Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a lawyer (whether barrister or solicitor) working in the area of education law and/or employment law before acting or relying on any of its content.

In the recent decision of the NSW Industrial Relations Commission, E v Secretary, Department of Education [2018] NSWIRComm 1041, a deputy principal of a school was unsuccessful in his unfair dismissal claim before the Industrial Relations Commission of NSW. The Deputy Principal, who was in a relationship with another teacher, failed to declare this conflict of interest when sitting on a selection panel relating to her employment. Further allegations of a serious nature were also levelled against the Deputy Principal including that he engaged in sexual harassment against the other teacher and gave her an unfair advantage in the School recruitment process.

In response to these allegations, the Deputy Principal employed a solicitor to respond to Ms Jane Thorpe, Executive Director of the Department’s Employee Performance and Conduct Directorate (“EPAC”) on his behalf. Amongst other things, the Deputy Principal denied all allegations of misconduct and contended that:

(a) The friendship that had developed between him and the other teacher was at first a friendship, as opposed to a relationship, more akin to a courtship.

(b) The friendship was consensual and the other teacher had initiated it.

(c) The relationship (however defined) was one that existed entirely outside of the school and the responsibilities of his role within the department of education.

On 17 May 2017, Ms Thorpe wrote to the Deputy Principal, through his solicitor, and confirmed that her earlier findings as to misconduct stood and that she had determined to dismiss the applicant from the Teaching Service and have his name placed on the NTBE list.

Unfair dismissal proceedings

In his unfair dismissal application, arguing that his removal from the teaching service was harsh, unreasonable or unjust, the Deputy Principal argued for reinstatement to another school rather than an outright dismissal. In addition to disputing the allegations, the Deputy Principal relied upon his long period of service as a teacher in the Teaching Service of the Department of Education, his previous unblemished record, to health problems he had experienced in early 2016 and to the potentially devastating effects that the loss of his career would have on him.

It should be noted that the teacher with whom the Deputy Principal formed a relationship, and ultimately had a conflict of interest in relation to, was also the subject of disciplinary action, having been dismissed from her teaching position for inappropriate conduct including, it would seem, benefiting from an unfair advantage in the recruitment process and sending unsolicited text messages of a pornographic nature to other teaching staff at the School.

In an affidavit prepared for the proceedings, Ms Thorpe stated:

I have since recognised that a finding of interactions being mutual between [Mr E] and [Ms R] generally negates the actions of [Mr E] constituting sexual harassment. However, my original finding of misconduct rested on the view that it is grossly inappropriate for a deputy principal to maintain such relations with his subordinate colleague, particularly when that deputy principal was heading the recruitment panel for the position [Ms R] was acting in, and for which she had applied as a candidate. No conflict of interest was declared by [Mr E] at any stage during the process. I further sustained the allegation that [Mr E] provided interview questions and a fellow candidate’s CV to [Ms R] prior to her being interviewed. I maintain the view that [Mr E’s] actions amounted to misconduct of a most serious nature.

The Decision

In noting that the Department of Education had effectively abandoned the allegation of sexual harassment through the above affidavit and other evidence, the Commission found that the consensual nature of the relationship between the teachers was strongly supported by the photos and other communications which passed between them (some of which were of a very explicit nature).

However, the Commission found that there was “reliable and probative evidence” from which an inference could be drawn that the Deputy Principal was engaged in a sexual relationship with the other teacher at the time he convened the selection panel which recommended that she be appointed to the position of Relieving Head Teacher. At paragraph 86, the Commission found:

Even if it were the case that the sexual relationship between the applicant and Ms R did not begin until after 4 April 2016, there is sufficient evidence before the Commission to establish that their relationship as at that date was not just “one of mutual respect and friendship, and on a par with similar relationships [Mr E] had developed with other teachers…”. The frequency, duration and timing of their phone conversations, the content of their email exchanges and the frequency of Ms R’s visits to the applicant’s home, all speak of a close personal relationship which was sufficient to create a conflict of interest in the applicant as of 4 April 2016. His failure to declare that conflict of interest and remove himself from the selection process for the position of Relieving Head Teacher constituted serious misconduct which justified his dismissal.

Taken collectively, Commissioner Murphy of the Industrial Relations Commission was of the view that the Deputy Principal’s conduct was sufficiently serious to justify the termination of his employment. Accordingly, the Commission found that the dismissal of the applicant was neither harsh nor unreasonable nor unjust.

EPAC matters

The NSW Department of Education (previously known as the Department of Education and Training and the Department of Education and Communities (DEC)) handles complaints relating to the performance and conduct of Departmental employees, namely teachers and principals, through its Employee Performance and Conduct Directorate (EPAC). EPAC can deal with things like parental complaints against teachers or complaints by DEC employees against fellow employees.

Once EPAC receives a complaint, it is assessed. This involves determining whether the matter should be investigated, whether it is a 'special complaint', ascertaining the level of seriousness, and choosing the appropriate course of action. Certain types of complaints are regarded as special as they are covered by particular legislation, policies and procedures, and are required to be dealt with accordingly. For instance, matters relating to child protection may be referred to the Department of Community Services and can be “reportable” offences.

Where a complaint is determined to be serious, an investigation procedure will apply. A Departmental investigator, often legally trained, is typically appointed to the matter. A serious breach is defined by the Department of Education as one which could amount to serious misconduct under the Code of Conduct and may include a breach of legislation, policy, procedure or contract likely to lead to disciplinary or remedial action, or conduct of a criminal nature. Besides staff disciplinary or remedial action, internal investigations may recommend referral for police action or to the Independent Commission against Corruption and notification to the Commission for Children and Young People.

Legal representation

If you receive correspondence from EPAC it is important to seek advice from a lawyer experienced in EPAC complaints. This should be done as soon as possible as steps can be taken to preserve important evidence supportive to your case. For example, court orders can be sought to seize or preserve documents, Freedom of Information and Government Information (Public Access) Act applications can be made and where legal proceedings have been instituted, subpoenas issued.

Consistent with principles of natural justice or procedural fairness, obtaining further information also allows the teacher or principal to properly understand the case against them and to ensure that any response furnished to the Department of Education proceeds on an informed basis.

Before responding to any invitations from EPAC to address a complaint or allegations in writing, legal advice should be sought. The written responses provided (or not) can have far-reaching consequences for teachers and are often relied upon by EPAC in any disciplinary and/or dismissal proceedings.

In some circumstances, it may be prudent for you to submit to a Departmental interview (although in many cases it is not advisable to do so). Certainly, legal advice should be sought before agreeing to participate in records of interview. Where appropriate, a lawyer can also attend as a support person to ensure that your rights are upheld and that your position is protected.

Witnesses can be contacted and statements taken supportive of your position and/or defence.

Where appropriate, private investigators can be retained.

EPAC complaints can cause individuals a significant amount of stress and anxiety, or exacerbate underlying conditions that need to be addressed through psychologists and other professionals. An experienced lawyer can refer you, for example, to mental health practitioners that are familiar with disciplinary matters such as EPAC complaints.

There are also occasions where teachers or education professionals feel that they have been unfairly treated or targeted. In appropriate cases, complaints can be made to a number of organisations including: the NSW Ombudsman for maladministration, discrimination complaints can be lodged with the Anti-Discrimination Board or the Australian Human Rights Commission, bullying complaints filed with the Fair Work Commission or - as the above case study demonstrates - a cause of action can be pursued through the NSW Industrial Relations Commission. Alternatively, and depending on the matter, proceedings can be commenced against the Department of Education in a court of law.

Sebastian De Brennan


4 October 2018

E: s.debrennan@humanrightslaw.com.au

© 2017 Sebastian De Brennan. Barrister at Law