Culhane v St. Joseph's College [1994] QIRC 36 (1994) 145 QGIG 544

544 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 11 March, 1994 #################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION industrial Relations Act 1990 s. 174 - - application for reinstatement Barry JamP; Culhane AND St. Joseph's College (No. 8727 of 1993) COMMISSIONER DEMPSEY n ~ebruary l '194 Termination of EmploymPnt - Dismissal - Reinstatement - Allegation of Masturbation - Evidence - Medical Evidence -- Conflict oi evidence - Case Law - Dismissal Harsh, Unjust and Unfair - Reinstatement Ordered - REPORT ON DECISION (As Edited) In giving his decision from the Bench on Thursday, 17 FPbruary 1994, Commissinner Dempsey said:- "The applicant in this matter, Barry James Culhane, seeks relief pursuant to the provisions of section 175 of the Industrial Relations Act l 990 in the form thdt hP be reinstated to the position he held as teacher/librarian at St. Joseph's College, Sandgate Road, Boondall. Mr C.:ulhane's emplovment was terminated on 11 November 1993 for reasons th.1t have been canvassed extensively in these proceedings. Mr Culham>, the applicant, has testified in these proceedings, as has a number oi medical practitioners and experts who were called in support of the applicant's contentions For the respondent, Br. Harney, the college principal, was called dnd attested to the fact that he responded to allegations lodged by Mrs Aileen O'Corman. He investigated all of the people who were present at a meeting held in the information technology workroom 011 t 5 October 1993. It was on this date, and in that place, that the allegation of inappropriate conduct took place. I he inappropriate conduct, on Br. I larney's evidence, was elaliorated on to the extent that such conduct was in fact masturbation and that it was for the conduct of masturbation 11 March, 1994 J QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE that Mr Culhane in the presence of five women WdS suspended. The suspensio,1 fol lowed investigations and further investigations led to the decision to dismiss Mr Culhane. The five women who were present also gave evidence in these proceedings Two of them claimed that .Mr Culhane was masturbating. However, close examination of their evidence reveals the fact that their observations were minimal, and I ;hould say that much more will need to he said about this. Br. Harney's evidence is of such significance that, in my opinion, it is clear that Mr Culhane was d1sm1ssed for allegedly masturbating during the C<Jurse of the mPeting previously rererred to. Over the last six hearing days, and the period between sittings, I have considered the evidence, and I have concluded th..it the outcome of this matter must turn on the events of 15 October. I have also given a great degree of consideration .to the medical evidence provided and share. some of the views expressed by Mr Garske that there is little to 1;uarantee that the presenre of a number of the medical ailments actually existed at the time the meeting took place. However, on thr balance of probabilities, it is feasible to conclude that some may have existed. Having said that, there is one condition that I am satisfied existed then, as It has in the past, and that remained until atter the events of 15 Ortober, and that is the condition of impotence. Therefore, tdking into consideration all of thP evidence and the gravity of the accusation of masturbation, I have formed thr view that to sustain this allegation, reasonable proof, not just opinion or assertion, is necessary, and in this matter th..it reasonable proof, in my opinion, is not there. Under these circumstances I find that the dismissal of Barry James Culhane is harsh, unjust and unfair. Pursuant to the provisions of secl.ion 175, having heard the dpplication for relief from dismissal. I order as follows: In accordance with the provisions of section 175(2) that Barry James Culhane be reinstated to his former position of teacher/librarian at St, Joseph's College, Sandgate Road from Monday 28 March. Further Order thdt the applicant be paid for all entitlrments from the datr ot his dismissal to the date of his reinstatement. The purpose of ordering a prospective date for reinstatement ,s to give the college an opportunity to discuss this matter with five of the witnesses. who attested during these proceedings and anyone else 11 might feel nPcessary, and to provide appropriate counselling where it is rleemPd necessary. I am proposing this course of action having considered the ;ubmissions of Mr I awson that .;II of the witnesses cailed by the respondent were honest, and that in two there was mistaken belief. I accept that proposition. The grounrl; and rt:dsons for this rlecision wil! follow in due rourse and will be delivered as speedily as possible. At the time of giving those grounds and reasons I will address the matters raised with respect to the submissions and suggestions relevant to the Anti-discrimination Act. ·1 he Commission orders accordinglv.". 0dted this twenty-second tfay of February, 1994. By the Commission. [L.S.] M J. CALLEN, Industrial registrar Appearances:- Mr J. Lawson (instructr;d bv Prtrr Channell :rnd Associates) ior the applicant. ' Mr P. Garske for the Queensland Confederation of Industry Limited, Union 01 Emp!oyers, (instructed by Messrs Thynne and Macartney) tor St. Joseph's College. Operative Date: N/A Report on Decision - - Reinstatement Released: 25 Febru..iry 1994 545 -- 1 of 1 --