William Hart v Director General of Education and Training [2005] NSWIRComm 1058

Industrial Relations Commission of New South Wales

CITATION: William Hart v Director General of Education and Training [2005] NSWIRComm 1058

APPLICANT William Hart PARTIES: RESPONDENT Director General of Education and Training

FILE NUMBER(S): 829 of 2004

CORAM: Macdonald C

CATCHWORDS: Unfair dismissal application - annulment of teacher's probationary employment - allegations of medical unfitness, misconduct and criminal offences - application dismissed

Industrial Relations Act 1996 LEGISLATION CITED: Teaching Services Act 1980 Road Transport (Driver Licensing) Act 1998

HEARING DATES: 02/22/2005; 02/23/2005; 04/20/2005

DATE OF JUDGMENT: 06/10/2005

APPLICANT William Hart Unrepresented LEGAL REPRESENTATIVES: RESPONDENT Mr J Fernan, barrister Mr P Quinn (DET)

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Commissioner Macdonald

10 June 2005

Matter No IRC 829 of 2004

WILLIAM HART v DIRECTOR GENERAL OF EDUCATION AND TRAINING

Application by William Hart re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1058

1 The Commission has before it an application by William Hart ("the Applicant") for unfair dismissal against the Director General of Education and Training ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 2 March 2004.

The Applicant appeared and was represented by the New South Wales Teachers' Federation ("the Union"), in the person of Mr N Dawson.

The Respondent was represented by Mr P Quinn.

3 Further appearances before the Commission occurred on 31 March and 7 June. On that last date, the matter was set down for a Hearing in September. As well, the Applicant was to file his witness statement by 9 July 2004. This did not happen. 4 On 16 August, the Applicant's legal representative (MacMahon Associates) filed a Notice of Ceasing to Act. This firm was engaged by the Union and no further appearance was entered by the Union. 5 The matter was re-listed on 15 September. No appearance was entered by the Applicant and Mr Fernan, barrister, appeared for the Respondent.

The Commission advised of its own initiative in vacating the Hearing set down in September as the Applicant had not filed his witness statement and indeed the Commission had been unable to make any contact with the Applicant.

Mr Fernan sought to have the matter struck out. The Commission declined to do so at that stage as the Commission needed to satisfy itself as to the reason for the non-attendance of the Applicant. Subsequently, the Commission received correspondence on the letterhead of New England Area Health Service to advise that the Applicant had been an inpatient and outpatient on and around 15 September. 6 The matter was listed for 28 September and the Applicant said he wished to proceed to a Hearing.

A filing program for witness statements and any documentary attachments was put in place. The Hearing was to be held in Narrabri Court House. 7 The Applicant filed a one page witness statement and a few documents attached thereto. The Respondent put on three witness statements and extensive documentary material.

The Applicant did not file any evidence in reply. 8 Subsequently, the Applicant advised he had moved out of Narrabri to Sydney and he sought the transfer of his Hearing to Sydney. The Respondent did not object. 9 The Hearing was held in Sydney on 22, 23 February and 20 April 2005.

The Applicant was unrepresented and called himself as a witness.

The Respondent was represented by Mr Fernan, barrister and Mr P Quinn. The Respondent called the following witnesses: Peter Phelps - Senior Manager Staff Efficiency and Conduct Unit Ian Carlin - Principal of Narrabri High School Brent Mason - Industrial Arts Teacher of Narrabri High School.

BACKGROUND

10 The Applicant began as a probationary teacher at Wee Waa Hill High School on 5 February 2003.

On 10 February 2003, the principal of the school raised concerns about the Applicant's health and directed him to HealthQuest for an assessment. The assessment was that the Applicant was not fit for normal duties and should proceed on sick leave.

(The Applicant has been a diabetic for some 50 years and is insulin dependent. Shortly after commencing his probationary employment, he suffered hypoglycaemic attacks.)

The Applicant was transferred to Narrabri High School where the Respondent alleged that extra medical support was available.

The Applicant recommenced teaching around 1 May and suffered a hypoglycaemic attack on 6 May. He was then not able to work. The advice from HealthQuest was that he was to remain on sick leave until the Applicant got his diabetes under control and did so for a period of three weeks.

The Applicant remained on sick leave and HealthQuest then required evidence that the Applicant had his diabetes under control for a period of three months.

On 16 June 2003, a doctor certified the Applicant fit to return to work.

On 2 September, the Applicant was allegedly prescribed "beta blockers" by a local doctor in Narrabri.

The Applicant attended HealthQuest on 3 September. (He suffered two further hypoglycaemic attacks on 8 September and 11 September. Apparently, the Applicant later discovered that "beta blockers" mask low blood sugar readings.)

On 5 September, Ian Carlin (principal of Narrabri High School) referred an incident involving himself and the Applicant to the Police.

On 26 September, Ian Carlin submitted a Principal's Report to the District Superintendent in which he referred to the Applicant's "extremely erratic behaviour", attendance issues and his inability to manage his health condition. The purpose of the Report was for an assessment to be made as to the Applicant's efficiency for the position held by him. Mr Carlin made a negative Report about the Applicant's suitability.

On 8 October Dr Lake of Wee Waa opined that the Applicant's earlier problems arose from a change in insulin medication.

On 9 February 2004, the District Superintendent forwarded a copy of his Report and recommendation to Mr K Schipp of the staff efficiency and conduct unit supporting Mr Carlin's decision.

On 20 February 2004, the Respondent wrote to Mr Hart providing him with 14 days notice to show cause why Mr Hart's appointment should not be annulled. Mr Hart requested an extension to respond and he responded by 20 March per the Union's solicitor.

SUBMISSIONS For the Applicant 11 Mr Hart, the Applicant, made submissions about three issues: (a) the annulment of his employment by the Respondent; (b) his alleged assault of the school principal, Mr Carlin; and (c) his traffic convictions. 12 As to (a), Mr Hart spoke about his medical well-being which was relied upon by the Respondent to annul his employment: · He had had only two hypoglycaemic attacks during the relevant period in question. · His treating doctor at Wee Waa was an excellent doctor but when Mr Hart was transferred to Narrabri High School, the treating doctor was not as good. · He had had a hip operation in July 2003 and the operation was successful - he had been cleared for teaching by the surgeon. · He referred to a medical report from the Tweed City Medical Centre of 1 August 2003, saying that Mr Hart's diabetes control was now good and he had been educated in eating regularly. Further, the report said he had not had any hypoglycaemic episodes in this period and seemed to have made a full medical recovery from his hip operation. The report concluded that it appeared that there was no medical reason why Mr Hart cannot continue his duties as a teacher. · Mr Hart rejected the claims of the Narrabri GP (Dr Maroney) and the school principal (Mr Carlin), to the effect that he was psychiatrically and psychologically unfit to teach. He referred to the psychiatric assessment carried out by HealthQuest that he showed no evidence of any cognitive dysfunction or major psychiatric disorder. · He also rejected the claims of Mr Carlin, school principal, that students had made complaints about him as he had only taught for four days during the relevant period. · As to his alleged assault on the school principal, Mr Carlin, this was denied by the Applicant. He noted that Mr Carlin had not called the police even though he said he was assaulted. · As to his traffic convictions, he had appealed these convictions but he did not attend the appeal as it was in Moree and he had then taken up residence in Sydney. The convictions are criminal in nature and he had pleaded guilty in the court below to some of the charges. · The Applicant sought reinstatement and payment for lost remuneration. 13 At the conclusion of his final submissions, the Applicant advised that he would not stay in court to listen to the submissions on behalf of the Respondent. He said he would be sick if he had to listen to those submissions.

The Commission explained the right of reply process to the Applicant and hence his need to stay - listen - take notes and put a submission in reply. The Applicant still declined to stay in my court as to do so would turn his stomach upside down. He then waited outside and came back after the conclusion of the Respondent's submissions. (Tr 20 April - pp 14 to 16) For the Respondent

14 Mr Fernan, barrister, put the submissions for the Respondent: · The Applicant was a probationary employee. · The Applicant's hypoglycaemic attacks caused the Respondent to have the Applicant's health checked by HealthQuest which found that the Applicant was unfit to teach until his diabetes was under control. It was eventually held that there was no significant trend of improvement in his diabetic control. Accordingly his permanent employment could not be recommended. The Applicant's appeal before the HealthQuest appeals committee against that recommendation was unsuccessful. · There was the statement from Mr Carlin, school principal, that he had been assaulted (head-butted) by the Applicant. Mr Carlin was also threatened by the Applicant's two German Shepherd dogs. (Mr Carlin and the Applicant had nearby flats having a common ground and the dogs were within that common ground, unrestrained). · The Applicant was placed on notice about the possibility of his annulment as a teacher and given an opportunity to respond. The Applicant's Union became involved in the matter. · The Applicant also had a number of local court matters, of a serious nature, to which the Applicant had pleaded guilty to some offences. Section 86 of the Teaching Services Act 1980 sets out that if an officer is found guilty of an offence that's punishable either on indictment or on a summary conviction or imprisonment for a term of 12 months or more, the Director General for the Respondent may impose a punishment. In the case of a probationary employee, this punishment may be annulment of appointment. At least two of the Applicant's offences have penalties of imprisonment in excess of 12 months. Although the Applicant had appealed his convictions, he had not attended the appeal hearing and the convictions stood.

Mr Fernan submitted that matters such as the foregoing justified the annulment of the Applicant's employment.

Applicant in Reply

15 At the conclusion of Mr Fernan's submissions, the Commission went off record in order to have the Applicant return to my court room and give his submissions in reply. To that end, the Commission advised the Applicant of matters raised by Mr Fernan in his submissions.

Mr Hart's reply included a denial that he had head-butted Mr Carlin.

He agreed he had been disqualified as a driver, but denied he had been convicted of driving under the influence. He agreed he had driven a car whilst disqualified.

He denied he had upset school teachers and students because of his manner and pointed out he had only been teaching for four days.

CONSIDERATION

16 The Applicant was appointed as a probationary employee on 5 February 2003 to Wee Waa High School.

However, his probationary employment was annulled on 26 August 2004 by the Deputy Director-General (Corporate Services). The Applicant's name was placed on the Never To Be Employed List. The grounds for doing so were: - · The HealthQuest determinations of 22 May, 25 June and 27 September 2003 and the HealthQuest Appeals Committee finding that the Applicant was unfit for permanent employment. · The Applicant's alleged misconduct. · The criminal charges that the Applicant was convicted of and sentenced in Narrabri Local Court.

The Commission will now consider the above issues relied upon by the Respondent to annul the Applicant's employment. The HealthQuest Determinations

17 The Applicant began his employment as a probationary teacher on 5 February 2003 - at Wee Waa High School. By his own account he only taught for four days. The reason for his absence was his medical record - hypoglycaemic attacks and a hip operation.

The Respondent relies upon the hypoglycaemic attacks and what flowed from them to support its position in annulling the Applicant's employment. The Applicant said he only had two hypoglycaemic attacks and had been declared medically fit to resume duties. 18 Hypoglycaemia is a medical condition relating to having low blood sugar levels. If not checked, the falling blood sugar levels can result in loss of consciousness. 19 The chronology of the Applicant's medical conditions are set out below. Most matters listed below deal with his hypoglycaemic attacks and the view of HealthQuest as to the fitness of the Applicant to carry out his teaching:

(a) 5 February 2003 - Applicant began his employment as a probationary employee at Wee Waa High School. He suffered at least one hypoglycaemic attack. Mr Carlin deposed it was a " number of " such attacks.

(b) 27 March 2003 - The Applicant was referred to HealthQuest in consequence of the one or more attacks and on 27 March, HealthQuest advised that the Applicant was unfit to teach until such time that he had his diabetes under control for a period of three weeks.

This was the Applicant's first visit to HealthQuest.

(c) 28 April 2003 - The Applicant had been transferred to Narrabri High School on advice from HealthQuest, as Narrabri was a larger town with more adequate medical support available. (The Applicant questioned the wisdom of this transfer as he claimed that his treating doctor at Wee Waa had a better understanding of his medical condition).

The Applicant was to resume teaching on 28 April at Narrabri but did not do so due to a cut to his leg.

(d) 30 April 2003 - The Applicant started his teaching but, as it turned out, he only did so for a few days.

(e) 6 May 2003 - The Applicant was found unconscious at school. An ambulance was called and he was taken to hospital. The Applicant was on sick leave from 6 May.

(f) 21 May 2003 - The District Superintendent, Moree, directed the Applicant to remain on sick leave as he did not have his diabetes under control.

(g) 22 May 2003 - HealthQuest further advised that the Applicant would not be fit to return to work until he proved that his diabetes was under control for at least three months. (The expiry date would be 22 August).

(h) 25 June 2003 - HealthQuest made a further recommendation that the Applicant was currently unfit to teach. It was uncertain when he would be fit to teach. This would be a matter for the employer to decide. (exhibit 11 - attachment 13: Healthquest Report of 22 September 2003)

(i) 17 July 2003 - The Applicant had a hip replacement operation.

(j) 29 July 2003 - Mr Carlin, school principal of Narrabri, referred the Applicant to HealthQuest as Mr Carlin alleged that the Applicant had frequently demonstrated major mood shifts and erratic behaviour.

(k) 3 September 2003 - HealthQuest carried out a medical and psychological assessment of the Applicant. This was done in conjunction with information from the Applicant's treating doctor, Dr Maroney. This information was received on 17 September.

During his assessment, the Applicant advised that he had not had a hypoglycaemic attack since May 2003. The Applicant referred to the certificate of Dr Mikus whom the Applicant had seen on 30 July. The certificate is dated 1 August and states that the Applicant is fit to resume duties.

However, Dr Maroney's report advised HealthQuest that the Applicant had many hypoglycaemic attacks and the most recent was 8 September, when an ambulance officer attended.

The HealthQuest Report of 22 September 2003, cleared the Applicant of any cognitive dysfunction or any major psychiatric disorder. From a psychological point of view there was no reason why the Applicant could not resume his duties.

However, the Recommendation of HealthQuest (per Dr Casolin, medical director) was adverse for a return to duties because of the Applicant's " poorly controlled insulin dependent diabetes ". Dr Casolin said that the Applicant's " permanent appointment cannot be recommended due to medical reasons ".

(l) 8 September 2003 - As indicated in (k) above, the Applicant had a hypoglycaemic attack. This was witnessed by Mr Carlin at the Bi-Lo supermarket. Ambulance officers attended the scene.

(m) 11 September 2003 - Mr Carlin heard cries for help around 9.30 pm coming from the flat of the Applicant who denied under cross-examination he had had a severe diabetic attack. An ambulance was called by Mr Carlin.

(n) 22 September 2003 - The date of the HealthQuest Report and Recommendations of Dr Casolin.

(o) 25 September 2003 - Mr Carlin prepared a Principal's Report for the District Superintendent, Moree. He referred to the Applicant's medical condition and other incidents. Mr Carlin recommended that the Applicant's efficiency as a teacher be determined as not satisfying requirements for the position held.

(p) 26 September 2003 - The District Superintendent wrote to the Applicant with a copy of the Principal's Report and advised that it was proposed to determine the Applicant's efficiency on 27 October as not satisfying requirements for the position held.

The Applicant had the right to request a reconsideration of the proposed determination and he exercised that right by letter of 24 October 2003.

(q) (?) November 2003 - HealthQuest wrote to the Applicant, per Dr Gardner, to advise that the appeal by the Applicant to the HealthQuest Appeals Committee ("HAC") was unsuccessful.

The Commission notes that this letter said that HAC was of the opinion that there was " no new medical information to warrant overturning HealthQuest's previous opinion ". (exhibit 11 - attachment 14) 20 The Commission will now consider the foregoing evidence as to the Applicant's medical condition. The starting point for that consideration is the defence put forward by the Applicant's union and the relevance of the extracted quote in the preceding paragraph 19(q) about no new medical information. 21 The Applicant engaged the services of his union (the Teachers Federation of NSW) and that union had its solicitors take up, for a while, the plight of the Applicant. The union's solicitors also made the point that the Respondent sought to rely on a medical report that was then six months old.

Further, the solicitors stated that the Applicant had a medical certificate which said the Applicant was fit to teach. This certificate is dated 27 January 2004. This certificate is referred to in the statement of Mr Phelps, an officer with the Respondent. (exhibit 11 - paragraph 20) The certificate goes into detail about the Applicant's diabetes - naming his medication and the units of dosage. It names drugs previously used by the Applicant in early 2003 and which were associated with poor diabetes control but he had ceased using those drugs. The certificate concludes as to the Applicant's diabetes: " As stated his blood sugars currently range between 4.6 and 9.3 and his last HBA1C showed a value of 7.4. I would regard his diabetes as being under good control so I have left his current schedule unchanged. Currently he is teaching and I can see no reason why he cannot continue with that employment. I will leave his follow up to yourself but happy to review him at any stage you thought necessary ."

Given this detail about the Applicant's diabetes and the finding by Dr G Hibbard as to the Applicant's fitness to teach, what then is the Commission to make of a prior medical recommendation of Dr Casolin of 22 September? The medical certificate of Dr Hibbard is dated four months later and the inference is reasonably open that in that four month period, the Applicant had managed to put his diabetes under good control.

On one view there is a conflict in the medical evidence and how should the Commission determine that conflict? Given that the Respondent's letter (date unknown) of November allows for the possibility of new medical evidence, then there was new evidence as to the Applicant's diabetic condition produced in the letter of Dr Hibbard (27 January 2004) and the Respondent was aware of this evidence but seems not to have acted on it.

On another view, there is no conflict and the later medical evidence (of a detailed kind) prevails.

In any event, the Commission declines to hold that the decision of the Respondent to annul the employment of the Applicant on medical grounds is a safe decision. The Applicant's Alleged Misconduct

22 By letter of 16 March 2004, (exhibit 11 - attachment 24), Mr Phelps for the Respondent wrote to the Applicant about certain allegations and asked for a response to same. Those allegations were that:

(a) he assaulted Mr Carlin;

(b) he verbally abused Mr Mason; and

(c) he name-called a certain person.

The Applicant responded to the above and denied these allegations (exhibit 11 - attachment 25) 23 As to the assault allegation, it was said that the Applicant had threatened to kill Mr Carlin and that the Applicant had head-butted Mr Carlin.

Mr Carlin is the Narrabri school principal where the Applicant was employed. The alleged misconduct occurred out of school hours and out of the school yard - on 10 February 2004. Mr Carlin and the Applicant lived in adjacent flats - having a common wall. There was a common ground for these dwellings. The Applicant was the owner of two German Shepherds. Apparently, Mr Carlin asked the Applicant to restrain the dogs when not in an enclosed yard. During the ensuing conversation, the said misconduct allegedly occurred.

Mr Carlin deposed he reported the matter to the local police and he obtained an interim AVO.

Under cross-examination, the Applicant denied he had head-butted Mr Carlin.

He attended the Narrabri Local Court in respect of Mr Carlin's application for an interim AVO and did not fight the application. He was subsequently interviewed by the police.

The Commission notes that there was no witness to this head-butting allegation.

The Commission notes that although an interim AVO was granted, no case law was presented to show that the granting of an interim AVO necessarily means, at law, that the conduct complained of (the head-butting), actually happened.

Taking the foregoing into account, the Commission is unable to make a finding as to this head-butting allegation. 24 As to the alleged misconduct concerning Mr Mason, it was said that the Applicant had verbally abused Mr Mason on 17 February 2004.

The verbal abuse was allegedly as follows: " you can tell him to go and get fucked "; " you can tell him to go and fuck himself "; " you can stick these (at least two fingers) up your arse " and " you're an ugly bald headed bastard ".

It would appear that the last three verbal descriptions were said in ear-shot of Mr Carlin, as he deposes he heard them. (exhibit 12 - paragraph 37)

Mr Mason was called as a witness by the Respondent. This statement was duly entered on the record (exhibit 13).

Mr Mason was handed over for cross-examination by the Applicant, who advised he had no questions for Mr Mason. Three times, I asked the Applicant if he had any questions to ask of Mr Mason but no questions were asked.

In not so asking and therefore not challenging the statement of Mr Mason, what then follows is that the Commission should draw the inference that Mr Mason's allegations are a true and accurate account as to what the Applicant had said. Thus, the Commission finds that the Applicant said: · "You can tell him (Mr Carlin) to go and get fucked" (exhibit 13 - paragraph 11) · "You (Mr Mason) can tell himself (Mr Carlin) to go and fuck himself" (exhibit 13 - paragraph 15) · "You (either Mr Mason or Mr Carlin) can stick these (at least two fingers) up your arse: (exhibit 13 - paragraph 16) · (Mr Mason is) "an ugly bald headed person". (exhibit 12 - paragraph 37)

The above language is to be seen in its context and having done so, the Commission takes the view that the Applicant intended to be offensive to both Messrs Carlin and Mason. The language was such as to strike at the working relationship between the Applicant and certainly, at least, Mr Carlin (the school principal). The language, its intent, and impact on the Applicant's working relationship with at least Mr Carlin, the school principal, was such, as to justify a finding by the Commission that the Respondent acted within its right as to this particular ground for dismissal in deciding to annul the probationary employment of the Applicant. 25 As to the third allegation, it was said that the Applicant, in a phone conversation with an officer of the Staff Efficiency and Conduct Unit (part of the Respondent's business), referred to the Staff Welfare Officer-Moree) as "a principal's arse-licker".

The Applicant denied making this allegation. The language is certainly of the kind that the Applicant would probably make - given the Commission's finding above about the language directed by the Applicant to Messrs Carlin and Mason. However, this particular officer of the Respondent was not called as a witness and the Commission declines to make a finding against the Applicant on this third allegation. The Applicant's Criminal Charges

26 Some time in April 2004 (date unknown), Mr Phelps wrote to the Applicant and raised a new matter with him and which matter had come to the attention of the Respondent. This new matter was the appearance of the Applicant in Narrabri Local Court on 26 March 2004, wherein the Applicant allegedly pleaded guilty to the following offences: · Negligent driving · Never licensed · Drive manner dangerous · Unlicensed x 2 · Uninsured · Unregistered · Drive while disqualified

Mr Phelps advised that he further understood that the above had been adjourned to Narrabri Local Court for sentencing on 26 May 2004.

Mr Phelps reminded the Applicant of his obligations under Section 20 of the Teaching Services Act 1980 to immediately notify the Director-General of the fact that he had been charged with a criminal office. Mr Phelps noted that the Applicant had failed to carry out this notification.

Mr Phelps noted that two of the above offences that the Applicant had pleaded guilty to on 26 March 2004 are serious criminal offences which carry a maximum penalty of imprisonment for 18 months.

Mr Phelps sought a response relating to the above and as to why the Applicant's employment should not be annulled. (exhibit 11 - attachment 28)

The Applicant responded in writing on 14 May 2004. He stated he was unaware that the Director-General was to be notified if a person is charged with a criminal offence. The Applicant did not respond whatsoever to the criminal offences, as listed above. The Applicant did provide information to Mr Phelps on 25 August 2004 as to the outcome of his court case. The Applicant's employment was annulled by letter dated 26 August 2004, pursuant to ss 48(2) and (4) of the Teaching Services Act 1980. 27 The Commission firstly notes that there is correspondence, under the letterhead of the Narrabri Local Court, confirming that the Applicant had pleaded guilty to the offences listed above. (exhibit 11 - attachment 26/27)

Secondly, the Commission then notes that under cross-examination the Applicant advised he had withdrawn his guilty plea and the matter was stood over until 27 July and then adjourned to 25 August 2004. Still under cross-examination, the Applicant initially advised he did not know if he had pleaded guilty to the above listed offences. Given that response, I pointed out that 25 August 2004 was only six months prior. The cross-examination continued on this issue. The Applicant respondent adversely to the line of questioning about these offences and the penalty imposed for each offence on the Applicant by the Narrabri Local Court. He said: " I couldn't give a rat's arse about it " and "... I'll agree with you (about the penalties) just to get rid of this bullshit. Because that's all it is. I see it as bullshit, complete and utter bullshit ". (Tr 22 February 2005 - pp 40 - 42)

Thirdly, the Commission notes that the Applicant appealed his convictions. The appeal was set down for Moree Court House. In his final submissions the Applicant said he withdrew his appeal as he had moved to Sydney. But in the submissions of Mr Fernan for the Respondent, the Commission was advised that the appeal came on before Ducker J at the Moree District Court on 1 November and stood over to 2 November 2004 given the non-appearance of the Applicant. Each appeal was dismissed and each conviction confirmed.

Fourthly, the Commission notes that at least one of the offences carried the penalty of imprisonment of 12 months or greater than 12 months. The significance of the length of the imprisonment is that the Respondent has the statutory power to annul the employment of a probationary employment for the committing of a criminal offence that carries with it the possibility of imprisonment being 12 months or greater than 12 months.

Mr Fernan took the Commission to a Court Attendance Notice document (Offence Ref No 2325503) which disclosed the Applicant's offence as being " Drive while disqualified ". That offence is a charge under the Road Transport (Driver Licensing) Act 1998, Section 25A(1)(a) (" the RT Act "). The specified section states that the maximum penalty is 30 penalty points or imprisonment for 18 months or both.

Mr Fernan then cross referenced the above possible penalty outcomes to the Teaching Services Act 1980 No 23. Section 86 says, in part, that where an officer or temporary employee of a Teaching Service is found guilty in New South Wales of an offence that is punishable, either on indictment or on summary conviction by imprisonment, for a term of 12 months or more, the appropriate Director-General may impose on that officer of temporary employee any one or more of the punishments that may be imposed under section 85(1).

One of the punishments that may be imposed under s 85(1) is annulment of the employment of an officer who is on probation. The Applicant was still on probation and his employment was annulled.

In summary, the Commission states that it observed that the Applicant was uncomfortable with the line of cross-examination questions going to his various offences and convictions cited above.

The Respondent has shown that at least one of those convictions carried a possible penalty imposition of imprisonment of greater than 12 months. This possibility gave rise to the Respondent in being able to exercise its discretion to annul the probationary employment of the Applicant.

Accordingly, and in consideration of the evidence surrounding this ground of the Respondent for the annulment of the Applicant's employment, the Commission finds that the Respondent acted within its statutory right to annul the probationary employment of the Applicant on this ground.

CONCLUSION

28 The Applicant filed an unfair dismissal application, claiming he had been unfairly dismissed.

The Respondent relied upon three grounds for annulment of the employment of the Applicant, who was a probationary employee. 29 The Respondent carried the burden of proof. 30 The first ground considered by the Commission was the claim that the Applicant's medical condition was such as to make him unfit for permanent employment. Having considered the evidence, the Commission found that this ground for annulment was not made out by the Respondent. 31 The second ground was the Applicant's misconduct. This misconduct comprised three allegations.

As to the allegation that the Applicant had assaulted (head-butted) Mr Carlin, the Commission found that this allegation had not been proved by the Respondent, despite the granting of an interim AVO in favour of Mr Carlin.

As to the allegation that the Applicant had verbally abused Mr Mason (and Mr Carlin), the Commission found this ground proved by the Respondent and accordingly held that this ground in itself would justify the Respondent in deciding to annul the Applicant's employment.

As to the allegation that the Applicant had name-called a certain person, the Commission found that this allegation was not proven by the Respondent. 32 The third ground is that the Applicant was convicted of certain criminal offences and sentenced in the Narrabri Local Court. The Commission found that at least one of these convictions carried the possibility of a penalty imposition which would then allow the Respondent to exercise its statutory discretionary right to annul the Applicant's employment. 33 Accordingly, the Commission declines to intervene in the decision of the Respondent to annul the employment of the Applicant who was on probation. Thus, the Commission finds that the Respondent has made out its case on two grounds to support the Respondent's decision to annul the employment of the Applicant.

A Macdonald Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.