T7125
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mark Meaney and Sacred Heart College
Termination of employment - alleged unfair dismissal - application dismissed - Order issued REASONS FOR DECISION The application to the President in this matter contains the following:- "The circumstances of the dispute are as follows:- 1. The Applicant was employed as a teacher at Sacred Heart College (`the college'). 2. On the 8th of July 1997 the Applicant was teaching a computer studies class. He was squatting beside a student who was using a computer. Having checked the student's work which was a task of assistance to another teacher he said `Thank you for doing this, (name deleted). I really appreciate it'. As he said these words he patted the student's knee as he rose from a squatting to standing position. 3. As a result of this incident the Applicant was suspended from duties and advised he could not continue in his employment with the College. 4. The Applicant's actions have not been suggested by the College to be other than completely innocent. 5. On the 23rd of July 1997 the Applicant received a letter from the College terminating his employment. No reason was given in the letter for the termination. 6. The Applicant seeks an order that his employment by the College be reinstated." The application was initially referred to Deputy President Johnson who listed the matter for hearing (mention) on 4 August 1997. Following that hearing and two conciliation conferences on 26 August 1997 and 1 September 1997 the file was referred to me by the President. The President's referral notice reads as follows:- "Attached is Application T7125 of 1997, an application by Mark Meaney pursuant to section 29(1A) of the Act, for a hearing in relation to an industrial dispute with Sacred Heart College re the termination of his employment. The matter commenced before Deputy President Johnson on 4 August 1997 for the purpose of issuing directions as necessary. Subsequently the Deputy President presided over a private conciliation conference. However, no settlement could be achieved, and the parties requested that the matter be determined by arbitration. In the circumstances, in view of the fact that he has canvassed merit issues with the parties, Deputy President Johnson has requested that I assign the file to another Commissioner to hear and determine the matter by way of arbitration. I agree that Deputy President Johnson should not proceed to arbitrate this matter for the reasons he has advanced. Accordingly the application is herby assigned to you, pursuant to Section 15(1)(d) of the Act, to preside over further hearings convened to deal with the matter and, without limiting the powers of the Commission, to exercise the specific powers available under Sections 21 and 31 of the Act. F D Westwood Where appropriate matters before Deputy President Johnson and part of the file, eg. Respondent and Applicant Contentions, remained part of these proceedings for all intents and purposes, but in all other respects the matter was dealt with by me as a new matter. However, with the inability of the parties to reach a settlement, in conferences chaired by Deputy President Johnson, the application proceeded directly to arbitration once the file was assigned to me. This was done with the consent of the parties as outlined in their correspondence to the President of 17 September 1997. "The President Dear Sir, RE: T NO. 7125 OF 1997 - MEANEY V. SACRED HEART COLLEGE The parties have been unable to resolve this matter by conciliation. Accordingly we request this matter now be given a date for an arbitration hearing. The parties estimate that the matter will take three (3) days to hear. Prior to a hearing date being allocated the respondent seeks a directions hearing in order to obtain orders in respect of the way in which the evidence ought be heard.
A separate directions hearing was not preceded with. Submissions going to the way in which evidence ought to be heard and other matters were dealt with as threshold matters on 20 October 1997, the first day of hearing. Issues raised were either agreed by the parties or in one case the subject of direction from me. There was no delay in proceedings from this process. Before going to the facts of this matter I believe it appropriate not to name students in this decision therefore I will refer to the female student the subject of the incidents which resulted in Mr Meaney's dismissal as Ms A. Other students will also be appropriately identified during the decision and all transcript references to them will be appropriately changed. The matter the subject of direction by me was the issue of whether Ms A's evidence should be given by video or by some other means which separated her from Mr Meaney. My direction on this matter is found in transcript1 and reads:- "Deputy President King: . . . So perhaps I will make some comments going to the matters that we debated yesterday morning and some brief discussions that were held last night and I simply place on the record that having considered the submissions put to me yesterday concerning the giving of evidence by Ms A I confirm my advice to the parties last evening that during Ms A's evidence and cross-examination I require Mr Meaney to sit in the hearing room in a position where there is no eye contact with the witness . . . " This was subsequently arranged and in my view worked well in reducing the stress which is inevitably associated with the giving of evidence in such circumstances and particularly when involving a younger person. Extensive evidence was called by both sides in this matter and it is this evidence which is critical in determining the outcome of the application. In goes without saying that the evidence of the applicant (Mr Meaney) and the student (Ms A) going to the incident or incidents of 7 July 1997 is most critical however, other evidence, which I will go to later, was also of considerable assistance to me in arriving at a conclusion. Given the significance of the evidence of Mr Meaney and Ms A I will summarise what I consider to be the important aspects of their evidence dealing firstly with Mr Meaney. His primary evidence is as follows:-
Further evidence was given by Mr Meaney on events which occurred after 7 July 1997 however, I will not summarise it. In summarising Ms A's evidence of this incident or incidents on 7 July 1997, I will focus on the differences in the evidence, as much of the detail in terms of movement around the class room etc. is consistent from both witnesses. The summary is:-
After the above evidence a series of questions from Mr Bessell (of Counsel) appearing for the College to Ms A produced the following:-
In response to further questions from Mr Bessell Ms A indicated that the first contact and rubbing of her leg continued for up to five minutes and ceased when she moved to go to the printer. The evidence of both witnesses going to the events of 7 July 1997 is very credible although very different on the critical incidents. Mr Meaney was very articulate, very clear and unhesitating in putting his version of events and in his response to questions both in examination and cross-examination. Although upset at times during her cross-examination Ms A provided clear evidence and responses to questions. She could not be shaken in her response to questions going to the critical incidents and would not accept (in spite of considerable pressure to do so) that the incidents she described were considerably exaggerated. I had some difficulty in accepting that Ms A had such a good memory of events during the course of periods 7 and 8 on 7 July 1997, but her memory of other incidents and events immediately after those periods and the next day were not so clear and in some cases non existent. To put my difficulty in context I refer to the following excerpt from transcript during Mr Woods cross-examination of Ms A:-
In isolation I found both witnesses to be credible in the evidence they gave. It is therefore necessary for me to go to the evidence of others to establish what I consider are some important indicators to establish which version is accurate or more accurately describes the events during periods 7 and 8 on 7 July 1997. The first matter that I go to is whether or not there was a chair in front of the malfunctioning computer to the left of Ms A. Mr Meaney's evidence was that there was no chair to the left of Ms A therefore he squatted beside her to be at eye level with the computer. In examination by Mr Wood Mr Meaney responded as follows in relation to the chair:
Ms A's evidence on this issue is recorded earlier in this decision10 and contrasts markedly with Mr Meaney's response. Ms A's evidence on this matter was supported by Mr E a student called by Mr Wood as the only known witness to a touching incident and obviously in doing so to support the evidence of Mr Meaney. The evidence is recorded as part of Mr Bessell's cross-examination:-
and a little later in re-examination
In other relevant evidence to this matter Mr E acknowledged he had not seen Mr Meaney kneel beside a girl student before. This evidence is recorded as follows:-
In relation to the evidence of Mr E, the only witness to the incidents produced by either side in this matter, I found his evidence helpful but not conclusive in coming to a finding on some of the critical issues. For example in describing the incident early in the double periods he answers as follows:-
If this was evidence going to the incident early in the periods then it contrasts markedly with the evidence of both Mr Meaney and Ms A who both describe the reading of statistics and typing of them over a period of time. Mr E also gave evidence that Mr Meaney knelt down beside Ms A when the clear evidence of Ms A and Mr Meaney was that he squatted or crouched down. I believe the critical evidence in terms of me reaching a conclusion on the events of 7 July 1997 comes from Mr Kenny the Deputy Principal and Sister Brady the Principal of the College. I will go to some of Mr Kenny's evidence and then to Sister Brady. Mr Kenny attended the first meeting with Mr Meaney at 10.15 am on 8 July 1997 and went to the meeting in the hope that he would find that there was no substance to the allegations made against Mr Meaney. However, during the course of the meeting his hopes were not realised. Mr Wood objected to questions being asked of Mr Kenny going to how he felt before the meeting however, I allowed the question to be answered. This being the case I will quote Mr Woods objection and my response.
I think Mr Kenny's honesty about his attitude before the meeting, then his evidence on the demeanour of Mr Meaney during the meeting and his reaction to Mr Meaney's responses to the allegations of Ms A detailed by Sister Brady are significant. In a similar vein at the conclusion of his evidence I asked Mr Kenny some questions and the transcript records them and the answers as follows:-
Sister Brady's evidence confirmed that she was initially advised of the incidents on 7 July 1997 by Ms Larissa Langerewskij the School Counsellor at about 3.45 pm on the afternoon of that day. She gave extensive evidence on the process that then followed culminating in the dismissal of Mr Meaney, advised in writing in correspondence dated 21 July 1997. I will come back to the process later in this decision but for now I will focus on the evidence of Sister Brady as it assists me in coming to a conclusion on the events in periods 7 and 8 of 7 July 1997 involving Mr Meaney and Ms A. The significant evidence comes from her recollections and notes of what occurred at meetings with Mr Meaney on 8 July 1997 the first at 10.15 am and the second at 12.25 pm. At the commencement of the 10.15 am meeting Sister Brady advised Mr Meaney that some serious allegations had been made about him by a student. After detailing the allegations Sister Brady asked Mr Meaney if he had any response. Her evidence of that opening exchange is:-
I believe there are a number of important pieces of evidence coming from the above. There seems little doubt that Sister Brady while not as explicit about her feelings before going into the meeting with Mr Meaney, as Mr Kenny had been, she was shocked by Mr Meaney's re-actions/admission and had not expected them. She confirms the body language and demure described by Mr Kenny when referring to Mr Meaney and she clearly states that Mr Meaney, gave no reason for what he had done other than he did it on the spur of the moment and he didn't know why. Sister Brady highlighted the use by Mr Meaney of the words "he had crossed the boundary or he had crossed the barrier". Similar words were used by Ms A in her statement18 and in her evidence in describing what Mr Meaney had said after the periods on 7 July 1997. The general tenor of Sister Brady's opening evidence was consistent with the notes of her meeting with Mr Meaney. These notes are contained in Exhibit B.2 the hand written notes of the 10.15 am meeting of 8 July 1997 with Mr Meaney. Her note on the use of the above words by Mr Meaney recorded in Exhibit B.2 is as follows: "I know I had placed my hand on her leg and had crossed the barrier. She sensed it was sexual." There is no dispute in this matter that Mr Meaney touched the student Ms A on the knee. This may or may not be significant depending on the intent of the touch. There is no doubt in the mind of Sister Brady going to the intent. Sister Brady denies that Mr Meaney from the first interview on 8 July 1997 gave as his reason for the touching, as being a congratulatory pat or touch. In her primary evidence on this point the transcript reads as follows:
The three occasions referred to by Mr Bessell are the two meetings of 8 July 1997 and a subsequent meeting. During the process in this matter Mr Meaney was given Ms A's statement20 and given the opportunity to respond to her allegations. Mr Meaney's response,21 was given to Sister Brady by Mr Bessell to comment on that part of Ex. W.5 that deals with Mr Meaney's reasons for touching Ms A, the transcript contains the following:
The cross examination of Sister Brady by Mr Wood was exhaustive. However, in a concluding series of questions to Sister Brady on the first meeting with Mr Meaney he was not able to break down her evidence going to some of the initial points. The transcript of the questions and answers reads:-
I have deliberately quoted large segments of the evidence of the key witnesses in this case as it is that evidence which provides me with the only basis for arriving at a conclusion in this matter. The case clearly hinges on the determination of which account is the accurate or more accurate, going to the events during periods 7 and 8 of 7 July 1997. As indicated earlier there is no doubt that Mr Meaney touched Ms A on the knee (he has never denied it) the issue is whether he did more than that and the intent behind it. Mr Meaney's evidence that he touched Ms A on the knee on one occasion as part of a thanking and encouragement gesture is quite plausible and in my view if this was the accurate description of what occurred then I would uphold this application and re-instate him. There are weaknesses in his version of events and his evidence. He claims that his reasons for squatting down beside Ms A were that a chair was not available on her left and that he wanted to be at eye level with the computer to reduce the glare. On the day of my visit to the computer room all outside windows were blocked off with curtains and the evidence was that they (the curtains) were always closed. The evidence of Ms A was that there was a chair to her left that Mr Meaney could have sat on. Mr E also indicated both in evidence and cross examination that there was a chair to the left of Ms A. There was clear evidence that Mr Meaney either sat or stood behind or beside a student when helping with or checking work. Those witnesses who gave evidence on this issue could not remember him squatting on any previous occasion. Why did he squat beside Ms A? Why did Mr Meaney insist on seeing Ms A alone after class if all he had done was pat her on the knee in the circumstances he described in evidence? If he had nothing to be concerned about from the incident he would know that it was not a good idea to detain a female student in a closed room in circumstances where she had requested company (a witness Ms C). Why take the risk? As I have previously indicated Mr Meaney's evidence that he patted Ms A on the knee in the circumstances he did is plausible. However, Sister Brady maintains he did not give those reasons for patting Ms A on the knee during the three meetings she had with him after the 7 July 1997. Mr Kenny's evidence is not so clear on this issue but I believe the general tenor of his evidence on this matter supports the evidence of Sister Brady. Why be low key, subdued, apologetic, contrite, (words used by Sister Brady and Mr Kenny in describing Mr Meaney at the first meeting on 8 July 1997) if he (Mr Meaney) had simply patted Ms A on the knee in a gesture of thanks or congratulations. I acknowledge that both Sister Brady and Mr Kenny indicated in evidence that they do not or would not touch students even in a gesture of thanks but I also believe that if Sister Brady and Mr Kenny had been satisfied at the first meeting that that is what had occurred this matter would not have gone beyond that meeting. In relation to Ms A's evidence one must ask the question why would an apparently normal student of fifteen years make up or exaggerate a story against Mr Meaney? There was no satisfactory answer given to this question and there was no suggestion of any previous animosity or ill feeling between Mr Meaney and Ms A. In fact at one point Mr Meaney acknowledged paternal interest towards Ms A. I make it very clear that I do not accept all of Ms A's evidence and as indicated earlier have concerns about her apparent lapse of memory after periods 7 and 8 on 7 July 1997. For instance I do not accept that the touching early in period 7 continued for five minutes, but maybe in all of the circumstances it seemed like a period of five minutes to Ms A. It is my conclusion having regard for all of the evidence in this matter that Mr Meaney during the early part of periods 7 and 8 on 7 July 1997 conducted himself in an unprofessional and unacceptable manner in his dealings with the student Ms A. He did so on at least one occasion by touching her on the knee and leg in a manner that brought discomfort to the student. It was alleged that the investigation of Sister Brady in this matter was woefully inadequate that her only real intent in this matter was to prevent word of the complaint becoming public knowledge. On the face of it, it would be easy to agree with this submission however, there is no doubt that a wide ranging investigation would have resulted in significant public knowledge and discussion with inevitable rumours. This scenario would have had obvious negative consequences for both parties, the school and perhaps the Catholic Community as a whole. While not defending Sister Brady on this issue I understand her reluctance to involve too many students and staff in the initial investigations. As it transpired I acknowledge that rumours were not prevented by Sister Brady's careful approach. However, I do not believe that any deficiencies in Sister Brady's investigations were so significant as to materially affect my findings in this matter. It was also alleged that procedural fairness was denied Mr Meaney in that he was given no notice of the reasons for the 10.15 am meeting on 8 July 1997, that he was not given the opportunity to be accompanied to that interview and required to respond immediately to the accusations. The evidence is clear that he was not required to respond immediately to the accusations. He was asked if there was any response he would like to make24 to which he responded "yes". I therefore believe any statements made by him at that meeting were voluntary and not "required" by management. He was later given the statement of Ms A25 and asked to respond to the allegations. He did in writing26 after being given time to consider his responses. Mr Meaney was certainly not given any notice of the reason for the meeting and he was not invited to be accompanied. I think these shortcomings are explained to some extent in that both Sister Brady and Mr Kenny had in a previous case quickly established that there was no substance to complaints and hoped this case would go the same way. Certainly that is the evidence of Mr Kenny. They had hoped it would be an exploratory meeting which would end the matter. These shortcomings were addressed when Mr Meaney was accompanied at the second meeting and he was given the opportunity to provide a written response to the allegations. Another allegation is that there had been a breach of article 5(c) of the I.L.O. Convention. Article 5 preamble and (c) read as follows:- "Article 5 The following, inter alia, shall not constitute valid reasons for termination: (a) . . . (b) . . . (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities." The specific allegation is that when the Employer's solicitor was notified that an application going to this matter was to be lodged with the Commission (the Tasmanian Industrial Commission) the applicant's lawyer was told, "Well his employment will be terminated". This is a worrying allegation but it is no more than that, it was not supported by evidence. In summary on these matters I accept that the process leading to Mr Meaney's dismissal contains some deficiencies and could have been done better. However, the general tenets of procedural fairness have been satisfied in this case particularly having regard for Article 7 of Part II Standards of General Application Division A Justification for Termination of the I.L.O. Conventions. Having regard for my findings on the facts in this matter and the procedural fairness issues I am not prepared to interfere with the decision of the employer to terminate Mr Meaney. In the circumstances this application is dismissed. ORDER Having regard to the above findings I hereby order that pursuant to Section 31(1) of the Industrial Relations Act 1984, the application by Mr Mark Meaney for re-instatement to his former position at Sacred Heart College be dismissed.
J G King Appearances: Date and place of hearing: |