Michael Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn. (U2018/7289) [2019] FWC 4643. Dean, DP. 10 July 2019.

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4643.htm

Introduction

 

  • Mr Michael Crowley was employed as a teacher at Lumen Christi Catholic College for 17 years until his dismissal for misconduct for an incident that occurred during a kayaking class.
  • Mr Crowley had 36 years’ experience as a teacher, including approximately 16 years with the College and 12 years’ experience doing this particular kayaking activity. He was highly regarded by his other colleagues. There was nothing in the evidence which suggested that he conducted any sporting activity, water-based or otherwise, in a manner that was unsafe in the entirety of that time.
  • The Fair Work commission disagreed with the findings of the investigator to the extent that the investigator’s report, which was relied upon by the Church for the dismissal. The Church categorised Mr Crowley as difficult to manage and argued strongly that he should not be reinstated:

 

  • A history of incidents in addition to the Final Warning and the Incident, in which Mr Crowley was involved.
  • Mr Crowley’s lack of acceptance of errors and willingness to accept responsibility.
  • His expressed attitude to Mr Centra, parents and students.
  • Mr Centra gave evidence that he had offered Mr Crowley mentoring and professional development in the past, and this was not taken up by Mr Crowley.
  • Mr Crowley’s representative argued that the almost ineluctable* conclusion was that the dismissal was harsh, unjust or unreasonable. [*ineluctable: adjective. Unable to be resisted or avoided; inescapable].
  • There were some students who ventured into an area which they were not instructed, in an attempt to catch waves.
  • All children made it back to shore with help, before any assistance from emergency services/SLSC members.
  • One of the kayaks capsized, followed by others, including Mr Crowley’s kayak. Subsequently, the ambulance and the police were called and attended the scene. All students were driven home after the Incident except one who was taken to hospital and diagnosed with a concussion. That student was also sent home after being examined.
  • The Incident drew a great deal of local attention and became the subject of a report in the local newspaper that afternoon.
  • Arising from the Incident, an allegation of misconduct was made against Mr Crowley.
  • The Archdiocese engaged an independent investigator to commence an investigation. As a result of the investigation report and a subsequent review, the Archdiocese drew the conclusion that Mr Crowley had engaged in serious misconduct. Mr Crowley’s employment was terminated by letter dated 22 June 2018. The termination took effect on 25 June 2018 and Mr Crowley received payment in lieu of notice.
  • The hearing was conducted over multiple days, commencing on 22 October 2018, and concluding on 5 December 2018. A site inspection was also conducted at Pambula River on the morning of 5 November 2018.
  • Both parties were legally represented (the Church by a Senior counsel and Solicitor).
  • 12 students were called as witnesses.

 

The Allegation

 

The allegation against Mr Crowley was particularised in a letter from Ms Stacey Ozanne, Head of Human Resources of the Catholic Education Office (CEO), as follows:

 

“It is alleged that on 17 October 2017, you did not act in a professional manner or meet your duty of care requirements in regards to your activities with your Year 9 Activity and Sports Studies class at the mouth of the Pambula River.

 

The particulars of this allegation are that you conducted a field trip with this class as a practical component of their unit of work on water safety using kayaks in open water on the Pambula River estuary and:

 

  1. Conducted the activity at a time of deteriorating weather conditions, tidal run-out and high sea swell without an adequate risk assessment or appropriate consideration for the safety of the students.

 

  1. Failed to conduct sufficient safety pre-checks of helmets and buoyancy vests for students, yourself or your assistant.

 

  1. Failed to personally wear a helmet and buoyancy vest.

 

  1. Failed to have appropriate current accreditation to supervise open water activities (namely a current surf lifesaving proficiency qualification or similar).

 

  1. Recklessly led the students into a wave and current area at the mouth of the river that was dangerous, leading to several students, as well as yourself, capsizing and having to be assisted by other students, police, ambulance and a Lifeguard. One student subsequently required treatment for hypothermia.

 

  1. Allowing students who had not successfully qualified in swimming competency to take part in the activity.

 

  1. Failing to follow appropriate CE Policies and Procedures.”

 

The investigation report

 

The investigation report was dated 16 January 2018. It comprised some 40 pages in length and included the following sections: Background, Allegations, Investigation Actions, Witness Evidence Summary, Response to Allegations, Witness Evidence Summary (continued), Analysis and Findings.

 

The investigator found that each of the seven particulars of the Allegation were sustained.

 

Reply by Mr Crowley

 

A detailed reply, including attachments, was provided to Ms Ozanne by Mr Crowley on 8 May 2018. His reply included the following:

 

“In any event, I am sorry that the students and their parents went through this ordeal. It was never my intention to cause any distress, harm, fear or embarrassment to the relevant students or their parents, the school or the school system.

 

“I realise even though my intentions were positive I contributed in some part due to the communication confusion. I never did anything knowingly wrong. I certainly did not lead students into danger, and those boys paddled in against direct instructions from me and forced me to put my life at risk …”

 

The full report is contained in the decision proper.

 

Subsequent events

 

On 6 June 2018 Mr Crowley provided Ms Ozanne with a medical certificate certifying him unfit to perform his usual occupation.

 

Around this time, the College had also been provided with a number of letters in support of Mr Crowley by members of the community, including former students, one of whom was a school captain, a former teacher, and the inaugural Chairperson of the College Board.

 

On 13 June 2018 Ms Ozanne wrote to Mr Crowley giving him one final opportunity to propose an alternative to the proposed sanction of dismissal. In reply, Mr Crowley sought more time to consider the options, and noted the following:

 

“My home was destroyed as you know in the Tathra Bushfires, I have this precarious situation with my future hanging over my head and to make matters worse my ex partner witnessed and was chased by the perpetrator of the murders in Bega two Friday’s ago, on the eve of our daughters 18 birthday party. We learnt at the weekend that … my daughter now needs a knee reconstruction following an AFL injury. She is about to embark on her HSC exams. My family is in turmoil, requiring my upmost attention and I am certainly not in the right mental state to rationally make any decisions concerning my future at this present time.”

 

Mr Crowley’s account was (this is quite (exciting?):

 

“We were not at the southern shore for long. Before departing from the southern shore I told the students to ‘follow me exactly and stay away from the waves’ and ‘stay on my line’. I also used signals (the signal shows students to stay on the Riverside of my position), for those students who may not have heard me when I said this, because I was in my kayak and slightly out from the southern shore when I called out and some students were on the beach at the southern shore.

 

“There was again no significant current as I crossed back to the northern shore, paddling along a semi – circular line, maintaining a distance of at least 25 metres from the reform waves area at all times. I led the students with Hamish now at the rear – his job was to keep an eye on stragglers and keep the rear guard on my line.

 

“When I reached the northern shore I turned my kayak and raised my paddle vertically to signal to the students to assemble on my position. I was sitting across the rear kayak seat with my feet on the sand in shallow water, about 5 or 6 metres off the beach. I was about 40 metres along the beach from our initial entry point on the northern shore. There was no current at that position either. I was intending to then proceed up the River (further away from the River mouth) with the class to do the ferry glide in a location where there was some current.

 

“Most of the group came to me. When I turned around (having traversed the River from south to north), I observed some kayaks who had moved seawards (about 30 meters off the line I had taken across the River) towards the reform waves area, and were riding the waves. I think there were three kayaks in this position. They were significantly off the line I had taken across the River. I think I called out for them to come to me, and signalled for them to come by raising my paddle.

 

“Two of the three kayaks came back out of the reform waves area, surfing the reform waves. The third kayak capsized when it tried to turn. I shouted to the group and Hamish ‘Get on the sand, I have to go.’ I only shouted to Hamish once the first kayak had capsized.

 

“I paddled towards the kayak that had capsized. It was about 25-35 metres away. To get there I had to paddle through a standing wave at an angle, not at 90 degrees (as you would normally punch through a wave), to reach them. I was in a double kayak on the middle seat by myself. In that position the kayak is less stable than if you have two people in it. My kayak capsized as I traversed the wave.

 

“I am not sure whether some additional kayaks ended up in the reform wave zone because they followed me in, ignored Hamish, or had not heard my instructions when I was on the northern shore telling the students to go onto the sand. I concede that at this point there was a communication breakdown. It could also have been that they saw me capsize and wanted to render assistance. I don’t know because I was underwater and then getting myself back on my kayak for a few seconds.

 

“When I re-surfaced I saw that another kayak was in some difficulty. They were in the channel and heading towards an area where the waves grew in size and there was a stronger current. We needed to head in towards Lions Beach to get out of the channel. They struggled to do this and a number of students ended up in the water separated from their kayaks. I gathered those near me, being [Student A, C and D]. Two were able to get onto my kayak and I got into the water to make room and act as a sea anchor to stabilise the kayak. It became clear that [Student C] was struggling to get onto the kayak and was placing weight on the rail and capsizing the kayak. I decided to secure [Student C] in the water hanging onto the rear toggle of the kayak with me.

 

“[Student J] (who I believe was in the first kayak that capsized) was in the water about 12 metres from us, to my right and to the north and appeared to be in difficulty in the water. One of the other students, [Student I], got in the water and stayed with him, and made slow progress swimming towards us. I handed [Student A] and [Student D] who were still on my kayak paddles that were floating in the ocean and they paddled towards [Student J]. My intention was to glide over to [Student J] and get him onto the side handle of my kayak.

 

“Moving over to [Student J] took some time. The kayak capsized a number of times but the students were able to get back onto the kayak each time and continued paddling towards [Student J]. Several capsizes later and with a brilliant effort from [Student D] and [Student I] looking after and swimming to us with [Student J] we managed it. Then Hamish and [Student H] paddled back out and picked up [Student C]. We then managed to get into the safety of the shallows near Lions Beach. [Student J] was exhausted and appeared very cold. The Ambos warmed him and he was later driven home by Mr Evans. All the others were accounted for.”

 

The Deputy President findings

 

  • Mr Crowley’s reinstatement will be effective from 22 July 2019.
  • Mr Crowley’s continuity of employment and period of continuous service with the Archdiocese be maintained.

 

Section 391(3) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

 

  • An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate. Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.
  • I am also satisfied that Mr Crowley’s contribution to the Incident should be taken into account when making an order for lost remuneration. In this regard, he has acknowledged that there was ‘a communication breakdown’ which was his fault and which contributed to the Incident.
  • I consider that I should only make an order causing the Archdiocese to pay lost remuneration to Mr Crowley from the date of the dismissal until 31 January 2019. [So Mr Crowley was effectively “penalized” six months pay].

 

Final observations of the DP

 

“It is clear the Archdiocese had a level of concern in relation to Mr Crowley’s conduct, having issued him with a Final Warning. Mr Crowley should not take this decision as in any way relieving him of his obligation to follow CE policies and procedures and conduct himself in a manner consistent with the Guidelines and Enterprise Agreement. This decision does not provide him with immunity from further disciplinary action, including dismissal, if he does not meet those standards.

 

“Mr Crowley should carefully consider the steps he will now take to ensure his return to the College is positive and productive for all involved. If the offer to Mr Crowley of mentoring and professional development is still open to him, he should seriously consider accepting it”.

 

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

 

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.