TASMANIAN INDUSTRIAL COMMISSION

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

Tasmanian Catholic Education Employees' Association
(T12662 of 2006)

and

The Governing Council of St Patrick's College

Industrial dispute - alleged inappropriate behaviour - first and final warning - procedural fairness - allegations not proved on balance of probabilities - recommendation

REASONS FOR DECISION

[1] On 5 May 2006, the Tasmanian Catholic Education Employees' Association (the TCEEA) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with The Governing Council of St Patrick's College, arising out of the alleged inappropriate disciplinary action taken against an employee, Ian Murray.

[2] This matter was listed for a hearing (conciliation conference) on 23 May 2006, and for hearing on 4 and 5 July 2006. Ms A Briant, with Ms J Holloway, appeared for the TCEEA on 23 May and Mr M Upston appeared with Ms Briant and Ms Holloway for the TCEEA on 4 and 5 July. Mr Bruce McTaggart, Barrister, appeared with Ms A Murfet and Mr S Cobiac, for the Governing Council.

Background

[3] Mr Ian Murray has been a teacher at St Patrick's College for 27 years. He is currently head of the languages department.

[4] On 17 February 2006 Mr Murray attended the senior school swimming carnival at the Windmill Hill swimming centre in Launceston. He was assigned a specific role that involved marshalling students in readiness for upcoming races.

[5] On the basis of information presented to the school Principal, Mr Cobiac, by one student, supported by two others, the Principal caused an investigation to be undertaken.

[6] The allegation against Mr Murray was initially conveyed in the following terms:1

[7] An investigation process was commenced on 27 February 2006.

[8] Mr Murray denied the allegation at all stages of the investigation. Further he provided explanations as to what occurred.

[9] On 20 March 2006 Mr Cobiac sent his report of the investigation to Mr Murray.2 In the covering letter Mr Cobiac said:

"I enclose my report in respect of the complaint of misconduct made against you.

You will see from the contents of my report that I have found all complaints sustained and that your conduct is sufficiently serious enough to justify that you receive a first and final warning.

I now require you to make any written submissions you wish to in respect of penalty within seven days.

These written submissions need to be addressed to me.

I will then in turn consider any submissions and make my determination as to any penalty which is to be imposed."

[10] The subsequent involvement of the TCEEA failed to resolve the matter and the first and final warning remains on foot.

[11] The Union contends that the warning was misplaced both in substantive and procedural terms and should be withdrawn.

[12] Mr McTaggart, for the respondent, submitted that the finding of the Principal was reasonably open and procedural fairness was observed.

Evidence

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

Events of 17 February 2006

[14] Approximately 600 students, staff and parents attended the senior school swimming carnival. Events started at 9.30am. Mr Murray was assigned the role of Marshal for Tenison House. This meant that he was located in the marshalling area near the starting blocks and on the opposite side of the pool to the main grandstand. His role was to ensure that there were always two Tenison competitors in each race. Events occurred at three to four minute intervals.

Evidence of Student S:

[15] Student S confirmed the contents of her statement prepared during the investigation process. The statement reads in part:3

"3 On 17 February 2006, I attended the Senior Swimming Carnival.

4. I cannot now recall the time, however, at sometime in the course of the morning, shortly prior to the Open Girl's Freestyle event, I walked around the pool from the Nagle area of the stand to the marshalling area with my friend, student D, who was participating in the freestyle event.

5. When student D joined the other girls (about half of the Grade 12 girls) in the marshalling area, I went and sat in the area of the stand adjacent to the marshalling area.

6. I was sitting on one of the metal seats in the stand.

7. I recall that student C was already seated and I sat next to him, both of us looking towards the pool.

8. I estimate that approximately five to ten minutes after I sat down, I realised that Mr Murray, who was standing near the pool in the vicinity of where the girls were marshalling, was holding a digital camera just above waist height.

9. He held the camera in front of him, pointed towards the girls, and it looked to me like he had his thumb on the top of the camera.

10. I did not see any lights operating on the camera and I did not see any parts moving, however, I did see Mr Murray look at the rear of the camera on occasions as if checking a viewing screen on the camera.

11. I watched him do this for about five to ten minutes, basically to make sure that he really was doing what I thought he was doing and then I told student C what I had seen.

12. Student C then watched what Mr Murray was doing and he agreed that he was using the camera to photograph the girls in the marshalling area.

13. I was so weirded out by what I saw that I also later told student D to watch out because Mr Murray was taking photographs of the girls.

14. I estimate that I watched Mr Murray taking photographs on and off over a 15 to 20 minute period before I returned to the Nagle area of the other stand.

15. Just before I returned there, student T came and spoke with student C and I and we told him what we had observed, however, he was only with us for a few minutes before I returned to the other stand.

16. By the time I returned to the other stand, student D had finished her race.

17. I recall an hour or so later, while I was sitting in the Nagle area of the stand, Mr Murray came over and he was at the pool apron in front of where I was.

18. I recall it was the time of the novelty relays so there were a lot of girls standing around in the vicinity of Mr Murray.

19. From my position half way up the grandstand, I saw Mr Murray holding his camera in the same position as previously and it appeared to me as if he was taking more photographs.

20. As far as I am aware, he was not there for long and I do not know where he went to after that.

21. I did not mention to anyone at the time that I had seen him apparently taking pictures at the novelty races."

[16] Her evidence before the Commission was largely consistent with this statement. Areas of difference and/or additional material included the following:

[17] She did see Mr Murray take a couple of "proper photos" holding the camera at eye level:4

"Did you see where Mr Murray was pointing the camera?---He was as I showed just holding it like that and just simply walking around. I didn't - I only saw him a couple of times take proper photos, like up at eye level, but most of the time just walking around holding it like that.

When did you see him take those normal photographs, was that before or after you saw him holding the camera in the position you have described at his waist?---There was a couple after. I first notice it like that and then he took a couple of photos at the start of the race, like of the starting and things like that."

[18] She agreed that Mr Murray "could have been" switching the camera off and on, or maintaining the "on" status.5

[19] She observed Mr Murray holding the camera in the same position whilst talking to another teacher for about five minutes.6

[20] Student S had been taught by Mr Murray in Grade 10.

[21] Under cross-examination student S agreed that she had a strong dislike for Mr Murray and felt uncomfortable around him.7

Student C:

[22] Student C had never be taught by Mr Murray. On the day of the carnival he was sitting next to student S, who drew his attention to the actions of Mr Murray. He described his observations in the following exchange:8

"Did you observe him holding anything?---I observed him holding a camera that was - that had the lens extended and was pointed towards the people that were standing in the marshalling area.

Did you observe who was standing in the marshalling area?---There were the open girls and the under 17 girls getting ready for their race.

Is that camera - if the witness could be shown this camera. C... is that similar to the type of camera that you observed Mr Murray to be holding?---I'm not quite sure on what the exact kind of camera was, but yes, it was a digital camera.

Could you just stand up and please show the Commissioner how you observed Mr Murray holding the camera?---He had it at his side like this and it was turned with his body, I'm not sure, but and every now and again he would flick the back up to have a look at the screen on the back.

And could you tell where the camera was pointing?---Yes, I could see the lens was extended and which way it was pointed.

And which way was it pointing?---Towards the girls that were standing in the marshalling area.

And for how long did you observe Mr Murray?---I saw him standing him there when I first got there, but I was observing him doing this after S... alerted me to it and it was maybe 10, 20 minutes.

And this conduct you have described of holding the camera near his hip, did that continue throughout that period that you observed him?---Yes, it did.

Did you see any lights operating on the camera?---No, it was a very sunny day so if the flash was on it probably wouldn't have gone off.

Did you actually see him press any buttons on the camera?---No, from where I was sitting I couldn't see him pressing any buttons.

Could you tell where his hand was in relation to the camera?---Yes, it was holding the camera with his thumb on the capture button."

[23] He said Mr Murray was standing two to three metres from the girls.9

[24] He did not believe there was an innocent explanation for Mr Murray's behaviour.10

[25] Student C agreed that Mr Murray was not trying to conceal the camera.11 He did not observe Mr Murray while he was marshalling boys.12

[26] There were no material inconsistencies between the evidence before the Commission and the statement prepared by student C for the investigation.13

Student T:

[27] Student T had no previous dealings with Mr Murray.

[28] Student T joined student S and student C at their request, and who in turn alerted student T to the actions of Mr Murray. He said:14

"And what did you observe?---I observed that Mr Murray was holding a digital camera, what looked to be like a digital camera in his thumb and forefinger at - he had a tracksuit on and he was holding it just outside the pocket of his tracksuit top. So at waist level and the lens was extended as you would for taking a photo or a picture and it was facing in the direction of the marshalling area.

When you say facing in the direction of the marshalling area, towards the pool or away from the pool?---Away from the pool as in the lens was facing towards the students marshalling for their races on the grandstand.

And what type of students were marshalling at that point in time you observed?---Girls.

And what were they wearing?---Mainly - most of them were just in their swimming costumes.

I have here a camera, I wonder if I could show that to the witness. Is that a similar camera to the one you observed Mr Murray to be holding?---Yes.

Could you please stand up and indicate to the Commissioner the position Mr Murray was holding the camera when you observed him?---Like that.

And you have got your thumb on top of the camera there - - -?---I do.

Was his thumb in that position?---It was in the vicinity of the capture button.

And you said in evidence that the lens was extended?---Yes, it was.

And could you describe his actions whilst you observed him?---He kept on as you would just normal business talking to students as they came past, talking to - I observed talking to Mrs Von Steiglitz who was co-ordinating races up the same side of the pool and just going about general business, like talking to students and stuff like that.

For how long did you observe Mr Murray?---On and off over the course of about an hour.

During the time that you observed him over that hour did you notice the position of the camera?---Yes.

Where was it?---It was in the same position that I just showed.

During that hour were you constantly in the position you have described, that is the seats above the marshalling area or did you move away from that position?---No, I wasn't constantly there, I was backwards and forwards from my house area."

[29] Sudent T agreed the camera was not being concealed.15 Further, the camera was held in the same position when boys were in the marshalling area. This appears to be inconsistent with his statement16 in which he states that the camera "was always pointed at girls and I never observed him pointing it at any of the boys in the marshalling area".

[30] Student T initially agreed that it was possible that Mr Murray's actions were consistent with maintaining the "on, off" position. However after "verbalising" the situation he concluded that that possibility was no longer there.17

[31] He agreed that it was possible that Mr Murray was just holding the camera, but not specifically on the capture button.18

[32] None of the students took the matter any further on the day of the carnival. student T raised the matter with the Principal following a routine meeting a week later.

Mr Murray:

[33] Mr Murray gave extensive evidence as to what occurred on the day of the swimming carnival. The following is a summary of the key points relevant to the allegations made.

[34] The purpose in having the camera at the swimming carnival was twofold. Firstly, a tutor group competition involving photography in 2005 had been very successful in building morale and esprit de corps. He wished to build on the success of this competition. The second reason was to take photos of Tenison students generally for potential inclusion in a house display.19

[35] He did take a number of shots during the day, all from the normal face level position. Mr Murray's evidence as to the timing of these photos was:20

"Why did you keep it on when you weren't taking photographs?---I will go over this one more time. The timeframe that I think we're talking about of keeping the camera on, I would estimate the first shots that I took, and this is where the students' timeframes are very, very different, the first shots that I took, I was in the marshalling area from, I don't know, 9.15/9.20 in the morning through until 11.45. I probably didn't take any shots of anything until some time shortly after 10. The next two shots, three shots of the house areas across the pool were taken I would suggest, it might have been even five past/ten past 10, the first shots. I don't wear a watch. There is a clock down the end of the pool complex, which I should have pointed out this morning, on the office walk-through area where we enter the pool. That's really the only way you have of knowing exactly what time it is. I would say the next couple of shots were probably taken within minutes of that, and then there was probably a period of about six/seven, maybe eight minutes. So we're probably now somewhere between a quarter past and 20 past 10, and I would have thought that the shots of the boys races, and if you look at the program, I think you will find that the under 17 boys/open boys races would have been about that time, given that we were running to schedule. So I have taken the shots, I have already indicated that I may have deleted one of those shots during that time. Having taken the last of those shots, I then maintained the camera in its on position for perhaps another - again, on and off, because sometimes it would switch itself off and I wouldn't switch it back on, but maybe another 12 minutes there and then there would have been a time some time later when I perhaps turned it back on for another five to seven minutes. We're not really talking about an enormous amount of time here."

[36] It was a hot (31^o C) humid, sunny day. The camera was in his hand for most of the time to minimise the possibility of moisture damage (See manual). The camera was held by the frame to avoid touching the view screen.

[37] The role of house marshal is extremely busy with events every three to four minutes. Races alternate between genders. It was possible that there were only girls in the area on occasions but not for more than one minute. Most of the time the camera would have been off, in that it automatically switches off after three minutes. A light touch on the capture button reactivates the timer. The maximum the camera would have been on at any one time was about seven minutes. Asked why the camera needed to be left on at all, Mr Murray said:21

"You could have got it out when you needed to take the photograph and put it away?---No, because you are once again presuming the need to take a particular photograph. All I was doing, I knew there would be breaks in the program and opportunities to take photos generally. I didn't know when they were going to occur. That was the reason for maintaining the on status. So there was an intention there to take further photos of the boys races during that time. So no, I don't agree that there was a need to put it away or do anything else.

You know when the breaks were going to occur because you had the program?---No, that's not true. Sometimes there were breaks due to the fact that there were false starts. So for example one race I remember we had to try and get away three times. So that creates an opportunity whereby you can have marshalled and organised perhaps well ahead and you've got a couple of minutes break or rest. You don't know when those opportunities are going to come."

[38] And later:22

"THE COMMISSIONER: Well, perhaps to put it to bed once and for all, if I can ask the question. Why did you have your camera on for up to seven minutes at any one time?---During the time that the boys were racing and I took those photos, I was anticipating taking further photos of Tenison students. I didn't know whether that opportunity was going to come in one minute, three minutes, 15 minutes. The fact is, I showed you this morning where I was in the pool complex. Should the opportunity have arisen, it was going to be, it was going to have to be as simple as: program in pocket, lift camera, shoot. Because they would jump in the race. If I wanted one of them coming or one beside me, it would have been like that, grab the opportunity, back to my job. Mr Cobiac described yesterday the business of staff at carnivals. So maintaining the camera, which only took a light press to phase one, seemed to me to be an expedient and economical way of achieving that goal. I was ready to take the shots that I was intending to take."

[39] Mr Murray specifically denied taking any photographs from other than at face level and no photos at all were taken of students in the marshalling area.

[40] In relation to holding the camera at waist height, Mr Murray said:23

"Why did you hold the camera at your waist level?---As opposed to?

Anywhere else; hanging down at your side or - - -?---It was what felt right to me. I had a program in one hand. It wouldn't have mattered what I was carrying, I think I pretty much carry it in that manner. I'm not a person who's posture leads to straight arm type behaviour. Most people have mannerisms and ways of standing. My way of standing would be that I would hold things at about waist level rather than by my side.

You saw the students demonstrating you moving your whole body around with the camera in that position. Do you deny you did that?---When I had the camera, when I was holding the camera and the camera was in front of me, right, so presuming that I am holding the camera and going about my business and it's in my hand, surely whichever way I turn or whatever I do, the camera turns with me. What I deny categorically was ever at any stage holding it down here like this, as was demonstrated. So the camera, given its preserved landscape orientation, right, is going to move with my body because - and the students testify I was moving about constantly, therefore wherever I was moving, the camera would pretty much follow my body."

[41] Further, he said that he did not have "overly long arms" and tended to carry all things in a similar manner, something a colleague had commented on a few weeks earlier.24

[42] Between 10.20am and 10.30am, the battery indicator began "fluctuating quite wildly". This is why he was on occasions looking at the screen.25

[43] Mr Murray was conscious of animosity towards him on the part of student S. He gave evidence in relation to the concept of "perceptual set" and said:26

"In this case, S... offered to make life simple for two male students. She offered them a pre-packaged perception which they agreed to buy and subsequently she also managed to sell to the principal of the college. So I think the whole idea of perceptual set is crucial to this case."

Evidence of Mr Kingshott

[44] Mr Kingshott presented as an expert on digital cameras. His evidence in relation to Mr Murray's brand of camera is summarised below.

[45] The battery indicator consists of three bars on the view screen. Can continue to take photos when the battery is low, but not when the indicator states "battery is depleted". There is often a small resurgence after the camera has been switched off.

[46] The camera automatically switches off after three minutes. This can be changed to other settings. A half press of the shutter can reactivate the timer.

[47] The on/off button is difficult to use, particularly if you have stubby fingers.

[48] SD cards come with a warranty of between one year and five years.

[49] It is not possible to download with a depleted battery. If the battery goes flat during downloading, this may, on rare occasions, corrupt data in a way that prevents the images from being seen on the camera.

[50] Camera shops have specialist software that can usually reformat a corrupted CD card. However this capability is not widely known by the general public.

Evidence of Other Witnesses Called by Applicant

[51] A number of witnesses gave evidence in support of Mr Murray. None however were in a position to provide evidence directly pertinent to the allegations against Mr Murray. Collectively, their evidence may be summarised as follows:

The SD Card

[52] Mr Murray said he took between 15 and 18 photographs during the morning of the swimming carnival. His evidence in relation to what happened to these photos was as follows:27

"Maybe before you get onto that, do you have any photographs taken of the day?---No.

Why not?---I've never seen them as photographs. I've seen some of them on the viewfinder here on the day to know that, you know, I would know enough to remember the sort of photos that were taken, but I've never had in my possession any photographs of the day, from the day. Well, I didn't - when I went home, I didn't think about downloading them straight away. I think it was some two days later, so that would have made it 19 February. On 19 February I attempted to connect this to the computer and download the photographs. Now, normally you get a dialogue box that's part of the program that downloads the photos. That didn't appear. There was no dialogue box, and when I looked at the back of the camera the message that was on there was "no image or sound". This is after I had disconnected the camera from the computer. So at that point in time my understanding, well, even though in the interim I had put it in the battery charging cradle, but temporarily, like, I don't know how long I left it there, my presumption was due to the low battery levels it just hadn't been able to communicate, but I am not a technician, so I don't know the reason, I just know that I couldn't complete download, or even start it. Now, in the meantime, and Janelle had the phone call that you alluded to yesterday, on 1 March, and at that point in time that was my understanding of why the photographs had not downloaded; that it was due to low battery levels. It was probably two weeks after the carnival that I took some photographs at home in the garden, and when I went to download those I found that was impossible to do as well, and I got a message on the back of the screen at that point that said "memory card error". So what I did, the memory card error, there is quite a bit in my manual about potential problems. Although it was denied yesterday, I have since found considerable detail about memory cards including the statement about:

Avoid using or storing the card in direct sunlight or where it may be exposed to rapid changes in temperature or to condensation.

That was what I was referring to when I asked the question yesterday. But it tells you, there is quite a bit here about SD cards, how they can be damaged if they're mishandled, when they're: due to static electricity or electrical interference, when the card had not been used for a long time.

So this is page 21 of the manual for my camera, the Optio S4i, so it talks about the fact that it's possible to have problems. And at that point in time, rather than - well, rather than try and find out what the actual problem was, I simply got myself another SD card, I think lower capacity. I think the one that I've got now is probably not going to take as many photos, and replace it in the camera. Now, contrary to what the man said yesterday, I was not aware of any possibility of recovering data on an SD card. And so I didn't throw that SD card out that night, but it would have been discarded some time in the following two weeks, and probably thrown in a rubbish carton until I went to the tip, I don't know. But I got rid of the card."

[53] Mr Murray said it was not in his nature to submit warranty claims, particularly on items of low value ($50 in the case of an SD card).

[54] On Mr Murray's decision to dispose of the SD card, the following exchange took place:28

"You throw it out and therefore throw away any chance of getting your holiday snaps?---I've made it clear, Mr McTaggart, that there was no image or sound on the camera. Because the download hadn't worked the first time, I knew that two weeks previously. I explained yesterday to the shop assistant when we were talking about how many people know about the recovery facility, it's certainly something I've learned. But I did not know about data recovery on SD cards."

[55] And later:29

"So notwithstanding this misconduct matter had been alleged against you, and you were aware of it, and you may have sought legal advice about it, you threw out the SD card which could have completely verified your story?---But how was I to know that?

You didn't seek any advice from a camera shop, did you?---No. That's why I asked those questions yesterday. To me, no image or sound, means no image or sound.

I suggest you didn't want the SD card found. I suggest that those photographs on the SD card would have incriminated you?---I suggest they would have cleared me. You can contend it either way."

The Investigation Process

[56] Mr Cobiac said student T informed him of the allegation on Thursday 23 February 2006. He immediately sought advice from the Director of Catholic Education.

[57] On Friday 24 February Mr Cobiac interviewed student S and student C.

[58] On Monday 27 February Mr Cobiac arranged a meeting with Mr Murray. At that meeting Mr Murray was advised that a complaint had been made relating to:30

"An allegation that you were in possession of a digital camera at the recent Senior Swimming Carnival (17/2/06) and without the permission of students were observed secretively taking photographs of female students in the process of marshalling for swimming events."

[59] Correspondence from that meeting also outlined the process to be followed:31

"An internal independent investigation will be conducted by St Patrick's College.

I have asked Mr Graham Ervin from Crawford's Investigation (Case Action) to collect witness statements on behalf of St Patrick's College and the Archdiocese. This will commence the week beginning the 27^th February 2006 at the College. It is important to point out that the role of Mr Ervin is to collect witness statements and provide the College and the Archdiocese with factual statements to assist her to determine the matter. Mr Ervin does not make any findings in relation to the allegations.

The complainant will be interviewed to obtain further and better particulars of their complaint.

It will then be determined whether witnesses will need to be interviewed and statements taken. If witnesses are interviewed these statements will form part of the overall evidence which will assist in determining the matter.

Once statements have been obtained from the complainants and any witnesses a particulars of complainant will be prepared for you the respondent in this matter.

You as respondent will be invited to provide a response to those particulars in writing to myself and also be offered an interview with Graham Ervin to further provide a witness statement.

Once all statements have been collected and Crawford's have provided a factual report, a final report and recommendations will be prepared which determines whether or not there has been a breach of the Archdiocese of Hobart Taking Care Policy and recommend any disciplinary action that may be required as a result of any breach of this policy.

All complaints are investigated in a fair and impartial manner and as soon as practical.

I can assure you that no judgements have been made to the veracity of the complaint and every opportunity will be provided to you to respond to the issues that have been raised in an open and constructive manner.

If you wish to access counselling in relation to this matter then it is available to you through our Employee Assistance Program."

[60] There then followed a chain of correspondence between Mr Cobiac and Mr Murray, with some involvement from the TCEEA.

[61] In relation to the issue of procedural fairness, Mr Murray said:32

"Do you believe the lack of opportunity to be interviewed, receive the witness statements, have further and full particulars of what was it that you had done that was so abhorrent to be misconduct, discussed the case with your colleagues and seek support from them may have prejudiced you in providing a full and complete response?---Yes, on several grounds.

Okay. Can you elaborate?---All right. Well, I think to have not had the opportunity to demonstrate the camera and the operation of the camera at that point in time was particularly harmful. I think that you - what everyone has to remember is I have known absolutely my behaviour from the beginning of this, so I know that this didn't happen. To me, this cuts to the question of motive. You can't begin to analyse the possible motive for this kind of claim being made if you don't know the identity of the complainants. To me the identity of the complainants, particularly in the light of other background factors, one of which Mrs Deborah Doyle alluded to, was crucial. To not be able to have full and frank discussions with people who may have been able to be witnesses, to be limited in that regard, was also a limitation. To not really understand what I was being charged with or the allegations that were being made against me, again made a full, a comprehensive defence or response impossible. So they are examples of ways in which I feel I was compromised in terms of being able to compile my defence to the allegations.

It may be - I will put this to you, it may be that the opportunity to be interviewed could have afforded you, again, the opportunity to discuss what you had done wrong and elucidate the information?---Yes. The opportunity for an interview - I feel that I'm quite an articulate person and that I would always choose to speak about matters rather than write. It's not that I have a problem with writing, it's just to me that speaking seems fundamentally more honest and more direct. Mrs Murfet yesterday gave evidence where she referred to a phone call between us on 1 March. One of the things that I put to her in that phone call is that I was more than happy to come to Hobart then and there to have these things put to me and to respond. So to be denied - to be denied an interview on the matter I felt was very limiting. I felt that that interview could very well have shown in a far more powerful way my - the innocent nature of my behaviour in this matter."

[62] It is unnecessary to trawl through the correspondence back and forth. Instead I have focussed on two key issues, which I consider to be at the heart of the procedural fairness question.

Particulars of Complaint

[63] The particulars were first outlined in correspondence dated 8 March:33

"Complaint

1. On the 17^th February 2006 you attended the St Patrick's College Senior Swimming Carnival and you were taking photographs of school girls in their swim suits.

Particulars

(a) On the 17^th February 2006 between 9.30 and 10.30am, at the St Patrick's College Senior Swimming Carnival, you were standing near the marshalling area holding a digital camera in front of you and were taking photos of the girls waiting to participate in the open freestyle event.

(b) On a number of occasions whilst you were taking these photographs you looked at the rear of the camera as if to check the viewing screen.

(c) That during 9.30 and 10.30am of that day you spent somewhere between 20 and 60 minutes taking photographs of the girls in their swim suits who were gathered in the marshalling area of the pool.

(d) That during this time when you were taking the photographs you were actively trying to conceal, or at least make it not obvious that you were taking photographs.

(e) That during this time when you were taking photographs you were deliberately taking photographs of girls only in their swim suits.

(f) That somewhere between 11.30am and 1.30pm that day, during the novelty races you were standing at the pool apron taking photographs of the girls who were waiting to participate in the novelty races."

[64] On 15 March Mr Murray responded "rejecting any and all allegations of impropriety"; denied taking photographs of any students in the marshalling area; sought clarification in relation to a number of the particulars; sought the identity of the complainant and any witnesses to the complaint. The letter concluded with the following:34

"No further response will be forthcoming until a full and explicit response to this letter has been provided to me and I have had a reasonable opportunity to consider it and if necessary obtain advice.

It would not be reasonable to expect me to take part in an interview before I receive a comprehensive response to the concerns and queries raised in this letter."

[65] Mr Cobiac responded by correspondence dated 20 March advising that:35

"All facts, matters and circumstances upon which we rely have been set out in detail to you in the particulars dated 8^th March 2006."

[66] However some further clarification of particular 1(d) was provided. Viz:

"In particular 1(d) it is alleged by holding the digital camera at hip level you were trying to conceal or make it not obvious that you were taking photographs of the girls in their swimsuits who were gathered in the marshalling area of the pool."

[67] The identity of the complainant and witnesses was denied.

[68] Mr Murray responded that same day, stating, inter alia:36

"At the risk of being repetitive I reiterate that:

· I deny any impropriety.

· My use of the camera was entirely innocent, appropriate and consistent with past practice of many personnel, staff and students attending the swimming carnival and other school activities.

· The particulars of the complaint do not reveal any allegation of impropriety.

[69] The letter concluded:

"If all the facts and matters upon which you rely have indeed been included in the particulars dated 8 March then there is nothing of substance for me to respond to."

[70] Mr Cobiac responded on 22 March in which he asked the following specific questions:37

"1. Why were you taking photographs at the swimming carnival? What was the purpose of this activity?

2. In what areas of the swimming pool complex were you taking photographs? Over what period of time were you taking photographs?

3. Why were you present in this area/areas?

4. Were you taking photographs positioning and holding the camera at waist height?

5. If your response to 4 is yes - why were you taking photographs with your camera positioned and held at waist height?

6. Of whom were you taking photographs?

7. What has become of these photographs and are you prepared to provide them to me?"

[71] Mr Murray responded in correspondence dated 23 March.

[72] His responses in relation to questions 4 and 7 are reproduced below:38

"4. Were you taking photographs positioning and holding the camera at waist height?

No, I was not taking photographs at waist level. I did not have a case for my camera and did not want to put it in my pocket on such a humid day. As a result, I was carrying my camera for most of the day. The only operations performed on the camera at waist/hip level were `ON', `OFF' and `MAINTAIN ON'. (My camera switches itself off after three minutes of inactivity.)"

"7. What has become of these photographs and are you prepared to provide them to me?

As stated at the first interview regarding this matter, I do not have any photographs from the swimming carnival in my possession. When I went to download the photographs, on the Sunday evening following the carnival, I was unable to do so. It seemed that the battery had got so low that I could not make data transfer but subsequently, when I took photos at a later date, after re-charging the battery, the same thing happened and I then realised I had a faulty SD card."

[73] Mr Cobiac then proceeded to re-interview a number of the witnesses including the students.39 It is not clear when or if this document was provided to Mr Murray. It seems likely that it was not provided until the Commission proceedings.

[74] On 6 April 2006 Mr Cobiac wrote to Mr Murray in the following terms:40

"I enclose my report in respect of the complaint of misconduct made against you.

You will see from the contents of my report that I have found all complaints sustained and that your conduct is sufficiently serious enough to justify that you receive a first and final warning.

I now require you to make any written submissions you wish to in respect of penalty within seven days.

These written submissions need to be addressed to me.

I will then in turn consider any submissions and make my determination as to any penalty which is to be imposed."

[75] The attached report included for the first time reasonably detailed summaries of the students' complaints. The identity of the students was not revealed.

[76] Mr Cobiac's evidence in relation to the students' complaint was:41

Thank you. Now, you didn't provide Mr Murray with the statements of the students?---No.

Why not?---I was concerned, given our previous conversation, about accusation of these complaints being malicious. I was concerned about the identity of the students in terms of their final year of year 12. I was concerned that they should be able to complete their studies or engage in their studies without pressure and I was concerned that maybe some pressure could be brought to bear on those students, either by Mr Murray or other teachers in the school who are close to Mr Murray.

So a summary of your concern was for the students?---Absolutely.

Protection of the students?---Yes.

Did you seek advice from Human Resources as to whether you would be - whether you were required to release the statements to Mr Murray?---I did.

And the advice you received?---The advice I received was that there was no - at this particular point there was no compulsion to release those statements to Mr Murray, but that at some point in the future that may be required by - you know, if it came to this particular point.

If it came to proceedings in the Commission?---A Commission hearing, yes.

Did Human Resources indicate to you what sort of material you had to provide to Mr Murray?---The particulars of the complaint basically, in essence."

[77] And later under cross-examination:42

"Mr Cobiac, you referred to R12 where Mr Murray requested - well, indicated that he wouldn't give you any more information until he was provided with more explicit response to his request of further particulars and eventually you gave those - what you believed to be further particulars. Did you consider at that time that the original particulars may have been ineffective for - or not enough information for Mr Murray to respond in an appropriate way?---No. I believed he had the full information in the original particulars."

Failure to Interview Mr Murray

[78] The initial outline of the investigation process specifically provided:43

"You as respondent will be invited to provide a response to those particulars in writing to myself and also be offered an interview with Graham Ervin to further provide a witness statement."

[79] It is common ground that Mr Murray was not interviewed.

[80] Mr Cobiac's evidence in relation to this issue was:44

"If I could just go back a tad - one step. In relation to R12 and the second page, what was your understanding having received that response from Mr Murray as to his willingness to undertake further in the process of the investigation of these matters?---I was - at that particular stage I was concerned that it would be difficult to have Mr Murray respond to the particulars of complaint. He said, basically here that, "No further response will be forthcoming until a full and explicit response to this letter has been provided to me in two working days." And he would not partake in an interview until the complainants and the names of the complainants and the statements had been released, basically. So I was concerned at that stage as to whether there would be any further responses to that letter."

[81] And later:45

"In relation to that same letter, R27, you have also dealt with a couple of other issues, the absence of a meeting with Mr Irvine and also the opportunity to respond, did you consider that Mr Murray had received an opportunity to respond to the allegations against him?---The - Mr Murray had had several opportunities to respond to the allegations that had been presented to him; in the original particulars and then another letter asking him to respond, and then a third opportunity through a set of questions to respond. I had received a letter to say that he was not going to participate in an interview until the names of the complainants had been revealed to him and I took that as being his response to that particular request."

Findings

[82] I deal firstly with the procedural fairness aspect.

[83] I have no doubt that Mr Cobiac had every intention of ensuring that procedural fairness was a hallmark of the investigation process. That much is evident from the initial outline of the process.46

[84] Procedural fairness demands that the allegations are put with sufficient precision so as to enable a full and proper response.

[85] In this case the allegations were initially put forward with a fairly broad brush. There was subsequently some elaboration of the allegation concerning holding the camera at hip level. Mr Murray specifically denied this and other allegations and subsequently provided a brief explanation of what actually occurred.47

[86] On a number of occasions Mr Murray requested that the statements and identity of the complainant/s be made available, stating that he was unable and/or not prepared to make a further response until such information was provided.

[87] Mr Cobiac, who indicated that he was concerned with the protection of students, denied this request.

[88] There is often a tension between affording procedural fairness on the one hand, and providing legitimate protection for witnesses on the other.

[89] In this case we are dealing with an outcome that potentially has career threatening implications for Mr Murray. In such a situation it is critically important that all relevant information be made available.

[90] Whilst the identity of complainants and witnesses is highly desirable, I am prepared to accept that there may be circumstances during an investigation process, whereby the withholding of identities is justified, provided the particulars of the complaint are provided in a comprehensive manner.

[91] I am prepared to accept that Mr Cobiac felt the need not to divulge the identity of the complainants, at least during the investigation stage.

[92] However he chose to provide a full summary of the witness statements, and subsequent interviews, at the time of the release of the report,48 and in which he had found "all complaints sustained".

[93] In essence, his findings were based on information not available to Mr Murray. Such a circumstance constitutes a denial of procedural fairness.

[94] It seems somewhat incongruous that Mr Cobiac was prepared to make a full summary available at the end of the process, but not at the beginning.

[95] It must also be said that summaries of complaints are less than ideal, even if they are acceptable in some circumstances. For example, in the supplementary interview, student T was asked whether the actions of Mr Murray could have amounted to switching the camera on and off. He responded "possibly", and then went on to explain why he felt that to be unlikely.49 In the report, the word "possibly" has been omitted.

[96] In Billett v MASSA50 I observed that "an interview allows for important areas of detail to be fleshed out, something that is often difficult to capture in written submissions".

[97] I stand by that observation. In this matter it was a great pity that the consultant did not interview Mr Murray, as were the complainants. There is however a reason why this did not occur as intended.

[98] Mr Murray insisted that both the complainants' statements and identities be provided, and further, he would not participate in an interview until such information was provided. Mr Cobiac was not prepared to provide this information. In essence there was a standoff. Whilst it is regrettable that Mr Murray was not interviewed, in the circumstances it does not amount to a denial of procedural fairness.

[99] I turn now to the issue of substantive fairness.

[100] From the evidence I am quite satisfied as to the following:

[101] This matter comes down to one essential question. Was Mr Murray taking photos of girls in swimsuits in a manner whereby he was trying to conceal, or at least not make it obvious that he was taking photographs.

[102] I have no reason to question the truthfulness of the students' evidence. Whilst there were variations as to timing, distance and the manner in which the camera was held, such variations are within the bounds of recollection reasonably expected of witnesses observing the same or similar events.

[103] The issue is not what the students' saw, but rather, how that behaviour was interpreted.

[104] I also accept that student S held an animosity towards Mr Murray, which may have been a factor in motive. However this does not in any way diminish the standing of the evidence of students T and C as to what they observed.

[105] I accept that for long periods during the morning, Mr Murray held the camera at waist height, by the frame, with his thumb or finger in close proximity to the shutter button. For at least some of the time the camera would have been pointed in the general direction of girls in swimsuits.

[106] Similarly I have no reason to question the credit of Mr Murray. He presented as a straightforward, if forthright, witness who consistently maintained the detail of his explanation throughout the initial investigation and subsequent Commission process.

[107] I accept that that conclusions reached by the students as to how they interpreted the behaviour of Mr Murray was open to them, based on what they saw.

[108] I also accept that the explanation of Mr Murray was quite plausible.

[109] There are a number of aspects which cast real doubt over the conclusions reached by the students. They include:

[110] On the available evidence I find that the conclusions of the students and the explanation of Mr Murray were both reasonably, and equally open.

[111] In such circumstances I consider that it would be unsafe to prefer one conclusion to that of the other, particularly given the gravity of the implications for Mr Murray, should the students' interpretation of events be incorrect.

[112] In the circumstances I refrain from making an Order, but make the following recommendation in the strongest possible terms.

RECOMMENDATION

1. The first and final warning made to Mr Murray be withdrawn.

2. Mr Murray be counselled on the imperative to avoid behaviour which might give rise to a perception of impropriety.

Tim Abey
COMMISSIONER

Appearances:
Mr M Upston (4/7/06, 5/7/06), Ms A Briant, with Ms J Holloway, for the Tasmanian Catholic Education Employees' Association
Mr B McTaggart, Barrister, with Ms A Murfet and Mr S Cobiac, for The Governing Council of St Patrick's College

Date and Place of Hearing:
2006
May 23
July 4, 5
Launceston

1 Exhibit R8
2 Exhibit R20
3 Exhibit R4
4 Transcript PN 372/373
5 Supra PN 469
6 Supra PN 386
7 Supra PN 517, 518, 532
8 Supra PN 265 and following
9 Transcript PN 279
10 Supra PN 295
11 Supra PN 321
12 Supra PN 325
13 Exhibit R3
14 Transcript PN 129 to 142
15 Transcript PN 177
16 Exhibit R1
17 Transcript PN 164
18 Supra PN 181
19 Transcript PN 1524
20 Supra PN 1834
21 Supra PN 1742, 1743
22 Transcript PN 1851
23 Supra PN 1871/1873
24 Transcript PN 1621
25 Supra PN 1641 to 1644
26 Supra PN 1628
27 Transcript PN 1647 to 1652
28 Transcript PN 1931
29 Supra PN 1949 to 1951
30 Exhibit R8
31 Supra
32 Transcript PN 1583/5
33 Exhibit R11
34 Exhibit R12
35 Exhibit R13
36 Exhibit R14
37 Exhibit R15
38 Exhibit R18
39 Exhibit R19
40 Exhibit R 20
41 Transcript PN 782 to 789
42 Transcript PN 877
43 Exhibit R8
44 Transcript PN 799
45 Transcript PN 849
46 Exhibit R8
47 Exhibit R18
48 Exhibit R20
49 Exhibit R19
50 T12651 of 2006