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Full decision here.
This decision concerns an application by a Rabbi who was a teacher of Jewish Studies at high ranking College, for more than 40 years. He was dismissed by reason of “a pattern of misconduct and unacceptable behaviour” over a period of time, in each case alleged to amount to a failure to supervise students as required and a failure to follow reasonable and lawful directions. The College maintained that the two most recent incidents were “very serious”, especially having regard to the School’s duty to ensure that risks to health, safety and welfare of its students are properly mitigated.
There was an initial application by the college for the matter to proceed by way of private conference, apparently motivated by its concern about the degree of public attention. This was refused having regard to the number of contested issues in evidence and on the basis that the parties were invited to apply for specific witness evidence to be heard confidentially. No such application was made, and the matter proceeded by way of open hearing with agreement that there would be no photography in the hearing.
In 1978, the Rabbi commenced employment as Jewish Studies Teacher at the School. The offer of employment is recognised as a religious appointment, called a “Shlichus”. From 1989 to 2006, the Rabbi was the Director of Jewish Studies in the Primary School. From late 2006 until around 2012, he was the Director of Jewish Studies in the Secondary School.
At the time of the hearing:
- The Rabbi was 66 years of age.
- He was ordained as a Rabbi in 1977 and had taught Jewish Studies at the School from 1978 until 29 March 2019.
- He holds a religious appointment called a “Shlichus” which translates from Hebrew as “an emissary”; a personal appointment of great honour and privilege.
- Under the Educational Services (Teachers) Award 2010, which the Rabbi was employed, he was paid $90,632.48 per annum.
- He had no plans to retire.
The reason for the dismissal
The Rabbi was provided with a letter of termination stating that his dismissal was due to a long litany of leaving his students unsupervised, allowing his students to leave early and other similar infractions. Despite a series of warnings, the Rabbi did not improve his performance shortfalls.
Has not sought alternative employment
From 29 March 2019 and as at the date of the hearing, the Rabbi was unemployed. He had not looked for alternative employment or earned income during this period, claiming that “the only way I am able to maintain this Shlichus is to be reinstated to my position”; and the appointment could not be replicated if he were to take other employment. In any event he was not confident that he could get another job “as good as this” but accepted that he could likely get another job teaching religious studies.
Commission should not lightly make a finding that an employee engaged in the misconduct
As described by the DP, in cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether on the balance of probabilities the conduct occurred. It is not enough for the employer to establish that it had a reasonable belief that the termination was for a valid reason. The nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “circumstances pointing with a wavering finger to an affirmative conclusion”. The Commission should not lightly make a finding that an employee engaged in the misconduct alleged.
Fraudulent or criminal behaviour
The DP went to the rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. In Greyhound Racing Authority, Santow JA noted:
“… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].”
The “level of comfort” referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact”.
Findings in this matter
The DP made some initial observations about the evidence:
- Some of the incidents occurred many months and years prior to the dismissal. There were a number of contemporaneous or proximate emails in evidence. The Rabbi relied on his recollection and the emails, but he did not rely on any contemporaneous notes; with the DP, wherever possible, relying on the contemporaneous emails and documentary records in evidence in preference to the bald recollection of one witness over another.
- The Rabbi has a strong character. He has had a long career devoted to religious education at the School. In evidence the Rabbi presented as being defensive, and at times evasive. For example, he rarely gave direct answers to questioning in cross-examination. He was regularly strident in his interpretation of events and prone to seizing on minor matters of detail. This approach challenged his credibility.
- The Rabbi was also difficult in cross-examination, at times straining to justify his process. Where there are important contests about process the DP favoured that of the college’s version where it is corroborated by another witness or supported by the documentary records.
Duties of the Commission and the employer
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees), in the sense that it was both a good reason and a substantiated reason.
The employer bears the evidentiary onus of proving that the conduct on which it relies took place. A pattern of past conduct may not form a valid reason for dismissal if the employee was not properly warned or disciplined in relation to that conduct. However, that same pattern of conduct or behaviour may be considered relevant to an overall assessment of whether the dismissal was “harsh, unjust or unreasonable”.
The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. It is also well established that a valid reason need not necessarily be the one relied upon by the employer.
Was there a valid reason for the dismissal?
In short, “yes”. The DP finding that the Rabbi’s conduct equated to a valid reason for his dismissal which in each case amounted to a failure to supervise students as scheduled in breach of his duty of care, and a failure to follow reasonable and lawful directions:
“Accordingly…[the] Incidents amount to a failure by [the] Rabbi…to discharge his fundamental obligation to supervise students as scheduled and a failure to follow the School’s reasonable and lawful direction to perform those duties as rostered…The simple fact is that…involve a failure to perform [the] Rabbi’s duty as scheduled, resulting in a lack of supervision of the students within his care”.
The DP concluding that
“In conclusion, for the reasons given, I am satisfied on the evidence adduced that there was a sound, defensible and well-founded reason for [the] Rabbi’s dismissal related to his failures to attend for duty and discharge his obligation to supervise students as required in his role as Teacher…”
Was there any unreasonable refusal to allow Rabbi Ash to have a support person present?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
Any other matters that the Commission considers relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. There are three other matters which are most pertinent to this case and may be taken into consideration for the purposes of s.387(h):
- A pattern of behaviour, which may be a relevant consideration for the purposes of s.387(h) even where that same behaviour did not substantiate a valid reason for the dismissal;
- The degree of seriousness of the misconduct, which may be considered as a relevant matter under s.387(h) when considering whether “dismissal was a proportionate response to the conduct in question”; and
- An employee’s long and satisfactory work performance or history which may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.
The DP took into consideration the Rabbi’s age, the fact that he worked as a Teacher at the School for his entire teaching career, his specialist skills as a Jewish studies teacher and his career prospects. Also considered was that the Rabbi holds a religious and spiritual appointment which is undoubtedly significant within the School and its community and which the Rabbi believes is lost as a result of the dismissal. However, the DP finding that, these matters do not outweigh the issues at the heart of the dismissal, as to result in a finding that the dismissal was unfair.
Conclusion by the Deputy President
In dismissing the Rabbi’s application for unfair dismissal, the DP concluded:
“Throughout his recent career history and these entire proceedings, [the] Rabbi has failed to accept any responsibility for his failures to supervise students within his care. He has sought to explain away his part in these incidents, regularly seeking to place responsibility with others. I have not found these explanations to be plausible or sufficient justification for his failures to supervise students as scheduled. Further, I find the series of excuses and absence of contrition to weigh against a finding of harshness”.