A teacher assistant who was sacked over comments he made to a 14-year-old student is set to receive $5,000 after the Tasmanian Industrial Commission found his dismissal was unfair, despite also finding there was a valid reason for it.
Shane Duke, now in his mid-to-late 60s, worked for the education department for 18 or 19 years, including the last nine at St Helens District High School on Tasmania’s east coast.
In 2020, a group of Year 8 students raised concerns with a teacher about Duke’s interactions with one of their classmates during a design and technology class.
A departmental investigation found the allegations against him proven.
They included claims that he asked the girl about kissing her boyfriend, whether she used her tongue and for her mother’s phone number. He was sacked.
Duke admitted telling the student she should get back together with her ex-boyfriend, that her mother was very pretty and that she looked a lot like her mother.
He denied the other allegations and told the commission the girls were seeking attention.
Commissioner Samuel Thompson found the disputed allegations had not been proven.
None of the students gave evidence, meaning Duke could not challenge their accounts. Much of the evidence was hearsay and some was vague.
Thompson said that did not mean the students’ accounts were “not credible or otherwise incorrect”.
He said there were often good reasons not to require children to give evidence and that he was also not satisfied the alleged conduct had not occurred.
But he found the comments Duke admitted making were “inappropriate, unwarranted and had a sexual undertone”, were “akin to sexual harassment” and breached the state service code of conduct.
“It is not appropriate for Mr Duke to have commented on a 14-year-old student’s intimate relationship,” he said.
The commission heard Duke had been accused in 2011 of inappropriate conversations of a sexual nature with colleagues and students.
He was sacked, then reinstated by the commission in 2012, which found the penalty was disproportionate and he had been denied procedural fairness.
In 2019, he was counselled again over concerns that first aid he gave a student involved excessive and inappropriate physical contact.
“… I accept that Mr Duke had a tendency to make inappropriate remarks of a sexual nature to students,” Thompson said.
Under cross-examination, Duke described telling the student to get back together with her ex-boyfriend as a “compliment, a nice thing to say”.
Thompson said this showed a lack of insight into professional boundaries.
But he found the dismissal was harsh “because it is disproportionate to the gravity of the misconduct” that had been proven.
He also considered Duke’s age and the difficulty he was likely to face finding work in a small community.
Thompson refused to reinstate Duke, finding the trust needed for a role working with children had been damaged.
He awarded compensation well below the maximum of six months’ pay. The $5,000 is a little over one month’s full-time salary, including an amount in lieu of superannuation.
The case was heard in Launceston in December 2022 by former commission president David Barclay, whose appointment ended earlier this year without a decision being made.
“The delay in the determination of this matter is regrettable,” Thompson said, adding that the commission apologised to everyone involved.
