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Leigh v State of Queensland (Department of Education)[2025] QIRC 23

Leigh v State of Queensland (Department of Education)[2025] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Leigh v State of Queensland (Department of Education) [2025] QIRC 023

PARTIES:

Leigh, Nicholas

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2024/182

PROCEEDING:

Public Sector Appeal – Fair Treatment

DELIVERED ON:

28 January 2025

MEMBER:

O'Neill IC

HEARD AT:

On the papers

ORDERS:

The Orders contained in paragraph [200] of these reasons for decision.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the Appellant is employed by the respondent as a high school teacher – allegations of inappropriate conduct made against the appellant – findings made by decision-maker to substantiate certain allegations – fair treatment appeal against a disciplinary finding – where disciplinary action yet to be taken – whether disciplinary finding action was fair and reasonable decision – finding that allegation 1 was substantiated not fair and reasonable – decision-maker's disciplinary finding  with regard to allegation 1 set aside – disciplinary finding that allegations 2 and 3 were substantiated confirmed – decision returned to decision-maker to issue a fresh disciplinary findings decision and notice to show cause on disciplinary action that reflects the orders made in this decision

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 562B, s 562C

Public Sector Act 2022 (Qld) s 91, s 92

Discipline Directive 05/23, cl 8 and cl 9

Code of Conduct for Queensland Public Service 2011

CASES:

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16

Gilmour v Waddell & Ors [2019] QSC 170

Gold Coast Airport Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 060

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10

Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624

Kemp v State of Queensland (Department of Education) [2022] QIRC 164

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Polizzi v Commissioner of Police [No 2] [2017] WASC 166

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456

Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1

Re Poochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

Secretary to Department of Human Services v Sanding [2011] VSC 42

Smith v State of Queensland (Queensland Health) [2023] QIRC 296

Subramaniam –v- The Public Prosecutor [1956] WLR 965

Reasons for Decision

  1. [1]
    Mr Nicholas Leigh ('the Appellant') has been employed by the State of Queensland (Department of Education) as a Secondary School Teacher since 2019. 
  1. [2]
    On 30 January 2023, the Appellant received correspondence from Ms Rachel Borger, Assistant Director General, Human Resources ('the Decision maker'), advising the Appellant that he would be placed on suspension with remuneration until 27 July 2023.
  1. [3]
    A disciplinary process ensued. By correspondence dated 25 June 2024 ('the First Show Cause Notice') from Mr Ralph Montepaone, then Acting Executive Director, Integrity and Employee Relations, the Appellant was asked to show cause as to why disciplinary findings should not be made against him in relation to three (3) separate allegations excerpted below:
  1. On unknown dates in 2021, [Mr Leigh] engaged in inappropriate and unprofessional conduct by:
    1. Residing with a Year 12 student, XY.
    2. Having a sexualised relationship with Year 12 student, XY.
  1. In the period 1 October 2020 to 16 June 2023 while [Mr Leigh] [was] employed at [his] former school or current school, [he] engaged in inappropriate conduct and/or communications with students via social media.
  1. On unknown dates in 2021, [Mr Leigh] engaged in inappropriate communication with students during mathematics lessons at the former school.[1]
  1. [4]
    On 7 August 2024, the Appellant's representative provided a response to the First Show Cause Notice. The Response was limited to Allegation 1 only.
  1. [5]
    By letter to the Appellant on 18 October 2024 ('the decision'), the decision-maker advised that each of the Allegations were substantiated and informed the Appellant that he was guilty of misconduct in relation to Allegation 1 and 2 and contravened the Code of Conduct in relation to Allegation 3.
  1. [6]
    The decision maker sets out her findings on each Allegation in a 13-page enclosure attached to the decision.  The decision relevantly provides as follows in relation to each of the allegations:

…On the basis of my findings in relation to Allegation 1, I have determined that pursuant to section 91(1)(b) of the PS Act you are guilty of misconduct within the meaning of section 91(5) of the PS Act, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector in which you are employed.

…

On the basis of my findings in relation to Allegation 2, I have determined that pursuant to section 91(1)(b) of the PS Act you are guilty of misconduct within the meaning of section 91(5) of the PS Act, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector in which you are employed.

…

On the basis of my findings in relation to Allegation 3, I have determined that pursuant to section 91(1)(h) of the PS Act you have contravened, without reasonable excuse, a relevant standard of conduct, in a way that is serious enough to warrant disciplinary action, namely clause 3.1 of the Code of Conduct for Queensland Public Service (2011).[2]

  1. [7]
    As a consequence of those substantiated allegations, the decision-maker requested that the Appellant show cause with regard to the proposed disciplinary action of terminating his employment.
  2. [8]
    No decision has been made with respect to the imposition of the proposed disciplinary action.
  3. [9]
    These reasons will only address the disciplinary findings and will not touch upon the proposed disciplinary penalty of termination of the Appellant's employment.
  1. [10]
    The Appellant filed his appeal against the decision on 7 November 2024.
  1. [11]
    For the reasons that follow I am not satisfied that the decision to find Allegation 1 to be substantiated was fair and reasonable. I allow the appeal in part, set aside the decision and in lieu thereof substitute a decision that Allegation 1 is not substantiated; however, I confirm the decision to substantiate Allegations 2 and 3.

Application for suppression

  1. [12]
    On 2 December 2024,[3] the Respondent submitted an application requesting the suppression of the names of students, witnesses, support persons and schools. Further the Respondent requested that the file be withheld from search and copy. 
  2. [13]
    The Respondent's application is not opposed by the Appellant. 

Relevant legislation and authorities

  1. [14]
    Section 451 of the IR Act bestows general powers on the commission, and relevantly provides:

451  General powers

  1. The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. Without limiting subsection (1), the commission in proceedings may—

…

  1. make an order it considers appropriate.
  1. [15]
    Section 580 of the IR Act provides for the directions the commission may give in respect of confidential material and is set out in the following relevant terms:

580  Confidential material tendered in evidence

…

  1. The court, commission or registrar may direct—
  1. a report, or part of a report, of proceedings in an industrial cause not be published; or
  2. evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

…

  1. The direction may be given if the court, commission or registrar considers —
  1. disclosure of the matter would not be in the public interest; or
  2. persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

…

  1. [16]
    Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides the Commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:

97  Publishing decisions etc.

  1. The registrar may publish on the QIRC website –
  1. a decision of the court, commission, or registrar; and
  2. the notice of the making or the amended of a bargaining instrument
  1. The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.

Note -

For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.

  1. The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
  1. withhold publication of a document; or
  2. modify a document, before publication, in a way that does not affect the essence of the document.

…

  1. [17]
    The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[4] ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  1. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
  1. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
  1. A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  1. An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  1. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
  1. [18]
    In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[5] ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
  1. [40]
    The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.
  2. [41]
    The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
  3. [42]
    However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
  1. [43]
    The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so.  Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.

…

  1. [44]
    It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
  1. [45]
    In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
  1. [46]
    As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'. (citations omitted)
  1. [19]
    The Respondent submits that whilst the fundamental principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.[6]
  2. [20]
    The Respondent contends that it is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children ... or to avoid some other relevant harm.[7]
  3. [21]
    The Respondent contends that the present decision should be modified before publication and has brought this to the attention of the Commission as required by Practice Direction Number 3 of 2023.
  4. [22]
    In relation to why the decision should be modified before publication to suppress the names of the students, witnesses, support persons and schools involved, and to withhold the contents of the file held in the QIRC Registry from release or search, the Respondent provided the following submissions:
  1. a)
    The Commission has sufficient power under the IR Act and the IR Tribunal Rules to make the orders sought;
  2. b)
    The requested orders are in line with the statutory exceptions to the principle of open justice and the guidance provided in PD 4 of 2023;
  3. c)
    The requested suppression order is limited in scope relating only to the names of the students, witnesses, support persons and schools. It is otherwise in the public interest to publish all other details of the matter, including the name of the Appellant, given the primacy given to the principle of open justice;
  4. d)
    The identification of the names of the students, witnesses, support persons and schools are not directly material to the proper determination of the Appeal before the QIRC;
  5. e)
    In the event the names of the students, witnesses, support persons and schools were to be published there is a risk that persons may, in the future, be discouraged from reporting such suspected misconduct and/or participating in workplace investigations;
  6. f)
    If the names of the students, witnesses, support persons were de-identified, but not the schools, the knowledge of the schools might act to negate the utility of de-identifying the names of the students, witnesses, support persons who attended the school or had children who attended the school; and
  7. g)
    the recent jurisprudence of the Commission includes Industrial Commissioner Power's suppression of the identities of school students and school names on the basis that it is not in the public interest, doing so had no impact on the essence of the decision and the documents filed ought to be withheld from release or search.[8]
  1. [23]
    There has been no application by the Appellant to suppress his identity. In light of the primacy of the principles of open justice discussed by his Honour, O'Connor VP in Aurizon, I consider it is appropriate that the identity of the Appellant remains public.
  2. [24]
    In relation to the identities of the each of the students and the two schools involved, I consider that there is a risk that if the schools are identified, this could lead to a chain of enquiry which could identify one or more of the student witnesses or the student that is the subject of Allegation 1.
  3. [25]
    I agree with the observations of Power IC in Kemp v State of Queensland (Department of Education)[9] that it would not be in the public interest for information to be published which would allow the identity of any of the students involved in this matter, or the schools that they relevantly attended to be identified. The identifying information is not directly relevant or material to the decision.
  4. [26]
    As a consequence, I consider that the identity of each of the student witnesses and the two Schools should be de-identified pursuant to s 451(2)(c) of the IR Act and r 97(3) of the IR Rules.
  5. [27]
    I also consider that it is appropriate that the appeal file and the submissions provided by the parties should be withheld from release or search given that the material identifies the names of the various students, and the schools involved.

The decision letter

  1. [28]
    As noted above the decision-maker's findings were contained in a lengthy enclosure attached to the decision letter.  The decision letter followed an extensive investigation which resulted in a lengthy investigation report.
  2. [29]
    I refer to the following extracts from the enclosure with respect to each of the allegations. To properly examine the decision-maker's analysis of the relevant evidence it will be necessary to excerpt lengthy extracts from the decision letter.
  3. [30]
    To aid in the comprehension of those excerpts I note as follows:
  • The 'former School' refers to the school that the Appellant was teaching at from January 2019 to January 2022.
  • The 'current School' refers to the school that the Appellant was teaching at from January 2022 until his suspension in 2023.
  • 'Student XY' is a former student of the former School and is the subject of Allegation 1.
  • 'UV' is a close relative of Student XY who provided evidence as a witness in the course of the investigation.
  • 'AB' is a former student of the former School who left school part way through Grade 12 in 2021 and was a witness who provided evidence in relation to Allegations 1 and 2.
  • Students 'C' and 'D' are former students of the former School who were Grade 11 students in 2021 and graduated at the end of 2022.
  • Students 'M' and 'N' were former students of the former School who graduated from Grade 12 at the end of 2021.
  • Students 'R', 'S' and 'T' were students at the Appellant's current School at the time of the investigation.
  1. [31]
    I note that the excerpts that follow have been modified from the original to anonymise the names of witnesses and the schools involved and as a consequence, are not a word for word reproduction of the enclosure to the decision letter. In relation to Allegation 1, the decision-maker recorded the following analysis of the evidence available from the investigation report:

…

  1. I am satisfied that you were aware, or ought to have been aware, of your obligations under the Code of Conduct, the Standard of Practice and the Department's procedures and guidelines including your obligations with respect to student protection.
  1. In addition to this, as a teacher registered with the Queensland College of Teachers (QCT) you are also required to comply with the QCT Professional Boundaries:

A Guideline for Queensland Teachers (Guideline). The Guideline provides that teachers are responsible for establishing and maintaining appropriate professional boundaries with students (including acting professionally at all times). When interacting with students you are required to use good judgement and think carefully of the implications and potential consequences of engaging in certain behaviours with students.

  1. As a preliminary matter, I have considered your solicitors' submissions in relation to the standard of proof required for me to establish a disciplinary finding, namely being on the balance of probabilities in accordance with the Briginshaw Principle. In this respect I acknowledge that I am required to take into account the seriousness of the consequences of the finding, the seriousness of the allegation, the quality of evidence and other relevant circumstances. However, as your legal representatives have acknowledged, it is not necessary that facts in dispute be proved by direct evidence, but rather they may be provided by circumstantial evidence alone, by direct evidence alone or by a combination of direct and circumstantial: that is, both direct and circumstantial evidence are acceptable proof of facts. I am then required to consider the credibility and reliability of the evidence (and which I have done so below).
  1. It is uncontentious that:
  1. a.
    In 2019 Student XY was a student in Year 10 at the former School and you were XY's maths teacher; and
  2. b.
    at the relevant time (2021) Student XY was in Year 12 at the former School and aged 17 years old.
  1. I have also had regard to your interview with the investigator on 5 December 2023 in which you give evidence that in 2021, when Student XY was in Year 12, XY was in the 'home room' class next to yours. 'Home room' teachers also taught a subject called 'Careers and Wellbeing' once per week. You told the investigator that your 'Careers and Wellbeing' class would combine with the class next to yours every few weeks, during which you would be responsible for teaching Student XY for part of this class.
  1. In your interview on 5 December 2023, you relevantly stated that:

…

  1. c.
    While Student XY was at the former School, your contact with XY was friendly and professional. Sometimes when you were on playground duty, you would chat with XY. There was a group of four or them including Student XY, (and three other students).
  2. d.
    After Student XY graduated Year 12, XY added you on Facebook and you accepted the friend request. [The decision-maker noted that as of 8 July 2023 the Appellant remained friends with XY on Facebook].
  3. e.
    You admitted that since XY left school, maybe once every few months XY would send you a message to tell you how XY was going with things. You would respond to these messages.
  4. f.
    You denied allowing Student XY to reside with you while XY was a student at the former School. You also denied that Student XY ever attended or stayed over at your place of residence.
  5. g.
    While you were employed at the former School, you lived by yourself in a two-bedroom duplex. Family and friends would come and stay with you throughout 2021 however you lived alone.
  6. h.
    You denied engaging in sexual conduct with Student XY. You denied having sexual intercourse or any physical contact with  Student XY.
  1. Student XY did not participate an interview with QCT or the Department. As a result, there is no direct evidence from XY in relation to your alleged conduct towards them. In XY's email to QCT in September 2023 they stated that 'due to some health complications and other personal contributing factors I will be unable to be a part of the investigation, and do not wish to be further contacted about this in the future. I am sorry for the inconvenience this may cause.' However, at no time does XY simply deny your conduct or refuse to participate as the allegations are baseless.
  1. Notwithstanding Student XY's decision not to participate in an interview, I have taken into account the email trail dated 2 November 2022 to 3 November 2022 in which the Principal of the former School referred information concerning your alleged conduct to Integrity & Employee Relations. More specifically, the Principal advised that two students at the former School, Student C and Student D, had notified her that, among other things, a couple of former students had told them that Student XY was not living at home in 2021 (while XY was in Year 12) and that during the time that XY was not living at home, XY lived with you and had sex with you.

The Principal of the former School sought clarification about the former student/s who had disclosed this information to them and was advised that it was another former student, AB, who informed them that Student XY had lived with you when not living at home.

  1. I have carefully reviewed the transcripts of the interviews with Student C, Student D and AB. In particular I note that:
  1. a.
    AB told the QCT investigator during their interview on 8 March 2023 that AB was told by the former School students, student M and student N, that Student XY was living with you throughout grade 11 and 12, because XY's family had 'kicked XY out'. They (the former students) also told AB that you and Student XY were sleeping together at the time.
  2. b.
    During the interview with the departmental investigator on 7 July 2023, AB stated that during grade 12, Student XY was living with you and having a relationship with you whilst XY was 'struggling with stuff' at home. AB maintained that AB was told this by former student M and former student N when they had gone out drinking socially on 2 October 2022. During the conversation with former student M and former student N, AB disclosed to them that you had screenshotted a Snapchat photo of AB in lingerie. AB told the departmental investigator that former student M and former student N had told AB that when Student XY was in grade 12, XY had been kicked out of home by XY's parents and you had let XY move in.  AB stated AB was aware you had a girlfriend (living elsewhere) at the time, however, was also told you were having sex with Student XY.
  3. c.
    Student C told QCT on 16 March 2023 that you used to be a teacher at the former School, and you were C's Year 11 Maths teacher. After you had left the former School at the end of 2021, there was a party and all of the girls in Year 12 who had just graduated, were talking about you, and saying that you had slept with Student XY while XY was still a student. Student C told the investigator that C didn't think Student XY had lived with you for long and referred to your girlfriend (whom you spoke about in class). C also recalled AB coming to the former School looking for Student C to ask whether you had been viewing Student C's stories on social media. Student C also made a comment about you sleeping with Student XY.
  4. d.
    On 17 July 2023 Student C gave evidence to the departmental investigator that in or around November 2022 C had been told through some girls in the grade above (i.e. Year 12), who graduated the year before, that you had been sleeping with a former student (Student XY) while XY was a student at the former School. C was aware that Student XY had been staying at your house when XY wasn't 'welcome' at home. C told the investigator that former student M and former student N had told AB about what had happened between you and Student XY.
  5. e.
    During D's interview with QCT on 16 March 2023, student D gave evidence that AB, a former student at the former School, had told a number of students in October 2022 about you sleeping with Student XY. Student D recalled that student C had told Student D that AB had been looking for them to talk about you viewing their Instagram stories, and AB told Student D what happened with Student XY.

Student D further gave evidence that D recalled another occasion where a comment was made that Student XY was sleeping with you, and D indicated that it was 'really just everywhere'.

  1. As detailed in your Response, I acknowledge that the evidence given by AB, Student D and Student C is hearsay evidence. Further, it is not suggested that Student XY directly disclosed the information about your alleged conduct to any of these witnesses. Relevantly, AB gave evidence that AB was told by former student M and former student N, that Student XY was living with you while XY was not living at home and was having sex with you while XY was still a student at the former School.

Neither former student M and former student N were interviewed as part of the investigation, and it is therefore unclear whether Student XY told them this information directly or it was disclosed to them by a different source.

  1. Significantly however, I have reviewed the case note of the investigator in which they recorded the contents of a telephone call on 24 January 2023 with Student XY's close relative UV.  UV was advised that the purpose of contacting UV was due to the Department receiving concerns about the alleged conduct of a departmental employee towards Student XY whilst XY was a student. The investigator did not advise UV of the name of the alleged employee responsible or the alleged conduct. During this call UV volunteered the following relevant information (my underlining):

XY was shaking. … [Student XY] had confided information to UV last year [2022] that was very concerning.

XY asked UV to promise not to tell anyone. XY believed the conduct was appropriate as XY had nearly graduated.

XY disclosed to UV that towards graduation XY had a fight with XY's parents and left. XY briefly stayed with XY's teacher. The teacher was young and had ginger coloured hair. The teacher would drive XY to school. XY also disclosed that XY had had sex with the teacher. XY had sexual intercourse with the teacher whilst XY was still attending school.

UV told XY that the teacher's conduct was inappropriate. UV was not aware of the teacher' name, however, UV knew that XY was friends with the teacher on Facebook.

Whilst talking to the investigator, UV looked up Facebook and identified the teacher as Nick Leigh.

UV believed XY would not talk to the Department about the matter as XY did not want to get the teacher into trouble. XY believed that the conduct was okay as XY had nearly graduated.

  1. It is significant that UV, being a close relative of Student XY, identified you as the departmental employee as having engaged in inappropriate conduct towards XY (notwithstanding the investigator did not disclose your identity or name). UV further provided information (similar to the accounts provided by AB, Student D and Student C) including that XY had a fight with XY's parents, left home and briefly stayed with you, and during that time had sexual intercourse with you whilst XY was still a student. Further, and significantly, UV's evidence is that XY disclosed this information to UV directly.
  1. I note that UV also participated in an interview with the QCT on 13 March 2023, with XY's mother present as the support person. During this interview UV gave evidence that:
  1. a.
    UV was told by XY towards the end of 2022 that XY was going to go see an ex-teacher when XY was in Brisbane for a holiday.
  2. b.
    XY told UV that towards the end of Year 12 (in 2021), XY had been 'seeing' (which UV understood to mean Student XY was a romantically involved and/or in a relationship with) that same teacher.
  3. c.
    XY has told UV that there was a week where XY had left home and had told XY's parents that XY was staying at a friend's house but, in fact, XY stayed at your house.
  4. d.
    Student XY further told UV that you had driven XY to school and dropped XY off before the school and then you and Student XY would go home and cook dinner together.
  5. e.
    XY had described it as essentially a relationship to UV.
  6. f.
    Student XY told UV that you and XY had slept together on numerous occasions and were also talking about continuing the relationship, after XY had graduated.
  7. g.
    Student XY did not end up seeing you in Brisbane as XY had stayed with UV the whole time.
  1. In your Response, your legal representatives submit that there is no direct evidence from Student XY as to the alleged conduct occurring (which I accept). I also note that the only direct evidence is your denial of the conduct. However, while your legal representatives have made submissions that no weight should be placed on any of the other witnesses' evidence, I do not agree their evidence should be disregarded entirely.

In this respect:

  1. a.
    I accept the former Principal, Student D, Student C, and AB provide no direct evidence and that their evidence is hearsay evidence. While this affects the weight I can place on their evidence, in my view it is significant that their evidence to a large extent corroborates and is very similar to the version of events given by UV.
  2. b.
    Your legal representatives further accept that while UV may be credible, their assertion as to what Student XY said to them cannot be relied on as the truth of the contents of Student XY's statement as it cannot be tested. However, in my view it is significant that UV independently identified you in UV's initial phone call with the investigator as the teacher with whom Student XY had lived and had sex with. This was without any prompting. Further UV's evidence about the circumstances in which Student XY lived with you, namely that XY had an argument with XY's parents and left home for approximately one week in 2021, is consistent with the information provided to AB, Student C and Student D.

This supports a conclusion that the evidence is reliable. Further in my view the evidence of UV is credible and must be afforded weight, particularly in circumstances where UV has no motivation to fabricate the allegations against you.

  1. c.
    In relation to Student XY's refusal to participate in the investigation, your legal representatives have submitted it is a reasonable hypothesis that the alleged disclosures by Student XY to UV are not true. However, as detailed above, I find it significant that in XY's emails with QCT Student XY did not deny the conduct.
  1. Further, and significantly, I hold concerns in relation to your credibility. In this respect I note that in relation to Allegation 2, during your interview with the investigator, your evidence changed from initially denying the conduct in its entirety. However, once you were shown the documentary evidence your evidence changed to a lack of recollection, to eventually a possibility that it was you/could have been you. In your Response, you also now accept that it is open to me to make findings in relation to Allegation 3 (despite your evidence to the investigator that you did not make certain comments).
  1. In your Response your legal representatives have submitted that your admissions in relation to 'Allegations 2 and 3', goes towards your credibility, and therefore your response in relation to Allegation 1 should be accepted as truthful. I do not agree and consider this to be disingenuous. Relevantly, you changed your evidence in relation to Allegations 2 and 3 to make admissions in response to documentary evidence which supported the allegations. You were initially less than frank. This suggests to me that you only made the admissions because you were faced with evidence which mean you could no longer maintain your denials. I also consider that you have a motivation to fabricate your evidence and to deny the conduct of Allegation 1, noting that the consequences of engaging in the conduct the subject of this allegation will have a serious impact on you.
  1. For the reasons detailed above, on balance, I prefer the evidence given by UV (and consider it to be supported by the hearsay evidence of the former Principal, Student D, Student C, and AB) over yours to the extent that it differs.

Summary

  1. On the basis of my findings above and having considered the totality of the evidence before me, I am satisfied that you engaged in inappropriate and unprofessional conduct by allowing Student XY to reside with you for a short period of time (approximately a week) whilst XY was in Year 12 at the former School. I am also satisfied that during this time you engaged in a sexual relationship with XY.
  1. In my view your conduct in allowing Student XY to reside with you and engaging in a sexual relationship with XY was highly inappropriate and unprofessional. This constituted a complete failure by you to maintain appropriate boundaries with students. I also consider your conduct amounts to sexual misconduct with a student.
  1. I note that there is a high threshold to be met before I can find conduct amounts to misconduct. Misconduct, compared to other inappropriate or improper conduct, requires a deliberate departure from accepted standards, serious negligence to the point of  indifference or an abuse of the privilege and confidence enjoyed by a public service employee.
  1. I consider your conduct the subject of this Allegation 1 was extremely serious and constituted a deliberate and repeated pattern of disregard for the boundaries that exist in your professional relationship with students. On this basis, I find that your behaviour the subject of this Allegation 1 meets the definition of misconduct. I further consider that the community, particularly parents and students expect a teacher to maintain professional teacher/student boundaries, including not allowing a student to reside with them and/or engage in a sexual relationship with them (even if they are older than 16-year-old). I am therefore satisfied that your conduct reflects seriously and adversely on the Department.[10]
  1. [32]
    In relation to Allegation 2, the decision-maker in Enclosure One to the decision letter provided the following analysis of the evidence:

…

  1. You do not dispute that at the relevant times:
  1. a.
    AB, Student C and Student D were students at the former School; and
  2. b.
    Student R, Student S and Student T were students at the current School (you taught these students Year 11 Maths in 2022 and Year 12 maths in 2023 until you were suspended from duty).
  1. I have carefully considered your interview with the departmental investigator and your Response. Significantly, in your Response, unlike your interview with the investigator on 5 December 2023, you do not dispute the sufficiency of the evidence in relation to Allegation 2 and further accept that it is open to me to make findings in relation to Allegation 2. Notwithstanding the submissions in your Response, I have reviewed the relevant evidence, as detailed below, when determining whether to substantiate each of the alleged incidents that comprise the allegation.
  1. In particular, I have had regard to interview conducted by QCT with AB, a former student of the former School on 8 March 2023 in which AB stated that:
  1. a.
    You were a teacher at the former School in 2021 however you didn't directly teach AB, other than some tutoring.
  2. b.
    AB believed you added AB to SnapChat while AB was still a student.
  3. c.
    Snapchat notifies the owner of an image, when their photo has been 'screen shotted' or screen recorded. AB received a notification in approximately July 2022 saying that you had screen shotted AB's photos. The photos were of AB and two co-workers in their work uniforms, which is lingerie.
  4. d.
    AB confronted you with a message about the screen shot and then blocked you.
  5. e.
    It made AB feel pretty uncomfortable because AB was a former student.
  6. f.
    AB reported it because AB had spoken to some other young women AB had known from school, and they also told AB that they were aware that you were also doing this to two younger female students.
  1. AB also participated in an interview with the departmental investigator on 7 July 2023. AB told the investigator that:
  1. a.
    AB was aware that 'Nick' on Snapchat was you because AB looked at your profile the day you added AB to Snapchat. AB could no longer find your username on Snapchat and was therefore unable to confirm the date you added AB. However, AB was in Year 11 when you added AB to Snapchat. At this time, you added multiple Year 11 students. AB recalled that you did this at the former School during the Year 12 send-off parade.
  2. b.
    AB posted a photograph of AB in lingerie to AB's Snapchat.
  3. c.
    On 19 August 2022 (AB was no longer a student at this time) you took a screenshot of this photograph from AB's Snapchat. In response, AB messaged you telling you AB could tell that you took a screenshot of AB's photograph. You replied to AB, ''sorry, I probably should not have done that. I'll delete it. '' AB also provided a copy of the message to the investigator.
  1. I have carefully considered your interview with the investigator on 5 December 2023 and your Response. You told the investigator that:
  1. a.
    After AB graduated Year 12, AB sent you a friend request on Facebook and you accepted the request.
  2. b.
    You engaged in limited interaction with AB on Facebook. You may have liked one of AB's photos, and engaged in messaging with AB.
  3. c.
    You did not have contact with AB on any other social media platforms other than Facebook. You denied having any contact with AB via Snapchat, Instagram or Twitter.
  4. d.
    It was untrue that you added AB to your Snapchat or that you took a screenshot of AB's photograph on Snapchat. It was false that AB contacted you via Snapchat advising you AB could tell that you had taken a screenshot of AB's photograph or that you responded to AB.
  5. e.
    You could not recall your Snapchat username.
  1. The investigator then showed you a screenshot of a conversation between AB and ''Nick'' on Snapchat. When you were advised that AB's evidence was that this conversation was between you and AB, you told the investigator that you could not recall. You also stated you doubted it was you as you had not added AB to your Snapchat. However, you then admitted to the investigator that at that time [approximately mid 2022], your emoji picture on Snapchat probably did look like the one in the conversation thread shown to you. You then stated that it could be you [in the conversation thread], and that you could not be sure.
  1. I also note that during your interview you complied with the investigator's request to show your Snapchat account. The investigator observed your name on Snapchat was Nick and your emoji was similar, however it had slightly darker red coloured hair.
  1. With respect to the credibility of AB, there is no available evidence to indicate AB was not telling the truth. AB was able to provide documentary evidence to support AB's evidence (in so far as the conversation that took place via Snapchat in 2022). You also provided no legitimate basis or reason for me to believe that AB would have fabricated the evidence against you. Further, during your interview with the investigator your evidence changed from initially denying the conduct in its entirety. However, once you were shown the documentary evidence your evidence changed to a lack of recollection, to eventually a possibility that it was you/ could have been you. I do not consider your evidence in relation to this allegation to be credible.
  1. On the basis of the material before me and taking into account your Response in which you now do not dispute the sufficiency of the evidence, I prefer AB's evidence over yours to the extent that it differs. I am therefore satisfied that you added AB to your Snapchat account whilst AB was a student in Year 11 at the former School.
  1. I have further had regard to the interview conducted by QCT with Student D, a former student of the former School on 16 March 2023. Student D was in Year 12 at the former School in 2022. D told the QCT that:
  1. a.
    You had been D's Maths teacher when D was in Years 10 and 11 at the former School.
  2. b.
    In approximately mid-2022, D became aware that you were viewing D's stories on Instagram.
  3. c.
    D knew it was you who viewed D's stories because your profile photo is of you, and it has your name.
  4. d.
    You had never made comments on D's social media and did not follow D on Instagram or Facebook. D had also never invited you to be D's friend on any social media platform.
  5. e.
    D felt it was 'weird' you were looking at D's social media stories.
  1. In your interview with the departmental investigator, you initially denied searching for and viewing Student D's Instagram content whilst D was a student, instead stating you did so after D had graduated. However, during your interview you later contradicted yourself by stating that during a class in 2021, in which you taught both Student C and Student D, you searched for and viewed one of these student's posts on social media.

Further, when provided the interview evidence of Student D that D became aware you viewed D's Instagram stories as early as mid-2022 and continued to view them through to March 2023, you told the investigator that 'potentially' you could have done that. Again, the inconsistency or change in your evidence causes me to doubt your credibility with respect to this allegation.

  1. On the basis of the material before me and taking into account your Response in which you now do not dispute the sufficiency of the evidence, I prefer Student D's evidence over yours to the extent that it differs. While D's evidence is that D had spoken with a number of other former students about your conduct towards them, including Student C, you have given me no basis or reason for me to believe that Student D would have fabricated and/or colluded with Student C when making allegations against you.
  1. I am therefore satisfied that in mid-2022, while Student D was a student in Year 12 at the former School, and you were working as a Teacher at the current School, you searched for D on social media platform, Instagram and viewed D's 'stories' on a number of occasions.
  1. I have also carefully considered the evidence given by Student C, a former student at the former School including during the interview conducted by QCT on 16 March 2023 and with the departmental investigator on 17 July 2023. In summary, Student C gave evidence that:
  1. a.
    You were C's Year 11 maths teacher at the former School. At the end of 2021, you transferred to a school in another location. C finished Year 12 at the former School in November 2022.
  2. b.
    In approximately mid 2022 you started viewing C's Instagram stories.
  3. c.
    C recognised that you were viewing C's Instagram as you had a selfie photograph against your name.
  4. d.
    C's Instagram stories were public. However, if someone is not following C, in order to view C's Instagram stories, they would need to search for C and then view the story. You did not follow C on Instagram, so you would have had to search for C to then view C's story.
  5. e.
    From approximately October 2022 through to November 2022, C noticed that you watched C's Instagram stories about five times (as C went through C's views (on Instagram) and saw that you had viewed C's stories). C then made C's profile private and blocked you from viewing C's profile.
  6. f.
    During a conversation with Student D C told D you had viewed C's stories, and Student D told C that you had also viewed D's Instagram stories.
  7. g.
    C took screenshots to show you had viewed C's stories, however C could no longer find these photos.
  1. Relevantly, during your interview, you told the departmental investigator that you did not have any contact with Student C's social media in 2022. You further gave evidence that Student C graduated end of 2022, and after C graduated, you typed C's name into Instagram to search for C and then viewed C's photos. However, when advised that Student C had provided information that you had viewed C's Instagram stories between October 2022 and November 2022 approximately five times, you then told the investigator that you probably did. This is another example of your evidence changing during your interview.
  1. On the basis of the material before me, I prefer Student C's evidence over yours to the extent that it differs. You have given me no basis or reason for me to believe that Student D would have fabricated and/or colluded with Student C when making allegations against you.
  1. I am therefore satisfied that in late 2022 while Student C was still in Year 12 at the former School, and you were a teacher at the current School, you searched for C on social media platform, Instagram and viewed C's 'stories' on a number of occasions.
  1. It is also uncontentious that on around 30 January 2023, you were issued with a letter dated 30 January 2023 from me as then Executive Director, Integrity & Employee Relations which suspended you from duty, and further directed you to 'continue to follow the provisions of the Code of Conduct, the Department's Standard of Practice and other policies' during your period of suspension.
  1. I have considered the evidence of Student R, Student S and Student T who were all students at the current School in 2023. All three witnesses told the departmental investigator that you viewed their Instagram stories in 2023, after you would have received the suspension letter. More specifically:
  1. a.
    Student R told the investigator that during term two 2023 R was a student at the current School. R noticed that you (being R's former maths Teacher) had looked at a story on R's Instagram account. R's Instagram story that you viewed was only up for 24 hours. R did not take a screenshot confirming that you had viewed R's story.
  2. b.
    Student S gave evidence that you taught S maths in Year 11 and for the first part of Term 1, 2023. S wanted to know who had viewed the Instagram story so looked up S's views. S noticed that you were a person who had viewed S's story however you do not follow S on Instagram. Student S identified you from your profile photo. Student S had uploaded a photo to S's Instagram reel on 10 June 2023. On 11 June 2023, S took a screenshot showing that you had viewed S's Instagram story. S has S's full name displayed on S's Instagram profile. It was public at the time, but S has since made it private.
  3. c.
    Student T told the investigator that towards the end of Term 2, 2023, T's friend Student S told T that you had viewed S's Instagram story. T then checked T's own Instagram and saw that you had also viewed T's Instagram story. At the time you viewed T's story, T's profile was public. T has since changed T's profile to private. You have never followed T on Instagram, and therefore in order for you to view T's story, you would have searched for T by name and then clicked on the story to view it.
  1. In addition to the above, I find it significant that:
  1. a.
    On 18 July 2023, Student S emailed the investigator and provided two screenshots including the screenshot of S's Instagram story taken on 11 June 2023. This screenshot of S jumping in a car park shows several persons who viewed the story, including a 'Nick Leigh'.
  2. b.
    During T's interview Student T provided the investigator with several screenshots from T's phone, including one depicting a list of some of the persons who viewed T's Instagram story whereby T was lifting T's body up on a shopping trolley. The screenshot identifies 'Nick Leigh' viewed the story. T also provided a screen shot of the 'Nick Leigh' that viewed T's story which clearly shows the profile picture being you.
  1. I have also reviewed the transcript of your interview with the investigator on 5 December 2023, during which you gave evidence that:
  1. a.
    After you were suspended you looked up social media accounts of students to see what they were up to.
  2. b.
    You searched for Student R by name on Instagram and then viewed content R had posted. You did so on more than one occasion.
  3. c.
    You searched for Student S by name on Instagram and then viewed the content S  had posted. You did this to see what S was doing.
  4. d.
    You confirmed it was you in the screenshots of persons who had viewed Student T's Instagram account depicting a photo of Student S.
  5. e.
    You searched Instagram for Student T and looked at T's Instagram a handful of times.
  6. f.
    You confirmed it was your Instagram account (de-identified xxxxx.xx) with name 'Nick Leigh' that viewed Student T's Instagram story which T uploaded on or around 10 June 2023.
  1. On the basis of the material before me, including your admissions to the Investigator and your Response, I am satisfied that in early/mid 2023 you searched for Student R, Student S and Student T on Instagram, and viewed stories they had posted. I am particularly concerned that you did so after you had been suspended from duty, and after you were specifically reminded of your obligations to continue to follow the provisions of the Code of Conduct, the Department's Standard of Practice and other policies during your period of suspension.

Summary

  1. On the basis of my findings above and having considered the totality of the evidence before me, I am satisfied that in the period 1 October 2020 to 16 June 2023, while you were employed at the former School and/or the current School, you engaged in inappropriate conduct and/or communications with students via social media (as detailed above).

…[11]

  1. [33]
    In relation to Allegation 3, the decision-maker in Enclosure One to the decision letter provided the following analysis of the evidence:
  1. It is not in dispute that in 2021, Student C and Student D were students in Year 11 at the former School.
  1. I have had regard to Student C's evidence given during the interview with QCT on 16 March 2023. Relevantly Student C told the investigator that you made 'weird' comments to female students. Student C recalled that during a Year 11 maths lessons with you in 2021, a female student had made the comment 'oh its hot in here' to which you responded, 'no that's just you.'
  1. Further during Student C's interview with the departmental investigator on 17 July 2023 Student C also gave evidence that on one occasion during a maths lesson in 2021, you explained to the class how babies were born, including that sperm goes into the egg. You then asked the students if they had any questions. C recalled that one student then asked you if it was awkward during sex and you replied, 'it was if there was blood'.
  1. Further, I have also taken into account Student D's interview with QCT on 16 March 2023 in which Student D also recalled that the class had gone to a conference at (located de-identified). When the students returned, they started their maths class with you late. This class then turned into a sex talk. Someone asked a question about sex, and you answered. Student D thought it was 'awkward'.
  1. I have also given careful consideration to your interview with the departmental investigator on 5 December 2023 and your Response. In your interview you gave evidence that:
  1. a.
    During class, Student D made a comment that it was hot in here. You responded with words to the effect 'no, that's just C [Student C]'. You told the investigator that you were joking when you said this. You further stated that you 'often make a humorous response to students.'
  2. b.
    You told the investigator that you could understand how the comment could be perceived inappropriately. You then said that "I made that comment 'cos I have a good working relationship with those students, and it was, you know, I don't make comments about kid's haircuts or stuff like that, it was I often joke around with kids but never, well would not have said it if I knew it was going to offend or upset somebody or something like that or, or be taken in any way other than a joke."
  3. c.
    You told the investigator that you did not remember making the comment that sex was awkward if there was blood. However, you stated that in 2021, you recall teaching a Year 10 Science class where you had reproductive organs on the PowerPoint.

You remember your Year 11 students walking past your classroom, seeing the PowerPoint and thinking it was funny. Later in your maths class the Year 11 male students joked about the PowerPoint they had seen you teaching earlier.

  1. d.
    It was probably the Year 11 male students who 'steered' the conversation, however you do not remember the students asking you questions.
  2. e.
    You can't remember exactly the comments, but you remember the conversation was getting worse and worse about topics, the more that they were feeding off each other and making the joke (but don't remember specifics).
  3. f.
    You are pretty sure you were trying to start your lesson and trying to quieten them down and get them off-topic.
  1. In addition to the above, in your Response you do not dispute the sufficiency of the evidence in relation to Allegation 3 and further accept that it is open to me to make findings in relation to Allegation 3.
  1. On the basis of the material before me, and taking into account your admissions and Response, I am satisfied that:
  1. a.
    in response to a comment made by a female student 'oh its hot in here' you responded, 'no that's just you;' and
  2. b.
    during a Year 11 Maths class you discussed sex including in response to a question from a student as to whether it was awkward during sex, and you replied it was if there was blood.
  1. I do not accept that the comment you made in reference to a female student being 'hot' was acceptable and/or an appropriate joke for you to make in an attempt to build rapport.

I also do not consider that there was any reasonable or justifiable educational purpose for you to discuss sex with students in a Maths class.

  1. The Department is committed to providing a safe and supportive learning environment for students and requires its employees to model and encourage behaviour that upholds the welfare and best interests of students. Relevantly, the Guidelines for Implementing 'Allegations against Employees in the Area of Student Protection' provides that 'when employees communicate with students it should be respectful and appropriate for the situation. It should not contain sexual references or innuendo.'
  1. In my view your conduct, namely the comments made by you about or in the presence of female Year 11 students was not appropriate and as such failed to comply with the requirements as detailed in the Guidelines for Implementing 'Allegations against Employees in the Area of Student Protection'. I am therefore satisfied that it constituted a contravention of the Code of Conduct and a failure by you to maintain appropriate boundaries with students as required by the Guidelines for Implementing 'Allegations against Employees in the Area of Student Protection'. Having regard to the nature of the conduct, in my view it is also a contravention of the Code of Conduct sufficiently serious to warrant disciplinary action.[12]

The Appeal Notice

  1. [34]
    In an attachment to the Appeal Notice dated 6 November 2024, the Appellant sets out his grounds of appeal. I summarise the grounds of appeal as follows:
  1. There has been no procedural and substantive fairness afforded to the Appellant. The Appellant makes reference to Directive 01/24 – Workplace Investigations ('Investigations Directive'), contending that the investigation into the Allegations against him did not comply with Investigations Directive because the investigation did not appear to have:
  • been conducted fairly.
  • been free from conflict of interest or bias, both conscious and unconscious.
  • have clear terms of reference that ensures the transparency of the process.
  • been conducted in line with the principles of procedural fairness.
  • been conducted ethically and lawfully.
  • involved regular and transparent communication.
    1. The Appellant contends in relation to all Allegations, no procedural and substantive fairness has been afforded to him.
    2. The Appellant contends that a decision has been made that will result in his termination.  
    3. In relation to Allegation 1, the Appellant contends that only indirect evidence has been used to substantiate the Allegation as the 'alleged victim' was never interviewed and nor were XY's parents. The witnesses that were interviewed could only provide hearsay evidence and one such witness provided evidence on two occasions that the alleged victim "denied that anything happened between XY and Mr Leigh".                
    4. The Appellant alleges that the failure to properly particularise the date of the allegation means that he has been prevented from providing evidence which may exonerate him.               
    5. In relation to the alleged 'sexualised relationship', the Appellant finds it difficult to accept that if this allegation was considered true why he has not been referred to the Queensland Police Service for investigation of a criminal offence.                
    6. The Appellant contends that the Department have not conducted a fair and just investigation into the Allegations and that the investigator was not free from a conflict of interest or bias. The Appellant further contends that the investigator has weighted the evidence heavily on the side of the "alleged victim" without justification.               
    7. In respect of Allegation 2, the Appellant contends that new evidence should be considered that would allegedly disprove evidence provided by AB and therefore call AB's credibility into question.

Is the Appellant entitled to appeal?

  1. [35]
    A disciplinary finding decision that allegations have been substantiated is not a disciplinary decision as defined in s 129 of the Public Sector Act 2022 (Qld) ('the PS Act'). In the present case disciplinary action has not yet been taken against the Appellant.
  1. [36]
    Pursuant to s 132(4)(b) of the PS Act a fair treatment appeal is available regarding a finding made pursuant to s 91 of the PS Act that a disciplinary ground exists for the person.[13]
  1. [37]
    In the Appeal Notice, the Appellant in section 3 of the Form 89 has in error ticked the decision type being appealed as 'A disciplinary decision'.[14] His error is understandable in circumstances where it would appear to him that a decision that a disciplinary finding exists is in fact a disciplinary decision.
  1. [38]
    The Respondent has not taken issue with the error made by the Appellant. The Commission is provided with a broad discretion pursuant to s 539(e) of the Industrial Relations Act 2016 ('the IR Act') to waive, amend or correct such an error. I waive the error of the Appellant, and I will treat the appeal as a fair treatment appeal of the decision letter dated 18 October 2024.
  2. [39]
    Section 131 of the PS Act lists the types of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act outlines that a fair treatment decision may be appealed.
  3. [40]
    Fair treatment decisions are defined within s 129 of the PS Act, which relevantly states:

129Definitions for part

…

fair treatment  decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [41]
    The Appellant has been an employee of the Respondent at all times relevant to this appeal.
  1. [42]
    I am satisfied that the Disciplinary Finding Decision is one that can be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal.
  2. [43]
    Section 564(3) of the IR Act requires an appeal to be lodged within 21 days after the day the decision appealed against is given.
  3. [44]
    The Appellant received the decision letter on 18 October 2024 and the Appeal Notice was filed in the Industrial Registry on 7 November 2024. I am satisfied that the appeal has been brought within the required time.

Appeal Principles

  1. [45]
    Section 562B(3) of the IR Act provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.[15]
  1. [46]
    The IR Act provides that for an appeal against a disciplinary decision, the commission:[16]
  1. must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [47]
    A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the decision-maker.[17]
  2. [48]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[18]

What decisions can the Commission make?

  1. [49]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Relevant legislation and provisions of Directive 05/23: Discipline

  1. [50]
    Section 91 of the PS Act sets out the grounds for discipline as follows:

91 Grounds for discipline

  1. A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (b)
    been guilty of misconduct; or

…

  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

  1. In this section—

misconduct means—

  1. inappropriate or improper conduct in an official capacity; or
  1. inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee's employment in the public sector

  1. [51]
    The Code of Conduct relevantly provides:

1.5Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  1. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  1. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  1. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  1. comply with legislative and/or policy obligations to report employee criminal charges and convictions.

…

3.1Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

We will:

  1. accept that the elected government has the right to determine policy and priorities
  1. be responsive to the government of the day and implement decisions and policies professionally and impartially
  1. comply with the laws of State, Australian and local governments
  1. comply with all relevant awards, certified agreements, subsidiary agreements, directives, whole-of-government policies and standards, and
  1. adhere to the policies, organisational values and organisational documents of our employing agency.[19]

Proceedings in the Commission

  1. [52]
    A Directions Order was issued on 14 November 2024 inviting the parties to file submissions in relation to the appeal.
  2. [53]
    In accordance with that Directions Order the parties have provided written submissions as follows:
  • Respondent's outline of submissions filed on 3 November 2024.
  • Appellant's outline of submissions filed on 16 December 2024.
  • Respondent's reply submissions filed on 23 December 2024.
  1. [54]
    As noted above, as an attachment to the Respondent's outline of submissions, the Respondent has provided a request or application for suppression of the names of the students and schools involved. This has been addressed above.
  2. [55]
    I have considered all of the submissions and the attached evidence provided by the parties although it may not be specifically referenced in these reasons.

Respondent's Submissions[20]

  1. [56]
    The Respondent submits that the question for the Commission to determine in the Appeal is whether the Decision was ''fair and reasonable''.[21] The Respondent further contends that the focus of a review on the reasonableness (or unreasonableness) of disciplinary findings, is whether the decision is so unreasonable that it lacks intelligent justification in all the relevant circumstances.[22]
  2. [57]
    The Respondent submits the decision was fair and reasonable on the basis that the decision complied with relevant sections of the PS Act and Directive 05/23 – Discipline ('the Discipline Directive'). Further, the Respondent contends that the Appellant was afforded procedural fairness and that it was reasonably open to the Decision maker to find the allegations substantiated on the evidence available.[23]
  1. [58]
    In response to the grounds outlined in the Appellant's appeal, the Respondent submits that no determination has been made about the disciplinary action that will be taken against the Appellant. The Respondent contends that a Second Show Cause notice was issued to Mr Leigh which invited him to make further submissions as why the proposed disciplinary action of termination should not be taken.[24]
  1. [59]
    In respect to the Appellant's assertion that no procedural fairness was afforded to him throughout the process, the Respondent contends that the claims by the Appellant are generalised and that no substance or evidence has been provided to qualify the claims.[25]
  1. [60]
    In relation to the Appellant's contention of there being 'conflict of interest or bias', other than an allegation that it seemed ''the investigator had weighted the evidence heavily on the side of ''the alleged victim'' without justification'',[26] the Respondent notes that no further submissions were made by the Appellant evidencing bias or a conflict of interest by the investigator or the decision-maker.[27]
  1. [61]
    In response to the Appellant asserting that he was not provided with a clear terms of reference, the Respondent contends that this is untrue because the Appellant was provided with a copy of the Terms of Reference[28] ('TOR') and that the Appellant has not provided any explanation as to why the TOR provided was deficient.[29]
  1. [62]
    The Respondent contends that the Appellant has ignored the nature of the evidence in relation to Allegation 1 by asserting that the evidence consists of third-party hearsay. The Respondent submits that the evidence of multiple students was before the decision-maker as well as a close relative of XY. The decision-maker considers the standard of proof and quality of the evidence in the decision letter, which details the considerations of the decision-maker regarding those issues and the makeup of the evidence whether it be direct, circumstantial or a combination of both.[30]
  1. [63]
    The Respondent submits that attempts were made to interview XY and their parents however due to health concerns, XY was unable to participate and did not wish to be contacted further. The Respondent further submits that they do not have the power to compel former students such as XY to participate in investigations.[31]
  1. [64]
    In the Appeal Notice, the Appellant questioned why, if Allegation 1 was considered to be true, he had not been referred to Queensland Police Service for investigation into a criminal offence.  In response, the Respondent submits that an employee is able to be guilty of misconduct under the PS Act without having committed a criminal offence, however, referrals were made by the Respondent to the Crime and Corruption Commission.[32]
  1. [65]
    In response to the Appellant wishing to submit new evidence in relation to Allegation 2 and specific allegations made by student AB, the Respondent contends that this evidence is bordering on incoherent and does not negate the evidence that has already been provided by student AB nor evidence provided by other students. The Respondent submits that given the totality of this evidence it is reasonable for the decision-maker to make the findings of misconduct pursuant to s 91(1)(b) of the PS Act and submits that little weight ought to be placed on the Appellant's new evidence such that the findings are not disturbed.[33]
  1. [66]
    The Respondent further submits that given that the Appellant did not provide any response to Allegation 2, as part of the response to the First Show Cause Notice, it was uncontentious for the decision-maker to conclude:[34]

[Further] during your interview with the investigator your evidence changed from initially denying the conduct in its entirety. However, once you were shown the documentary evidence your evidence changed to a lack of recollection, to eventually a possibility that it was you / could have been you.[35]

  1. [67]
    The Respondent concludes that in any case, such a narrow focus (solely on the evidence of AB), disregards the other evidence put forward to the decision-maker with regards to Allegation 2.[36]

Appellant's Submissions

  1. [68]
    The Appellant contends that the evidence which has been relied upon is flawed and therefore the decision is not fair and reasonable.
  1. [69]
    The Appellant submits that Allegation 1 is substantiated on the basis of evidence that was provided by a close relative of XY during an investigation interview with Queensland College of Teachers ('QCT').[37]
  1. [70]
    The Appellant contends that during the interview, UV made several claims relating to conversations with XY where UV alleges that XY told them of instances of staying at the Appellant's house and messaging the Appellant on social media. When asked further about the details, UV states that they never witnessed any of the allegations that they were claiming. The Appellant further contends that the Department made no attempt to investigate the possibility that the story XY told UV was fabricated.[38]
  1. [71]
    Further, the Appellant contends that the evidence about Allegation 1 is hearsay evidence based on rumours that were spread. The Appellant submits that the investigator failed to identify the source of this rumour.[39]
  1. [72]
    The Appellant submits that the evidence collected in the interviews of the investigation and later relied on in substantiating the allegations, does not meet the required standard of proof, that being the Briginshaw[40] principle. The Respondent notes that his legal representative in the response to the First Show Cause Notice and in relation to Allegation 1 noted:

… An application of the Briginshaw Principle requires that when determining an allegation of misconduct is proved, the decision-maker must consider the seriousness of the consequences of the findings, the seriousness of the allegation, the quality of the allegation and any other relevant circumstances. Put another way, where the matter is serious, like in this case, you must consider a closer scrutiny of the evidence.[41]

  1. [73]
    The Appellant further contends that the investigator failed to prove any of the claims made as hearsay evidence and no attempts were made to uncover the truthfulness or specifics of the claims, such as dates. In light of this, the Appellant submits that defending Allegation 1 was nearly impossible as reference was made only to 'unknown dates'.[42]
  2. [74]
    In relation to his allegation of a conflict of interest and in response to the Respondent's submission, the Appellant highlights the disparity of treatment of his submissions by the decision-maker in the decision letter[43] and that the decision-maker dismissed all weight to his statements in favour of the hearsay evidence of XY's close relative, UV.[44]
  3. [75]
    The Appellant further notes that the evidence relied upon to corroborate UV, being the former principal, AB, C and D disregards the origin of the evidence. The Appellant makes the point that there are not five sources of evidence, there are only two (one of which being the party the other AB).[45]
  1. [76]
    In response to the Respondent's submissions that a terms of reference was provided, the Appellant contends that this was not provided until the First Show Cause Notice was issued on 26 June 2024, after the investigation process had already been concluded for some time.[46]
  1. [77]
    The Appellant criticises the extent of communication with him during the course of the investigation and the finalisation of the investigation.[47]
  1. [78]
    In respect to the Respondent's submissions regarding Facebook interactions between the Appellant and XY, the Appellant contends that these interactions consist of being a Facebook friend, sporadic life updates of new jobs, etc and do not support the claim of a sexualised relationship between XY and himself.[48]
  1. [79]
    In response to the Respondent's assertions that they were unable to compel XY to participate in the investigation, the Appellant contends that both XY's relative and student AB were issued a notice under s 181 of the Education (Queensland College of Teachers) Act 2005 (Qld). He submits that the QCT and the Department have been working together for the investigation process and the issue of notices to compel witness evidence has been applied inconsistently.[49]
  1. [80]
    In concluding his submissions, the Appellant submits that:
  • The investigation and decision made by the Respondent have not been fair or reasonable due to the narrow and limited factual evidence collected by the Investigator.[50]
  • The Investigator and the decision-maker have not taken enough precautions to determine the truthfulness of claims made in the interviews. The Appellant submits that there are multiple instances where the investigator has taken information at face value and not followed up to find supporting evidence. The decision-maker has relied upon this information without a fair scrutiny of indirect evidence to match such a serious allegation.[51]

Respondent Submissions in Reply

  1. [81]
    With respect to the credibility of witness evidence, the Respondent submits that the decision letter specifically outlined that no evidence from XY was being relied on. Further the decision-maker was aware that the available evidence was hearsay and aware of the impact of the nature of the evidence of its weight and reliability.[52]
  1. [82]
    The Respondent outlined the evidence that was available to the decision-maker to substantiate Allegation 1 as below:[53]
  1. Evidence from UV where they independently stated that XY had briefly lived with and had sex with a teacher while XY was still in Year 12.
  1. UV identified the Appellant as the teacher involved by looking him up on Facebook. This occurred in January 2023 and at this time XY and the Appellant were 'friends' on Facebook, approximately 14 months after XY finished Year 12.
  1. In his interview, the Appellant admitted to viewing the Instagram accounts of other former students in 2022, the year after they graduated. He further admitted to accepting a Facebook friend request from another student after they had graduated. Given the Appellant's failure to grasp why he should not be contacting students over social media (the Respondent notes that during interview the Appellant conceded that it was ''probably not'' appropriate to view social media accounts of students, but he was not sure why), it was entirely likely that he was a Facebook friend of XY when UV identified him.
  1. Two separate students reported to their Principal that they had been informed that XY had lived with the Appellant for a period of time and had sex with him while still a student. The Respondent alleges that these two students received the information from different sources.
  1. Student AB also heard the information about XY living with the Appellant and having sex with him. AB gave further evidence about an occasion when the Appellant took a screenshot of a Snapchat photo of AB in lingerie. This was supported by an alleged message exchange between AB and the Appellant where AB had stated "Sir. You know I can see when you screen shot right?". During the message exchange, a user with the name "Nick", responded saying "Sorry, I probably shouldn't have done that [ashamed emoji] I'll delete it"
  1. [83]
    The Respondent submits that the evidence, albeit hearsay, was corroborative.
  1. [84]
    The Respondent further contends that the Appellant was not a credible witness as during his interview responses to Allegations 2 and 3, he was initially evasive, claiming he did not recall having contact with particular students on social media. When the Appellant was then told of the evidence provided by those former students, he confirmed he "probably did". Further, based on the Appellant's own admissions, he has a propensity to breach professional boundaries with students.
  1. [85]
    The Respondent submits that the three students who gave evidence, as well as XY's relative, had no reason to invent allegations against the Appellant and it was reasonably open to the decision maker to prefer the evidence of the other witnesses over that of the Appellant.

Consideration

What is the applicable test of reasonableness?

  1. [86]
    I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at.
  2. [87]
    In the Respondent's primary submissions, the Respondent contends that the issue of ''reasonableness'' of disciplinary findings falls for determination by reference to the legal standard identified in Wednesbury Corporation v Ministry of Housing and Local Government (No 2)[54],  ('Wednesbury'), that is, whether the decision is so unreasonable that it lacks intelligent justification in all the relevant circumstances.[55]
  3. [88]
    This issue was addressed by Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)[56] ('Colebourne') where his Honour considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.[57] His Honour noted that the Wednesbury test of unreasonableness was referable to a court exercising judicial power in respect of a judicial review of certain administrative decisions and in such a review an argument that a decision was unreasonable was concerned with the question of the legal standard of reasonableness.[58]
  4. [89]
    In Colebourne his Honour noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.[59] His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[60]
  5. [90]
    I therefore do not accept the Respondent's submission that in determining the appeal, I have to determine the question of the reasonableness of the decision on the legal standard. I am satisfied that in assessing whether the decision of Ms Borger was ''fair and reasonable'' it is appropriate to review both the factual merits and the legal reasonableness of the decision and the process of making that decision. In my view, this will also encompass the investigation that was undertaken into the three allegations.

What is the Briginshaw principle?

  1. [91]
    In Briginshaw v Briginshaw[61], the High Court dealt with an appeal from the Supreme Court of Victoria in which the trial judge had dismissed a petition by Mr Briginshaw seeking the dissolution of his marriage on the grounds of adultery (which at the time was a criminal offence). The only evidence before the Court was an admission by Mrs Briginshaw that she had kissed the co-respondent and hearsay evidence from her sister that the co-respondent had told her that he and Mrs Briginshaw had engaged in sexual intercourse. The trial judge said he could not be satisfied beyond reasonable doubt that adultery had occurred.
  2. [92]
    The High Court confirmed that this was the wrong test (beyond reasonable doubt) but agreed that the evidence should be clear and compelling in a case in light of the significant consequences involved. The decision of the Supreme Court was affirmed. Latham CJ noted:

The result is that the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.[62]

  1. [93]
    Dixon J observed that in civil cases the degree of satisfaction may depend on the nature of the issue at hand. His Honour (in an oft quoted passage) said (emphasis added):

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Every one must feel that when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[63]

  1. [94]
    The High Court returned to this topic in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[64] where the plurality of Mason CJ, Brennan, Deane and Gaudron JJ observed:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved'.[65]

  1. [95]
    The relevant standard of proof for this appeal remains the civil standard of balance of probabilities or reasonable satisfaction, however, if the Briginshaw principle is applied, the "clarity" or "cogency" of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters of complaint, needs to take account of the seriousness of the allegations.[66]

Applicability of the test in Briginshaw

  1. [96]
    There appears to be no real dispute between the parties that the Briginshaw principle applied in relation to the allegations against the Appellant and the assessment of the relevant evidence.
  2. [97]
    Despite this, simply because a matter involves an allegation of misconduct or is disciplinary in nature will not automatically lead to the conclusion that the Briginshaw principle applies when considering the evidence.[67]
  1. [98]
    In G v H,[68] Deane, Dawson and Gaudron JJ[69] relevantly stated:

It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that "[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal". Thus, if there is an issue of "importance and gravity", to use the words of the trial judge, due regard must be had to its important and grave nature.

Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided.[70]

  1. [99]
    In Queensland College of Teachers v CSK[71] the Queensland College of Teachers was successful in its appeal against the order of the Tribunal (at first instance) refusing to find that the teacher was not suitable to teach. The allegations against the teacher were that he: failed to maintain proper professional boundaries with students under his care and control; failed to maintain objective and impartial levels of disciplinary standards for year 7 students; and failed to address concerns within his knowledge and respect of alleged boundary violations with such students.In delivering the decision on the appeal, the Appeal Tribunal said:

"Because of s 92(3) even if a teacher is not convicted of the serious offence with which he or she was charged, that is not the end of the matter. The QCT must nevertheless refer the relevant allegations as part of its disciplinary referral, so that (having regard to the relevant standard of proof), the relevant disciplinary committee determines whether the evidence about the circumstances of the charge justifies a finding that the teacher is not suitable to teach. It is relevant to observed that the standard of proof is different in disciplinary proceedings than in criminal proceedings. In criminal proceedings, the charges must be proven beyond reasonable doubt. In disciplinary proceedings, it is well established that the regulator bears the civil onus of proof, on the Briginshaw standard."[72]

  1. [100]
    In the present case, I am satisfied that the allegations against the Appellant, in particular, Allegation 1, involve allegations with potentially serious legal consequences for the Appellant including the potential for criminal charges, the contemplation of what could be a career-ending dismissal and serious moral wrongdoing by the Appellant.
  2. [101]
    In the circumstances, I am satisfied that the principle from the Briginshaw decision should be applied when assessing the evidence.

Allegation 1

  1. [102]
    The Appellant has raised a significant challenge to the reliability, quality and cogency of the evidence relied upon by the decision-maker in finding that Allegation 1 was substantiated.
  2. [103]
    It is therefore necessary to analyse the evidence relied upon by the decision-maker.
  3. [104]
    The investigation commenced as a consequence of an email sent by the former Principal to the Intake and Assessment unit of the Department of Education on 2 November 2022.[73] That email communication arose as a consequence of C and D reporting to the former Principal that the Appellant had been viewing their social media, information they provided about the Appellant's conduct during math classes. C and D also informed the former Principal that a couple of other ex-students had told them about XY living with the Appellant and sleeping with him.
  4. [105]
    In relation to the evidence provided by C, in the record of interview with the investigator from the QCT, C confirms that C was told by AB about the allegation of XY sleeping with the Appellant.[74]
  5. [106]
    C further confirmed that after the Appellant had left the former school, there was a party and all of the girls in the grade above (that is, the graduating Grade 12 cohort from 2021) were talking about the Appellant and him sleeping with Student XY. Student C confirmed that C was not present for this and that '…This was just like it was a rumour, that kind of swarmed through the school.'[75]
  6. [107]
    C further informed the investigator that C 'heard he was sleeping with XY. XY was staying at his house because XY was continuously kicked out of home.'[76]
  7. [108]
    C then participates in an interview with an investigator from the Department of Education on 17 July 2023. In that interview, C tells the investigator that C was told through girls in the grade above C that graduated the year before, that the Appellant was sleeping with a former student whilst the student was a student at the former school, and that XY was staying at his house and leaning on him as a place to stay when XY was not welcome at XY's own home.[77]
  8. [109]
    When asked the source of the above information, C nominates former students M and N. C then confirms that M and N did not tell C this directly, they told AB who then provided the information to C.[78]
  9. [110]
    In relation to the other source of the former Principal's information, student D participated in an interview with an investigator from QCT on 16 March 2023. In that interview, D confirmed that a graduate (of the former school, AB) came to the school in 2022 to tell C and D that the Appellant was sleeping with XY, and that word had got around that he was viewing C and D's Instagram stories, so they put a report in.[79]
  10. [111]
    D then confirmed that AB did not speak to D directly, but in fact spoke to C and it was C that passed on the information to D.[80] D then confirmed to the Investigator:

And it's kind of been going around our grade for a little bit. I don't how they like got the, like, knew about it or anything but we didn't say any thing about it because obviously it's bigger than what people think and, yeah, so we didn't say anything.[81]

  1. [112]
    D confirmed that D did not personally know XY.[82] When questioned about how long the 'relationship' between XY and the Appellant had been going on, D responded all of Grade 10 to Grade 12, and then later the whole time that XY was in the Appellant's maths class for Grade 11 and 12.[83]
  2. [113]
    In response to a question as to whether other 'kids' had made any comment about what had happened (involving XY and the Appellant), D told the investigator that D had attended a dinner for C's going away and other people at the dinner spoke about XY sleeping with the Appellant, 'and it was really just everywhere'.[84]
  3. [114]
    In relation to the evidence of AB, AB participated in an interview with an investigator from the QCT on 8 March 2023.[85] In that interview AB confirmed dropping out of school in the middle of term 2 in 2021.[86]
  4. [115]
    AB went on to confirm during the interview that the source of AB's  knowledge regarding the allegation about the Appellant and Student XY was former students M and N who told AB that Student XY was living with the Appellant and AB thought it was throughout Grade 11 and Grade 12, because XY's family had kicked XY out and XY was sleeping with the Appellant.[87] AB further confirmed that AB was 'not friends at all' with XY.[88]
  5. [116]
    AB participated in an interview with an investigator from the Department of Education on 7 July 2023.[89] In that interview, AB again confirmed that it was former students M and N that told AB about the alleged 'relationship' between former Student XY and the Appellant.[90]
  6. [117]
    The circumstances of that information being provided to AB was that AB was out drinking with M and N in October 2022 and during that evening AB told M and N about the Appellant screenshotting AB's photograph. M and N then informed AB about XY living with the Appellant and having a relationship with him whilst XY was struggling with things at home.[91]AB further confirmed that M and N told AB that XY and the Appellant were having sexual relations.[92]
  7. [118]
    I note for completeness, that M and N were never interviewed during the investigation. As a consequence, it is not known what the source of their information was and whether is more hearsay or innuendo.
  8. [119]
    Witnesses may give evidence of something they personally, saw, heard or experienced. They are not allowed to give evidence of something they only know because someone else told them. Where such a statement is relied upon for the truth of its contents, it is hearsay.[93]
  9. [120]
    In the present matter, if the evidence set out above of the former Principal, AB, C and D is relied upon as proof or truth of the allegation of a relationship between the Appellant and XY, it is clearly hearsay. It is clear from the decision letter that the decision-maker has relied upon the truth of the allegation in substantiating Allegation 1.
  10. [121]
    Given the summary of the relevant evidence set out above, the following observations can be made:
  • By the time the information about the alleged 'relationship' comes to the ear of the former Principal from C, it is fourth hand hearsay (or worse depending on M and N's source of information). There are two sources of C's information, what C was told directly by AB and however C becomes aware of the allegation about what was being said at the party (date unknown) involving the graduating Grade 12 cohort from 2021.
  • The information provided by D to the former Principal is fifth hand hearsay (or worse) because D was told by C about what AB had told C (about the alleged relationship between XY and the Appellant).
  • The information that C receives from AB is third hand hearsay (or worse, again dependent upon the source of M and N's information).
  • The information D receives from C is fourth hand (or worse) hearsay. 
  • The information AB receives is second hand (or worse) hearsay and further appears to be inaccurate about crucial details. 
  • As will be noted shortly, the version provided by UV was that UV was told by XY that XY moved in and stayed with the Appellant for one week. However, according to AB and C's version, XY was living with the Appellant for the whole of Grade 11 and Grade 12.
  • D initially said that the alleged relationship between XY and the Appellant was taking place all through Grades 10 to 12 but then changed that version to Grades 11 and 12.
  • In the record of interview, the version provided by UV was that XY told XY's parents that XY was staying with a friend (apparently as a ruse) to cover that XY was staying with the Appellant. In the record of interview UV provided no evidence of XY being kicked out of home or there being an argument between XY and XY's parents.
  • The version that C provided to the investigators that there were in fact multiple occasions during Grade 11 and Grade 12 that XY was kicked out of home.
  1. [122]
    In the Respondent's reply submissions,[94] it is contended that the students who reported the information to the former Principal (that is, C and D) received the information from different sources. It appears that this submission has been made in an attempt to bolster the veracity of the information. Unfortunately, the submission is incorrect because the source of D's information about the alleged relationship is in fact C, who receives the information from AB. Therefore, the source of C and D's information is the same, it is AB, who receives the information from M and N (and the source of their information remains unknown).
  2. [123]
    In considering the appeal the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction.[95] I equally accept that the decision-maker was not bound by the rules of evidence and could receive hearsay evidence. 
  3. [124]
    In Polizzi v Commissioner of Police [No 2], Corboy J in the Western Australia Supreme Court made the following relevant observations in respect of s 32 of the State Administrative Tribunal Act 2004 (WA) which was in similar terms to s 531(2) of the IR Act:

[P]rovisions such as s 32(2) of the SAT Act (which are common for statutory tribunals - see, for example, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) are intended to be facilitative, not restrictive. Their purpose is to free tribunals, at least to some degree, from the constraints that are otherwise applicable to courts of law and which are regarded as inappropriate to tribunals: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J).

…

However, it should be borne in mind that the rules of evidence 'represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth':  R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 (Evett J), cited with approval by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [17]. The rules of evidence provide the conventional means by which the relevance and reliability of evidence is assessed; that is, the means by which a body of proof that has logical probative force is produced. The rules of evidence are part of the machinery by which a court ordinarily ensures that the parties receive a fair hearing in a system of justice that is essentially adversarial.[96] (Emphasis added)

  1. [125]
    In spite of being relieved of compliance with the rules of evidence, it was still necessary for the decision to be based on evidence that has rational probative force. That is, the decision of a tribunal or decision-maker not bound by the rules of evidence must still be based on material which tends logically to show the existence or non-existence of facts relevant to the issue which the fact-finding tribunal is being asked to determine.[97]
  2. [126]
    In relation to hearsay evidence, Forbes notes that some pertinent questions are:

How many ''narrators'' did it pass through before reaching the tribunal? How likely is it that the original story was distorted? Was it reasonably possible to produce the same evidence in some better form?[98]

  1. [127]
    The uses and abuses of hearsay evidence in tribunals were considered by Brennan J in Re Poochi and Minister for Immigration and Ethnic Affairs,[99] ('Poochi') where his Honour stated:

…The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes C.J. said in - Consolidated Edison Co. v. National Labour Relations Board [1938] USSC 176; (305 U.S. 197 at p. 229).

…

It will be necessary to return to his Honour's reference to cross-examination, but for the moment the relevance of his Honour's judgment is to be found in the procedural flexibility which it assures to Tribunals which are statutorily freed from the rules of evidence, though required to act upon material which is logically probative. As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay "has a wide scale of reliability" (1978, L.R.C. 29, p. 35), and there is no reason why logically probative hearsay should not be given credence. However, the logical weaknesses of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.[100]

  1. [128]
    Hearsay evidence may be the basis of a decision "where it can be fairly said to be reliable".[101] There will be other cases where the weight of the hearsay evidence is so slight that it would be irrational to act upon it.[102] The present appeal appears to be an example of this in relation to the evidence of the former Principal, AB and C and D.
  2. [129]
    The more salacious and notorious a rumour or allegation is, the greater the likelihood of it being oft repeated, and further embellished with the repeated telling. This also appears to be the case with the allegations regarding former Student XY and the Appellant. I specifically note the comment made by Student D to the investigator from the QCT that '… it was really just everywhere'.[103] Student C in their interview with the investigator referred to a rumour that kind of swarmed through the school.[104]
  1. [130]
    In relation to the questions posed by Forbes and mentioned in paragraph [126] above the following observations can be made in relation to the evidence of the former Principal, AB, C and D:
  • As noted above the information has passed through multiple narrators in the case of the former Principal, C and D prior to that 'evidence' being presented to the decision-maker.
  • In the case of AB, it is at least second-hand information, but due to M and N not being interviewed by either QCT or the Department, it is not clear what the basis of M and N's information and whether this was based on further hearsay or what appears to be the widespread rumour/innuendo about the Appellant and Student XY.
  • In my view this significantly impacts the reliability of this evidence, its probative value and the amount of weight that should have been afforded to the evidence by the decision-maker.
  • In relation to the likelihood of distortion, when one compares the version provided by UV to the QCT investigator[105] to the versions provided by AB, C and D, it is abundantly clear that there has been significant distortion/embellishment to the story. As noted above, AB, C and D have the alleged relationship occurring over the entirety of the time that XY was in Grades 11 and 12 (and potentially Grade 10 in the case of D's version).
  • I believe that it is inherently implausible that the alleged relationship between Student XY and the Appellant was being carried on for two or three years as alleged by AB, C and D.
  • As noted above, C told the investigator that XY was continually being kicked out of home.[106]This is a significant variation to the version provided by UV of only one occasion of XY being away from home and for only one week. I also find it inherently implausible that Student XY was continually being kicked out of home during Grades 11 and 12 and had moved in the with the Appellant.
  • In relation to the last question posited by Forbes, I believe it was reasonably possible for the investigators to produce the same evidence in some better form. In my view there were some significant flaws in the investigation process which will be addressed in further detail below.
  1. [131]
    I do not believe that it is an unfair characterisation to describe the evidence of the former Principal, AB, C and D as either being, or premised upon, gossip, rumour or innuendo. It would appear to be the very type of evidence that Dixon J had in mind when in Briginshaw[107]his Honour referred to inexact proofs, indefinite testimony, or indirect inferences.
  2. [132]
    In relation to the evidence of the former Principal, AB, C and D, in light of:
  • none of these witnesses having any direct evidence and their 'evidence' being based on hearsay upon hearsay;
  • the significant factual variations between their 'evidence' and that of UV, which is in my view a clear indication of the story being embellished or distorted,

I consider this evidence to have virtually no probative value regarding the substantiation of Allegation 1.

  1. [133]
    In Enclosure One to the decision letter,[108] the decision-maker whilst accepting that these witnesses provide no direct evidence and that their evidence is hearsay, states that it is significant that their evidence to a large extent corroborates and is very similar to the events given by UV. For the reasons set out above, the evidence of these witnesses was not very similar to that given by UV, and the decision-maker has erred in relying upon that evidence as corroborating the evidence of UV. This conclusion by the decision-maker was not fair and reasonable.
  2. [134]
    The only other evidence available to the decision-maker which supported a finding that Allegation 1 was substantiated was the evidence of UV. UV's evidence is constituted by two things:
  • a telephone conversation UV had with an investigator from the Department of Education (Ms Gustafson) on 24 January 2023 which was file noted by the investigator on the same day.[109]
  • the interview that UV undertook with an investigator from QCT on 13 March 2023.[110]
  1. [135]
    The evidence of UV, being firsthand hearsay, is likely to be of greater probative force than the other evidence discussed above.
  2. [136]
    In relation to the first item, the file note taken by Ms Gustafson relevantly provides:
  • XY disclosed to UV that towards graduation XY had a fight with their parents and left. XY briefly stayed with a teacher. The teacher was young and had ginger coloured hair. The teacher would drive XY to school. XY also disclosed that XY had had sex with the teacher. XY had sexual intercourse with the teacher whilst XY was still attending school.
  • UV told XY that the teacher's conduct was inappropriate.
  • UV was not aware of the teacher's name, however, UV knew that XY was friends with the teacher on Facebook.
  • Whilst talking to SI Gustafson, UV looked up Facebook and identified the teacher as Nick Leigh.
  1. [137]
    There is no indication that the contents of this file note were ever provided to UV for UV to check and confirm whether the file note was an accurate report of the telephone conversation. The file note therefore in my view represents second-hand documentary hearsay of the first-hand hearsay evidence of UV. This becomes problematic where there are subsequent inconsistencies between the file note and the evidence provided by UV during the record of interview with the QCT investigator.
  2. [138]
    In relation to the interview with the QCT investigator, I note that UV was issued with a notice pursuant to s 181 of the Education (Queensland College of Teachers) Act 2005 (Qld) which compelled UV's participation in the interview.
  3. [139]
    In the course of the interview, UV provided the following information: 
  • XY and UV had a conversation in UV's backyard at the end of 2022 (UV was not sure when). XY mentioned to UV that XY was going to see an ex-teacher in Brisbane and when questioned why, XY told UV, that towards the end of XY's  schooling (end of Grade 12), that XY had been 'seeing' the teacher.[111]
  • UV went on to confirm that XY told UV there was a week where XY had left home, had not told mum and dad that XY was staying at a friend's house, but was in fact staying with the Appellant. XY said that the Appellant was driving XY to school and dropping XY off before the school and then they would go home, cook dinner together and that it was essentially a relationship to XY.[112]
  • XY told UV, that they had slept together on numerous occasions, that they were talking about continuing their relationship, after XY had graduated.[113]
  • UV confirmed that UV had also attended the former School as a student and graduated at the end of 2018. UV further confirmed that the Appellant had taught UV's maths class apparently as a teacher in training.[114]
  1. [140]
    It appears that it was this evidence that the decision-maker placed significant weight on when finding that Allegation 1 was substantiated.
  2. [141]
    In assessing UV's evidence and the probative value of that evidence, and the amount of weight that could be afforded to the evidence, it is necessary to consider the entirety of UV's evidence as provided to the QCT investigator.
  1. [142]
    As regards the other evidence of UV in the interview, UV noted:
  • UV was not living at home during the relevant periods in 2021 and 2022.[115] This is relevant because UV could not therefore have any direct knowledge of the events, such as XY moving out from home for a period of time.
  • UV confirmed that XY did not move out, XY stayed with the Appellant for a few days under the guise that XY was staying with a friend.[116] This is entirely inconsistent with the version of AB, C and D both as to the cause of XY staying with the Appellant and also as to the timeframe involved. Further, it is inconsistent with the information contained in the file note recorded by Ms Gustafson on 24 January 2024.
  • UV confirmed that XY had not told them the name of the friend where XY was supposed to be staying.[117] The transcript of the interview then provides:

Then do you know where Nicholas was living, do you know his address?

Not a clue.

Did you ever see them together yourself?

No.

And do you know how they communicated, like on any social media or anything like that?

No.

Did XY ever show you any messages between him and XY?

No.

And you said that he would drop XY to school of a morning?

Yes.

Yeah, did anyone else see that happen?

Not that, I, XY only told me this had happened. I wasn't at school at this point, so this is just what, but I don't think any, well I don't know. I, I wouldn't know.[118]

  • In response to a question as to when UV believed the affair had started, UV responded:

I don't know when they started doing things together. All that I know is that XY was infatuated with him, if you will. When I did see XY, XY would talk about, oh cute math teacher, that sort of thing. But it wasn't, I know that it was in like, the second half of the year, is the timeframe that XY had given me. Other than that, I don't have anything more specific.[119]

  1. [143]
    Towards the end of the interview, UV provides a version of an incident after UV and XY have returned from Brisbane and there is a brief conversation involving UV, XY and XY's parents and during the course of that conversation, XY on two occasions states that nothing had happened with the Appellant. The transcript records that UV in that conversation said, 'And I said, I know you're lying, unless you were lying to me.'[120]
  2. [144]
    The decision-maker places a degree of reliance on the file note prepared by Senior Investigator Gustafson of the telephone conversation with UV on 24 January 2023 in which UV reported that XY had told UV that towards graduation XY had a fight with XY's parents and left.[121] As noted above, it does not appear that this file note was ever provided to UV for UV to confirm its accuracy and to adopt the contents by signing it.
  3. [145]
    In the far more detailed interview with the investigator from the QCT that takes place on 13 March 2023, UV makes no mention of this 'fight' between XY and XY's parents and instead reports that XY did not move out but told XY's parents that XY was  staying with a friend for a few days as a ruse to cover the fact that XY was staying with the Appellant.
  4. [146]
    The decision-maker fails to refer to this conflict in the evidence of UV in the decision letter. Given this conflict in UV's evidence, I do not consider that it was fair and reasonable for the decision-maker to have placed such reliance on the version contained in the file note, which I have found to be secondary documentary hearsay.
  5. [147]
    The decision-maker further places significant reliance on the file note  because it reports that UV was able to identify the Appellant from Facebook as being the teacher involved. Given that:
  • UV had attended the former school up until the end of 2018 and provided evidence in the record of interview with the QCT investigator that UV had been taught by the Appellant in 2018 (apparently whilst he was a student teacher);  and
  • XY on more than one occasion mentioned the Appellant to UV,

it is not surprising that UV was able to identify the Appellant. I do not consider that this evidence aids in the substantiation of Allegation 1 in any significant way. 

  1. [148]
    The further difficulty that arises in the decision-maker's heavy reliance on the evidence of UV in finding that Allegation 1 was substantiated, is that the decision-maker has not addressed at all in Enclosure One to the decision letter, the fact that on two occasions XY in the course of the conversation involving XY's parents, XY has confirmed that nothing had happened with the Appellant. It is not clear why the decision-maker has failed to mention and address this evidence in any way in the decision letter.
  2. [149]
    There is one first-hand hearsay version provided by UV of a conversation with XY where XY alleges that a relationship with the Appellant occurred and a further first-hand hearsay conversation where XY twice denies that anything happened with the Appellant.
  3. [150]
    In the Appellant's submissions filed on 16 December 2024 he notes that the Respondent has not investigated the idea that XY fabricated their story to UV.[122] The fact that either of these alternative versions may be true or untrue is left open by the investigation that has been conducted. The evidence of UV therefore represents a dubious foundation for a finding that Allegation 1 has been substantiated.
  4. [151]
    The only direct evidence before the decision-maker was that which arose from the interview with the Appellant and investigators from the Department of Education which took place on 5 December 2023.[123]  
  5. [152]
    In that interview the Appellant: 
  • Denied ever touching any part of XY's body.[124]
  • Denied that XY had ever attended at his residence whilst he was a teacher at the former School.[125]
  • Denied the specific allegation of XY having a fight with XY's parents and coming to stay with XY for approximately one week in 2021 during which he had sexual intercourse with XY.[126]
  1. [153]
    One of the key issues in this case is whether for a period of time in 2021, XY was not living at home. Despite a protracted investigation, no direct evidence has been obtained to actually confirm from a witness with first-hand knowledge that this in fact did occur, and when it occurred.
  2. [154]
    As a consequence, the investigation has failed to unearth any direct evidence which establishes a fundamental starting point to proving whether there is any substance to Allegation 1. What is instead relied upon is unsatisfactory hearsay evidence of witnesses who were not in any position to know whether XY had left home, when this occurred and for how long.
  3. [155]
    As noted above, the last question posed by Forbes[127] is whether it was reasonably possible to produce the evidence in some better form. Answering this question squarely raises the sufficiency of the investigation that was undertaken.
  4. [156]
    In my view it was reasonably possible to produce the evidence in some better form.
  5. [157]
    Although the investigation was undertaken by the Department of Education, it is clear that there has been co-operation between QCT and the Department. The Department has relied upon interview transcripts provided by QCT. The investigators from QCT had the ability to compel witnesses to participate in the investigation pursuant to s 181 of the Education (Queensland College of Teachers) Act 2005 (Qld) as occurred with UV and at least one of the other witnesses.
  6. [158]
    There is no explanation available to me, either in the investigation report, the decision letter or the Respondent's submissions as to why:
  • No attempt was made to interview M and N, which would have enabled the investigator to identify the source of the information that M and N provided to AB. Further, the investigator would have been  and whether this was based on further hearsay, rumour or innuendo. This would be relevant in determining the amount of weight that could be afforded to AB's evidence.
  • The parents of XY were not interviewed. There is an indication in the investigation report of an attempt to contact the mother of XY by telephone on 8 and 9 November 2022 and an email being sent to her on 8 November 2022 with there being no response. The investigation report refers to one attempt to contact XY's father on 10 November 2022 with no response.[128]
  • Despite the failure of those attempts at contact, the QCT investigator had XY's mother sit in on the interview with UV on 13 March 2023, but failed to issue her with a notice pursuant to s 181 of the Education (Queensland College of Teachers) Act 2005 (Qld) to compel her participation in an interview. As a consequence, the investigation was deprived of the opportunity of obtaining direct evidence as to:
    • whether there was in fact a fight or argument that occurred between XY and the parents in 2021;
  • when this occurred;
  • whether XY left home for any period of time because of the fight;
  • where XY said XY was going;
  • the identity of the person that XY told the parents XY was staying with. This information could have led to a further line of enquiry for the investigator with that person.
  • There was no attempt to compel XY to participate in an interview to have XY direct evidence about Allegation 1.
  1. [159]
    For each of the reasons I have identified above, that is, the unreliability and unsatisfactory nature of the evidence of the former Principal, AB, C and D; the inadequate investigation; and the inconsistencies in the versions provided by XY to UV, I am not satisfied that it was open for the decision-maker to have reached the necessary level of persuasion required by Briginshaw, on the basis of the evidence that decision-maker had available to her.
  2. [160]
    This is particularly the case where the only direct evidence available to the decision-maker were the denials by the Appellant about Allegation 1.
  1. [161]
    I therefore find that the decision to find that Allegation 1 had been substantiated was not fair and reasonable.

Allegation 2

  1. [162]
    In the grounds of appeal attached to the Appeal Notice the Appellant challenges the credibility of AB for Allegation 2 and further submits that AB's lack of credibility should also be taken into account in relation to AB's evidence as it touches upon Allegation 1.
  2. [163]
    Allegation 2 alleges that in the period from 1 October 2020 to 16 June 2023 the Appellant engaged in inappropriate conduct and/or communications with students via social media.
  3. [164]
    The Appellant in his grounds of appeal relating to Allegation 2 only addresses one aspect of the evidence of former Student AB relating to when AB alleges that the Appellant added AB on Snapchat. The Appellant does not address the evidence provided by the other students.
  4. [165]
    The Appellant also does not provide any submissions about Allegation 2 in his submissions filed on 16 December 2024, other than one paragraph where the Appellant responds to a submission from the Respondent that the evidence the Appellant has provided is bordering on incoherent.
  1. [166]
    In relation to the one area of dispute for this allegation, AB in the interview with the investigator from QCT on 8 March 2023 provided the following evidence relevant to Allegation 2:
  • The Appellant in July 2022 took a screenshot of a photograph AB had posted on Snapchat of AB and two co-workers in lingerie which was their work uniforms.[129]
  • AB reported that the Appellant had added AB, and a group of other students to his Snapchat both before and after they had graduated. AB alleged that the Appellant had added AB before they left school.[130]
  1. [167]
    In addition to that evidence, AB participated in an interview with an investigator from the Department of Education on 7 July 2023.[131] In that interview, AB:
  • Confirmed the incident where the Appellant took a screenshot of a photograph AB had posted on Snapchat of AB and two co-workers in lingerie. AB confirmed that the owner of the story is allowed by Snapchat to see who has viewed the story and who has screenshotted it.[132]
  • AB went on to confirm that AB sent the Appellant a message letting him know that AB could see if he screenshotted the posts. AB reported that the Appellant apologised and said he would delete it.[133]
  • By referring to AB's telephone, AB was able to identify the specific date that this incident occurred, that being 19 August 2022. AB further confirmed that AB had sent the investigator a screenshot of the conversation AB had with the Appellant as a consequence of him screenshotting AB's photograph.[134] This screenshot has been included in the investigation report.[135]
  • AB confirmed that the Appellant added AB on Snapchat at the end of Grade 11 (2020) whilst AB was still in school. AB further stated that the Appellant added multiple Grade 11 students at a parade where they were sending off the graduating Grade 12s.[136]
  • AB further confirmed that Snapchat was the only form of social media that the Appellant followed AB on, and the only communication AB had with the Appellant was the screenshotted conversation they provided to the investigator.[137]
  1. [168]
    In his interview with the investigator, the Appellant stated: 
  • After AB's Grade 12 cohort graduated, AB had sent him a friend request on Facebook which he accepted.[138]
  • Denied any interaction with AB on any other form of social media and the Appellant contended that he had no interaction with AB on Facebook other than liking a photograph.[139]
  • The Appellant initially denied having any contact with AB on Snapchat or having added AB at the end of Grade 11.[140] The Appellant further denied the specific allegation of him screenshotting one of AB's photographs on Snapchat and then having a conversation with AB about that.[141]
  • The Appellant was then confronted with the screenshot of that conversation and initially said he did not recall this and doubted that it was him. When shown the emoji, he conceded his emoji on Snapchat did look like that, and it could be him, but he could not say for sure.[142] The Appellant admitted to having two former students on his Snapchat.[143]
  1. [169]
    In his grounds of appeal, the Appellant has cut and pasted a document that is said to come from his Snapchat logs which he alleges confirms that AB requested to be added on 12 December 2021. He therefore submits that this proves that AB provided incorrect information to the investigators about the Appellant adding AB on Snapchat at the end of 2020. The Appellant submits that this call into question AB's credibility including the evidence AB has provided in relation to Allegation 1.
  2. [170]
    The excerpted document is by no means clear, but it may indicate what the Appellant is saying but I am unable to make a definitive determination on the information available to me. It could be the case that this refers to a later instance where either the Appellant or AB have added the other.
  3. [171]
    The real difficulty for the Appellant is that this evidence in fact damages his own credibility, because he told the investigators that he had no contact with AB on Snapchat and his contact with AB was on Facebook and limited to liking a photograph.
  1. [172]
    I am satisfied that it was open to the decision-maker to find that the screenshotted conversation in Attachment 23 to the Investigation report, was a conversation between AB and the Appellant on Snapchat which corroborated AB's evidence.
  2. [173]
    In light of the evidence available to the decision-maker, and in particular the screenshotted Snapchat conversation between AB and the Appellant, I am satisfied that it was open to the decision-maker to prefer the evidence of AB over the Appellant where there was a conflict in relation to this allegation.
  3. [174]
    As regards the balance of the evidence in support of this allegation, there was evidence from each of C, D, R, S and T of the Appellant viewing their social media posts/stories on Instagram and them becoming aware of it by checking logs on Instagram.
  4. [175]
    D indicated in their interview that D knew it was the Appellant who viewed their stories (approximately five times) because the viewer's profile picture was the Appellant, and the user had the Appellant's name. D further confirmed that you had not made actual comments and that you did not follow D on Facebook or Instagram and D had never invited you to be D's friend on social media.[144]
  5. [176]
    Similar evidence was provided by each of C, R, S and T during their interviews.
  6. [177]
    Student S in their interview confirmed that Student T had sent them a screenshot of the Appellant viewing one of T's stories on Instagram. This caused S to check S's stories and S noticed that the Appellant had been viewing S's stories. Student S confirmed that it was the Appellant's profile looking at the story.[145]
  7. [178]
    Student S also provided a screenshot of their Instagram profile,[146] and the story that the Appellant viewed which was a photograph of Student T lifting up T's body on a shopping trolley.[147] S also provided a screenshot of a list of some of the people that had viewed the story which included a 'Nick Leigh' with what appears to be the Appellant's photograph.[148] Student S also took a screenshot of the Appellant's Instagram profile page.[149]
  8. [179]
    Given this evidence, there can be little doubt that the Appellant did view the Instagram story posted by S on or about 10 June 2023.
  9. [180]
    Student T in their interview with the investigator on 18 July 2023[150] confirmed that T noticed that the Appellant (T's former Maths' teacher) had been viewing a story T put up on Instagram. On 10 June 2023.[151] T confirmed that it was the next day when T noticed that the Appellant had viewed the story.[152]
  10. [181]
    T also provided a screenshot of T's Instagram profile and a list showing the Appellant viewing the Instagram story.[153]
  11. [182]
    Both S and T provided evidence of thinking it was weird or feeling weird about the Appellant viewing their stories on Instagram.
  12. [183]
    In his interview with the investigator, the Appellant  ultimately either conceded the possibility that he had viewed the social media as alleged or made admissions to having done so.
  13. [184]
    As noted above, other than challenging the credibility of AB regarding when the Appellant was added on Snapchat, the Appellant has not otherwise sought to challenge or deny the evidence of C, D, R, S and T.
  14. [185]
    I find on the balance of probabilities that it was open to the decision-maker to find on the evidence available to her that Allegation 2 had been sufficiently substantiated in light of the unchallenged evidence of the respective witnesses and the Appellant's concessions or admissions.
  15. [186]
    I am therefore satisfied that the disciplinary finding in relation to Allegation 3 was fair and reasonable in the circumstances.

Allegation 3 

  1. [187]
    In the attachment to the Appeal Notice dated 6 November 2024, the Appellant provides no grounds to challenge the finding made by the decision-maker that Allegation 3 had been substantiated.
  2. [188]
    In the Appellant's submissions filed on 16 December 2024, there are also no submissions which address Allegation 3.
  3. [189]
    In the interview with C undertaken by the investigator from the QCT on 16 March 2023,[154] C provided evidence of the Appellant making weird comments to female students in class. C provided the following example:

… you know someone would say, oh it's really hot in here and he'd be like, no, that's just you. And there was one lesson, he did a sex ed talk and he'd be like ask us to ask questions and he would answer them for us.[155]

  1. [190]
    When asked if C could recall what sort of things the Appellant was talking about, C replied 'Like after sex it's awkward, if there's blood, oh that's all I really remember.[156] When asked how the conversation started, C provided this evidence:

I'm not actually sure. I think cause we had just gone to this like uni thing, at another school all day. And when we got back, maths was our last class. And none of us really wanted to do work. So we were like, oh like can we do something fun. And he's like, yeah like I'll give you a sex talk, if you get all your work done.[157]

  1. [191]
    C also participated in an interview with investigators from the Department of Education on 17 July 2023.[158] In response to a question whether C had any concerns about the Appellant's conduct or communication in 2021 whilst he was C's teacher in 2021, C stated:

Not in the moment but looking back, like he used to do, like he did a sex ed talk with us once and he would always just like display, I don't know, weird images of like, videos of school shootings to be funny or obviously, like the sex ed talk and he'd explain how babies were made and made us engage and we could ask questions and he'd answer them, and there always rumours floating around that he was you know, touchy with the other girls and that he was sleeping with a student.[159]

  1. [192]
    In relation to the sex education discussion, C provided a similar version to that provided at the first investigation.[160]
  2. [193]
    C also informed the investigators that the class participated in a practice lockdown and that the Appellant had pulled up videos of horrific school shootings and played them on the projector.[161]
  3. [194]
    D participated in an interview with the QCT investigators on 16 March 2023.[162] D provided similar evidence to C regarding the incident involving a sex education talk during a maths lesson in 2021.[163]
  4. [195]
    In the Appellant's interview with the investigators on 5 December 2023,[164] in relation to Allegation 3, the Appellant:
  • Said that Student D had made a comment about it being hot in here, and the Appellant responded, no, that's just Student C sitting next to you. The Appellant alleged that this was said as a joke and to have a humorous rapport with his students. The Appellant confirmed that he understood that it may be perceived inappropriately.[165]
  • Could not recall a maths lesson where a sex education talk occurred as alleged by Students C and D, however, he provided evidence of a maths lesson where Grade 11 boys were making comments about Power Point photos of  reproductive organs that the Appellant had on display during an earlier Grade 10 science class. The Appellant alleged that this gave rise to the Grade 11 boys making comments and the conversation getting worse.[166]
  1. [196]
    The Appellant in effect has made an admission during his interview in relation to the comment made to Students C and D. It was open to the decision-maker in light of this to accept the evidence of Students C and D, and to act on the Appellant's admission.
  2. [197]
    The evidence of C and D regarding the sex education talk during a math's lesson was consistent about what occurred and what was said by the Appellant in response to a question from a student. The allegation was not denied by the Appellant, he simply said he could not recall the incident, but then provided evidence of a maths lesson where there does appear to have been some discussion of a sexual nature.
  3. [198]
    I find on the balance of probabilities that it was open to the decision-maker to find on the evidence available to her that Allegation 3 had been sufficiently substantiated.
  4. [199]
    I am therefore satisfied that the disciplinary finding in relation to Allegation 3 was fair and reasonable.

Orders

  1. [200]
    I make the following Orders:
  1. Pursuant to s 562C(1) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and, in lieu thereof, is substituted with a decision that allegation 1 is not substantiated and that the disciplinary findings in relation to allegations 2 and 3 are confirmed. 
  2. That Mr Leigh be issued with a new disciplinary findings decision and notice to show cause on disciplinary action that reflects the orders made in this decision.
  3. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the disciplinary findings' decision appealed against made on 14 November 2024 be revoked.
  4. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld) and r 97(3)(a) of  Industrial Relations (Tribunals) Rules 2011 (Qld), that any reference to the School and the former students, the subject of these proceedings be de-identified. 
  5. Pursuant to s 451(2)(c) and s 580(5) of the Industrial Relations Act 2016 (Qld), I direct that all documents relevant to this matter be withheld from release, search or copy absolutely, or until further order of the Commission

Footnotes

[1] The Respondent filed an application seeking suppression of the names of student witnesses and the schools involved. This application was allowed and is addressed at the end of these reasons. Hence the names have been anonymised.

[2] Second Show Cause Notice dated 18 October 2024, Enclosure One.

[3] As Attachment 1 to the Respondent's submissions filed on 2 December 2024.

[4] [1993] QCA 012; [1995] 2 Qd R 10.

[5] [2021] QIRC 263 [40]–[46].

[6] Citing Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 [42].

[7] Ibid, [44].

[8] Kemp v State of Queensland (Department of Education) [2022] QIRC 164, [169].

[9] [2022] QIRC 164, [169].

[10] Second Show Cause Notice, Enclosure One, Allegation 1, [4]-[24].

[11] Second Show Cause Notice, Enclosure One, Allegation 2, [5]-[27].

[12] Second Show Cause Notice, Enclosure One, Allegation 3, [2]-[11].

[13] Section 32(4)(b) of the Public Sector Act 2022 (Qld); see also O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [31] (Industrial Commissioner Power).

[14] Form 89 – Appeal Notice ('the Appeal Notice') filed on 7 November 2024.

[15] Industrial Relations Act 2016 (Qld) s 562B(3).

[16] Ibid, 562B(4).

[17] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). 

[18] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA).

[19] The relevant policies here appear to be the Department of Justice and Attorney General Workplace Policy and the QCS Discrimination and Harassment Policy.

[20] Submissions of the Respondent dated and filed 2 December 2024.

[21] Ibid, [10], citing s 562B(3)-(4) of the IR Act.

[22] Ibid, [10], citing Gilmour v Waddell & Ors [2019] QSC 170, [207] per Ryan J.

[23] Ibid, [14].

[24] Ibid, [16]–[18].

[25] Ibid, [20]-[22].

[26] Appeal Notice filed 18 October 2024.

[27] Respondent's submissions, [23].

[28] Investigation Report, s 6 and Attachment 1.

[29] Respondent's submissions, [24].

[30] Ibid, [31] referencing the Second Show Cause Notice, Enclosure One, Allegation 1 [13].

[31] Ibid, [34]-[35].

[32] Ibid, [38].

[33] Ibid, [40]-[42].

[34] Ibid, [44].

[35] Second Show Cause Notice, Enclosure One, Allegation 2 [12].

[36] Respondent's submissions, [45].

[37] Appellant's submissions dated and filed 16 December 2024, [3].

[38] Ibid, [4] and [9].

[39] Ibid, [5].

[40] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[41] Appellant's submissions, [6].

[42] Ibid, [6], [8] and [17].

[43] Second Show Cause Notice dated 18 October 2024.

[44] Appellant's submissions [23].

[45] Ibid, [24]-[25].

[46] Ibid, [27]-[28].

[47] Ibid, [30].

[48] Ibid, [32].

[49] Ibid, [36]-[37].

[50] Ibid, [38].

[51] Ibid, [39].

[52] Respondent reply submissions dated and filed 23 December 2024, [4].

[53] Ibid, [5].

[54] [1966] 3 WLR 956.

[55] Respondent's submissions, [10], citing Gilmour v Waddell & Ors [2019] QSC 170, [207] per Ryan J.

[56] [2022] QIRC 16.

[57] Ibid, [25], citing Pope v Lawler [1996] FCA 1446. 

[58] Ibid, [20]

[59] Colebourne (n 15) at [21]-[22] and [25].

[60] Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[61] [1938] HCA 34; (1938) 60 CLR 336

[62] Ibid, at 347 (Latham CJ).

[63] Ibid, at 361-362 (Dixon J).

[64] (1992) 110 ALR 449.

[65] Ibid, 449–50.

[66] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; Refjek v McElroy (1965) 112 CLR 517 at 521.

[67] See by way of example the decisions of the Queensland Industrial Relations Commission in Gold Coast Airport Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 060, [11]-[15] per O'Connor (as his Honour then was); and Smith v State of Queensland (Queensland Health) [2023] QIRC 296.

[68] [1994] HCA 48; (1994) 181 CLR 387.

[69] Ibid, 399.

[70] Citations omitted.

[71] [2016] QCATA 125.

[72] Ibid, [35], (Judge Sheridan, Deputy President, Member Howard). (emphasis added)

[73] Investigation Report, Attachment 5.

[74] Ibid, Attachment 26, 17 – Interview conducted on 16 March 2023.

[75] Ibid.

[76] Ibid, 79.

[77] Investigation Report, Attachment 27, 20.

[78] Ibid, 25-42.

[79] Investigation Report, Attachment 29, 33 – interview on 16 March 2023.

[80] Ibid, 49-51.

[81] Ibid, 125.

[82] Ibid, 126-127.

[83] Ibid, 130-135.

[84] Ibid, 149.

[85] Investigation Report, Attachment 21.

[86] Ibid, 28-31.

[87] Ibid, 120 and 144.

[88] Ibid, 158.

[89] Investigation Report, Attachment 22.

[90] Ibid, 120.

[91] Ibid, 138-168.

[92] Ibid, 173-178.

[93] Subramaniam –v- The Public Prosecutor [1956] WLR 965 at 970.

[94] Respondent's reply submissions, paragraph 5(e).

[95] Section 531(2) of the IR Act.

[96] Ibid, [77]-[80].

[97] R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 per Diplock LJ.

[98] Forbes Justice in Tribunals 5th edition at [12.45] citing Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 5; Secretary to Department of Human Services v Sanding [2011] VSC 42 at [133].

[99] (1979) 26 AR 247.

[100] Ibid, at 256-257 per Brennan J.

[101] Kavanagh v Chief Constable of Devon and Cornwall [1974] QB 624 at 633 per Lord Denning MR.

[102] Gardiner v Land Agents Board (1976) 12 SASR 458 at 474 per Walters J.

[103] Investigation Report, Attachment 29, 149.

[104] Investigation Report, Attachment 26, 17.

[105] Ibid, Attachment 16.

[106] Ibid, Attachment 26, 79.

[107] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.

[108] Second Show Cause Notice dated 18 October 2024, 17(a).

[109] Investigation Report, Attachment 15.

[110] Ibid, Attachment 16.

[111] Ibid, 31.

[112] Ibid, 33.

[113] Ibid, 35.

[114] Ibid, 43-57.

[115] Ibid, 61.

[116] Ibid, 76-79.

[117] Ibid, 80-81.

[118] Ibid, 82-93.

[119] Ibid, 113.

[120] Ibid, 123.

[121] Investigation Report, Attachment 15.

[122] Appellant's submissions, [9].

[123] Investigation Report, Attachment 20.

[124] Ibid, 155-156.

[125] Ibid, 157-158.

[126] Ibid, 159-164.

[127] Forbes Justice in Tribunals 5th edition at [12.45].

[128] Investigation Report, 8.

[129] Investigation Report, Attachment 21, 33-39.

[130] Ibid, 43-44, 49-54.

[131] Investigation Report, Attachment 22.

[132] Ibid, 57-61.

[133] Ibid, 62-65.

[134] Ibid, 74-90.

[135] Investigation Report, Attachment 23.

[136] Ibid, Attachment 22, 104-110.

[137] Ibid, 111-114.

[138] Investigation Report, Attachment 20, 211-221.

[139] Ibid, 234-245.

[140] Ibid, 246-255.

[141] Ibid, 256-269.

[142] Ibid, 276-291.

[143] Ibid, 307-325.

[144] Investigation Report, Attachment 29, 57-77, 87-94.

[145] Investigation Report, Attachment 35, 22-50.

[146] Ibid, Attachment 36.

[147] Ibid, Attachment 37.

[148] Ibid, Attachment 38.

[149] Ibid, Attachment 39.

[150] Investigation Report, Attachment 42.

[151] Ibid, 20-27.

[152] Ibid, 64-65.

[153] Ibid, Attachment 43.

[154] Investigation Report, Attachment 26.

[155] Ibid, 95.

[156] Ibid, 107.

[157] Ibid, 109.

[158] Investigation Report, Attachment 27.

[159] Ibid, 102.

[160] Ibid, 110-112.

[161] Ibid, 130-164.

[162] Investigation Report, Attachment 29.

[163] Ibid, 111-120.

[164] Investigation Report, Attachment 20.

[165] Ibid, 426-447.

[166] Ibid, 449-469.

Close

Editorial Notes

  • Published Case Name:

    Leigh v State of Queensland (Department of Education)

  • Shortened Case Name:

    Leigh v State of Queensland (Department of Education)

  • MNC:

    [2025] QIRC 23

  • Court:

    QIRC

  • Judge(s):

    O'Neill IC

  • Date:

    28 Jan 2025

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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Pope v Lawler [1996] FCA 1446
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Queensland College of Teachers v CSK [2016] QCATA 125
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R v Deputy Industrial Injuries Commission; Ex parte Moore (1965) 1 QB 456
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R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228
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Re Barbaro (1980) 3 ALD 1
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