"1. The findings of the Deputy President that the Applicant conducted himself in an unprofessional and unacceptable manner in his dealings with the student was against the evidence and against the weight of the evidence.

2. The evidence was incapable of supporting a finding to the requisite standard that the Applicant had committed an act or acts which constituted misconduct.

3. The Deputy President failed to make any or sufficient findings of fact to support a conclusion that the Applicant conducted himself in an unprofessional and unacceptable manner."1

"In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities:

(a) the burden of proving the existence of a valid reason for the termination as defined in Article 4 of this Convention shall rest on the employer;

(b) the bodies referred to in Article 8 of this Convention shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice."

and

• Mr Wood submitted that, having regard to the authorities referred to us in respect of the standard of proof required, it was essential that the evidence of Ms A had to be overwhelmingly preferred by the Deputy President to that of Mr Meaney.

  He submitted that the Deputy President found that both witnesses were credible in the evidence they gave; that Mr Meaney's evidence was clear and unhesitating in both examination and cross-examination, and that his evidence was plausible.

  In respect of Ms A's evidence Mr Wood said the Deputy President found that the student would not accept she had exaggerated. He said the Deputy President had not accepted that the touching had continued for five minutes as alleged by the student and further that the Deputy President had difficulty in accepting that the student had a good memory of events during the course of periods 7 and 8 on 7 July 1997, but that her memory of other incidents and events immediately after those periods, and the next day, was not so clear and in some cases was non existent.

  Mr Wood submitted that Mr Meaney's evidence was extremely detailed, completely consistent with his earlier written explanation and unshaken in cross-examination. It was contended that it was "almost impossible to come to a conclusion that Mr Meaney didn't do what he said he did"7, given that the Deputy President had reached the point where he considered that the evidence of both Mr Meaney and Ms A was credible.

  Mr Wood drew our attention to a number of instances during cross-examination where the student responded to questions with the words "I can't remember". In particular he submitted Ms A's credibility as a witness was questionable given her use of that response, particularly when asked whether she could think of any other reason why she would have told Ms Lagerewskij that "no-one saw anything".

  He submitted that Ms A did not report the incident to Mrs Long in the staff room during period 7, nor did she indicate to Ms B, another student who was sitting next to her, approximately 30 centimetres away, that anything had happened.

  Mr Wood submitted that if the two witnesses "were both plausible" and the concerns as to the student's evidence were taken into consideration, "the scales are weighted in favour of Mr Meaney before we deal with the other evidence".8

  The Respondent submits that proof of the essential facts is to be arrived at by an examination of all of the relevant evidence, not merely by comparing the evidence of Mr Meaney and the student. He says whether the evidence of Mr Meaney and the student was credible in isolation from other evidence is irrelevant and that it would have been wrong of the Deputy President to decide on that evidence alone. The Respondent said the Deputy President had carefully analysed the evidence of the student and Mr Meaney, together with all the other evidence and had reached a conclusion that Mr Meaney had acted in an unprofessional and unacceptable manner. Mr Bessell submitted that the only "adverse" findings against Ms A were:

  (i) that the touching continued for a period of five minutes; and

  (ii) that the apparent lapse of memory after periods 7 and 8 on 7 July 1997 was of concern.

  In respect of (i), he said it was not a finding that the student had lied or consciously exaggerated, and we were referred to transcript at page 173 where Ms A is recorded as saying the period of time was "probably about five minutes, depending on how long it took me to type up the divisions". The Respondent said that was an "assessment of a period of time" by the student.

  As to (ii), the Respondent submitted that the memory lapses were "perfectly explicable" considering:

• they were not in respect of material facts but as to "details of peripheral events and conversations";
• the age of the student; and
• that at the "relevant time the student was very distressed and probably in shock".

  As to Ms A's evidence generally, Mr Bessell submitted that "despite her youth, the stress and upset of the hearing and her being subjected to forceful and skilled cross-examination, her detailed account (in respect of the physical contact and conversations with the Appellant after the lesson) of what occurred remained consistent and credible".

  It was submitted that, from Ms A's evidence there was no basis upon which the Full Bench could "properly interfere" with the Deputy President's findings. The Respondent said the Deputy President did not find that there were not two separate incidents as was alleged by Ms A. The Deputy President found that at least one incident occurred and that was all that was necessary for him to determine that Mr Meaney's conduct was unprofessional and unacceptable.

  In relation to the Appellant's query about Ms A's remark that "no one saw anything", Mr Bessell submitted that Ms Lagerewskij gave evidence that after the incident, at the time of her statement, the student was "distraught", "distressed", "sobbing uncontrollably" and found it "difficult breathing". He said the student gave evidence that her legs were "totally under the desk" and that the touching occurred under the desk and there "no-one would have been able to see anything". Another student seated closest to the right of Ms A apparently did not see anything and both Ms A and Mr Meaney gave evidence that he crouched/squatted beside her on her left hand side. Mr Bessell submitted that Ms A gave evidence that she did not believe anyone saw the incident which was a reasonable belief in all the circumstances.

  As to the blurred recollections except for specific events, the Respondent submitted that it was "quite explicable as to why the student had blurred recollections of peripheral matters" in view of her "upset and shock".

  In respect of the Appellant's question why the student had not told Mrs Long or Ms B, the Respondent submitted that as a matter of law the absence of, or delay, in making a complaint is not relevant to the primary fact of whether the event took place. It was submitted that Ms A explained why she did not tell Mrs Long and that Dr Sale, an expert witness, had considered that was not unusual. The Respondent said that Ms B was not a close friend of Ms A at the time of the incident and that Ms A was not asked in cross-examination to explain why she did not tell her. We were told that Ms A did tell another student who was her close friend during the course of lesson 8 and that was not challenged.

Mr Wood submitted that the Deputy President failed to give sufficient weight to the evidence of the only independent eye witness, a student identified as Mr E, and that evidence was in favour of Mr Meaney. It was submitted that the incident of touching observed by Mr E and recorded in the Deputy President's decision at page 11, must have been the incident of touching described by Mr Meaney in his evidence. Although there was some dispute about the length of the time the touching he said he saw occurred, Mr E gave evidence that it was the first occasion that Mr Meaney had been in that corner of the classroom in the course of the lesson and the first occasion that Mr Meaney had been alongside the student. Mr Wood also submitted that the Deputy President failed to recognise the significance of the evidence of Mr E regarding Mr Meaney speaking to another student in the first half of that double lesson. It was submitted that the evidence was that Mr Meaney went to that student first, then he went to Ms A, on her left hand side, he knelt down and put his "hands" on her left knee, and then said "well done", or words like that, tapped her on the kneecap, stood up and walked off, after which Ms A got up and went to the printer.

The Appellant argued that the incident seen by Mr E must have been the incident about which Ms A had complained. It was submitted the incident seen by Mr E was preceded by a fact and followed by a fact completely consistent with the evidence of Mr Meaney.

Mr Wood submitted there was no possibility of collusion; the evidence was that Mr Meaney was not allowed to speak to the students and it was submitted that Mr Meaney had not spoken to Mr E.

The Appellant further submitted that as it was not disputed that Mr E had seen Mr Meaney touch the student's knee, her evidence that "No one saw anything" because her legs were totally under the desk and out of sight, therefore was not reasonable.

Mr Bessell responded that the best evidence of the time of the incident that Mr E alleges he saw was "around about three". As lesson 7 commenced at 2.05 p.m. and finished at 2.45 p.m. and the initial touching Ms A complained of occurred early in lesson 7, it was submitted that Mr E's evidence refers to the second incident. It was submitted that the fact the Deputy President did not mention the evidence concerning the other student did not mean that the Deputy President failed to give it any consideration.

Mr Bessell said that it was for the Deputy President to assess what weight the evidence of Mr E should be given in the light of all the other credible evidence. He said the Deputy President obviously considered the evidence because he found it helpful, particularly in respect to the issue as to whether there was a vacant position and whether or not there was a chair next to Ms A. It was submitted that the Deputy President decided the evidence was not conclusive and that such a finding was clearly open and therefore there was no basis for the appeal bench to interfere with it.

It seems likely that the incident that Mr E saw and described in his evidence was the "first" (if there was more than one) incident referred to by Ms A. Some of the events recounted by Mr E which preceded the incident, and which followed it, fit and coincide with timing and facts described by Ms A and Mr Meaney. However some of the evidence of Mr E does not fit comfortably with some of Mr Meaney's evidence, such as the length of time Mr Meaney was with Ms A and how long it was after Mr Meaney crouched beside her that he touched or patted her on the knee. In the circumstances we can understand the Deputy President's decision not to rely on some parts of Mr E's evidence and we agree with the Respondent that it was for the Deputy President to assess what weight he should give to the evidence of Mr E.

It was submitted that the Deputy President failed to give any weight to the statement of Ms B who sat nearest to Ms A (Exhibit W.4). Mr Wood submitted that the statement, which was taken by Sister Brady, confirmed that Ms B did not "notice anything strange" and would have noticed if something had bothered Ms A as she knew her well.

The Respondent submitted that Ms B did not give evidence (she was not called by the College); therefore the exhibit had little, if any, evidentiary weight. It was further submitted that it would have been wrong for the Deputy President to have relied upon it in any material respect. The Respondent contended that what little weight it had went to confirm that Sister Brady conducted "further and appropriate" enquiries at the Appellant's request.

We agree with the Respondent that the Deputy President was not in error in respect of the weight he attached to the statement of Ms B.

(ii) The Respondent contended that Mr Kenny's evidence was clear that Mr Meaney had admitted that he had crossed the boundary/barrier.14

(iii) Mr Kenny's evidence, the Respondent said, was clear that Mr Meaney had said that he did not know why he had put his hand on the student's leg and that he did not know what had come over him.

The view of the Appellant is to be preferred on this issue as we believe Mr Kenny's responses have been taken out of context by the Respondent. In any case, we consider Mr Meaney's response to Mr Kenny that "it" was a spur of the moment type of thing, does little to prove whether Mr Meaney was innocent or guilty of conducting himself in an unprofessional and unacceptable manner.

(i) Mr Wood contended that the Deputy President placed considerable reliance upon the evidence of Sister Brady and Mr Kenny in relation to the 10.15 a.m. interview. He submitted that the Deputy President's reliance on their evidence in that regard was both unfair given the circumstances of the interview and unjustified given the totality of evidence. As indicated later we have reservations about the manner in which the 10.15 a.m. interview was conducted and recorded.

(ii) Mr Wood submitted that the Deputy President found that Mr Meaney was requested to respond to the allegations made against him, rather than required to respond as suggested in Mr Kenny's evidence.16

• But whether he was requested or required, Mr Wood contended there were shortcomings in the processes adopted by the College which led to material unfairness affecting Mr Meaney.

  Mr Wood submitted that the areas of the unfairness for Mr Meaney were that:

• He was not provided with a copy of the allegation.
• He was not advised of the purpose of the meeting before attending.
• He was not advised of the desirability, or given an opportunity, to be accompanied.
• Whether he was requested or required, Sister Brady's purpose in holding the meeting was to elicit his response to the allegation.
• He was not shown a copy of the notes taken by Sister Brady during the course of the meeting and so those notes were not verified.
• Mr Kenny did not examine the notes until three or four days later.

  Mr Wood said that whilst these shortcomings may not have been sufficient in the eyes of the Deputy President to affect the substantive decision, they were relevant to the issue of who should be given the benefit of the doubt in relation to the factual dispute between Mr Meaney and Sister Brady as to what occurred in the course of the interview. The Appellant submitted that the shortcomings prejudiced Mr Meaney and not the Respondent and so he should get the benefit of any doubt.

  This proposition was rejected by the Respondent who submitted that, although it may only be a matter of semantics, Mr Kenny's evidence was that Mr Meaney was "asked" to respond, rather than "required" to respond. The Respondent also submitted that Sister Brady's evidence was that:

• she asked Mr Meaney was there any response he would like to make;17
• she denied that she required Mr Meaney to respond immediately; and
• Mr Meaney responded immediately because it appeared to her that he knew what she was talking to him about, and it did not come as a surprise to him.18

  The Respondent disputed that there was material unfairness as Mr Meaney was read the statement of the student,19 and therefore he was made fully aware of the allegations against him.

  As to notes, the Respondent submitted it was explicable why the Appellant was not given the notes to read as Sister Brady believed there was no dispute and there would be no need for them to be used in evidence.20

  We do not accept the Respondent's submission that all of Ms A's statement was read to Mr Meaney and in that regard we refer to the evidence of Mr Kenny21; nor do we accept the Respondent's submission that because Sister Brady believed there was no dispute there was no need for Mr Meaney to read her notes of the meeting.

  We are concerned that Mr Meaney was not told of the reason for the 10.15 a.m. meeting; was not given the opportunity to be accompanied at the meeting; was not given a copy of the student's allegations which had been put in writing, and was not given the opportunity to sight Sister Brady's notes of the meeting to verify them or otherwise. However these deficiencies are not sufficient to persuade us to uphold the appeal because of the conclusions we arrive at later, but we must observe that in other circumstances they might have resulted in a different finding.

• The Appellant contended that the evidence before the Deputy President was insufficient to enable him to safely conclude that Mr Meaney had acknowledged at the meeting that he had used the phrase that he had "crossed the barrier or boundary", or similar words. In support of that contention Mr Wood relied on the following:

• Sister Brady's evidence about the interview was that she was in a state of shock when Mr Meaney acknowledged he had touched the student on the knee; that she was taking notes intermittently and that it was confusing.22
• Sister Brady's evidence that later she went back to the notes and made changes to them indicated they were not completely contemporaneous notes.
• Sister Brady's recollection was almost entirely dependent upon her notes.23 Even though that reference was made in relation to the discussion with another student24 it was equally as relevant, he said, to her recollection of her discussions with the Appellant.
• Mr Meaney agreed the words were used in discussion but he denied acknowledging that he had used them.25
• Mr Meaney's written response to Sister Brady dated 10 July (Exhibit W.5) in which he refuted the allegation that he said "I should not have crossed the barrier", and the allegation that he had said to the student "I would appreciate it if you did not say anything to anybody".
• Mr Kenny was unable to assist one way or the other as he acknowledged that there had been discussion about the words "crossing the barrier/boundary" but did not give evidence that Mr Meaney had acknowledged using those words to the student.26 He certainly did not give evidence that Mr Meaney acknowledged that he had "crossed the barrier/boundary". The only witness who made that assertion was Sister Brady.

  The Respondent submitted that the evidence of both Sister Brady and Mr Kenny was quite clear in that the Appellant had in fact used the words "crossed the barrier" or "crossed the boundary".27

  The state of shock Sister Brady referred to, the Respondent contended, followed, and was as a result of Mr Meaney's admissions.28 She was not therefore "in shock" when the admissions were made.

  The Respondent submitted there was no support by any evidence, that Sister Brady's recollection was entirely dependent upon her notes.

  We agree with the Appellant that the evidence does not support a conclusion that Mr Meaney at any stage admitted that when talking to Ms A he had used the expression "crossed the barrier" or "boundary". We note he denied using the expression in both his written explanation and in his evidence. Mr Kenny's evidence simply confirmed that the words were used during conversation at the 10.15 a.m. meeting, but he could not confirm that Mr Meaney had "acknowledged that he had used them" when speaking with Ms A. It would appear the Deputy President relied on the evidence of Sister Brady and Ms A on this point, but in our view the competing evidence is such as to render such a conclusion doubtful.

Mr Wood submitted that the Deputy President seemed to place some reliance on the evidence of Sister Brady that Mr Meaney did not give a reason for the touch in the first three meetings. Mr Wood said Sister Brady's evidence, in that regard, was contrary to the overwhelming weight of other evidence.

The Respondent, on the other hand, submitted that the "overwhelming weight of evidence" was that Mr Meaney did not, until submitting his written response, give any reason for touching the student. It was only then that Sister Brady noted, for the first time, that he suggested he had touched the student as a form of encouragement,29 and that he did it on the spur of the moment and did not know why he did it.30 Mr Bessell submitted that it was never put to Sister Brady in cross-examination that the Appellant had told her at any time prior to submitting his written response, that his touching of the student was for the purpose of congratulating her or encouraging her. It was submitted therefore that Sister Brady's evidence on this point was unchallenged and must be accepted.

Mr Wood submitted that the two interviews which occurred after the first meeting at 10.15 a.m. on 8 July did not involve the substance of the allegations. It was submitted that Mr Meaney's evidence was that at the first meeting he explained that his action was "to reassure" and "encourage" his student.31 When Mr Meaney responded formally he described his actions thus:

It was asserted that Mr Meaney's explanation was corroborated by the evidence of Mr Kenny.

The transcript records, at page 209, part of Mr Kenny's evidence-in-chief when being led by Mr Bessell, as follows:

Mr Bessell reminded us that in his evidence-in-chief Mr Kenny32 had indicated that he believed the first time he knew that Mr Meaney was saying that the physical contact was in the context of it being a congratulatory expression or a sign of encouragement, was when he was told "later on".

Subsequently, whilst under cross-examination by Mr Wood, the following was adduced from Mr Kenny33 :-

Mr Kenny was later asked by the Deputy President whether the word "thanks" was used in the first discussion, and Mr Kenny replied that it was.34

The Respondent contended Mr Meaney said he did not know why he had put his hand on the student's leg and did not know what had come over him,35 and when Sister Brady first questioned him he was unable to give any valid reason for why he acted the way he had36.

On the other hand, Mr Wood submitted that Mr Kenny37 gave evidence that Mr Meaney had made the point that he did not know why he had done "it" and he did not know what had come over him. In referring to "it", Mr Wood said, he (Mr Kenny) was answering that Mr Meaney had said that he did not know why he (Mr Meaney) had thanked the student in the way that he had. Mr Wood submitted the contention of the Respondent was extremely misleading. The actual evidence, he said, was:

It seems from the Deputy President's decision that he preferred Sister Brady's evidence which was that Mr Meaney, prior to his written explanation, did not give as a reason for patting Ms A on the knee that it was as a gesture of thanks or encouragement and that he considered the general tenor of Mr Kenny's evidence to support Sister Brady's evidence.

Mr Kenny's evidence, whilst difficult to follow initially, included an acknowledgement that Mr Meaney said he used the words "thank you" when he put his hand on Ms A's knee and that the discussion took place during the first meeting which is contrary to the evidence of Sister Brady on both points.

In the circumstances we consider that the Deputy President erred in concluding that the general tenor of Mr Kenny's evidence supported that of Sister Brady.

• In relation to the issue of a comparison of the evidence of Sister Brady and Mr Meaney, about what occurred at the first meeting on 8 July, Mr Wood submitted that the Full Bench was entitled to have regard to the evidence generally of both witnesses.

  In the Appellant's view, Mr Wood submitted, the "complete cross-examination reveals" her not as someone who was simply reciting what she saw or what she heard at the particular meeting or generally, but, as a person who had some confusion as to her role as a witness, and, in a sense, as a witness was an advocate for her own cause.

  Mr Wood said that Sister Brady had made a decision and she was defending her decision and it coloured her evidence. He cited some examples of where Sister Brady was unwilling to make concessions, or where her evidence fell into the category of arguing the case. These were:

• Evasion about access to class list.39
• Vague about questioning witnesses who did not assist the College's cause.40
• Agreed that it was possible she said something that she did not believe to be true.41
• Changed her evidence in relation to whether she had made a note as to the number of touches.42
• Unwilling to make a simple concession in relation to the policy in regard to physical touching.43
• In regard to the directions to a School Co-Ordinators' meeting.44

  The Respondent submitted that:

• There was no evasion about the issue of access to a class list. The "ease" of access is a subjective assessment.
• Sister Brady enquired of those students whom she believed had knowledge, either directly or indirectly, of the relevant events. Because she wanted to contain the spread of "gossip" for the benefit of all concerned, she did not embark upon an enquiry of every student in the class. She was not vague about the issue, rather she was decisive as to the appropriate way to deal with the matter. No further enquiries were immediately thought necessary as Mr Meaney had apparently admitted the impropriety of his behaviour to Sister Brady and Mr Kenny.
• There was no agreement by Sister Brady that it was possible that she said something which at the time she did not believe to be true. The evidence referred to is indicative of how careful she was in not saying something on oath about which she could not be certain. It was submitted that this added to her credibility rather than detracted from it.
• It was clear that Sister Brady's evidence did not change in respect to her making a note of her determination. She said that she did not make a note of any determination as to the number of incidents of touching, length of period of each touching, location of each touch and intent behind each touch. She was later asked if she made a determination as to the number of occasions there had been touches, to which she responded that she had and that was that a touch occurred on at least more than one occasion. She was later asked "Did you make any record of your determination?", to which she responded "I would have jottings, I am sure in my office. Whether I could locate them at this time I would be doubtful."

  It was submitted that this did not amount to a "change in her evidence" as the first question related to a number of issues and the later question to one.

• There was no indication of an "unwillingness" to make a simple concession as alleged. The evidence at pages 154 to 155 of transcript spoke for itself.
• There was nothing in the evidence concerning the School Co-Ordinators' meeting from which any inference adverse to Sister Brady could reasonably be made.

  The Respondent maintained that there was absolutely no basis for the Deputy President or the Full Bench not to accept Sister Brady as a witness of the complete truth and upon whose evidence any tribunal could rely with utmost confidence.

  An assessment of the credibility of the witnesses, for the most part, is in the hands of the Commissioner hearing the evidence at first hand. Our concern with the evidence is directed solely to determining whether the Commission member, at first instance, failed to acknowledge relevant evidence or misconstrued the significance of any evidence. We agree with the Appellant that we should have regard to the evidence of both Mr Meaney and Sister Brady and we have done that. However we are unable to find that any of the examples referred to us supports the suggestion that Sister Brady's evidence, generally, lacked credibility.

Mr Wood submitted that the only two weaknesses in Mr Meaney's evidence, cited by the Deputy President, arose from either a false assumption or a failure by the Deputy President to have regard for all the evidence. Both weaknesses were said to be related to Mr Meaney squatting beside the student instead of standing behind her.

The Respondent argued that these two weaknesses could not have been the only weaknesses in the Appellant's evidence because the Deputy President "obviously did not accept the Appellant's version of the critical events". It was submitted that the squatting in close proximity to the student offered Mr Meaney the opportunity and the temptation to touch the student in an unacceptable manner.

Mr Wood said it was common for persons to adopt a squatting or kneeling position in such circumstances and it was dangerous to infer improper intent as a result.

As to the glare on the screen of the computer, Mr Wood submitted that neither he nor Mr Bessell had asked Mr Meaney what was the source of the glare to which he had referred. It was submitted that the Deputy President had introduced the drawn curtains factor assuming Mr Meaney had indicated the glare had been caused by the direct sunlight, but Mr Meaney had made no mention of any sunlight glare and the Deputy President's conclusion ignored the presence of fluourescent lights in the classroom as a source of glare.

Mr Bessell submitted it was open to the Deputy President to infer there was less glare as a result of the drawn curtains and so regard that as a weakness in Mr Meaney's evidence.

Mr Wood also said the Deputy President's reliance on evidence that Mr Meaney had not been known before to squat beside students ignored evidence that usually a student sat to the left which would have precluded any squatting or kneeling beside a student.

As to the reasons for squatting, the Respondent submitted the predominant evidence was that there had been a chair to the left of the student; moreover the squatting gave Mr Meaney the opportunity to do what was alleged.

We accept the Appellant's submissions in relation to the "glare" on the computer screen and acknowledge that the transcript contains no reference to the source of the glare. However we did not have the benefit of an inspection of the classroom as was available to the Deputy President, and we will not interfere with his assessment of the conditions in the classroom. As to the second matter we agree with the Respondent that the preponderance of evidence was that there was a chair in the vacant spot to the left of Ms A.

Mr Wood noted that the Deputy President had posed a number of questions as part of his reasons for finding misconduct and submitted it was an error to rely on unresolved questions as evidence of guilt when a hypothesis, consistent with innocence, remained open in relation to those questions. The questions were:

Mr Wood submitted that explanations consistent with Mr Meaney's innocence in respect of three of the unanswered questions were not positively excluded by the evidence: in particular that Mr Meaney squatted to be at eye level because of the glare; that he saw the student alone after class to apologise for making her uncomfortable; and that it was his normal demeanour not to be aggressive and Mr Kenny was not surprised that Mr Meaney was low key at the interview.

As to the fourth question raised by the Deputy President, Mr Wood submitted that it was not Mr Meaney's responsibility to explain why the student would make up or exaggerate a story against him. Mr Wood submitted that the onus was on the Respondent to explain that. Further, he repeated the Deputy President actually found that the student had exaggerated her evidence.

Mr Bessell submitted there was no requirement for the Respondent to exclude all reasonable hypotheses consistent with innocence and he said the Deputy President did not rely, in isolation, on the unresolved questions in determining the critical issues.

Mr Bessell submitted that where, as in this case, the civil standard of proof applies, unresolved questions, even if reasonable hypotheses consistent with innocence exist, are matters which a tribunal is entitled to take into account together with all of the other evidence. He submitted the Deputy President was entitled to consider these unresolved and circumstantial issues and give them such weight, in the light of other evidence, as he thought appropriate.

We have concern about the unanswered questions posed by the Deputy President but we consider that the Deputy President did not rely on those questions when determining the essential issues before him.

• In respect of Ground 3 of the appeal, Mr Wood recited the comments of Zeeman J in Attorney-General (Tas) v John Stuart Smith (A87/1994) and submitted that the Commission, in determining matters such as this -

  (i) must make specific findings with respect to the essential facts that arise from the evidence;

  (ii) state the basis for making a particular finding where the evidence with respect to any fact is in dispute or unclear;

  (iii) where appropriate, state the inferences drawn from the facts and, where necessary, the basis for drawing such inferences; and

  (iv) expose the reasoning process which resulted in the determination to the scrutiny of the parties and any appellate or review body.

  Mr Wood submitted that the Deputy President fell into error because he did not make appropriate findings of fact in relation to -

• the position on the body of the touch;
• the length of the touch;
• the intent of the touch.

  He submitted that the Deputy President's finding that there was a touch on the knee was not surprising as there was no dispute about that, but he submitted that finding involved, by inference, a rejection of the student's evidence that there was a touch on the lower thigh.

  Mr Wood contended that without a specific finding as to the length of the touch, "it is difficult, if not impossible, to make a finding as to the intent behind the touch". In support of that contention he submitted that "if the touch was for two seconds it is most unlikely there was any inappropriate intent; if the finding was that the touch was for five minutes it could not possibly be innocent".

  Mr Wood submitted the Deputy President made no finding as to the length of the touch other than he did not accept it continued for five minutes45. He said if from that comment the Deputy President was rejecting Ms A's evidence that the touch occurred for five minutes, then the only other evidence as to the length of the touch was from Mr Meaney and Mr E, which was that it was between two and five seconds.

  If that was the finding, Mr Wood said, the only remaining issue is whether there was "an improper or immoral intent behind such a touch". Mr Wood submitted that the Deputy President had made it clear that the touch may or may not be of significance depending on its intent. He said the Deputy President had not found that the touch was for a particular purpose although he had in respect of the evidence of Sister Brady, at page 15 of his decision, recorded that "There is no doubt in the mind of Sister Brady going to the intent". Mr Wood submitted that the Deputy President's decision does not "say what Sister Brady's conclusion as to the intent was". He then submitted that in fact there was a great deal of uncertainty "even in the mind of Sister Brady" as to the intent46.

  Mr Wood submitted that unless it was established that the intent behind the touch was other than innocent, Mr Meaney was entitled to reinstatement and he submitted there was "overwhelming evidence" that the touch was one "of congratulations and encouragement"47.

  Mr Wood submitted the evidence of Ms A at page 192 of transcript supported the conclusion that she may have misunderstood the reason behind the touch.

  Mr Wood contended that the best evidence of the intent behind the touch, at about or during the touch, is the words that were spoken. He said Mr Meaney's words were quite clear; and Ms A agreed words such as thank you were said but, she says, "not quite at that precise time".

  He submitted that there were certain comments by Ms A's mother during her evidence at page 202 of transcript from which we could draw the inference that Ms A thought that the intent behind the touch was simply to encourage her or to thank her.

  Mr Wood submitted that Ms A was clearly of the view that what happened was akin to tactile encouragement. He said that the Deputy President later asked Ms A's mother how Ms A had responded to a general question asking "whether anything like this had happened before" and she answered:

The evidence of the "eye witness" student, Mr E, at pages 73 and 75 of transcript, was put forward in support of the claim that the touch was one of encouragement.

The evidence of Mr Kenny at pages 209, 220 and 221 was referred to again which Mr Wood maintained indicated that at the first interview Mr Meaney made the comment he was just giving Ms A a "pat of encouragement or saying thank you, saying well done".

Mr Wood submitted that it was only Sister Brady who thought there was some other intent behind the touch. Despite the evidence of Mr Meaney and Mr Kenny, Sister Brady did not recall Mr Meaney saying at the first interview that the reason was to encourage or thank the student.

It was submitted the Deputy President could not make a determination as to whether the nature of the touching amounted to conduct which was a valid reason for termination of employment without making specific findings as to the position, length and intent of the touch.

He claimed there was no finding that Mr Meaney had touched the student on the leg in addition to the touching on the knee, and no finding that Mr Meaney had touched the student on the leg, other than on the knee.

He claimed there was no finding that Mr Meaney had rubbed the student's knee or leg, and the absence of such a finding meant that the Deputy President was not satisfied that such occurred. Similarly the absence of a finding that Mr Meaney had touched the student under the skirt meant that the Deputy President was not satisfied that such had occurred. We were asked by Mr Wood to note the evidence of the student that when seated her skirt covered her knee and so even a touch under the skirt would be on the knee.

The Respondent submitted that the essential matters the Deputy President was required to adjudicate upon were:

(i) Was there a valid reason for the Appellant's dismissal?

(ii) If there was not, what orders should be made?

(iii) If there was, what, if any, orders should be made?

Mr Bessell said the Deputy President found that the Appellant had, during the early part of periods 7 and 8 on 7 July 1997, conducted himself in an unprofessional and unacceptable manner in his dealing with the student and that he did so on at least one occasion by touching her on the knee and leg in a manner which brought discomfort to the student.

He therefore found that there was a valid reason for the Appellant's dismissal.

The Deputy President then, as he was obliged to do pursuant to section 31(1A) of the Act, took into account the matters referred to in that sub-section, and found that the general tenets of procedural fairness had been satisfied.

It was submitted that the Deputy President made findings with respect to all the essential elements upon which he was required to base his decision.

It was submitted that there was no requirement to make specific findings of the position, length, and intent of the touch. The issue before the Deputy President was whether the nature of the touching amounted to conduct which was a valid reason for termination of employment.

By finding the touching constituted unprofessional and unacceptable conduct, it was clear, Mr Bessell submitted, that the Deputy President did not accept that the touching was of the nature alleged by Mr Meaney.

Mr Bessell submitted that by finding that there had been a touching of the leg in addition to a touching of the knee, it must be inferred that the student's account of where the touching occurred was accepted, that is, there had been a touching of the leg of the nature of a rubbing motion under the dress. Mr Bessell said this must be inferred as this was the only evidence of a touching of the leg during period 7. The Commission's attention was directed to the evidence of Ms A at pages 170, 172, 173, 174, 184; of Ms Lagerewskij at pages 244, 247, 248; of Ms A's mother at page 201; of Sister Brady at page 117 and 150; and Exhibit B2, Sister Brady's notes.

Mr Bessell said it was clear from the Deputy President's decision that he found the touching was not "innocent" and was not a brief tap or touching of the knee alone, to reassure, encourage, thank or congratulate the student.

He submitted that it was simply wrong to suggest that there was overwhelming evidence that the intent behind Mr Meaney's touch was completely innocent and was one of encouragement and/or congratulation.

It was submitted that the Deputy President made adequate specific findings of fact upon which to base his decision and that to have made more detailed findings of fact was not only not required, but would have unnecessarily prejudiced Mr Meaney by highlighting details of his misconduct.

Mr Bessell submitted that if the Full Bench was of the view that the Deputy President should have made more specific findings of fact, then it would be appropriate, pursuant to section 70(13)(c) of the Act, for the matter to be remitted back to the Deputy President for that purpose.

However the Respondent's primary submission was that the appropriate order for the Full Bench to make is to confirm the decision of the Deputy President as there is no basis to interfere with any of his findings.

Mr Wood submitted that it would be inappropriate for the matter to be remitted back to the Deputy President simply for him to make more specific findings of fact and that the Full Bench should make its own decision on the basis of all the evidence that was before the Deputy President at first instance.