Tasmania's industrial umpire has ordered TasTAFE re-instate a teacher who was dismissed after kissing a mature-aged student on the lips while on a field trip, with his behaviour found to be "foolish", but not "wilful".

Key points: Shane Pinner has been a tourism guide teacher with TasTAFE since 1999

Shane Pinner has been a tourism guide teacher with TasTAFE since 1999 TasTAFE terminated Mr Pinner's employment after a complaint about his conduct with a student on a field trip

TasTAFE terminated Mr Pinner's employment after a complaint about his conduct with a student on a field trip The Deputy President of the Industrial Commission has determined Mr Pinner was unfairly dismissed and ordered he be reinstated

Shane Pinner, a tourism guide teacher working with mature aged students in Devonport, had his employment with TasTAFE terminated in July 2018 after nine students collectively lodged a complaint with the training organisation.

He took his allegation of unfair dismissal to the Tasmanian Industrial Commission and Deputy President Neroli Ellis has now ordered Mr Pinner be reinstated to his role as teacher at TasTAFE, finding while his conduct was foolish and stupid, he was unfairly dismissed.

In her published decision, Commissioner Ellis found that Mr Pinner was sacked by TasTAFE on grounds including that he abused the teacher-student power relationship and breached a section of the Code of Conduct by failing to treat an individual student and a group of students with respect and without harassment, victimisation or discrimination.

The students' complaint against Mr Pinner predominantly related to his conduct towards a female mature-aged student on a field trip to Cradle Mountain in October 2017.

In investigating the students' complaint, TasTAFE's chief executive Jenny Dodd determined that Mr Pinner had breached the Code of Conduct by:

tucking a student's hair from either side of her face into her raincoat;

tucking a student's hair from either side of her face into her raincoat; standing behind the student and resting/placing his hands on her shoulders, and;

standing behind the student and resting/placing his hands on her shoulders, and; kissing the student on the lips for approximately three seconds, holding her face to do so.

In determining whether Mr Pinner's employment termination was unfair, Commissioner Ellis found all three incidents took place, but was not satisfied that the hair-tucking or shoulder touching incidents constituted a breach of the Code of Conduct.

She found Mr Pinner did not intend to disrespect, harass or victimise any of the students when he tucked the student's hair into her hood, and found there was no suggestion the shoulder contact was unwanted.

Conduct 'foolish and stupid', not 'wilful'

Mr Pinner did not deny he kissed the student when a photo was being taken, but gave evidence that he was "hamming it up" in what was a "brain fade" and a "stupid, stupid, stupid moment."

"There is a lack of evidence from the respondent to demonstrate that Mr Pinner intended the kiss to be sexual in nature," Commissioner Ellis determined.

"I accept (Mr Pinner's) sworn evidence that this was not of a sexual nature."

Commissioner Ellis found the kiss was a breach of a section of the code of conduct, and a breach of TasTAFE guidelines that state that under no circumstances should a teacher kiss a student.

But Commissioner Ellis also took into account Mr Pinner's remorse, apologies, "unblemished work record" for more than 17 years and his evidence that there had been no sexual intent nor harassment, victimisation or discrimination.

"The conduct was not deliberate or wilful, rather foolish and stupid."

Ms Ellis found that while Mr Pinner's behaviour was inappropriate for a teacher on a field trip, the lack of any past performance issues indicated it was not a pattern of behaviour, and rather a one-off mistake and the likelihood of reoccurrence would be negligible.

Ms Ellis determined that Mr Pinner's dismissal was unfair and disproportionate in relation to the context of the conduct.

Ms Ellis ordered Mr Pinner be reinstated to the role he held prior to his termination, and to begin being paid his normal weekly wage from the date of the decision, 11 January 2019.