Industrial Relations Commission New South Wales Medium Neutral Citation: Mark Adamowski v Department of Education and Communities [2015] NSWIRComm 33 Hearing dates: 24 June 2015, 25 June 2015, 10 July 2015, 17 July 2015 Decision date: 21 October 2015 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Application for relief from alleged unfair dismissal is refused. Catchwords: Application for relief from alleged unfair dismissal pursuant to s84 of Industrial Relations Act 1996 – Termination consequent to conviction for assault on principal – Section 93K Teaching Service Act 1980 – Direction to resign not followed – employment terminated. Issues of psychological difficulty and mental health put as mitigating circumstances. Held – Application dismissed - Principal acted to assist teacher – Dismissal not for teaching performance – Mitigating circumstances not made out – no basis for intervention. Recommendation to review policies and procedures for dealing with mental health issues in the workplace. Legislation Cited: Industrial Relations Act 1996 Teaching Service Act 1980 Crimes Act 1900 Cases Cited: Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Department of Health v Perihan Kaplan (2010) NSWIRComm 65 Re Loty & Holloway v Australian Workers' Union (1971) AR (NSW) 95 Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSW LR 648 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Byrne v Australian Airlines Ltd [1995] HCA24; (1995) 185 CLR 410 Bostik (Australia) Pty Ltd. V Gorgevski (No 2) (1992) 36 FCR 439 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch, [1973]AR (NSW) 231 Category: Principal judgment Parties: Mark Adamowski Department of Education and Communities Representation: Mr M Adamowski (Applicant) Counsel: Mr A Britt (Respondent) File Number(s): IRC 85 of 2014 Judgment 1. The application in this matter was filed on 14 February 2014 by Mr Mark Adamowski, the Applicant, pursuant to Section 84 of the Industrial Relations Act 1996 ("the Act"). 2. The matter was subject to unsuccessful conciliation proceedings before the Commission as presently constituted on 19 March 2014. Directions were issued to prepare the matter for Hearing commencing 2 June 2014 contingent upon compliance with the Directions timetable which concluded with filing of the Applicant's material in reply on 23 May 2014. 3. On 19 March 2014 the Department of Education and Communities (the Department) sought alternate dates due to the unavailability of witnesses owing to school holidays and other pressing commitments. 4. Teleconference proceedings took place on 28 March 2014 resulting in the issue of amended Directions and the matter adjourned to Hearing on date/s to be fixed on compliance with the Directions timetable concluding on 20 June 2014. 5. The matter was reallocated to Commissioner Stanton for Hearing. 6. On 19 May 2014 the Department advised an intention to seek relisting for hearing of an application to have the matter dismissed for want of prosecution. The grounds to be relied upon were that Mr Adamowski had failed to comply with Directions, leaving the Department unaware of the case it had to meet, which would incur significant costs to the Department in preparation of an uncertain Hearing. 7. The matter was subject to Further Directions proceedings before Stanton C on 2 June 2014 and amended Directions issued concluding in August 2014. The file was returned to the Commission as presently constituted for Hearing. 8. On 10 June 2014 Mr Adamowski advised the Registry that there were witnesses willing to give statements on his behalf, however, due to fear of reprisal they would need to be subject to sub poena; and further that his legal adviser had been injured and, while he had an appointment at 3.00 pm that day with another lawyer, he was concerned that he would not meet the timetable. 9. On 30 September 2014 the Applicant advised the Commission that he had been in hospital for 19 days at that time due to depression. He requested that the dates for Hearing be vacated and rescheduled in 2015. The Applicant indicated that it was his intention to approach the Respondent to discuss settlement so as to avoid arbitration. 10. On 1 October 2014 the Department advised that it had received advice from the Applicant on 20 September 2014 that he was in hospital and would be unable to proceed with the matter for nine weeks, or possibly longer. 11. In the circumstances Hearing of the matter was rescheduled to 17, 18, 19 February 2015. 12. On 29 November 2014 the Department sought deferment of the February Hearing dates to due to unavailability of Counsel. There was an exchange between the parties resulting in Mr Adamowski consenting to the change of date provided it did not prejudice his case. 13. On 2 December 2014 the Department made application for the evidence of Luke Naividi, Principle Investigator, Conduct Directorate, and Jane Thorpe, Director Employee Performance and Conduct Directorate, to give evidence by telephone. An objection by Mr Adamowski was upheld in respect to Ms Thorpe who ultimately attended proceedings and was available for cross examination. 14. Leave was allowed for Mr Naividi, who had provided only a short statement of seven paragraphs in respect to NAPLAN testing at Centaur Public School, to give evidence by telephone. In the event, no evidence was called from Mr Naividi. 15. The matter was subsequently rescheduled to Hearing on 18, 19, 20 March 2015 at Tweed Heads Court. 16. Mr Adamowski did not appear on 18 March 2015. Mr J Bennett appeared on behalf of the Department. 17. Proceedings were adjourned and telephone enquiry made of Mr Adamowski who communicated that he was unwell and would not be able to attend proceedings. 18. The Hearing was vacated and the matter put over to 21 May 2015 at Tweed Heads for further Directions. 19. On 21 May 2015 Mr Adamowski appeared with his wife, Ms Belinda Hinchey. Mr J Bennett appeared for the Department. 20. These proceedings canvassed a number of procedural issues and available dates. Mr Adamowski advised that his health was improved and he was able to proceed, however, he required certain information from the Department which Mr Bennett undertook to provide. 21. Mr Adamowski put that the major contributor to his poor health was adverse statements by two members of staff included in the material filed by the Department. Mr Adamowski put that these persons informed him they had not made the statements. 22. A consensus was reached that the matter would proceed to Hearing on 24 and 25 June 2015. 23. It is appropriate to note in passing that nothing came of attempts at settlement mentioned earlier by Mr Adamowski and some attempts by the Department. The strike out application foreshadowed by the Department was not prosecuted. 24. The circumstances are unfortunate; however, the matter stands to be determined on the conduct of Mr Adamowski and the factual context of the matter, not perception, innuendo or gossip. 25. At Hearing Mr Adamowski appeared and gave evidence on his own behalf; and. brought evidence from Mr Peter Hall, retired general assistant at Centaur Public School (CPS). 26. Mr Adamowski sought to provide Statements of evidence from two named individuals and one anonymous, whom he put would not be available for cross examination. Objections to this material by the Department were upheld. 27. Mr Adamowski also sought to tender correspondence from Mr Tim Loughnan, a psychologist and family therapist who also was not available for cross examination. An objection to this tender was also upheld. 28. Mr A Britt of Counsel appeared on behalf of the Department with Mr J Bennett. 29. Mr Britt brought evidence from: Ms J Thorpe – Director Employee Performance and Conduct Directorate and the decision maker in relation to Mr Adamowski's status of employment; Ms R Reeves – Teacher employed by the Department at Banora Point High School and previously employed as a teacher at CPS during the period of Mr Adamowski's employment; Ms J Foster – Deputy Principal employed by the Department at Pottsville Beach Public School and previously employed as Deputy Principal at CPS during the period of Mr Adamowski's employment; Mr D Scott – School Principal employed by the Department at CPS both currently and during Mr Adamowski's employment. . Factual Context 1. Mr Adamowski was employed at CPS as a full time special needs teacher commencing employment on 27 January 2010. 2. On 21 June 2010 Mr Adamowski was placed on an Informal Support Plan with assistance from Alexis Malcolm, Tweed Support Officer. Mr Adamowski's performance improved after five weeks of informal support and a decision was made by the Principal, Mr Scott, that there was no need to place him on a Formal Teacher Improvement Plan. 3. From November 2012 to March 2013 a number of events occurred in relation to Mr Adamowski's conduct leading to the view that he should be placed on a Formal Teacher Improvement Program. This program did not commence as an assault by Mr Adamowski on Mr Scott prevented the program's implementation. 4. It is Mr Adamowski's view that he was to be placed on a Formal Teacher Improvement Program as a result of a number of issues unrelated to his teaching ability. 5. Mr Adamowski put that Mr Scott took a dislike to him and used conduct issues such as Mr Adamowski's clothing (Mr Scott had directed him not to wear clothing described as "five fingers" and to refrain from wearing open footwear); and taking issue in relation to NAPLAN testing at the school. Mr Adamowski asserted that NAPLAN testing was conducted in such a way as to distort the results to show the school, and Mr Scott, in a better light, to the disadvantage of the special needs students. 6. Mr Adamowski submitted that being assigned to the Teacher Improvement Program was a form of disciplinary bullying. 7. This is refuted by the Department. 8. The allegation that Mr Scott and others falsified NAPLAN reporting to improve the School's statistics is not a matter material to these proceedings. 9. These allegations were investigated and found to be without foundation. Mr Adamowski sought to use these proceedings to challenge that finding. To permit such an exercise would be an abuse of process. Any challenge Mr Adamowski wishes to make should be taken up through appropriate procedures. 10. The issue here is the conduct of Mr Adamowski. 11. On 27 March 2013, as a result of the assault, Mr Adamowski was placed on alternative duties pending the outcome of Local Court proceedings. 12. On 30 April 2013, Mr Adamowski submitted a workers compensation claim for depression in relation to alleged incidents of bullying. This claim was declined by the Workers Compensation Insurer in May 2013. 13. Proceedings listed in Tweed Heads Local Court on 24 July 2013 resulted in Mr Adamowski being convicted of common assault under Section 61 of the Crimes Act 1900 which carries a maximum penalty of 2 years imprisonment. 14. Mr Adamowski was placed on a good behaviour bond with a 12 month Apprehended Domestic Violence Order (AVO) in respect to Mr Scott. 15. An investigation was commenced by the Employee Performance and Conduct Directorate (EPAC) in accordance with Guidelines for the Management of Conduct and Performance. 16. On 25 October 2013 Ms Jane Thorpe (Director of EPAC) wrote to Mr Adamowski in relation to the incident and associated outcomes, advising various findings and the proposed penalty after a consideration of material before her. 17. It is put that Mr Adamowski was provided with the report in relation to the incident and all relevant documentation. The Applicant was also advised that [1] : a. He now had an opportunity to have an interview, accompanied by a support person, with Ms Jane Thorpe, the decision maker. b. Could provide any additional material, make submissions in relation to the initial findings or raise any extenuating and mitigating circumstances. c. That disciplinary action ranging from a caution or reprimand to dismissal could be taken and the severest penalty Ms Thorpe was recommending that the Applicant be directed to resign from the Teaching Service. 1. On 12 November 2013 Mr Adamowski provided written submissions [2] in response to the Respondent's letter of 25 October 2013. 2. On 29 November 2013 after consideration of all relevant information including Mr Adamowski's submissions, the Department found that he did indeed engage in misconduct which violated the Department's code of conduct and as a result was directed to resign within 14 days or face dismissal. 3. On 13 December 2013 Mr Adamowski provided further submissions. 4. On 20 January 2014 he was informed that the material provided was considered, however, the Department's position was unchanged. 5. Mr Adamowski was directed to resign by 27 January 2014 and advised that failure to do so would result in dismissal. 6. Mr Adamowski did not resign and was officially dismissed on 28 January 2014. The Applicant's Evidence 1. Mr Adamowski's evidence is contained within a bundle of documents tendered at Hearing on 24 June 2015 [3] ; a written Statement [4] ; orally in chief; and during the course of cross examination. Mr Adamowski also relied upon information provided in his application [5] , and a report he made to the Murwillumbah District Office containing allegations against Mr Scott and other unnamed individuals which was forwarded to the Manager, Corruption Prevention (Audit Directorate) [6] 2. Mr Adamowski also brought evidence from Mr Peter Hall, now retired, who formerly worked as a general assistant at CPS. 3. Mr Hall's evidence is that he was standing outside the Deputy Principal's office when he overheard Mr Scott talking to Ms Foster. Mr Hall's evidence is: [7] "Jen, if we keep push, push, push we can get rid of him and then we'll start on the other one," with that he turned around and walked out, and he saw me standing there and he said, "You didn't hear any of that did you?" and I said, "Any of what?" in a very stern voice, and that was about the last time I ever spoke to Mr Scott. Two days after that I virtually told him to get a relief person back in and left the job. 1. Mr Hall deposed that he was not aware who the subjects of the conversation were but later, by process of assumption and conversation "on the grapevine" concluded it was Mr Adamowski and a Ms Carlson. 2. In cross examination of Mr Hall it was established that he worked in the Department for some 20 years, the previous eight at CPS. 3. Mr Hall acknowledged that a code of conduct existed and that assault of one teacher by another was an event he had not encountered during the course of his employment. The Respondent's Evidence The evidence of Mr Darren Scott 1. The evidence of Mr Scott is by affidavit [8] and cross examination by Mr Adamowski. 2. Mr Scott deposed that he had been Principal of CPS a co-educational primary school with 473 students and 38 staff members including 27 teachers, for over five years. At the time of Hearing Mr Scott was on approved leave without pay and scheduled to return to CPS as principal in late December 2015. 3. Mr Scott's evidence is that he first became aware that Mr Adamowski was having difficulties in early 2010 and he initiated a five week informal support plan with the assistance of Alexis Malcolm, the Tweed Support Officer. 4. Mr Scott accepted that there was improvement to the minimum standard; however, by November 2012 Mr Adamowski's teaching standards were again declining. 5. Mr Scott put that Mr Adamowski's classroom appeared untidy and disorganised, that parents had raised some minor concerns about the level of rigour in the classroom, and that he was concerned with the lack of programmed activity, individual learning plans and class management. 6. Mr Scott's evidence is that he conveyed his concerns to Mr Adamowski and sought to engage him in further informal support. 7. Mr Scott sought assistance and support for Mr Adamowski from Denise Chesney, Injury Management Adviser employed by the Department, and Darlene Arkinstall, School Education Director, Far North Coast, by email correspondence dated 19 December 2012 [9] in the following terms: "Good morning Denise, I am wishing to raise some major concerns about one of my staff members - Mark Adamowskl. I am so gravely concerned not only for his mental well being, but for the health and safety of the children he is supposed to be caring. I am aware that he Is on medications and that he has a long history with mental health. I believe that he has professional medical support. Alexis Malcolm Is aware of Mark and assisted me with some concerns when he first arrived at Centaur several years ago. He has a long history of sickness, absence and poor performance. I have just initiated a formal program of support through EPAC as form day 1 2013. I am gravely concerned for the well being of the seven brand new enrolments that will enter his classroom at the beginning of 2013. He has on several occasions stated to his Teachers Aides In his room- "I am unstable today". They then responded by doing everything to look after the well being of the students in that class. He is fixated on me at the moment and it seems to dominate every moment of his day. His fixation is unhealthy and obsessive. He lost two children this week. We had to search high and low to find them. In fact, one was lost when he was only looking after two. He left an opened stanley knife on his desk In his classroom. This classroom Is with students of special needs, both IO and IS students- ages 5 to 7. Last week I went into the room and found one of his students sitting with a very large pair of teacher scissors in their lap - Mark had not realised this. Several weeks before I rescued a student form bashing their head on a brick wall right beside where Mark was standing. He seemed completely oblivious to this as being an issue. He is incredibly absent minded in terms of duty of care, and as his teachers aides have expressed it­ He just does not get it. You can tell him something ten times, but he does not hear. He can even be served something in writing but he does not comprehend. He truly believes that he is exemplary in every aspect of his performance - which is so far from reality. He appears so separated from reality. This brings me to me area of concern - his mental well being. Can you advise me as to how I proceed with this issue and what support is available for Mark A and the students in that class." 1. Mr Scott also forwarded a request for assistance and support to Mr Peter Campbell, School Education Director, Richmond Valley on 19 December 2012 [10] in the following terms: "Good morning Peter, I am writing to include you in some information that is of grave concern to me. I am aware that Darlene is away and she has left your email as our point of contact. Please find an email that I recently sent to Denise Chesney regarding one of my staff members at Centaur School. Denise is away today but I spoke to Philip Elsing regarding this matter. I do wish to proceed with an independent medical assessment of this teacher and will be sending letters and supervisors reports as needed to Denise today. My key concern is that due to the timing of this issue he may actually be In front of seven brand new IO/OS five year olds next year. This is one major concern. He has evidenced that he loses students when he has only a few to look after, and yet we will place him as the key person for care of seven new enrolments that we do not really know much about. His classroom is unsafe - which I attributed originally to his non performance, but now I sense that it may be due to his physical/ mental health. I am not the only one that has this concern. The SLSOs that support him in the classroom are deeply concerned for the safety and well being of the students. These concerns are also shared by my DP and his direct supervisor. He has an amazing record from his previous school career, including major bouts of leave, depression, transfers etc etc etc. He has managed to systematically avoid being held accountable for his performance - but I fear that it is due to something a lot more worrying. I am incredibly uncomfortable with him being on class at all, let alone supporting those students that are my most vulnerable. Can you advise how we can support both Mark A and also the students in his care at the commencement of 2013." 1. There is no evidence of any practical response to Mr Scott, who was left to deal with the matter as a managerial and disciplinary issue. 2. The closest any reference is made to this is during the cross examination of Mr Scott by Mr Adamowski set out below [11] : "Q. In 2012 we were informed Peter Campbell, the school education director, concerns about my health, do you recall that? A. Informing Peter Campbell? Q. Yes, about my health? A. Yes, I do. Q. Do you recall what you said? A. It's in my affidavit, yes I do recall. Q. In your affidavit you said that you thought I should see a medical doctor, do you remember that, it's in your affidavit? A. If it's contained in there I did make statements that I was concerned for you medically, yes. Q. Did you contact any other persons about my mental health? A. It's in the affidavit, I believe I did Mark. Q. You contacted Denise Chesney, you contacted local district office, Darlene Arkansas [sic]? A. My director, yes. Q. Did you act on that? A. Act on what Q. You had concerns about my mental health? You had concerns that I needed to see a medical doctor? You had concerns that I needed to see a medical doctor, did you act on that? A. I was raising those concerns with intentions to provide support. Q. Did you act on it? A. That's how you act on that Mark. Q. Did anybody act on that? A. As a principal that says I acted, I made aware so that we could then design how we were going to support, that's a normal routine for a principal." 1. There is room for the view that both Mr Scott and Mr Adamowski were victims of the situation, which deteriorated from this point. 2. The evidence is that Mr Scott sought to assist Mr Adamowski who saw every attempt by Mr Scott as an act of persecution and bullying. 3. Mr Adamowski refuted the allegations that children had wandered out of his classroom, been lost by him, or that any student was placed at risk by access to sharp objects identified as a Stanley knife and scissors. Mr Adamowski testified that these events either did not occur or were elevated out of proportion to purposefully discredit him. 4. Mr Adamowski challenged Mr Scott on the issue of informal support during cross examination as set out below: [12] Q. Can you tell me the policy you followed for informal support, can you tell me the DEC policy, where'd you get that information? A. There is no DEC policy just on informal support Mark. Q. You just make it up? As a principal you make up the program? A. The way to support a personnel within my school informally absolutely, I would do that and I'd tailor it to the needs of any staff member. Q. Did you not think it be wiser to follow a program that is already set up, the teacher improvement program? A. But Mark this was informal support, which I had put in place on multiple occasions with personnel within my school over my 25 years as a principle where I support them prior to having to move to any formal support program, and that's a regular part of a principal's job is to support their staff informally prior to it leading to anything formal which is then written down and covered under the policy for managing teachers who are experiencing difficulty with their performance. Q. Do you think it was being supportive asking me to meet you every week when I did not want to meet every week, I found a problem with it, do you think that was supportive? A. I think that's very supportive Mark. Q. When I found issue with it, do you think that's supportive? A. Mark, as a person within that school my job is to support my staff, which means I need to be able convene and meet with them to see how their travelling, I'm travelling, it's part of the rule of being within a school context is that the request to meet is a way of me supporting you. Q. If I say now that I was afraid of you, psychologically afraid of you at that time, I was afraid to be in your office, do you think that is support? Do you think your choice now is support if I tell you now that I was psychologically afraid to step into that office? A. Mark you're telling me that two years later" 1. There were a number of further attempts to deal with the issues, including an informal support meeting on 13 February 2013 involving Mr Adamowski, Ms Foster and Ms Linda Hazell, North Coast Teacher's Federation representative. 2. The minutes of this meeting note, among other things [13] : ● Mark raised concerns about chains on gates, this has been addressed and we are following up. Mark will need to familiarise himself with this. Many changes have occurred. ● WHS committee to discuss Mark's concerns. ● Communications – best practice to be followed with all staff. Regular discussions about behaviour and safety, SLSO have asked for more communication. All personnel in the class. ● Have already investigated (With Fiona Hoath) ratio of students to staff and she stated staffed correctly. Will need to dialogue with Jenny T and students placement. ● Mark states all seems fine with him. ● Each Friday at 2:45pm to meet with Darren and Jenny T. Fed rep to support Mark if he wishes. ● Linda explained what happens from the support plan. If evidenced no further action. When back on class how long would plan last for? Initially for 5 weeks from beginning of year. Time will be provided to complete this. Minimum 3 weeks, maximum 5 weeks. 3 – 5 weeks actual teaching. ● How can safety be resolved – risk assessment safety discussions, implementation of recommendations, discussions of safety needs of students. Safety will be signed off on prior to Mark doing face to face teaching. ● Denise Chesney – can Mark have access of safety concerns? Darren has provided this to Mark and will provide supervisor report to him. The evidence of Ms Rachel Reeves 1. There is evidence from Ms Rachel Reeves, who was assigned to assist Mr Adamowski in the classroom in the capacity of a student undertaking practical study and as a teacher's aide, which supports Mr Scott's evidence as to Mr Adamowski's need for assistance. 2. Ms Jenelle Foster, Deputy Principal, requested Ms Reeves observe Mr Adamowski's class and report to her. This report is included within Ms Reeves' Statement of evidence [14] . 3. Ms Reeves' observations were that there was a lack of teaching plans, a tendency to allow students to wander, and conduct issues left to aides rather than Mr Adamowski taking control of the classroom as the teacher in charge. In particular Ms Reeves observed: ● No structure to the day, for example at the beginning of class Mr A does not attempt to begin any daily lessons it seems to be left to the aides to determine what activities can be completed with the students ● Mr A implements little and inconsistent behaviour strategies with the students and often allows them to wander around the classroom independently. ● Mr A focuses on issues that are of little or no importance to the general wellbeing of the class. ● I have located and removed sharp scissors that have been left lying around the classroom on two separate occasions while Mr A was on class. ● The storeroom has been left unlocked with easy access by the students. ● Mr A is often unaware of the whereabouts of this class keys, and on one occasion I have seen a student from the class with them. … ● Mr A will often leave his personal bag on the floor where it is easily accessible by the students. ● Mr A had unlocked the side gate (which has a bike lock on it when Justin is present) and walked off leaving the gate unlocked. ● I was walking towards the side door of the classroom when I saw it open and Blake was starting to exit the class. I grabbed him and returned him back inside. … ● Mr A will often stand by and let the aides deal with different behaviour issues with the students, including aggressive behaviour by Justin. ● Mr A will often leave the classroom doors unlocked allowing students to easily leave the classroom unassisted. … ● Children are often left to their own devices within the classroom during change time I have removed students from desktops and on top of things where they could easily fall. Mr A was in the room but did not address this concern. ● The aides are not provided with any work from Mr A when it comes to completing one on one work with the students,. The aides are expected to devise their own lessons." 1. Mr Adamowski resented the notion that a person with less teaching experience was assigned to assist him, was making observations on his class and judgements concerning his ability and conduct as a teacher. 2. Mr Adamowski denies that the conduct referred to Ms Reeves occurred. 3. Be that as it may the issue here is not particularly the teaching ability of Mr Adamowski, but his reaction to the assistance offered, his refusal to engage with anyone, particularly Mr Scott, and ultimately the assault on Mr Scott. 4. Ms Reeves was present at the time of the assault. Her evidence is that she heard a scuffle and turned to see Mr Adamowski standing over Mr Scott saying, "No, you pushed me, you pushed me". The evidence of Ms Janelle Foster 1. Ms Jenelle Foster is employed by the Department as Deputy Principal of Pottsville Beach Public School, however, at the time of the events in this matter was Deputy Principal of CPS. 2. Ms Foster's evidence [15] is that she was the NAPLAN Co-ordinator at CPS. Ms Foster deposed that Mr Scott requested she meet with Mr Adamowski as he was one of seven staff who had yet to submit their NAPLAN analysis, and to discuss issues of student documentation. 3. The first meeting with Mr Adamowski on these subjects, in her evidence, took place on 12 December 2012. Subsequent discussions took place by email and face to face during 2013. Ms Foster also observed lessons conducted by Mr Adamowski on 4 March and 15 March 2013. She subsequently had discussions with him both by email and in person, concerning his failure to provide lesson reflections and lesson plans. 4. Ms Foster informed Mr Scott of her observations and discussion with Mr Adamowski, which reinforced the conclusion that he required assistance. 5. Mr Adamowski asserted that he had been set up to fail by being required to take a class of nine special needs children, which he put was acknowledged by subsequent reduction in class size to six students. 6. This proposition is refuted by the Department. 7. Mr Adamowski put the class size issue to Ms Foster in cross examination. In response Ms Foster gave evidence that class sizing for special needs children is determined by a points system which aggregates the needs of each individual to determine teaching and support requirements, emphasising that the needs of the students, not class size, is the criteria. 8. Ms Foster asserted that Mr Adamowski's class had been assessed and checked with the Regional Office and on established criteria the staffing for the nine students in the class was appropriate. Ms Foster gave evidence that the class size reduction took place due to the enrolment of additional special needs students which required a second class to be established, not due to any conclusion that the initial class size of nine students was inappropriate. 9. There is evidence of an incident of conflict between Mr Adamowski and Mr Scott at CPS when he attended a NAIDOC Day event with his daughter and was required to leave. 10. At the time Mr Adamowski was subject to an AVO in respect to Mr Scott. 11. Mr Adamowski disputes that he was asked to leave by police, and asserts that Mr Scott had him removed and that he left peacefully when requested. The Assault 1. It is not appropriate to review the Decision of the Local Court which found Mr Adamowski guilty of assault. It is that conviction which triggered the disciplinary action. 2. Mr Adamowski maintains that he has been unfairly treated in the context of that event. 3. The event is described by Mr Scott in the following terms: [16] Incident report: 26th March 8.55am Centaur PS Place of incident: Kitchenette between two support class Incident: Assault of the Darren Scott (Principal of Centaur PS) by Mark Adamowski(Classroom Teacher} Report prepared by Darren J Scott (Principal) I was in the kitchenette filling up a 10 litre garbage bin to fill the aquarium in Jenny Toyer's classroom. No other staff or students were in the room or kitchenette at the time while I was filling the tank. Mark A entered the kitchenette. I said good morning and Mark A said it back. I said calmly and in a normal conversational tone "you will need to stop playing games with this support plan". His response was forceful, aggressive and angry. He used a louder than normal voice and an aggressive tone and said " I am not playing games you are". He was on the other side of the kitchenette at this time. I said "you have failed to convene with me over the last 5 weeks, despite my absolute best efforts to provide you feedback. You have systematically avoided us convening." Mark A moved towards the doorway and is now only 3 metres away. His voice was getting louder and angrier and he was sweating profusely and legs were noticeably shaking and he said you failed me, you have not provided any level of support or direction or feedback in the last 5 weeks, you have failed me. As the boss you have the responsibility for your staff and you failed. " I said "I am glad you have acknowledged that I am the boss". Mark you have failed more than just convening with me, you have failed on nearly all fronts. I have been trying to communicate this with you but you have completely avoided getting this feedback from me." Two people arrived in the kitchenette: Jenny Tower (Assistant Principal Support) and Rachael Reeves (SLSO). I was still in the middle of filling the fish tank and I filled another bin and moved towards the doorway to access the tank. Mark was very agitated and hostile and he deliberately blocked my access through the doorway by standing in the door and locking his hands around the door jam and leaning forward towards me in an aggressive manner. His gesture was one of physical determination and he was bracing himself against the door. His mouth was quivering, he was sweaty profusely and at that point I could smell alcohol on his breath and on his body through his sweat I was almost at the doorway when he assumed the above position and I steadied myself from colliding with him as I had assumed that he would move out of the way to enable me to unload the 10 litre bucket of water. I was now only a few centimetres from him in the doorway. I was shocked that he had deliberately blocked me. I stopped and he shoved me with enough force to send me reeling backwards by2/3 metres. I then steadied myself and I responded "my god Mark, you just assaulted me" and Mark replied you assaulted me. I then said "let's see what the witnesses have to say." I tried to move toward the door again and I directed him to move away from the door. I asked 3 or 4times and he refused. I then directed him to leave the school site and I am told him that I would be reporting this assault to the police. He then moved into the kitchen and followed me in an aggressive fashion into the other classroom. He was continuing to yell at me but I cannot recall the contents of his statements. He told me he wanted to contact my boss and I tried to give him the phone number and he said, "I don't want that, I am going to see her personally." I said good bye. Mark A left the classroom whilst smiling and laughing at me. Rachael Reeves offered me a glass of water and both Jenny Toyer and Rachael Reeves asked if I was OK. I made arrangements for his class to be covered, contacted District Office to inform them of the incident and the pending visit from Mark A, and then contacted my Director Mrs Darlene Arkinstall. 1. Mr Adamowski refutes the version offered by Mr Scott, putting that he was not the aggressor as asserted and was offended by Mr Scott not engaging with him properly, but continuing to fill the fish tank. 2. Mr Adamowski put: [17] Q. I'm saying you have 20 years as a professional principal, and you have encountered a great deal of behaviour, am I wrong in saying that statement? A. No, that statement would be true. Q. You have encountered a great deal of upset parents, is that true? A. That's true. Q. You see me upset, you chose to continue putting water in the fish tank, is that true? A. I think that you're twisting the upset time frame, it was you came into the kitchenette and I acknowledged you as being there, I did not know there was no I did not gauge you were upset, you were out of sorts, at the time it was a "good morning Mark," it was as I would say to any staff member that walked either past me or to me, it was an acknowledgement, so if you're trying to say that I knew you were in an upset state before I then approached you that's a misinterpretation of what took place. 1. After further exchange Mr Adamowski further questioned Mr Scott: [18] Q. Sorry, you did say you had experience with aggressive parents? A. Yes. Q. You did not find filling up a fish tank odd when one of your teachers is acting aggressive? A. I've used a strategy Mark for years is let's talk and walk Q. It did not work on the day? A. Well in this circumstance it led to a where you assaulted me, but I don't believe there's blame on my behalf for that assault taking place Mr Adamowski. 1. The assault was subject to proceedings in the Local Court in which Mr Adamowski was found guilty. Mr Adamowski complained that he was poorly represented in those proceedings and was not able to put his defence properly. Mr Adamowski maintained that he was the victim, not the aggressor. 2. Mr Adamowski further relied upon the Departmental Anti-Bullying Plan specific to CPS [19] which references violence in the following terms: "Violence is the damaging and destructive use of force. Violence is used to assert power over individuals. Violence: ● is not just physical – it takes many forms ● affects the safety, rights and freedom of others ● may be a one-off incident between individuals or groups ● can involve an ongoing relationship between parties ● may involve provoked or unprovoked acts ● may be used by those victimised by bullying to redress the imbalance of power" 1. Mr Adamowski put that while he did not support or condone violence in the workplace, he noted that the policy recognised the possibility of violence by those subject to bullying, as he asserts he was. Submissions 1. At the conclusion of evidentiary proceedings on 25 June 2015, Mr Britt relied upon the Department's outline of argument filed on 26 March 2014; and further written submissions tendered in proceedings on 25 June 2015, marked for housekeeping purposes as Exhibit 11. 2. The Department's argument is that the conviction for common assault against Mr Adamowski triggered disciplinary action and that in all of the circumstances termination of employment was appropriate; procedural fairness was afforded; reinstatement is not practical; and compensation is not warranted. 3. Mr Adamowski sought an opportunity to consider those submissions and reply in writing. 4. Written submissions were received from Mr Adamowski on 10 July 2015 and in reply from Mr Britt on 17 July 2015. 5. The Department submitted that the decision to terminate Mr Adamowski's employment was well grounded in fact and law, in particular the assault upon Mr Scott and failure to abide by Departmental policies. 6. In the outline of argument filed on 26 March 2015 the Department put that the allegations of bullying are neither relevant, nor the assault on Mr Scott justified. 7. The Department put: "32. … the Principal had concerns with the Applicant's teaching standards. Placing the Applicant on informal support and subsequently on a teacher improvement program ("TIP") is not bullying. 33. Where a teacher is identified as heaving teaching difficulties (as was the Applicant) a principal is required to address those performance issues. Informal support and a TIP are designed to help the teacher improve and reach the standard required for the position. Failure to manage the performance of such a teacher would have detrimental impact of the learning outcomes for the students of that teacher. 34. It is noted the applicant failed the informal support but never commenced the TIP as the assault resulted in his dismissal prior to commencement of his TIP. 35. The Respondent's evidence refutes the Applicant's assertions concerning bullying. The Respondent refers to the affidavit of Janelle Foster at paragraphs 36 and 37, Darren Scott paragraphs 67 to 73 and Rachael Reeves paragraph 9." 1. The Department submitted that the termination of Mr Adamowski's employment was neither harsh, unreasonable nor unjust having regard to the evidence which demonstrates that Mr Adamowski: "a. had assaulted the Principal of the School b. has failed to comply with lawful directions and policies; c. has failed to provide any legitimate basis for his conduct; d. has not apologised for his behaviour; e. provides no evidence that he was an exemplary employee; and f. has no special circumstances that warrant mitigation of the penalty of dismissal" 1. The Department put that Mr Adamowski was given an opportunity to make submissions in respect to disciplinary action and was afforded procedural fairness and natural justice. 2. The Department put: "Section 93A(a) of the Teaching Service Act hold that appropriate standards of conduct and work related performance for officers in the Teaching Service are upheld. The Applicant's assault of Darren Smith is a clear violation of that requirement." 1. The written submissions by Mr Britt [20] traverse the well settled proposition that consideration must be given to severity and mitigating circumstances. 2. Mr Britt also relied upon the consideration of the term "harsh" by the Full Bench of this Commission in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at [24]: "The term "harsh" was considered by the Full Bench of this Commission in Department of Health v Perihan Kaplan (2010) NSWIRComm 65. It was observed at paragraphs 27-29 that: "..............There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union (1971) AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals........requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99).In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. This conclusion must also follow from the very meaning of the concept of "harshness" within s84 (1). The words "harsh, unreasonable or unjust" in sec 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd [1995] HCA24; (1995) 185 CLR 410 at [467] ("Byrne") per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd. v Gorgevski (No2) (1992) 36 FCR 439 at [28]. The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. We would add to the discussion of the meaning of the expression 'harsh' [for the purposes of s 84 (1)], our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch, [1973]AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of fairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence." And later at [35]: "Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent." 1. Mr Britt put a submission in the alternative that should the termination of employment be found to be harsh, unreasonable and unjust, re-instatement is impracticable having regard to: 1. The severity of the misconduct; 2. Failure to meet expected standards on a continued basis; 3. Mr Adamowski continues to substantially deny any wrong doing; 4. The lack of apology or remorse; 5. The nature of the role of a teacher; 6. The breakdown in the relationship with the Principal, Mr Scott; 7. The loss of trust and confidence. 1. Mr Britt submitted that there is no alternate position available within the scope of s89(2) of the Act. In considering compensation Mr Britt put that the Commission must take into account that Mr Adamowski was unable to work with Mr Scott until 24 July 2014, and consideration must be made in respect to other periods that Mr Adamowski was unable to work due to illness and his attempt to find alternate employment. 2. The Department reserved its position in respect to costs. 3. Mr Britt put a general submission as to credit, submitting that the witnesses brought by the Department are to be preferred to the Applicant. 4. With the benefit of these arguments Mr Adamowski put written submissions on 10 July 2015. 5. Mr Adamowski submitted that the termination of his employment and placement on a list of persons never to be re-employed was harsh and failed to take into account mitigating circumstances. 6. Mr Adamowski further submitted that the Department failed to follow due process in the investigation of his complaints, and had it done so the incident for which he was dismissed would never have happened. 7. Mr Adamowski accepts that physical violence is unacceptable, however, put that there were mitigating circumstances and that there were alternative disciplinary options which were more appropriate. Harshness 1. Mr Adamowski submitted that termination was harsh as it is the most severe sanction available to the employer under the regulations. The other forms of sanction are a caution or reprimand, the imposition of a fine, reduction in salary or demotion, or a direction to resign. 2. Mr Adamowski submitted that refusal of a certificate of teaching prevented further employment; that termination resulted in loss of association with colleagues and financial hardship resulting in his wife having to increase her working hours which was still insufficient to meet mortgage payments and risked repossession of the family home. 3. Mr Adamowski submitted that termination of his employment caused family stress, putting that: "My daughter's care has been greatly affected. Her mother is extremely stressed as she has to work much longer hours to make ends meet and also has to cope with caring for a husband whose mental health is precarious with all that that entails. She has been unable to spend adequate time with her daughter due to the increased demands placed on her by my unemployment and depression." Mitigating Circumstances 1. Mr Adamowski submitted: "The incident for which I was dismissed was the result of an assault for which I was convicted. I accept that I should not have pushed Mr. Scott and admitted that this was unacceptable behaviour however there were mitigating circumstances on that day and also for a good 7 months up to that point. … Being a Special needs teacher is a vocation. It is a very difficult job that can be intrinsically rewarding. There are not many people that possess the patience and compassion and interest to be able to do this job. Indeed at Centaur Primary school there was little recognition of the daily dangers and demands that are posed by teaching special needs children by Mr. Scott as Principal or Jenny Foster as deputy. It is of interest to note that there are no longer any teachers currently working in the special needs unit that were there during my time." 1. Mr Adamowski asserted that his criticism of NAPLAN testing and results were the cause of Mr Scott's negative attitude towards him, not his teaching ability or behaviour. Mr Adamowski submitted that he had been assessed in accordance with TARS (Teacher Assessment and Review Schedule) in 2013 without adverse comment. 2. Mr Adamowski further submitted that Mr Scott failed in 2010, 2011 and 2012 to properly assess staff in accordance with Departmental policy and the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions (State) Award 2009 [21] 3. Mr Adamowski's primary submission put to mitigate his behaviour was the allegation of bullying and lack of support, in particular having regard to his psychological state. 4. Mr Adamowski referred to what he regarded as inconsistencies between the evidence of Mr Scott and Ms Foster in respect to his teaching ability. He refuted the notion that Ms Foster had offered him support, putting that: "…What she did instead was to write reports critical of my teaching ability with no regard to the depression and anxiety that I was suffering. She also failed to report or advise me on how to fill in an OH & S report and file it on bullying despite her being our on-site HRS rep and also being fully aware that I was afraid of Mr. Scott and felt that he was bullying me. When asked in court what she could have done better, she said, "I don't know I am not a Doctor." Specifically she failed to consult anyone that did have qualifications for advice within the department such as a psychologist or welfare officer nor did she properly follow-up on OH & S concerns that I raised including class size and bullying. I submit that I was bullied for a long period of time by Mr. Scott, that he himself, the education department, his superior (Darlene Askinsall) and his deputy (Jenny Foster who was also the HRS rep) failed to properly regard my issue, failed in their duty to provide me with a safe working environment, failed to act within department policy guidelines which I will outline below and as a result I suffered serious psychological harm." 1. Mr Adamowski further submitted that he was subject to ongoing bullying and improper treatment following the termination of his employment; in particular: 1. Failure to realise his teaching certificate, which he put cost him alternate employment and the opportunity to build on those qualifications by further study at TAFE with a view to obtaining alternative employment. 2. Exclusion from NAIDOC Day events at the School. 1. Mr Adamowski attended CPS with his daughter, who is a student at another school in the area, to participate in the NAIDOC Day events on a date subsequent to his conviction and the placement of the AVO in respect to Mr Scott. 2. Mr Adamowski put that he informed police in attendance that there was an AVO in place preventing him being in proximity to Mr Scott, and he was told he could attend. 3. Mr Adamowski contended that to minimise any risks he tried to stay on the periphery, purposefully keeping as far away from Mr Scott as possible. He submitted that he was ultimately asked to leave, which he put he complied with, and denied that he had to be escorted from the school by police, which he put "was embarrassing for both his daughter and soul destroying for himself." Failure to properly investigate 1. Mr Adamowski submitted that there was no evidence to support an assessment by the Department that he was a poor teacher, putting that the information relied upon was spurious, statements were fabricated, and there was nothing from his direct superior. 2. Mr Adamowski was most critical of the reports obtained by Mr Scott from Ms Brenda Sgro and Ms Shantelle Russell, Support Learning Officers (SLOs) of the Support Unit. The reports, dated 4 February 2013, were prior to the assault of 26 March 2013, during the course of various attempts by Mr Scott to assist Mr Adamowski. 3. Mr Adamowski accused Mr Scott of fabricating these reports and asserted that he had direct information from the two SLOs that they had not made the reports. Mr Scott was open in cross examination that he typed the documents during an interview with each of the SLOs and it was his interpretation of their remarks contained within. 4. Mr Adamowski noted that he provided a detailed report to Ms Thorpe in October 2013 highlighting his abilities and refuting Mr Scott's claims about his abilities. Mr Adamowski submitted: "I was leading the support unit in a number of areas such as Autism education, the use of technology and behavioural approaches. If Darren Scott did not exempt the children in my class from the NAPLAN data would show 3 students had enormous growth as they progressed from my special needs class to a mainstream class." 1. Mr Adamowski submitted that he constantly communicated with his direct supervisor and parents about the children's education. Failure to address bullying 1. Mr Adamowski submitted that: "The question arose in court as to what is the department's response to bullying. I myself tried with difficulty to find this when I was being bullied and afterwards. Mr. Scott, was unable to outline it in court except to say it is on the website and all staff are informed of it annually at teacher's development day. I do not recall ever being informed by Mr. Scott of the department's policy in relation to bullying of staff and what actions could be taken by a staff member who felt that they were being bullied. On the NSW Education Department website when you enter bullying there is a policy with detailed instructions of how to deal with bullying of children. There are also statements that bullying can result in significant psychological harm and that it will not be tolerated. However in relation to bullying of staff the policy is less clear. Specifically it suggests to refer to the Work health and Safety act of 2012. This then suggests to refer to Safework Australia where the risk of harm from bullying, and the correct response to bullying to minimise harm are more clearly articulated" 1. Mr Adamowski provided a summary of advice given on the Safe Work Australia website in his submissions, putting: "Safe Work Australia also states that it was my duty to take reasonable care for my own welfare and to this end I reported the bullying to my union and HRS rep, consulted the welfare officer when we had one ( Ms Foster's position became redundant) and saw a psychologist for 12 sessions privately. I participated in the "support" and "informal teacher improvement programmes to the best of my psychological ability at the time. I did fail to meet with Mr. Scott after these programmes were instituted as I asked him to make a support person available to also attend with me because I was scared of him and he failed to do this. He either failed to give me adequate notice to attend a meeting or failed to allow teachers to have time off class to attend. I also asked for a transfer and when this was denied tried to look for other work. At this stage I was struggling psychologically every-day to go to work and the only reason I could go was because I felt that I had a made a stand on behalf of special needs children and If I didn't follow through by turning up to teach them then my stand would amount to nothing." Ambush 1. Mr Adamowski submitted that he was ambushed by Mr Scott in the kitchen on 26 March 2013, the day of the assault; and that Mr Scott's actions of continuing to fill the fish tank with water were designed to inflame, belittle and antagonise him so as to push him out of teaching. Remedy 1. Mr Adamowski seeks reinstatement and full restitution of wages and payment for as long as he is unable to teach to the age of 67. 2. In reply Mr Britt submitted that much of Mr Adamowski's submissions are not supported by evidence; at the highest reflect "observations" from the bar table and not the actual evidence, which Mr Britt contends is further reason that Mr Adamowski should not be reinstated or re-employed. 3. Mr Britt addressed each item on this basis. In particular, Mr Britt put: * Mr Adamowski was offered the opportunity to resign prior to termination of his employment; * Mr Adamowski never made an allegation of bullying prior to 26 March 2013 and at no time has he made a formal complaint in accordance with the "Complaints Handling Guidelines Policy". 1. In respect of a teaching certificate, Mr Britt put: "..there is no evidence concerning the Applicant seeking a certificate of teaching or that such a certificate exists or there is an obligation on the Respondent to provide such a certificate. Further, there is little evidence as to why the Applicant was unsuccessful in job interviews and that evidence that does exist from the Applicant himself demonstrated why an employer would not provide a prospective employee with a job who is critical of the employer in the job interview." 1. Mr Britt refuted the assertion that Ms Foster had not assisted Mr Adamowski by reference to her evidence in re-examination [22] : "Yep I did, I would ask him "how is everything today? The children okay?" we also put in extra teacher aide into the classroom to assist him so that he would feel comfortable, he would not be so uptight about things, so we put things into place for him. I also went to observe some of his lessons so that where he was finding it difficult I would be able to help him as well." which Mr Britt put is a point Mr Adamowski repeatedly and conveniently overlooks. 1. Mr Britt refuted that any statements were fabricated, noting Mr Scott's evidence that he had typed what he was told by staff when he interviewed them and had not sought negatives. Mr Britt put that there is no evidence that any of the statements were untrue. 2. The veracity or otherwise of these statements is not material to these proceedings. 3. Mr Scott did not act on any of this information in a manner detrimental to Mr Adamowski. The information rises no higher than part of the general perception which initiated support for Mr Adamowski as described elsewhere; and Mr Scott's own investigation assisted by the deputy principal to determine how they may assist. 4. While they may form part of the broader framework, the reports were not obtained for the purpose of these proceedings but for the purpose of assisting Mr Scott to determine what assistance he might properly provide Mr Adamowski. 5. It is appropriate to further note at this point that the termination of Mr Adamowski's employment was not due to performance, but the assault upon Mr Scott. 6. Mr Britt emphasised that the termination of Mr Adamowski's employment was not for poor performance as a teacher but because of his assault of the Principal, for which he was convicted. 7. Mr Britt refutes the assertion that Mr Adamowski was ambushed by Mr Scott on 26 March 2013, noting that Mr Scott was in the kitchen filling a fish tank when Mr Adamowski arrived there. Remedy 1. Mr Britt noted that there is no jurisdiction for the Commission to award payments to age 67 or to order the Department to produce a "Teaching Certificate". 2. Mr Britt put that whatever motivation or course Mr Adamowski contends on behalf of special needs students is not supported by criminally assaulting the Principal. 3. Mr Britt relied upon the initial submissions of the Department that the termination of Mr Adamowski's employment was not harsh, unreasonable or unjust and the application should be dismissed. Mitigation of Loss 1. During the course of cross examination Mr Britt questioned Mr Adamowski in respect to his pursuit of employment. 2. Mr Adamowski responded that he ceased looking for work at the end of 2014 when he suffered a traumatic mental illness caused by reading documents attributed to a Ms Shantelle Russell and Ms Brenda Sgro, which he put were fabrications. 3. Prior to this Mr Adamowski asserted that he applied for positions in real estate, for employment at the Nauru detention facility, and for positions in early childhood and education. 4. Mr Adamowski deposed [23] : "I went to interviews at early childhood, and I went for an interview at a school in Queensland that dealt with children with autism, I really didn't - shall I continue? I feel I didn't get that job because their idea of treating children with autism was very out of place, and I mentioned that to the director, and I was very happy to be working there, but I just made a comment that you don't touch a child and jump up and down on a child as the person who was showing me did, and apparently they didn't want me." Consideration 1. Section 61 of the Crimes Act 1900 provides that persons who are found guilty of common assault shall be liable to imprisonment for up to two years. 2. Section 93K of the Teaching Service Act 1980 provides that disciplinary action may be taken if an officer is convicted of a serious offence that is punishable by 12 months or more imprisonment. 3. The termination of Mr Adamowski's employment was founded upon the conviction for assault of Mr Scott. 4. The physical assault of a principal by a teacher is a most serious offence. 5. The evidence establishes that Mr Adamowski was experiencing health problems for which he was seeking some assistance. I make no observation as to the cause other than to note that a workers compensation application was rejected, suggesting that the psychological condition was not work related. 6. The cause is not material to consideration in this matter. 7. The evidence established that Mr Scott became aware of the problems facing Mr Adamowski and sought to assist him and to obtain help in this endeavour. The correspondence to Ms Chesney, Ms Arkinstall and Mr Campbell details the difficulty faced by Mr Scott. 8. It is most unfortunate that independent medical and psychological assessment was not implemented. 9. It is also unfortunate that Mr Adamowski saw all efforts by Mr Scott as threats and bullying, developing a conspiracy theory that Mr Scott was "harassing him" and wanted him out of the school. 10. The evidence of Mr Hall is damaged by supposition and gossip and is contrary to Mr Scott's actions of seeking assistance for Mr Adamowski with school staff, the District and externally. 11. I reject the conspiracy theory as without foundation. 12. I have considered the mitigating circumstances advanced by Mr Adamowski and find them insufficient reason to warrant the exercise of the Commission's discretion to intervene. 13. Mr Adamowski had differing views on policy, teaching practices and dress code. A requirement to conform to the terms of his employment to adhere to the Department's policies is not bullying and provides no mitigation or excuse for assault of Mr Scott. 14. Hardship can arise naturally from loss of employment and is not a justification for reinstatement. The relevant question is whether the sanction is appropriate to the conduct. 15. There is nothing in Mr Scott's conduct in the kitchen prior to the assault which could reasonably be said to provoke or justify the assault by Mr Adamowski. 16. I accept Mr Scott's evidence that he was attempting to communicate with Mr Adamowski, and while the "walk and talk" technique failed that is not, in my view, attributable to Mr Scott but simply another symptom of Mr Adamowski's insistence that events and conduct should occur as he believes they should. 17. The difficulty in addressing each point is that where there is no evidence, there is nothing to which to refer. 18. Mr Adamowski's action in attending the NAIDOC Day event at CPS, notwithstanding an AVO against him in respect to Mr Scott when he knew Mr Scott would be there, is a further demonstration that he does not accept that rules, obligations and restrictions should apply to him if they are inconvenient or interfere with his perception of his rights. Conclusion 1. I have carefully considered all of the evidence and submissions in this matter. 2. I form the view that Mr Adamowski's termination was not harsh, unreasonable or unjust and accordingly does not invoke the discretion of the Commission to intervene. 3. It is most unfortunate and regrettable that Mr Adamowski was not offered an independent medical assessment to determine his capacity and particular assistance or remedy. If there is a policy or procedure for this to occur, it was not evident in this matter. 4. A requirement to conform to school policy in respect to dress standards and conduct is not bullying. 5. A requirement to meet identified teaching standards, apply the Departmental policy in teaching special needs children, and adherence to the directions of the principal, is not bullying. 6. The application for relief from alleged unfair dismissal is refused for the following reasons: The gravity of the offence 1. Physical violence in the workplace is a most serious offence warranting termination of employment. Mitigating Circumstances 1. No argument was advanced that Mr Adamowski's employment record, previous conduct, length of service or general good behaviour gives rise to mitigating circumstances. 2. The argument that there are mitigating circumstances is not made out. 3. Mr Adamowski has suffered what appears to be serious mental health and psychological problems. It is regrettable that early intervention in respect to aberrant behaviour on a medical basis was not available. However, I do not regard these matters to constitute mitigation given the seriousness of the conduct. 4. I recommend that the Department review its policies and procedures pertaining to the identification and processes of dealing with mental health issues in the workplace. Lack of Support 1. The argument that Mr Adamowski was not supported in the workplace is not made out. 2. Mr Adamowski had the assistance of the union, which he accepted but did not take up; and he had the assistance of the principal and deputy principal. 3. The fact that Mr Adamowski misinterpreted this assistance, turning it to an allegation of bullying, does not mitigate the behaviour or excuse conduct. Nor does it support intervention which would require the Department to restore employment or pay compensation. 4. Matter No IRC 85 of 2014 is so concluded. ********* Endnotes 1. Exhibit 5 (Affidavit of Jane Thorpe) at para 9 2. Exhibit 10 (Employers Reply) at p6 3. Exhibit 1 4. Exhibit 2 5. Exhibit 3 6. Exhibit 4 7. Transcript 24 June 2015 at p41 8. Exhibit 8 9. Exhibit 8, page 23 10. Exhibit 8, page 25 11. Transcript 25 June 2015 at p 75 12. Transcript 25 June 2015 at p77 13. Exhibit 8 pp100-101 14. Exhibit 6 15. Exhibit 7 16. Exhibit 8 p82 17. Transcript 25 June 2015 at p82 18. Transcript 25 June 2015 at p84 19. Exhibit 9 20. Exhibit 11 21. (2010) 369 IG 1342 22. Transcript 25/6/15 at p69 23. Transcript 24 June 2015 at p 15 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: 23 October 2015