Eisenmenger v Lutheran Church of Australia, Queensland District [2005] QIRC 136 (2005) 180 QGIG 519

[Extract from Queensland Government Industrial Gazette, dated 30 September, 2005, Vol. 180, No.7, pages 519-522] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Raymond Alan Eisenmenger and Lutheran Church of Australia, Queensland District (No. B/2003/1662) COMMISSIONER FISHER 16 September 2005 Application for reinstatement – Dismissal found harsh, unjust or unreasonable – Parties ordered to confer on remedy – Conferences – Inability to reach agreement – Further evidence – Reinstatement refused – Re-employment ordered – Consequential orders made. DECISION On 2 March 2005, the Commission as currently constituted released its decision that the Commission had jurisdiction to hear the application for reinstatement filed by Pastor Raymond Eisenmenger and that his dismissal as Pastor and School Chaplain from St Peter’s Lutheran College, Indooroopilly (SPLC) was harsh, unjust or unreasonable (2005) 178 QGIG 203. The Commission did not determine the issue of remedy because of particular concerns identified therein. Instead, the Commission directed the parties to confer to see whether an agreement could be reached. A Member of the Commission was available to assist the parties with conciliation if requested. Commissioner Brown chaired several conciliation conferences but regrettably a mutually acceptable resolution was unable to be found. The respondent wrote to the Industrial Registrar on 3 June 2005 asking the Commission to determine the question of remedy. In my decision of 2 March 2005 I commented that the decision on remedy had caused me some difficulty. It was not that I did not believe that Pastor Eisenmenger should be returned to a school but whether that school should be SPLC. My concern about the return of Pastor Eisenmenger to SPLC was twofold viz., whether Pastor Eisenmenger should return to the daily environment of the students who gave evidence against him and the effect on their emotional wellbeing if he was to so return. Mr Murdoch SC, who appeared for Pastor Eisenmenger, submitted that reinstatement was practicable and led evidence to address the concerns identified in the decision. In relation to the first concern evidence was adduced about: (i) the size of SPLC and, in particular, the geographical separation of the Middle School, where Pastor Eisenmenger had been based, and the Senior School where the students who gave evidence are now based; (ii) the age and year level of the students who gave evidence in the matter. One of the students concerned has left the school, the two female students are currently in Year 12 and the remaining male students are currently in Year 11; and (iii) the development of a pastoral care strategy designed to be a “third level check” to avoid, wherever possible, contact between Pastor Eisenmenger and the five students during the period they remain at SPLC. In relation to the concern about the students’ emotional wellbeing, evidence was given by Dr Josephine Sundin, the psychiatrist who Pastor Eisenmenger consulted as part of the conciliation between the Church and himself after his dismissal. Mr Horneman-Wren, Counsel for the respondent, submitted that both reinstatement and re-employment were impracticable. He contended that the pastoral care strategy imposed conditions on the reinstatement of Pastor Eisenmenger and the decision of Williams P in Queensland Transport v Steele [(1999) 160QGIG 196] was authority for the proposition that if restrictions were placed upon a dismissed employee’s return to work then reinstatement was impracticable. The respondent also led evidence from Philip Trudinger, a clinical psychologist, whose opinion was that the students who gave evidence could be affected psychologically should Pastor Eisenmenger return to SPLC. By an uncontested affidavit the mother of one of the male students who gave evidence in the substantive proceedings discussed the effect of the proceedings on her son. Pastor Jaensch gave evidence in an uncontested affidavit of the “calls” that have been available since my decision. Those arising in schools were of a temporary nature. Calls remained open in a number of parishes, however, the decision to issue a call, that is, in industrial parlance, offer a position, rests with the relevant parish. In the result none of the parish options met with Pastor Eisenmenger’s favour. -- 1 of 4 -- 2 On 29 August 2005 the Commission received a request from the Solicitors for Pastor Eisenmenger to place further evidence before the Commission in respect of positions that had recently been advertised. Without objection from the respondent this evidence was provided to the Commission. That evidence was that the following positions had been advertised: St Andrew’s Lutheran College, Gold Coast Christian Studies Co-ordinator (Yrs 7-12); Pacific Lutheran College, Caloundra Co-ordinator of Christian Studies; Good Shepherd Lutheran College, Noosa Secondary Christian Studies programs Co-ordinator (Yrs 8-12). Pastor Eisenmenger gave evidence, which was not contradicted by the respondent, that he had the qualifications and skills to fill any of the advertised positions. If re-employment was to be ordered then the position at Caloundra was preferred. Despite this evidence being put before the Commission, reinstatement to SPLC remained the remedy sought. Consideration In my decision of 2 March 2005 I made a number of comments that supported the proposition that Pastor Eisenmenger should return to SPLC. In particular I noted the substantial support that Pastor Eisenmenger had received from the teaching members of the SPLC faculty, including support for his return to the school. I also acknowledged the regard that the Head of Middle School had for Pastor Eisenmenger and commented that difficulties were unlikely to arise between them were Pastor Eisenmenger to return to his former position. Reference was also made to SPLC having appointed a new Head of College since Pastor Eisenmenger’s dismissal and my conclusion that as an experienced professional, a satisfactory working relationship could be established between him and Pastor Eisenmenger. I also dealt with matters of trust and confidence. I said that the concerns of the Church should be alleviated in light of the Commission’s findings based on the extent of the evidence presented. However, in an attempt to further restore trust and confidence I recommended that Pastor Eisenmenger undertake professional development with respect to classroom behaviour management. In his evidence on 5 August 2005, Pastor Eisenmenger advised that he had undertaken one such course and proposed to undertake another when it next became available. As mentioned earlier the Commission had two specific reservations about whether Pastor Eisenmenger should return to SPLC. On the issue of the contact in the daily environment between Pastor Eisenmenger and the students who were witnesses, evidence was given by Neal Nuske, an ordained Pastor with the Lutheran Church of Australia for twenty-five years (until 2005) who spent twelve years as Chaplain at SPLC and who is now employed as a full-time teacher, Head of Department Level 4, Teacher in Charge of Christian Studies (Year 11 and 12) and Teacher in Charge of Study of Religion at SPLC. In particular Mr Nuske gave evidence about the geography of the school, the separation between the Middle School and the Senior School and the opportunities for contact between those involved in the Middle School and those in the Senior School. SPLC is located in a fifty acre campus. It comprises three schools: Primary – Years 1-4 ; Middle – Years 5-8; Senior – Years 9-12. The Middle School is geographically separate from the Senior School. While the Middle School has its own library, it is not yet self-sufficient, thus requiring students and staff of that School to use the Senior School Library periodically. Generally contact between staff and students of the Middle School and those of the Senior School would be limited to the passage to the Senior School library, whole of school assemblies and the once a week Chapel services. The Middle and Senior Schools each have their own tuckshop. According to Mr Nuske, it was hoped by the start of 2006 that each school would be structured as a separate entity. The restructuring which is in train includes changing the year levels which currently comprise the Middle and Senior Schools. From 2006 the Middle School will comprise Years 4-7 and the Senior School Years 8-12. Pastor Eisenmenger had previously taught Year 8, indeed this was the Year level of students involved in the library incident dealt with in some detail in my 2 March 2005 decision. The students who gave evidence in the substantive proceedings were in Years 8 and 9 at the time of the library incident and the other alleged incidents. Those who remain at the School are now in Years 11 and 12. If Pastor Eisenmenger were to be reinstated to SPLC there would be some, albeit, limited opportunity for him and the students concerned to cross paths. I accept however that it would be the whole of school activities where encounters were more likely, particularly given the role of Pastor within the School. -- 2 of 4 -- 3 Attached to Mr Nuske’s affidavit was a Draft Pastoral Care Strategy that he had prepared in consultation with the faculty. The purpose of the Draft Pastoral Care Strategy was to respond to the two concerns identified by me in my decision of 2 March 2005. It is a strategy designed to minimise the interaction between Pastor Eisenmenger and the students who were witnesses. A copy of the Draft Strategy was forwarded to the Head of College. I commend Mr Nuske and his colleagues on their initiative and endeavours to develop a strategy to protect the interests of students and which responds positively to the concerns of the Commission. The second area of concern identified by the Commission was that of the students’ emotional well being. The students were required to recount the incidents and face Pastor Eisenmenger when they gave evidence to the Commission. I accept without hesitation that being a witness is for most people, regardless of their age, a disconcerting experience. I accept the evidence of Mrs H that her son found it traumatic. Here, the parental concern relates to the court room experience but this does not deal with the specific issue raised in my decision. Mrs H also states that her son believes that Pastor Eisenmenger has been vindicated despite the Commission’s acceptance of the library incident about which her son gave evidence. The Commission’s findings were that Pastor Eisenmenger had engaged in unacceptable behaviour in the library incident but ultimately, given the totality of all of the circumstances and having regard to all of the matters alleged, his conduct was not so serious as to warrant termination. An adverse finding was made against Pastor Eisenmenger regarding the library incident and that will inevitably continue to affect him. I accept that the concerns of Mrs H are genuinely held but in my view do not deal directly with the concerns I had identified in my decision and are not of themselves sufficient to cause me to decide against reinstatement. The evidence about emotional well being of students given by the psychiatrist and the psychologist was largely contradictory. Both professionals had been given a copy of my decision of 2 March 2005 and the Draft Pastoral Care Strategy. Dr Sundin had also been given the affidavit of Mrs H and that of Dr Trudinger. Both prepared a report for the Commission and gave oral evidence. It was the opinion of Dr Trudinger, a well credentialed psychologist who is experienced in dealing with children, “that it is likely that some levels of apprehension and anxiety would be experienced (by the students). That is likely to occur despite preparation and assurances that they will not come into contact with (Pastor Eisenmenger)” (my parentheses). His report also outlined the types of effects that Pastor Eisenmenger’s reinstatement would cause. These were aspects of anxiety, post traumatic distress and anger. In contrast Dr Sundin, after commenting on Dr Trudinger’s report, said that: “It would be reasonable to say that the passage of time, the response of the school and the support of parents and teachers has mitigated against almost all possible adverse psychological sequelae for the students.”. However, Dr Sundin conceded in cross-examination that one could not be certain of the consequences until they happened although she did not believe that the extent of the effects postulated by Dr Trudinger would occur. Conclusion The evidence presented to the Commission in support of the reinstatement of Pastor Eisenmenger to his former position at SPLC was persuasive. However, in the result, I retain a reservation about the effect on the students who gave evidence in this matter and who remain at SPLC were Pastor Eisenmenger to be reinstated. Although I accept Dr Sundin’s evidence about the effects of the effluxion of time on the students since the library incident occurred and the allegations were made, her evidence that some of the reactions of the students would not be known until Pastor Eisenmenger returned has ultimately persuaded me that risks may outweigh the benefits. Contact between Pastor Eisenmenger and the students concerned would be inevitable were he to be reinstated at SPLC. It would occur despite the best endeavours of Pastor Eisenmenger and the School because of the role he would be required to fulfil as Pastor. I am acutely aware that the Draft Pastoral Care Strategy was developed in order to minimise the contact between Pastor Eisenmenger and the students and to a great extent, it achieves that aim. Despite the thought that has been put into the Strategy I do not think it reasonable or appropriate to ask Pastor Eisenmenger or SPLC to minimise the involvement of a Pastor in whole of school activities, even for a year or slightly more. In addition, the physical lay-out of the school, while minimising contact, does not overcome the potential for it completely. Accordingly, I find that reinstatement would not be practicable in the particular circumstances of this case. Rejection of the remedy of reinstatement then leads to a consideration of the re-employment options. Re-employment is a remedy which is available in circumstances where the employer has a position available that the Commission considers suitable. In this case the employer has three positions available, all of which I consider suitable. I accept that -- 3 of 4 -- 4 Pastor Eisenmenger has the requisite qualifications to fill any of the vacant positions. In all of the circumstances I find re-employment to be the more appropriate remedy. It allows Pastor Eisenmenger to re-commence work in a school, something I found in my 2 March 2005 decision that he should not be prevented from doing, and recommencing in another school allows him to start his career afresh. I also note that the positions now available are teaching positions and are not positions of Pastor which require the call process to be undergone. In the event re-employment was ordered, Pastor Eisenmenger expressed a preference to be re-employed at Pacific Lutheran College, Caloundra. The respondent acknowledges that Pastor Eisenmenger has the skills and qualifications to fill this position. In the circumstances I order that Pastor Eisenmenger be re-employed in the position of Co- ordinator of Christian Studies, Pacific Lutheran College, Caloundra. That position becomes available with the start of the new school year in 2006. Counsel for both parties agreed that if the Commission were minded to make an order for re-employment that 1 January 2006 would be an appropriate date for the order. Mr Murdoch SC submitted that there was no impediment to the Commission making orders for continuity of service and the payment of lost wages under s 78 (4) of the Industrial Relations Act 1999 (the Act) in connection with an order for re-employment. Mr Horneman-Wren argued that the date of order for re-employment and the date of any order for the payment of lost wages need not coincide. Given the particular history of this case, the reasons for the decision of 2 March 2005 and, in that decision, that I had not closed off the remedy of reinstatement, I am persuaded to make the orders sought by the applicant. Orders In light of the above I make the following orders: 1. That, pursuant to s 78(3) of the Act, Pastor Eisenmenger be re-employed in the position of Co-ordinator of Christian Studies, Pacific Lutheran College, Caloundra. 2. That the re-employment of Pastor Eisenmenger take effect as and from 1 January 2006. 3. That, pursuant to s 78(4)(a)of the Act, Pastor Eisenmenger’s continuity of service be maintained as if the dismissal had not occurred. 4. That, pursuant to s s 78(4)(b), Pastor Eisenmenger repay any amount paid to him by, or for, the employer on his dismissal. 5. That, pursuant to s 78(4)(c), the employer pay to Pastor Eisenmenger the remuneration lost because of the dismissal from the date of his dismissal until the date of re-employment. 6. That, pursuant to s 78(4)(c), any monies earned by Pastor Eisenmenger since the date of his dismissal until the date of re-employment be deducted from the amount of lost remuneration to be paid by the employer. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2005 5 August 8 September Appearances: Mr J. Murdoch SC instructed by Mr M. Ryan (Ryan Kruger) for the applicant. Mr A. Horneman-Wren (Barrister) instructed Mr J. Naughton (Allens Arthur Robinson) for the respondent. Released: 16 September 2005 Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --