Department of Justice

Tasmanian Industrial Commission

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

T13081

TASMANIAN INDUSTRIAL COMMISSION

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

Eileen Virve Reece
(T13081 of 2008)

and

Minister administering the State Service Act 2000
(Department of Education - Hazelwood School for the Disabled)

 

COMMISSIONER JP McALPINE

HOBART, 8 August 2008

Industrial dispute – termination of employment - decision to terminate found to be unfair – reinstatement ordered

REASONS FOR DECISION

[1] On 21 January 2008, Eileen Virve Reece (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 (Department of Education - Hazelwood School for the Disabled) (the Minister) arising out of her termination of employment.

[2] The matter was listed for Hearing (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 29 January 2008; for Directions on 15 February 2008; and Hearing on 15, 16 and 17 April 2008.

[3] The applicant had been employed by the Department of Education for some 38 years. She had been a Special Needs Teacher at Hazelwood School for the Disabled (Hazelwood) for approximately 18 years.

[4] On 30 October 2007 Ms Linda Smith, a teacher’s aide at Hazelwood, made verbal allegations regarding the behaviour of the applicant to the Principal, Ms Sherry Edwards. The basis of her allegations was that she had observed the applicant administer a “substance” to two students on at least three occasions.

[5] The substance, it was alleged, had a calming effect on the students. The alleged incidents were said to have taken place during the first term in April 2007.

[6] An investigation into the matter was conducted by Ms Alice Jones under the provisions of Commissioners Direction No.5 (CD5).As a result of the investigation the Secretary determined the applicant’s actions breached the State Service Act 2000 Code of Conduct (CoC) and terminated her employment on 7 January 2008.

[7] The applicant acknowledged she had applied a substance called “Nail Bitter” to one boy’s lip during a violent episode to distract him and on another two occasions to the same student in similar circumstances. She asserted her termination was unfair, harsh and unjust. The applicant sought reinstatement.

BACKGROUND

[8] It has been agreed by both parties and the Commission that the subject student would not be referred to by name in these proceedings for reasons of privacy. In this document, consistent with the conduct of the hearing, the subject student has been identified as “the boy”.

[9] Ms Jones, for the Minister, related that Ms Smith had witnessed the applicant administer a “foreign substance” to two students who were non-verbal and suffered severe intellectual disabilities. Ms Smith alleged the students had been “acting up” at the time.

[10] The “foreign substance” was later identified as Nail Bitter. Nail Bitter is a liquid which has an unpleasant taste. It is applied to fingers, around wounds and on toys to dissuade people, normally children, from putting the particular object into their mouths.

[11] The applicant admitted to applying Nail Bitter to the boy’s lip on three occasions. She denied giving the Nail Bitter to any other student, as alleged by Ms Smith. The Minister did not pursue the allegations regarding a second student in the course of the instant matter.

[12] Ms Jones asserted there was sufficient reason for the Secretary to suspect the applicant may have breached sections 1, 2 and 3 of the State Service Act 2000 CoC.

[13] The applicant was advised of the Secretary’s intent to conduct an investigation on 15 November 2007. She was offered the opportunity to provide a response to the allegation either in writing or by way of personal interview. She chose to reply in writing. It was asserted by the Department that the applicant was assisted throughout the process by the Australian Education Union (AEU).

[14] The applicant’s statement was received by the Secretary on 21 November 2007.

[15] On 4 December 2007, the applicant was provided with a copy of the Investigation Report and invited to respond. (Exhibit M.1) Her response was received on 17 December 2007. In her response the applicant acknowledged she had administered Nail Bitter to a student in her care. (Exhibit A.14) However, she asserted she had acted with integrity and had always acted with care and diligence.

[16] On 20 December 2007, the Secretary determined the applicant had breached sections 1, 2 and 3 of the CoC.

[17] Section 1 of the CoC states:

“An employee must behave honestly and with integrity in the course of State Service employment.”

[18] The breach was determined based on the applicant’s admission that she had orally administered a foreign substance to a student on more than one occasion; and that the applicant had only made these admissions following a report of the incidents to the school’s Principal by a fellow employee was deemed to be a contributing factor. The Secretary determined that this demonstrated a lack of integrity which had destroyed the Department’s trust in the applicant.


[19] Section 2 of the CoC states:

“An employee must act with care and diligence in the course of State Service employment.”

[20] The Secretary determined that by administering a foreign substance to the boy, the applicant had failed in her duty-of-care responsibilities towards him.

[21] It was also determined by the Secretary that the applicant failed in her principal responsibility as a teacher, in providing students with adequate protection against harm and ensuring that their physical and emotional welfare is guarded.

[22] The applicant, it was determined by the Secretary, by administering a foreign substance to a student in her care failed to comply with school-based guidelines, and/or plans relating to the management and/or modification of student behaviour.

[23] Section 3 of the CoC states:

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

[24] The Secretary determined that the applicant had breached s.3 because of her admission that she had given the boy Nail Bitter on more than one occasion.

[25] It was also determined by the Secretary that the applicant had threatened the boy with possible administration of a foreign substance, which constituted a failure to treat him with respect and without harassment and victimisation.

[26] In accordance with CD5, s.6.1, the Secretary determined that a sanction should be imposed under s.10 of the State Service Act 2000.

[27] It was argued by Ms Jones, that in determining the level of sanction to be imposed the Secretary gave full consideration to the evidence and the applicant’s responses. It was alleged the applicant had participated in a number of professional-learning activities that focused on positive behaviour support and alternative strategies. A factor also considered was the availability of an emergency response team on site at Hazelwood, upon which the applicant could have relied.

[28] It was asserted by Ms Jones that the school had well-established guidelines and practices relating to positive reinforcement practices and approaches to behaviour modification which were available to the applicant. That the applicant, allegedly, did not follow them added to the severity of the sanction.

[29] Ms Jones stated that another factor in deciding the severity of the sanction was that the applicant had not approached the school Principal, or other senior staff, to advise of her inability to cope with students and behaviours.

[30] Further, consideration was given to an assertion that a number of complaints were made against the applicant for allegedly swearing at students in 2003.

[31] The applicant vehemently denied this, but did accept she may have sworn at the computer. It was alleged the applicant was transferred to an alternative class as a result of this action.

[32] The Secretary determined that the applicant’s behaviour in this matter constituted serious misconduct.

[33] On 7 January 2008, the Secretary determined under s.10 of the State Service Act 2000, and in accordance with section 44(3) of that same Act, that the sanction of termination of employment was to be imposed. The applicant was notified by letter on 8 January 2008 of the Secretary’s determination.

[34] Mr Upston, from the AEU, for the applicant, asserted that at no time during the CD5 investigation was the 2003 incident raised with the applicant. This was not challenged.

[35] The applicant said that at no time during the investigation process did she have the impression her employment was in jeopardy. She also asserted she was not given the opportunity to plead for her job.

[36] In her written response to the Secretary, Mr Smyth, the applicant asserted the following (Exhibit A14):

“… (the boy) had one of his violent outbursts.These outbursts are characterized by extremely loud and constant profanity, stripping naked, attack with fingernail, fists, teeth; hair pulling, missile hurling, equipment destruction, and attention seeking by eating his own faeces if it is available.(The boy) has great stamina and is able to keep this up for at least 3 hours. The outbursts usually occur for no apparent reason endangering other students my teacher aides and myself.

(The boy) stripped off his clothes until naked and then ripped his wet disposable nappy in to pieces and was throwing it around the class room while, roaring obscene language … I attempted to distract him with a drink, offers of visiting another classroom and a towel to cover his private parts (all of which were violently rejected).There was nowhere to isolate him without having expensive equipment damaged, retaining his dignity due to nakedness or possibly harming himself.Verbal reprimand makes (the boy’s) behaviour worse, so I could only ignore him, but then he seized a passing student. … I put myself between (the boy) and the other student so that he attacked me and he released his hold on the other student.An aide then helped me to disengage from his grasp and while he was attacking me. … The profanities and threatening behaviour continued unabated as I stood guard at a distance, my back to him so that he wouldn’t have my attention, to prevent another student being seized.I felt the Nail Biter in my pocket. I took the small brush out of the bottle, turned around and painted a drop on (the boy’s) bottom lip, while keeping my distance, with the intention of distracting him.It was a spur of the moment reaction and a last resort with the intention of distracting and thereby calming his behaviour, and in fact it did calm (the boy).He stopped roaring his profanities, began to relax his threatening gestures, and we were eventually able to redress …

After this success I tried it perhaps 2 more times over the next two weeks but (the boy) decided he liked the taste so this was no longer used.The intention was to distract (the boy) in a dangerous situation and prevent injury to others. …

At no time did I seek to harm (the boy) but rather limit the threat to other students and staff or possible harm to himself.”

[37] The applicant’s account of the matter was not challenged.

[38] Evidence from the applicant, the boy’s foster parents and a written statement by the boy’s paediatrician confirmed the violent behaviour described in the applicant’s statement was consistent with their experience.

[39] The boy often travelled by taxi to and from school. Evidence was educed of an assault on a female taxi driver which resulted in her refusal to have the boy as a passenger. In support of the evidence relating to the potential for the boy’s behaviour to deteriorate, the Commission was shown a video recording of the boy being put into a taxi. The recording was taken by a taxi driver who had witnessed an assault earlier on a staff member who was attempting to put the boy into a taxi. The staff member referred to happened to have been the applicant.

[40] The recording was extremely graphic, depicting the boy violently swinging his arms at the staff member, rocking forcefully, screaming and swearing. The applicant asserted the behaviour shown was a mild version of the boy’s violent capabilities.This was not challenged.

[41] The applicant asserted she had not been trained or given strategies by the Department to deal with the excessive behaviour the boy exhibited during the incident in question. She had, however, been to seminars dealing with behaviour management; Picture Exchange Communication System (PECS), which she found to be “absolutely brilliant” and Prevent Plan and Protect (P3).

[42] In her evidence, Ms Margaret Anne Duggan stated that as a teacher at Hazelwood she had attended seminars on how to approach different situations in dealing with students. However, she asserted the seminars were designed for a one-to-one scenario and did not address the more common situations prevailing at Hazelwood of multiple events happening at the same time.

[43] At page 20 of Transcript, line 45, Ms Duggan said:

“I’ve got a barn full of seminar papers.But half of them are absolutely no good because it was on a one-to-one basis to approach a child … but not when you’ve got five, six, seven, or eight kids just running amok in the classroom.”

[44] The applicant stressed that although she was accused of attempting to change the boy’s behaviour by applying the Nail Bitter, her intent was to solely distract the boy. She asserted that once she had his attention she praised him saying “that’s much better” and “would you like a drink”.

[45] When asked what effect the applicant thought the Nail Bitter would have on the boy, she said at page 122, line 15 of transcript:

“I didn’t think it would worry him.I thought it would surprise him … Anyone who eats excreta I think would be very hard to shock … I think it would have surprised him and he would have thought, “What was that?” and hence the distraction.”

[46] It was stated by the applicant, that she used the Nail Bitter to smear on brittle toys which had the potential to splinter when chewed upon. The intent was to dissuade students putting the toys in their mouths. She also applied it around sores on a particular child’s limb where the child was prone to gnawing. She asserted she had had the particular bottle of Nail Bitter for some 20 years. However, the bottle had been disposed of prior to this matter being heard.

[47] Evidence was educed to show that Nail Bitter was freely available over the counter in a variety of supermarkets. On the packaging it was noted that the bottle contained:

“..a bitter but harmless ingredient which will not cause nausea or stomach ache. Transcript at page 91, line 20

[48] Also:

“To cover one fingernail you need three applications with the tiny brush supplied with the bottle.” Transcript at page 91, line 15

[49] The applicant had also researched the product on the internet (Exhibit A25). Her research showed the product to be harmless.

[50] Under cross-examination the applicant asserted that, at the time, she felt that administering the Nail Bitter to the boy was an appropriate course of action. She acknowledged she had not heard of the substance being applied directly to the mouth.

[51] When asked by Mr Watson, for the Minister, if she had an opinion on the applicant’s use of Nail Bitter to distract the boy, Ms Duggan, a witness for the applicant, replied that she did not have an opinion. She did elaborate further, at page 25, line 5 of transcript:

“… I wouldn’t have done it in a normal, sane environment, if everything was going right, but given if – I don’t know because I wasn’t there, but if something happened and I wanted to stop something from happening straightaway I think I may have done it.”

[52] Ms Duggan also asserted that to deal with the boy when his behaviour deteriorated as described in the applicant’s statement positive reinforcement would not work and “you would have to use force”. (Transcript page 91, line 20) Ms Duggan had 25-years experience at Hazelwood.

[53] Subsequent to the initial incident of applying Nail Bitter to the boy’s lip, the applicant admitted to asking the boy if he wanted his “medicine” on two occasions when he was becoming violent. His response was “no” and he calmed down.

[54] One of these particular incidents was witnessed by Ms Purdon, who had been with the Department for 25 years. When asked by Mr Watson what she thought of this as a behaviour management technique, she responded that she would have done the same.

[55] Ms Williamson, under cross-examination said, with respect to using Nail Bitter as a behavioural management tool:

“… it’s not a good option having seen what’s happened, but I would’ve thought …” Transcript page 37, line 25

[56] And further:

“I would’ve said to Eileen, I don’t think that’s a good idea, having all the information that I have now, but at the time …” Transcript page 37, line 40

[57] In a joint letter from Mr and Mrs Gowlland, the boy’s foster parents stated (Exhibit A4):

“(The boy) loves going to school.He leaves happy, he comes home happy, fully clothed, and the taxi driver is no longer assaulted. … He is a new boy and we believe this is in no small way due to the professional job Eileen has done.

We are sure there was no malice in the action and really are not offended by it but we are disappointed that Eileen has had to answer a complaint. We know she would never do anything to harm (the boy).She is truly is a working miracle and we fear loosing her as (the boy’s) teacher.”

[58] When questioned, both parents agreed that they still held the sentiment expressed in the letter.

[59] The applicant acknowledged that she shared her views and techniques regarding behaviour management with other staff “all the time”. She conceded that she had not discussed the use of Nail Bitter with staff. However, she also asserted that had the technique worked in the longer term she may have shared it with her colleagues, but the boy began to like the taste rendering the technique ineffective. She also acknowledged it did not occur to her to discuss the technique with the Principal.

[60] Mr Watson asked the applicant if she had considered discussing the technique with the boy’s foster parents, to which she replied, at page 106, line 40 of transcript:

“If it had continued to work I think there’s absolutely no doubt that I would have.”

[61] The applicant rejected any suggestion that she was secretive about using the Nail Bitter. She asserted that she was open enough that the teacher’s aide who reported the events clearly witnessed the process.

[62] The applicant acknowledged that had her actions not been reported she may have used Nail Bitter to distract other students who behaved in a like manner to the boy. She also acknowledged that at the time she thought her actions appropriate. She qualified these statements, however, at page 118, line 25 of transcript:

“ … depends on what the decision of this court is.”

[63] At a later point in the proceedings, when asked again if she would ever administer Nail Bitter to a student again, she replied page 122, line 40 of transcript:

“For goodness sake, I’m not stupid, you know?Look what this has caused …”

[64] When questioned, the applicant confirmed her stance at the time was that she felt the incident to be trivial. However, she stated she was extremely remorseful and regretful because of the repercussions.

[65] Mr Watson raised a matter of the apparent change of emphasis in the applicant’s level of contrition between her evidence and the written response to the Secretary. The applicant alleged the written response was done under “duress” and, as such, she may not have expressed herself adequately. In further discussion she conceded she was stressed rather than under duress.


[66] The applicant also stated that she had no “professional” help in forming her response to the Secretary. The response had in fact been forwarded by the AEU to the Secretary. The Department asserted the applicant had professional assistance from the AEU throughout the matter. However, no evidence was educed as to any review, vetting or editing of the document undertaken by the AEU in transit.

[67] Mr Upston asserted the applicant did not fully appreciate the severity of the process in which she was engaged. He further asserted she had not been aware that her employment was threatened. The standard format of the CD5 communications certainly alludes to termination as being an option open to the Secretary.

[68] Mr Watson asked the applicant if she understood what duty of care was.The applicant responded that she had a duty for the safety of her students and staff.

[69] The applicant used the belated report of the first incident in 2003 by Ms Smith as an example.At page 118, line 25 of transcript, she said;

“I could have been administering arsenic to that child.That should have been reported immediately as far as I am concerned.If she stated that she didn’t know what I was using, and that’s what her statement states, right;that – no matter – there is no excuse.An anonymous letter could have been left on the principal’s desk as far as I’m concerned, saying there is some sort of chemical or solution being used on a student in a certain person’s class room, that I am worried about. Could you please check this out, right, not six months later.”

[70] In the letter of dismissal, an incident which was alleged to have occurred in 2003 was cited as a contributor to her termination. (Exhibit A1)

“… following a number of complaints relating to alleged inappropriate behaviour towards students in late 2003, the Principal and AST of Hazelwood School met with you on 17 December 2003 to counsel you about your actions with a subsequent transfer to an alternative class imposed as a result.”

[71] The applicant was accused anonymously of swearing at students, which she claimed she denied at the time, and continues to do so. She did admit to swearing at a computer and again, in exclamation, when a student began smashing windows with his head. This was not challenged.

[72] The applicant also denied being “transferred … as a result”. Her view was that classes are often reorganised to suit the balance of students. This process happened to take place at the time in question. This was not disputed.

[73] Mr Upston asserted that had the “transfer” been a sanction as it was portrayed in the letter of termination, the Department failed to adhere to the process prescribed in CD5. The applicant asserted she was not formally given notice in writing of being transferred. Again this was not challenged.

[74] The applicant also described, at page 71 line 5 of transcript, “Team Black”, an in-school emergency response team, as a group of five adults who “had to take down” violent students; “one on one arm, one on the other, one on each leg and one supporting the head and take them down to the floor”. This description was not challenged.

[75] The applicant further asserted that although restraint was a legitimate option for violent students, it was by no means the first option.

[76] Positive reinforcement was a major tool in dealing with behavioural difficulties. The applicant asserted she had not been given any support in this area by the Department to deal with the boy’s behaviour, but in general had been left to devise her own processes.

[77] She firmly stressed that teachers at Hazelwood do not punish children for bad behaviour.

[78] Consistent evidence from the applicant, Ms Anne Duggan, Ms Jeanette Purdon, Ms Jan Williamson related the difficulties encountered by the staff at Hazelwood in providing care and learning opportunities for the wide range of ages and the particular special needs of each individual student. It was not disputed that the environment in which the staff worked could be extremely challenging, or that students’ behaviour could be unpredictable.

[79] Evidence was educed from the applicant, together with those giving evidence on her behalf, that physical assaults by the students on staff was a ubiquitous hazard of the job. Graphic details of being punched, kicked, scratched, bitten, hair pulled out of the head and all manner of body fluids being thrown on the staff were expounded. The statements were not challenged.

[80] It was stated further that unless the assaults by students on staff resulted in medical treatment or caused the staff member to have time off work, they were not normally officially reported. When questioned, the applicant asserted that staff were not given a directive to refrain from documenting incidents, but that the assaults were so numerous it was impractical to spend time doing the paperwork.

[81] Mrs Gowlland asserted she had not been asked her opinion on what action should be taken against the applicant. She asserted the boy’s Welfare Officer, Ms Jane Dunford, did not want to take the matter further, but left it to the Principal, Ms Edwards to follow up. She asserted she was extremely surprised the matter had gone so far.

[82] Mr Gowlland asserted he did not think the applicant should have been disciplined.

[83] Mrs Gowlland further asserted that she had not noticed any deterioration in the boy’s behaviour as a consequence of the applicant’s actions.

[84] Mr Gowlland concurred with her observation.

[85] Under cross examination, Mrs Gowlland asserted that although the boy was non-verbal she … could always tell if he was really upset by the way he came home from school.” Transcript page 44, line 5

[86] Both Mr and Mrs Gowlland acknowledged that the applicant’s behaviour management technique had not been discussed with them.

[87] Ms Gifford asserted as part of her role as the Manager of School Support she interacted on matters dealing with child protection with other agencies. She was also responsible for matters relating to teacher conduct and performance.She had visited Hazelwood on a number of occasions, but not often in the last few years. She confirmed she had been at Hazelwood once in the last year to mingle with staff. She also confirmed she had last taught in a special needs school in 1999, for one day per week, although that was not her substantive position.

[88] Ms Gifford stated that she did not make an assessment of the case, rather she deemed the allegations to be “serious” and recommended they be pursued by investigation when it was initially referred to her by her General Manager. She further asserted it was not her responsibility to instigate a CD5, but that of the Head of Agency.

[89] Mr Upston asked Ms Gifford why she deemed the incident to be a serous issue. In response she asserted she had been informed that a substance, believed to be nail polish or Nail Bitter, was placed in the student’s mouth.

[90] Mr Upston suggested that nail polish and Nail Bitter were two extremes. Ms Gifford responded at page 162, line 15 of transcript:

“Either way they’re not acceptable.”

[91] The Commission sought clarity on Ms Gifford’s position with regard to the administration of a substance to a student. It was put to Ms Gifford, that had the applicant administered ice-cream to the boy would she have initiated an inquiry.She asserted that if she thought it was ice-cream, no she would probably not. And if it were honey, no she would probably not. She said she would be a bit worried about lemon being rubbed on the boy’s lip, but would probably not have taken action.

[92] And further at p163, line 1 of transcript she said:

“ … probably not to the point of – it’s not a poison.It might not be very pleasant.”

[93] Again seeking clarity, the Commission asked the following at page163, line 5 of transcript:

“Was it because a substance was administered or was it because it was alleged to be an unpleasant substance, or was it the fact that she actually put something in (the boy’s) mouth? --- Because – because it was something that I believed would be dangerous.”

[94] And further at page 163, lines 10 – 20 of transcript:

“And if it was proven that the substance wasn’t dangerous, would that mean that your initial assessment was false? --- Dangerous and unpleasant, I would think.

Right, so you’re extending that to unpleasant? --- Yes.

So if it was a pleasant thing it was okay for her to put it in his mouth, whether he wanted it or not? --- Strictly speaking, no.”

[95] With reference to the applicant applying Nail Bitter to the boy’s lip, Ms Gifford asserted at the time she was “incredibly concerned” because the cohort of students represented by the boy were vulnerable and he may not have been able to communicate his feelings.

[96] Ms Gifford felt the action was severe and was surprised that anyone would admit to taking such action. She also described the applicant’s action as “a form of child abuse” and “a form of assault”.

[97] Ms Gifford asserted that she did a lot of work with the Health Department in relation to child protection matters. She said that teachers were people whom parents should be able to trust, and that they had a responsibility as mandatory reporters to ensure child safety and security.

[98] When the proposition was put to Ms Gifford that the applicant suggested she may have considered using the Nail Bitter again, she responded that she would be appalled and saw it as a serious mistreatment. She asserted she had never heard of this technique being used before.

[99] In describing the applicant’s actions, Ms Gifford asserted they “perhaps” caused discomfort and that the applicant had “done something that the student found to be incredibly unpleasant”. When challenged why she held these views she replied, “Well, because I understand that this stopped the behaviour”.

[100]Ms Gifford stated, the fact that Nail Bitter had an unpleasant taste she thought “perhaps that’s an issue”; that she thought the student could not prevent the application of the Nail Bitter and, as such, the applicant’s action “wasn’t ensuring a safe and secure environment for that student.”

[101]Ms Gifford stated she had accessed the Web to determine whether Nail Bitter was dangerous or not. She asserted there were chemicals in it “which are bad for you”. She could not remember which chemicals. Further, that she had made the decision on the danger of Nail Bitter “from information on the Web which certainly talks about some of the harmful effects.” She did not adduce any evidence to support her position.

[102]Mr Upston asked Ms Gifford the following, at page 155, line 30 of transcript:

“Would it surprise you that we’ve looked at that information and the information largely indicates that it’s a harmless substance? --- I’m surprised – it depends on the information that you’ve looked at.”

[103]Ms Gifford was unaware of any injury the boy had suffered as a result of the incident. She asserted, therefore that she could not assess if the boy was merely distracted by the application of Nail Bitter to his lip or not. Further, that the difficulty with the use of the Nail Bitter was that it is a negative way of managing challenging behaviour. She claimed, as educators it was their “job” to work out what the triggers might be for particular behaviours and then once identified manage around them.

[104]Ms Gifford could not answer when asked: when is physically restraining a student acceptable. At page 156, line 15 of transcript, she was asked:

“When is physical restraint okay? --- There are a few guidelines about that, which I imagine have been the subject of professional learning at the school, and in many classes.There are a range of some of the part which is used in some places among others. Some of these have the sanction of the Education Department, the triple P work was to deal with the prevention and protection and so on.”

[105]Ms Gifford did not know if the boy was capable of understanding correction.

[106]Ms Gifford asserted that the matter had been reported to Child and Family Services who, she believed, declined to take any action.

[107]Given the scenario confronting the applicant on the day in question, Ms Gifford was asked: What positive support training had been given for the applicant to cope? She responded at page 159, line 20 of transcript:

“Well, positive behaviour support is not a program like that.It is a measured, careful analysis of what the behaviour is.In that situation when you have extreme circumstances, then I understand there’s an emergency response group at the school.”

[108]Ms Gifford also acknowledged that the behaviour exhibited by the boy on the day in question was beyond the stage of using a prevention strategy.

[109]In dealing with the boy in his agitated state Ms Gifford asserted that when people were angry they are not reasonable and the safety of the other students and staff should be the focus. To that end she asserted the teacher should seek assistance from the rest of the staff and the emergency response group. That, she said, would be the appropriate response.

[110]Ms Gifford asserted the applicant could have discussed the use of Nail Bitter with other colleagues. She suggested that where a teacher was unsure of a particular process they should seek advice from the Principal.

[111]The applicant stated that her action was intended as a distracter, not a tool to change behaviour. Ms Gifford accepted that a distracter was a legitimate tool, however, it had to be thoroughly thought through and discussed with other teachers.

[112]It was suggested to Ms Gifford that a qualified teacher would not discuss offering a student a cool drink as a distracter. Her response at page 155, line 30 of transcript was: “They may well do that”. She also suggested that the staffroom was a forum where problems and their solutions were discussed, things which had been tried and either succeeded or failed.

[113]It was put to Ms Gifford that evidence already educed suggested that staff at Hazelwood did not often get the chance to commune over tea. Her response was that she expected teachers and aides needed a break and that she would be surprised if they weren’t in the staffroom at some point getting a cup of tea.Further, at page 147, line 40 of transcript, she would expect principals and senior staff “would offer people opportunities to share, to share good practise” She also said at page 148, line 1, that she would “expect that to be a common practise in a special school as well.”

[114]Ms Gifford asserted she was confident that the teachers at Hazelwood were experienced enough and have the appropriate mix of skills to deal with the particular environment. She had no reason, she said, until the present matter arose, to question the applicant’s skills as a teacher of special needs children. She admitted she knew nothing of any of the other students in the applicant’s class, nor had she read the boy’s paediatric report which documented his violent potential.

[115]Mr Upston put the question to Ms Gifford, that it would it be particularly difficult to be confronted by a student who is throwing their arms around, stripping themselves naked, yelling profanities, grabbing at students, grabbing at a teacher, yelling and screaming and generally causing unacceptable disruption. She agreed, and agreed that it would be very stressful. She also agreed that unless you had experience the circumstances of the school it would be very difficult to understand the challenges.

[116]Mr Upston posed a number of questions relating to the boy to Ms Gifford. Was the boy unmanageable or uncontrollable? Did he refuse to follow instructions? Did he affect the learning of other students? and, Did he pose a threat to the applicant’s health and safety? Her answer to all the questions was “I don’t know”.

[117]Ms Gifford asserted that at Hazelwood it was acceptable for a student to refuse to participate in education programs, disobey instructions and to significantly impede the learning of other students.

[118]Mr Upston asserted the Education Act 1994 stated that all those behaviours were unacceptable in schools.

[119]With regard to modifying unacceptable behaviour in a student, Ms Gifford asserted it was up to the teacher to find the ways that can moderate that behaviour so that they can work with the students.She did not know what triggered the boy’s unacceptable behaviour on the initial day in question, she “wasn’t there”. She asserted it was not her role to find out why the boy had become unmanageable. She did not know who should have pursued such an enquiry.

[120]Ms Gifford stated that “all of us” in the school community have a duty of care.She outlined her understanding of duty of care, which referred to the teacher being responsible for student’s safety and security and keep them out of harm, both physically and emotionally. She also illustrated this by giving the example that a teacher could not legally leave the classroom in the care of a teacher’s aide.

[121]Ms Gifford agreed that it would it be advantageous, as a teacher in a special school, to be a lateral thinker. She thought it possible that teachers at Hazelwood may be required to leave the classroom frequently. However, as she had not observed this occurrence at Hazelwood and she could not say if a teacher’s aide would supervise the students in the teacher’s absence. She also asserted there was a commonsense duty of care which she suggested prompted the teacher aide to report the applicant to the Principal.

[122]Ms Gifford asserted that the lapse of eight months between the incident occurring and it being reported by the teacher aide did not raise any concerns with her. She confirmed that no sanction was taken against the teacher aide for failing to report the applicant’s actions at the time of the incident. She asserted that often the teacher aide and non-teaching staff, do not feel empowered and may observe something inappropriate, but do not take action until sometime later. Ms Smith’s tardiness did not surprise her.

[123]Ms Gifford asserted that the ratio of teacher aides to teachers was a significant support in managing children with special needs.She further asserted that an increase in professional learning had been offered to the teachers in the last few years. She also felt that everyone had an “enormous amount of support” at Hazelwood.

[124]Mr Upston tabled a number of testimonials on the applicant’s behalf (Exhibit A20). Some of the inclusions are as follows:

[125]Mr FH Vaughan, the previous Hazelwood Principal:

“The students recognised her as a good teacher, a person who had their interests at heart, someone with a wonderful sense of humour and someone who was very kind to them.She was always very loyal to the student …

Teacher aides liked working with Mrs Reece because she recognized the importance of everyone working as a team.

Parents were very pleased with the progress their children made in her class.They recognized a very talented teacher,a person who was genuinely interested in their children and was very willing to help them with any problems they had with their children.

… her positive attitude to work was an inspiration to others.”

[126]Ms D Webb, Teacher’s Aide, Hazelwood:

“ … her empathy with her students’ parents and carers’ and her ability to find ways around teaching things to the most difficult of student …

She has always had the best interest of the students at heart, and treated them with respect.The students all loved to be in her class and it is always a very happy place to be.”

[127]Ms J Osuchowski, a former teacher colleague:

“She would persevere until she found a strategy or teaching aid that captivated the interest of each and every student in her care regardless of their disability or special need.

… she always responded in a positive manner, and displayed enormous patience and I was always impressed with her ability to remain calm when there was a crises.”

[128]Ms A Harvey, Teacher Aide, Hazelwood:

“Eileen had a wonderful repour with the classroom students’ and was there solely for their wellbeing and development.”

[129]Ms JH Maloney, teacher colleague:

“… her students were treated in a caring and professional manner.”

[130]Ms PK Webster, Teacher Aide, Hazelwood:

“ … she always put herself in the firing line and would not say or do anything to harm a student or staff member.”

[131]Ms PS Diedricks, teacher colleague:

“Eileen had a good relationship with parents/carers of the students, who readily complimented her creative strategies in teaching and planning their child’s individual programs.

Students had respect for Eileen, listened when she spoke, even when she raised her voice, yet she always showed the compassionate side in her understanding of children with disabilities.”


[132]The Commission conducted a site visit to Hazelwood, to experience the environment at first hand. The Commission met a number of the teachers and teacher aides and observed some classes being conducted. The applicant was also in attendance. She introduced the boy to the group. He appeared to be excited to see her, in a positive way. It is acknowledged that a short visit does not give one an appreciation of the totality of the school environment however it was a very valuable snap shot.

FINDINGS

[133]The prosecution of this matter has its genesis in that an Officer of the Department deemed the applicant’s action in administering Nail Bitter to the boy to be unacceptable in the extreme. As a result of her determination an investigation process ensued, driven, it appears, by this Officer’s perception of the enormity of the alleged transgression.

[134]It was abundantly clear from the applicant’s evidence that she felt she had done nothing wrong, to the point where she referred to the matter as trivial. Even at the end of the hearing she appeared quite dazed by all the fuss. Her colleagues expressed an understanding of her actions, but qualified their supportive stance by referring to the negative outcomes which became evident and, in hindsight, tempered their views.

[135]The applicant expressed remorse for her action in light of the repercussions now manifest. She gave evidence in an unguarded manner. I observed no attempt to manipulate evidence or context. She was open in her evidence. There was no sign of evasiveness or self preservation in her responses. I found the applicant to be naïvely honest.

[136]The initial reason for the Department’s allegations that the applicant had breached s1, s2 and s3 of CD5, was her admission that she administered a “foreign substance” to the boy. The Department did not provide the definition of “foreign substance” upon which they made their evaluation of the applicant’s actions.

[137]For lack of any context the Department’s use of the term “foreign substance” evokes association with sinister, dangerous, harmful and such like adjectives. The phrase also introduces an emotive element into the argument which is not helpful.

[138]The Macquarie Dictionary is of little help. It does not offer an interpretation of “foreign substance”. However, it defines “foreign” as:

“not belonging to the place or body where found”

[139]The Concise Oxford Dictionary offers little better insight. It defines “foreign” as:

“alien in character”

[140]The Department’s only witness, Ms Gifford, was imprecise and contradictory in her reasoning for prosecuting the matter. Her evidence brought the Commission no closer to understanding the Department’s interpretation of “foreign substance”. For want of a definition of “foreign substance” Ms Gifford’s evidence was crucial to establishing the offensiveness of administering such a substance to the boy.


[141]Ms Gifford saw the allegations made against the applicant as being “serious”. Her reasoning for categorising the matter such was that she had been informed the substance administered was “nail polish or Nail Bitter”. It is commonly accepted that nail polish is a toxic substance and would be dangerous to one’s health if ingested. Nail Bitter, by dint of its purpose, is expected to be ingested through contact with the mouth. Ms Gifford did not distinguish between the two substances: “ … either way they are not acceptable.” Transcript page 1562 line 15.

[142]Ms Gifford claimed the Nail Bitter to be dangerous. In support of her position she asserted she had perused the internet and obtained data showing the substance to contain harmful elements. She did not adduce any supporting documentation, nor could she expand on the dangerous nature of the product. The Commission is not aware if the excursion into the internet took place prior to her recommending an investigation into the applicant’s behaviour or afterwards.

[143]In contrast the applicant provided data downloaded from the internet and from the product’s packaging, both of which stated the product was not harmful nor did it have upsetting side effects.

[144]The whole point of Nail Bitter, it appears, is that it is expected at some point in its application to find its way into a person’s mouth.The expected result, of course, is that the object upon which the Nail Bitter is painted will immediately be removed from the mouth in question. The product is expected to be ingested, hence the reassurance on the packaging that it “does not cause any upset to the stomach”.

[145]In giving the boy Nail Bitter, Ms Gifford asserted, the applicant had “perhaps caused discomfort” because she had “done something the student found to be incredibly unpleasant”. When challenged as to how she came to this conclusion, at page 146, line 1 of transcript, she said; “I understand that this stopped the behaviour.” She did not establish in any way if the substance had “perhaps” caused the boy any discomfort. She had no logical basis for describing the Nail Bitter to be “incredibly unpleasant”; at page 145, line 45 of transcript. Indeed, we were told after the third application the boy began to like the taste of it, which was not challenged.

[146]Much has been made of the applicant’s admission that she had administered a “foreign substance” to the boy. In my view, she admitted to this in ignorance. She accepted the Department’s categorisation of Nail Bitter as a “foreign substance” without the benefit of a definition or an explanation. It was shown in evidence that Nail Bitter is not harmful, it is not offensive and it is designed to be introduced into the mouth. Again in my view, for want of a precise definition, to categorise the product Nail Bitter as a “foreign substance” is meaningless.

[147]From Ms Gifford’s evidence it cannot be conclusively established what exactly was so serious about the applicant’s actions that an investigation was warranted.

[148]It was determined the applicant further breached s.1 of the CoC because she had only admitted administering Nail Bitter after she was challenged. The Secretary asserted this showed lack of integrity. The applicant clearly did not think she had done anything wrong and accordingly she had no reason to report her actions. Indeed, the applicant’s actions were reported to the Principal some eight months after they took place, yet she had ceased using the Nail Bitter after a few weeks because it did not work.


[149]For a professional person to feel the need to report their actions, or intended actions to a supervisor, there must be some form of impetus. Was she unsure of what she was doing? From evidence the applicant was quite sure of what she was doing. Was there a culture of seeking a clearance before engaging in an action? There is no evidence of this. Was the applicant aware of any policy or guideline she may be contravening? There was no evidence adduced in the form of a policy or guidelines from which the applicant could have evaluated her actions against prompting a discussion with the Principal.There is no logical reason why the applicant would have reported using the substance to the Principal.

[150]It was apparent the applicant, from evidence and the number of testimonials produced, was particularly innovative when dealing with the students, continually trying new things.It would be totally impractical for her, or any other teacher, to consult with her peers or her Principal prior to trying out every new idea. The applicant’s behaviour was, in my view, unfairly interpreted by the Department. Rather than showing lack of integrity, it is my view the applicant exhibited common sense, openness and honesty.

[151]The applicant was deemed to have further breached s.2 of the CoC by failing to adequately protect a student from harm and failing to ensure the physical and emotional welfare was guarded. She was also deemed to have failed to comply with school-based guidelines relating to student behaviour and failed in her duty of care.

[152]In the applicant’s statement, which was unchallenged, she clearly showed that her action in administering Nail Bitter to the boy was intended to distract him. She feared for his safety and the safety of others as well as respecting his dignity, the fact he was naked. There is no evidence that Nail Bitter, or the applicant’s actions, caused any physical or emotional harm to the boy.

[153]No evidence was educed showing what specific school-based guideline the applicant had contravened. Throughout the matter the applicant consistently referred to positive reinforcement, no punishment and praise as her way of working at Hazelwood. This was supported by both oral and written evidence. In my view, the applicant’s alleged failure to comply with school-based guidelines was not established.

[154]The evidence educed in support of the Department’s position was unconvincing. In my view the Department failed to prove the applicant acted in a manner inconsistent with s.2 of CoC.

[155]The applicant was deemed to have breeched s.3 of the CoC by threatening the boy with the administration of Nail Bitter, which was said to have constituted a failure to treat him with respect and without harassment and victimisation.

[156]In her evidence, the applicant stated that had the boy been capable of understanding correction she could have be able to threaten him with the denial of some privilege to elicit a change in his behaviour. An example she gave was the case of a student who was misbehaving badly. His great enjoyment was going home on the bus. He was threatened with having his mother called to pick him up from school, thus missing out on the bus ride. This it appears is a valid process. The Department did not challenge that a denial of privilege was a legitimate process. Evidence was also given that the boy in question was not capable of understanding the consequence of delayed actions. This in some way supports the applicant’s decision to take “on the spot” action.


[157]Although the school ethos is positive reinforcement again, for want of a contrary opinion, it would be reasonable to expect at Hazelwood, as in any school, that negative processes are utilised to modify behaviour with those students who understand correction. In my view, the applicant threatening the boy with Nail Bitter is no more failing to treat him with respect, no more harassment and no more victimisation than denying a bus ride he enjoyed. If I am wrong in this, the applicant’s action was certainly at the lower end of misdemeanours correctable by clear policy.

[158]In his determination of the sanction to be imposed on the applicant, the Secretary considered a number of other influences. The first was that the applicant had received training in positive behaviour support and alternative strategies to managed behaviour. The Department provided an unsigned and undated calendar of professional learning conducted at Hazelwood (Exhibit M1 (7)). There was no evidence as to the extent or quality of such training from the Department.

[159]Evidence was educed from the applicant and some of the other staff which, in the main, was disparaging with a few examples of courses they felt were effective. The Department gave no indication as to the how much of the training was embraced and utilised by the applicant, or any other teacher. The applicant and other witnesses expressed their opinion that the training did not equip them with the strategies to deal with the type of behaviour exhibited by the boy. Indeed, the applicant asserted throughout her long career she had developed her own strategies to manage the various occurrences.

[160]The applicant and the other practitioners in their evidence espoused the focus on positive techniques and practices. It is obvious from this evidence the staff at Hazelwood primarily utilise the “positive” when managing the students. Although positive behaviour support was by far the mode of behaviour management, the Department did not establish if the use of negative processes such as denying treats was a breach of any protocol. Again an unsigned and undated statement entitled Explanation of Managing Students at Hazelwood (Exhibit M1(9)) states:

“Behaviour such as yelling and screaming would typically be managed within the individual learning plan and the teaching and learning program. Throwing objects would also be managed within the individual learning program. Slapping furniture or people would probably be managed within the teaching and learning program depending on intensity, severity and frequency.”

[161]The writer assumes that the boy’s behaviour was so well documented the applicant could manage him simply by reference to a prewritten plan regardless of the circumstances.

[162]There was no evidence educed to show where the applicant had not followed a particular process she had been trained in. Nor was there any suggestion of how she should have acted within the limits of the training. It is manifestly unreasonable for the Secretary to assert that a particular line of training should equip the applicant in all circumstances.

[163]It was asserted by the Department that the applicant had recourse to call in the emergency response team, Team Black, which she did not. The physicality of this intervention is described above. When the applicant is accused of failing to attend to the boy’s physical and emotional wellbeing, one must consider the negative effects on the boy of the Nail Bitter weighed against him being “brought down” by the emergency response team.

[164]From Ms Gifford’s evidence the only choice the applicant had to manage the particular situation was to call in the emergency response team. Ms Gifford did not offer any other suggestions. In my view it was a trite response by the Department to suggest using the emergency response team as the preferred intervention and a blatant attempt to condemn the applicant for failing to choose an alternative to administering the Nail Bitter.

[165]Weighed against the applicant was the assertion that she should have alerted the Principal if she could not cope with the boy’s behaviour. There was no evidence educed to suggest that at any time the applicant was not capable of managing her students she should alert the Principal. The dynamics of a classroom in any school is constantly changing, more dramatically so in a special needs school.

[166]Evidence from her peers, past Principal and the boy’s foster parents consistently show the applicant to be a highly competent teacher, who gets results and maintains a classroom conducive to learning. In my view the Department was disingenuous in the extreme in attempting to generalise a situation which was specific to one student and to a specific set of circumstances.

[167]A matter was also brought to notice as a contributing factor to the applicant’s dismissal, that of an alleged transgression in 2003 committed by the applicant. In the course of the CD5 process this matter was not raised with the applicant. She was not given the opportunity to refute the allegations or clarify the situation. It was alleged the transgression followed “a number of complaints”. There was no evidence to support this statement. The matter had been pursued as a result of an anonymous allegation that the applicant had sworn at students.

[168]The applicant denied the allegation, but did admit to swearing at her computer and again in exclamation when a student was smashing windows with his head. The Secretary alleged that a sanction was put in place at the time by transferring the applicant to another class. The applicant denied this and there was no evidence of such a transfer. The interpretation presented by the Department regarding the transfer were shown by the applicant to be a manipulation of the normal practice of rearranging classes to suit different criteria and had no validity in this matter.

[169]The principal allegation is devoid of fact and the alleged sanction is unproven. Five years have elapsed since the alleged matter, with no evidence that the applicant has used profanities since. In my view the introduction of this matter into the CD5 investigation is a travesty of natural justice.

[170]The Secretary determine that the applicant’s behaviour in this matter constituted serious misconduct

[171]Ms Gifford made much of the applicant’s alleged breach of her duty of care. She was insistent that “all of us” in the school community had a duty of care. There appears to me to be an imbalance in the expectation of duty of care for different employees. The fact is Ms Smith, after allegedly observing the applicant administer an unknown substance to two students, waited eight months to report the matter.


[172]The applicant herself was adamant that Ms Smith had a duty to take action without delay given she was unsure of the substance that she, the applicant had administered. In evidence, at page 108, line 1 of transcript, the applicant said, “ … I could have been administering arsenic to that child. That should have been reported immediately as far as I am concerned. These are not the words of someone who takes their duty of care lightly.

[173]In contrast to the alleged multiple breaches of the CoC by the applicant and the subsequent action against her, Ms Smith we were told was not censured for her failure to report the incident in a timely manner. Ms Gifford was understanding of Ms Smith’s failure in her duty of care. She was sympathetic to Ms Smith’s position. In support she asserted that often non-teaching staff “do not feel empowered” and may not report inappropriate action until sometime later. This situation was acceptable to Ms Gifford.

[174]In this instance we have a teacher who, from all accounts, is exceptional; with flowing accolades from her peers, a previous Principal and the boy’s foster parents. The applicant is acknowledged as a very hard worker, innovative and above all puts the children first, always. It was said in evidence on a number of occasions that she would never do anything to harm a child. She, like her peers, had suffered innumerable abrasions, scratches, bites and the like without complaint.

[175]It should be noted that the current Principal, Ms Edwards, was in attendance throughout the entire hearing.She was at liberty to contradict the accolades bestowed on the applicant however she was not called upon to give evidence.

[176]It is my view that the Department has demonstrated an unexplained bias against the applicant. Using Ms Gifford’s own words; “all of us” in the school community are expected to demonstrate their duty of care.Ms Smith’s failure to exercise her duty of care was condoned by the Department, while the applicant’s alleged failure has been penalised.

[177]The Commission attempted to establish exactly what aspect of the applicant’s actions was deemed to be “serious” by Ms Gifford. It was not clear in the correspondence from the Secretary what “serious” action initiated an investigation into the incident. Was it the act of administering a substance to the boy? Because the substance was “foreign”?Because the boy allegedly had no control over the administration of the substance?Indeed, maybe a combination of all three or some other reason?

[178]Ms Gifford was asked the aforementioned question directly. Her response was that the matter was progressed “ … because it was something that I believed would be dangerous.” When challenged if it was proven the substance was not dangerous she expanded her reasoning to “dangerous and unpleasant”.Page 163, lines 5-10 of Transcript

[179]Ms Gifford previously agreed that had the applicant administered ice-cream or honey to the boy, the matter would “probably not” have been pursued. Had the boy’s lip been rubbed with a lemon she probably would not have taken action, “ … probably not to the point – it’s not poison. It might be unpleasant.” Page 163, line 1 of Transcript


[180]Ms Gifford, in this exchange, contradicted her earlier assertion of the fact that she thought Nail Bitter was “unpleasant” was the reason upon which she relied to pursue the matter. One can conclude that administering a substance to the boy therefore was not the driver to pursue the issue. One can further conclude that the nature of the substance administered, sweet, sour, pleasant or unpleasant is a malleable indicator as to whether to pursue the matter or not.

[181]Ms Gifford presented the Commission with a conundrum. Both Nail Bitter and lemon are bitter and unpleasant. Nail Bitter and lemon are not poisonous. Ms Gifford would not have taken action had the boy been given lemon, yet she did so when he was given Nail Bitter.

[182]Following the applicant’s admission that she had had the bottle of Nail Bitter for “20 years”, Mr Watson speculated that the contents may have deteriorated and altered innature.This may or may not be the case however no evidence was adduced to verify his speculation.It is my view that the applicant’s claim of having the bottle of Nail Bitter for 20 years is somewhat of an exaggeration.

[183]The other factor under consideration was the allegation that the boy had no control over the applicant administering the substance. Ms Gifford did not know the boy nor, it appears, took the opportunity to establish his ability to prevent an intrusion. Evidence from his foster parents, the applicant and the visual recording shown to the Commission strongly suggests the boy had the capability to ward off an intrusion, within the limitation of his mobility. His speed and upper body strength were commented upon by both his foster parents and the applicant.

[184]The Department failed to establish that the boy did not have control over what was given to him, other than it was a surprise. The Department also appeared to be confused over whether the act of administering a substance to the boy was the cause of the matter being prosecuted. The Department was also confused as to the sensory nature of the substance administered to the boy that would constitute the act being offensive.

[185]It is difficult to go beyond the observation that the prosecution of this matter was not well thought out.

[186]An exacerbating factor in the decision to pursue the matter was Ms Gifford’s “incredible concern” that the boy may not be able to communicate his feelings. Ms Gifford did not know the boy, she did not read the paediatrician’s report nor was there any evidence she sought to find out the boy’s ability to communicate. In contrast, both the applicant and the boy’s foster parents attested that the boy could relay his feelings in a way they understood particularly if he was upset. Ms Gifford had no foundation to assume the position she did.

[187]Ms Gifford stated in evidence that the administration of the substance to the boy was “a form of abuse” and a “form of assault”. Page 143, line 5 of transcript.

[188]Evidence was educed that the boy’s Welfare Officer, Ms Jane Dunford, sought not to take action on the issue. The boy’s foster parents sought no redress.Indeed, they expressed their utmost confidence in the applicant as the boy’s teacher. The Department of Child and Family Services had also been informed of the matter and is understood to have declined to pursue any action against the applicant.


[189]Child abuse and assault are very serious allegations. The repercussions of such allegations, one would expect, would go well beyond the boundaries of industrial relations. One can only deduce that with the evidence before them and knowledge of the boy, Ms Dunford and Department of Child and Family Services did not support Ms Gifford’s interpretation of the issue.

[190]Ms Gifford stressed that she worked with the Health Department in relation to child protection matters. One must assume she has been exposed to a number of child “abuse” and “assault” cases throughout her career. It is difficult to see the logic in her advancing a matter which welfare professionals and the boy’s foster parents saw no reason to pursue.

[191]As part of her criticism of the applicant, Ms Gifford asserted it was the teacher’s role to ascertain what triggers a student’s bad behaviour and take measures to avoid such a situation. However, in her evidence she admitted that she did not know what triggered the boy’s violent behaviour, she “wasn’t there”. Also in evidence, the boy’s foster parents, after many years of looking after him, asserted they could not isolate a trigger for his change in behaviour. The applicant with more than 38-years of dealing daily with special needs children could not identify a trigger.

[192]Even a cursory investigation would have established that identifying the boy’s triggers was complex and were not known to those closest to him. In my view, Ms Gifford’s criticism is unfounded and shows a lack of understanding of the complexity of the boy’s situation.

[193]Throughout the matter Ms Gifford continually referred to legislation, policies and procedures and recognised ways of working which the applicant allegedly contravened. Under cross examination, however, she demonstrated that much of what she espoused was not happening at Hazelwood; the unreported injuries, the contravention of the Education Act 1994, the failure of duty of care procedures and the like.In my view her evidence was somewhat contradictory.

[194]Having observed some classes at the school the Commission can comment on the affection and care the staff, in total, have for the students. From unchallenged evidence the applicant is a highly respected matron of that group of dedicated workers.

CONCLUSION

[195]The Department’s case is fraught with exaggeration, inaccuracies, unsubstantiated allegations and a blatant denial of natural justice. There is also, in my view, an unexplained demonstration of bias against the applicant.

[196]There was no evidence of malice in the applicant’s actions towards the boy; no evidence of anger or spite; no evidence of frustration. The applicant expressed her intent at the time was to protect the boy, protect the other children, prevent equipment damage and cover the boy’s nakedness. No evidence was educed to the contrary.


[197]To enable the Secretary to pursue the provisions of s.10 of the State Service Act 2000 he relied on advice from his officers and the outcome of any investigation. It is my view on the evidence before me that he has been very poorly advised.Certainly a telling example of this is contained in Exhibit M1 (9), an unsigned statement which formed part of the Investigation Report referred to earlier. It begins: “The two students involved are not considered dangerous or violent”.This statement, on the evidence educed, with regard to the boy is nonsense.

[198]Indeed, the Investigation Report, Exhibit M1 is supported by a series of incomplete, unsigned, undated statements, devoid of accuracy, rigour or substantiation.

[199]Evidence has shown that the CD5 investigation was not carried out objectively. There is very clear evidence that the investigation was strongly influenced by the opinion of one Department Officer. The opinion espoused by this Officer was based on an unsubstantiated definition of the product Nail Bitter as a “foreign substance”. Further, the impetus against the applicant stemmed from the particular Officer’s interpretation of events. She made assertions, expounded assumptions and generally gave opinions devoid of fact or substantiation.

[200]The Department stated that it relied on the provision of s.44 of the State Service Act 2000 as a valid reason to terminate the applicant’s appointment.It states at (3):

“The following are the only grounds for termination;

a. that the permanent employee is found under section 10 to have breached the Code of Conduct;

b. … ”

[201]The legislation is quite specific as to the conditions under which an employee’s employment can be terminated.

[202]At s.30(3) of the Industrial Relations Act 1984, it states:

“The employment of an employee … must not be terminated unless there is a valid reason for the termination connected with –

a) the capacity, performance or conduct of the employee”.

[203]At s.30(5) of the Industrial Relations Act 1984, it states:

“Where an employer terminates an employee’s employment, the onus of proving the existence of a valid reason for the termination rests with the employer”.

[204]The Department failed to prove the applicant breached the CoC under s.44 of the State Service Act 2000 and consequently have failed to provide a valid reason under the Industrial Relations Act 1984 for the applicant’s termination, and I so find.


[205]Section 30(6) of the Industrial Relations Act 1984, states:

“Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant”.

[206]The applicant has proven that her termination was unfair, and I so find.

ORDER

Pursuant to section 31 of the Industrial Relations Act 1984 I herby order that Eileen Virve Reece be reinstated by the Department of Education to the position she held at Hazelwood School before her termination, such reinstatement to take effect no later than the first day of term three 2008.

Further, the Department of Education is to reimburse Eileen Virve Reece all monies and entitlements, including seniority denied her from the date of her termination until the date she is reinstated.

 

James P McAlpine
Commissioner

Appearances:
Mr M Upston (29.1.08, 15, 16 & 17.4.08); Ms H Richardson (15.2.08); from the Australian Education Union, Tasmanian Branch for Eileen Virve Reece
Ms A Jones (29.1.08, 15.2.08); Mr M Watson (15, 16 & 17.4.08); for the Minister Administering the State Service Act 2000

Date and Place of Hearing:
2008
January 29
February 15
April 15, 16 & 17
Hobart