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Morgan v Workers' Compensation Regulator[2019] QIRC 37

Morgan v Workers' Compensation Regulator[2019] QIRC 37

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Andrew Morgan v Workers' Compensation Regulator [2019] QIRC 037

PARTIES:

Andrew Morgan 

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/154

PROCEEDING:

Appeal from decision of regulator

DELIVERED ON:

HEARING DATES:

4 March 2019

8, 9, 10, 11 October 2018

HEARD AT:

Brisbane

MEMBER:

Black IC

ORDER:

Appeal dismissed

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL – Psychological injury – reasonable management action – student behaviour management – whether school behaviour guidelines complied with.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003  s 32

APPEARANCES:

Ms S Anderson, Counsel, instructed by Susan Moriarty & Associates.

Mr P Rashleigh, for the Workers Compensation Regulator, directly instructed.

Decision

 Introduction

  1. [1]
    The appellant commenced work at the Woodridge State High School in 2011. He had worked as a high school teacher for Education Queensland since 2004.
  1. [2]
    The appellant's case turned mainly on what he considered to be an inadequate school response to student misbehaviour. While the school had detailed protocols and guidelines in place to ensure the effective management of student misbehaviour and to provide teacher support, the appellant believed that the application of the guidelines by the school was inconsistent and in some instances deficient. In particular, the appellant complained about the decisions taken or choices made by Mr Wright who was the deputy principal with particular responsibility for maintaining behavioural standards in the school. 
  1. [3]
    The relevant incidents or events occurred on 22 November 2016 (non-suspension of student); 24 January 2017 (nose piercing); 9 March 2017 (verbal abuse); 16 March 2017 (uncooperative students); and 17 March 2017 (multiple incidents of misbehaviour).

 Issues for determination

  1. [4]
    For the appellant to succeed he must prove:
  1. (i)
    That he has suffered a personal injury of a psychological nature;
  1. (ii)
    That the injury had the necessary association with employment;
  1. (iii)
    That employment was the major significant contributing factor to the injury;
  1. (iv)
    That the injury is not excluded by s 32(5) of the Act, including consideration of whether the injury was caused by student misbehaviour.

 Personal injury

  1. [5]
    The appellant had a prior history of psychological illness which included work related psychological conditions sustained in 2010 and 2014. As a result of the 2014 injury, the appellant was off work from October 2014 to January 2016.
  1. [6]
    The appellant attended on Dr Vanessa Tay on 25 November 2016. The consultation record is not in evidence but the appellant linked his attendance with his dissatisfaction with Mr Wright's handling of an incident at work on 22 November 2016 incident. 
  1. [7]
    Prior to this consultation, Dr Tay had referred the appellant to Mr Larfield under a mental health care plan which supported the appellant's attendance on Mr Larfield for six sessions which were held between 26 August 2016 and 11 November 2016. The appellant had been treated by Mr Larfield since 2010.
  1. [8]
    A report written by Mr Larfield on 14 November 2016 (Exhibit 25) identified stressors relating to a pending divorce, property settlement and custody arrangements.
  1. [9]
    The appellant attended on Dr Chan on 23 March 2017. Dr Chan entered a diagnosis of "anxiety as a result of student abusive behaviour and failure of administration to follow through the established behaviour pathway". Dr Chan produced a workers' compensation medical certificate and the appellant lodged a claim with WorkCover the same day.
  1. [10]
    In giving his evidence in the proceedings, Dr Chan said in effect that what he wrote on the medical certificate reflected what he had been told by the appellant about what had happened at school. Dr Chan said that the appellant had not previously raised these matters with him during 2017.
  1. [11]
    Dr Chan had referred the appellant to Mr Larfield under a mental health care plan for six sessions. The six sessions had been held between 6 January 2017 and 31 March 2017. Mr Larfield's report to Dr Chan dated 3 April 2017 is in the evidence as Exhibit 26. In his report Mr Larfield said that the majority of the issues that were the subject of his earlier report to Dr Tay had been managed well, that the appellant accepted his current situation, and that he had reported a mutually positive resolution in terms of his divorce.
  1. [12]
    In the same report, Mr Larfield noted a score on the Depression Anxiety and Stress Scale which was indicative of the appellant suffering extremely severe depression. Mr Larfield said in his report that the appellant had become increasingly stressed at his place of employment in March 2017 related to a change in student behaviour and the management of such.
  1. [13]
    The medical evidence supports a finding that the appellant has suffered a personal injury. This finding was not seriously challenged by the respondent. The medical evidence is less persuasive in a consideration of causation in circumstances where the opinions of Dr Chan and Mr Larfield rely predominantly, if not exclusively, on a history provided by the appellant.

Association with employment

  1. [14]
    The respondent questioned whether employment was the major contributing factor to the injury in circumstances where non-work related stressors were present including the appellant's relationship difficulties.
  1. [15]
    However, on balance, I accept that the medical evidence and the appellant's evidence supports a finding that any adverse psychological effects of the marital break-up had substantially resolved prior to the emergence of work related stressors, and while there was some evidence of continuing distress through until March 2017, it was not of such a significance to prevent a finding that the employment was the major contributing factor to the appellant's injury.
  1. [16]
    The appellant submitted in effect that causation was two dimensional. The proposition was that a mix of stressors caused the disorder but that not all stressors, principally abusive student behaviour, were associated with management action. The respondent however took the view that all of the relevant behaviour associated with the appellant's condition should be deemed to be management action.

Evidence

  1. [17]
    Evidence in the proceedings was given by the following witnesses:
  • Andrew Morgan (appellant)
  • Kevin Larfield (psychologist)
  • Dr Chan (general practitioner)
  • Simon Wright (deputy principal)
  • Susannah McLaughlin (acting head of department)
  • Sharon Shultz (principal)

Behaviour management guidelines

  1. [18]
    It was common ground that teachers at Woodridge State High School were trained in tools, techniques and procedures that were designed to assist in the management of student behaviour. Relevantly, the following documents were tendered into the evidence:
  • Responsible behaviour plan for students (Exhibit 4)
  • The 10 essential microskills (Exhibit 3)
  • Behaviour tool kit (Exhibit 5)
  1. [19]
    The microskills document is not relevant to the determination of the appeal, but the application of the responsible behaviour plan and the behaviour tool kit is a matter for consideration. In many respects both the behaviour plan and the tool kit cover similar territory, and in general terms the documents are both consistent and complementary in their expression. There are however some differences of relevance, and differing opinions were advanced about which document should prevail in the event of any inconsistency.
  1. [20]
    The appellant's evidence (T1-7) was that while he "sometimes referred to the behaviour tool kits and within that the behaviour referral pathway", the primary document was the behaviour plan. However, Mr Wright's evidence was that teachers were not trained in working with the responsible behaviour plan. He implied that the responsible behaviour plan was a generic document which was to be found on every school's website. He said in effect that the main day to day guidance for teachers was provided by the tool kit. The appellant's evidence was consistent to the extent that he agreed that Mr Wright explained the tool kit to him as part of his training at Woodridge High School. The appellant said that he was taken through the document "during staff meetings and beginning of year preparation" (T1-14).
  1. [21]
    A key difference in the two documents relates to the circumstances in which a teacher should refer a misbehaving student directly to Mr Wright. The responsible behaviour plan states firstly that all minor and major behaviour is recorded in a school data base referred to as "OneSchool". It then provides that when responding to problem behaviour, the first step for the teacher is to determine if the behaviour is minor or major. The plan then says that major behaviours result in immediate referral to administration. A referral pathway included in the behaviour plan as Appendix 7 is expressed consistently. The pathway provides that in the event of "major behaviour – violence – swearing at teacher", the teacher is to refer the student to the deputy principal immediately. The significant discretionary element in this process is the determination by the teacher of whether particular behaviour should be classed as "major" or "minor".
  1. [22]
    The tool kit in dealing with "major" and "minor" category descriptions states that major problem behaviour "may involve" referral to administration but also says that these behaviours require the removal of the student from the learning environment. The referral pathway included in the tool kit states that "students should not be sent to a Dean for behaviour intervention without going through the referral process unless it is a major incident".
  1. [23]
    It is arguable that the teacher is asked to exercise a broader discretion under the tool kit. That is, in addition to forming a view about whether an incident is a major or minor incident, the language is less directive around the requirement to refer a major incident. While the behaviour plan appears to remove any discretion once an incident is classified as a major incident, the tool kit is less explicit around the subject. In warning a teacher not to refer a student to the deputy principal unless it is a major incident, the tool kit may not include a prohibition on a teacher taking some responsibility for the resolution of a major incident.
  1. [24]
    The effect of the respondent's position was to take issue with the appellant's approach that once he designated an incident as a major incident, he had no responsibility to address the offending behaviour, whether before or after referral.  In her evidence, Ms Schultz illustrated how a teacher might elect to take responsibility for the resolution of an incident, rather than simply exercising a right of referral (T2-29):

It wasn’t a matter of hanging dry and quartering the child.  You just wanted to make sure they had consequences, correct?And it wasn’t a case of me always expecting that someone else dealt with it, either.  There were a number of times when if a child made an off-handed comment that did contain profanity, I would redirect it and say, "That’s not how we speak.  We don’t speak like that."  And I would not refer it because I believe that it gave me an opportunity to develop a better relationship with that student and have them understanding what I expected from them in my class.  So I didn’t refer it all the time as a teacher, no, because I believed that I could get a better response from the child by handling it myself.

  1. [25]
    In more general terms, Ms Schultz said that it was important "for a teacher first and foremost to be seen to be absolutely addressing" the issue in the first instance (T2-35). She expressed the view that the teacher should take responsibility for immediate classroom behaviour. She said that the Essential Microskills program was put in place to encourage or facilitate this approach. In the event that a teacher felt that issues were escalating and students were not responding to consequences put in place, then the issue would escalate to the deputy principal. The OneSchool system was a mechanism for teachers to refer students to a higher level if they wished to use this option.
  1. [26]
    While I think it was common ground that a consistent response to bad behaviour was highly desirable, Mr Schultz did not accept that the behavioural guidelines precluded different responses in particular circumstances (T2-10):

… Now, these policies and behavioural polices, were they rigid and strict or were they used with some flexibility?The behaviour policies are used in a way that they guide us when we’re making decisions, and one of the big things that we always try to take into consideration is we look at each situation individually upon its merit, because there may be extenuating circumstances that might, I guess, have us moving towards making a specific set of decisions or putting a specific set in consequence – of consequences in place.  So it’s not a case of every time something happens, in black and white, the exact same outcome in terms of consequences would be put in place.

All right?So the document does give you some flexibility around what are the types of consequences you can put in place.

  1. [27]
    Ms Schultz's evidence was that in terms of the resolution of consequences for bad behaviour, there was a discretion to be exercised (T2-27):

Now, this is where what you’ve talked about is this is a guideline, but it’s not rigidly applied across every situation or for each student, correct?I wouldn’t say that it’s not rigidly applied.  I would say that we always try to stay within those guidelines, however, at times if there might be an extenuating circumstance around a student’s safety in terms of the home environment is a dangerous one or a violent one and a student has been in a bit of trouble, the last thing we would want to do is they have behaviours that manifest themselves at school.  I have made decisions where I have not suspended a child because in suspending that child and sending them home it may be a case of that child may be experiencing violence.  So my decision in that case would be we wouldn’t send them home, we’d retain them at school and we’d look for a different consequence.

  1. [28]
    I accept that the categorisation of incidents by a teacher involved an exercise of discretion and that some incidents could reasonably be classified as either "minor" or "major". The effect of Ms Schultz's evidence was that there was no unique right answer and there was room for a difference of opinion about whether an incident was minor or major and what the consequences for the student should be (T2-31):

Now, if a OneSchool report classifies behaviour as a major behaviour, that’s what it is; is that right?No. 

You would then expect your deputy principal to second-guess what the teacher says about that?I would expect the deputy principal to look at the full report, because as I said, we have teachers that have varying degrees of opinion around what’s major and what’s minor for them, as opposed to what’s major or what’s minor for the teacher in the classroom next to them.  We’ve put guidelines in place   

Sure?    however people still disagree.

Okay?Just because we put things down doesn’t mean that people don’t actually disagree.  What I would expect the deputy principal to do is to make contact with the teacher who has referred that and then have a conversation with them about all of the circumstances and situation around it.  Particularly if the deputy principal disagrees that it was a – the – with the classification of the behaviour. 

And if the deputy principal disagreed with a classification, you expect them to tell the teacher that, don’t you?Yes, I would expect that that would be part of the conversation.

The reason you would expect them to tell them that is because if it’s not a major behaviour, you have to follow the behaviour pathway before you refer it to someone else, correct?Yes.

Student misbehaviour

 22 November 2016

  1. [29]
    The appellant complained that Mr Wright did not suspend a student arising from misbehaviour on 22 November 2016. An entry in the OneSchool system (Exhibit 8) made by the appellant disclosed that he categorised the incident as a "major" incident, and that he referred the matter to Mr Wright under the behavioural pathway. The incident involved students arriving late and displaying argumentative, aggressive and defiant behaviour when confronted by the appellant. One student in particular caused significant disruption by swearing at the appellant on multiple occasions including "why can't you just fucking let me go?", and repeatedly using the word "fuck" while she engaged with the appellant.
  1. [30]
    While Mr Wright had initially intimated to the appellant that he would suspend the student, he subsequently changed his mind when he discovered that the student in question had a legitimate note explaining late arrival. The appellant expressed dismay at the lack of action (T1-24):

What did you say?I was – I was deeply surprised.  I asked him how – how that even mattered.  What I had experienced was – had happened.  It was inappropriate and I asked how that made a difference.  It didn’t seem to me to be relevant to the decision not to suspend her. 

And what did he say?He said that – he said that his hands were tied.  He told me that the father would be irate if he suspended his daughter for – you know, when the daughter had a legitimate note from a teacher.  And he said that the father was supportive, and again I questioned that.  I just said I don’t understand how that’s – how that’s a relevant decision or a reasonable decision. 

He said the father was supportive of whom?He said that he – the father disagreed with the student’s behaviour and he told me that the father had agreed to discipline her at home.

In your mind did that agreement remove responsibility for the school disciplining her?No.

  1. [31]
    The appellant was further disappointed when Mr Wright did not deliver a promise to direct the student to return to the classroom and apologise to the appellant (T1-24):

Okay.  Did you say anything else to Mr Wright about what should happen?Yeah, when he said that he couldn’t do anything, I then suggested that he bring the student to – that the student apologise to me in front of the class.  I made the point of saying, you know, she’d made this big scene in front of the students, swore at me in front of the students and I felt that a public apology was very much warranted.

What did he say about that?He agreed and he said that at our next class on the 24th of November that he would bring the student up to the classroom for her to apologise to me.

Did that happen?No, it didn’t.

  1. [32]
    In an email to the appellant dated 24 November 2016, Mr Wright did not allude to the apology but he did say that he had directed the student not to return to the appellant's class that afternoon but to go to the Bulkari room, which is a facility which provides support for indigenous students. Mr Wright said that he took this action to prevent the student from disrupting class. The next morning Mr Wright conversed with the appellant about the matter and the appellant pressed the issue of an apology (T1-26):

What did you say?I asked him why.  I said, you know, you promised me that you were going to suspend her and that didn’t happen.  I said, then I made – negotiated with you, or we had decided that she was going to come to the classroom and apologise and I said that didn’t happen either and I asked him why that didn’t happen.

What did he say?He said that Julie-Anne had simply refused to go to the class and apologise.

What did you say about that?I said, “Well, and what did you do?  Did you give her an option?  Did you give her an alternative?  Did you say, ‘Look, you either have a choice, you can go and make the apology as we discussed, or I’m going to give you an alternate consequence’?” 

What did he say?And he said that that thought hadn’t crossed his mind.

Was there more to the conversation after that?Yes, I – I asked him who was in charge, who was running the school, because I was extremely surprised and disappointed that we would make this agreement and the student could refuse and there were no further consequences.  She would just be sent for a free lesson in the indigenous room.  That seemed unreasonable to me.

  1. [33]
    It was the appellant's view that Mr Wright's handling of the issue was "completely inappropriate" and that it "antithetical to the policy and the expectations that I should have to support my right as a teacher" (T1-28). In the context of this evidence, the appellant was invited to reconsider if he knew that the student had been asked to remain away from school for the last week of the school year. However, he was not amenable to any concession and said that if such an arrangement was made, he should have been informed of it and that in any event the arrangement was not part of any behaviour plan (T1-70):

Okay.  So the deputy principal does what he, in effect, sees appropriate with respect to the behaviour, correct?Within, again, I’m going to add the caveat there that it is – it needs to be within the confines of the policy.  Furthermore, he also needs to operate within the code of conduct and the standard of practice which talks about open, honest communication with staff members, and that’s certainly, in the example that you’re giving, does not meet that test.

  1. [34]
    The issue for the appellant was not that Mr Wright did not have the discretion to apply a consequence other than suspension, it was that the appellant perceived that Mr Wright was not acting consistently with the behaviour guidelines in avoiding a sanction which was commensurate with the crime and which had been applied in other cases of similar severity. The consequence of all this for the appellant was that it made it harder for him to maintain discipline in the classroom and Mr Wright's actions also implied that he did not endorse the manner in which the appellant handled the matter and that he had failed to provide essential support for a teacher on the front line.
  1. [35]
    Somewhat paradoxically, the appellant in final submissions characterised Mr Wright's behaviour as suitable and complained of inconsistency when Mr Wright did not respond in a similar manner when he took responsibility for disciplining Student 1. In some respects however Mr Wright acted entirely consistently. In both cases Mr Wright liaised with the student's parents and formulated a response which was significantly informed by the outcome of the discussion that he had with the parents.

24 January 2017

  1. [36]
    The appellant also complained about Mr Wright's handling of another referral from him on 24 January 2017. While in this instance Mr Wright did suspend a student with the appellant's approval, Mr Wright had asked the appellant to discuss with him the manner in which the appellant had handled the issue. The appellant did not appreciate Mr Wright's intimation that the appellant could have handled the matter better.
  1. [37]
    On 24 January 2017, a student had presented to class with a nose piercing. The OneSchool report stated that when the appellant asked the student to remove the piercing, the student became argumentative and told him that the piercing could not come out. In response, the appellant sent the student to see Mr Wright and asked her to get a uniform pass. However, when the student returned to class, she had no note and no pass. At this, the appellant sent the student back to the office and completed a OneSchool report (Exhibit 10) in which he classified the incident a "major" incident.
  1. [38]
    While the appellant said that Mr Wright had directed that uniform breaches should be referred to him, there was some disagreement in the evidence about whether the appellant should have sent the student to Mr Wright. Mr Wright had emailed the appellant on the day of the incident and said that he would follow up on the issue, but he added that the appellant should come and see him to allow for a discussion about how the matter was handled. The appellant said in his evidence that he, in effect, ignored Mr Wright's request, and he complained that the email intimated that he had done something wrong (T1-32):

Did you go and see Mr Wright about that?No, I didn’t.

Why not?The – the email, it didn’t make sense to me.

Why is that?I had done exactly what he had consistently requested teachers to do and for doing that I was now being made to feel as though I had somehow done something wrong.

And why do you say that?When he says, "I will follow up – I will follow this one up for you this time".  I think that’s a clear implication that I’ve somehow done something inappropriate.

Did you have any conversation with him about this email?No.  I was feeling quite disgusted about – about this.  And so I just – I thought if there was something that I had done incorrectly, that he would actually follow that up as the deputy principal.

Did he?No.

  1. [39]
    Consistent with his evidence across most issues, the appellant made no concession about his own handling of issues involving student misbehaviour. Nowhere in the evidence did he acknowledge that he could have handled an issue better. In this particular instance, Mr Wright was asking that the appellant meet with him to discuss alternative responses. However the appellant chose to ignore the request and justified his approach on the basis that it was Mr Wright's responsibility to chase him up to ensure the discussion took place.
  1. [40]
    An insight into why Mr Wright may have thought that the appellant could have adopted an alternative course of action is provided in Mr Wright's evidence that such an issue as a nose piercing should not have been referred to him (T2-52):

Normal practice would be that a dean or deputy principal wouldn’t have involvement.  The student would be sent to the office.  If the nose ring couldn’t come out, for whatever reason, the usual practice was to put a – a Band-Aid on it.

  1. [41]
    In her evidence about such issues, Ms Schultz also, by implication criticised the appellant's approach (T2-42):

Right.  Now, you were asked some questions about a child coming to your class with a nose piercing in.  if the child said, "I can’t take it out", would that change the way you would approach it?Generally what we would do is we, you know, again, would work with the child, you’d take so may options:  it could be ring home, talk to the parents about it;  it could be talk to the child about why can’t you take it out?  Sometimes kids will come and say I’ve just had a piercing done, I can’t remove it for three months, you know.  So it generally is about it comes down to talking to the student around what’s the situation, as opposed to, you know, making the assumption that they’re being defied.

  1. [42]
    The appellant in his own evidence had also acknowledged that if a student says that a nose ring or piercing cannot come out, a typical course of action would be for administration to replace the piercing or apply a band-aid (T1-72):

So – and it doesn’t have to come out if it couldn’t come out, does it?Under those circumstances, it might be able to be left in.  Sometimes the administration will have a – a clear plastic stud that they can, you know, replace it with.  Other times they will get the student to put a Band-Aid   

Yes?    over it.

All right.  So it wasn’t really a capital offence, was it, to turn up to class to turn up with a stud in your nose, if you couldn’t remove it because it had been recently put in, correct?Correct.

All right?I never said it was a capital offence.

But you’ve put "major" here as an incident?It was major in terms of the level of disobedience, the refusal to actually come back with the – the note had not seen the deputy principal, did not have a uniform pass, and so there was a continued level of defiance, disrespect, non-compliance with routine.

  1. [43]
    The level of disobedience however was related primarily to the appellant's instruction that the student report to Mr Wright. Had he dealt with the matter in the typical way, and sent the student to administration, a "minor" incident entry in OneSchool may have been sufficient. As it transpired, the appellant was confronted with a similar issue on 17 March 2017, and again a confrontation ensued:

She arrived on that day with a nose piercing.  And as we were lined up outside – the practice was we would line up outside of the science block.  And when I saw the nose piercing I told her that that needed to be removed.  She became argumentative about that.  And eventually what she – from – my memory is that she said, "Fuck off" I referred her to Mr Wright.  And that’s what this is in regard to.

So Mr Wright’s written to you and asked you to – OneSchool, the report, refer it to him so that he can action the suspension?Correct.

  1. [44]
    Again, the question may be asked as to why the incident became confrontational and why the student was not, in the first instance, referred to the office. In any event, in terms of the appellant's critique of Mr Wright's conduct, the appellant had no complaint about the action taken in respect to the use of a directed profanity by the student. An email in the evidence dated 17 March 2017 (Exhibit 19) disclosed that the student had been suspended for three days.

20 February 2017

  1. [45]
    In this incident the appellant referred a student to Mr Wright because of inappropriate language. In an email (Exhibit 6), Mr Wright enquired whether the student swore directly at the appellant. In reply, the appellant said that it was not clear whether he was the intended recipient and said in effect that the language did not involve a directed profanity. There is nothing in the evidence to indicate why the appellant treated the incident as a major incident, nor is there any evidence that Mr Wright took issue with the direct referral of the matter.

9 March 2017

  1. [46]
    The appellant said that his classroom was disrupted on 9 March 2017 when three female students "went off task". He said that these behaviours then escalated into a fairly serious incident. The appellant entered a record of the incident in OneSchool. From the OneSchool system, the behaviour records for Student 1 were printed and entered into the evidence as Exhibit 19. Student 1 was one of the three students involved in the off task behaviour. The appellant in making his OneSchool entry, categorised the incident as a "major" incident.
  1. [47]
    The appellant said that he attached a "major" incident category because truancy was a factor in that the students were away from class for an unaccounted period of time; because the students refused to participate in the program of instruction; and because he was subject to "offensive and aggressive language and the directed profanity towards me". He said that while some of the misbehaviour occurred within the classroom, the "worst of it occurred just outside of the classroom" (T1-38).
  2. [48]
    In the first instance, the appellant asked the three students to leave the class, get the Science Head of Department (Ms McLaughlin), and return to the classroom with the head of department.
  1. [49]
    However, the students did not go to get the head of department and after a period of time returned to the classroom and demanded their belongings signalling an intention to go home, at least on the part of Student 1. The appellant refused to allow them to rejoin the class prompting Student 1 to tell the appellant "up your arse".
  1. [50]
    At this juncture, the appellant directed the students to report to Mr Wright. However, he said that students remained outside his classroom and tried to gain entry. They were prevented from so doing because the appellant had locked the door. The appellant said that he wrote his OneSchool report about the incident during the first lunch break (between 11.00 am and 11.30am) that day.
  1. [51]
    During the second lunch break on the same day, the appellant said that he had a conversation with Mr Wright about the matter.  At that point in time, Mr Wright had not seen the OneSchool report. The appellant told him about the incident and said that it was an event that Mr Wright "was going to need to action". The appellant then said that Mr Wright told him that he knew Student 1's mother and knew that she was supportive of her daughter's teachers. He encouraged the appellant to phone the mother (T1-39):

… He said the mother was supportive and he encouraged me to phone home.

What did you say?I told him that I had not phoned home at this point and that I had missed my whole – first lunch period in writing the OneSchool report and that it was quite distressful incident and that, you know, I hadn’t had time to do that at this point.

And what did he say about that?Just reiterated, you know, that he – reiterated that encouragement for me to phone home before he left.

When you told him that you were dealing with the – that it was a stressful event, what did he say about that?There – I don’t believe he made a comment about that.

  1. [52]
    In a follow-up communication later that day, Mr Wright emailed the appellant (Exhibit 16) and asked him to call the parents of two of the students, including Student 1; to make entries in OneSchool; and to identify consequences. He then said that he had called Student 1's mother and had told her about Student 1's "rudeness directed toward you". Mr Wright said that Student 1's mother was appalled and said that she was very supportive of her daughter's teachers.
  1. [53]
    It is not in dispute that despite Mr Wright's requests or instructions, the appellant elected to ignore the requests and elected not to inform Mr Wright that he was not going to make the phone call. The appellant said in his evidence that he had no particular objection to phoning Student 1's mother but that he did not feel the need for it because the incident was a major incident and it was not his responsibility.
  1. [54]
    The appellant also suggested that Mr Wright's email "made no sense" to him for the following reasons (T1-39):

Why is that?A few different things.  The – it’s not very clear.  First of all I don’t think it has the normal level of detail that I would put into something and he tells me to call the parents, yet he then tells me in the second sentence that he has contacted one of the parents.  So that seemed to be a superfluous event, why should I call when he already has called.

Is that a normal thing for you to be asked to call after the deputy principal has called a parent?No.

Had you been asked to do that before?No.

All right.  And then you said something else?Yeah, he’s asked me to OneSchool the details but I had OneSchooled the – the event to him which is how he got this.  So again, I was confused, I thought well, I’ve already done that.  And the third thing is he tells me to OneSchool the consequences and I thought, well, this is – again, this is a major event.  I don’t have the authority to impose consequences for this behaviour.

During your conversation with Mr Wright, did he tell you that it wasn’t a major event?He didn’t, no

  1. [55]
    The effect of the appellant's evidence was that under the responsible behaviour plan, once he referred a major incident to Mr Wright, it was Mr Wright's responsibility to address the bad behaviour and to determine a consequence. It was the appellant's view that the behaviour plan should not be deviated from and that the plan precluded Mr Wright from asking him to phone the student's parents. He said that he had no responsibility to contact Student 1's mother and that he did not have any authority to impose a consequence notwithstanding that Mr Wright had instructed him to do so.
  1. [56]
    I find the appellant's evidence around the 9 March 2017 incident to be unsatisfactory. It diminishes from his credit that he would mount an argument to the effect that he could not comprehend what Mr Wright was asking of him and to suggest that Mr Wright's phone call to the mother made any further phone call from him superfluous. His explanation that he did not have the authority to impose a consequence for the behaviour despite having been instructed by Mr Wright to do precisely that, is not credible. I am satisfied that if the consequence agreed between the appellant and Student 1's mother required Mr Wright's approval, it would have been provided.
  1. [57]
    I agree that Mr Wright's email was expressed in an abbreviated form, but I do not accept that the appellant would not have comprehended what he was being asked to do. Firstly, Mr Wright had already spoken to the appellant earlier in the day and told him to call the parents. If there were any doubt about what was required, such doubt could have been resolved then and there. Secondly, what Mr Wright was trying to achieve was self-evident. Mr Wright had phoned Student 1's mother to pave the way for the appellant. Mr Wright had told the mother that her daughter's behaviour was not acceptable and that her daughter would be punished. All that was left for the appellant to do was to call the mother and agree an appropriate consequence.
  1. [58]
    Ms McLaughlin said that she had read the OneSchool report and that she had spoken to the appellant about the matter on the day of the incident. She said that she had subsequently spoken to Mr Wright on 16 March 2017 about the issue (T3-5). She said that Mr Wright told her that he had phoned Student 1's mother and that he had instructed the appellant to "call home and to organise consequences".
  1. [59]
    In his evidence, Mr Wright said that he recalled (T2-54) that Student 1 had refused to complete work in class and then had told the appellant to stick it up his arse. He said that he recalled speaking to Student 1's mother about the matter and that the mother was not happy, and that she was going to put in place a consequence for her behaviour. He said he told Student 1's mother that the appellant "would be in contact with her and that they could work together on that situation".
  1. [60]
    The consequence of the appellant's refusal to call Student 1's mother, and his failure to inform Mr Wright that he was not going to make the call, was that nothing was done and, while Student 1 may have been spoken to by her mother, she had received no punishment from the school. In Mr Wright's view, this failure to act contributed to the continuation of Student 1's bad behaviour after 9 March 2017 (T2-111/112):

Okay.  You accept that having three separate incidents on three separate days would automatically put this behaviour in the category of major behaviour;  correct?I believe if Mr Morgan had have interacted with the parents and worked with the parent, I don’t think that – and it’s my experience that it wouldn’t have gone any further.  That was my belief.

 

… No, I don’t agree with that.  I think it’s very consistent.  I think from the very first correspondence I had with Mr Morgan I was very clear with what I wanted to happen.  That was – that was my decision, and I continually reinforced what I think should happen.  That did not happen, and, as a result of it not – not happening, that’s when the next behaviour happened and the behaviour after that occurred.

  1. [61]
    The appellant saw the matter differently. He believed that if Mr Wright had responded immediately and imposed a suspension, there would have been no recurrence of bad behaviour.
  1. [62]
    For her part, Ms McLaughlin denied that management had failed to issue a timely response to Student 1's misbehaviour (T3-22):

Okay.  Now, you, at this point, when you write this email on the 19th of March, you still don’t know what consequence, if any, has been issued to Emma with respect to her behaviour on the 9th of March?Well, the consequence, I was assuming, was Mr Wright calling home and him asking Mr Morgan to call home and organise consequences.

  1. [63]
    It is difficult to favour the appellant's approach to this issue. Mr Wright is his supervisor and the deputy principal charged with overall responsibility for student behaviour. It is difficult to read into the behavioural guidelines a prohibition on Mr Wright directing a teacher who had referred an incident to assist in the resolution of the matter. Mr Wright was not barred from asking the appellant to phone Student 1's mother. Further, the function of contacting parents is core element of the classroom teacher's responsibilities under the behaviour guidelines. The appellant was not being asked to perform a function which fell outside of his normal duties and responsibilities.
  1. [64]
    On Ms Schultz's evidence, it did not matter whether a referred incident was a minor or a major incident, the deputy principal had the right to involve the referring teacher in the resolution of the matter. It was her evidence (T2-42) that when a matter is referred to the deputy principal, it is for the deputy principal to decide what action is taken, and that the decision could include a referral of the matter back to the teacher in question.
  1. [65]
    While in his evidence in the proceedings Mr Wright said that he did not think the incident was a "major" incident, in the contemporaneous email exchange starting on 19 March 2017, Mr Wright did not appear preoccupied with an incorrect categorisation of the incident but more with the appellant's failure to comply with his 9 March 2017 request that the appellant phone Student 1's mother. His primary objective appeared to be to get the appellant to resolve the issue on the same terms that were part of the instruction on 9 March 2017. In so doing, this was not a case where Mr Wright had not supported his teacher. He had phoned Student 1's mother in advance of the appellant's call, told her that Student 1's behaviour was unacceptable, got her agreement with this perspective, and asked her to agree an appropriate consequence with her daughter's teacher.
  1. [66]
    It is evident that parental contact was an important element of the behaviour management plan. The behaviour pathway in the tool kit provides that when a student displays inappropriate behaviour, the classroom teacher is responsible for "contacting parents". When the student behaviour does not change or deteriorates, the classroom teacher is responsible for "further contact with parent". The "consequence guidelines" in the responsible behaviour plan emphasise that "under all circumstances, contact with parents regarding student behaviour must be made and details recorded in OneSchool". Ms McLaughlin's evidence was consistent (T3-22):

Phoning home is the first thing, at Woodridge high school, we’re instructed to do when we’re having any type of issues with our students.  It’s our first port of call.  I don’t know why it’s not written in the document, but it’s – it’s something that we all know and do.

  1. [67]
    Ms Schultz also emphasised the importance of parental contact in terms of behaviour management (T2-32):

… What I would say is that the deputy principal would have a conversation with the teacher and say – they could say, "I’d like you to follow the behaviour referral pathway."  They could say, "In this instance, though, I’m going to deal with the situation by following these three steps, or taking these three actions."  So there are numerous pathways that a deputy principal could take in that instance.  They would be looking at what the teacher was saying.  They’d be talking with the student.  They would invariably also ring home, because in a lot of instances one of the biggest consequences for our students is the phone call home.

  1. [68]
    The effectiveness of the parental call is illustrated by reference to a OneSchool report dated 14 March 2017 which also concerned Student 1, but where the entry had been made by a teacher other than the appellant. In this incident, Student 1 had arrived at school wearing incorrect shoes. When instructed to wear "loan shoes", the appellant refused until such time as the teacher phoned Student 1's mother who directed or persuaded Student 1 to wear the loan shoes and return to class. Contrast this approach with the appellant's evidence about parental contact (T1-53):

Did you have an objection, yourself, to ringing (Student 1's) mother?No, not – not particularly.   I – in this case, I didn’t see the need for it because, major incident, his responsibility.

When would you have rung her mother?  If you had decided that that was an appropriate thing to do, when do you as a classroom teacher do that sort of thing?If I was advised that the parent wanted to speak to me about something, if they felt that there was a clarification, if they felt their son or daughter were being persecuted, if they thought there was something that I should know to deal with them more effectively.  Or, even if I had received a specific "The parent wants to speak with you", I would have made that phone call quite quickly.

15 March 2017

  1. [69]
    On 15 March 2017, according to the appellant, during the course of a class a student who the appellant referred to as "a fairly good student" had conducted himself in a cheeky and inappropriate manner in responding to a question from the appellant (T1-41):

And in the course of this, he was a bit off task and when I spoke to him about that he made some sort of a – of a comment that was – let’s call it cheeky or inappropriate.  And he got a round of laughs from the other students.  It was very out of character, the class was a bit difficult and I removed him from the classroom and sent him down to Simon Wright along with a note.

  1. [70]
    The appellant removed the student from the classroom and sent the student to see Mr Wright. Mr Wright said that the student was "pretty distraught" when he arrived at his office. Soon after the student returned and apologised for his behaviour.
  1. [71]
    It is noted that the evidence does not suggest that Mr Wright took issue with the fact that the offending student had been referred direct to him. However, on the available evidence, it is doubtful whether the circumstances warranted a referral by the appellant to Mr Wright.

16 March 2017

  1. [72]
    On this occasion, Student 1 and another student had arrived at class 15 minutes late without a note. When the appellant questioned the students about the matter, he said that they adopted a defiant attitude, and were disrespectful. The appellant instructed the students to go to the head of department (Ms McLaughlin) and to return to the classroom with the head of department. The appellant said that the students did not follow his instructions and sat outside the staff room without knocking or attempting to attract Ms McLaughlin's attention.
  1. [73]
    The appellant made an entry in the OneSchool system about the matter, categorised the incident as a "major" incident, and referred the incident to Ms McLaughlin..
  1. [74]
    Ms McLaughlin emailed the appellant on 19 March 2017 (Exhibit 21) in respect to this incident. She informed the appellant that she had imposed a consequence of detention on Student 1, but that Student 1 did not turn up for detention. Ms McLaughlin said that she would phone Student 1's parents and discuss the behaviour and possible consequences. She said that "we might have to work out some strategies for her otherwise she will be a continual problem".
  1. [75]
    Ms McLaughlin did not accept that the failure to attend detention warranted a suspension (T3-20):

The possible consequence for a student of missing a detention is that they will – they could be suspended.  Correct?Generally, it would be to organise an after-school detention, and definitely letting the parent know. 

And it could be that they could be suspended.  Correct?Not for just not attending detentions, no.  That’s still fairly minor.

  1. [76]
    The appellant did not appear to have any criticism of Ms McLaughlin's handling of the matter in that he said in his evidence (T1-47) that the email constituted "the head of department following up with me and keeping me in the loop as to her management of the incidents".

17 March 2017

  1. [77]
    On Friday 17 March 2017, the appellant was confronted with bad behaviour by Student 1 on two separate occasions. The appellant recorded the incidents in OneSchool, identified the behaviour as "verbal misconduct", classified the incidents as "major" incidents, and referred the incidents to both the head of department and to Mr Wright. The appellant said that he had included Mr Wright in the referral because the misbehaviour amounted to "blatant disrespect".
  1. [78]
    In the first instance, the appellant told all students that no one was to sit in the back two rows of the classroom. Despite this request, Student 1 proceeded to sit in the back row, and then refused to comply with the appellant's instruction to move to another row. The appellant pointed out in his evidence that this was the third incident involving Student 1 within an eight day period, and that this meant the incident should be treated as a major incident. (T1-46):

And what did you do about that?She had to be removed from the room again.

And how did you remove her from the room?I believe I sent her to the – to the head of department.  The head of department had just been – had been there, in the classroom.  So there were a few different issues there.  I mean, one, she was off task again. This was actually the third – the third time in a row.  If you actually go to the behaviour tool kit and the consequences there, that – that chart there, it does say that three minor offences, I believe, in a four-week period are automatically a major violation.   Here, we had three major violations within an eight-day period, and three consecutive classes.

  1. [79]
    The appellant said, that around this time and by coincidence, Ms McLaughlin arrived at the classroom (T1-45):

By happenstance the head of department just came – approached the room, came into the room to follow up on some of the events that had preceded.  I don’t – I can’t tell you exactly which ones, whether it was from the 9th of March or the day before.  But she was there to speak about those.  And so she became involved in that – in that process.

  1. [80]
    The effect of the appellant's evidence was that Ms McLaughlin encouraged him to compromise on the seating issue and the result was that Student 1 was seated in the second last row of the classroom. Ms McLaughlin's evidence was that she was on her way up to the appellant's classroom when she found Student 1 outside (T3-5):

All right.  Now, what about the next incident, the 17th of March?The next incident, I was actually on my way up to that class, and I found the student in question outside.

And what did you – what, if anything, did you do about that?I had a good chat to her.  I asked her why she was outside, and she told me that she wasn’t able to sit where she wanted to sit, so she was asked to leave the classroom.  I also had a chat to her about what was going on in the classroom and that we would have to – we would have to work something out between her and Mr Morgan so that the teaching and learning could continue.

All right?I then took her back into the classroom and asked if Mr Morgan would accept her back into the classroom and allow her to sit in a seat that she was comfortable.

And what happened in respect of that?Yes.  He did allow her back into the classroom.

  1. [81]
    In the email written by Ms McLaughlin to the appellant on 19 March 2017 (Exhibit 21) Ms McLaughlin had commented on her interaction with Student 1 on 17 March 2017. She said that Student I was very agitated at the end of the lesson and that it may be necessary "to work out some strategies for her otherwise she will be a continual problem". She also noted that Student 1 was classified as having a disability and that she would discuss the matter with Shirley Van Zyl who was the acting head of special education services.
  1. [82]
    The appellant said that although teachers would "generally receive a notification of the students with disabilities" from special education services, he had not been informed that Student 1 had a disability. He confirmed that a notice sent to teachers by Ms Van Zyl on 3 February 2017 (Exhibit 20) included information about students with disabilities, but did not include the name of Student 1. Notwithstanding this, the appellant said that he discussed the issue with Ms McLaughlin who told him that she did not know the nature of the disability but that she intended to review the matter with Ms Van Zyl.
  1. [83]
    While the appellant said that he did not know of the disability, the effect of Ms McLaughlin's evidence was that the appellant did have access to the information through student profiles included in the OneSchool system. She said that teachers were encouraged at the start of the school year to review these profiles to gather data on students and to inform the use of teaching strategies (T3-21):

… It does say on her OneSchool record, though.  It’s called DDA – I’m not sure what the acronym stands for, but it is highlighted on her OneSchool profile, that she has been – she isn’t verified as having a disability, but there are behaviours there that are considered to impair her learning. 

  1. [84]
    Sometime after Ms McLaughlin had left the room, the appellant encountered another problem with Student 1 when she started using her mobile phone (T1-45):

So what did you do about her using the phone?I went over.  I gave her a simple correction, said, you know, "Come on, put the phone away," and tried to encourage her to put it away.  She became argumentative.  She told me that – you know, that she wasn’t using it, even though I have seen her using it.  So she was being dishonest.  She was lying. And the situation then escalated as she began, you know, to make insults towards me.

What did she say to you?Things of – "You’re" – “You’re pathetic.  You’re disgraceful"” things of that nature that were showing blatant disrespect.

And what did you do about that?She had to be removed from the room again.

And how did you remove her from the room?I believe I sent her to the – to the head of department.  The head of department had just been – had been there, in the classroom.  So there were a few different issues there.  I mean, one, she was off task again. This was actually the third – the third time in a row.  If you actually go to the behaviour tool kit and the consequences there, that – that chart there, it does say that three minor offences, I believe, in a four-week period are automatically a major violation.   Here, we had three major violations within an eight-day period, and three consecutive classes.

So you referred her to the HOD?I referred her both to the head of department and to the – and to  Mr Wright, the dean of students – I’m sorry, I ticked “dean of students” but sent her to Mr Wright because of the blatant disrespect.

After Friday 17 March 2017 

  1. [85]
    Mr Wright emailed the appellant (Exhibit 22) on Sunday 19 March 2017. It is not known what triggered Mr Wright's email, however he started the email by apologising for not getting back to the appellant on Friday 17 March 2017 regarding Student 1.
  1. [86]
    The complete email trail attracted considerable attention during examination in chief in which the appellant was invited to provide his perspective or his interpretation on the exchanges that took place between himself and Mr Wright. The starting point however is to review the email content as it stands and to have recourse to retrospective reflections or explanations only to the extent that they may be necessary to ensure a correct understanding of the communications.
  1. [87]
    The email trail deals with the 9 March 2017 incident. In the email, after pointing out that he had suspended four students already in 2017 as a result of referrals from the applicant, Mr Wright stated:

I need you support on this one Andy and I need you to follow the Behaviour Referral Pathway. On the 9/3:

  • I asked you to make contact with both (students) parents.
  • I called (Student 1's) mother to let her know that your phone call would be coming.
  • I also requested that you give both girls a consequence.

At the end of the day, if I give them a consequence – they behave for me – but go straight back into your class and play up. The consequence needs to come from you Andy. This action is based on research and it works. And please – always One School. That is how I join the dots.

Now as per the Pathway – when it gets to DP level, it is very serious and as I have said (and what has occurred through action), will most probably result in suspension from school. But before it gets to suspending students from school, a very serious action which I don’t take flippantly, I need to see where the Pathway has been followed. It is the very last resort.

As always, I’m available if you want to bounce ideas off me. And of course, Susannah and Catherine are other ports of call for you. Never feel you are isolated in this mate – we are in it together.

  1. [88]
    The essential element of this communication is Mr Wright's direction that the appellant should do what was asked of him on two occasions on 9 March 2017. Mr Wright did not express a view on whether he considered that the incident was a "minor" or "major" incident, but he did tell the appellant to follow the behaviour referral pathway. It may be implied from this direction that Mr Wright considered that the appellant had not complied with the referral pathway in that the pathway makes clear that an incident should not be referred to Mr Wright without going through the referral process, unless the incident is a "major" incident. In his evidence in the proceedings, Mr Wright confirmed that he did not think that the incident was correctly classified as a "major" incident.
  1. [89]
    In his response at 12.45 pm on 20 March 2017, the appellant said that he really resented the implication that he had not followed the pathway. The appellant went on to say in effect that it was Mr Wright's responsibility to resolve the matter and that Mr Wright should not be shifting the blame to him because he did not phone Student 1's parents, "especially when you already had". The appellant then stated that Mr Wright's failure to immediately suspend Student 1 was the cause of her follow-up behaviour:

Hi Simon,

I really resent the implication that I have not followed the behaviour pathway. The incident on 9 March was quite serious, as it encompassed:

  • A refusal to participate in the program of instruction
  • Defiance toward the teacher
  • Truancy, and finally
  • Swearing at a teacher

Clearly, the behaviour pathway shows that (Student 1’s) behaviour escalated to a level for which you are responsible. Let’s not shift the blame by focusing on my not phoning home; especially when you already had. My One School report was completed and forwarded to you for actioning right after the lesson. I consider the lack of an immediate suspension to be the cause of her follow-up behaviour since then. Why should she follow my instructions when she can defy, truant and swear at me with impunity?

Please consider this.

  1. [90]
    The expression of the appellant's responses suggests that he understood Mr Wright's position to be one in which Mr Wright took the view that the incident was not a major incident. It seems to me that, in this response, the appellant is focussed on making a case that the behaviour constituted a major incident. He noted that the incident on 9 March was quite serious because it encompassed behaviours of defiance, truancy, swearing at a teacher, and a refusal to participate in the program of instruction. Two of these behaviours (truancy and directed profanity) are identified in the responsible behaviour plan as major incidents. Major defiance is also identified as a major incident. After referring to the examples of major incidents, the appellant said that it was clear that the pathway shows that Student 1's behaviour "escalated to a level for which you are responsible". It is reasonably clear that the appellant is making the case in support of his use of the "major incident" label in his OneSchool report.
  1. [91]
    The appellant's starting point was that he had referred a "major" incident to Mr Wright and that as far as he was concerned he had no further responsibility in relation to behaviour management. In these circumstances, he should not be required to contact parents and he should not be required to issue a consequence.
  1. [92]
    While the appellant advocated for an immediate suspension, Mr Wright was reluctant to take this step as he explained in his return email of the same date:

Suspending a student is always serious and a last resort. Is there no other way that you can deal with this? My fear is that she will come back and behave the same way. In this situation I would much prefer to see the teacher and the student come to an arrangement. As I said, if it was me, I would be:

  • Calling the parent
  • Issuing a consequence

My feeling is, that if I suspend her, the only person she will follow directions from is me.

Let me know.

  1. [93]
    An issue for consideration is whether under the guidelines, despite a referral of a "major" incident, Mr Wright was able to nevertheless take a different view and exercise a discretion in terms of a referral of functions back to the teacher.
  2. [94]
    The effect of Ms Schultz's evidence was that the designation of an incident as a major incident by a teacher does not necessarily mean that there is an acceptance of that ranking when the referral is reviewed by the deputy principal. The ranking of an incident involves an exercise of discretion by a teacher, different teachers may exercise a discretion differently, and a deputy principal on review of the incident may or may not consider the incident should be ranked in a particular way.
  1. [95]
    Further, Ms Schultz said (T2-42) that when a matter is referred to the deputy principal, it is for the deputy principal to decide what action is to be taken and that such decision could include a referral of the matter back to the teacher in question. However, Ms Schultz accepted that if the deputy principal did not agree with the teachers classification of the incident, she would expect the deputy principal to inform the teacher of this view, and explain why a different classification should have been used.
  1. [96]
    The rest of the email chain commencing on 19 March 2017, involved an airing of differences of opinion over the behaviour pathway, and whether the appellant should be required to speak to Student 1's mother and issue a consequence.
  1. [97]
    The appellant was not reticent in this regard and told Mr Wright that he completely disagreed with Mr Wright's opinions. His justification for his disagreement was in the first instance that students need to know that the deputy principal will follow-up and issue a consequence. Secondly, he took the opportunity to criticise Mr Wright for what he considered to be a failure to respond proportionately to incidents of serious misbehaviour. He said that while Mr Wright was committed to adopting a zero tolerance approach to uniform breaches, he failed to apply the same standard in responding to bad behaviour. He said that if swearing at a teacher was taken as seriously as being out of uniform, a much more supportive workplace environment would be established.   
  1. [98]
    In his evidence in the proceedings, the appellant articulated the extent of his disagreement with the approach adopted by Mr Wright in the 19 March 2017 email. In summary form, the appellant:
  • Did not accept that it was his responsibility, but the responsibility of Mr Wright, to impose a consequence;
  • That he was never informed that the incident was not a major incident;
  • Maintained that it was a complete contradiction of policy and completely non-compliant for Mr Wright to request that the appellant impose a consequence;
  • That he was not authorised to impose consequences for major incidents;
  • That Mr Wright's approach left him "alone and isolated";
  • That it was not within Mr Wright's discretion to refer the matter back to him;
  • That the email included false accusations against him.
  1. [99]
    The appellant said that he did not understand what Mr Wright meant in asking him to follow the behaviour pathway in circumstances where the behaviour had escalated to a level for which Mr Wright was responsible. He said that he was enormously frustrated by the email (T1-53):

What was it?I felt enormously frustrated because, if you look at that response literally, again, it is a complete contradiction to the responsible behaviour plan and Mr Wright’s duty to manage the incidents and issue the suspensions.  If we took that literally, deputy principals would never issue a suspension.  Everything would be dealt with by the classroom teacher.  And that is not what the responsible behaviour plan says.

  1. [100]
    While I understand the applicant's reasoning, I don’t accept that Mr Wright acted unreasonably in asking the appellant to make a phone call to Student 1's mother and reach agreement with the mother on an appropriate consequence. Nothing has been drawn to my attention, whether it be a provision in the responsible behaviour plan or tool kit, or a provision of an industrial instrument that would preclude Mr Wright from making this request or issuing this instruction.
  1. [101]
    Further, the importance of involving parents in the resolution of bad student behaviour seems to me to be central to behaviour management techniques. While I agree in retrospect that a suspension may have been warranted on a review of all the incidents involving Student 1 in March 2017, that course of action had been jeopardised by the failure to respond in a timely way to Student 1's behaviour on 9 March 2017. Had the appellant resolved and imposed a consequence on 9 March 2017 as requested, and Student 1's misbehaviour continued or worsened, a suspension may have been inevitable.

Non-management causation

  1. [102]
    The first matter for determination is whether the appellant's injury was caused by activities unrelated to management action. In my view the evidence does not support such a finding. The evidence does not establish that student behaviour itself made a significant contribution to the appellant's decompensation. Conversely, the evidence establishes that the dominant stressor for the appellant was the management response to the appellant's referral and the perceived failure of management to adequately support the decision making of the appellant around student misbehaviour.
  1. [103]
    In his evidence in the proceedings the appellant consistently complained about the decision making of Mr Wright and railed against Mr Wright's failure to comply with behavioural guidelines and to take the difficult decisions when it came to disciplining students who had been referred on by him for action. The appellant's reaction to Mr Wright's 19 March 2017 email is illustrative of his state of mind (T1-53):

How did you feel about the email that you received from Mr Wright on the 19th of March?I thought that it was a false accusation being made against me.

In what way?My professionalism was being called into question.  And I think that was being used as – as this blame game to – to justify him not taking action that somehow I had done something wrong.

What do you mean by “calling into question your professionalism”?I pride myself on doing my job and, you know, taking care of all my responsibilities.  And I believe that I had done that to the letter.  And, even at one point in a conversation that I had with my head of department about that, I mentioned that I followed everything to the letter.  And she – she concurred with that.  It’s just a matter of personal pride.  When I have somebody accusing me of not doing my job, I take that very seriously because I pride myself on that very thing.

  1. [104]
    The appellant also said (T1-56) that the effect of the email exchanges commencing 19 March 2017 left him enormously stressed, enormously frustrated, and completely unsupported by Mr Wright. 
  1. [105]
    While the medical evidence could be read to identify both student abuse and management action or inaction as stressors, when read in conjunction with the evidence overall, it is reasonably clear that perceived management deficiencies was the dominant stressor while student behaviour was the mechanism which engaged the management action. This conclusion is supported by reference to the following parts of the evidence relating to the appellant's attendance on medical practitioners:
  1. [106]
    The following observations are relevant in so far as the medical evidence is concerned:
  • In his evidence in the proceedings, the appellant linked his attendance on Dr Tay on 25 November 2016 with his dissatisfaction with Mr Wright's handling of the 22 November 2016 incident;
  • In his evidence in the proceedings, Mr Larfield identified the stressors relative to the appellant's condition in the following terms (T1-102): 

Excuse me, Mr Morgan was suffering on the 21st of March 2017, what stressor, or to what stressors did you attribute the issues that he was illustrating to you in session?Well that – that is summarised with session – in session, it was noted that there was abusive behaviour from students on several occasions, it was noted that the patient went to administration for support and that wasn’t followed or given and school policies weren’t followed.  That was all noted, and that would have had a direct contribution that directly correlates with his symptomatology that we have here, and therefore my treatment focus needed to be on that.

  • Mr Larfield's account of the appellant's attendance on him on 31 March 2017 indicated that the main concern of the appellant was his disillusionment with management action (T1-100):

Certainly?So March 2017.  So, in clinical notes there was, on the 31st of the 3rd, this was session 600 of the mental health care plan for that calendar year, I note that there was a WorkCover claim submitted, I note that there were work issues whereby a patient was not – Andrew was not feeling respected or supported, and that there he was feeling undervalued and that there was some issues with student abusive behaviour, lack of admin support and school policies not being followed.

And what was Mr Morgan telling you about how he felt about those issues?Well, he was feeling that he wasn’t being supported from admin and that the – he felt restricted in – and non-supported because he couldn’t – he, according to him, was not responsible for student discipline that had to be referred to deputy, and when he was referring those matters to deputy, school policy was not being followed, and therefore there was no change in the behaviour of student, causing an unsafe work environment for him.

  • Mr Larfield's account of the appellant's attendance on him on 17 March 2017 (T1-100):

And what did Mr Morgan raise with you on the 17th of Match 2017?So 17th of March in the – in session notes, really was not enjoying work environment, it seems to be he’s been quite frustrated about the lack of support from his employer and the situation seems to be repeating and going back to the old days.

 Do you know what is meant by reference to the old days?There has been instances prior where certain schools that Mr Morgan has worked for as a teacher have not followed policy and procedure and supported him in disciplining troublesome students, and there has been three WorkCover claims across an eight year period.

  1. [107]
    Ms McLaughlin's evidence about the appellant's decompensation was reasonably clear in associating the appellant's injury with management action (T3-27):

I apologise for that, Ms McLaughlin.  We were talking about a conversation that you had with Mr Morgan on the 21st of March?Yes. 

You were talking with him about how he felt?Mmm.

He – you said that he – you agreed he was near tears?Yes. 

And he told you that he thought he had followed the rules to the letter but got no support.  Is that right?Yes. 

And you agreed that he had followed the policy of the school?I don’t know whether I fully agreed with that statement, because he was   

What – what did you say?I – honestly, I don’t remember, but I know that he hadn’t followed Mr Wright’s instructions.  I know that much. 

To phone – to phone the student?Yes.  Yes.

And were you talking about that with Mr Morgan?  Did you tell him that?I don’t know whether I told him that or not. 

Did you – was he talking to you about Mr Wright providing support to him?I remember he was looking at the emails.  That seemed to have triggered emotion. 

All right.  And did you tell him why he wasn’t receiving the support that he felt he should?  Were you able to explain that?Well, I – I thought Mr Wright was providing support.  I thought, from the wording of the emails, that he was providing the support.

  1. [108]
    While student misbehaviour was the setting within which the applicant became disillusioned or dissatisfied with the management response to decisions that he had taken, it was not the principal or operative cause of the appellant's decompensation. This conclusion can be sustained by reference to Ms McLaughlin's evidence associated with the appellant's decompensation, by reference to Mr Larfield's evidence, but it is predominantly sustained on the appellant's own evidence which revealed a deep resentment at what he perceived to be Mr Wright's failure to support his own decision making in response to bad student behaviour. 

 Discussion

  1. [109]
    The appellant's case turned on a consideration of specific incidents occurring between November 2016 and March 2017. The appellant did not rely directly on the 22 November 2016 incident but submitted that it demonstrated Mr Wright's inconsistency in responding to referrals from the appellant. The inconsistency arose from the decision in the 22 November 2016 incident to suspend a student, while failing to take the same action in respect to Student 1 arising from the 9 March 2017 incident.
  1. [110]
    The appellant argued that in taking the choices that he did, Mr Wright contradicted one of the fundamental tenets of the responsible behaviour plan by failing to deliver consistent responses in the face of serious misbehaviour. The consequence of inconsistent and inadequate responses was that the appellant did not receive the support that he deserved, and his capacity to maintain classroom discipline was significantly impaired. It was the appellant's evidence that (T1-57):

I wanted something that showed the seriousness of the event so that it didn’t, you know, continue to happen.  In other words, the – the punishment needs to fit the crime.  If it was trivialised down to teacher detentions, then I think it would give her every reason to – to continue then that behaviour.

  1. [111]
    Mr Wright denied any inconsistency in his response to the students' misbehaviour. His evidence was that the circumstances associated with Student 1 were totally different to the circumstances associated with the student involved in the 22 November 2016 incident. 
  1. [112]
    The 24 January 2017 incident does not support the appeal and is not relied on. The incident is relevant in that it reveals the appellant's tendency to ignore a request from Mr Wright and it raises questions about whether the appellant should have referred the incident to Mr Wright given the evidence around normal protocols for dealing with nose piercings.
  1. [113]
    The appellant did not express any disagreement with Mr Wright's handling of an incident on 20 February 2017 when he sent a student to Mr Wright for what the appellant said was continual disruption. He agreed that the student did not articulate a directed profanity and that the offending behaviour did not warrant a suspension.
  1. [114]
    The 9 March 2017 incident involving Student 1 has been canvassed at length in this decision. The appellant maintained that the incident was a major incident and complained that Student 1 should have been immediately suspended by Mr Wright, and that Mr Wright should not have asked the appellant to phone home and agree on a consequence.
  1. [115]
    The incident on 15 March 2017 does not support the appeal and the appellant does not rely on it. However, a doubt exists as to why "cheeky and inappropriate" behaviour on the part of a "fairly good student" warranted a referral to Mr Wright.
  1. [116]
    The 16 March 2017 incident involved the late arrival for class of Student 1 and another student. The appellant referred this incident to Ms McLaughlin and he did not appear to have any disagreement with Ms McLaughlin's handling of the issue as an incident in isolation. The incident assumed more importance when it was considered as part of a pattern of inappropriate behaviour by Student1, including the 9 March 2017 incident, and the incidents that occurred the following day.
  1. [117]
    The appellant was confronted with three instances of student misbehaviour on 17 March 2017. The appellant had no quarrel with Mr Wright's handling of one of the incidents which involved a student arriving at school with a nose piercing and who subsequently subjected the appellant to a directed profanity. Mr Wright moved immediately to suspend the student for three days.
  1. [118]
    The other two instances involved Student 1. In the first of these incidents, Student 1 had refused to comply with the appellant's instruction not to sit in the back row. In the second incident, Student 1 behaved inappropriately when the appellant instructed her not to use her phone during class. While both incidents were referred to Mr Wright, the first incident had been effectively resolved in class with the assistance or intervention of Ms McLaughlin. The appellant's residual concern was that the incident represented continuing bad behaviour on the part of the student.
  1. [119]
    The second incident involved disrespectful and uncooperative language directed at the appellant which the appellant responded to by directing Student 1 to visit Ms McLaughlin. 

Decision

  1. [120]
    In circumstances where the 16 March 2017 incident was referred to Ms McLaughlin and was dealt with by Ms McLaughlin; where the first incident on 17 March 2017 had been resolved in class; and where the student was directed to report to Ms McLaughlin arising from the second incident, the appellant's case primarily turns on Mr Wright's handling of the 9 March 2017 incident, including a consideration of the email exchange commencing on 19 March 2017.
  1. [121]
    On the submissions, the appellant identified a number of deficiencies in the relevant management action. It did not comply with the behavioural guidelines, it erroneously shifted responsibility for the behaviour management of major incidents from Mr Wright to the appellant, it was inconsistent in its responses to bad student behaviour, and it failed to adequately support the appellant in his endeavours to maintain classroom discipline.
  1. [122]
    It was the appellant's case that the following propositions contributed to a finding that his injury was attributable to unreasonable management action taken in an unreasonable way:
  • Mr Wright failed in his duty to support the appellant;
  • Mr Wright was wrong in forming the view that the 9 March 2017 incident was not a major incident;
  • Mr Wright was unreasonable in not informing the appellant that he did not regard the 9 March 2017 incident as a major incident. 
  • Mr Wright failed to comply with the behaviour pathway and should not have asked the appellant to identify and apply a consequence;
  • Irrespective of any disagreement about the classification of individual incidents, the occurrence of three minor incidents in March 2017 generated a "major" incident status which should have cause Mr Wright to take full responsibility for behaviour management;
  • It was only on 19 March 2017 that Mr Wright told the appellant that Student 1's mother was awaiting the appellant's phone call;
  • The inconsistency in Mr Wright's handling of Student 1's conduct and behaviour and the conduct and behaviour of the student involved in the 22 November 2016 incident. It was inconsistent for Mr Wright to refuse to suspend Student 1, while acting in the earlier matter to remove the offending student from the appellant's class and in facilitating the student's absence from school in the last week of the term.
  1. [123]
    Some of these propositions have already been discussed in this decision, however the following reasoning is also relevant:

Duty to support

  1. [124]
    I accept that support for teachers is one of the purposes of the behaviour guidelines. However, this is not the only purpose. The other significant purpose is to encourage teacher accountability in the management of student behaviour. On the evidence, the appellant may not have sufficiently comprehended the balance that needed to be struck.
  1. [125]
    It was not unreasonable for Mr Wright to ask the appellant to discuss a consequence with Student 1's mother. Importantly, Mr Wright had facilitated the process by contacting the mother in advance. In so doing, he was, by implication, informing the mother that the behaviour had been escalated to him, that the issue was serious, and that a consequence would have to be imposed.
  1. [126]
    This was not a case where the appellant was being asked to deal with an argumentative parent who had no empathy for the teacher's predicament. In providing the support that he did Mr Wright was appropriately balancing support for the appellant with a desire to encourage the appellant to be more accountable.  

Major incident

  1. [127]
    On the evidence of Ms Schultz, a finding about whether the 9 March 2017 incident was a major incident is not necessary, because irrespective of the label in the OneSchool entry, Mr Wright was not prohibited from involving the appellant in the resolution of the matter.  The effect of the appellant's submission was that the incident was a major incident because Student 1 swore at the appellant.
  1. [128]
    In the tool kit, verbal misconduct can involve both minor and major incidents. A minor incident includes "inappropriate language", while a major incident is "swearing directed at an adult". In the responsible behaviour plan, "inappropriate language" is identified as a minor incident while verbal abuse or a directed profanity is identified as a major incident.
  1. [129]
    Ms Schultz agreed that the expression "up your arse" involved verbal misconduct and was a profanity. Ms Schultz did not say that it was a "directed profanity". Mr Wright's evidence was that the student was acting in a rude and vulgar manner, but was not swearing. The effect of Ms McLaughlin's evidence was that the expression could fall into either the minor or major category. She said that the expression was "a very low level version" of swearing toward a teacher.
  1. [130]
    For my part, I accept that there is room for differences of opinion on the subject and that these differences could manifest themselves at any level. Consistent with this, the opinions of Ms Schultz, Ms McLaughlin or Mr Wright were all nuanced and were not identical. Based on the dimension of "swearing", I am not satisfied that it was not unreasonable for Mr Wright to question whether the incident was major. 

Behaviour guidelines not followed

  1. [131]
    On the contemporaneous evidence, where no explicit statement was made about the categorisation of the incident, two possibilities arise. Either Mr Wright had always considered the incident to be a minor incident and therefore an incident that should have been resolved at the classroom level, or notwithstanding that the incident was a major incident, Mr Wright exercised his discretion to involve the appellant in the resolution of the matter.
  1. [132]
    It was the appellant's submission that if Mr Wright had proceeded on the basis that the incident was a minor incident, it was unreasonable for him not to inform the appellant, who clearly understood and acted on the basis that the incident was a major incident. Alternatively, the appellant submitted that if Mr Wright accepted that the incident was appropriately classified as a major incident but nevertheless decided to exercise a discretion to involve the appellant in the resolution of the matter, then such a discretion was exercised in error.

Failure to advise that incident was minor

  1. [133]
    It needs to be understood that, in so far as Mr Wright was concerned, the 9 March 2017 incident was resolved on 9 March 2017. This was likely to be the case because the appellant had never told Mr Wright that he had an objection to phoning home, nor did he tell him that he was never going to make the call. Had the appellant made the requested phone call on 9 March 2017, a consequence would have been imposed on Student 1 in response to her misbehaviour, and the 19 March 2017 email would never had been issued.
  1. [134]
    If there were a requirement on Mr Wright to explain why his classification of the incident differed from the appellant's, the time for that explanation was 9 March 2019, not in the email despatched on 19 March 2019.  
  1. [135]
    I don’t consider that much turns on the fact that Mr Wright did not explicitly tell the appellant in the 19 March 2017 email that he did not accept that the 9 March 2017 incident was a major incident. In my view this position was inferred in the email by Mr Wright's statement that the appellant should follow the pathway. It is also more likely than not that the appellant interpreted the email communication to be to the effect that Mr Wright did not accept that the incident was a "major" incident.
  1. [136]
    While Mr Wright should have explained to the appellant on 9 March 2017 why he did not consider the incident to be a "major" incident, I prefer to characterise this omission as a blemish when it is evaluated as part of Mr Wright's overall performance in terms of the matters in contention in the appeal. Relevantly the appellant never contested Mr Wright's response. He said in his evidence that he told Mr Wright that he had not had the time to make the call and implied that he would make the call. This consideration aside, I do not accept that the appellant can sustain his appeal solely by reference to this mistake. If it were one of a number of mistakes, a different conclusion might be reached. 

Exercise of discretion

  1. [137]
    For my part there are a number of observations about the exercise of a discretion. Firstly, while the guidelines provide that the deputy principal is responsible for the resolution of major incidents, there is nothing in the guidelines that precludes, either as a matter of resourcing or as a matter of mentoring or training, the deputy principal involving the classroom teacher in the resolution of the matter. Ms Schultz's evidence supported this view.
  1. [138]
    Secondly, while the appellant characterises his predicament as one in which he was the victim of a substantial wrong, all that was asked of him was that he make one phone call to the mother of one of his students, an activity which should have been entirely routine to him. Thirdly, consistent with the guidelines the appellant was supported by Mr Wright who had all but concluded the disciplinary process by making the advance call to the mother.
  1. [139]
    Finally, this is an employment circumstance in which the controversy would not have arisen had the appellant followed a simple direction from his supervisor and made the phone call on 9 March 2017. These circumstances do not give rise to a finding of unreasonable management action.

Combined misbehaviour constituted a major incident

  1. [140]
    There are two difficulties with the appellant's proposition that Mr Wright should have acted on the collective nature of the March 2017 incidents. Firstly, there is a temporal issue arising from the fact that Mr Wright wrote his email on Sunday morning (19 March 2017) in circumstances where it would not be reasonable to presume that he was fully apprised of all the circumstances associated with events occurring on the preceding Friday (17 March 2017). 
  1. [141]
    While Mr Wright may have read the OneSchool report of all the incidents over the week-end, he had no direct involvement in any of the incidents, and did not have the opportunity to talk to either the appellant or Ms McLaughlin about the events of 16 and 17 March 2017. These were activities which might be expected to wait until the start of the school week, but by then other events had overtaken the matter with the controversy over the email exchange and the appellant's decompensation. In these circumstances, Mr Wright could not reasonably have been expected to have made any finding about the collective nature of the incidents prior to 20 March 2017.
  1. [142]
    Secondly, Mr Wright's 19 March 2017 email was confined to a consideration of the 9 March 2017 incident, and it could not be construed to include any collective consideration of all the relevant incidents.

Appellant did not know mother was expecting call

  1. [143]
    This proposition cannot be made out. In his email to the appellant at 4.07 pm on 9 March 2017, Mr Wright told the appellant to call Student 1's mother and arrange a consequence. He added however that he had already called Student 1's mother and told her about the rudeness. He then told the appellant that the mother was appalled at the daughter's behaviour, and was supportive of her teachers.
  1. [144]
    It is self-evident that having talked to the mother in this vein, and having asked the appellant to call the mother, that the mother expected a call from the teacher.

Inconsistent responses

  1. [145]
    Paradoxically, while in submissions the appellant lauded Mr Wright's handling of the 22 November 2016 incident, his evidence in the proceedings was quite different. This aside, for my part, while consistency in responses is desirable, differences are also inevitable given the variability in the factors for consideration. In any event, I don’t accept on the evidence that the incidents were sufficiently similar to sustain the appellant's argument. On the dimension of "verbal misconduct", I am satisfied that the 22 November 2016 incident more readily fits the description of a "major" incident than does the 9 March 2016 incident.
  1. [146]
    It is also relevant that in some key respects, Mr Wright's approach to both incidents was the same. In each matter the central consideration for him was engagement with the parents, and the involvement of the parents in the resolution of the matter. In each matter he crafted a common sense solution based on parental input and delivered an outcome which reflected a flexible approach to the behaviour guidelines.

Conclusion

  1. [147]
    On a careful consideration of all the relevant facts and circumstances, I am not persuaded that the appellant's injury was caused by, or arose out of, unreasonable management action, or unreasonable management action taken in an unreasonable way.

Order

  1. [148]
    Appeal dismissed. 
Close

Editorial Notes

  • Published Case Name:

    Andrew Morgan v Workers' Compensation Regulator

  • Shortened Case Name:

    Morgan v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 37

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    04 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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