Michael Eglinton was dismissed from Reynella East College in 2016, almost two years after he was filmed having an argument with a student, who was smoking at a school bus stop, in which he said: “Yeah, yeah, you can get lung cancer. I don’t care. That’s probably a good thing.”
The interaction, which occurred on 23 October 2014, ended with Eglinton’s remark: “Goodbye, go and stand under a train.”
However the Teachers Appeal Board, led by Senior Judge Peter McCusker, ruled that Eglinton made the comment after “Student X” was out of earshot, and that the suggestion, by counsel for the Department of Education and Child Development during his cross-examination, that he was inviting the student to commit suicide “is simply wrong and frankly disturbing”.
“Not only was it not said to Student X, it was said in circumstances of extreme distress and the appellant was horrified and remains so that it has been understood in this way,” the board found.
“A feature of [Eglinton’s] behaviour is his level of restraint despite the most offensive behaviour by Student X and her supporters.
“One matter does stand out beyond all else on a close examination of the facts in this case … [and] that is the disgraceful and intolerable behaviour of the students as evidenced by the video of events.”
The judgement reads: “We accept the appellant’s purpose in using the language he did as an attempt to communicate with the group of students at their level.”
“That language, while inappropriate in other circumstances, given the context of what was happening, was not inappropriate to the extent of misconduct.
“It pales against the language Student X and her friends were using towards the appellant.”
The Education Department’s reasons for terminating Eglinton’s employment – “disgraceful and/or improper conduct” – also related to an interaction the following day, in which it was alleged he pushed a former student. The transcript of a video of that interaction shows Eglinton repeatedly telling “Mr Y” that he was “mad”.
However the board found it was Mr Y who had physically attacked Eglinton without provocation and “it is also nonsense to suggest that the appellant [Eglinton] attacked or pushed Mr Y otherwise than in protection of his own body”.
“There is nothing of the events of this day to justify any adverse finding against the appellant.”
According to the judgement, a matter “of significance” in the case was “the mental effect upon the appellant as a result of what can only be described as the abusive and threatening behaviour by the group at the bus stop when he asked Student X to stop smoking”.
“It is clear he was badly shaken by the experience and there is ample contemporary evidence of that.
“The contention of the Chief Executive [of the Department, Rick Persse] that the appellant failed to diffuse the situation by way of less confrontational language and phrasing is not an apt description of the situation.”
The board added that counsel for the Department failed to produce evidence “as to the criterion of the ordinary contemporary standards of decency and propriety within the community” regarding appropriate language, and appeared to cite UK singer Adele’s recent performance in Adelaide as a reference point for those standards.
“We can, we think, have regard to the extraordinarily coarse usage of a recent pop singer in Adelaide which was met with approval and remark on her ‘warm common touch’,” the judgement says.
“In making that observation we are not suggesting that such language should be heard from a teacher. Rather that inappropriate usage often depends upon the eye of the beholder and upon circumstances of time, place and group.”
The board found that Eglinton’s treatment by the Department had caused him significant suffering.
“The appellant suffered these events in October 2014,” the judgement reads.
“He was directed to be absent from the workplace and a notice of investigation was served upon him dated 6 November 2014.
“He then remained off work on pay. In other words no services were being obtained from him but his wages were being paid.
“This remained the case until he was dismissed on 14 August 2016, a period lapse of nearly two years.”
While judgement says the Department had been “at pains” to ensure procedural fairness, “the Department, in our judgment, got the result wrong”.
Persse’s termination letter was set aside and Eglinton’s employment was restored.
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