment of the decision to dismiss but also in considering, if the Commission has cause to do so, the remedies at its disposal pursuant to s.89 of the Act. 13The statutory obligation pursuant to s.5A of the Teaching Service Act does not displace the underlying position that the Department has a duty of care to its students at large: Geyer v Downs (1977) 136 CLR 91 at 93 per Stephen J. Further, the Department has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare: Puccio v Catholic Education Office (1996) 68 IR 407 at 417. These too are matters to which the Commission is obliged to have regard in carrying out its assessment of a dismissal and its consideration of remedies. Onus of proof and level of satisfaction required 14This is a case in which misconduct is alleged. 15At common law, misconduct is a serious matter, with potentially serious consequences. The obligation to make out that misconduct falls accordingly on the employer: Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4; National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd loc cit at [35]. 16The level of proof required for a finding of common law misconduct is of course on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336; 'in a convincing way' as it has been expressed by the Full Commission: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. 17That must be considered, of course, in the context of the fact that misconduct in this case means misconduct within the meaning of s.93C of the Teaching Service Act. 18Under s.93C misconduct is relevantly defined as including, but not limited to: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, *** 19It is apparent from the words of s.93C that misconduct as defined in the Teaching Service Act may not necessarily amount to, but rather may be less than, misconduct warranting termination in the common law sense. 20However, as a finding of misconduct under the Teaching Service Act is a matter from which disciplinary penalties may flow including dismissal, it is still appropriate that the requirement for a finding of misconduct to be made out 'in a convincing way' apply to findings of misconduct within the meaning of the Teaching Service Act. Necessarily, an allegation of misconduct within the meaning of the Teaching Service Act must be made out to a level of satisfaction conformable with s.140 of the Evidence Act 1995. 21None of this consideration detracts from the fact that an allegation of misconduct under the Teaching Service Act requires assessment of the conduct concerned against the provisions of that Act, not against the common law definition of misconduct. That is the approach I take to considering the allegations of misconduct in this matter. 22Neither does it detract from the fact that the onus of showing that a dismissal was harsh, unreasonable or unjust falls on the applicant: Re Barrett v Women's Hospital Crown Street (1947) AR (NSW) 565 at 566. Overview of this matter 23Teaching in the modern classroom can be a singularly taxing and difficult job. That classroom teachers are obliged to teach students who may be listening to music with headphones during class and who may attend and leave classes as they wish must make the task often frustrating. That teachers can expect to be sworn at and at times physically attacked must make the requirement to maintain calmness, patience and a disciplined learning environment extraordinarily difficult. 24Yet it is the case that there are strict requirements that teachers not become inappropriately physically engaged with students. That is not only in the case of contact of a sexual nature, which I make clear is absolutely no part of this case at all, but in the context of discipline and attempting to maintain order. 25Those requirements are not arbitrary. As I point out above, the Department has both statutory and common law obligations in respect of the safety and welfare of students, and the operation of the whole of the school environment is to be seen subject to the obligations and provisions of s.5A of the Teaching Service Act. 26Mr Krix is obviously a person with significant abilities in a number of life skills. He has, on the evidence, the ability to convey those skills to students. Students came before the Commission speaking highly of Mr Krix as a teacher. He has a substantial body of achievement, largely in the independent school system but also in other areas, including voluntary work. I note as just one example his success in training long term unemployed and ex-prisoners in the LEAP programme. 27However, it is the specific matter of his conduct as a classroom teacher in the Department that this case falls to be determined. The misconduct alleged in this matter 28The disciplinary proceedings taken by the Department against Mr Krix were conduct based. There were initially a number of allegations of fact put to Mr Krix. Some, but by no means all, were found to be made out and to constitute misconduct. It is those that formed the basis for the decision to annul his appointment which is the subject of this application. 29The express findings of misconduct within the meaning of the Teaching Service Act upon with the decision to annul Mr Krix's appointment, and which, as I say above, the Department therefore had an obligation to make out, were as follows. 30Those parts of Allegation 1 which were held to be sustained and to form misconduct were that on 2 May 2011, Mr Krix engaged in inappropriate conduct towards a year 10 student, namely Jarrad O'Hanlon, in that he: (a) Said to Jarrad words to the effect of 'You're special are you?', 'are you that stupid that you cant write anything down', and 'why don't you do something in your life?' (b) wrote on the class whiteboard words to the effect of 'Jarrad the taker' while making thrusting movements with his body; (c) took Jarrad's hat and played a game of 'piggy in the middle'; with it; (d) stood in close proximity to Jarrad's face and refused to move after he told you to 'fuck off' several times; (e) said to Jarrad words to the effect of 'is that all you've got? No effect' after Jarrad pushed him away; (f) grabbed Jarrad around the neck in a 'headlock' and dragged him over his desk, causing the desk to tip over; (g) while holding Jarrad in a headlock, punched him twice to the front of the head; (h) continued to wrestle with Jarrad round the classroom; (i) after students intervened and stood between him and Jarrad , attempted to break through the students to get to Jarrad ; (j) said to Jarrad words to the effect of 'lucky your boyfriends are holding you back or I would have belted you.' 31Those parts of Allegation 2 which were held to be sustained and to form misconduct were that Mr Krix: (g) on 9 June 2011 pulled the chair out from under a Year 8 student, Jordan Kharka, causing him to fall to the ground; and (h) on 9 June 2011 grabbed Jordan Kharka by the jumper and called him a 'sooky baby'; and (l) on 16 June 2011 wrapped his arms around three year 7 students, Todd Murray, Dallas Minchin and Joel Ayliffe and twisted his body around, causing the students to fall over, and then said words to the effect of 'bloody idiots'. 32Allegation 3 was in relation to an incident in which a student suffered serious burns in the course of the conduct of a science experiment on 21 July 2011. The particulars of the allegation that were upheld and were found to constitute misconduct were that Mr Krix: (a) failed to advise his Head Teacher that he was planning on conducting an experiment involving the lighting of flammable liquids; (b) took flammable liquids into the school himself, instead of obtaining the appropriate permission through the school to purchase the flammable liquids; (c) failed to complete a risk assessment for the experiment in line with the Department's policy 'Chemical Safety in Schools' (d) failed to conduct the experiment in line with the Department's policy 'Chemical Safety in Schools' (f) failed to adequately supervise the students watching the experiment, in that he walked to his vehicle while flammable liquid was still burning. (g) failed to appropriately secure the flammable liquids which were located in the back of his vehicle, leading to one student trying to take the flammable liquids out of his vehicle (h) in relation to the conduct above, that he failed in his duty of care towards students which resulted in (i) a year 9 student, John Harris, receiving serious burns; and (ii) two other male year 9 students, Christian Topoki-Russell and Brodie Higgins, catching alight. 33Allegation 4 was that Mr Krix breached a lawful direction given to him in writing on 9 May 2011 not to come into unnecessary physical contact with students, and not to make inappropriate comments to students. It was said that his conduct set out in particulars of allegation 2 (g), 2(h) and 2(l), that is, the Kharka incidents and the incident involving the three year 7 students, constituted breaches of that direction. 34There were some other allegations found to be proven but not found to be misconduct. It was not necessary to determine those matters and I have not found them to be made out. Lawfulness of the decision to annul the appointment 35Before turning to the allegations I note that the Commission must also, where a decisionmaker's authority to impose punishments is not at large but is granted pursuant to a statutory regime, as here, satisfy itself that the decisionmaker has acted lawfully in imposing a punishment. 36The provisions of the Teaching Service Act dealing with disciplinary processes are to be found in Part 4A of that Act. The power to discipline lies with the Director-General, but pursuant to s.8 of the Act, he has the power to delegate that function. The decision to annul the appointment was taken by Mr Kevin Schipp. On the evidence the functions under part 4A were relevantly delegated to Mr Schipp. I am satisfied that the decision to annul Mr Krix's appointment was effected lawfully. 37In this same context I observe that Mr Krix was a probationary teacher when his appointment was annulled, his probation having been extended. It was suggested that the extension of his probation was not within power, rendering him not a probationary teacher. I do not accept that the Department was without power to extend Mr Krix's probationary period or that the probationary period was extended unlawfully. Findings in respect of allegations 38I turn to the findings of fact that can be made in respect of the allegations. Evidence 39Evidence was advanced, in accordance with directions made by Staff J, in statement or affidavit form from a number of persons, including minors. Counsel for both sides conducted, I may here observe, the cross-examination of minors entirely appropriately. 40I am obliged to comment upon certain aspects of the evidence. 41One witness brought by the Department, Master Todd Murray, who was 15 years old when he swore an affidavit tendered by the Department, when questioned in the witness box about that affidavit, said 'I didn't write it' and 'some of it is not true'. 42I am entirely satisfied, having read an affidavit sworn on 22 November 2013 by Ms Buchanan, solicitor for the Department, that there was no deliberate attempt to cause this to occur. Rather, it arose out of inadequate supervision of the making of the affidavit that had been drafted by the Department for Master Murray to swear. Master Murray was not in central Sydney and the ultimate swearing and witnessing of the affidavit was left by the Department to the supervision of a local Justice of the Peace in circumstances where the Department knew that Master Murray needed to check certain matters of fact before swearing the draft affidavit prepared for him. 43Instruction was given to the JP that this checking by Master Murray was necessary, and it was left to the JP to see that that occurred. That was not in my view an adequate supervision by the Department of the swearing of a minor's affidavit. As evidence of that, it is not known if the necessity to check the affidavit was understood by Master Murray, or if the checking did in fact occur. The affidavit came back sworn without amendment to the draft form prepared by the Department. That was accepted by the Department without more and the affidavit filed. It emerged, as I note, that the affidavit was not correct and was disavowed by the witness under oath. 44The Department, more often than many parties, is obliged to rely in proceedings on the evidence of minors. Evidence from minors falls into a special category. Of course the Department will draft affidavits for witnesses, including minors, following interviews with them; that is entirely proper. But it is fundamentally important that the Department take every necessary step, even at the cost of inconvenience, to ensure that a minor who swears an affidavit drafted by the Department either fully properly adopts, and understands what is meant by that adoption, the words of the draft affidavit, or that the affidavit is amended to reflect what the deponent does want to say from their own knowledge. 45That was not adequately done here. I was obliged to have no regard to the affidavit evidence of Master Murray, given that he told the Commission that he didn't write it and some of it was not true. That is not his fault. Master Murray gave oral evidence and I saw nothing that led me to believe that he was doing other than telling the truth as best he could before the Commission. I had regard to his oral evidence. 46That was not the only difficulty with the Department's evidence. Mrs Helen Pearson, a retired teacher, gave evidence in a sworn affidavit. In paragraph 60 of her affidavit she gave a specific date to a telephone call. When asked about it in cross-examination she was adamant that she did not know the date of the call and when asked how it appeared in her affidavit said 'I don't know how that got there.' 47The Commission, like most other courts and tribunals, requires evidence to be put in statement form. That is done to allow parties to know the case they have to meet and also to allow a tribunal with an obligation to act quickly to come to grips with complex factual matters swiftly. For good or ill that approach to evidence is unlikely to change. Parties must, however, accept that evidence by statement or affidavit is nevertheless an individual person's evidence and proper care must be taken to ensure that the process of drafting affidavits, often based on materials in documents and records as well as interviews, does not lead to the drafter including evidence that is not within the witnesses' own knowledge, as it seems has happened here. 48For reasons I go to below I gave minimal weight to Mrs Pearson's evidence in any event, but the concern about the affidavit evidence remains. 49Objection was taken to the admission of transcripts of interviews conducted by Departmental investigators. I admitted the transcripts of interview into evidence, as they were material that the decisionmaker relied upon to form the decision to annul. I gave, however, that material no evidentiary weight in the proceedings, as will be apparent from the face of the decision. 50Lastly as to evidence, it was pointed out by the Applicant that the Department had brought, as it was put, only a few students to give evidence in the proceedings. The Commission was invited to draw the inference that 'other witnesses would not give favourable evidence for the respondent' : (submissions, para 240). 51First, that is not in terms the inference that might be drawn from an unexplained absence of witnesses; the inference that may be available is that the evidence would not have assisted the respondent's case, a different matter: see Jones v Dunkel (1959) 101 CLR 298 at 308. 52Second, in my view the fact that the Department did not call aIl the students who might have been thought to have witnessed a particular incident was not unexplained. It is clear on the evidence that some students who might have been thought to be witnesses to particular events were approached, but declined themselves to give evidence or indicated that their memory of the events was now poor. These witnesses were minors. It is not in any event the case that a party with an obligation to make out a particular matter must call every possible witness to an event, and a Jones v Dunkel inference does not arise from a decision not to do so. The allegations and the proof of them 53I now turn to the matters particularised in Allegation 1. These are serious allegations and I repeat that I approach them on the basis that the Department must make them out 'in a convincing way'. 54The particulars in Allegation 1 refer to an incident that unfolded over a period of time in a combined science class. 55Mr Krix gave evidence about the events during that class. Ms Pearson, another teacher, gave evidence about them. Jarrad O'Hanlon, a student in the class, gave evidence. Daniel Gallacher, also a student in the class, gave evidence. Anthony Oliver, a student at the school but not a member of that class, gave evidence. 56On Mr Krix's evidence alone the following is clear; he was teaching a class in which Jarrad O'Hanlon was present. O'Hanlon was refusing to do the set work and was instead listening to his headphones. When asked to carry out work he responded 'Fuck off'. 57Mr Krix gives an account of being seated opposite O'Hanlon asking him to do some work when O'Hanlon stood up, and while Mr Krix was in a half-standing position O'Hanlon 'dived across the desk and punched me in the face. He continued to swing punches so I placed him in a shoulder lock'. O'Hanlon then, on Mr Krix' account, 'pushed me to the front of the class and into the teacher's desk'. 58Anthony Oliver gave evidence that from outside the classroom he saw Jarrad O'Hanlon place a hand and foot on the desk and strike Mr Krix who was seated. 59It is beyond doubt that O'Hanlon punched Mr Krix, his teacher, in the face and that this was the first actual blow between them. 60Jarrad O'Hanlon gave evidence and readily admitted that he told Mr Krix to 'fuck off' several times and that he punched Mr Krix in the face. 61On O'Hanlon's account Mr Krix had been taunting him throughout the lesson, writing the words 'Jarrad the taker' (which other students recalled in either those words or as 'Jarrad takes it') on the whiteboard, which to Mr O'Hanlon's mind implied that he was a homosexual, and swinging keys in front of his face - a detail which I was satisfied occurred on the evidence - and that in that context he had told Mr Krix to 'fuck off'. 62He also said that Mr Krix was standing, not sitting, very close to him when he punched Mr Krix. He then gave an account of being grasped, with his head under Mr Krix's arm, and the two of them wrestling so that desks were overturned. He admitted that he wanted to punch Mr Krix again but that other students get between them. 63Daniel Gallacher's evidence was largely to the same effect. I have borne in mind that O'Hanlon and Gallacher were good friends, but I saw nothing to suggest that Gallacher's account was contrived; he was thoroughly cross-examined by experienced counsel without his evidence being dented. 64Mrs Pearson was in the class for a good deal of the lesson and gave evidence about the central incident. I approach Mrs Pearson's evidence with reservation; that is because she had already on her own admission provided a false account of the events of that day in a report to the school. I formed the view she was doing her best to give a truthful account in her oral evidence before the Commission. Nevertheless, and consistent with what I regard as an appropriately conservative view given the onus and level of proof required of allegations of misconduct, I did not accept her evidence where uncorroborated. 65In his evidence Jarrad O'Hanlon admitted that he swore at and punched Mr Krix. I am entirely unable to condone this conduct. However, his account of the incident was consistent with the other evidence and internally consistent. 66On the other hand, I found Mr Krix's account of the facts unconvincing. Mr Krix's account that rather than having written 'Jarrad is a taker' or 'Jarrad takes it' on the whiteboard, he wrote 'Jarrad has taken III', referring, on Mr Krix's evidence, to O'Hanlon having taken and screwed up three worksheets, was simply not credible. I found it inherently not credible and I note that it was not something Mr Krix said in his written response to the allegation that he had written 'Jarrad the taker' on the whiteboard. 67I was unable to accept Mr Krix's account of O'Hanlon diving across his desk and punching him in the face while Mr Krix was half-risen from a seated position. Again, that evidence was inherently not credible. There is no doubt Mr Krix was punched by O'Hanlon, but on my assessment of all the evidence I find that O'Hanlon punched Mr Krix in the face when Mr Krix was standing close to O'Hanlon, immediately on the other side of the desk to him, and when O'Hanlon had already pushed Mr Krix in the chest in an unsuccessful attempt to make him step back. 68On all of the evidence I do not accept that Mr Krix had O'Hanlon in an 'armlock' or that he, a man of stocky build and significant experience in handling, for example, cattle including dangerous bulls, was wrestled across the classroom by a relatively slight boy. 69While Mr Anthony Oliver impressed as an honest witness doing his best to give a truthful account, I am obliged to conclude that his view from outside the door of the classroom was insufficient to allow him to say with certainty what happened inside the classroom. 70In my view what the evidence establishes is that Mr Krix, no doubt very understandably irritated by a student who refused to work, who distracted others and who swore when told to do some work, got in O'Hanlon's face. O'Hanlon swore at him, rose to his feet so that both were standing on either side of a desk, and pushed him away. Mr Krix was not moved by the push and said so, and O'Hanlon became enraged and punched Mr Krix in the face with his left fist. Mr Krix then, in a manner which would be entirely understandable in a context other than a teacher and student, grabbed the boy in a way that involved him having O'Hanlon's head under his arm, and wrestled with him across the room, at least one desk being overturned. I accept that O'Hanlon attempted, unsuccessfully, to punch Mr Krix further. 71I do not make the finding that Mr Krix punched O'Hanlon as set out in subparticular (g). I do not find against O'Hanlon's account that that happened but as I say above, again approaching the matter in a conservative way, I am not prepared to make that finding of fact when it does not appear in the initial account O'Hanlon gave and is not clearly established by corroborative evidence. 72I do not make a finding that Mr Krix said the specific words in particular (a), as they are drawn from Mrs Pearson's evidence, nor do I make the specific finding that Mr Krix played a game with Jarrad O'Hanlon's hat as alleged in particular (b). 73I do not find that Mr Krix did in terms the things alleged in particulars (i) and (j). I do not make those findings consistent with the view I take that they must in their specific detail, not in a general sense, be made out in a convincing way. I do not find they did not occur, but I decline to make the finding at the level of proof required that they did. 74I do however make findings of fact that Mr Krix carried out the conduct in particulars (b), (d), (f) and (h) of Allegation 1. 75It must be abundantly clear that those particulars, made out at the appropriate level as I have found them to be, constitute misconduct. 76I point out that even if I were to take Mr Krix's account as generally accurate, the fact remains that having been punched - which no teacher should have to suffer - he then engaged with the boy physically and grappled with him. He did not need to do so. He could have withdrawn from physical engagement with the student and did not. Despite, as I say, my view that no teacher should have to suffer being punched, for Mr Krix to then engage in further physical interaction with O'Hanlon was simply inappropriate conduct. 77Lastly, I am obliged to point out that my inability to accept Mr Krix's account of the factual matters encompassed in this allegation has led me to an overall view that his account of matters of fact generally cannot necessarily be accepted. Allegation 2 78In my view the evidence of the first two particulars of Allegation 2 is insufficiently convincing to allow them to be made out. The student Jordan Kharka was not brought to give testable evidence about the matters. Mr Krix flatly denies them. I do not find these particulars made out. 79The third particular is another matter, however. 80This is an allegation that Mr Krix came into contact with three year 7 boys and caused them to fall to the ground. and then said words to the effect of 'bloody idiots'. 81The bare words of the allegation must be understood in context. 82The boys, Dallas Minchin, Joel Ayliffe, and Todd Murray, were in Mr Krix's classroom although not part of his class. They had misbehaved in the classroom. Mr Krix had told them they would be on detention. They attempted to run out of the classroom. 83Mr Krix's account is that he stood in front of the doorway, but not obstructing it: Krix affidavit 5 June 2013 para 30. He says 'In an attempt to leave the room, 3 of the students charged at me. I lost my balance and reached out, holding on to the three students in a reflexive attempt to gain my balance. This was unsuccessful and the students and I fell out of the doorway.' 84The boys all gave evidence. Their account is sufficiently consistent to be accepted. It is that they attempted to run out of the classroom, or leave it quickly, but that Mr Krix blocked the doorway with his arms and one leg; they collided with him, he caught hold of one or more of them, and the boys fell to the ground. 85Mr Adrian Oliver and Ms Chantelle Collins gave evidence in Mr Krix's case. Mr Oliver said that 'two of the boys charged at Mr Krix to try to leave the room and smashed into Mr Krix at the doorway then ran out of the classroom.' That evidence fits with the account given by the boys concerned, save that nobody else, including Mr Krix, suggests that the boys ran out of the classroom. Ms Collins' evidence was that after charging at Mr Krix the students fell to the floor.' Again, that evidence fits with the account of the students involved. 86Counsel for Mr Krix went to some trouble to analyse the factual situation to show that Mr Krix was not in the doorway and that the students could have avoided him in running out of the room. It is no discredit to counsel's efforts that I was unable to accept that account, but it does not conform with Mr Krix's own account in his affidavit. 87The difficulty I have with Mr Krix's account in evidence is twofold. First, he says that he was not obstructing the door. That leaves wholly unexplained why three year 7 boys trying to leave the room would elect to charge at a teacher while they could readily gain an unobstructed access to the doorway, on his account, without charging at him. I note that Mr Oliver, giving evidence in Mr Krix's case, says that Mr Krix was in fact at the doorway. 88Secondly, I simply do not accept his account that he lost his balance and grasped the three students in a reflexive attempt to gain his balance. These were 12 year old boys. As one of them said in his evidence, he was only little then. Mr Krix is a squarely built man. I do not accept that Mr Krix was knocked off balance and grasped the boys 'reflexively'. I prefer the account of the students that Mr Krix intentionally grasped them. 89What I find actually happened is that the three boys had misbehaved; Mr Krix had told them they were not leaving the classroom; they made a bolt for it; he stood in the doorway to prevent them getting out and to give effect to his decision that they should stay behind. When they reached him he grasped at them to attempt to prevent them leaving; the boys, thrown off balance by being held onto - to use his words - by Mr Krix, fell over each other and through the doorway. At that point Mr Krix said either 'bloody idiots' or 'stupid idiots'. The boys suffered some minor knocks in the falling over but I have no doubt Mr Krix had no intention of hurting them. 90Mr Krix was no doubt right in directing the boys to remain in the classroom, as hey had misbehaved and disrupted his class. He was not, however, entitled to physically restrain them when they attempted to leave. He had been told by his Head Teacher, Ms Fairweather, as early as March 2012 that 'teachers cannot block classroom doorways and they should not obstruct students trying to leave the class' even if there were a disciplinary issue involved: Fairweather affidavit para [42]. 91Further, and importantly, by that date he had specifically been directed not to have unnecessary physical contact with students. 92I find Allegation 2(l) made out. It was of itself misconduct and it occurred after the lawful direction Mr Krix had been given on 9 May not to have unnecessary physical contact with students, the breach of which was further misconduct. Allegation 3 93The particulars of allegation 3 emerge from a science experiment conducted by Mr Krix involving flammable and inflammable liquids. There was some suggestion that the experiment was not within syllabus but I do not need to determine that question. However, his attempts to deal with that proposition led Mr Krix to give further evidence which in my view suggested recent invention and was unsatisfactory. 94What did happen on that day was that Mr Krix decided to conduct the experiment, or demonstration, outdoors. 95He set up the experiment, and in the course of it he ignited petrol so that it was aflame in a science pneumatic trough, which is a low container, on the ground. He instructed his class to stand back behind a line clearly marked by logs. The school principal saw the experiment up to this point and raised no concerns with it. 96On the evidence, Mr Krix had containers of flammable materials in his utility. At one point he saw a student trying to take a can of fuel from the utility. He left the experiment and returned to his utility to prevent this occurring. He retrieved the material the student was attempting to take, and secured his utility tarpaulin. 97While he was away from the immediate site of the experiment doing this, some students who were not meant to be present, as they were not in Mr Krix's class, were kicking at the pots of flaming liquid. They egged each other on until one boy kicked a pot over; the flaming liquid spilled on three boys. One boy, John Harris, was seriously hurt. He suffered significant burns when his clothing was set alight. The other two were not hurt. 98It is not to the point that the students involved were not Mr Krix's students. It is not to the point that another teacher had left the students unattended. Mr Krix was in charge of a potentially very dangerous experiment. It was incumbent on Mr Krix to control the experiment and control the students. Mr Krix under no circumstances should have been absent from the immediate site of the experiment while flammable fuels were burning and accessible. He already knew by July that he was at a school where unruliness was to be expected; he had had the experience, for example, of two earlier incidents with Jarrad O'Hanlon. 99To turn his back on flaming petrol while students - and year 9 boys at that - stood around them was grossly negligent in a teacher. That there was unsecured fuel in his utility on school grounds was also inappropriate, but the central error was to leave the obviously dangerous experiment unattended, even for a minute. 100Mr Krix said in his account of the matter to the Department 'none of the students were misbehaving until that fateful minute'. 101However, on the evidence Mr Krix brought in his own case that is simply not true. 102Aaron Dyball, a student brought as a witness in Mr Krix's case, gave evidence in an affidavit that Mr Krix, before going to his vehicle, twice observed students to be kicking at the troughs of flammable liquid and twice told them not to do so. On that evidence, for Mr Krix to then turn his back on the students and go to his vehicle, knowing students were already kicking at troughs of burning flammable material, was a gross failing of his duty of care to the students. 103That evidence also reinforces the conclusion to which I have been forced, that is, that Mr Krix's account of a number of important matters cannot be accepted. The proposition advanced by Mr Krix that 'none of the students was misbehaving until that fateful minute' is simply, on the evidence, false. 104Mr Krix also said in his submission to the Department, 'You can be sure that no such injury could ever result again from me running a demonstration of this nature as I would implement additional risk minimisation measures.' That is in part the point. Mr Krix had a direct legal obligation to do everything to protect the welfare and safety of the students. If there were additional safety measures that could have been taken, as both in my view and, from his submission in Mr Krix's view, there were, they should have been taken at the time. 105The Year 9 student John Harris suffered serious burns, but the seriousness of the burns are not the measure of Mr Krix's error. It would have been as serious an error if nobody had actually been burned. The seriousness of the burns suffered was simply evidence of how dangerous and negligent Mr Krix's conduct was. In a classroom teacher it was, I am obliged to say, inexcusable. 106In his oral evidence Mr Krix conceded that he did not give his Head Teacher a risk assessment. He conceded that he did not order the chemicals through the science faculty but procured them himself. 107I find Allegations 3 (a) (b) (c) (d) (f) (g) and (h) made out at the required level of proof. I find that they constituted misconduct. Allegation 4 108Allegation 4 was that the conduct set out in Allegation 2, which I have, so far as it refers to Allegation 2(l), found to be made out, was in breach of a direction given to Mr Krix on 9 May 2012 by a senior officer of the Department's Employee Performance and conduct unit, a Ms Woodford. 109I am satisfied (Schipp evidence tpt 27 Nov p 42) that Ms Woodford had the authority to give the direction. Mr Krix was bound to obey it. 110Allegation 4 is, save for subparticular (e), the effect of which exclusion does not reduce the weight of the allegation, made out. Mr Krix breached a lawful direction. This constituted misconduct within the meaning of the Teaching Service Act and, so far as it is relevant, constituted misconduct in the common law sense. Was the dismissal harsh, unreasonable or unjust? 111I have found that Mr Krix committed misconduct within the meaning of the Teaching Service Act in relation to several matters. Those matters involved unnecessary physical contact with students, resulting in each case from circumstances escalating beyond, no doubt, what Mr Krix intended, but which in the end bordered on the violent. They included carelessness in the conduct of a dangerous experiment with the result that a student was seriously injured. They also involved a breach of an express and lawful direction. 112I note that Mr Krix makes no concession that any of his conduct was wrong or even ill-advised, save that he concedes that greater precautions might have been taken with the experiment in which the student was set on fire. 113I turn to the question of whether the dismissal was harsh, unreasonable or unjust. 114Section 88 of the Act sets out matters to which the Commission may have regard in the course of determining an application made pursuant to s.84. I have considered those matters. None of them change the effect of the essential consideration, that is, whether the dismissal was harsh, unreasonable or unjust. 115In determining this application I have had regard to the evidence of Mr Schipp, a senior Departmental employee of many years standing and the decisionmaker in this case. 116Mr Schipp gave evidence and was, very properly, pressed hard in cross-examination. In the course of his oral evidence he gave this account of his consideration of the matter: Q As a probationer what was your view, what's the point of the probationary period from your perspective? A The point of the probation period is to determine, I think it's described somewhere I've read, it's a period of time where both parties decide whether they are suitable to each other. Q Would that have involved from the Department's perspective an assessment of whether someone conducts themselves in a manner that is suitable to warrant their permanent appointment? A Well most certainly, that's the purpose from the Department's point of view. Q And how did you regard Mr Krix's conduct vis a vis that issue? A I had serious concerns about Mr Krix's conduct, what concerned me mostly about Mr Krix's conduct was, and I put my mind to this when I was looking, because I do accept that it's a serious step to take, it's someone's employment. What concerned me basically about it was, I have dealt over 38 years in schools where teachers who reacted inappropriately to students. Students can be very difficult, we deal with kid between 13 and 18 it's a tough period of their lives, it's difficult and there were no doubt whatsoever when I read the reports in here, Mr Krix was faced with some challenging students and I accept. And probably in a challenging environment at that school, having said that what concerned me most about Mr Krix, was not his inappropriateness of his reaction to that sort of behaviour. What concerned me most about it was that by his own behaviour he escalated, appeared to provoke and make situations worse. I would have expected a teacher at any stage of some of these issues we were looking at, to take the opportunity to step back, not easy to do. Mr Krix was sworn at, abused, that should never happen to any teacher but I have taught for 38 years it happened to me and the truth of the matter is that we have to have a way of dealing with that appropriately. If it becomes, I've got to save face or if it becomes a power game or you can't say that to me and this is a way I will react, then you are not suitable to be a teacher. 117Further requestioned, Mr Schipp said: 'There is no doubt whatsoever when I read a lot of Mr Krix's submissions in here, he did some wonderful work down at that ag farm and I don't think there is any argument in relation to that. However when I looked at his conduct and behaviour with students in a difficult setting, as I said he is not a man who has had 25 years of service with the Department and I could sit back and say, had a bad period of time, something has happened in his life, we will look at it. Here is a man who is in his first year of permanent service with the Department whose behaviour is totally unacceptable, whose behaviour in the end is putting students at risk. When I made the decision to annulment I based it purely and simply on the basis that in the end, my job like the job of all people in the area in which I work is the protection of kids, that's what it boils down to in the end and I could not guarantee the protection of students, I honestly in my heart of hearts believed in a similar situation again where students perhaps stood up to Mr Krix where they abused him, where they swore at him and that will happen if you teach long enough in the service, if that will happen to you then I'm afraid I could not guarantee and have any confidence that Mr Krix would not react as inappropriately as he did at Riverstone. 118Mr Schipp was also asked a question by the Commission, as follows: Q. Mr Schipp, section 5A of the Teaching Service Act; was that something that had any influence on the way you went about thinking about this matter, that's my question? A. Most certainly sir. The truth of the matter is academic performance is good, social skills are formed, all those things are important in any teaching job within the school but my job and the job of any teacher in the school is in the protection and safety of students and that's what we all have to bear in mind and that's what I bear in mind in my job. And when I look at that, it's always risk management, Mr Krix as I have said I thought was in a very difficult situation with some very challenging students but as I said to you at the start, we get kids in their difficult period of time and if we got kids who are violent, abusive students and then if we react violently and abusive in return to them, then I think we are not going to change children, we are going to perpetuate that situation for those young people. So I think my concern was certainly 5A and certainly as to whether Mr Krix was an appropriate person to be in front of our students and I decided he wasn't. 119I have set out Mr Schipp's evidence at length because in my view it is evidence both entirely central to and persuasive about whether or not the decision to dismiss Mr Krix was harsh, unreasonable or unjust. 120I have found that Mr Krix committed misconduct. The misconduct was serious. It involved in one case physically wresting with a student in the middle of a class, in another case carelessness in the conduct of a dangerous experiment with the result that a student was seriously injured, in another case physically intervening with three Year 7 students so that they fell to the ground, and in the last case breaching a lawful direction not to have such contact with students. 121Given that conduct, and given that it occurred all in the first 20 weeks of his probationary appointment, and given that Mr Krix is even now unable to see that there was anything wrong with any of his conduct, albeit he concedes that greater safety precautions might have been taken with the science experiment, I cannot see that it was either harsh, or unjust, or unreasonable to terminate his employment by annulling his probationary appointment. 122I repeat the particular evidence Mr Schipp gave concerning the decision to annul the appointment that he took. Of that he said this: 'When I made the decision to annulment I based it purely and simply on the basis that in the end, my job like the job of all people in the area in which I work is the protection of kids, that's what it boils down to in the end and I could not guarantee the protection of students.' 123The Department was obliged to take that approach. It could scarcely be otherwise given what had occurred under Mr Krix's charge and given the express statutory and common law obligations that the Department has toward students. 124 In that context I cannot see that the dismissal of a probationary teacher with such significant incidents of misconduct, involving conduct which more than once put at risk the safety of students, in the first 20 weeks of his employment was harsh. It was not, particularly given the obligation to protect students to which I refer above, and Mr Krix's inability to see that he has done anything wrong, and further expresses no contrition for that conduct or for his breach of a lawful direction given to him, unreasonable. The dismissal was lawful, and, again having regard to, specifically, s.5A of the Teaching Service Act and the considerations referred to by Mr Schipp and set out above, it was just. 125I have had regard to the fact that the loss of employment has a heavy consequence both financially and personally. I am obliged, however, to balance that against the conduct Mr Krix has actually committed in the context of his duty of care to students and the Department's statutory obligations to preserve the safety of students. 126Some concern was agitated by counsel for Mr Krix that the process denied him procedural fairness. 127So far as those concerns go to the statements obtained by the Departmental investigator, I have, as I say above, given that material no weight. So far as it goes to the letter to Mr Krix dated 12 September 2012 inviting him to make submissions, that letter is certainly badly worded. It expressly says that Mr Krix is invited to make submissions on, inter alia, the decision that he had committed misconduct. 128Yet when he attended an interview prepared to do that, he was told that he was there to make submissions on penalty. That is not what the letter says. 129That is not enough, however, to change the outcome of this case. 130As is well established, procedural fairness questions do not necessarily determine claims brought pursuant to s.84; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454. Here, the Department's decision, given its obligations to maintain the safety of students set out at length above and given Mr Krix's view that he has not in any event done anything wrong, but was justified in each action that he undertook, would be difficult to hold to be vulnerable to challenge on grounds of procedural unfairness even if that unfairness could be established on the evidence. 131In my view there has not been a departure from the bases of procedural fairness so as to take this matter outside the principles enunciated in Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep). Mr Krix was given opportunities to put his case to the Department, including extensions of time to do so. 132However, even were there some procedural unfairness, and noting my criticisms above of the wording of Department's letter to Mr Krix inviting him to make submissions, the matter has now been fully ventilated before the Commission. 133That has allowed the dismissal and all its surrounding circumstances to be reviewed, and has allowed Mr Krix to present a full case going to the substantive and procedural matters touching on his dismissal. To that end he has been represented by experienced and well-prepared counsel. That being so, any procedural unfairness that might be argued to have been visited on Mr Krix has been able to be remedied: Mason v Electricity Commission of NSW t/a Pacific Power (1995) 62 IR 436 at 442 per Hill J. 134The fundamental problem in Mr Krix's case, however, is that I am simply unable to accept his account of a number of critical events. Procedural questions could not change this. 135I have expressed the view than the decision to dismiss was neither harsh, unreasonable nor unjust. It follows that the orders I make in this matter are as follows. Order 136The application brought by Mr Stephen Krix pursuant to s.84 of the Industrial Relations Act 1996 is dismissed. PETER NEWALL 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: 08 January 2014