Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T12651

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Geoffrey Billett
(T12651 of 2006)

and

Minister Administering the State Service Act 2000

 

COMMISSIONER T J ABEY

HOBART, 17 August 2006

Industrial dispute - termination of employment - demotion - physical restraint of student - harassment - discrimination - integrity and reputation of State Service - decision to terminate/demote found to be unfair - reinstatement ordered

REASONS FOR DECISION

[1] On 26 April 2006, Geoffrey Billett (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000, arising out of the termination of his employment and alleged breach of an award or a registered agreement.

[2] This matter was listed for a conciliation conference on 15 May 2006 and for hearing on 26, 27 and 28 June 2006 and 13 and 19 July 2006. Mr M Upston, of the Australian Education Union, Tasmanian Branch, appeared for the Mr Billett. Mr P Baker and Ms K O'Donnell appeared for the Minister.

Introduction

[3] Mr Billett has been a teacher within the Department of Education since 1969. He has held a variety of positions including Principal of Flinders Island District High School and a number of Assistant Principal (AP) roles in larger Tasmanian High Schools. Mr Billett was AP at Exeter High School from 2002 until the time of his suspension in August 2005.

[4] On 11 August 2005 Mr Billett was Acting Principal in the absence of the Principal, Ms Males. On the afternoon of that day Mr Billett was involved in an incident with a student (student C). This incident involved the physical restraint of student C.

[5] On 17 August Mr Billett was suspended from duty on full pay, pending an investigation by the Department's Conduct and Investigation Unit. This investigation involved personal interviews with a number of staff and students. Mr Billett was not interviewed but was given the opportunity to respond to the allegations in writing.

[6] The investigation and determination process was delayed for various reasons and it was not until 6 April 2006 that Mr Billett was advised of the outcome. In summary, Mr Billett was found to have breached the State Service Code of Conduct. The sanctions imposed included demotion to the level of Advanced Skills Teacher (AST); reassignment to another school; a formal reprimand; requirement to undertake professional counselling. The letter from the Secretary of the Department is set out in full:1

"Dear Mr Billett

I refer to my letter dated 30 January 2006 where you were provided with the opportunity to respond to findings of an investigation into an alleged incident that occurred between you and a student C, on 11 August 2005 at Exeter High School. I also refer to correspondence dated 6 February 2006 from the Australian Education Union (AEU) that contained your response to the foregoing.

Reference is also made to a letter dated 1 March 2006 from the AEU that sought a meeting with the Director (Human Resources Management) and myself, the purpose of which was to discuss this matter prior to the issue of a determination. This meeting took place on 21 March 2006.

Following consideration of the investigator's report of the incident, your response to this report and AEU submissions, I have formed the view that you have breached the Code of Conduct, specifically, sections 9(3) and 9(14) of the State Service Act 2000:

`9(3) An employee, when acting in the course of State Service employment must treat everyone with respect and without harassment, victimisation or discrimination.'

Evidence by witnesses to the incident indicates that the distress shown by C while being restrained by you was significant. Your action of continued restraint and the force of such (as shown in photographs of bruising on C's arms) after any risk to other students and staff had been removed, demonstrates a behaviour of harassment and victimisation and lack of respect for the wellbeing of the student. Given that this student suffers from a recognised medical condition and his behaviour during the course of the incident was demonstrative of this condition, I have also formed the view that your actions discriminated against the student on the grounds of disability.

`9(14) An employee must at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service.'

The distress and physical bruising to a student caused by you, a teacher at the senior level of Assistant Principal, has caused the integrity and the good reputation of the State Service to be adversely affected, particularly in the eyes of the Exeter High School community.

I therefore must inform you that your behaviour is considered to be completely inappropriate and that the sanctions to be imposed on you must reflect the serious nature of your misconduct.

Consequently, in accordance with the provisions of section 10 of the State Service Act 2000, and the authority delegated to me by the Minister administering the Act, I hereby impose on you the following sanctions:

· A reduction in your classification of Assistant Principal ($79,265) to Advanced Skills Teacher ($70,825).

· A reassignment to another school, yet to be determined.

· A formal reprimand by the Northern Branch Director and the Director (Human Resources Management) - you will be informed, verbally and in writing, of the seriousness of your misconduct and of the consequences should it be repeated. Your work performance will be monitored for an initial period of twelve months.

· A requirement that you undertake professional counselling in relation to student behaviour management.

Section 50(1)(b) of the State Service Act 2000 provides capacity for an employee to make application for a review, in accordance with the Commissioner's Directions - `of any other State Service action that relates to his or her employment in the State Service.'

Should you choose to make application for a review you will need to contact the Office of the State Service Commissioner on telephone 6233 6543.

Yours sincerely
John Smyth
SECRETARY"

[7] The AEU, on behalf of Mr Billett, asserts that the demotion was both substantively and procedurally unfair.

Evidence

[8] Sworn evidence was taken from the following witnesses:

For the applicant:

· Michael Robert Le Rossignol, Principal of Exeter High School, from 1996 to 2004, now retired.

· Elizabeth Jane Williams, AST3 at Exeter High School, Teacher for 17 years.

· Anthony Kingsland Harris, Agricultural Science Teacher at Exeter High School, Grade Supervisor for Grade 8 in 2005.

· Gene Colgrave, Guidance Officer, working in a cluster of schools, including Exeter High School.

· Christopher Gerhard Lane, State Manager, Australian Education Union.

· Warren Douglas McDonough, Teacher at Exeter High School, elected workplace representative for the AEU.

· Geoffrey Douglas Billett, the applicant.

For the respondent:

· Louise Diane Finnigan, Teacher since 1991, Exeter High School since 2003.

· Christine Connors, Teacher at Exeter High School for eight years.

· Philip John Cleaver, Manager of Conduct and Investigations Unit, employed in various HR roles with the Department for 28 years.

· Kerrie Ann Moss, Director of Human Resources, various teaching and HR roles since 1981.

· Judith Pill, Principal Leader for Northern Branch of the Department, formerly Principal of Queechy High School.

· Robert Hart, Teacher for 29 years, Principal of Latrobe High School for past nine years.

[9] In addition numerous statements and transcripts of interview from teachers and students involved in the investigation were tendered into evidence.

Background and Previous Behaviour of Student C

[10] Student C entered Exeter High School in Grade 7 at the beginning of 2004.

[11] It quickly became evident that student C had quite severe behavioural issues. Ms Williams, who worked closely with student C in both Grades 7 and 8, described his behaviour in the following terms:2

"Quite often his behaviour seemed to be very erratic and quite disruptive at times. His social skills were of great concern. He often called out in class at really odd moments and calling out strange things. He would often refuse to complete and undertake activities that were set. He could be aggressive. At times he could be extremely defiant and it was very difficult to get him to comply. Quite often crisis had to be called, which is senior staff members called to a particular teacher's room to have - to remove him so that the teacher could get on with their teaching because he would be causing such a disruption or making kids feel very intimidated and uncomfortable. He could be abusive towards staff and get right in their faces and use obscene language to them and really intimidate them and stand over them. At times when he was unmanageable there were several occasions where we actually had to call home because he would refuse to follow the senior staff members and we would have to actually call home and get mum or dad to come and collect him from the school. Often too when he had left a class he would just get up and leave and go and roam the school, and there were several occasions where he would come back to the classroom and come back in and then call out and be quite abusive towards the teachers, and there were several incidents where classroom doors were actually locked once he was out of the area and had gone out so that the teacher could get on with their teaching in case he came back and caused further disruption while we were still out trying to look for him and locate him and get him to calm down and talk to him. He could be very inconsistent in taking his medication once he was medicated. Sometimes he would be fine and other times we would find out after a series of days that he hadn't actually been taking it. We were really concerned about his mental health, to be honest, at times, because his behaviours at times were so difficult and uncontrollable, and the way he behaved was totally inappropriate, and the fact that we could never - it was very often difficult to reason with him and to get him to calm down and co-operate with us, yes, I mean, I personally was very much concerned about his mental health and his well-being there."

[12] The school has in place a system of Behavioural Support Referral Forms whereby incidents are documented and placed on the student's file. According to Mr Le Rossignol, a typical student would expect to receive one or two of the referral forms in a year. In the case of student C, he had been issued with 83 referral forms in his two years at the school. He had also been suspended for a total of 25 days. The referral forms were tendered into evidence. Examples of the types of behaviour exhibited included the following:

· Offensive language, verbal abuse, defiance.

· Punching male students.

· Poking a student in the eye with texta pens, requiring medical attention.

· Spitting in the face of a female student.

· Threatening a teacher's property.

· Striking a female student.

· Leaving class without permission.

· Kicking chairs and lockers.

· Threatening a teacher with a compass.

· Throwing a golf ball and hitting student in the face.

[13] On one referral a teacher commented "I find this boy very confrontational and almost frightening. I feel a fairly serious consequence is warranted". In another case the teacher said "I think (student C ) could be more forceful one day".

[14] A number of Term Reports were also tendered into evidence. With a few notable exceptions, these reports generally painted a picture of unsatisfactory classroom behaviour.

[15] Steps were taken to modify student C's timetable so as to focus on areas in which he had an interest and enjoyed some success. A behaviour management plan was put in place.

[16] Both Ms Williams and Mr Harris agreed that some students might have felt intimidated by student C's behaviour with Mr Harris noting that it was the unpredictability that was the greatest concern.3

[17] In 2005 student C's behaviour improved somewhat which Ms Williams felt was a consequence of the strategies put in place, coupled with teachers more experienced in behaviour management.

[18] The evidence of Mr Harris was:4

"Would it be fair to say that despite his behaviour moderating somewhat in 2005 there were still occasions where he would lose it?---Oh, absolutely, yes, he would, and really big time. There, probably, the frequency of those disruptions sort of didn't occur quite as much, of course, in 2005 as in 2004."

[19] Towards the end of 2005 student C transferred to a different school on the North West Coast. To complete the picture the evidence of Mr Hart suggested that his behaviour had improved dramatically.

[20] Mr Billett's evidence was that he took a particular interest in student C as he, and others, attempted to gain an understanding of the student's behaviour. Mr Billett outlined the steps he took to develop a relationship with student C and his parents during 2004/05. Following one particular incident Mr Billett said:5

"From then on I think any time I became like a pseudo case manager because we hadn't appointed anyone at that stage, probably the first and last point of contact as regards C, as we tried to - tried to understand this boy a bit more."

[21] Mr Billett was nominated as point of contact in the event that student C wanted "time out". Mr Billett said:6

"So during that first term, basically because I was the senior person in the school in charge of that grade, I had a lot to do with him, but also because I had taken a particular interest in the boy and I'd gathered a lot of personal information about him. So I had got to know him, not just well, very well, and we had also developed, I believe, a great deal of confidence. So we - there were even some successes when it came to C getting himself out of class when he realised that he was about to overstep the mark, you know, he would simply show the card which had my timetable on the back of it, because I also taught."

[22] In 2005 the Principal assumed responsibility for the behaviour management of Grade 8. However Mr Billett continued to have regular, informal contact with student C and on a number of occasions was involved in crisis intervention concerning his behaviour.

[23] It transpires that student C suffers from a condition known as Attention Deficit Hyperactivity Disorder (ADHD). However it would seem from the evidence that the school was not formally notified of this condition until immediately following the incident in question. Student C was self-medicating, and failed to take his medication on the day in question. However this was not known to Mr Billett, or any other teacher, until after the event.

[24] In 2004 Mr Billett referred student C to the Guidance Officer for assessment. This report indicated that student C had an "information processing speed problem".7

The Incident

[25] The particular class involved was Grade 8/2 SOCE (Society and the Environment). Mr Billett had, for a short period, taught this class as a consequence of the previous teacher being on stress leave. It seems likely that student C was a significant contributing factor in this stress condition.

[26] The evidence of Mr Billett in relation to the subsequent replacement teacher (Mrs Woodgate) was:8

"Subsequently, that teacher, on their return to work plan, part of the return to work was the he not teach that class, so that brought about a change in teacher and that teacher was also very concerned about the behaviour of people in that class, particularly C. When somebody is taken off a class it spreads around the school very quickly between the teaching staff why and, therefore, that particular new teacher was very careful to coming to me and explained that she would only take the class if I supported her in the form of looking after some of the behaviour, particularly of C in that class while she settled in."

[27] Mr Billett went on to say:9

".... I would come and go during those lessons probably two, maybe three times, just walk in, walk around the class, talk to the students about the work they were doing, so it was not uncommon for me to be in that classroom for a number of times on any given day when they had soc."

[28] Mr Billett's evidence in relation to the incident on 11 August 2005 was as follows:10

"We had a fairly extensive professional learning program happening in the school on that particular day which involved the grade AST3s and the subject leaders and in relation to incorporating Essential Learnings into the - which are the new education curriculum, into the learning programs so that we were encouraging people to look at their subject areas and to see how they might introduce some - the Essential Learnings. I can't remember particularly which - what the focus was on on that particular day but we had divided them up into two groups. One group went in the morning and one group in the afternoon and it had been run by one of my AST3s. Therefore, we had a number of relief teachers in the school the day, that day, to cover all the staff who had a learning area of responsibility which was numerous. And my basic recollection is there were probably eight, nine, maybe ten relief teachers in for that day. So about a third of the class has been covered by relief. Therefore, it had been a fairly demanding day on me in relation to setting up the programs for these relief teachers and also in the behaviour management of the school, and also in deputising for the principal there had been some phone calls and things, I believe, from memory, in the day dealing with other matters the principal would normally have dealt with which I was required to do. The afternoon I'd had my usual leadership by walking about, as I used to call it, where I would go to make certain all the students were in class and I was happy that the school was at work and that the students were behaving appropriately for our relief teachers in particular. And I went to my office to organise the payment of these relief teachers; I had to enter that on to the data base. I was interrupted there three or four times in the first few minutes I was there so I made a decision to move to an alternate area and I informed my office ladies where I was going. The room I chose was actually Mrs Williams' office which had been my office the previous year so I knew it was out of the way, but the ladies in the office knew that if a crisis did emerge and I was required, where I was so they could find me, so that I could have time to enter the relief details for these relief staff - relief staff. When I was in the process of doing that I was alerted to a disturbance in the room immediately through the wall, and that room is called room 201. The disturbance took the form of some very loud shouting, abusive language so as part of my role in behaviour management I can't let things like that go on, I didn't - I couldn't remember whether it was a relief, or who was in there, it didn't matter. I went in and as soon as I walked in I recognised the class as 8/2 and that they were with their teacher, Mrs Woodgate. On entry to the room obviously, or not obviously, surprisingly one should say, the disturbance ceased and I was unable at that stage to ascertain exactly who had caused the difficulty, or the disturbance. So as was my norm with that class I moved around, just spoke to the students about what they were doing and I was in the far corner from where C and his friends were when he again used some very inappropriate language. I went over to him and asked that he calm. I think he replied to me, "Oh, I wasn't effing swearing, Mr B" and I said, "C, you are, and you're disturbing the rest of the class now, so you need to get down." "Oh, okay." Now, had he done any work? No. So I ascertained that he knew what was required. They were doing some work on a medieval village and he had to research - he was writing up some research he had done on a particular artisan. I can't remember what it was, it might have been a blacksmith or something. I said, "Listen, you've got that, you know, you need to make a good copy. You've made a good, you know, job of that, you found that info", and at that stage I left to go back to doing my task of entering the relief data. I hadn't got very far through that when the outburst happened again. This time when I entered the room it didn't cease, so I went up to C and, as was the norm, used the back of my finger, I said, "C", you know, "I need to talk to you outside the door, mate", and then just turned and walked. Again, that's part of the process of the calm, the adult voice approach we use. C, quite loudly, followed, got outside the room, again told me that he wasn't effing swearing. He then tried to push his way past me. I was standing between the student and the entrance to the room. From memory, I think the door was slightly ajar, I can't be certain of that, and he pushed me quite violently, violent enough to push the glasses which were hanging off my jumper at the front, to break them - fell to the floor. He accused me of assault and I - I think I eye-balled him and said, "C, if there was any assault you were the person who has assaulted me. You need to grab your books and come with me and work - do your work outside my office" because I thought at that stage it was best that we remove him from the situation because he was feeding off the other students around him, a group of boys who didn't react very well together and a group of boys who constantly, or not constantly, who, in my opinion, quite often set him up to see - watch him go off, took great delight in seeing him go off I believe. C didn't get his bag and come with me and I went round into Mrs Williams' office; he made some comment, "Where the eff do you think you're going?" and I said, "I'm working in here this afternoon, I just want you to sit here and get on with your work." And is usual practice, you don't stand over the student, you give them the chance to sit down and you move through into the office. When I turned he'd gone. I then followed after him. I thought, well, I've put him in an unusual situation for him and myself. He would normally expect, if he was going to work outside my office that to be in the administration building, so I went across to the admin building. He wasn't there. So, knowing of his propensity, what he could do in disturbing other classes I then followed out around the school to see if I could find him and I found him outside the windows to the room speaking to the students through the window, engaged in quite an animated conversation. Those students when I - as I approached, who saw me coming, he didn't because he had his back to me, encouraged him to run, "Look out, here comes Billett", or something was -was the remark and he ran around the block and disappeared again.

THE COMMISSIONER: Was this room 201?---201, yes. The two refers to the fact that it is in block two and 01 is the first room in the block. I did a quick search of the open areas, couldn't find him, so I went back to the classroom to see if everything was under control because he had disturbed them. I entered the classroom and it was particularly quiet, almost to the stage of being abnormally quiet. At that point I was informed by a group of girls, "He's hiding under the desks or behind the boys at the back of the room, Mr B." So I went up and I asked C again to "Please come with me and stop being silly." I tried to get him to exit but in calm. He remained on the floor and became quite abusive at which stage his behaviour was beginning to be getting to the stage of disrupting the class entirely, so I went to the teacher, Mrs Woodgate, and suggested that she remove the class and that C and I would remain and I informed her, as I had come past a vacant room next door, that there was a vacant classroom next door that she could move to. When you have a disturbance and you remove a class obviously there is quite a bit of disruption to the class, and whilst this class had undergone this procedure in the past they were still very noisy, agitated about what was happening and did it, causing an amount of disruption to the block. At that point C decided that he was going to join in too, he was going too. And I said, "No, you're not, C, you're staying here with me." He got up, stood up and went to push past me again. I took hold of the windowsill either side of him and held the windowsill. He attempted to push me again, again shouting very loudly in my face, and becoming - all the time becoming more and more agitated. When he tried to push me I grabbed him by the hands and held those down by his - or by the wrists, sorry, and held those down by his side whilst the rest of the class exited. As the last of those people were moving out of the class C was becoming more and more agitated, far more agitated than I had ever seen him before. So when he again pushed past me, at that stage I had let go of his wrists, and pushed past me and tried to move his, or make his way to the door I reached out and grabbed the strap to his bag, the handle on the back, to prevent him from going out to continue his disturbance, to try isolate him in one area. All the time his behaviour's still escalating and the language and the volume was very, very loud, and the language was totally inappropriate. As the last student exited the door I also managed to close it. C, at that stage, had got to the floor and was trying to crawl out the door; I still had hold of his bag. At that point a teacher, another teacher emerged and that was a Mrs Christine Connors, or Miss Christine Connors, and she opened the door and I said, "Please come in". Again, I was concerned about being in the room by myself with this child in such an agitated state but also it was part of my practice never to usually interview or to deal with these children in isolation. By talking calmly to him he did start to calm. Christine Connors did make some comments to him. They were more instructions in the light of, "C, you must calm yourself. C, please be calm." I can't remember any other comments that she made. Part of my practice when a student ever behaves, gets into a very agitated state, is to eye-ball them, so I had him firmly fixed in my vision and was talking calmly and collectively towards him, or to him, so he was making comments like, "You're a sick", excuse the expression, "You're a sick fuck, Mr Billett", derogatory comments about myself and the principal on what we might do together, and about the school, and about his parents, and my approach to that was to say, "Yes, C, yes, but we just need to calm down, mate, you know, okay. Calm down and we'll talk about it." And I thought I'd succeeded, at which stage I withdrew, you know, towards the front of the room and sat on the desk towards the front and he was sitting on the desk at the back and we started to begin a rational conversation when, again, something triggered it. I don't know what it was. He turned around, opened the window and tried to eject himself head-first out the window. I took - when he was behaving irrationally just before that he had been throwing discs and chairs around the room and generally in my direction. As I was quite concerned about my safety, his safety and the state obviously of the, you know, the very edgy state that he was in. When he tried to eject himself out of the windows - now, the windows aren't - they do have retainers or stoppers on them which were put in originally to, we thought, would stop students climbing in and out the windows, it didn't. In fact, it was quite a game the students used to play, they would leave the windows open at recess and lunch and then get in and play merry hell in the block at recess and lunch because the block had numerous, whilst it had a small number of rooms it did have one, two, three, four entry/exit points, so it was a merry dance for the relief - for the duty teacher and was quite a game for those students. However, that was the reason why the lugs had been put in place. I was also mindful of the fact that immediately outside the window we'd cleared some shrubbery some time earlier and that there were stumps and this boy was going head-first out and so I feared for his personal safety. So I grabbed hold of his arms in this region, I believe, and pulled him quite forcibly back into the room. When I looked around Christine Connors was no longer there. I did not know where she had gone at that point in time, or what she was doing. I was somewhat surprised by that. However, I continued to talk quietly to C and that was probably for a period of about another 10, 15 minutes, and in that time he calmed very, very rapidly. It was, like, switching off one personality and turning on another. It was bizarre, to the extent that about 5 past 3 I looked at my watch and I said to him, "Are you right to catch a bus?" and he said, "Yes." This is a student who, you know, 20 minutes, or 15, 20 minutes earlier had been, for want of a better word, totally off the show. So I walked with him out of the room. As we went out we walked past a number of students who were out. Christine Connors was outside the room, and I vaguely remember also Dave Hayward-Chaplain, who was the MARS teacher was also in that - in the vicinity. I walked with C about halfway to his bus so we were well out in front of the admin block and he turned, or he was just in front of me and he said, "I am all right now, Mr Billett, I'm sorry, I am all right. I'm sorry for what happened." And I said, "Are you sure you're right to get home?" "Yeah, I'm right. I'm okay." At which point I went back to the admin block and I phoned his mother and told her what had happened and then she passed me across to the dad and I went through it all again. They were very concerned, as was I, about what had transpired and they said they'd like to talk to C first but could we arrange to talk some time tomorrow. They were going to town in the morning. Mum was - had a lesson of some sort. She used to tutor art to some students and I presume that's what she was doing in the afternoon, so I said, "Listen, I'm quite happy to come to you, is that okay?" and so we made an arrangement to meet at 2 o'clock the following day."

[29] Asked as to what was going through his mind during the incident, Mr Billett said:11

"It was a - what was going through my mind is, C, well, not losing control, C's behaviour is totally bizarre, it's worse than I have ever seen before and I must do something about this, both to protect him, to protect me, to protect the other students around."

[30] Mr Billett's evidence was consistent with his written responses made during the investigation process. His statement of 28 October 2005 elaborates on the decision to exit the class:12

"At this stage I was unsuccessful in trying to get C to his feet and had tried to assist him to do so by pulling on the handle attached to his school bag which was on his shoulders. N was particularly loud in his comments about teacher brutality and that teachers could not touch students.

C's statements to me included:-

`Leave me alone you fat cunt!'

`Get your hands off me you fucking cunt!'

`You fucking teachers are all the same ... you always have to get your own way!'

`You're a sick fuck!'

`Teacher brutality! Why don't you pick on someone your own fucking size!'

C, encouraged by the students around him, continued to defy me becoming even more verbally aggressive towards me and the school in general.

Once again, all colour drained from his face as he became increasingly loud and abusive. I believed that C's behaviour was escalating to such a point that if he would not leave the room, then his class group would need to move.

When I asked Mrs Woodgate to move the remainder of the class C did get to his feet and tried to exit with them, all the while yelling abuse at me and threatening physical violence towards me.

`You're a sick fuck!'

`Get your fucking hands off me you sick cunt!'

`Let me go or I'll punch your fucking lights out!'

`Just let me go!'

I made a professional judgment that C was in no fit state to be anywhere near any other students and therefore corralled him in the vicinity of the corner where he was. I did this by first pinning his arms to his side and then by my holding onto the window sill with my arms around him. I accept that, as stated by a number of witnesses, that I had to hold his hands by his side on more than one occasion and I took this action in order to stop C from lashing out at me.

I believe that my actions were necessary to exclude C from his class group knowing of his potential to lash out and knowing that C was clearly not in control of himself and was presenting as a danger to everyone around him. Knowledge of his propensity to run away and previous disclosures of threats to self harm reinforced my decision that I could not simply allow him to go. My knowledge of what had happened in the lesson, and the behaviour that was likely to occur, was based on my numerous interactions with C and I dispute that anyone else was fully cognizant of the situation such that they could make an informed and reasonable judgment as to what I or they would/should have done."

[31] There were a number of adult witnesses to various parts of the incident, which in total extended over 35 to 40 minutes.

[32] Mrs Finnigan witnessed, from an adjacent classroom, the initial exiting of student C from the classroom. She confirmed Mr Billett's evidence and said "there was nothing that would have concerned me with what I saw".

[33] Later Mrs Finnigan entered the classroom to assist Mrs Woodgate with exiting the class. She saw Mr Billett restraining student C as the class exited and said "that hold didn't concern me".

[34] After the class had exited Mrs Finnigan returned to her own class. She said she heard student C asking to be allowed to go. She said there was a "distressed tone to his voice".

[35] Her further evidence was:13

"Was your personal feeling that in that situation you would have done anything differently?---It is a difficult question to answer because as I said you need the context of the entire situation to know what would be the most appropriate action, so without that knowledge, based on what I was hearing and what I was seeing I would have let C go."

[36] Later under cross-examination, Mrs Finnigan said:14

"Louise, it is - your evidence today is quite succinct and precise, your document is fairly large but it does actually represent, I think, to a large extent what you only saw and what you only heard, but that was pretty limited, wasn't it?---Yes.

And you have had no dealings with the boy, C?---No, I haven't.

So the circumstances presented to you as an observer, and you made that point, may have been completely different to the person who was dealing with the behaviour at that time?---As I - yes, as I said you need to know the context, you need to have that information about the student and as I said in my statement that extra information can alter your opinion and perspective, so I am only commenting on what I saw and what I heard and as a result what I felt about it."

[37] Mrs Finnigan said Mr Billett's demeanour is generally calm and he appeared calm during this incident.

[38] Prior to the incident Ms Connors had had very limited dealings with student C. She said she came from the staff room when she heard screaming. She described what followed:15

"And what did you find when you went to investigate?---Well, when I walked out of my office - just say that my office is here and here is room 202 and 201, as I was walking out I saw the door open and C was on the ground.

The door of room - - -?---201.

And C was on the ground. Did you approach the room?---Yes.

What did you see as you approached the room?---As I was approaching, I think the door - that's when the door opened and C was on the ground and the door was open just enough for his head and shoulder to be coming - - - 

When you say he was on the ground, was he lying flat on the ground or was he in some other position?---He was on his side.

On his side?---I think.

Could you establish why?---Not at the time, no, but then I said, you know, "What are you doing?" And it looked like whoever was behind the door was trying to shut it and that's when I got a bit - I suppose when I got a bit closer I saw Geoff.

Right. And what did C do after that?---What did C do?

Yes?---Well, he was screaming and yes, he was screaming.

And did he remain on the floor or did he go back into the room?---Very quickly he was back in the room.

Right. And do you know how that happened?---Well, it seemed like he had got dragged back into the room."

[39] Ms Connors entered the room and attempted to calm student C. After a short period she left to seek assistance. She said:16

"Right. Why did you leave?---Because I think C started looking like he was trying to get out the windows and Geoff said, you know, don't go out the windows and C was getting agitated and I think at that point in time I - Julie was close by to the room 201 door and I said to Julie, "What time is it?" And she said, "3 o'clock." And I thought, there is 10 more minutes to go, so I think I went around to the corner to small staff rooms to see if Libby was there, senior staff - - - 

Libby Williams?---Yes, a senior staff member and then I recalled that she wasn't there on a Thursday afternoon and so I thought of ringing Dave to calm C down.

That is Dave?---Dave Hayward-Chaplain, the MARS guy who deals with at risk kids."

In her statement written immediately after the incident, Ms Connors said, "I felt as though the situation was out of my depth".17

[40] According to the statement of Mr Hayward-Chaplain, by the time he arrived the situation had calmed and he did not enter the room.18

[41] Ms Connors said that Mr Billett was calm throughout the incident, which was his normal demeanour.

[42] On the following Friday afternoon, Mr Billett, together with Mr Colgrave, visited the home of student C. It was at this point that the issue of bruising on student C's arm was raised. Mr Billett said:19

"At some point in the conversation the question - or the fact that Dad raised the point that he wasn't happy - really happy about the bruising, but understood that his son had needed - had to be restrained. That is all contained in my report of that incident, a copy of which has yet to be provided back to me."

...

"So you don't deny that in fact there was bruising to the child's arms?---I did not see the bruising at that time, but I was informed by the parent that there was bruising by the - to be more precise, by the father. He did not seem overly upset about it."

[43] The meeting continued to discuss student C 's re-entry to the school, with Mr Billett being nominated as the first point of contact in the event that student C wished to exercise time out.

[44] On Monday 15 August student C showed student J the bruising. The following is an extract from the transcript of interview with student J:20

"Phil Did C show you any bruising on his arm?

J Yeah he had a bruise just about up here.

Phil Did he talk to you about that bruise?

J We asked him if he was going to do anything about it and he said no he didn't care.

Phil Did he say how he got it?

J Yeah he said it was from Mr Billett."

[45] On Tuesday 16 August student C attended a MARRSS program with Mr Heyward-Chaplain. The following is an extract from his transcript of interview:21

"... I asked him how his week had been, he said fine. So I asked him what about last Thursday he said `it pissed me off, I don't want to talk about it'. So I said fine. Later on in the lesson C referred back to it and he said something about bruises so I said what bruises are they. So he rolled up his sleeve and showed me the bruises on his arm. So at that point I guess I realised it had something to do with Geoff. It was a mandatory reporting situation. So I asked him what he wanted to do. And he said sort of vaguely I want to get something done about it or something like that. So at that point I said `look if you want to get Geoff sacked' or something like that, `I am not interested at all. But if you just want some sort of justice I will support you 100%'. So he agreed to that and then I said `Ok you can go and see the principal now and show her and state what you want to state'. He said `I don't want to do that'. So I said `Well I could photograph it, there is a camera on my desk' so I photographed him and gave it to Christine."

[46] Mr Heyward-Chaplain e-mailed the photographs to the Principal, who in turn passed them on to the Northern Branch office in the form of a complaint.

[47] Mr Billett said the Department did not provide the photos to him until 10 October 2005. In his response dated 28 October 2005, Mr Billett offered the following possible explanations for the bruising:22

"The bruising that occurred to C's arm(s) may be a direct outcome of the required intervention, or may have been caused by other factors other than my restraining C.

eg - The bruises may have resulted when C pushed passed me to gain re-entry to Room 201 during his initial conversation with me outside the room.

- The bruising may have resulted from my restraint of C when the class was being moved.

- The bruising may have resulted from C's attempt to pull his way out of the door and my attempt to restrain him, or from being wedged in the door.

- The bruising may have resulted from my seizing C by the arms and pulling him back into the room when he tried to eject himself out the window.

- The bruising may have been self-inflicted or be the result of a completely different incident of which we have no knowledge."

Analysis of the Incident

[48] There are aspects of the incident, which assumed some importance in the Department's consideration, which require further analysis.

Mr Billett intervened without consultation with the classroom teacher.

[49] In the Findings of the Investigation Report, the following appears:23

"Given that the classroom teacher, Ms Woodgate, had not found it necessary to speak to C regarding his behaviour, it appears that Mr Billett may have unnecessarily created a confrontation with C which quickly escalated."

[50] Mr Cleaver indicated that this was a reference to when Mr Billett entered the classroom for the first time.24

[51] Mr Hart expressed a view that "it's a dangerous situation at times to enter a classroom and not go through the classroom teacher".

[52] Earlier in this decision there is reference to the arrangement between Mr Billett and Mrs Woodgate whereby Mr Billett would provide ongoing classroom support. This point was made in Mr Billett's response to the Department dated 28 October 2005.

[53] Mrs Woodgate was not called to give evidence in the hearing. She was however interviewed during the investigation process. In relation to Mr Billett's intervention she said:25

"I have just taken over the class because another teacher had to have his load reduced. And I was available with a Thursday afternoon anyway, another lesson was changed around a bit so that I could slot in and Geoff has been sort of been team teaching. So that was his connection basically with the class. Obviously, when he came and he was in the adjoining office when he heard C sort of carrying on a bit and obviously came in to do me a good turn and quiet him down."

[54] And later:

"Phil Do you think C's behaviour in your class justified another staff member coming in and taking him out?

Julie It is hard to say. He wasn't/I can remember thinking to myself `C, please be quiet' because you are talking a load of gobble de gook and you would be disturbing the other kids around. Had it been bad enough then obviously I would have taken the next stage. So, like his disrupting was getting to the point where had he continued I would probably had to network him."

[55] In relation to the second occasion Mr Billett entered the classroom, Mrs Woodgate said:

"Well they only come in, Geoff only came back in once. And the kids were sort of, oh, I don't know for want of a better word hiding C up the back or something. He obviously was not meant to be there. He was meant to just stay out of the classroom. And it was just sort of you know, business as usual really until we were asked to move."

[56] In light of the material before the Investigation Officer I am unable to find any evidentiary basis for the finding referred to above.

Mr Billett continued to forcibly restrain student C after students and staff had left the classroom.

Student C wished only to be allowed to go and wait at the bus stop. There were only a few minutes to go before the bell rang.

[57] Mr Cleaver in his evidence said:26

"Look, I need to be clear that this incident occurred over at least a half hour period and in the investigation report I am clear that there is a component of that that I have deemed reasonable restraint. It is only the end part of the incident where the students and the teacher, Woodgate, have been removed from classroom 201 and the restraint continues when there is no other obvious harm that that component of it is where the unnecessary restraint occurred and that is where clearly student C... is trying to remove himself from the classroom. He is not threatening anyone. He is saying, "Just let me go." It's near the end of the school day. He says that in his own statement. He just wants to go and wait at the bus stop so in my opinion of presenting or assessing the evidence available that the harassment and the discrimination occurred, which covers part 3."

[58] And later:27

"C entered the classroom again and he refused to leave, on request; that is correct?---Well, he entered and was sitting quietly in the back - - - 

That was - - -?--- - - - and when approached by Mr Billett he refused to leave.

Okay. Was that appropriate behaviour?---No. There may have been other strategies that Mr Billett could have engaged at that time given the class was settled and quiet.

I think that we have made the point that, you know, isn't it really in the best option for the behaviour management of any child but, in particular, a challenging child, particularly one who, and you believe to have some processing problems, to deal with it immediately, at the time?---No. It may be that if he is settled that you would just leave that in reserve, given as like five minutes till the end of the day and deal with it the next day when the boy is calmed and the boy is processing matters in a more calm way."

[59] I deal firstly with the timing issue.

[60] From the evidence I conclude that the exiting of the class commenced between 2.45pm and 2.50pm.

[61] Mr Billett's evidence was that he spoke quietly to student C for 10 to 15 minutes after the window incident. It was then 3.05pm (bell at 3.10pm), at which point Mr Billett allowed student C to go to the bus stop.28

[62] Mrs Finnigan said she returned to her classroom, after assisting with the exit at five or ten to three.29

[63] Mr Heyward-Chaplin said there was 10 to 15 minutes to go by the time he arrived, and the situation had calmed.30

[64] In his transcript of interview student C said:31

"I was trying to get out of it. And stuff like that and trying stuff like that. And then when everybody left he sort of let me go. I didn't really want to talk to him because he was pinning me in the corner. So I wanted to leave, like, not like back to the classroom, I just wanted to wait at the bus stop. It was starting to get close to school finishing, so I really wanted to go. And he would not let me go. I was yelling him to let me go and he wouldn't let me go ..."

[65] Whilst it is possible that student C's intention was to go to the bus stop, at no point did he actually say this to Mr Billett. His repeated expression was "let me go" or similar.

[66] Mr Billett was clearly under the impression that student C intended to follow the class. He said:32

"... so I went to the teacher, Mrs Woodgate, and suggested that she remove the class and that C and I would remain and I informed her, as I had come past a vacant room next door, that there was a vacant classroom next door that she could move to. When you have a disturbance and you remove a class obviously there is quite a bit of disruption to the class, and whilst this class had undergone this procedure in the past they were still very noisy, agitated about what was happening and did it, causing an amount of disruption to the block. At that point C decided that he was going to join in too, he was going too. And I said, "No, you're not, C, you're staying here with me." "

[67] And later:33

"Okay, well we won't go there then, that will come later. So whilst the students were being exited from the classroom what happened next between you and C?---C got to his feet and tried to exited and informed me that he was - again, you know, I don't use the language that C does - but he informed me that he was about to - he was going to leave with the class and that I couldn't stop him."

[68] Mr Billett's understanding of student C's intention was made clear in his written response of 28 October 2005.34

[69] Mr Billett went on to say:35

"Was there any intention to harm him?---Definitely not.

Was there malice involved?---No, because we had a boy in a highly agitated state who I did not know how he would behave if he released himself back out into the general body of the school, whether he went back to his own class, wherever. I had to make a decision based on the facts that I had and it's not a decision you take lightly but it's one you have to make quickly and therefore I believe I had no alternative but to restrain him at that particular point in time."

[70] Student N, in his transcript of interview said:36

"Phil When you were being moved into the next classroom, where were C and Mr Billett?

N C was trying to get out and follow but Mr Billett, like they were both wrestling and like that."

[71] In the Investigation Report the following appears under Summary of Incident:37

"Mr Billett restrains C in the back corner by physically holding him and instructs Ms Woodgate to remove the students to the classroom next door (room 202).

There are now only C and Mr Billett in the classroom. C attempts to leave the classroom through the front door but is dragged back into the classroom by Mr Billett. This action is witnessed by Ms Connors. C then attempts to leave the classroom through a window but is physically restrained by Mr Billett."

[72] In Mr Cleaver's evidence the following exchange took place:38

"The class hadn't gone. He was following the class?---He was next - they were next door. They were - - - 

He was following the class out, the class hadn't gone. I will ask you this - - -?---No, I'm sorry, you're getting the timing mixed up. The class was gone at this stage. When C... was dragged back in from the class the class was gone.

Going; that is right?---No, it was gone."

[73] Mr Billett's evidence as to the timing of the door incident was:39

"So once the class has exited what happens next?---As the last students were exiting C broke free of the handhold I had on him and rushed for the door at which stage I grabbed him by the bag. He - the bag strap has a hold up handle in the middle of the back of it, from memory, which was the handle I grabbed. He twisted and turned and fell to the floor.

And what happened to him whilst he was on the floor?---I still had hold of his bag, sir.

And what did the student then seek to do? I mean did he just lay there for example?---No, he was still attempted to exit the room through the door."

[74] In his written response of 28 October 2005, Mr Billett said:40

"As the last student exited I noticed another teacher (Mrs Christine Connors) immediately outside the door and invited her in to the room in the hope that a female presence might help calm C and diffuse the situation."

...

"As the class left the room, their movement supervised by Mrs Woodgate who was assisted by Mrs Finnigan, C tried to force his way past me to the door. I stood in front of the door, held both arms out in an attempt to stop him leaving the room. When he could not get past my outstretched arms, he dropped to the floor and tried to crawl out the partly open door.

At this point I was between the wall and the door and C was wedged between the partly open door and the door jamb. I then pulled him back from the doorway by the strap on his bag. It was at this approximate time that Mrs Connors entered the room."

[75] Mr Billett's evidence was not challenged nor was any contrary evidence adduced. It is therefore accepted.

[76] Following the door incident the only evidence of physical restraint related to the attempt by student C to dive through the window. Mr Billett said:41

"THE COMMISSIONER: Allow Mr Billett - - - ?---He turned, his arms were by his sides and he leapt at the open - the fraction of window that was open.

MR BAKER: Now, at that point in time you restrained him again?---I did.

And you pulled him back into the room?---I did."

[77] On the basis of the above analysis I have reached the following conclusions:

· The class exit commenced at approximately 2.45pm to 2.50pm.

· The door incident occurred at the same time, as the last students left the room.

· The intentions of student C were unknown, but it is possible that he intended to go to the bus stop.

· He gave no indication of his intentions to Mr Billett, other than he wanted to go.

· Mr Billett concluded that student C intended to go with the class.

· After the door incident, student C was prevented from leaving the classroom, but was not forcibly restrained, other than when he attempted to dive through the window.

· Student C was allowed by Mr Billett to go to the bus stop approximately five minutes before the bell.

Student C did not make any threats to harm himself or others.

[78] The following finding is found in the Investigation Report:42

"There is no evidence from any witness statement that indicates that C's behaviour at the time of the incident was potentially harmful to any other student, staff member or himself."

[79] It is true to say that there was no evidence of threats to other students or staff. It would not however be accurate to conclude that student C did not threaten Mr Billett.

[80] Student C physically assaulted Mr Billett on the first occasion he was removed from the classroom, breaking his glasses in the process.

[81] Mr Billett's evidence in relation to the class exit was:43

"So whilst they were in the process of exiting, what happens then?---C attempted to push - turned around and faced me and pushed me so I grabbed him by the wrists because I feared a personal assault on myself.

Does he have a history of assaulting you?---Never before, but he was more agitated than I have ever seen the boy before."

[82] Further, it was Mr Billett's evidence that student C had said:44

"Let me go or I will punch your fucking lights out."

[83] The act of diving head first through a window would reasonably lead to a conclusion that it would result in self-harm.

Department Policy: Unacceptable Behaviour, Restraint

[84] The Department defines unacceptable behaviour in the following terms:45

"Unacceptable behaviour by students includes:

· refusing to participate in the education program

· refusing to follow instructions about conduct

· behaviour that disrupts or affects the learning of other students

· actions likely to be detrimental to the health, safety or welfare of staff or other students

· behaviour that causes or is likely to cause damage

· behaviour that is likely to bring the school into disrepute"

[85] There was no serious contest to the proposition that the behaviour of student C was unacceptable. The only issue was whether the restraint imposed by Mr Billett was justified.

[86] A departmental document, "Legal Issues for Schools", reads:46

"Physical Restraint

(February 2005)

Principals and teachers owe students a duty of care to prevent students injuring themselves, other students, staff or members of the public. In the event of threatened or actual violence and when all efforts at de-escalation have failed, a Principal or teacher may attempt to restrain a student if the Principal or teacher believes there is a risk of significant harm to the student, other students, staff or members of the public.

Principals or teachers should physically restrain a student only if they believe that such a course of action will be effective in reducing the risk of harm to others and does not put themselves or others at risk of harm.

What is Physical Restraint?

(February 2005)

Physical restraint refers to a Principal or teacher placing hands on a student in order to restrict movement for reasons of safety. Such restraint is maintained for a limited period of time and must be designed to calm the student as well as preventing injury.

Only necessary and reasonable force would be used to restrain the student without inflicting pain.

An excessive use of force may render the Principal or teacher liable to prosecution for assault, assault occasioning actual bodily harm, or false imprisonment."

[87] Mr Lane gave evidence in relation to attempts by the Union to engage the Department on the subject of physical restraint. His position is well summarised in the following exchange:47

"In your experience are teachers offered training or professional development in dealing with particularly aggressive, disruptive, or challenging students?---The short answer is, no, despite numerous requests.

Do you believe that there is a need for professional development, training, or guidance in respect of student behaviour management and, in particular, in respect of the restraint of children?---Yes, this has been a concern of ours for well over a decade. We have previously written to the department requesting that they provide professional development and some guidance for teachers in classrooms especially in the identification of problems and to a certain extent they have done that in their supportive school management sessions which they have done intermittently over the last 10 years. But the area of greatest concern we find very difficult is when teachers do have to restrain a student. It's fraught with all sorts of legal difficulties and it's of real concern and we - I can remember at least a decade ago writing a letter, and unfortunately I couldn't find a copy of it, but we wrote a letter to the Department of Education asking them, almost pleading with them to please provide teachers with training on how to restrain children, because we know that it can be a legal can of worms, and they simply refused."

[88] More recent correspondence between the Union and the Department was tendered. It is fair to say that the Department's responses were couched more in terms of legal liability for assault rather than practical guidance for dealing with day-to-day classroom issues.

[89] Mr Billett said that he had never been offered training or professional development in dealing with challenging and aggressive students.48

Attention Deficit Hyperactivity Disorder

[90] The departmental website notes that ADHD is a condition "that causes behavioural and/or learning difficulties to the extent that the student may not reach his or her full potential academically and socially."49 The symptoms were identified as inattention, hyperactivity and impulsive behaviour.

[91] In relation to medication, the report states:

"Depending on the student, medication begins to wear off most commonly 3 to 4 hours after a dose. The symptoms of ADHD that were present before medication will then usually re-appear. In addition, some children experience a period of rebound at these times and will become especially hyperactive or irritable for a period of time."

[92] Mr Upston referred to a text by Patrice Cook who he asserted was an authority on behaviour and learning disorders. He relied in particular on the following extract in relation to ADHD:50

"Be aware of the timing of your confrontation. Generally, it is done as close to the incident to be confronted as possible unless circumstances or commonsense dictate otherwise. The undimensional construer is present time orientated. Time lapses between the offending behaviour and the confrontation of that behaviour is likely to weaken the impact of the confrontation. The offender is likely to see the incident as over and done with, however, if the student's disruptive behaviour is reinforced by the attention of the class being drawn to them it might be necessary to ask them to remove themselves from the class and confront them in private."

Testimonials

[93] The applicant tendered some 17 testimonials from past and present teaching colleagues. From these testimonials a picture emerges of a highly regarded, supportive senior teacher with a particular empathy for the behaviour management of challenging students. In that context the testimonials are relevant and have been taken into account. It would not however be appropriate to use the testimonials as a means of justifying behaviour or actions that might be found to be plainly unacceptable.

The Queechy High School Incident

[94] Some evidence was led in relation to an incident involving Mr Billett at Queechy High School in 2002. Whilst this matter remains on Mr Billett's personal file, I do not consider it relevant to the instant matter for the following reasons:

· The incident did not form part of the investigation process, nor was it brought to the attention of the Department Secretary. Had it been, natural justice would demand that an opportunity be afforded to Mr Billett to make submissions in relation to the issue.

· There was no investigation of the incident. Indeed it would appear (somewhat unusually, in my view) that the sanction imposed was a matter negotiated between the school and parents of the student involved.

Reaction of Exeter High School Staff

[95] The evidence of Mr McDonough was:51

"What was the feeling of the Exeter High School staff on being advised of Mr Billett's demotion?---I know my own, firstly, was of disbelief. It sort of came out a bit - there was rumours at first was it - and people were asking and not knowing what we were hearing was right or not, made it hard, and then people started to - I mean, long before it even came out there was so much impatience about the whole thing. It was incredulous, I think, the people didn't believe it at first because we hadn't had official things and then when they had that what - what was, was official it was complete disbelief and it was buzzing around the place for a while and that just turned to anger, I think, people got really cross. I'm trying to think of the words to describe it. I know that people just didn't think it was fair, inequitable or - that it wasn't even something that was, they considered to be in the frame of things, in the mix.

It wasn't in their radar even?---Radar, no. Yes, I would - yes."

[96] As a consequence the Union convened a staff meeting. Mr McDonough said the Union had "99% membership" at Exeter and there was "80% attendance" at the meeting.

[97] The meeting passed a series of motions which were conveyed to the Secretary of the Department in correspondence dated 12 May 2006. 52

"Dear Mr Smyth

A meeting of teaching staff at Exeter High School discussed and considered your decision and actions concerning the school's Assistant Principal Geoff Billett. As is evident from the nature of the motions, there is a feeling that your actions in this matter are unfair, unreasonable and do nothing to enhance the school's or teachers' ability or confidence to deal effectively with the behaviour problems and students who disrupt learning and pose a threat to the well-being of others.

Motion 1:

`That the staff members at Exeter High School wish to register their extreme displeasure and anger at the length of time it has taken to investigate and make a determination with regard to Geoff Billett and the events of August 2005.'

Passed unanimously

Motion 2:

`That the staff members at Exeter High School condemn the undue suffering and stress caused to Geoff Billett and his colleagues due to the length of time taken to resolve this issue. The silence surrounding the process and the burden placed on all staff by the necessity to fill acting senior positions due to Geoff's absence is totally unacceptable.'

Passed unanimously

Motion 3:

`The staff at EHS believes that a single AP assigned to this school is inappropriate and has contributed to the events leading up to Geoff Billett's suspension. Since then, the extra stress placed on all staff through the lack of a reasonable number of Senior Staff, and specifically the lack of 2 Assistant Principals when student numbers are nearly 500, is completely unacceptable.

That, further, the staff demands an urgent adjustment of the school's Senior Staff formula and that Exeter High should be entitled to a minimum of at least 1.5 Assistant Principals in recognition of the demands placed on APs in the execution of their duties.'

Passed unanimously

Motion 4

`We at Exeter have successfully worked long and hard on both our Behaviour Management and Inclusion policies and practices but ...

Given the determination of John Smyth, the staff demand professional development & behaviour management strategies that effectively deal with students exhibiting the symptoms of ADHD.'

Passed unanimously

Motion 5

`In light of the stressful working conditions, Mr Billett's split-second decisions were made on the basis of protecting the students and staff, the student concerned, and in order to provide a safe environment for teaching and learning to occur.

While we disagree with the determination, should it be considered that Mr Billett had breached a code of conduct expected of a teacher or Assistant Principal, the sanction imposed by John Smyth is harsh and unjust.

Further, that it is disproportionate to any objective assessment of seriousness, nor is it commensurate with the breach of any reasonable code of conduct or comparison to financial penalty of a similar allegation in a civil matter. This determination is neither fair nor equitable as it and its consequences would differ so much if the person was a principal, assistant principal, advanced skills teacher, teacher, first year teacher or some other department employee of any rank or status.

The staff of Exeter High School condemns the Secretary's determination in relation to Geoff Billett and demand that the decision be reversed.'

Carried

We request that you give serious consideration to the motions and review your decision and the nature of the penalty you have imposed.

Yours sincerely
Chris Lane
STATE MANAGER"

The Investigation Process

[98] The investigation was conducted by the Department's Conduct and Investigation Unit. Mr Billett was immediately suspended with pay. Mr Cleaver, in conjunction with Ms Alison McRae went to the school and interviewed a number of staff and students nominated by the Principal. Ultimately a report was prepared and presented to the Secretary of the Department, who in turn imposed the final sanction of demotion, reprimand and counselling. Mr Billett was provided with an opportunity to respond in writing at a number of stages along the way.

[99] Whilst the investigation was reasonably thorough, there were a number of aspects which give rise for concern, particularly given the gravity of the sanction ultimately imposed.

[100] Firstly, there was no evidence that alternatives to suspension were properly considered, as is required under Commissioner's Direction Number 8,53 nor that the suspension was reviewed on a regular basis.

[101] CD Number 8 states:54

"Suspension is not a sanction, it is only to be used where an investigation of an employee is underway and proper investigation requires the employee to be absent or where because of the nature of the alleged offence it is not appropriate that the employee remain in the workplace.

Suspension is not always the best course of action. A Head of Agency should ensure that other alternatives are also considered before suspending an employee."

[102] Mr Billett was suspended with pay, denied access to the school, his files and his computer. Further he was told to keep the matter confidential. FOI requests were also denied up to the point of this hearing. Arguably these constraints may have had a prejudicial impact on Mr Billett's ability to defend his position. His evidence on the impact of the suspension was:55

"What effect, if any, did it have, the instruction, that you weren't to attend the school, you weren't to speak to anyone about this? Did that have any prejudicial effect in your response?---I felt I was being denied access to the things I needed, one being my computer which on it was the report that I'd handed to Mrs Males about the incident. I didn't have a copy of that. And the second is that, you know, there had obviously been some form of complaint and I had no copy of that and I was asked to respond to it. So I guess I was pretty angry when I wrote that email because I felt I was totally isolated and I was also concerned about the staff because I have - probably the cornerstone of the way I work is my relationships with my students, my staff, anyone, and I thought that they needed to know what had happened to me because I knew they would be concerned. And I was also - I believed I had been treated quite unjustly and unfairly by my principal in the way that I had been informed.

How long did that suspension last for?---Until May of this year.

About eight months?---Oh, probably a bit longer.

In actual fact - - -?---And it's just impossible to describe the feelings that that generated, I can tell you, I - it's - you're powerless, frustrated, ashamed, stressed, in fact, I was ashamed to be a member of a department who had simply, I thought, washed their hands of me over something that I couldn't see that I had done wrong."

[103] Apart from the impact on the individual, suspension imposes a cost on the taxpayer (in this case significant) and additional stress on remaining staff in terms of coverage.56

[104] Suspension should not in my view be imposed lightly and alternatives should always be considered. In this case an alternative might have been to allow Mr Billett to continue in his role with a prohibition on any discussion with potential witnesses of the incident pending the outcome of the investigation. It is not clear whether any alternatives were considered and for that reason I decline to take this issue any further than the above observations.

[105] The second concern relates to the time taken to conclude the investigation process. From the commencement of the investigation to the determination of the sanction took eight months. Explanations for aspects of the delay were provided, and some, particularly the incapacitation of Mr Cleaver for a period of time, were reasonable. Other explanations relating to problems with the transcribing service, and the delay between the final report and the Secretary's determination, are not. Such unnecessary delay only serves to add to the stress and cost associated with process.

[106] The third and perhaps most serious concern is that at no stage was Mr Billett interviewed. Mr Cleaver's evidence was:57

"Did you interview Mr Billett?---I did not.

Was there any reason for that?---I felt that his three statements were very comprehensive. The questions I would like to put to Mr Billett were well covered in his three responses and so I didn't find the need to personally interview Mr Billett as I had all the information I needed."

[107] Mr Billett was the only individual who was not interviewed. On my reading of Commissioner's Direction Number 5, this is a mandatory requirement. Section 4.5 reads:58

"During the course of the investigation, the employee suspected of committing a breach of the code is to be given the opportunity to be interviewed and, if he or she wishes, to provide documentary evidence to the investigator."

[108] An interview allows for important areas of detail to be fleshed out, something that is often difficult to capture in written submissions.

[109] In my view it was the failure to interview Mr Billett that has contributed significantly to the differing factual base that was before the Department Secretary compared with that which is before the Commission.

Was There a Termination of Employment?

[110] Mr Billett is no longer Assistant Principal at Exeter and has accepted (presumably out of economic and professional necessity) an AST position at another school.

[111] Mr Billett provided evidence that the estimated cost of the demotion, projected through to age 80, was $405000.59 This evidence was not challenged or contested.

[112] Mr Upston submitted that sanction imposed amounted to a fundamental breach of the contract of employment and must therefore be considered a termination from employment in the former position. In support of this contention, the applicant relied on Malone v Tylone Holdings Pty Ltd, which in turn cited Sharkey P in Malcolm v Mobil Exploration and Producing Australia Pty Ltd:60

"It is undoubtedly the case that a person who is unilaterally demoted but who otherwise continues to be employed by the same employer, may nonetheless seek relief in respect of the demotion, it being considered a dismissal from employment in the former position."

[113] Ms O'Donnell said however this was a decision to demote, which was not tantamount to a termination. In support of this she relied on Antonic v Roads and Transport Authority in which there was reference to a "suite of arrangements governing the employment contract." Sams DP concluded:61

"It follows therefore, that if the contract of employment includes a process or set of procedures for determining disciplinary matters involving the respondent's employees, then the employer is not only entitled, but is required to rely on these procedures when disciplining an employee.

In my opinion, if as here, the procedures include the temporary or permanent demotion of any employee for disciplinary reasons (see the above Regulation), there can be no breach of the fundamental terms of the contract of employment. Viewed in this way, the permanent demotion of the applicant cannot be said to constitute a repudiation by the employer of the essential terms of the contract of employment and cannot, as a consequence, constitute a dismissal for the purposes of Pt 6 ch 2 of the Act."

[114] The respondent did not however raise any jurisdictional issues and by the conduct of the case, is content to have the matter determined on its merits. It is therefore not necessary to definitively determine this issue, which would of course involve an in depth analysis of the authorities.

[115] Absent this analysis, I am inclined to the view that given the severity of the financial impact of the sanction, it does amount to a termination. I am quite satisfied that the Commission does have jurisdiction to determine the matter on its merits.

Findings

[116] I have reached the conclusion that the Department's view of what actually happened is materially different to that which emerged from the evidence in this hearing.

[117] Mr Cleaver, when asked what he would have done, said:62

"So you would have let the boy go?---Yes.

Without any - and just closing the door behind and pulling him back from - - -?---I would have let him go. I would have shadowed him at a distance and, given there was probably five minutes or less to go at that stage, ensured that he went to the bus stop, which he was saying he was going to do."

[118] As indicated earlier in this decision, the picture that emerged from the evidence before me was that the door incident (which seems the major point of contention) probably occurred approximately 20 minutes before the bell. The last students were in the process of exiting the classroom and at no stage did student C indicate that he wished to go to the bus stop. Beyond that point, student C was prevented from leaving the classroom, but not forcibly so. The only forcible restraint occurred when student C attempted to dive head first through the window. Mr Billett did in fact allow student C to go to the bus stop a few minutes before the bell rang.

[119] The physical restraint of a student is not prohibited. The guidelines state that physical restraint is appropriate when the principal or the teacher believe there is a risk of significant harm to the student, other students, staff or members of the public.

[120] The guidelines further state that physical restraint refers to a teacher or principal placing hands on a student in order to restrict movement for reasons of safety.

[121] In my view the methods of restraint employed by Mr Billett fit comfortably within this guideline. He barred entry to the door, "corralled" the student against the window, held him by the wrists, held him, and pulled him back, by the strap on his backpack.

[122] The matter of bruising on one arm was an issue to be taken seriously. Whilst the evidentiary aspects fell short of what might be expected, I am prepared to accept, on the balance of probabilities, that the bruising occurred at some point during the incident. Just at what point no one can determine with certainty. There was no medical evidence to throw light on this question, or student C 's proclivity for bruising. It would also be dangerous to rule out the possibility that the bruising was self-inflicted, either in whole or in part.

[123] In situations such as this, context is critically important. It was Mr Billett who was familiar with student C's behavioural history and his "propensity to explode". It was only Mr Billett who was involved in every facet of the incident. It was Mr Billett who had been threatened and twice been subject to physically aggressive behaviour from the student.

[124] Certainly there was no evidence that student C had threatened others, but a review of his behavioural history reveals that his physically aggressive actions were rarely preceded by a threat. Student C had a history of acting impulsively. As Mr Harris said, the biggest concern was the "unpredictability about his behaviour".

[125] Mr Billett said that student C's behaviour during this incident was the worst he had seen. He remained calm at all times and made decisions that he considered were appropriate for the circumstances. There was no malice nor harm intended. His decision to confront the behaviour immediately, rather than later, was consistent with professional authority on the subject.

[126] This is not a question of whether there were other options available. Of course there were. Individuals will have different views on what should have happened. Mrs Finnigan did not have a problem with anything she witnessed whereas Ms Moss was critical of almost every aspect of the incident. Mr Cleaver's concern appears to be limited to the door incident and that the other restraint aspects were justified. Mr Hart expressed concern about Mr Billett's intervention without reference to the classroom teacher, and further, with the school's behaviour management program as a whole.

[127] These differing views only serve to underline the notion that behaviour management is anything but an exact science.

[128] Mr Billett did not have the benefit of twenty-twenty hindsight. He made split second decisions based on what he considered the most appropriate course of action. In his mind student C was attempting to leave with the class, something that of course would have undermined the whole strategy of separation.

[129] The Department guidelines do not mandate the precise actions that should have occurred in instances of this nature. There was no evidence of training or professional development in this area.

[130] The question to be determined is whether the actions taken by Mr Billett, given the full context of the incident and that which had gone before it, were within the range of actions reasonably open to him.

[131] In my view the answer is an unqualified, "Yes".

[132] The Secretary of the Department found that Mr Billett had breached Sections 9(3) and 9(14) of the State Service Act 2000.

[133] Section 9(3) reads:

"(3) An employee, when acting in the course of State Service employment, must treat everyone with respect and without harassment, victimisation or discrimination."

[134] I have already dealt with the harassment issue and found that it is not sustained.

[135] On the matter of discrimination, Ms O'Donnell contended that insufficient accommodation was made for the ADHD condition. Given that it was unlikely that Mr Billett knew of this condition until after the event, a discrimination finding could hardly be sustained. However even if he was aware of this or other conditions, there was no evidence to sustain a finding of discrimination. A disability, if that is what ADHD is, is not a licence for unacceptable behaviour without consequences.

[136] Section 9(14) reads:

"(14) An employee must at all times behave in a way that does not adversely affect the integrity and good reputation of the State Service."

[137] There is simply no evidence to suggest the integrity and good reputation of the State Service has been adversely affected. There were no complaints from parents or the wider school community, nor was there any adverse publicity. Mr Lane suggested that if anything, the actions of Mr Billett enhanced the reputation of the school.63

[138] In my view this finding is not sustainable.

[139] I conclude that Mr Billett was unfairly removed from his position as Assistant Principal. Having made this finding on a substantive basis, it is unnecessary to go further on the issue of procedural fairness, other than refer to my earlier observations.

Remedy

[140] The primary remedy under the Act is reinstatement.

[141] Ms O'Donnell submitted that if the Commission was against the respondent, then compensation was the appropriate remedy. She said:64

"It is my submission on behalf of the respondent that this demotion and accompanying sanctions was reasonable and appropriate in the circumstances. However, if you find against us, I wish to make some submissions about remedy. You have heard from Ms Moss that the department would not have confidence in Mr Billett's ability to fulfil the duties of an assistant principal again and that the department does into believe he could be placed in such a position again.

I submit that the faith and trust between employer and employee in respect of the position of assistant principal has irrevocably broken down. I therefore submit that should you find for Mr Billett, the most appropriate remedy is compensation. And those are my submissions."

[142] I do not accept that the relationship has broken down. I have concluded that Mr Billett did nothing wrong. The Department is a very large employer with at least 250 schools in Tasmania. Mr Billett clearly has the overwhelming support of his peers. I am totally confident that Mr Billett will continue to play a positive leadership role as an Assistant Principal within the education system in Tasmania.

ORDER

Pursuant to section 31 of the Industrial Relations Act 1984 I hereby order that Geoffrey Billett be reinstated by the Department of Education to the position of Assistant Principal, such reinstatement to take effect from 6 April 2006.

Tim Abey
COMMISSIONER

Appearances:
Mr M Upston, of the Australian Education Union, Tasmanian Branch, for Mr G Billett
Mr P Baker and Ms K O'Donnell for the Minister Administering the State Service Act 2000

Date and Place of Hearing:
2006
May 15
Hobart
June 26, 27, 28
Launceston
July 13
Hobart
July 19
Launceston

1 Exhibit A1
2 Transcript PN 198
3 Transcript PN 698,916
4 Supra PN 894
5 Transcript PN 1393
6 Supra PN 1393
7 Exhibit A25
8 Transcript PN 1398
9 Transcript PN 1404
10 Supra PN 1474, 1475
11 Transcript PN 1483
12 Exhibit A41 paras 11, 12 and 13
13 Transcript PN 2176
14 Supra PN 190-192
15 Supra PN 2257 to 2267
16 Transcript PN 2284 to 2286
17 Exhibit R8
18 Exhibit R12
19 Transcript PN 1985, 1987
20 Exhibit R21 Attachment 16
21 Exhibit R21 Attachment 7
22 Exhibit A41
23 Exhibit R21
24 Transcript PN 3223
25 Exhibit R21 Attachment 8
26 Transcript PN 2557
27 Transcript PN 2963 to 2966
28 Supra PN 1475
29 Exhibit R6
30 Exhibit R12
31 Exhibit R21 Attachment 11
32 Transcript PN 1475
33 Transcript PN 1935
34 Exhibit A41 para 13
35 Transcript PN 1504,1505
36 Exhibit R21 Attachment 15
37 Exhibit R21
38 Transcript PN 3044 to 3046
39 Supra PN 1954 to 1956
40 Exhibit A41 paras 14 and 16
41 Transcript PN 1970-1972
42 Exhibit R21
43 Transcript PN 1949, 1950
44 Exhibit A41
45 Exhibit A38
46 Exhibit R27
47 Transcript PN 1157/8
48 Transcript PN 1569
49 Exhibit A25
50 Empowering Educators, Patrice Cook
51 Transcript PN 1330/31
52 Exhibit A35
53 Exhibit A60
54 Supra
55 Transcript PN 1420/3
56 Exhibit A35
57 Transcript PN 2482/3
58 Exhibit A61
59 Transcript PN 1607; Exhibit A51
60 2005 WAIRC 03102 para 39
61 NSW IRC 344 File Number 6555 of 2004
62 Transcript PN 3039/40
63 Transcript PN 1272
64 Supra PN 3992/3