QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

PARTIES:	
	Regan v State of Queensland (Department of Education) [2022] QIRC 335

Hill Regan
(Appellant)

v

State of Queensland (Department of Education) 
(Respondent)
	
CASE NO:
	PSA/2022/488
	
PROCEEDING:
	Public Service Appeal – Appeal against a disciplinary decision
	
DELIVERED ON:
	26 August 2022	
HEARD AT:

MEMBER:
	On the papers

Pidgeon IC
	
ORDERS:	Pursuant to section 562C(1)(a) Industrial Relations Act 2016 the decision appealed against is confirmed.
	
CATCHWORDS:

LEGISLATION:

CASES:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –public service appeal – appeal against a post-separation disciplinary declaration – where the appellant engaged in misconduct – whether the post-separation disciplinary declaration against the appellant was fair and reasonable

Directive 14/20: Discipline cl 8

Industrial Relations Act 2016 ss 562B, s 562C

Public Service Act 2008 s 187, 188A, 194, 196

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Reasons for Decision

Background

[1]	Mr Regan (the Appellant) was employed by the State of Queensland (Department of Education) (the Respondent) as a Teacher at Redlynch State College. 

[2]	On 3 February 2020, Mr Regan became involved in a physical altercation with a student. On this date, Mr Regan provided the school with a written statement concerning the incident.

[3]	On 19 February 2020, Mr Regan was suspended with remuneration and this suspension continued until the expiry of his temporary employment on 3 April 2020. 

[4]	On 3 December 2020, the Respondent's Investigations Team offered Mr Regan an opportunity to provide a further written response to the allegations.  This was an opportunity to respond to the allegations as particularised in the terms of reference for the investigation which was close to finalisation.  Mr Regan confirmed via his legal representative that he would decline to provide a further written response and would provide a written response should the matter proceed to a show cause process.

[5]	On 23 February 2022, Ms Crowley advised Mr Regan of the outcome of the investigation and was advised that the allegation had been found to be capable of substantiation. Mr Regan was asked to show cause why disciplinary findings and disciplinary action should not be taken against him pursuant to ss 187 and 188A of the Public Service Act 2008 (the PS Act).

[6]	Mr Regan provided a response in a letter dated 21 March 2022.

[7]	On 25 March 2022, following a show cause process, Anne Crowley, Assistant Director General, Human Resources (the decision-maker) wrote to Mr Regan providing a decision on post-separation disciplinary findings. Pages 2 and 3 of that decision letter address Mr Regan's submissions in response to the show cause notice and set out findings in relation to the following allegation: 

On 3 February 2020, at Redlynch State College, you acted in a physically inappropriate manner towards Student A, by engaging in a physical altercation with her.

[8]	Ms Crowley informed Mr Regan that:

On the basis of my findings in relation to the Allegation, I have determined that pursuant to section 187(1)(b) of the Act you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the Act.

[9]	Ms Crowley went on to explain:

Section 188A(7) of the Act provides that in disciplining a former public service employee, the previous chief executive may make a disciplinary declaration and may not take any other action. However, in accordance with section 188A(8) of the Act, a disciplinary declaration may only be made if the disciplinary action that would have been taken against you, if your employment had not ended, would have been the termination of your employment of the reduction of your classification level. 

[10]	Ms Crowley then provides the matters taken into account in determining the proposed disciplinary action. She states:

I consider that your conduct of engaging in a physical altercation with a student to be a breach of department standards and irreparably destructive of the trust and confidence the department is required to have in employees.  Your conduct has caused me to lose trust and confidence in your ability to perform duties to the standard expected of a Teacher, particularly in the context of the seriousness of a physical strike consisting of kicking a student in the head.  I am satisfied that, had your employment not ceased, the disciplinary action that would have been taken against you would have been the termination of your employment.

Accordingly, I have determined to make the following disciplinary declaration:

•	I declare that my disciplinary findings against you are as follows:

-	The Allegation is substantiated, namely that on 3 February 2020, at Redlynch State College, you acted in a physically inappropriate manner towards student A, by engaging in a physical altercation with her.
 
-	On the basis of my findings in relation to the Allegation, I find that pursuant to section 187(1)(b) of the Act, you are guilty of misconduct within the meaning of section 187(4)(a), that is inappropriate or improper conduct in an official capacity. 

•	The disciplinary action that would have been taken against you, if your employment had not ended, would have been the termination of your employment.
…

[11]	Section 194(1)(b)(ii) provides that an appeal may be made against a decision under a disciplinary law to discipline a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment.  Section 196(b) provides that a former public service employee aggrieved by the decision to discipline the employee may appeal the decision.  I am satisfied that the decision is one that may be appealed against and that Mr Regan is a person who may appeal. 

Mr Regan's appeal notice

[12]	Mr Regan's appeal notice is signed by him and dated 11 April 2022.  It was filed in the Industrial Registry on 20 April 2022.  It appears that Mr Regan made reasonable efforts to file the appeal and that due to issues with the provision of a digital signature, the appeal notice was unable to be digitally filed and so was posted.  The Respondent indicated that if Mr Regan were to make application for an extension of time to file his appeal, it would not oppose that application.  Mr Regan did not make such an application, however, based on the correspondence available to me, I determined that the appeal was filed out of time due to matters outside of Mr Regan's control and that I would extend time to allow the appeal to be heard.

[13]	Mr Regan's reasons for appeal were provided as an attachment to the appeal notice. Mr Regan says that his appeal relies on '3 main areas': 1) 'Procedurally'; 2) 'The actual facts of the situation'; and 3) 'The concept of a power relationship'. 

[14]	Mr Regan's submissions regard procedural matters are, in summary:

•	The process has not been undertaken in a timely and fair manner.
•	The delay of two years has made it very difficult for him to gather more impartial evidence from more reliable witnesses.
•	There is no case to answer.
•	The Department did not gather evidence about his injuries from other staff members.
•	The Department did not gather any information regarding the student's previous verbal racial and abusive attacks against him or threats made against him in a previous incident the year before.
•	He has seen no evidence of the student's previous record and it is surely relevant.
•	As a relief teacher, he has a unique insight into QED policy and notes violent students who have attacked staff reappear at other schools a short time later.
•	The evidence of the students was disjointed and incomplete and showed obvious bias and unwillingness to give the complete truth. 
•	It is disappointing that the investigator underplays the proven comment 'roll me in the car park'.
•	Common sense tells you that the verbal abuse was clearly far more threatening and venomous.

[15]	Mr Regan's submissions regarding 'the actual facts of the situation' are, in summary:

•	Physical violence was threatened against him.
•	Physical violence was actuated against him.
•	Other students in the class were at risk and while they have not referred to fear, were they asked that question?
•	An experienced teacher knows to get violent and potentially violent students out of the classroom as soon as possible.
•	The investigator was naïve regarding the risks arising if the student had started inside the classroom. 
•	Mr Regan did what he could to protect himself and his students. 
•	In another school he worked in, a teacher chose not to intervene, but 'that girl is dead'.
•	When you are a teacher there are no 'do overs' and as a father of 4 daughters, you just hope there is a teacher like him around when incidents like this happen. 

[16]	Mr Regan's submissions regarding the concept of a power relationship are, in summary:

•	There can only be a power relationship if the parties involved believe that it is the case. 
•	The student referred to him as a 'white cunt' and threatened to kill him.
•	The student walked into the class for the first time with no intention of doing maths and had no equipment, nor did she ask to borrow supplies.
•	The student's friend asked her 'not to do it' and this leaves no doubt it was a premeditated attack. 
•	He has not experienced an attack like this and it was simply impossible to de-escalate or stop without resorting to violence.
•	A teacher told the investigator that they saw him attempting to block multiple punches and kicks.
•	He asks, is the Department really saying his only alternative was to take a beating or worse?
•	He likens the situation to a parishioner attacking a priest, or a doctor or nurse being attacked at work and being told not to protect themselves due to the relationship. 

[17]	Mr Regan goes on to say that the Department is proposing to take his means of work away from him when all he did was protect himself, his class and his equipment.  In addition to the apprehension of physical threat to his person, Mr Regan claims that the threat to his equipment further justified the use of force.

[18]	Mr Regan says that he regrets contact was made to the student's head and that it was not intentional, however he firmly believes that this 'accident' deescalated the incident. 

[19]	Mr Regan says that he is willing to be cross-examined, provide a statutory declaration or undergo a polygraph test.  He is sure that the student's version of events accepted by the Department would not stand up to such scrutiny. 

[20]	Mr Regan says that when the Queensland Police Service gave him the opportunity to press charges against the student, he was told that if the incident had happened anywhere else, the student would have been arrested for assault.  He says that for the investigator to accuse him of assault is ridiculous and insulting. 

[21]	Mr Regan says that if the school's closed-circuit television (CCTV) cameras were operating adequately, he would be getting nominated for an award for bravery and commitment to the safety of his students. 

	Mr Regan's written submission 

[22]	Mr Regan filed a written submission in support of his appeal on 27 May 2022.  Mr Regan says that the investigating officer selectively used evidence to support their assertions and completely ignored any evidence to the contrary in arriving at their decision. Mr Regan says that the officer placed far too much weight on the 'notoriously unreliable and clearly biased' evidence of teenagers and glossed over or ignored the evidence of an adult. 

[23]	Mr Regan repeats the concern raised in his appeal notice regarding the length of time it took for the investigating officer to arrive at a decision and says that the passing of time and the use of 'legal loopholes to stop me from talking to other staff' have made it difficult for him to gather evidence now. 

[24]	Mr Regan says that there is no doubt that he was dealing with a very violent person and was being hit with very big punches and kicks.  Mr Regan says that he has not seen the student's record but that the student 'was well above my weight class and had been trained in how to hurt people'.  Mr Regan says that the student's mental state was such that she wanted to see him dead.  Mr Regan says that he is not trained to deal with a situation involving repeated assaults from a determined attacker. 

[25]	Mr Regan refers me to the 'initial record of the event taken in front of the Queensland Police', his two subsequent submissions to the Department, his responses provide to the Department and the evidence given by the teacher who saw him blocking punches. 

	Respondent submissions 

[26]	The Department says that the disciplinary action was necessary and warranted.

[27]	Under the Department of Education's Standard of Practice there is an obligation for teachers to actively seek to prevent harm to students and support those students who have been harmed.

[28]	The Department points to its Guidelines for Implementing "Allegations against Employees in the Area of Student Protection" (Student Protection Guidelines) which permits physical contact and/or restraint of a student in certain circumstances.  The Department says that such circumstances are limited to where a student is engaging in acts of violence and other strategies or alternatives have been attempted or are not practical in the circumstances. 

[29]	The Department says that in the view of Ms Crowley, Mr Regan had not attempted appropriate de-escalation strategies once the physical altercation commenced.  Ms Crowley also concluded that Mr Regan's actions in kicking the student's head was 'excessive force' that was inconsistent with the Student Protection Guidelines. 

[30]	The Department says that in circumstances where Mr Regan's conduct was inconsistent with both the Standard of Practice and the Student Protection Guidelines, the decision to find Mr Regan guilty of misconduct and to make a disciplinary declaration was fair and reasonable. 

[31]	The Department acknowledges that the disciplinary declaration will significantly limit the prospects of Mr Regan ever returning to his previous employment as a teacher with the Department and that this will have financial implications for him. However, the Department says that this must be balanced against the Department's obligations in respect of student safety and the need to ensure compliance with behavioural standards.

[32]	With regard to Mr Regan's submissions addressing the procedural issues with the investigation and the resulting decision, the Department says, in summary:

•	Citing the impacts of COVID and the usual time involved in matters involving allegations of student harm, the Department acknowledges that the investigation was finalised almost two years after the incident occurred.
•	The delay did not significantly impact upon the quality of the available evidence with contemporaneous records including interviews with witnesses being prepared on the day and the day following the incident. 
•	The show cause process was not the first opportunity that Mr Regan had to provide a response regarding the matter. 
•	Mr Regan was offered an opportunity to provide a response during the investigation but refused this offer. 
•	In circumstances where Mr Regan had created a contemporaneous record of the incident on the day of the incident, it was reasonable for the investigation to proceed in the absence of a further written response. 
•	Mr Regan's focus on his injuries and the prior conduct of the student involved are not matters that significantly impact upon consideration of whether his conduct amounted to misconduct. 
•	It is not controversial that Mr Regan received injuries consistent with being in a physical altercation. 
•	Whether the student demonstrated prior conduct does not ameliorate the issue of Mr Regan failing to take steps to attempt to de-escalate the altercation and the application of excessive force during the altercation.   
•	The consistency of the evidence of the students concerning the issues of Mr Regan's failure to de-escalate the altercation and the application of excessive force cannot be disregarded solely because of the age of the witnesses.

[33]	With regard to Mr Regan's submissions regarding the disputed facts, the Department, in summary, says:

•	Mr Regan essentially contends that the investigator did not fully appreciate the risk to Mr Regan's safety and the safety of the students in the class.  Mr Regan seems to be of the view that his actions during the incident were reasonable in the circumstances. 
•	It does not dispute that Mr Regan's safety was at risk during the incident. 
•	It is of the view that much of the risk occurred due to Mr Regan's failure to take steps to de-escalate the altercation. 
•	Once a physical altercation started, Mr Regan did not choose to disengage and this further exposed Mr Regan and the student involved to risk. 
•	From the evidence gathered, the investigator could distinguish no risk to other students in the class separate from the risk of being unintentionally injured as a result of the physical altercation between Mr Regan and the student. 
•	None of the witnesses reported feeling that their safety was in danger prior to the altercation occurring. 
•	The risks to safety arose due to Mr Regan's refusal to take steps to de-escalate and not to disengage from the physical altercation. 

[34]	The Department says that Mr Regan is mistaken in his view that that a power relationship can only exist if the parties involved believe that is the case.  The Department says that the 'power imbalance' between the parties arises from a teacher's position of trust, care and authority as well as the inherent power imbalance between an adult and a child.  The Department says that it was appropriate for Ms Crowley to have regard for this dynamic when assessing Mr Regan's responsibilities as well as the appropriate disciplinary outcome. 

	No further submissions filed

[35]	The Directions issued for this matter on 25 May 2022 invited Mr Regan to make any further submissions in reply by 29 June 2022 and invited any party to request leave to make oral submissions or further written submissions by 1 July 2022.  

[36]	Neither party sought to make further written or oral submissions. 

[37]	In determining this appeal, I will consider the appeal notice, the submissions of the parties and any attachments provided to me. 

Appeal Principles

[38]	Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.

[39]	Relevantly to this matter, s 562B(4) of the IR Act states that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission-

(a)	must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
(b)	may allow other evidence to be taken into account if the commission considers it appropriate.

[40]	Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal. 

[41]	A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. 

[42]	In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:

(a)	confirm the decision appealed against; or
…
(c)	For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 

[43]	Directive 14/20: Discipline (the Directive) addresses the relevant factors to be considered in proposing appropriate and proportionate disciplinary action:

8. 	Discipline process
…
8.5		Show cause process for proposed disciplinary action
…
(d)	In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
(i)	The seriousness of the disciplinary finding
(ii)	The employee's classification level and/or expected level of awareness about their performance or conduct obligations
(iii)	Whether extenuating or mitigating circumstances applied to the employee's actions
(iv)	The employee's overall work record including previous management interventions and/or disciplinary proceedings
(v)	The employee's explanation, if any
(vi)	The degree of risk to the health and safety of employees, customers and members of the public
(vii)	The impact on the employee's ability to perform the duties of their position
(viii)	The employee's potential for modified behaviour in the work unit or elsewhere
(ix)	The impact a financial penalty might have on the employee
(x)	The cumulative impact that a reduction in classification and/or pay-point may have on the employee
(xi)	The likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

[44]	The meaning of 'misconduct' was considered in the decision of Coleman v State of Queensland (Department of Education) [2020] QIRC 032 where Merrell DP held:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates 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.

Consideration

[45]	The Appellant raises three grounds of appeal, and the Respondent addressed these in their written submissions.  I will deal with each in turn. 

Procedural fairness

[46]	I understand that Mr Regan has been frustrated by the time it has taken for the matter to be finalised.  Mr Regan's employment with the Respondent concluded on 3 April 2020.  It appears that the investigation report was finalised and recommendations were made in June 2021. It is possible for the Department to make a post-employment disciplinary declaration up to two years following the end of the employment relationship. However, even taking into account the impact of the COVID-19 pandemic on the operations of the Department, it is highly unfortunate that the show cause process regarding disciplinary findings and disciplinary action was not commenced until early 2022 and the final decision was not communicated until 25 March 2022. 

[47]	Notwithstanding the lengthy period between the events occurring and the final outcome being communicated to Mr Regan, I am unable to find that there has been a lack of procedural fairness afforded to Mr Regan. It appears that statements were gathered from the student witnesses, the teacher witness and Mr Regan in the immediate period following the incident.  I note that Mr Regan is concerned that his colleagues were not interviewed, though I further note that there were no other staff in the classroom at the commencement of the interaction between Mr Regan and Student A and that the staff member who witnessed the end of the incident when it had moved to outside the classroom did provide a statement. 

[48]	Mr Regan was provided with an opportunity to provide a further statement to the investigator but chose not to do so.  Mr Regan was also afforded an opportunity to respond to the show cause notice regarding the proposed disciplinary finding and the proposed disciplinary declaration.  Mr Regan accepted this opportunity and provided a reply.  

[49]	The final decision received by Mr Regan on 25 March 2022 makes it clear that Mr Regan's response to the show cause letter was carefully considered by the decision-maker.

[50]	Mr Regan submits that there is 'no case to answer'.  I disagree. There was a serious incident involving physical aggression between Mr Regan and a student in his class.  This was certainly a matter worthy of investigation when considering the relevant departmental policies, Code of Conduct and Standards of Practice which applied to Mr Regan and the responsibility of the Department to ensure that these policies are implemented appropriately.

[51]	I understand that Mr Regan was injured during the incident and that he submits that the Department should have gathered evidence about his injuries.  However, I note the terms of reference for the investigation were not centred on injury to either Mr Regan or Student A. The Terms of Reference were 'that the subject officer acted in a physically inappropriate manner towards a student or students' and the only allegation being investigated was that listed above at [7].  In any case, the material before me clearly demonstrates that the decision-maker was aware that Mr Regan had sustained injuries during the incident.  It is not disputed that Mr Regan was injured during the incident.

[52]	I have read the investigation report and I do not agree with Mr Regan that the investigator underplays the comment made by Student A to Mr Regan that she would 'roll' him in the car park.  On page 12 of the report, the investigator notes Mr Regan's evidence that he was threatened by Student A but then finds that there is no other evidence to support Mr Regan's version of events that the student had made threats to kill him.  It appears that the investigator establishes Student A did say she would 'roll' Mr Regan but that this was the extent of that threat during the incident.  Having read all of the material, it seems to me that the incident did not occur in the car park and if Mr Regan was genuinely concerned about his personal safety in the car park as a result of the remark made by Student A, it was open to him to report this to school Administration and seek advice or support regarding his personal safety and the behaviour of the student in making the remark.   I note that the decision-maker says the following: 

I accept that Student A was argumentative, had raised her voice, was swearing at you, used foul language and that she had indicated that she would 'roll' you, however, I have regard to the statements of the ten other students who were in the room and note that none of the other contemporaneous evidence indicates Student A made repeated or additional serious threats against your person beyond this….

[53]	Mr Regan also states that 'common sense tells you that the verbal abuse was clearly far more threatening and venomous'.  With regard to that submission, I again note that there is no suggestion from the investigator or the decision-maker that Student A did not verbally abuse Mr Regan.  However, the allegation being investigated was with regard to Mr Regan's engagement in a physical altercation with Student A.  The material before me makes it clear that Student A was speaking in an entirely inappropriate manner towards Mr Regan and this has been accepted by the investigator and the decision-maker, however, Student A's verbal abuse of Mr Regan was not found to excuse the physical altercation that followed. 

[54]	Mr Regan makes submissions about Student A's previous behaviour record and states that in his experience, violent students who attack staff reappear at other schools a short time later.  While Mr Regan believes Student A's record should have been considered, I find that it was open to the decision-maker to determine that Mr Regan's actions during the incident were not appropriate.  Regardless of Student A's record, Mr Regan was required to act in accordance with departmental policy and guidelines in any interaction with Student A.

[55]	Mr Regan submits that the evidence of the students was disjointed and incomplete and showed obvious bias and unwillingness to tell the truth.  I note that the investigator set out the evidence of each of the student witnesses along with the evidence of Mr Regan, Ms Meek (another teacher at the school) and Student A to determine the most likely course of events.  For example, the investigator states on page 13:

Whilst witness students speak of Mr Regan restraining Student A around the neck and by way of 'headlock', Mr Regan wrote that he restrained Student A's arms and dropped her to the ground, telling Student A to stop.

Whilst there is clear supporting evidence that a physical altercation has occurred between Student A and Mr Regan and the injuries were sustained, there is some discrepancy within the statements in relation to actions and who made first contact.

[56]	The decision-maker determined that: 

Regardless of how the physical fight started, based on the consistency across all contemporaneous evidence, I accept both you and Student A were pushing each other before the fight escalated to a point where student A stuck you.  I accept that you restrained Student A and from this point she was on the ground, still attempting to kick or punch you.  I accept one of these kicks hit you in the testicles.
…
Although you submit that Student A's friends may have written statements favourable to her, given the broad consistency across all ten witness statements and that they were given proximate to the incident, I am satisfied with the veracity of the student witness statements. 

[57]	I have reviewed all of the student witness statements and I note that while there are some discrepancies, they do not appear to be 'disjointed' or to 'show obvious bias' or an 'unwillingness to tell the truth'.  It is clear from the statements that Student A's behaviour was completely inappropriate.  However, what emerges from the statements is a picture of the altercation that occurred and the conduct that Mr Regan engaged in throughout the altercation. 

[58]	It seems to me that the issue Mr Regan has is that he continues to genuinely believe that his actions were justified in the circumstances and in consideration of Student A's behaviour. Mr Regan rejects the decision-maker's finding that 'having regard to the totality of the evidence and your Response, I am not satisfied that it was appropriate for you to engage in conduct that you did'.

[59]	I am unable to find that Mr Regan has demonstrated that he has not received procedural fairness in relation to the investigation or the show cause process. 

	Facts relied upon by the decision-maker are disputed by Mr Regan

[60]	Mr Regan's second ground of appeal was with regard to the facts relied upon by the decision-maker in determining the disciplinary finding and the disciplinary declaration. I find that this has largely been addressed above where I have considered Mr Regan's concerns about the witness statements and investigation report.

[61]	Mr Regan says that the actual facts of the matter are that physical violence was threatened and actuated against him.  I note that the investigation report and the decision letter of 25 March 2022 both make this finding. 

[62]	Mr Regan says that other students in the class were at risk and says that they were not asked whether they were fearful. I understand that Mr Regan has determined that the students were at risk and believes that they may have been fearful, however, a review of the student statements and the investigation report demonstrates to me that Student A's verbal and physical behaviour was directed at Mr Regan throughout the incident.  There is no evidence that Student A had threatened any other student.  It is clear that the school was alive to the fact that witnessing the events which unfolded may have caused distress to some students.  An email relaying that an incident had occurred and that support was available to students was sent to the parents of those students following the incident. With regard to the students who witnessed the incident, the decision-maker found 'it can be seen that your inappropriate conduct exposed the witness students to potential psychological trauma'.   It seems to me that if there was any threat to students arising from this incident, it was as a result of witnessing the altercation. 

[63]	I note Mr Regan's submission that an experienced teacher knows to get violent and potentially violent students out of the classroom as soon as possible and that the investigator was naïve regarding the risks arising from the actions of Student A inside the classroom. It appears from all of the material before me that Student A initially left the classroom and that when she returned to the classroom, Mr Regan moved to the door to block her path. It appears that it was at this stage that the pushing began and that the rest of the incident occurred outside of the classroom. The decision-maker determined that there was a non-violent alternative open to Mr Regan and that was to simply move away. The decision-maker also found:

Accordingly, I am not satisfied that kicking Student A was justified as a means for you to safely remove yourself from or to end the altercation.  I consider kicking the victim student while she was already lying supine on the ground amounts to an excessive use of physical force in the circumstances.
…
I consider your conduct in engaging with Student A in such a way that your face was in close proximity to hers, while you yelled at her repeatedly, pushed her and, most concerningly, kicked her while she was lying supine on the ground, to be the most egregious inappropriate physical conduct…

[64]	Mr Regan does not dispute that he kicked Student A while she was on the ground.  Mr Regan's various submissions in the matter indicate that he purposefully kicked Student A but that the contact with her head was not intentional.  Mr Regan maintains that his accidental kicking of Student A in the head 'deescalated the incident'.

[65]	I am unable to find that the facts relied upon by the investigator or the decision-maker in making their findings were significantly different from those recounted by Mr Regan.  Again, I find that at the crux of this appeal is Mr Regan's belief that his actions were justified and his disagreement with the decision-maker's determination that not only were his actions unjustified, but they amounted to misconduct. 

Power imbalance between the Mr Regan and the student involved in the incident

[66]	Mr Regan's final ground of appeal appears to be that Student A was in a position of power due to her verbal abuse and threats against him and his belief that she had no intention of doing work in class and that her behaviour towards him was pre-meditated.  Mr Regan submits that it was impossible to de-escalate or stop the attack on him without resorting to violence. Mr Regan suggests that the Department view is that his only alternative was to take a beating or worse. 

[67]	As stated above, the decision-maker determined that there were other de-escalation options available to Mr Regan, from the commencement of the incident before the physical altercation occurred.  There is nothing in Mr Regan's submissions that would serve to displace the finding of the decision-maker that: 

Although students can display difficult and occasionally aggressive behaviour, teachers hold a unique position of trust, care and authority which creates a power imbalance between the teacher and the student, notwithstanding the inherent power balance between an adult and a child. While I accept Student A's behaviour was escalating and difficult to manage, I consider your response in engaging in the physical altercation in the way that you did, amounts to physical assault and does not withstand public scrutiny, crossing the boundary of the way a teacher should interact with a student who, although a high school student, is still a child. 

[68]	I agree with the decision-maker that there is an inherent power imbalance between and adult and a child.  The relationship between teacher and student is clearly one in which a power imbalance exists.  Despite Student A's behaviour, the evidence demonstrates to me that Mr Regan remained in a position of power throughout the interaction. Mr Regan initiated Student A's removal from the classroom; refused Student A re-entry to the classroom to retrieve her phone; physically restrained her on the ground; and continued the physical interaction even though she was lying on the ground and he was in a standing position. 
	
	Was the disciplinary finding of misconduct fair and reasonable?

[69]	I find that the decision-maker gave careful consideration to all material available to her including: Mr Regan's statement and response; the investigation report; Allegations against Employees in the Area of Student Protection – guidelines; Guidelines for Implementing "Allegations Against Employees in the Area of Student Protection"; Code of Conduct; and the Department of Education's Standard of Practice.

[70]	I have considered Mr Regan's strongly held view that his actions were reasonable in the face of Student A's behaviour.  However, I disagree.  Mr Regan is a very experienced teacher who says that he has vast experience in difficult school environments. I find it was reasonable for the decision-maker to find that 'Given your length of service with the department and prior educational institutions, I therefore consider you were aware or ought to have been aware of the expectations from the department, parents, caregivers and the community'.

[71]	The material leads me to find that the threat Student A posed was to Mr Regan alone.  There is no evidence that other students were at risk.  While the investigator found that it is unclear who initiated the first contact that led to the physical interaction, it is clear that while the events unfolded quickly, there were a number of junctures where it was open to Mr Regan to employ a variety of de-escalation strategies consistent with his duty of care and Department Policy.  At the point at which Mr Regan's kick made contact with Student A's face and caused the injury to her lip, face and/or jaw,  Student A was on the ground.  It is unclear to me at what point the contact that made Student A suggest that she thought her fingers might be broken occurred, but it certainly appears that the most serious aspect of the injury to Student A, occurred while she was on the ground. I disagree with Mr Regan's contention that at this stage of the incident he had no other choice but to continue the physical interaction with Student A. The physical actions taken by Mr Regan do not appear to bear the hallmarks of appropriate self-defence or self-protective actions. The were certainly not actions aimed at protection of the student.

[72]	It seems to me that Mr Regan allowed himself to be drawn into conflict with Student A and found himself either unable or unwilling to withdraw and de-escalate the situation.  As stated above, I do not accept that other students were at risk, and as the action was occurring outside of the classroom, it was open to Mr Regan to remove himself from Student A's proximity and seek support. For whatever reason, Mr Regan's actions towards Student A on the day in question resulted from neglecting to act within accepted standards or deliberately choosing to depart from the behaviour expected of him as a teacher. 

[73]	Having regard to all of the material available to me and the submissions made in this appeal, I find that it was fair and reasonable for the decision-maker to determine: 

Having regard to the totality of the evidence and your Response, I am not satisfied that it was appropriate for you to engage in conduct that you did.  I consider your conduct to be inappropriate and a breach of Student A's right to a safe and trusted physical and emotional environment that is free from harm.  I am satisfied that such conduct demonstrates either a serious negligence to the point of indifference or a deliberate departure from accepted standards and the department's expectations on interactions between Teachers and students. 

On the basis of my findings in relation to the Allegation, I have determined that pursuant to section 187(1)(b) of the Act, you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the Act. 

Was the determination to make the disciplinary declaration that the action that would have been taken against Mr Regan, had his employment not ended, would have been the termination of his employment?

[74]	Mr Regan states that the disciplinary declaration will take away his means of work.  With reference to this submission, I note that the disciplinary declaration will need to be declared by Mr Regan to the Department when seeking employment with the Department.  The letter also states that Mr Regan is not precluded from applying for work with the Department in the future but that any future application will be referred directly to the Executive Director, Safety and Integrity, for consideration. 

[75]	The Respondent submits that it acknowledges that the disciplinary declaration will significantly limit Mr Regan's prospects of ever returning to his previous employment as a teacher with the Department. The Respondent also says that it recognises that the decision will have financial implications for Mr Regan.  However, the Respondent says that these are matters that must be balanced against its obligations in respect of student safety and the need to ensure compliance with behavioural standards.

[76]	The factors to be considered in proposing appropriate and proportionate disciplinary action are set out in Directive 14/20 (see above at [43]).  

[77]	In the Show Cause letter provided to Mr Regan on 23 February 2022, Mr Regan was invited to respond to the proposed disciplinary declaration.  The letter informed him that the decision-maker would specifically consider: 

•	the seriousness of the disciplinary finding; 
•	Mr Regan's classification level and/or expected level of awareness about his performance and conduct obligations; 
•	whether extenuating or mitigating circumstances applied to his actions; 
•	his overall work record including previous management interventions and/or disciplinary findings; 
•	the explanation given by him; the degree of risk to the health and safety of employees, customers and members of the public; and
•	the likely impact the disciplinary action will have on public and customer confidence in the Department and its proportionality to the gravity of the disciplinary finding.

[78]	I have reviewed Mr Regan's response to the show cause notice where he addresses each of these matters.  

[79]	Mr Regan provides an extensive response and says that extenuating or mitigating circumstances apply to his actions.  Mr Regan states that the class was difficult and that it was very early in the year and he had not yet had an opportunity to build a rapport with the group.  Mr Regan discusses Student A's behaviour in the class and that she had previously been abusive toward him in a different lesson. Mr Regan describes the events that occurred as he recalled them and added some additional information that I do not recall reading in his initial statement.   Mr Regan states that he took every chance to de-escalate the situation and says that due to his great skill and bravery at getting Student A out of the classroom, there was no need for any other students to be greatly impacted by the events.  Mr Regan says that he was the victim of a sustained and vicious attack and that this was ignored by the Department. 

[80]	Mr Regan points out that his overall work record involves working in 'some of the toughest schools in Queensland, Western Australia and England'.  Mr Regan says that while he has had to deal with many incidents, he has never had any disciplinary proceedings or interventions.  Mr Regan said that until this point, he had been well supported by Administration and that he was very disappointed at the actions of the Department.

[81]	Mr Regan provided a response directly regarding the seriousness of the disciplinary finding.  Mr Regan then addressed the likely impact the disciplinary action will have on public and customer confidence in the Department and proportionality to the gravity of the disciplinary finding.  Mr Regan says that most colleagues he works with have completely lost faith in the Department and do not feel supported or that they can provide a safe working environment for students. Mr Regan says that his colleagues are all very keen to see the results of the case.  Mr Regan also says that he has been asked to work at many schools in the last two years but he has declined to do so. Further, Mr Regan says that schools are in crisis trying to find staff and the two-year delay in dealing with his matter is something that he and his colleagues find unconscionable.

[82]	Mr Regan's show cause notice concludes with a submission that his actions did not amount to misconduct and that it was appropriate and proper conduct in an official capacity. 

[83]	I have already determined above at [69]-[75] that it was fair and reasonable for the decision-maker to find that a disciplinary ground existed and that Mr Regan was guilty of misconduct within the meaning of section 187(4)(a).  

[84]	I am satisfied that the decision-maker appropriately considered the matters set out in the Directive when determining the disciplinary declaration to be made against Mr Regan.  Mr Regan had an opportunity to address those matters, and it is clear from the decision letter of 25 March 2022 that Mr Regan's response was carefully considered by the decision-maker. 

[85]	The decision-maker sets out reasons for the decision on the post-separation disciplinary decision on pages 3 and 4 of the decision letter.   These reasons address: 

•	Mr Regan's period of approximately ten years of employment with the Department;
•	the expectations of Mr Regan under the Code of Conduct and the Standard of Practice; 
•	the expectation the Department, parents, caregivers and the community have that teachers perform their duties and engage with students with integrity in a professional and ethical manner, and model appropriate and respectful behaviour and conduct at all times;
•	the special and privileged position of trust and influence that teachers hold within the Department and the community at large; 
•	the community expectation that teachers will ensure their interactions with students are professional at all times and that appropriate boundaries are maintained between students and teachers;
•	that the conduct of engaging in a physically inappropriate manner toward a student by engaging in a physical altercation with her is conduct that constitutes harm to a student, rising to the level of physical assault.
•	that the alternation resulted in the student requiring documented medical attention for her injuries. 
•	That given Mr Regan's length of experience, he was aware or ought to have been aware of the expectations from the Department, parents, caregivers and the community. 
•	That while Student A's behaviour was escalating and difficult to manage, Mr Regan's response in engaging in the physical altercation in the way that he did amounts to physical assault and does not withstand public scrutiny, crossing the boundary of the way a teachers should interact with a student. 

[86]	The decision-maker goes on to say: 

I consider your conduct of engaging in a physical altercation with a student to be a breach of department standards and irreparably destructive of the trust and confidence the department is required to have in employees.  Your conduct has caused me to lose trust and confidence in your ability to perform duties to the standard expected of a Teacher, particularly in the context of the seriousness of a physical strike consisting of kicking a student in the head.  I am satisfied that, had your employment not ceased, the disciplinary action that would have been taken against you would have been the termination of your employment. 

[87]	I understand that the disciplinary declaration will have very serious consequences for Mr Regan. However, nothing that Mr Regan has raised in his submissions serves to demonstrate that the decision to make a disciplinary declaration was not fair and reasonable.  I find that the reasons for decision regarding the disciplinary declaration were comprehensive, fair and reasonable. 

[88]	Having determined that Mr Regan's actions constituted misconduct and taking into account the relevant factors to be considered when determining disciplinary action, I find that it was open to the decision-maker to determine that had his employment not ended, the disciplinary action that would be taken against him would be termination of his employment.  

Order

1.	The decision appealed against is confirmed.