Augustine v State of Queensland (Department of Education) [2022] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Augustine v State of Queensland (Department of Education) [2022] QIRC 184 PARTIES: Augustine, Samantha Claudette (Applicant) v State of Queensland (Department of Education) (Respondent) CASE NO: TD/2021/78 PROCEEDING: Application for reinstatement DELIVERED ON: 13 May 2022 HEARING DATES: 9-11 May 2022 inclusive MEMBER: HEARD AT: Dwyer IC Brisbane ORDERS: 1. The application is dismissed. 2. Any application for costs must be made within 21 days of 13 May 2022. 3. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld), that any reference to the School and the Former Student, the subject to these proceedings, is de-identified. 4. Pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld), I direct that all documents and Exhibits in this matter be withheld from release or search. -- 1 of 25 -- 2 CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - unfair dismissal – where applicant employed as teacher of state school – three allegations of misconduct – investigation and subsequent discipline process – dismissal – whether misconduct allegations proven – whether conduct gave rise to fair and reasonable disciplinary finding - where no dispute as to procedural fairness - whether dismissal was harsh, unjust or unreasonable - where misconduct found to have occurred - where dismissal reasonable LEGISLATION: Industrial Relations Act 2016 (Qld) ss 316, 320 Public Service Act 2008 (Qld) ss 187, 188 CASES: Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139 Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Coleman v State of Queensland (Department of Education) [2020] QIRC 32 APPEARANCES: Mr S L Kissick of counsel instructed by Mr K McNamara, Ryans Solicitors & Attorneys for the Applicant Mr E Shorten of counsel instructed by Mr A Morison, Crown Law for the Respondent Reasons for Decision (ex tempore) Background [1] Ms Samantha Augustine was employed by the Department of Education ('the department') as a teacher since 1994. Prior to the incident giving rise to her dismissal, she had an unblemished disciplinary record. -- 2 of 25 -- 3 [2] In 2017, Ms Augustine accepted what was to be a two-year posting to teach at a school in the Torres Strait. She commenced her posting in early 2018 on an island in the Torres Strait Island group. [3] Ms Augustine was originally assigned to teach a year three class however, following the sudden incapacitation of the year six teacher early in term one, Ms Augustine arranged to swap classes and took over teaching year six from about week five of term one. [4] In her material supporting her application to the Commission (and also in her evidence) Ms Augustine has highlighted alleged concerns that she had, and comments that she made to staff about behaviour management in respect of year six students. It seems that these alleged comments and concerns have been emphasised by Ms Augustine after the incident giving rise to her dismissal because, while Ms Augustine alleges for example, a number of serious behavioural incidents said to have occurred during the school year (including assertions of threats, theft, and racial vilification by students), none of these matters precluded Ms Augustine from continuing in her role for almost the entire school year. [5] The event giving rise to Ms Augustine's dismissal occurred on 28 November 2018 in the last weeks or days of the last term of the school year. Many of the facts around this incident are uncontroversial. [6] In summary, at some point during the school day on 28 November 2018, it was reported to Ms Augustine that two male students in her year 6 class were 'fighting' in her classroom. One of the boys (who will be referred to as 'Student T') had a difficult behavioural history and had recently returned to school after a lengthy suspension. Student T was, by all accounts, a very challenging student who displayed defiant and, at times, violent tendencies when he was upset. [7] Ms Augustine intervened when she observed the two boys fighting,1 and directed the students to take their seats. The other student involved complied without incident however, Student T complied with the direction to return to his seat, but while doing so he continued to verbally denigrate Ms Augustine. [8] While seated at his desk, Student T continued to call Ms Augustine names and generally denigrate her. Ms Augustine responded by directing Student T to accompany her to the office of the head of campus (hereafter referred to as 'the principal's office'). [9] There is some controversy as to when Ms Augustine made physical contact with Student T at this time, which will be addressed later in these reasons. What is not controversial is 1 Whether the boys were actually fighting or engaged in 'rough play' is the subject of some controversy addressed in the consideration below. -- 3 of 25 -- 4 that Ms Augustine, at some point during this interaction, placed her hand on Student T's upper arm as a means of directing him to rise and accompany her to the principal's office. [10] Student T apparently complied and walked with Ms Augustine to the principal's office in the administration building. There is some controversy, which also will be addressed later in these reasons, as to the extent to which he complied while being escorted by Ms Augustine. Ms Augustine held his upper arm on the journey apparently to prevent him from absconding as (according to her) he had done this in the past. [11] On arrival at the reception area outside the principal's office, Ms Augustine noted that the seating was fully occupied by younger students and that the area was otherwise congested by the presence of at least three other staff members. Ms Augustine then proceeded to escort Student T into the principal's office which was, at that time, not occupied. The principal and another staff member were in an adjoining room. [12] Upon entering the principal's office, Ms Augustine instructed Student T to sit on the floor. She still had her hand on him at this point. Student T then became uncooperative. He refused to sit. Whilst still holding his arm, Ms Augustine continued to instruct Student T to sit. A tussle ensued between Ms Augustine and Student T that eventually resulted in Student T being on the floor. The circumstances around that are the subject of some controversy, but Ms Augustine insists (in her most recent account of the incident) that Student T was 'lowered' to the ground when allegedly they both became unbalanced during the tussle. [13] Throughout the tussle, Ms Augustine was continuing to insist that Student T sit. Ms Augustine has estimated that she issued the instruction to Student T approximately four times. The commotion caused by the tussle was immediately noticed by the staff in the reception area and by the head of campus (Mr Hincks) and the other staff member (Mr Koko) in the adjoining room. [14] Mr Hincks and Mr Koko entered the principal's office to investigate the noise. They encountered Ms Augustine in the closing phase of the tussle. Ms Augustine briefly spoke to Mr Hincks and left the room and the building. Ms Augustine was, by this stage, visibly upset. She spoke briefly with some other staff, before leaving the school early and going home, where she says that she fell asleep. [15] At approximately 3pm that afternoon, Ms Augustine received a text message from the father of Student T. The message was abusive and told her to leave the island. Shortly after receiving this message, Mr Hincks and Mr Koko arrived at Ms Augustine's residence. Mr Hincks informed Ms Augustine that the incident with Student T had been reported to the department's Ethical Standards Unit. Ms Hincks also informed -- 4 of 25 -- 5 Ms Augustine that arrangements had been made for her to depart the island. Ms Augustine flew to Thursday Island on the morning of 29 November 2018. [16] On 30 November 2018, Ms Augustine attended the Thursday Island Police Station to progress a complaint regarding the text message received from Student T's father. Instead, she was charged with multiple counts of assault with respect to three students in her year six class, including a charge related to the incident with Student T on 28 November 2018. [17] The investigation by the department was then suspended to allow the criminal proceedings to run their course. Ms Augustine remained suspended on full pay from 28 November 2018 until the termination of her employment in August 2021. [18] Following a trial before a Magistrate on Thursday Island in June of 2019, the charges against Ms Augustine were dismissed. To the extent the Magistrate's conclusion is of any relevance, he concluded that Ms Augustine had assaulted Student T, but that her actions were reasonable. It is trite to note that the conclusions of the Magistrate arise in an entirely different legal context, with different standards of proof, and are in no way binding on this Commission. [19] The department was informed of the acquittal on or about 7 August 2019. For reasons that remain unclear, there was an extraordinary delay by the department in progressing the investigation after this. The evidence of Ms Mahar provides a timeline that seems to suggest multiple exchanges of correspondence took place between the department and the Queensland Police Service between December 2019 and April 2020. There were also personnel changes within the department at critical times.2 [20] While part of the delay might also be explained by the turmoil caused by the commencement of the pandemic in early 2020 and a subsequent lockdown in or about April-May of that year, the fact remains that the terms of reference for the department's investigation were not finalised until 17 August 2020, that is, well over 12 months after the criminal process had been completed. It was not until October 2020 that Ms Augustine was interviewed by investigators. The show cause process was then not completed until August of 2021, with the termination of Ms Augustine's employment. I will deal with the impact of delay on fairness in my consideration below. [21] Prior to being interviewed, Ms Augustine was provided with allegations in the following terms: Allegation 1 On 28 November 2018, you engaged in inappropriate physical contact with Student T. 2 Exhibit 12, paragraphs 15-24. -- 5 of 25 -- 6 Allegation 2 On 28 November 2018, you inappropriately encouraged Student T to fight with another student by stating words to the effect of, 'If you two want to fight, fight in front of me in class.' Allegation 3 On 12 March 2019, you breached a condition of your employment suspension by contacting Mr Hamish Koko via email. [22] Following the interview of Ms Augustine on 20 October 2020, the department concluded its investigation and found that allegations one and three were capable of substantiation, but that allegation two was not. [23] On or about 8 May 2021, Ms Augustine was informed of this finding. She was advised that she may be liable to disciplinary action under section 187 of the Public Service Act 2008 (Qld) ('PS Act'), and she was then invited to show cause why she should not be disciplined. [24] An extensive show cause process then ensued, during which Ms Augustine was given the opportunity to provide a comprehensive response to the allegations and also to make a submission as to why her employment should not be terminated. [25] On or about 16 August 2021, Ms Augustine's employment was terminated for misconduct within the meaning of section 187 of the PS Act. Ms Augustine applies to this Commission on the basis that her dismissal was unfair within the meaning of section 316 of the Industrial Relations Act 2016 (Qld) ('IR Act'). Legislative provisions [26] Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust, or unreasonable.3 [27] Section 320 of the IR Act provides: 320 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust, or unreasonable, the commission must consider— (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to— (i) the operational requirements of the employer's undertaking, establishment, or service; or (ii) the employee's conduct, capacity, or performance; and 3 Industrial Relations Act 2016 (Qld) s 316. -- 6 of 25 -- 7 (c) if the dismissal relates to the employee's conduct, capacity, or performance— (i) whether the employee had been warned about the conduct, capacity, or performance; or (ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity, or performance; and (d) any other matters the commission considers relevant. [28] Section 187 of the PS Act provides: 187 Grounds for discipline (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— (a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or (ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee's appointment, secondment or employment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (f) contravened, without reasonable excuse, a provision of this Act; or (g) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. (2) A disciplinary ground arises when the act or omission constituting the ground is done or made. (3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)— (a) a public service employee under section 187A; or (b) a former public service employee under section 188A. (4) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service. -- 7 of 25 -- 8 Consideration Statutory considerations [29] The language of section 316 of the IR Act has been much traversed in multiple authorities over many years. The words of section 316 are regarded as ordinary, non-technical words. A dismissal may be harsh because the consequences on the employee are disproportionate to the gravity of the conduct. A dismissal may be unjust because the conduct alleged was unproven. A dismissal may be unreasonable because it is decided on inferences that were not open to the decision maker.4 [30] A court must objectively decide if dismissal was harsh, unjust, or unreasonable having regard to the circumstances leading to the decision to dismiss, and the effect of the decision on the employee. A harsh effect alone of an employee is not of itself conclusive. A decision must be balanced against the gravity of the employee's misconduct.5 [31] Section 320 of the IR Act compels me to consider certain matters. I am much assisted in this regard by a concession from counsel for Ms Augustine that no dispute is raised with respect to the procedural fairness (and nor could there be on any examination of the pre- termination procedure). Accordingly I can conclude without further need for consideration that Ms Augustine was notified of the reason for her dismissal, that her dismissal related to her conduct, and that Ms Augustine had ample opportunity to respond to the allegations with respect to her conduct.6 [32] Section 320 of the IR Act also allows for consideration of other matters the Commission considers relevant when considering whether a dismissal was harsh, unjust or unreasonable.7 Such matters will be determined by the unique circumstances of each case, but might include the dismissed employee's length of service, disciplinary history, demonstrated remorse or contrition, and demonstrated insight into any proven misconduct. [33] In relation to allegation one, Ms Augustine was dismissed following a finding of misconduct namely, conduct that was inappropriate or improper conduct in accordance with section 187(4)(a) of the PS Act. In relation to allegation three, there was a finding that she had contravened a direction without reasonable excuse. 8 4 Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139; see also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467. 5 Bostik (Aust) Pty Ltd v Georgevski (No 1)(1992) 36 FCR 20, 28. 6 Industrial Relations Act 2016 (Qld) s 320(a),(b),(c)(ii). 7 Ibid s 320(d). 8 See the letter of termination, ‘DM 9’ to the Statement of David Miller (Exhibit 13). -- 8 of 25 -- 9 [34] The meaning of the terms 'inappropriate or improper' conduct as they appear in section 187 of the PS Act are extensively discussed by his Honour Deputy President Merrell in the decision of Coleman v State of Queensland as follows:9 [53] Apart from the definition of misconduct in s 187(4), the PS Act does not go on to provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct as contained in that definition. [54] In Mathieu v Higgins ('Mathieu'), [14] Daubney J gave consideration to the construction of the Queensland Ambulance Service Disciplinary Policy ('the QAS Policy'). The QAS Policy concerned ambulance officers employed by the Queensland Ambulance Service. [55] Section 20 of the QAS Policy relevantly provided: The QAS may discipline officer if the delegate... is reasonably satisfied that the officer has: a. performed the officer's duties carelessly, incompetently or inefficiently; b. been guilty of misconduct; ... [56] Section 10(a) of the QAS Policy defined 'misconduct' as 'disgraceful or improper conduct in an official capacity.' [57] Justice Daubney thought the observations of Kirby P in Pillai v Messiter (No 2) [15] were instructive in construing 'misconduct' in s 10(a). In Pillai v Messiter (No 2), Kirby P, in addressing the meaning of the expression 'misconduct in a professional respect' in the Medical Practitioners Act 1938, said: But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner. [58] Justice Daubney held that the decision of Kirby P assisted in the construction of 'misconduct' in the QAS Policy because: • the words 'disgraceful' and 'improper', while included in the definition in s 10(a) as alternatives, should not be regarded as wholly independent and each term should be read as giving colour to the other; and • the definition must be read in context in that 'misconduct' was listed as one form of 'unacceptable workplace behaviour' and which was expressly separated from other forms of sub-optimal workplace behaviour such as 'carelessness, incompetence or inefficiency'. [59] Justice Daubney went on to conclude: [26] These two considerations compel the conclusion that 'misconduct,' as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct,' to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers. 9Coleman v State of Queensland [2020] QIRC 32. -- 9 of 25 -- 10 [60] Section 187(4)(a) of the PS Act relevantly defines 'misconduct' as 'inappropriate or improper conduct in an official capacity.' However, s 187(1)(a) refers to the relevant employee performing '... the employee's duties carelessly, incompetently or inefficiently' as another disciplinary ground. [61] Because a public service employee's careless, incompetent or inefficient conduct is a separate disciplinary ground under s 187 of the PS Act, the analysis of Daubney J is of assistance in construing s 187(4)(a) of the PS Act. [62] In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee. (emphasis added, citations omitted) Questions for determination [35] Counsel for the department correctly identified the task of the Commission in this application namely, I must determine: • whether I am satisfied on the balance of probabilities that misconduct occurred; and if so, • whether dismissal was unfair. 1. Did the misconduct occur? [36] Having regard to the first of these questions, the letter informing Ms Augustine of her dismissal advises that the department relied on the substantiation of allegations one and three. I am now required to consider whether I am satisfied to the requisite standard that the alleged misconduct occurred. Allegation three [37] Allegation three relates to improper contact or attempt to contact Mr Koko in March of 2019. [38] With respect to allegation three, there is little contest from Ms Augustine. She concedes that she attempted to make contact with Mr Koko via a third party. The matter is not addressed in her statement filed in these proceedings. [39] In the outline of argument filed on 8 April 2020, counsel for Ms Augustine does not deny the breach, but otherwise observes the investigators accepted the contact with Mr Koko was for a legitimate work purpose and submits that, in effect, it is a breach that would not warrant dismissal 'if it was the only breach'.10 10 Applicant's outline of argument filed 8 April 2022 at paragraphs 7-8. -- 10 of 25 -- 11 [40] That submission is likely correct however, it was not the only breach and nor does the submission truly reflect the objective seriousness of her conduct in this regard. Considering the full context of Ms Augustine's actions, she concedes she attempted to contact Mr Koko in direct contravention of a direction given to her in her suspension letter.11 Significantly, Mr Koko was a direct eyewitness to the incident on 28 November 2018 and his evidence was highly material to both the prosecution of the police matter and the subsequent investigation of the disciplinary matter by the department. [41] Ms Augustine gave evidence under cross-examination that she was aware of the direction not to make contact with anyone other than through a nominated contact person. When pressed as to why she contravened this direction, she alluded to suffering trauma or stress at the time.12 [42] I note that no medical evidence was supplied to support her assertion of being in a traumatised state. I do not accept that there would be any. If Ms Augustine had been so affected in terms of her mental health when she contravened the direction, I consider that, in all probability, she would have relied on that more prominently in her show cause response. But she did not, and I find this excuse implausible. [43] In the circumstances, I am satisfied with respect to allegation three that Ms Augustine's conduct in attempting to contact Mr Koko was deliberate and in direct contravention of a direction not to make such contact. Ms Augustine offers no reasonable excuse. I consider it was more than reasonably open to Mr Miller to reach this conclusion given Ms Augustine's concession. I am equally satisfied that it was misconduct within the meaning of section 187(1)(g) of the PS Act. [44] I note as an aside, that it is irrelevant that Ms Augustine did not ultimately make contact with Mr Koko or that it was (as she states) for a legitimate work purpose. Ms Augustine was well aware that Mr Koko was a witness to a serious incident for which, at the time of her attempt to contact him, she was being prosecuted criminally and was on suspension from her employment. [45] In the circumstances, I do not accept the attempts by counsel for Ms Augustine to downplay the conduct in relation to allegation three. On the contrary, I consider this contravention to be quite serious in the context of Mr Koko's status as a witness and the broader circumstances prevailing at the time. While it might not be conduct that would warrant termination of employment in isolation, in this particular context it takes on a far more serious hue. 11 T 1-92, l 21- T 1-93, l 46. 12 T 1-93, ll 39-42. -- 11 of 25 -- 12 Allegation one [46] In respect of allegation one, broadly, the allegation is that Ms Augustine engaged in inappropriate physical contact with Student T. The particulars of this allegation cover a series of sequential events that occurred on 28 November 2018, commencing with Ms Augustine admonishing Student T and another student for engaging in rough play or fighting. [47] The salient elements of those particulars are that Ms Augustine: i. grabbed Student T by the arm in the classroom to take him to the principal's office; ii. pulled Student T alongside her as she walked 40 metres to the principal's office; and iii. restrained Student T by both arms and used a manoeuvre to take Student T's legs out from under him, which resulted in him being slammed to the ground. [48] I will deal with each of these elements in turn, although collectively and individually each potentially amount to misconduct. Of these three elements or stages of alleged misconduct, the first was not the subject of any evidence in the proceedings other than that from Ms Augustine. Helpfully, Ms Augustine has provided a number of written accounts of the relevant events. Two of these accounts were relatively contemporaneous with the events and are now in evidence in these proceedings.13 [49] In her statement to Mr Hincks which is dated 29 November 2018,14 Ms Augustine appears to be responding to some rudimentary form of allegations in relation to the incident on 28 November 2018. [50] In her response to Ms Hincks in respect of the incident in the classroom, Ms Augustine says (emphasis added):15 I instructed him to stand while I held his upper arm. [51] My first observation with respect to the account Ms Augustine provides in this statement to Mr Hincks is the setting for this incident. Ms Augustine describes Student T as having been engaging in 'rough play' (as opposed to 'fighting') immediately before. While I note she suggests the children describe it as 'fighting', Ms Augustine seems quite clear in her observations of the conduct set out in Exhibits 2 and 3 that it is rough play. 13 Exhibits 2 and 3. 14 Exhibit 3. 15 Exhibit 3, page one, second last paragraph. -- 12 of 25 -- 13 [52] She uses the term 'rough play' twice in her account contained in her statement to Mr Hincks and again in Exhibit 2 (which is the behavioural records of Student T). Both of these documents were created by Ms Augustine within 24 hours of the incident. [53] Yet, in all the subsequent accounts of this event, she describes the boys' conduct as 'fighting' and even 'fist fighting' in her statement before the Commission. She adds further in her statement that is before the Commission that two other students were hiding behind her because they were scared. 16 [54] There is a stark contrast in these accounts from Ms Augustine. In her evidence before the Commission, Ms Augustine gave evasive and unclear responses when questioned on the distinction between the terms 'rough play' and 'fighting'. She appeared to be saying that she considered that they were synonymous terms,17 but I doubt that she genuinely believes that. My observation of Ms Augustine was that she was prone to giving self- serving accounts of events and quite prepared to embellish or obfuscate where it suited her narrative. I consider the change in the terminology has been adopted by Ms Augustine in her later accounts of events in an attempt to embellish the risk of physical violence allegedly posed by Student T and thus potentially justifying her conduct. [55] Had there been a genuine fist fight - especially one so violent it was evoking fear in other students as Ms Augustine now contends - those matters would in, all probability, have been foremost in her mind when she recorded her accounts contemporaneously in both the behavioural records and the statement to Mr Hincks. It is entirely implausible that those vitally relevant 'facts' would only emerge late in the disciplinary process. [56] While I am prepared to accept that Student T was verbally abusive and defiant at the relevant time, I do not accept that Ms Augustine genuinely had a concern that he was, or was likely to, suddenly become physically violent or that he posed any immediate risk to anyone. [57] Further, if Ms Augustine had truly considered that he had been fighting, I would have expected that such conduct would have attracted an immediate trip to the principal's office. Instead, her own evidence is that she directed Student T and the other student to take their seats. Student T was subsequently taken to the office for the (seemingly) less serious conduct of swearing at her. [58] Given Ms Augustine's extensive teaching experience and training over 22 years, I would have expected that she would have treated this conduct by Student T as an indicator that she needed to manage the situation carefully and to avoid unnecessarily antagonising Student T. It seems that even on her own account of events, she escalated the incident. 16 See Exhibit 1. 17 T 1-33, l 39 - T 1-34 l 42; T 1-73 ll 28-42. -- 13 of 25 -- 14 [59] In her statement to Mr Hincks on 29 November 2018 (Exhibit 3), Ms Augustine describes her physical contact with Student T in the classroom as occurring simultaneous with her direction for him to stand. [60] In her statement to the investigators on 20 October 2020, she described the direction to Student T to get up as immediately preceding the placing of her hand on his upper arm which, importantly, is followed by a direction for Student T to get up.18 [61] In her evidence before the Commission, Ms Augustine was vague and unclear as to the precise order of these events.19 [62] In all of the circumstances I prefer the contemporaneous account provided by Ms Augustine as set out in Exhibits 2 and 3, and also in her record of interview on 20 October 2020. [63] I am satisfied, having regard to the accounts provided by Ms Augustine on 29 November 2018 and 20 October 2020, that Student T was seated at his desk at the relevant time and, while being verbally abusive, he was denigrating Ms Augustine rather than threatening her. In all of her accounts of Student T's conduct at this time Ms Augustine never contends he was using threatening language.20 [64] Student T was presenting no risk of violence to anyone when Ms Augustine directed him to stand to accompany her to the principal's office. I am further satisfied (on her own account) that she made physical contact with him, either simultaneously or immediately after her direction for him to stand and to accompany her to the principal's office. [65] Given the circumstances immediately preceding this conduct, I consider that the physical contact of placing her hand on Student T's upper arm was inappropriate. [66] In the circumstances, where Student T was seated and swearing at her, there was no cause for Ms Augustine to place her hand on Student T. There was no suggestion in any of her earlier accounts (or in her statement to the Commission for that matter) that Student T was refusing to stand. Touching him in those circumstances was unnecessary and liable to antagonise him. [67] There was evidence of a clear policy and guidelines of the department and the school before me that deal with circumstances where physical contact with a student can be appropriate.21 Without descending in these reasons to a recitation of each of these, it is 18 Record of interview at paragraph 234. 19 T 1-36 l 7 – T 1-38 l 6. 20 See Exhibit 2 'Why you make us fight you fucken dumb fucken teacher' and also Exhibit 3 '…he had verbally abused me for the 2 nd time…' and also the record of interview dated 20 October 2020 at [234] '…why you make us fight you fucking dumb fucking teacher…' and also Ms Augustine's statement to the Commission (Exhibit 1) at paragraph 23 '…(Student T) swore at me and called me names…'. 21 See 'PH 2' to Exhibit 8. -- 14 of 25 -- 15 fair to say that the policy and procedures, on the whole, reflect a common-sense approach namely, that in dealing with a difficult student, physical contact in the form of restraint or force is only appropriate if it is to prevent harm to the student or any other person. [68] Even if Ms Augustine was wholly untrained and ignorant of the department and school policies on inappropriate physical contact, common sense and 22 years' experience as a classroom teacher should have caused her to appreciate that touching Student T in those circumstances was likely to provoke or antagonise him. [69] Beyond the evidence of Ms Augustine, there is little to no testimony as to the manner in which Ms Augustine then escorted Student T from the classroom to the principal's office. Ms Augustine describes in her record of interview that she elected to hold Student T by the arm as she walked him from the classroom to the principal's office because, as she asserts, he had a history of absconding. [70] There appeared to be no direct challenge from the department as to this justification by Ms Augustine for imposing physical restraint on the journey to the principal's office. There is no particular assertion from the department that this restraint would be improper in such circumstances (although there is no express support for it either). [71] Ms Augustine's account was that Student T walked calmly with her. The evidence of Ms Baira is starkly different. Ms Baira has been employed as a teacher aid and a teacher at the school campus since 1988. In her evidence, she outlines her observations of Ms Augustine and Student T approaching the principal's office. Ms Baira states she was standing at or near the doorway to the reception area of the principal's office when she observed Ms Augustine approaching with Student T. Ms Baira describes Ms Augustine has holding Student T roughly, near his armpits, like she was holding him up. Ms Baira further describes stepping out of the way of Ms Augustine and Student T as they entered the reception area and that Student T was struggling and kicking while Ms Augustine was holding him.22 [72] Having had the opportunity of observing both Ms Augustine and Ms Baira give their evidence in relation to this disputed factual scenario, I prefer the account of Ms Baira. [73] The suggestion by Ms Augustine that Student T was calmly walking alongside on the journey seems highly implausible given the preceding events and those that followed. I do not accept her account in this regard. [74] In the circumstances, while restraining a child likely to abscond might (in principle) seem an appropriate restraint, I am not satisfied that continuing to restrain a struggling child other a journey of 40 metres was consistent with de-escalation of the situation. Indeed, 22 Exhibit 9, paragraphs 22-23. -- 15 of 25 -- 16 I am not satisfied that Ms Augustine even ought to have attempted to undertake the task of escorting Student T to the principal's office at all. [75] Ms Augustine says that she did not seek to have someone from the office collect Student T from the classroom because, in her assertion, 'they never come when they are called'. This assertion was rejected by both Mr Hincks and Mr Koko. In any event, Ms Augustine had a teacher aide in the classroom with her. She does not explain why she did not assign the task to the teacher aide given, as she had stated, she and her class were very busy preparing for graduation. [76] Given the immediate history of antagonism between Ms Augustine and Student T, Ms Augustine's decision to personally take Student T to the principal's office has all the hallmarks of an impulsive and aggressive display of authority and power. In those circumstances, I consider her decision to restrain Student T on the journey to the principal's office was something she ought to have known would antagonise him and that was inappropriate or improper conduct within the meaning of section 187(4) of the PS Act. [77] The situation worsened after Ms Augustine arrived at the administration reception area adjoining the principal's office. The central aspect of the allegation from this point on is the manner in which Ms Augustine physically interacted with Student T and, in particular, whether she forced or slammed him to the ground (as alleged by some eyewitnesses) in an effort to get him to sit. [78] Ms Augustine's own contemporaneous accounts, which are in evidence before me and are unchallenged with respect to accuracy, are quite instructive. In her statement to Mr Hincks (Exhibit 3), Ms Augustine describes repeatedly telling Student T to 'sit down'. In her own words in that statement, she is still holding onto Student T while he is struggling or pulling away from her. She says that on her third attempt she let go of him. [79] Significantly, she then goes on to describe her fourth attempt to have Student T comply. She says: I asked him to sit and, while using my hand to lower him to a seating position, one leg was behind him as he was moving. Every time I took a step, he moved. He eventually sat on the floor. (Emphasis added) [80] However, in the behaviour records which are recorded at or about the same time, on 29 November 2018 (Exhibit 2), Ms Augustine's account of the same incident reads as follows: -- 16 of 25 -- 17 When I instructed you a fourth time, I managed to get you off balance and you sat. (Emphasis added) [81] In her interview with investigators on 20 October 2020, Ms Augustine describes the incident (at paragraph 338) as follows:23 I'm trying – I'm moving my feet to get him down. He eventually – probably after the fourth time, I could place him on the floor because he got a bit off balance, and I placed him on the floor. (Emphasis added) [82] And at paragraph 340 of the record of interview on 20 October 2020: He was moving. I was moving. Then I eventually did get to actually place him on the floor and it just happened that inertia – I could make him – you know, he sat on the floor. (Emphasis added) [83] However, by the time we come to the show cause response in June 2021 (and the spectre of dismissal has emerged), Ms Augustine's account is somewhat altered. In her show cause response, Ms Augustine says: …He displayed more violent, aggressive physical actions towards me by swinging his arms and moving his body side to side (as in a boxing stance). Whilst he was flailing, I lost my centre of gravity and accidentally tapped the back of his right calf with my foot. His right leg was slightly bent and, as a result, this caught us both off guard. The incident took place in a very confined space. Finally, as I am right-handed, I was able to hold his upper right arm with my left hand to direct him to be seated. There was no force used to have him sit. Student T chose to manoeuvre himself to the floor using his body weight, ending up on his side. (Emphasis added) [84] By the time of her show cause response, Ms Augustine's account has shifted from her leg or foot aiding her in placing Student T on the floor, to her leg 'accidentally' causing both of them to lose balance and Student T 'manoeuvring' himself to the floor. [85] Further, in a disturbing shift in Ms Augustine's account of events, the description of allegedly violent conduct by Student T emerges in graphic detail. This 'fact' is a glaring omission from all of her prior accounts of the incident. 23 See the record of interview dated 20 October 2020 attached to the statement of David Miller (Exhibit 13) as part of 'DM 2'. -- 17 of 25 -- 18 [86] In her statement filed in these proceedings (at paragraph 26) Ms Augustine continues the new theme of violence and describes the incident differently again as follows: After my fourth instruction, every time I took a step, Student T moved away. After moving around and trying to keep balance and protect myself from getting hit, and Student T moving around, we both became unbalanced. Eventually he was lowered to the ground and ended on his side. I tried to assist him to sit up, however, he pushed me away and just got straight back up. (Emphasis added) [87] In this latest account we have a continuation of the 'unbalanced' version of the events but now with an emphasis on 'protecting herself from getting hit'. [88] Ms Augustine's own accounts of the same incident are a moving feast which, over time, feature less and less responsibility on her part for Student T ending up on the ground. Yet even in her statement to the Commission she concedes 'he was lowered to the ground'. If that be correct, he could only have been 'lowered' by her. [89] Every account Ms Augustine has given contains some acknowledgment that she physically put Student T on the ground. Significantly, she acknowledges in: • the statement provided to Mr Hincks on 29 November 2018, • the record of interview, and • in the response to the show cause, that it was the placement or position of her leg that caused Student T to eventually be placed on the floor. [90] Further, in evidence before the Commission, when asked if Student T would have fallen to the floor if she had not been in a tussle with him, she said, 'No'.24 [91] Mr Hincks has attested to seeing what he considered was Ms Augustine deliberately trip Student T in this tussle, immediately before Student T fell to the floor. It was put to him in cross-examination that he saw no such thing. He maintained his position. The line of cross examination was rather futile because Mr Hincks' observation is entirely consistent, to a large extent, with Ms Augustine's own account of events, that is, that her leg caused Student T to fall. [92] The only significant distinction in the accounts of Ms Augustine and Mr Hincks is that Mr Hincks says the trip was deliberate. [93] In my view, whether the leg was behind or in front, or whether it was deliberate or not, is ultimately irrelevant. The fact is that Ms Augustine became engaged in a tussle with 24 T 1-101, ll 34-41. -- 18 of 25 -- 19 Student T. It was a physical tussle during in which the student became unbalanced and ended up on the ground. The tussle occurred in a confined space according to Ms Augustine (in her show cause response) where even she has indicated (in her show cause response) that she was injured by bumping her leg on the furniture that was in close proximity to where the tussle occurred. [94] Putting to one side the unsubstantiated assertion that Student T hit his head when he fell, the risk that he could have hit his head was very high given the tussle occurred in a confined space populated by items of office furniture. [95] Whether the tripping of Student T was deliberate or whether it was reckless hardly makes any difference to the seriousness of Ms Augustine's conduct in that moment. It was, at its best, seriously negligent to engage in a tussle at all, let alone in a confined space. [96] The only way that such conduct could be justified in the context of the policies on physical intervention (or at all) would be if Ms Augustine was genuinely attempting to prevent harm to the student, herself, or somebody else. [97] In her early accounts of the incident, Ms Augustine does not suggest that Student T posed any risk of harm to her or anyone. In the behaviour records (Exhibit 2) Ms Augustine describes Student T's conduct. Her description is one of insolence and disobedience. She recorded the category of behaviour at the time as 'physical misconduct/verbal misconduct'. Evidence from Mr Hincks about the electronic recording of information on behaviour record forms confirms that categories of behaviour that could be selected from a drop-down box include 'Defiant/ threats to adults.'25 Further, having regard to Exhibit 2 it is clear that Ms Augustine has previously used that category in relation to Student T.26 [98] In her statement to Mr Hincks on 29 November 2018 (Exhibit 3), Ms Augustine's description of the incident does not make any mention of any perceived threats or violence, but rather describes a child physically resisting her command for him to sit. [99] In her record of interview that was undertaken on 20 October 2020,27 in direct response to a question about whether Student T posed a danger to himself or to Ms Augustine, Ms Augustine responds as follows (at paragraph 456): He was posing a danger to himself and – and me, because he was thrashing around. You know, he just didn't – he just – he didn't comply. From past experience with Student T, if you ask him to sit, he wants to stand. So when I'm asking him to sit in a stern – stern but fair manner, he refused. And every time I asked him more to sit and I tried to get him to sit, the more aggressive and angry he got. (Emphasis added) 25 T 2-36, ll 24-44. 26 See entry in Exhibit 2 dated 9 March 2018. 27 See 'DM 2' to Exhibit 13. -- 19 of 25 -- 20 [100] The description she gave to the interviewers is not one of a child who is threatening violence, but of a child who is actively resisting a physical effort to make him sit, and who is becoming increasingly agitated by Ms Augustine's persistent commands. [101] However, by the time Ms Augustine is responding to the show cause letter, she introduces quite graphic descriptions of violence displayed by Student T (presumably to justify her conduct). [102] As I noted above, in her show cause response letter Ms Augustine says: Student T refused to listen and sit, and continued the swearing and use of vile, offensive and abusive language. He displayed more violent, aggressive physical actions towards me by swinging his arms and moving his body side to side, as in a boxing stance. (Emphasis added) [103] Ms Augustine also tried to invoke the suggestion of impending violence on the part of Student T by making reference to her decision to take him into the principal's office to avoid him bullying younger students who were sitting in the waiting area. Again, this was a 'late addition' to her account of events where earlier accounts explained her decision to go into the principal's office merely because the reception area was crowded.28 [104] I find it utterly implausible that Ms Augustine would not have referred to these direct and graphic threats of violence in all of her previous earlier accounts of the incident. The introduction of these assertions in the show cause process, in my view, is clearly another example of Ms Augustine's propensity for embellishment, used in an attempt to justify her actions when confronted with the disciplinary consequences of the events that took place that day. [105] I consider Ms Augustine's earlier accounts and her account to the investigators, her most accurate descriptions of what really occurred. The reality (as best depicted by these accounts) is that Ms Augustine was anxious, frustrated and angry with Student T. She describes her emotions as 'heightened', 'impatient' and 'frustrated' in her contemporaneous account.29 [106] Ms Augustine became determined to impose her will on the child notwithstanding the child was resisting her physical attempts to have him sit. In all reality, if Student T was displaying aggression, it was because Ms Augustine persisted in her physical attempts to have him sit. In her own words:30 28 Compare Exhibit 3 '…there were no spare seats available…' with paragraph 24 of her statement (Exhibit 1). 29 See Exhibit 3 and paragraph 434 of the record of interview dated 20 October 2020. 30 See record of interview at 'DM 2' to Exhibit 13, at paragraph 456. -- 20 of 25 -- 21 The more I tried to get him to sit, the more angry and aggressive he got. [107] Far from intervening because Student T was being aggressive, the fact is that Student T was being aggressive because Ms Augustine continued intervening. [108] Ms Augustine had every opportunity to desist and to de-escalate. Alternatively, on her own evidence, there is no dispute that she had at least four other members of staff literally within metres of her who she could have called upon for assistance in that moment. Instead, she persisted until the child was on the ground in accordance with her command and despite the child's increasing agitation. [109] On her own evidence, and in her own account of events, Ms Augustine discloses that she engaged in a physical intervention with a child of a type that was, objectively, unjustified and most certainly inappropriate. [110] For completeness I would add that witnesses called by Ms Augustine (see Exhibits 6 and 7) provided largely irrelevant or insignificant evidence and did not in any way mitigate the effect of Ms Augustine's own admitted conduct. They were not eyewitnesses to the relevant incident nor were their observations in any way capable of offsetting the seriousness of Ms Augustine's conduct. [111] I am satisfied that a conclusion that Ms Augustine engaged in misconduct within the meaning of s 187 of the PS Act was reasonably open to Mr Miller when he decided to terminate Ms Augustine's employment. On the evidence of Ms Augustine alone, I am similarly satisfied on the balance of probabilities that Ms Augustine engaged in misconduct within the meaning of section 187 of the PS Act. [112] To be clear, I am satisfied that: • the conduct in the classroom, • the conduct on the way to the principal's office, and • the conduct in the principal's office, either collectively or individually, amounted to misconduct within the meaning of s 187 the PS Act. Department's witnesses [113] Notwithstanding observations that I made to counsel for Ms Augustine at the close of Ms Augustine's evidence,31 there followed in these proceedings, extensive cross- examination of the witnesses to the incident in the principal's office. No doubt buoyed 31 T 2-11 to 2-12; T 2-103. -- 21 of 25 -- 22 by the findings of the Magistrate in the criminal proceedings, counsel for Ms Augustine sought to exploit inconsistencies in accounts provided by the department's witnesses to the incident, both in their statements given to police and their evidence given to the Commission. [114] The purpose of this cross-examination (presumably) was not so much to diminish the damaging effect of Ms Augustine's own admissions (because it could not) but to support a submission that the conclusions of Mr Miller (who relied on these witnesses) were unreliable. In circumstances where Ms Augustine's own accounts of events are all that I consider the decision maker would require to be reasonably satisfied of misconduct, reliance on inconsistent statements can hardly have made any material difference to the outcome. In any event, to the extent there are inconsistencies, I do not consider them significant. [115] I do not consider it necessary for me to descend into a description of the minutiae of the evidence provided by witnesses for the department, and in particular the witnesses who were eyewitnesses to the incident in the principal's office. Whether Ms Augustine 'slammed' Student T to the floor (as they say) or 'placed' him on the floor (as she says) is largely irrelevant in my view. [116] In all of the circumstances of this matter, 'placing' him on the floor in the midst of a tussle (in the circumstances Ms Augustine has herself described) makes out entirely the factual basis for a finding of misconduct. While her admitted conduct might not rise to a level of criminality (as the Magistrate decided) it most certainly reaches the standard of misconduct within the meaning of s 187 of the PS Act. [117] Consequently, the evidence of the department's witnesses has little to no relevance to a consideration of whether Ms Augustine engaged in misconduct, other than to broadly support findings of fact about the incident that are already established by Ms Augustine's own admissions. To the extent that there were any inconsistencies in the evidence of the eyewitnesses called by the department, I consider that the reliability and credit of those witnesses is not undermined. The fast pace of the incident, the slightly different points of observation that each of them had, and the effluxion of time will largely account for discrepancies in their testimony. [118] Importantly, what was consistent across all of their evidence is that they observed Ms Augustine in a tussle with Student T, and Student T either falling to the floor or getting up after having fallen on the floor.32 While each of them has placed some subjective interpretation on their observations, the critical facts that each attest to are largely consistent with the evidence of Ms Augustine. 32 Exhibit 8 paragraphs 37-45, Exhibit 9 paragraphs 23-29; Exhibit 10 paragraphs 18-23; Exhibit 11 paragraphs 22-28. -- 22 of 25 -- 23 [119] The only real distinction is that Ms Augustine insists her actions were justified. Importantly, none of the eyewitnesses observing the incident regarded Student T as the aggressor or that Ms Augustine was at risk of being hit. [120] I have already rejected Ms Augustine's assertions of violence and risk posed by Student T but for completeness, to the extent her account differs from the department's eyewitnesses, I prefer the evidence of the eyewitnesses. My observation of each of them giving evidence before the Commission was that they were each reliable and honest in their account of events. I cannot say the same for my observations of Ms Augustine. 2. Was the dismissal unfair? [121] The only remaining matter for my determination is whether the dismissal was harsh, unjust or unreasonable. Ms Augustine has argued unfairness for a number of reasons. One reason, it has been submitted, is that the department failed to give proper regard to the findings of the magistrate in the criminal matter, in particular the finding as to the alleged inconsistency in the testimony of the eyewitnesses. For reasons already set out, I reject this submission. [122] There is no evidence that Mr Miller, the ultimate decision maker, ignored the Magistrates Court finding. He certainly had regard to it and the relevant supporting documents, but as he properly said in giving evidence before the Commission and in his statement, he was considering the matter in a much broader and different setting, namely, in the context of the employment relationship and the obligations of Ms Augustine.33 [123] Throughout her statement and in her evidence, Ms Augustine complains variously that her training and induction at the school were in some way inadequate, that the support from other staff was lacking, that documents in respect of behavioural management and other policy documents were inadequate, and that the conditions in which she worked included threats of violence. [124] In all of her material and her evidence Ms Augustine very much paints herself as a victim of departmental ineptitude. Ms Augustine even seeks to cast blame on, and vilify Student T with her dubious descriptions of his threats of violence, in circumstances where she is a middle-aged woman with 22 years teaching experience, and Student T was a year six student at the relevant time. [125] Notwithstanding her extensive criticism of her colleagues, Student T and the department, Ms Augustine never quite managed to link all of these matters to the incident on 28 November 2018 in any way that mitigates or justifies her conduct in any way, or at all. 33 T 3-12, ll 16-30; Exhibit 13 paragraph 49. -- 23 of 25 -- 24 [126] What is entirely absent from Ms Augustine's responses at every point in this matter, from the first account of the incident that she provided to Mr Hincks on 29 November 2018, right through until her evidence before the Commission this week, is any indication of remorse, contrition or (importantly) insight into the seriousness of her behaviour. Even now, Ms Augustine considers her conduct was appropriate and justified in the circumstances. [127] Given the findings in respect of her conduct that are able to be reached on Ms Augustine's own account of the incident, her continued lack of insight is extremely concerning, especially given that Ms Augustine has indicated that she wishes to return to classroom teaching. [128] The fact that Ms Augustine has 22 years of unblemished service with the department is a compelling fact in her favour. But I return again to the comments I made earlier that a harsh effect alone on an employee is not of itself conclusive of unfairness. A decision must be balanced against the gravity of the employee's misconduct.34 [129] One could readily imagine how any teacher in the circumstances confronting Ms Augustine on 28 November 2018, in the heat of the moment, might have their judgment impaired and might have acted impulsively and improperly. I can easily anticipate a scenario where a teacher, having made such an error, might be afforded a second chance in the right circumstances. But those circumstances would have to include, at a minimum, demonstrated contrition and insight into the improper nature of their conduct. [130] By contrast, Ms Augustine has never once acknowledged how improper her actions were. [131] Physical violence towards children in a school environment is utterly unacceptable. Children are incredibly vulnerable and the potential for long term emotional harm is enormous. Notwithstanding this, I note that the department policies set out clear and practical guidance informing teachers when physical intervention can legitimately occur. It is certainly not the case that teachers are defenceless against genuinely violent students. [132] Further, having regard to her 22 years' experience and the evidence of training records in evidence before me,35 Ms Augustine must have been aware of the limits of appropriate conduct, whether from existing policies or others like them that have applied to her in the past. In any event, no teacher should require the explicit guidance of a policy to know that it is inappropriate to physically tussle with a child when de-escalation and/or assistance from colleagues is immediately available. 34 Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20, 28. 35 Exhibit 14. -- 24 of 25 -- 25 [133] While there will always be exceptions for the use of physical intervention and while I accept that Student T presented significant challenges to Ms Augustine, the circumstances of this case provided no justification for the actions that Ms Augustine took. Far from mitigating her situation, it is instead perplexing that Ms Augustine's 22 years of teaching experience did not provide her with the skills and the professionalism to have dealt with this difficult scenario appropriately or at the very least, demonstrate insight into her errors after the fact. [134] Had Ms Augustine admitted from the outset that her conduct was inappropriate and a result of a momentary lapse of judgment in the midst of a stressful situation, she may have been entitled to the benefit of some sympathy. But even today Ms Augustine is entirely unapologetic for her inappropriate conduct. [135] As to the question of the delay in the show cause and termination process, I am satisfied that it has not rendered the dismissal unfair. While the delay is significant, I note that there were intervening factors (including the emergence of a global pandemic). No particular complaint is made about the delay by Ms Augustine and further, it is not a case where the department's submission about loss of trust is undermined by for example, Ms Augustine continuing to teach throughout the relevant period. I note that Ms Augustine was stood down on full pay and as such she suffered no financial hardship. [136] For all of these reasons, I consider that the dismissal was fair in all of the circumstances. Order [137] I make the following orders: 1. The application is dismissed; 2. Any application for costs must be made within 21 days of 13 May 2022; 3. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld), that any reference to the School and the Students, the subject to these proceedings, is de-identified; and 4. Pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld), I direct that all documents and Exhibits in this matter be withheld from release or search. -- 25 of 25 --