Dighton v Secretary, New South Wales Department of Education [2020] NSWIRComm 1010

Industrial Relations Commission New South Wales Medium Neutral Citation: Dighton v Secretary, New South Wales Department of Education [2020] NSWIRComm 1010 Hearing dates: 18, 19 and 27 September, 3 and 30 October 2019 Date of orders: 09 January 2020 Decision date: 09 January 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – school teacher – allegations of misconduct during and after a Christmas party harbour cruise – most serious allegations proven – dismissal not harsh unreasonable or unjust Category: Principal judgment Parties: Wendy Dighton (Applicant)

Secretary, New South Wales Department of Education (Respondent) Representation: Mr C Hammond, solicitor (Applicant)

Mr A Britt of counsel, (Respondent) File Number(s): 2019/00109352

DECISION 1. The applicant, Wendy Dighton, held a casual teaching approval and worked as a casual teacher with the NSW Department of Education ("Department"). She has worked as a teacher for approximately 14 years. In 2016 and 2017 the applicant was engaged as a casual teacher at Riverstone Public School. 2. In December 2017, the Department's Employee Performance and Conduct Directorate ("EPAC") was notified of allegations of misconduct relating to the applicant's behaviour during and after a staff Christmas party held on a Sydney Harbour cruise boat on the evening of Saturday 9 December 2017. The allegations included sexual contact with another staff member, X, a [REDACTED], without X's consent. X reported the matter to the NSW Police and made a police statement but, subsequently, retracted that statement. 3. On 13 March 2018, Jane Thorpe, Executive Director of EPAC, wrote to the applicant indicating that allegations had been received and would be investigated. Ms Thorpe advised the applicant that her permission to teach in Department schools had been temporarily withdrawn and her name would be placed on the Department's "Not To Be Employed List" ("NTBE List"). 4. By letter dated 18 June 2018, Alex Walker, EPAC Investigator, advised applicant of the allegations. They were that: 1. While on a cruise with colleagues from Riverstone Public School on 9 December 2017, you made unwanted physical contact with Y when you danced with him by rubbing your buttocks against his genital area in a grinding motion. 2. In the late evening of 9 December to early hours of 10 December 2017 following the cruise, you sexually harassed X at an apartment in Pyrmont by: a. straddling her body with your legs b. kissing her neck and cheek 3. In the early hours of 10 December 2017, you indecently assaulted X by: a. rubbing your hand along the side of her torso b. touching her buttocks c. digitally penetrating her vagina 4. On the morning of 10 December 2017, you walked around the Pyrmont apartment naked and in the company of colleagues from the Riverstone Public School. 1. Correspondence then ensued between the applicant's legal representatives and the Department in which the applicant denied the allegations apart from Allegation 4, but denied that this conduct constituted misconduct. 2. On 28 March 2019, the applicant filed the unfair dismissal application which is currently before the Commission. 3. The investigation by EPAC Investigators was concluded and an investigation report finalised by 3 May 2019. The report concluded that the conduct alleged in Allegations 1, 2, 3 and 4 was sustained and that such conduct constituted misconduct. However, in relation to Allegation 1, the report contained the following: There is sufficient evidence to substantiate that the conduct at 1 occurred, to the extent that Ms Dighton made unwanted physical contact with Y in a grinding motion. The investigation has clarified that the mechanics of the grinding motion involved front-facing contact, rather than a rubbing of buttocks against Y. 1. By letter dated 8 May 2019, Ms Thorpe provided the applicant with a copy of the investigation report, the evidence and her own findings which were generally consistent with the conclusions reached in the investigation report. That letter included the following: I am satisfied that there is sufficient probative evidence to sustain the conduct occurred in all four allegations. Allegation 1 is sustained to the extent that you made unwanted physical contact with Y by dancing with him in a grinding motion. I note the witness evidence is you were facing each other rather than rubbing your buttocks on his groin. The conduct at Allegation 3 is most concerning as the evidence suggests you effectively assaulted a colleague. The sustained misconduct is totally unacceptable by an employee of the Department. I am considering withdrawing your casual approval to work for the Department of Education and permanently placing your name on the list of persons not to be employed by the Department (NTBE List). 1. The applicant was given 14 days to make a submission to Ms Thorpe about the findings and the proposed action. 2. By letter dated 30 May 2019, the applicant's solicitor forwarded a submission on behalf of the applicant to the Department. 3. On 5 June 2019, Ms Thorpe wrote the applicant and confirmed the action which she had foreshadowed in her letter of 8 May 2019.