Alison v Bega Valley Council

The first set of allegations

1. Mr Riordan based his decision to dismiss the applicant on her failure, on a number of occasions, to conduct herself courteously, respectfully and professionally towards her principal, Ms Kay Smith, including, but not limited to the incidents set out in 1 (i)(a), (b) and (e) respectively.
2. The applicant responded to those allegations in the fourth annexure to her affidavit of 17 February 2014. She had prefaced her response by stating: Before addressing each email individually I would like to discuss the actual implications of the allegations at this point. The dot points will be addressed on pages 3-20. All emails that are referred to in this document directly reference to my personal feelings that I was being bullied and harassed by my principal. It was my understanding that I was allowed to submit any complaint I felt relevant and that my Principal then had an obligation to follow up on these allegations. All the emails referenced her were submitted as complaints In my understanding of policy [Dignity and Respect in the Workplace Charter] this means Ms Smith then had an obligation to follow up on these allegations.

Allegation 1(i)(a) On a number of occasions you failed to conduct yourself courteously respectfully and professionally towards your Principal, Ms Kay Smith, in that you sent inappropriate and discourteous emails to her including but not limited to the following: (i)(a) on or about 23 March 2012, you sent an email [a copy was attached] in regard to Ms Smith's decision about your conduct towards a teacher, Ms Amanda Minchella, in which you stated that you did not accept Ms Smith's decision, accused her of lying and in which you listed 13 complaints against her and other staff members, stating that these "were only the tip of the iceberg", that these complaints "should be enough paperwork for one week" and in which you accused her of playing "favourites with the staff";

1. The applicant provided the following evidence under cross-examination: BRITT: Q. You understand that the first allegation against you in relation to the first tranche of allegations is that you failed to conduct yourself courteously, respectfully and professionally towards your principal, Ms Kay Smith. Gooch: A. Yes, I understand that allegation. Q. And you understand that it's alleged that you sent inappropriate and discourteous emails to Ms Smith? A. Yes, I understand that allegation. Q. And the first of those occurred on or about 23 March 2012? A. That appears to be correct as per this document, yes. Q. And that was in response to an email that Ms Smith had sent you on 8 March - sorry, also on 21 March 2012 (as said). A. I believe that is correct, yes. Q. You tell the principal you don't accept her decisions, or her decision. A. Yes. Q. You're suggesting that she has a fabricated version of events. A. Yes. Q. That you don't feel issues are closed. A. That is correct, yes. Q. You're actually not running the school, are you? A. No. Q. Nor are you even running the CAPA. A. No. Q. You're implying that Ms Smith is lying to you? A. Yes. Q. You're suggesting that Ms Smith is going after you? A. Yes. Q. You've got more complaints forthcoming. A. Yes. Q. And that this was only the tip of the iceberg. A. Yes, that is also written there. Q. And that "these 13 complaints on top of the other issues I've raised should be enough paper work for one week". A. Yes, that is also written there. Q. And of course, this is an email sent on 23 March 2012; this is before your major depressive episode. A. This was before I was diagnosed, yes. Q. You told us you were impacted in April and May. A. I said I believed that there was a period of time leading up to my diagnosis in May, I said that it was definitely in April, and probably for a period of time before that. Q. And then Ms Smith tells you that she's forwarded the matter on, or will forward the matter on to an appropriate person for their consideration. A. Yes. Yes, that is also put there.

Allegation 1(i)(b) On a number of occasions you failed to conduct yourself courteously respectfully and professionally towards your Principal, Ms Kay Smith, including but not limited to the following incidents: (i) you sent inappropriate and discourteous emails to her including but not limited to the following: (b) on 23 April 2012 you sent an email [a copy was attached] in which you accused Ms Smith of bullying and harassment, you accused her of "tossing" you aside "like a dirty rag" and in which you stated that you will no longer be loyal to her or the school and told her to send any further correspondence to the "person you have employed to get rid of me".

1. The applicant provided the following evidence under cross-examination: BRITT: Q. Now, you then send another email to Ms Smith on 23 April 2012. A. May I ask which page number? Q. Do you recall sending an email on 23 April? A. I would need to see the email to clarify that. Q. If you go to tab 7 [of Exhibit DEC1], that's an email that you sent in response to an email from Ms Smith dated 6 April? A. I don't - I cannot clarify if that email was sent in direct response to the email of 6 April. It may have, but I cannot give a definite on that. I may simply have used that email instead of typing in an email address, as a reply. Q. So you believe that Ms Smith has treated you with contempt and disdain? A. Yes. Q. That she's engaged in persistent bullying and harassment of you? A. Yes. Q. That there's a total lack of support offered-- A. Yes. Q. … when you've tried extra-curricular activities in the past. A. Yes. Q. Which extra-curricular activities were they? A. All of the concerts. Q. Well, they happened, did they not? A. Without extra support from the executives. Q. You weren't demanded to undertake them. A. I was, by Ms Smith, yes. Q. which of the concerts were you demanded by Ms Smith to assist in the organisation of? A. All three. Q. When did Ms Smith start making those demands? A. …. could have been towards the end of 2011. Around that time I asked her if we could make the MADD Fest concert in particular a biannual event to give the CAPA staff a break, … Ms Smith insisted that she wanted the concerts to go ahead, … and if we didn't participate in the concerts that she would take our senior classes away from us. Q. And I find that in your statement somewhere, do I? A. I believe so, yes. And there's also an email from Ms Smith in here saying exactly that. Q. Now, didn't you tell us that you undertook a considerable amount of unpaid duties which are over and above what you were required to do? A. That is correct, yes. Q. Namely, the running of the three major concerts per year. A. And being prac coordinator. Q. Well, if Ms Smith is directing you to do them, you're not doing something that you weren't required to do. A. As per union regulations I am not required to do any extra-curricular activities, and I even have an email, there is an email within these documents that I can produce where the federation representative backs me up with that. Q. Do you work for the Department of School Education or -- work for the union? A. I work for the DET - I worked for the DET. Q. I want to put to you a proposition; all teachers can be directed to perform extra-curricular activities. A. No, not always. Q. … do you think it's appropriate to use terms like "tossed aside like a dirt rag"? A. That is how I absolutely, 100% felt at that moment in time when I wrote that. Q. Well, do you write everything that you feel, madam? A. I always believe in being absolutely truthful with the people around me. Q. But if you could just answer my question; do you think that you should write how you feel? A. Yes, in the interest of being truthful. Q. And you then say, "I feel absolutely no loyalty towards yourself or the school". A. Yes, that is written there. Q. And that's how you felt? A. At that particular moment in time, yes it was.

Allegation 1(i)(e) On a number of occasions you failed to conduct yourself courteously respectfully and professionally towards your Principal, Ms Kay Smith, including but not limited to the following incidents (i) you sent inappropriate and discourteous emails to her including but not limited to the following: e) on or around 22 May 2012 when Ms Smith asked you in an email to take table tennis instead of MADD FEST rehearsals, after you having previously told her that you did not want to be involved with those rehearsals, you responded to her in an email [a copy was attached] in which you stated: You will have to 'reallocate' me elsewhere. I don't do sport for health reasons. A bit like Jeni Milligan I would imagine who doesn't do sport, doesn't do duty, doesn't walk down stairs to attend carnivals, doesn't attend assembly etc. I am pleased the school feels they are able to accommodate her 'disability'. I wonder why her pay hasn't been docked as she is clearly unable to perform her full duties as Linda made so clear to me. In summary I will not be doing sport.

1. The applicant provided the following evidence under cross-examination: BRITT Q. …. Now can I take you then to tab 10? [of Exhibit DEC1] … in this email Ms Smith is not directing you to undertake the MADD Fest is she? No, at this stage she is not. Q. In fact she's acknowledging that you told her that you didn't want to be involved that year? A. At this point, yes. Q. And she's agreed with that? A. At this stage, yes. Q. And that as a result of that Bahar will do music sport? A. Yes. Q. And that's something that you've done previously? A. Yes. Q. And you'd done it previously because you were involved in the MADD Fest? A. That is correct, yes. Q. And when you were no longer in the MADD Fest you were required to do other sport supervision? A. That is what happened, yes. Q. Then you tell Ms Smith "You'll have to relocate me elsewhere"? A. Yes. Q. "I don't do sport for health reasons"? A. Yes. Q. Well you don't actually have to do the sport, you just have to supervise the students with the sport? A. Till that date at Evans High School I had not done sport supervision, apart from one term, and I found that experience to be extremely painful for me, extremely painful. Q. And the person who is doing MADD Fest would get music sport? A. Bahar was going to take over part of it, yes. Q. And then you just refused to do sport? A. …, I did, yes, I wrote "In summary I will not be doing sport", that is correct, on the grounds of my health reasons. Q. Then you make comparisons of Jenny Milligan? A. That was unfortunate and I have apologised for this email in my response I believe. Q. Well that's the only time you apologised isn't it, in your response? A. I don't know if this is the only time, I would have to read back through every word of my response, but I don't believe it's the only time. Q. Have you ever apologised to Ms Milligan? A. No, as I was removed from the school three days later. Q. That wasn't my question. Have you ever apologised to Ms Milligan… A. No I have not. Q. Have you ever apologised to Ms Smith for this email? A. No. Q. Now in your response to this allegation can I take you to page 47 of DEC 1? You acknowledge that this email was regrettable? A. …. Yes. Q. But then you attempt to shift blame to Ms Smith? A. Yes. Q. All Ms Smith had done was take you off music sport because you asked not to be involved in MADD Fest? A. It wasn't quite as simple as that but, yes.
2. Mr Kieran Adam Thomson, Music Teacher at Seven Hills High School, provided an affidavit in the proceedings in which he stated that he first met the Applicant in 2005 when he was a student in Year 12 at Evans High School and had high regard for her as his music teacher. In early 2010 he undertook a practicum at Evans High School as part of his Bachelor of Arts in Music and Performance. In 2011, after his practicum, Mr Thomson commenced working at Evans High School on a casual basis. He stated that as a more junior member of staff he was mentored by Ms Gooch who assisted him in many ways including his own personal development and progress as a teacher. He never had any issues, conflicts or arguments with Ms Gooch and would enjoy working with her again.
3. Mr Thomson gave the following evidence under cross-examination: BRITT Q. Now, you described - how long were you at Evans High School, making the assumption it was in 2010, doing the practicum? A. Over a first, a one week period because of Focus Week, which I observed Miss Gooch in the classroom, doing her job, just strictly observing and then I returned approximately three weeks later to undertake practicum, which was within four weeks, so a month. That was the first practicum. … with the second practicum, in 2011. Q. So, you're saying you had practicums in both 2010 and 2011? A. That would be correct. Q. And both those were at Evans High, were they? A. They were. The second one was of my own choice, I wasn't required to go to that particular school. The university organises that you undertake a practicum of your own choosing, so I decided to go back and work in the Autism Unit at the school. Q. Which was a different unit than… A. A different unit. Ms Gooch was still the practicum organiser at the time. Q. Now you were asked a series of questions about the amount of casual work that you undertook in 2011 at Evans High School and I think you said some 90 odd days. I want to put to you that in fact it was 80 days that you did as a casual at Evans High School in 2011? A. I've got a record here on my phone, if you'd like to see it. Just from the payroll. Q. And in fact you didn't actually do any casual work at Evans High in 2012? A. That may be the truth. I'm not sure that I keep a record of every single day that I attended the school. Q. Well so when you gave an answer that you did 20 days in 2012 that may not be true? A. It may not be, but like I said I didn't keep a record of every single day I went to because it would be on a day to day phone call. I was at a number of different schools at the time. Q. So sitting there in the witness box, you can really only recollect that you were at Evans High School in 2011? A. That could possibly be correct. Q. And it could possibly be correct that it was for 80 days? A. It could be. Q. Now in relation to the casual work you did at Evans High School, what classes were you teaching? A. When I first took some casual work at Evans High, I was covering, from memory, Stephanie's classes as she was taking annual leave. It may have been - it was for music at first and then later on I went to work in industrial arts for a time while a teacher was on I think it was medical leave. Q. So for some of those 80 days if Stephanie's away, and I think you said annual leave, you weren't there being mentored by her for that period? A. Not for that whole period. Q. And then of course in industrial arts you weren't working with Stephanie? A. Not directly. But where the classroom was located was in close proximity to Stephanie's classroom and staff room. Q. Now you were aware that when you were there in 2011, that there were a number of incidents in respect of Stephanie's relationship with other teachers? A. That I'm not aware of. Q. She never discussed it with you? A. Not during that time, no.
4. Mr Thomson had also prepared a statement dated 15 August 2013 which had been included in an attachment to the affidavit of Ms Gooch filed 17 February 2014. That statement included the following three paragraphs: During the month I spent at Evans High School in early 2010, Stephanie seemed motivated, courteous & determined to provide the highest level of care for her students and colleagues. Unfortunately when I returned to complete my third practicum in the Autism Unit t Evans High School in 2011 her physical & mental health seemed to be deteriorating. I learnt that the added pressure of extracurricular activities such as Maddfest (Music, Art, Dance & Drama Festival), Harmony Day & sporting programs as well as a death in her family with the loss of her grandmother had added to her mental stress. I had also noticed her ongoing struggle with chronic arthritis, which left her in extraordinary pain whilst at work. Despite this obvious chronic pain that Stephanie suffered at no time had her delivery of quality teaching programs & attitude towards myself or the students been affected. However as a friend I was concerned about her mental wellbeing and I suggested that she may find speaking to a professional psychologist or health professional beneficiary.
5. Mr Thomson was subjected to cross-examination in relation to those paragraphs as follows: BRITT Q. Then in the paragraph being the third from the bottom, "During the month I spent at Evans High School" and you describe the events of the 2010 practicum? Mm hmm. Q. And then you say, "Unfortunately when I returned to complete my third practicum in the autism unit at Evans High School in 2011, her physical and mental health seemed to be deteriorating"? A. Mm. Q. ----- how long were you teaching, doing practicum teaching in the autism unit? A. From memory it was four weeks. Q. And how often would you see Stephanie during that four week period? A. I'd base myself within the CAPA faculty, as I was studying to become a music teacher I found it most helpful to be within that faculty during non-teaching hours, … so during the time I wasn't within the unit I would spend with the music students. Q. With the music students or the music? A. Well within the music classes while Stephanie was teaching. So I would be team teaching with her to fill in my time. Q. And you say her physical and mental health seemed to be deteriorating. What do you base that upon? A. Just my interactions with her outside of school. She was still in the classroom teaching, providing quality teaching programs and lessons. Just during times where we'd have morning tea or recess, not as social as she was before. She lost a lot of weight rapidly. Didn't seem as happy, like I said, socially in speaking to her. Before when I was at Evans High she'd always be constantly talking about how better to improve lessons and provide extracurricular activities. This sort of conversation seemed to have lessened when I returned to the school …. I did know that she'd lost a family member and was suffering from arthritis, which I can relate to because I have acute arthritis in my lower back so it's something that we have common grounds on. I knew she had a lot of trouble moving to and from parts of the school, especially where the classroom was located, up two large flights of stairs. Q. Now then you say that the added pressure of extracurricular activities such as MADD Fest, Harmony day and sporting programs, first of all in relation to MADD Fest and Harmony day, the applicant was one of a number of teachers that worked on those matters? A. That's correct. Q. And two, she volunteered to work on those matters? A. That's correct, but in my experience as a music… Q. I've just asked you a question. Now when you say, "and sporting programs", what sporting programs was the applicant working on? A. Well the sporting programs, what she was required to do, even though the children were going to the music room to undertake sport, was moving to and from where the students would assemble for sporting activities and to organise sporting day events, such as running of carnivals. It made it very difficult for her to attend these due to her health issues. What I mean by that, the arthritis that she was suffering from made it more difficult for her to attend and get to and from these activities than, say other staff members. Q. Well what were the actual sporting programs? A. The sporting program that she was undertaking was within the music room but on any given day there may be walkathons, swimming carnivals, athletics carnivals, that teachers must partake as part of our duty. It's a whole school based program. Every teacher in most public schools will have to undertake this as a whole staff, she would be made to do these things and maybe not always best placed where she could be of most use and taking into consideration her physical disability. Q. And then you suggested to her that she speak to a professional psychologist or a health professional? A. That's correct. Q. But she didn't take up that offer? A. As far as I know she has. Q. You were suggesting this in 2011 weren't you? A. Towards the end of the second practicum. Q. And towards the end of the second practicum, is it midway through 2011? A. It would have been, yes. It would have been earlier than that. The exact date I'm not sure of. Q. In the first half of 2011? A. That would be correct. Q. And when you say she did take up this suggestion, do you know when she took up the suggestion? A. Only when she spoke to me that she has seen someone and that was just during social events that we had been at together.
6. Mr Michael Dempsey, Visual Arts Teacher at Evans High School, had worked with Ms Gooch as a fellow classroom teacher and as her Relieving Acting Head Teacher. In an affidavit filed in the proceedings, he expressed his regard for the applicant as a good teacher who could manage her classroom well and whose students achieved good High School Certificate results.
7. Mr Dempsey stated that the applicant exceeded what was required of her by taking on several extra-curricular activities such as organising concerts and fundraising events. He further stated that he had never personally had any conflict with the applicant and that she had generally positive relations with staff in their department at Evans High School.
8. Mr Dempsey provided the following evidence in evidence-in-chief: HOWELL: Q. And how did you come to be aware of the substance of the allegations? A. I was given a copy by Stephanie's legal team to read through. Q. And when did that happen? A. That happened last week. Q. With that clarification, is that affidavit filed 19 February 2014 true and correct to the best of your knowledge and belief? A. Yes. Q. And you prepared a reference for her dated 20 August 2013, is that right? A. Yes. Q. Sitting here today, have you had the opportunity to read that document recently? A. Yes, I have it in front of me. Q. …. is that reference with the page numbers 24 and 25 in the top right hand corner true and correct to the best of your knowledge and belief? A. Yes. Q. Paragraph 6, you say in your observation she generally had positive relations with the staff in your department? A. Yes, that is correct. Q. What do you mean when you say generally positive relations? A. Well, going through my time and all the staff members that we had in CAPA, that I can recall there was only one issue that there had been with any staff member within the faculty, and that was with Amanda Clark. Other than that, all other interactions were quite positive. Q. Now, you mentioned a qualification about Ms Clark, and I think you said the only issue, only one issue with staff within the faculty, and that was with Ms Clark. What was the issue, as you recall it? A. Well, over time there had been an issue with Jodie, and I must apologise, I've forgotten her last name, who was a sports coordinator, and Stephanie and Jodie had some issues, and we put methods in place to deal with those issues, and unfortunately Amanda's best friend at the time was Jodie, and one day we were in the staff room, and I think Stephanie must have been talking about Jodie to, I think it was Kath Manning, that's to the best of my memory, and I can't recall the exact details, but a discussion did start between the two of them, and it did get heated, and I did ask both of them to stop, and I asked Stephanie to leave, which she did, and I asked Amanda to come with me. Q. And what, if anything, came of that incident, do you know? A. From my recollection at the time, Amanda was moved from our staff room to the English staff room. Apparently there were a lot of things that I couldn't be told about, and I wasn't really involved in the resolution process, and Amanda was moved to English, that was the way it was dealt with.
9. During cross-examination, Mr Dempsey provided the following evidence: BRITT: Q. Mr Dempsey, you're a friend of the applicant? A. Yes, I am. Q. And the applicant, after she was removed from the school, stored her records in your house? A. She stored things that she collected from the school, and the school was aware of that. Q. You referred to how the relationships were generally positive with the staff in the department? A. Yes. Q. And you've given an example where perhaps it wasn't, with Amanda Clark. A. Yes. Q. Den Milenkovic was a member of the CAPA department too, wasn't he? A. Yes, he was the head teacher and he became the relieving DP, …. Q. Well, you'd agree with me that the applicant didn't have generally positive relationships with him? A. Well, in the time that I spent with her within the department, the breakdown in their relationship really came when he moved to DP. I know there were some incidents before, but I really am not aware of the substance and I wasn't around when any of those things happened, so I never really saw or understood what any of those issues were about, because at that time I was a classroom teacher, and I was very involved in other parts of the school. Q. You've been involved in the CAPA department for the entire time you were at the school? A. Yes, but over the time that I've been there I have been doing a lot of classes in other areas, including the autism unit, and when there, it takes up a lot of your time. Q. You were asked a question about the reference you provided… A. Yes. Q. When you, of course, had prepared this reference, you weren't aware of the allegations being made against the applicant A. No… I was under instructions from the principal and the regional director, Dianne Dunn, that we weren't to discuss those matters. I was given permission to spend time with her and ensure her continued well‑being, but I was told that we weren't to discuss what the actual issues were; my role was to be more concerned with her and how she was going, and really fulfil the role of a support person. Q. And as a result of all of those matters, you didn't actually know the specific allegations? A. No. Stephanie knew the rules in relation to us maintaining communication. Q. And you say in 2010 Stephanie's emotional well-being began to decline? A. Yes. Q. Can you recall when in 2010? A. It was probably the second half of the year; I had noticed with issues that had arisen, she seemed very frustrated at what was going on. Q. Well, what issues had arisen? A. In relation to complaints, either that had been put in against her or she had put in a complaint, she was frustrated at the process of how things were being dealt with, and her feeling was that it wasn't being done properly, and she was feeling quite intimidated, and she felt bullied by the whole process. Q. What steps did you take when you discovered this? A. Well, I liaised with the principal to have discussions about these matters, to ensure that the processes were being followed. I consistently had discussions with Stephanie about how she was feeling, how she was going, ensuring that she was liaising with the union representative, which at the time she felt was a very important thing for her. I did also recommend that she speak to people outside the school to get some guidance and advice with how to manage these issues. Q. Didn't you in relation to that last step, not take that step till some time in 2011? A. Sorry, which step was that, sorry? Q. That is, to get advice from other people outside of the school; didn't that occur in 2011, not 2010? A. I'm sorry, yes. Yes, that last step, yes. Sorry, over the time period, filtering through, and going through, yes. Q. And of course, Stephanie, in 2011, didn't adopt that advice, in relation to help from outside of the school? A. Yes. Q. Now, you were interviewed by an investigator employed by the department on 15 June 2012? A. Yes. Q. And you told the truth in that interview? A. Yes. Q. And at that stage you were aware that there were a number of incidents involving Stephanie? A. I was aware that there were issues going on, but I hadn't seen any of the documentation. Q. You told the investigator, "I know that a number of incidents have got to the point of formal complaints being put in." A. Yes, but I haven't seen the documentation. Q. And you're aware that a lot of those matters involved staff that weren't part of your faculty. A. Yes. Q. You'd agree that a teacher has an obligation not just to get on with staff in their own faculty but with staff generally? A. Yes. Q. Now, can I take you to exhibit H9, which is your first affidavit. A. Yes. Q. When you describe it as your interactions with her, what do you mean? A. Our professional discussions, obviously our interviews, our sort of one on one time to discuss her classroom management, programming, reports, our sort of visions for the faculty, where we're going, budget allocation, all of those kind of day to day running issues. Q. You're not suggesting to say that the fact that you had to jump in between her and Amanda Clark and ask her to leave is positive in nature, is it? A. That was one incident over a time period. Q. How many other staff members have you actually had to ask to leave the staff room because of their conduct? A. I don't recall. I don't think that I have. Q. This is the only one you can recall, isn't it? A. From memory, at this point. Q. It's not a very usual event, is it? A. No. Q. And you wouldn't describe the applicant's relations with staff in other departments as generally positive, would you? A. Not having discussed it with them, I'm not sure if I can answer that question. Q. Well, you're aware of a number of incidents, aren't you? A. I am, but I'm not aware of the substance of them, so I'm not sure if I can answer that question accurately. Q. Now, sir, following the incident between the applicant and Ms Clark in 2009, you lodged an OH&S incident report? A. Sorry, sorry, I don't recall, I think I did. Q. I show you a document? A. Yes. Q. That's a copy of the OH&S incident report you lodged? A. Yes. Q. You also prepared a written teacher incident report? A. Yes I did. Q. And in that teacher incident report you set out what you perceived to be the truth? A. Yes, at the time, yes. Q. I show you a document? A. Yes. Yes, I do recall writing this incident report. Q. And you agree with me that Steph was yelling? A. Yes, stated in the incident report. Q. Notwithstanding you giving directions for Steph to stop talking and leave Amanda and move away, she didn't? A. She did eventually, it took about a minute and it stopped. Q. And then she came back in and started it all over again, didn't she, sir? A. Yes, she must have come back, I've stated it in the incident report. Q. And you write "I feel Steph must start respecting and excepting", but do you mean accepting, with an "a", rather than-- A. Sorry, I made a mistake. Q. So that's a typo, isn't it? A. Yes. Q. And you write "must start respecting", so at this time you didn't think she'd even started to respect and accept that all staff must feel safe in the space, being the staff room? A. In relation to dealing with Amanda. Q. Well, you don't say that, do you, you're actually making a reference to all staff? A. Yes, because I felt at the time I wanted this issue to be resolved differently, and all staff members be involved, because there was another staff member who also had some issues with Amanda, and I felt that at this time moving her wasn't - there could've been a better way to resolve this. Q. The issue here isn't Amanda's conduct, is it, the issue here is Ms Gooch's conduct? A. In relation to this incident, yes. Q. And you found the whole incident very unpleasant? A. Yes. Q. Threatening? A. Any confrontation I find threatening and uncomfortable. Q. And the applicant, Ms Gooch's behaviour was aggressive - In your opinion? A. Yes. On that occasion - yes.

Allegation 1(ii) On or about 24 May 2012, following a function held in the school for Public Education Day, and after a Year 12 student, Elias Calabretta, played piano during the morning tea for the function and after Ms Smith had publicly acknowledged the quality of his performance at approximately 11.29am you: a) aggressively came to Ms Smith's office and shouted words to her to the effect of "Do you take pleasure in being nasty to me?"; b) when Ms Smith stated that she did not know what you were talking about and reminded you that you needed to be at sport (table tennis) drawing your attention to a letter of direction she had given you, you angrily left her office, stating that you were going home; then later c) returned to Ms Smith's office a short time later and in an aggressive and angry manner, told her that you hadn't said you were going home, that you had gone to your office/staff room to call the OH&S officer and report the Principal, saying words to the effect of "I'm going to get you".

1. The applicant, under cross-examination, gave the following evidence in relation to that allegation: BRITT: Q. Do you claim that you were never aggressive? Yes. Q. You take offence that people thought you were aggressive? A. Yes, I do not believe that I was aggressive. Q. Now at this time, this is 24 May 2012? A. Yes. Q. You'd lost control by this stage hadn't you? A. I agree, yes. Q. Well you don't know whether your behaviour was aggressive or not do you? A. It is impossible to know what others are feeling or thinking or how they will react to something, however I do not believe that my behaviour was aggressive. Q. So your evidence is, notwithstanding you were suffering a major depressive episode, that your recollection is quite clear that you were not aggressive? A. In relation to point A yes I am very clear that I was not aggressive, I distinctly recall the incident and I distinctly recall the tone of voice that I spoke in at the time. Q. And again you seek to blame Ms Smith for your behaviour? A. On that day, yes I believe that I was very severely provoked by Ms Smith. Q. And what did Ms Smith do to very severely provoke you? A. On that day I was teaching a year 12 class double period and a staff member walked into my room and told us that there was currently some parents down in the common room and asked if we could put a performance together. …. So we sent Elias Calabretta down to perform and then about I believe 10 minutes before the end of the lesson, … I took the rest of my class down ….. We got down to the staff room, Elias finished playing and Ms Smith got up and thanked Elias for his performance, which was nice and appropriate and what she should do. She thanked all of the parents for coming, which was also again nice and appropriate thing to do. She then looked me straight in the eye and she thanked Mr Williams for all of his hard work with Elias, despite the fact that Mr Williams had been at the school for less than, I believe five weeks, at that stage and I had taught Elias since year 7. Q. Well so her not thanking you… A. No her thanking Mr Williams instead of thanking me. Q. And you say you attempted to facilitate a rational discussion as per policy however this failed due to Ms Smith's apparent unwillingness to show open communication and give you a voice? A. Yes, I'm sorry can you point me exactly where that is? Q. Easiest place to find it is page 48 [of Exhibit DEC1]? A. Thank you. Okay yes, found it, thank you. Q. Now a rational discussion doesn't start off with, does it, "Do you take pleasure in being nasty to me?"? A. … well no, that was definitely coming from a place of emotion, rather than a place of rational thinking. Q. You weren't attempting to have a rational discussion with Ms Smith? A. I was attempting, at best I could, to explain to Ms Smith the hurt that she had caused me through her remark. Q. I'm putting to you that in anger you left the office? A. I was upset that Ms Smith had screamed at me and told me to leave and I left, feeling upset that Ms Smith had screamed at me. Q. And you told her you were going home? A. No I didn't …. I believe I then went down to tell Ms Smith that I was going to make a notification to the accident and injury helpline and that I was going to then go home to remove myself from what I was finding an incredibly highly stressful situation. Q. You'd already made a decision before you saw Ms Smith that you were going home? A. Yes. Q. And you told Ms Smith, "I'm going to get you"? A. I do not recall making that statement; however that is possible that that came out of my mouth at that time. By the time I left Ms Smith's office the second time, I was in a very, very highly agitated state and I, at that point I do believe that I started to get upset and irrational. Q. When you left the-- A. The second time.
2. Ms Narelle Susan Welch, Head Teacher, Administration at Evans High School, provided an affidavit in the proceedings in which she stated that she had been in the Principal's office and had witnessed the above incident. After the incident she made a hand-written Incident Report of the event which she annexed to her affidavit.
3. Ms Welch stated that at 10.24 am on 24 May 2012 she was in the Principal's office when two staff members entered and advised Mrs Smith that Stephanie Gooch had told them that they would need to cover her sport because she was going home.
4. Ms Welch also stated that approximately three minutes later the applicant entered Mrs Smith's office and told her that she (Miss Gooch) was going to make a phone call to the Occupational Health & Safety (OH&S) complaint line and then she was going home on Workers Compensation due to Mrs Kay Smith's ongoing harassment and bullying. Ms Welch further stated: Stephanie was very angry and verbally aggressive when she spoke to Kay. The way she spoke to Kay was very threatening.
5. Ms Welch attached to her affidavit a copy of the applicant's response to the allegation. She stated that, "having read Miss Gooch's response she wished to make the following comments" and went on to describe the events as she had written in her incident report, refuting the allegation that the Principal had been yelling at her (Ms Welch) and then had yelled at the applicant: Mrs Smith has never yelled at me. … Miss Gooch's claim, that, even before she had stepped into the office, Mrs Smith started yelling "There she is! Tell her to go away! I am fed up with her! And words to that effect" is totally untrue. Mrs Smith sat calmly and listened to Miss Gooch and the only thing I can remember Mrs Smith saying, calmly, to Miss Gooch, were words to the effect of "If that is what you feel you need to do, then do it." Mrs Smith did not scream at me saying "See, what did I tell you?" or turn to Miss Gooch and say "Well just go then, just leave immediately".
6. Ms Welch said that "Mrs Smith appeared to be handling the incident calmly, but after Miss Gooch left the office, Mrs Smith appeared to be quite shaken. … I left to cover Miss Gooch's sport group and returned to write my statement. I was feeling quite shaken after witnessing the verbal assault. … While I was in Ms Smith's office writing my report, she phoned the incident in, and while she was recounting the incident she became very distressed and tearful. She had to pause several times to regain her composure while reporting the incident".

Allegation 2 (i)(a) On a number of occasions you failed to conduct yourself courteously, respectfully and professionally towards your Head Teacher, Mr Kyle Williams including but not limited to the following incidents: (i) during a staff development day on 23 April 2012 you spoke in a discourteous and unprofessional manner to Mr Williams in that you: (a) when meeting him for the first time, failed to take his hand when he offered it to you in introduction;

1. The applicant provided a lengthy and detailed response to this allegations in her affidavit of 17 February 2014
2. The applicant acknowledged that Mr Williams had offered his hand in introduction and she had not taken it. She contended that she had followed her usual practice of not shaking hands but had indicated her deformed wrist. She stated her belief that the allegation could constitute an offence under the Anti-Discrimination Act 1977.
3. The applicant was of the view that the matter was trivial. She pointed out that if Mr Williams was genuinely affronted he should have informally resolved the matter with her as required by the process set out in the Department's Complaint Handling Policy Guidelines.
4. The matter was addressed with the applicant in cross-examination: BRITT Q. Now in respect of that, the first of the sub-particulars, (a), you deny that occurred? A. No I don't deny that I didn't shake his hand. I absolutely say I did not shake his hand, due to my arthritis. Q. Well you say more than that? A. I didn't shake his hand and I put my hand up in the air to show him my wrist and to why I wasn't shaking his hand. That is, my common practice when I'm having a bad day and people go to take my hand because it causes me physical pain. Q. Well you say in your response that you told Mr Williams about your arthritis? A. Yes. Q. That was one of the first things you told him? A. Yes, it always is when I meet somebody who is going to be above me, I feel that it's an important thing to disclose my limitations to anybody who is working in a position above me. Q. And you say that you explained why you weren't shaking it? A. Yes.
5. Mr Kyle David Williams, Head Teacher of Creative and Performing Arts at Evans High School, tendered an affidavit in the proceedings to which he had annexed a copy of the transcript of his interview with investigators from EPAC on 15 June 2012. He confirmed in his affidavit that he had read Ms Gooch's response to allegations 2.(i)(a) - (d) and responded as follows: At no point did Miss Gooch offer her hand, or retract it after I gestured a hand-shake in a friendly manner. At no point did she retract her hand in a way that would indicate her illness. Miss Gooch's statement that I was aware of her arthritis is completely untrue. I was not aware. I had never met her before. Miss Gooch's statement that she explained why she wasn't shaking my hand is also completely untrue. As I explained during the interview (Annexure A) our first meeting was very brief with Miss Gooch extremely impolite and dismissive. Had I known about her condition, I clearly would not have offered to shake her hand. Miss Gooch states this is a petty complaint however, upon meeting your new Head Teacher for the first time, it would be reasonable to expect at least a 'hello' or 'good morning'.

Allegations 2 (i)(b) (c) and (d) On a number of occasions you failed to conduct yourself courteously, respectfully and professionally towards your Head Teacher, Mr Kyle Williams, including but not limited to the following incident: (i) during a staff development day on 23 April 2012 you spoke in a discourteous and unprofessional manner to Mr Williams in that you: b) brushed passed (sic) him into the staffroom; c) when he told you who he was, said to him in words to the effect of "I know who you are. You're the person that's basically here to kick me out of my job, but don't worry, I've been there for eight years"; then d) immediately walked out of the staffroom in front of Mr Williams and two other members of staff from your faculty causing them all to feel embarrassed and upset.

1. The applicant regarded the allegation of her having brushed past Mr Williams as trivial. She believed it likely that at some time she did brush against Mr Williams in the narrow entrance to the staffroom: I probably 'brushed passed' (sic) people in the staffroom on average at least 15 times every day. Nobody has the time to stop what they are doing and have a conversation every time they bump into a colleague.
2. The applicant was cross-examined in relation to that allegation. The relevant part of her cross-examination is reprinted below: BRITT Q. Now in relation to 2(i)(c), you don't recall making this statement? A. I do recall now, at this point in time, now I do recall. Q. And you recall making the statement? A. Yes I do recall saying this. Q. And in that sense your memory has improved since you did your response? A. I believe so, yes. Q. And you'd agree it's not courteous? A. Yes I do agree. Q. Nor is it respectful? A. I - yes I agree that that is not a respectful comment to make to any head teacher. Q. Nor is it professional? A. Agreed. Q. Now since you can now recall saying it, do you now also recall walking out of the staff room? A. I don't' recall that part, no I'm sorry. Q. But you say it may have occurred? A. It may have, yes. It may have. I can't answer that. I genuinely do not remember that part. It's also very likely that I simply walked out of the staff room because it was class time. Q. And it's also likely that you walked out of the staff room on the basis that you thought Mr Williams was there to kick you out of the job? A. At that stage my anger was not directed towards Mr Williams. Unfortunately Mr Williams did bear part of the brunt of it and I have unreservedly apologised for that. I did, at other stages, attempt to communicate to Mr Williams that I did not blame him in any way, shape or form, for the situation that was occurring. But I can completely understand, when I look back on my interactions with Mr Williams, especially as he had absolutely no knowledge of me or the situation at the time. I can completely understand how he construed all of my behaviour towards him to be discourteous. Q. At this stage before you walked out, you basically said, [that your] anger's not directed at him but you said, "You're the person that's basically here to kick me out of my job". That's directing your anger at him isn't it? A. I believe that what I actually said is, "You're the person who Miss Smith has brought in to replace me". Q. So you now can recall another set of words? A. That is my recollection of the event. Q. You left Mr Williams standing there, not to go to class, but you wanted to make a scene? A. No, I don't believe that was the case. I believe that if I had left the room then my intention would have been to remove myself from the situation that was making me upset, so as to not further make - to say any further things that could be rude or discourteous to somebody else. Q. You'd already been rude and discourteous before you left, hadn't you? A. Yes and that's why that would have been a very good reason why, to leave the room and to prevent myself from saying anything further.
3. Mr Kyle Williams had annexed to his affidavit a copy of the transcript of his interview with EPAC investigators on 15 June 2012 in which he was recorded as saying: Eventually another member of staff walked in, who I introduced myself to and that was Stephanie Gooch, the music teacher. I extended my hand and said my name's Kyle Williams. I was basically brushed and was told that yes I know who you are, you're the person that's basically here to kick me out of my job, but don't worry, I've only been here eight years. That person then walked out of the staff room. So this was said in front of those two other staff members. Allegation 2(v) On a number of occasions when Mr Williams sent you emails requesting information or making an enquiry with you about your students, you failed to respond to his reasonable requests for information, including but not limited to an occasion when he asked you in an email "Can you please let me know the current practicum students, what their full names are and when their practicum starts?" when you did not respond either in writing or verbally;
4. The applicant, under cross-examination, gave the following evidence in relation to the said allegation: BRITT Q. Now you recall Mr Williams sending emails requesting information or making an inquiry with you about your students? A. I recall him making an inquiry regarding the prac students. Q. And you didn't respond to that? A. No, I did respond to that. I pointed him to the shared T drive which all staff have access to. On that I had created a folder which listed all of the prac students, which teachers they were going to be with, which university they came from and their phone numbers and the subject area that they were going to be teaching in and I had created that so that any staff member at any stage could look at when prac students would be in and around the school. Allegation 2 (vi) On one occasion you said to Mr Williams in regard to the TARS process that you will not conform and will not be part of the process, that you will be intentionally difficult and words to the effect of "let's see Kay (referring to the school principal) sign my forced transfer form at the end of the year saying that she has no personal issues with me".
5. The applicant, under cross-examination, agreed that she had made a comment similar to that set out in the allegation and that the comment was not courteous: BRITT Q. Not respectful? A. Correct, yes. Q. And not professional? A. Correct, yes. Q. Do you say that you told Mr Williams that you will not conform with the TARS process? A. I honestly don't have a memory of that event. Q. Or that you wouldn't be part of the TARS process? A. I don't have a memory of that. It is very unlikely that I would do that because I have conformed with every other paperwork requirement on me at the school. Q. And that you were going to be intentionally difficult? A. Yes I believe at that stage I made a very regrettable comment like that.
6. Mr Williams had annexed to his affidavit a copy of his 17 May 2012 email to Kay Smith, Principal - Evans High School in which he was recorded as saying: I also mentioned the TARS process and that I will continue to have informal and formal conversations with staff (particularly those who teach Year 12 and 11) in regard to HSC monitoring folders and procedure. Stephanie replied "Sorry you want me to be held accountable for what I'm doing when the kids are allowed to get away with what they like? There are kids with 90% absence still getting their HSC and it's been happening for a long time. And I quote "I WONT conform, I WONT be part of the TARS process AND A I WILL go out of my way to be extremely difficult and let's see Kay sign off to say that she has no issues with me when she gives me a forced transfer at the end of the year".

Allegation 2 (vii) When Mr Williams became the teacher of one of your year 11 music classes, you: (b) failed to provide him with a teaching program for the class; (c) failed to provide him with assessment marks for the students in the class.

1. The applicant, under cross-examination, gave the following evidence in relation to that allegation: BRITT Q. You say you didn't provide him the documents because you weren't at the school? A. Yes, prior to me being removed from the school, all of my documents were made available to Mr Williams via two sets of programs, one were located on our shared desk on the classroom and another set were located very clearly on my desk in the staff room and labelled. Q. And did you tell that to Mr Williams? A. Yes I did. Q. And then you say after you were removed from the school you couldn't provide the information because you were told not to contact anyone at the school? A. That's correct, yes. Q. And you say that you did in fact provide the assessment marks for students in the class? A. Before my removal yes, I took Mr Williams and I showed him on my desk I used to have an A4 folder and in that were all of the rolls and next to every roll was the set of marks and I showed Mr Williams where those were located. Q. But when you left the school you took the marks with you? A. That is correct, yes.
2. Mr Williams stated in his affidavit that whilst Ms Gooch was under strict orders not to contact any other staff member: …any teaching and learning program (including assessment marks) should be easily located within the staffroom, usually the staff member's desk. After spending a great amount of time searching through all the folders on Ms Gooch's desk (many of them from at least 3 or 4 years old) as identified in writing on the binder, I was unable to locate any current teaching and learning program or assessment marks for the students in Ms Gooch's Year 11 class that I would now be teaching. I note that Teaching and learning programs and associated marks remain the property of the school and should be kept in an easily accessible and clearly marked location.

Allegation 2 (viii) (a) and (b) After you had engaged in the conduct towards the Principal outlined in allegation 1(ii) above, you entered your faculty room, where Mr Williams and other staff were present, and angrily screamed at them the words to the effect of: a)"I can't believe the hide of this woman! I can't fucking believe it" and when staff members present asked who you were referring to you angrily shouted "Kay" (referring to the Principal) and continued to angrily shout at the staff and Mr Williams; b) In a threatening manner you then stepped into Mr Williams personal space, about 10 cms from his face, took a letter of direction from the principal in your hands, angrily shouting words to the effect of "You know what you can do with this letter of direction?" and then aggressively tore it up into little pieces and threw it at Mr Williams' feet, saying words to the effect of "Kay, well she can just fuck off" and stormed out of the room.

1. The applicant provided the following responses to the allegations under cross-examination: BRITT Q. Now when you attended the faculty room were you angry? A. Yes, as previously stated that is when I came straight up from the common room and I was in a highly agitated state and when I entered the staff room I was in a highly agitated state and that is when the staff inquired as to what was wrong and then I said these things and yes, it is very likely that they were said in a very raised voice. Q. Do you say you screamed? A. It is - look, it is possible that by that stage I was in an incredibly severe mental state and it is definitely possible that it could have been seen as screaming. I have a very naturally loud voice and it just continues to go up and up and up when I get agitated. Q. So you don't take issue with the phrase, 'angrily screamed'? A. I may have angrily screamed. Q. And then you screamed out words to the effect, "I can't believe the hide of this woman. I can't fucking believe it"? A. Yes it's very likely that I said something like that, yes. Q. And when people asked who it was, you said, "Kay"? A. Yes, in - yes. Q. And you continued to shout at the staff and Mr Williams? A. I continued - well yes. Q. Now, you deny stepping into Mr Williams' personal space, is that right? A. Yes. Q. Deny being about 10 centimetres from his face? A. Yes. Q. You had a letter of direction from the principal in your hands? A. I don't recall that part, I'm sorry. Q. Do you recall shouting the words angrily, "You know what you can do with this letter of direction"? A. I don't recall that. I don't deny that I said it but I don't recall it. Q. And then you, in front of everyone in the faculty room, tore it up in little pieces? A. I can't recall. Q. And you threw it at Mr Williams' feet? A. I can't recall. Q. And you said words to the effect, "Kay, well, she can just fuck off," and stormed out of the room? A. Again I cannot recall that part but I don't deny that it occurred. Q. Do you agree that your behaviour was disrespectful? A. Yes, I believe - on that day I was absolutely out of line with my behaviour. I overreacted and I took that into the CAPA staffroom. I believe that with the exception of Mr Williams the other staff members there knew me well enough to understand that none of my anger or frustration was directed at them and … Q. … Again, you actually don't know what people think. A. … but I have worked with these people for a long period of time and over a period of time you do develop relationships … and a certain understanding of other people. Q. They may have just been shocked? A. They all … Renee, Sarah and I believe Michael all asked me what was wrong ….
2. Mr Williams had annexed a copy of his Head Teacher incident Report to his affidavit in which was recorded the entire incident that was to become Allegation 2 (viii)(a) and (b). His Incident Report relevantly recorded the following: Stephanie then proceeded to step into my personal space, at which point I felt quite threatened. She then continued "You know what you can do with this letter of direction", Stephanie proceeded to rip it up (aggressively) and throw it on the floor at my feet. At this point she was very much in my personal space - Stephanie continued "And Kay, she can FUCK OFF".
3. Mr Williams had asked those present to also write an Incident Report. However, the only other incident report handed in was one prepared by Tim Hunt, one of the applicant's practicum students. That report was tendered in the proceedings and relevantly reads: For what it's worth, she remained completely calm in front of the students, making polite conversation until entering the CAPA staff room. She got very angry while recounting the incident, swearing and tearing up a letter. I do not feel that she was threatening or posturing, just furious. She could have handled it better, but I honestly doubt I would have…

Allegation 2 (xii) On one occasion you lied to Mr Williams when you informed him that you had the permission of the Science Head Teacher to take Year 7 Science students out of their Science classes and let them stay with you, if and when they felt angry in class or had any issue with the classroom teacher.

1. The applicant gave the following evidence regarding that allegation under cross-examination: BRITT Q. You say: "I did not tell students they could run around whenever they felt like it and I did not indicate to Mr Williams that I had permission of the science head teacher"? A. That is correct.
2. Mr Williams was recorded in his interview with the EPAC Investigators as saying that … but this was a science class. Stephanie told me she had permission from the head teacher of science to do this. I spoke to the head teacher of science and nothing was mentioned to her at all. So these students were taken out of class and told that anytime they needed to or felt angry in class they could just come up and go to Stephanie's class or be with her and she would be with them in the music room.

Allegation 2 (xiii) In early Term 2 2012, during a faculty meeting when Mr Williams was speaking to staff, in particular to teachers of Years 11 and 12, about how he might ensure teacher accountability was covered through appropriate lesson registration, you refused to engage in the faculty discussion, spent the entire meeting looking at your telephone, and stated to Mr Williams that you will not be part of any process she might put in place regarding accountability/registration, and that you intended to make it incredibly difficult for him to do so.

1. The applicant was cross-examined regarding that allegation. She gave the following evidence: BRITT Q. Now, you concede you didn't engage in the faculty discussion? Yes. Q. Now, did you spend a lot of time looking at your telephone? A. It's very likely that I spent the time looking down. It doesn't mean that I wasn't listening. It just means that I wasn't looking up. The conversation that day was regarding MADD Fest and I wasn't being part of MADD Fest, so there wasn't really much I could or could not add to that conversation. Q. Other than you'd had experience over a number of years being one of the teachers that had undertaken MADD Fest previously? A. If I had been asked to contribute and been asked a direct question, then I would've answered it and I would've contributed in any way I could. Q. You didn't volunteer any information? A. No, that is correct, I did not. Q. You told Mr Williams you'll not be part of any process he might put in place regarding accountability and registration? A. I honestly don't recall that. It's possible. I don't recall it. Q. And you deny, do you, the last part of that allegation which is you told him that you intended to make it incredibly difficult for him to do so? A. I don't believe that I said that.

Allegation 2 (xiv)(a) and (b) On or about 11 May 2012 you made inappropriate and unprofessional comments to Mr Williams about: a) Ms Kay Smith, principal, including words to the effect of "She is nothing but a maggot in the ground who needs to be stomped on" and "This bitch is going to be sorry that she ever decided to take me on as I can't wait to throw her in front of a magistrate"; b) Ms Karen Bryant, principal, in words to the effect of "She was a big fucking dyke who I hated as well but no where near as much as (I hate) Kay (referring to Principal Kay Smith).

1. The applicant gave the following evidence under cross-examination: BRITT Q. You agree you made those comments? No, I did not make the second comment. Q. Sorry, you agree you made the comments in paragraph (a)? A. Yes, it's very likely I said that, yes. I don't recall the exact day but that is - knowing how I was feeling at the time, it is very likely I did make that statement.
2. The applicant agreed with Mr Britt that such a statement was neither courteous, nor respectful nor professional. Q. Nor is it an appropriate way to describe the principal? A. Agreed. Q. I put to you that you did say the words in paragraph (b) of allegation (xiv)? A. No. No, I would never ever make an anti - a homophobic comment. I just - I wouldn't. I have - many, many of my closest friends are gay and I am very supportive of gay and lesbian rights and would never denigrate anybody on the basis of their sexuality. Q. Do you recall admitting that you did call Michael [Hoareau] a "misogynistic pig"? A. Yes. Q. This is part of the normal rough and tumble of workplace interactions? A. Within the context of the relationship that Michael and I had, yes, it was. Q. Michael wasn't one of the teachers that you'd mentioned earlier when I asked you who you didn't get on with? A. No, that's correct, because of the nature of the relationship that I had with Mr Hoareau … we both have personalities that would clash but we were both appreciative of that … So although we didn't get along on a private level, we were able to the majority of the time put that aside to work well professionally. Q. You know he made a complaint about you? A. I do, yes, and I know also that that complaint was not of his volition. He was told to put it in and he told me that. Q. He put a complaint in against you? A. Yes. Q. Now, you know he made an allegation that you said that he had homosexual tendencies? A. No, I did not say that. Q. So you certainly did make comments about sexuality generally? A. I made, yes, I made comments about sexuality. Q. And that "footballers are a bunch of latent homosexuals chasing a pig skin"? A. Well, words, yes, words to that effect, yes. Q. Well, not "words to that effect". You said "a bunch of latent homosexuals chasing a pig skin"? A. Yes. Q. My question was you weren't averse to putting those types of comments in writing? A. That is correct. Q. And you weren't averse to saying them because in that last paragraph you've set out the words that you say you said? A. That is correct. Q. So notwithstanding you telling us about your homosexual friends, you do make comments about people's sexuality or perceived sexuality? A. I make comments about people's sexuality, not derogatory towards the person that is gay. Q. You don't think the expression "latent homosexuals chasing a pig skin" describing footballers as derogatory? A. …I will agree with you that it is definitely derogatory towards footballers, but I do not believe that it is derogatory towards gay people. Q. So you make derogatory comments about footballers' sexuality or perceived sexuality and you view that as different from making comments about people who are homosexual? A. Yes. Q. And that's a distinction you're comfortable with in your mind? A. Yes. Q. You make derogatory comments about people who may or may not be homosexual about their sexuality, but you don't make derogatory comments about a person when you know they're homosexual? A. I do not make derogatory comments against people that are homosexual.

Allegation 3 (i)(a) and (b) On occasions you made inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA, position in that: (i) on or about 2 April 2012, when you were told that your then R/HT Michael Dempsey, had been unsuccessful for the position of Head Teacher, CAPA, you: a) told a Year Advisor meeting that the new Head Teacher, Kyle Williams, had only been chosen to get rid of you; b) stated that the principal had "fucked up Mick's career" (referring to Michael Dempsey)

1. The applicant confirmed making those comments under cross-examination on that allegation: BRITT Q. Now, can I then take you back to page 105 of DEC1 and can I ask you to focus on allegation 3 (i)(a) and (b). Have you read those? A. Yes. Q. You agree you made those comments? A. Yes, I believe that I did make, yes, those comments.

Allegation 3 (ii)(a) - (d) On occasions you made inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA, position in that: (ii) On 23 April 2012 you commented to Ms Narelle Welch, A/Deputy Principal, in words to the effect of: (a) "I'm disgusted by this appointment"; (b) "Kay's fucked up this appointment just to get rid of me"; (c) "Kay lied to the CAPA staff at a meeting on 5 April 2012"; (d) "I'm going to be the biggest pain in the arse possible for Kay for the rest of the year and only do the minimum required of me".

1. Under cross-examination, the applicant made the following admissions: BRITT Q. So you agree you've said everything other than the words "and only do the minimum required of me"? A. I agree that I said statements to that effect, yes I do. Q. In relation to (a) to (d), it's all agreed. You agree you said all those things? A. Except for the last line, I agree that I said all those things. Q. When you say "the last line", what do you mean? A. The line in (d) where it says "and only did the minimum required of me".
2. Ms Narelle Susan Welch, Head Teacher-Administration at Evans High School provided an affidavit to which were attached various annexures. Annexure C was a file note made by Ms Welch on 23 April 2012 at the time she was Acting Deputy Principal. The file note included the following: I was talking to Francis Fernandes, just outside my office door, when I was approached by Stephanie Gooch, she asked me how could she appeal the appointment of Kyle Williams as Head Teacher of CAPA. She said she was disgusted by his appointment and that "Kay had fucked up Mick's career to just get rid of me". Stephanie also claimed that Kay had lied to the CAPA staff at a meeting held 5/4/2012. Stephanie then smiles and said that she intended to be the biggest pain for Kay for the rest of the year and only do the minimum required by teachers, and if you had to be a person of good character and have good connections with the school to be transferred, then Kay would never get rid of her due to all the complaints Kay has put in about her.

Allegation 3 (iii) (b) and (c) On occasions you made inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA, position in that: (iii) on 26 April 2012, while supervising students in Music Room 2, including Amelia Dudley, the daughter of the parent representative on the interview panel, you loudly commented to the students words to the effect of, including but not limited to: b) "Ms Smith manipulated the panel to hire a music teacher to get rid of me"; c) "Ms Smith has destroyed the CAPA faculty".

1. The applicant made further admissions during cross-examination: BRITT Q. Now, could I then take you to (iii) in that page, and just ask you to look at the opening words, and (b) and (c). A. Yes, read it. Q. You agree you said those words at (a)? A. I agree that I said that, but not to the students. Q. I'll get to that in a moment. And you agree you said the words at (c)? A. Yes. Q. You said those words around the students, didn't you? A. Yes. Q. You have a loud voice? A. Yes. Q. It was clearly possible for the students to hear those matters? A. Yes it was. Q. It was clearly an inappropriate conversation to have in front of students? A. Yes.

Allegation 3 (iv) On occasions made inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA position in that: on occasions, approached Ms Jenny Milligan (the Federation Representative on the panel) in front of students and in a loud and aggressive manner said words to the effect of "You're no help to the staff at Evans. What good are you as a Fed rep?" referring to [the Applicant's] displeasure at the selection of Kyle Williams as HT CAPA.

1. Ms Milligan provided the following relevant evidence under examination: BRITT Q. Ms Milligan, can I take you to paragraph 38 of your affidavit and can I take you to the sentence "I would be concerned for the welfare of a number of other staff," or, "other members of staff at Evans who would be distressed if they found they would have to work with Ms Gooch again, particularly those who have been in conflict with Ms Gooch." That's a statement of your opinion? (No verbal reply) Q. You have to answer, madam. You can't just nod. A. Yes. Sorry. Q. Upon what did you base that opinion? A. Interactions with those other staff members. As Fed rep, they would often come and ask me advice. There's one of those people who also shares a staffroom with me and I've observed her distress in the past. Q. And are you able to recall the names of some of those persons? A. One of them is a lady called Amanda Clark who is now Amanda Shannon. And the other one who has now left the school is Jodie. I can't remember her other name. But there's another lady called Tamara Rodgers who was also at times quite distressed. Q. And when you say "quite distressed", do you know what they were distressed at or with whom? A. The idea of further conflict of walking a certain route around the school and bumping into Ms Gooch where they weren't really prepared for conflict, would deliberately walk another way and perhaps sometimes feel very uncomfortable. One member of staff did move staffrooms after sort of sustained conflict, and that's Miss - now Mrs Shannon.

Allegation 3 (v) On occasions you made inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA, position in that: on 20 April 2012 and 8 May 2012 you made inappropriate comments about the process to students Amelia Dudley, a daughter of a parent representative on the panel, and Fiona Halliwell respectively, including saying to Amelia that you were going to lose your job as a result of the merit selection process.

1. The applicant pointed out that Ms Fiona Halliwell was not a student but was one of many staff members who had approached her to express their surprise at the failure of Mr Dempsey to be appointed and she had "simply engaged in the conversation with her".
2. The applicant responded under cross-examination: BRITT Q. Can I take you then to, (v). You admit that? A. No, I don't believe that I made comments to Amelia Dudley. I believe that Amelia asked me what the appointment of a new head teacher would mean, and I explained to her that it would mean that there would be, either myself or Ms Aldogan would be force transferred as a result. Q. Do you think it is appropriate to discuss forced transfers of teachers with students? A. I think it's appropriate to keep students informed of who the HSC teacher will be, and I think it's - I don't think it's appropriate to ever lie to a student, especially not a senior. Q. Well you could've not offered any information to this student at the time? A. I didn't, yes, well that's true, I could've not offered any information. Q. And you decided against not offering any other information that you would agree is appropriate sometimes? A. It's very rare that I do not respond to a, sorry, it is very rare that I do not answer a question that is asked of me by a student because that's my job as a teacher.

Allegation 3 (vi) On occasions you made inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA, position in that: on 23 and 26 April 2012 inappropriately complained to a number of staff members, including Ms Narelle Welch, Ms Tamara Rogers and Mrs Ibaa Makhoul about the merit selection process.

1. The Applicant made further admissions under cross-examination: BRITT Q. Now could I ask you to read 3(vi) on page 106? A. Yes. Q. You agree that you said that? A. I agree that I had discussions regarding the appointment of the new head teacher, yes, with those staff members. With Ms Welch and Ms Makhoul definitely, I did not recall with Ms Rogers but I'm not denying, I'm just saying I don't recall that. Q. Well can I ask you to look at behind tab 4 page 195. So are you saying that you can recall Ms Rogers being there or not being there? A. No, I'm saying I don't recall whether Ms Rogers was or was not there. I do recall the conversation with Ms Welch and Ms Makhoul. I do not recall the conversation with Ms Rogers but I am not denying that Ms Rogers was present. Q. Well at the time of your response you wrote 'the same is true of Ms Rogers'? A. Then it must have been true because if this is what I wrote then I obviously recalled it at that time. I do not now recall it. Q. And do you say that your discussions were appropriate? A. In relation to the conversation that I had with Ms Welch and Ms Makhoul I can only reiterate it was a two-sided conversation that both of them were participating in and they were both saying the same things. Q. … do you deny (vi), that's on the bottom of page 106? A. Do I deny it? Q. Yes? A. I don't deny that I had a conversation with those people regarding that matter. Q. But you deny it was inappropriate? A. In the context of the conversation yes I do because they were having exactly, it wasn't a rant, it wasn't a one-sided, me sitting there talking and them sitting there quietly listening. We were all participating in a mutual conversation, we were all sharing mutual opinions and mutual feelings throughout that conversation.
2. Ms Welch stated that she had acted as Relieving Deputy Principal on a number of occasions including during all of the 2012 school year and the second half of 2013. Ms Welch stated in her affidavit: Having read Miss Gooch's response to the conversation on 26 April 2012 I would like to make the following comments: Contrary to what Miss Gooch says, Mrs Makhoul was in the room when I arrived. Mrs Makhoul appeared to be very uncomfortable with regard to what Miss Gooch was saying in front of the students. Mrs Makhoul later said to me "Narelle, she just wouldn't stop". Miss Gooch should have been in music room 1 supervising her students. She should not have been in music room 2 and she should not have left her students supervised by a practicum teacher. The only comment I have any recollection of making to Stephanie regarding Mick Dempsey not getting the job was: "Mick has done a great job as relieving Head Teacher, but he may not have performed at interview as it was his first one. Perhaps he went into the interview assuming that he would get the job".
3. Ms Tamara Rodgers produced a statement which dealt with issues unrelated to those identified as misconduct by Mr Peter Riordan. As can be gleaned from the transcript of the Applicant's responses under cross-examination, Ms Gooch was somewhat confused about any role played by Ms Rodgers in regard to Allegation 3 (vi).
4. Ms Ibaa Makhoul, Head Teacher-English at Evans High School, provided an affidavit in which she denied the Applicant's claim that she (Mrs Makhoul) had willingly entered the conversation that was held between Ms Welch and the Applicant.
5. Ms Makhoul stated that she was cornered by Ms Gooch behind desks and, short of climbing over desks, she was stuck there with Ms Gooch until Ms Welch arrived. She was then able to leave the room taking with her the students that she had with her.
6. Ms Jennifer Milligan worked as a classroom teacher at Evans High School for 20 years. At the time of the hearing she was teaching English.
7. Ms Milligan was also the Teachers' Federation representative at the School, a position she has held for 10 years. That role included her acting as a support person for teachers who are called to a meeting with the Principal, and providing support and advice to teachers who approach her with concerns regarding the workplace including concerns about unfair treatment.
8. Ms Milligan was interviewed by investigators from EPAC on 15 June 2012 concerning an allegation (3 (iv)) which was not sustained by the investigators. Nevertheless, she provided an affidavit in the proceedings in which she confirmed the veracity of the said allegation. Her evidence lent weight to the evidence of other witnesses regarding the applicant's misconduct.

Allegation 4 (iii)(b) On one occasion on or around 14 May 2012, after a Tuesday school assembly, when Mr Williams was speaking to Ms Ronie Quinn, Year 7 Advisor, you spoke to Ms Quinn and when Mr Williams went to leave, [you told him to stay] and: b) then, in threatening manner, said to Ms Quinn that you were in charge of Practicum teachers and only gave practicum teachers to teachers who will support them, that if Ms Quinn couldn't be supportive of another teacher in the school then she wasn't sure if Ms Quinn would be supportive of a practicum teacher.

1. The applicant stated that the reason she wished to speak to Ms Quinn was to ascertain: if Ms Abawi had mistaken the intent of Ms Quinn and whether she really had been that unsupportive to a colleague. … Ms Quinn made some noises about how she thought it highly inappropriate for Saqi [Abawi] to send students out of the room and other similar comments. It was at this point that I made the statement referred to in point b). I emphatically deny that I was being "threatening". …. I simply stated to Ms Quinn if she couldn't be supportive of other staff members who were struggling in the school then how could I give her a prac student who would struggle even more.
2. In response to that allegation against the applicant, Mr Williams stated as follows in his affidavit: In relation to the response provided by Ms Gooch regarding the incident when she approached Ms Quinn, I recall asking Ms Gooch after she approached whether it was myself or Ms Quinn whom she wanted to speak to. Ms Gooch replied "Ronie". At this point I went to walk away before Ms Gooch interjected with "No, you can stay. I like to have a support person with me when I'm speaking to someone". After briefly assessing the mood of the situation, and looking at Ms Quinn who also indicated she would like me to stay, I stayed. I would describe Ms Gooch's manner towards Miss Quinn as intimidatory and threatening. By threatening I mean that the comments she was making basically indicated that she was in control of who received a practicum teacher, thus suggesting she would not give one to Ms Quinn due to her apparent behaviour towards another colleague (Ms Abawi).
3. Ms Veronica Therese Quinn, in her affidavit evidence, stated that she was known as "Ronie" at Evans High School where she was a Mathematics/ Science Teacher. At the time in question she was teaching science and was also the year 7 advisor. In her role as year 7 advisor, Ms Quinn had background information on those students.
4. Ms Quinn gave evidence that on Friday, 11 May 2012, she was in the process of completing reviews of year 7 students, when their teacher, Ms Abawi, brought two students, JP and ST, into the Science staffroom and asked her to look after them as they refused to attend their class.
5. Ms Quinn stated that the students told her that any time they were angry or did not want to attend science classes they had permission to go to see Ms Gooch and play the guitar and drums instead of attending science class. Ms Quinn said she told the students that such practice was unacceptable and that they had to attend science class despite it not being their favourite subject.
6. Ms Quinn said she had a conversation with Ms Abawi to ascertain whether she had given permission to the students to go to Ms Gooch. Ms Abawi explained that Ms Gooch walked past when she had been having problems with the boys during a particular lesson. Ms Gooch had settled the class down and taken the two students for the remainder of the lesson. Ms Gooch told Ms Abawi that she could send her the students any time there was a problem. Ms Quinn advised Ms Abawi that that was not how teachers were meant to manage student behaviour and asked her not to send the students to Ms Gooch again.
7. Later that morning, Ms Quinn discovered that two mathematics students, AT and AW, had been given similar permission by Ms Gooch.
8. At the start of assembly on Tuesday 14 May 2012, the year 7 roll call teachers asked two students, JD and AT, to sit down in alphabetical order in their roll call lines. Ms Quinn said she went to mark the roll for 7G class and found AT and JD sitting together at the end of the line "looking quite smug". Ms Quinn said she asked the assembly teacher why the two boys were not in alphabetical roll call lines and she was told that Ms Gooch had given them permission to sit together.
9. Ms Quinn stated that, towards the end of assembly, she approached Kyle Williams, Ms Gooch's Head Teacher, and told him of the occurrence during assembly and reminded him that Ms Gooch was the year 12 Advisor and therefore should have been with them rather than with the Year 7 roll call teachers. She said she was still talking to Mr Williams when Ms Gooch approached them and asked Mr Williams to remain while she spoke to Ms Quinn, following which the conversation, the subject of Allegation 4 (iii)(b), took place.

Allegation 4 (iv)(d) and (e) (iv) On one occasion on or around 22 May 2012 in Ms Quinn's classroom, you: d)…in an intimidating manner shouted words to the effect of "if you can't support another teacher then you can't have a prac student. Do you want a prac student Ronie?" e) then walked out of the classroom door saying words to the effect of "I'm very disappointed Ronie that you can't support another teacher, You're not fit to have a prac teacher. You can't even support a teacher with students who are disruptive....."

1. The applicant responded to the allegations under cross-examination as follows: BRITT Q. Now I want to take you back to 22 May 2012, and on the lunch time of that day you approached Ms Quinn in her classroom? A. I remember speaking to Ms Quinn in her classroom. I genuinely couldn't tell you when that occurred. Q. And also present was TH [name withheld]? A. Yes, that is correct. Q. Who was TH? A. He was a year 12 student. Q. You interrupted their discussion? A. Yes I did. Q. And she told you words to the effect that she and Ms Welch were in the process of completing student reviews? A. I don't recall, but that's very likely. Q. And you then said "What should teachers do whilst waiting for the process to be complete?"? A. I don't recall, but I think it's very likely that I would've asked that question, yes, because of the issue with Saqi, the difficult boys in her class, and the fact that we were now in May and no policies had been put in place for dealing with these boys. Q. And you asked her if she'd apologise to Ms Abawi for her comments? A. … I'm sorry, yes I do believe I asked her if she'd apologise to Saki Abawi, yes. Q. And this is all happening in front of a student? A. And it was absolutely inappropriate and I completely admit that. Q. She told you that she'd spoken with Ms Abawi? A. No, I don't recall that, but I could be wrong. Q. And that Ms Abawi had not informed Ms Quinn that she found the comments to be offensive? A. I can't recall that part, I'm sorry. Q. You told her that she should apologise to Ms Abawi, for the way that she had been treated? A. … yes, I believe I would've said something to that effect, yes. Q. And by this stage you're starting to raise your voice? A. It's probably likely that I was becoming agitated, I do recall that during that conversation I did become unnecessarily agitated. Q. And at this stage the student is still present? A. Yes, that is correct, much to my disgust in myself, that is true. Q. And then subsequently the student leaves? A. Yes, T…, he was a very sensible student and very sensibly took it upon himself to leave the room, which showed more maturity than I was showing at the time. Q. You told Ms Quinn that you'd got into trouble for supporting another teacher? A. Yes, I believe I said something along those lines, yes. Q. You complained about Ms Welch? A. I would need to know - I really can't recall, I don't know why I would have, because - oh, yes, no, sorry, I do remember, yes, I did, I believe it was in relation to these two boys who had been caught truanting, had attempted to use me as an excuse to get out of trouble for truanting, and Ms Welch had believed that I had actually said to these kids "feel free to run around the school like mad things whenever you feel like it", and I had found that really quite insulting. Q. And you claimed that you'd never lied before at school? A. Absolutely. Q. And that everyone at the school had lied to you over the years? A. Yes, I had been told uncountless lies by people at that school and I've had uncountless lies made up about me, I've had uncountless lies when I've put in allegations, people simply lie their way out of them, whereas I have always told the truth, regardless even if it means that I know that I'm the one who's going to get into trouble for my actions. Q. You said words to the effect to Ms Quinn, "Is this getting through to you or you just nodding your head"? A. It's very likely I said something like that, I was very agitated. Q. She told you words to the effect that she understood what you were saying? A. I don't recall, she may have, I, but I don't recall that, no. Q. You'd agree with me that Ms Quinn is not just a mathematics teacher, she's a mathematics/science teacher? A. Yes, that is true, she does also on occasion teach science. Ms Quinn has gone through various stages at the school, sometime she's had a pure maths load, sometimes she's had a mixture of maths and science, sometimes it's been more of a science load. Q. And she also was the year 7 adviser at that time? A. Yes, that's true.

Allegation 5 (iii) On a number of occasions you failed to attend your faculty meetings, professional learning meetings or staff meetings that occur on Thursday afternoon until 3.30pm, including but not limited to an occasion on 10 May 2012, when you left school early and did not attend a professional learning meeting.

1. The applicant stated that she did not believe the allegation constituted misconduct as she had notified her head teacher and the co-ordinator of the first meeting of her inability to attend due to a long-standing specialist appointment.
2. The applicant said that as she was proceeding to attend the second meeting on 1 March 2012, she had some conflict with the principal, Ms Kay Smith. When she arrived at the meeting she "was still turning over the events" in her mind and: I noticed I was becoming agitated and thought it best that I leave the room before I say something impolite to someone. I feel that this was the mature and professional course of action for me to take.
3. The applicant said she was on her way back to her staffroom when she met Mr Edge, the Deputy Principal, whom she told of the recent events. She said that he responded that as it was already 3.30 pm she might as well just go home. She stated: There is an agreement that meetings will not run past 3.30 without prior notice. I followed Mr Edge's advice and left. I do not believe that this can be construed as misconduct as I followed all the relevant policy. I spoke to the relevant people to inform them of my absence and the reasons for.

Allegation 5 (iv) On a number of occasions you inappropriately told students that if they were having trouble with a teacher in class, they should come to you at any time and say to the teacher concerned that they were going to see Ms Gooch.

1. The applicant stated that Evans High School had some very high-need behavioural students due to its social demography. Many students were either in foster care or came from unstable family situations: Over many years I have developed some very successful techniques for dealing with these behavioural issues. They do not work for all students but on the whole they are very successful. On occasion some teachers have been 'at their wits ends' with some of these students and really unsure on how to proceed. On these occasions I have then suggested to the teacher that if the student in question was being particularly disruptive and persistently preventing the other students from learning that I would be happy to supervise them for a while so that the relevant teacher could actually teach the lesson. Once this arrangement has been agreed with the teacher I have then approached the student and told them of the arrangement. I never allow students to come to me without the express permission of their teacher. If they do not have a note and I am on a free I will call the relevant teacher to confirm. On a class I ask them which teacher they have come from. If it is a teacher I have not spoken to then I will immediately send them back to class. If it is a teacher with whom I have this arrangement I make the student show me their timetable so I can confirm this is really the class they came from then I call the relevant teacher at the end of the lesson to inform them where the student has been.

Allegation 5 (vi) On a number of occasions in Term 2, 2012 while teaching your Year 12 Music class, you inappropriately used teaching time to complain to the students about the supposed unfair treatment you were receiving from Ms Smith, your fears about Ms Smith trying to get you fired, the unfairness of the merit selection process that saw Mr Williams appointed Head Teacher CAPA

1. The applicant denied the allegation in a personal statement annexed to her affidavit: When the year 12 students discovered the appointment of Mr Williams early in term two they were quite distressed. … The students do not understand the ins and outs of the interview process and could not understand why Mr Dempsey was not simply 'given the job'. They also asked if that meant someone would be leaving and if so whom. As shown all the way throughout this document I believe in always telling the truth. … So when the year 12 class questioned me as to what was happening I endeavoured to inform them as appropriately and as best I could as to what would occur. In response to their queries as to why Mr Dempsey did not get the position I informed them that there had been an interview process and that a group of people including Ms Smith had made the final decision.
2. In response to their query regarding which classes would be affected, the applicant stated that she truthfully answered concerning the classes she then currently taught as well as "my year eleven class and Ms Aldogan's year nine class". That response elicited further questions such as - "why would they take away your year eleven class miss? Are they going to take you away from us as well?" In response to the last query, the applicant said she had responded that she did not believe so but that the decision "was not mine to make and up to Ms Smith". She stated that she had attempted to answer as truthfully as possible the question "Does this mean that someone will have to leave?" She concluded: I was simply answering what I felt were valid concerns of the students, most of whom are adults. I understand that students can very quickly blow things out of proportion or warp the information they have received through the process of Chinese whispers. Anyone who has worked in a school knows how quickly students can feed each other misinformation.

Allegation 5 (vii) (a) - (f) On 23 March 2012, you left your year 11 class either in period 1 or 2, telling Ms Bahar Aldogan, a teacher who had come into the classroom, that you were going to see Mr Michael Dempsey, then your Acting Head CAPA Teacher, at which you without authorization, left to see Mr Dempsey and told him: a) to go to the Principal and tell her you were going to leave the school; b) that you were going to see Today Tonight and tell them about what a dreadful Principal you had; c) that the Principal is "a fucking bitch" and had "fucked up the school"; d) that you weren't having any of this and were leaving; e) you made the statement outlined in (vii)(c) above in the presence of students; then f) later in the day, at approximately12.45 pm, you left the school without the express permission of your Head Teacher or Principal, leaving the class for which you were responsible at that time, returning around 1.05 pm.

1. The applicant stated that she could not recall what triggered her behaviour on 23 March 2012 but believed the allegation to be "mostly true, however, the sequence of events is slightly off and some of my words have been slightly misconstrued". She recalled Ms Aldogan coming into her room during what she believed to have been period three as Ms Aldogan had classes during periods one and two: She could tell I was visually (sic) upset and enquired as to what was wrong. I explained to her and then asked if she could watch my class for a few minutes while I went to find Mr Dempsey (then acting head of CAPA).
2. The applicant excused her behaviour on the fact that it occurred "very close to my mental health diagnosis" and stated: It is very likely that in my distressed state I made the comment like the one referred to in (c). … I further understand that my mental state does not excuse this comment. I do believe however that it makes it 'understandable'.
3. The applicant stated that her actual words in (b) were: "Imagine if I went to Today Tonight" an initiative she said she had no intention of pursuing as she was well aware of her responsibilities to the Department. She confirmed the accuracy of points (b) and (d): "As indicated in the allegations I made it expressly clear to Mr Dempsey my desire to leave. Mr Dempsey supported me in this. In this manner I had the express permission of my head teacher to leave".
4. The applicant also stated that the above information negated the allegation in (f) as the allegation also indicated she had asked Mr Dempsey to make Ms Smith aware of the situation.
5. The applicant further stated that she had no recollection of having made the comment in (c) in the presence of students but she agreed that, if she had, "that this was not an appropriate comment to be made in front of students. …. I can only say that this was coming from a place of great distress and I have since actively taken steps to avoid such an incident in future".
6. Mr Michael Dempsey, as the applicant's Relieving Acting Head Teacher, filed an Incident Report on 23 March 2012 in which he stated: During Period 1 on Friday morning at about 9.20am Stephanie came to me outside the PAS studio in tears. … she stated she had had enough and could no longer take the shit at this school and wanted to leave immediately. … I walked her around the COLA (the Covered Outdoor Learning Area) to the car park near CAPA as her language was quite loud and the words shit and fucked were being used to describe how she felt about the situation and school. … I asked her if she had spoken to the Union about this and she said they wouldn't do anything to help her. Steph told me she was packing her desk and leaving. I told her if that was what she wanted to do I would support her. Steph asked me to go to the Principal to tell her the following: Steph no longer wanted to work in this school as she didn't want to work for a fucking bitch like Kay as she ran the school like shit and had fucked it up. I was also told to tell Kay that she was going to phone the media to tell them how fucked the school was. I asked Steph if she was sure she wanted me to tell Kay this and she said "that is exactly what I want you to tell her". I relayed this to Kay Smith on Steph's behalf and she responded by asking if I was OK and did we need any support to cover Steph's classes for that day.
7. Mr Dempsey made all necessary arrangements regarding the classes and reported that Ms Gooch appeared fine at lunch time and was on duty at the Science toilets. He informed the Principal that there were no further issues that day and arranged to discuss the matter further on the Monday.

Allegation 5 (viii) refused to complete student reports until Ms Smith spoke to you herself even though she had asked you to complete them in an email, and even though you had been asked to complete them by your Head Teacher and the Deputy Principal.

1. The applicant responded as follows to the said allegation: Where it states that I refused to complete student reports until Ms Smith spoke to me. This is both true and regrettable. I offer no defence for that but would like to explain my state of mind at the time so that my actions may seem at least partly understandable and highly unlikely to occur again.

Allegation 6 By conducting yourself in the manner outlined in allegations 1-5 above, you breached the following letters of direction: (i) From Ms Karen Bryant, former Principal, Evans High School, dated 15 June 2006, in which she directed you to demonstrate the highest standards of professional behaviour, exercise professional judgment and act in a courteous and sensitive manner when interacting with students, parents or caregivers, staff and the public, and in which she advised you that failure to comply may result in disciplinary action; ii) From Ms Karen Bryant, former Principal, Evans High School, dated 8 November 2007, in which she again directed you, in part: Not to engage in behaviour that is aggressive, intimidating and unacceptable to staff or students that does not support the Code of Conduct; To demonstrate the highest standards of professional behaviour, exercise professional judgement and act in a courteous and sensitive manner when interacting with students, parents or caregivers, staff and the public: and in which she advised you that failure to comply would result indisciplinary action; iii) From Mr Chris Johnson, School Education Director, dated 26 July 2010, in which he confirmed directions given to you by Ms Karen Bryant, Principal, in her letter to you dated in 8 November 2007., namely that you: Not to engage in behaviour that is aggressive, intimidating and unacceptable to staff or students that does not support the Code of Conduct; demonstrate the highest standards of professional behaviour, exercise professional judgement and act in a courteous and sensitive manner when interacting with students, parents or caregivers, staff and the public. iv) From Ms Kay Smith, Principal, Evans High School, dated 14 December 2011, in which she directed you: Not to engage in behaviour that is aggressive, intimidating and unacceptable to staff or students that does not support the Code of Conduct; To demonstrate the highest standards of professional behaviour, exercise professional judgment and act in a courteous and sensitive manner when interacting with students, parents or caregivers, staff and the public. To comply in all respects with your professional responsibilities as outlined in the Code of Conduct 2010 particularly in regard to Section 4.1, namely: As a departmental employee, you are expected to: i. perform your duties to the best of your ability and be accountable for your performance; ii. follow reasonable instructions given by a supervisor; iii. comply with a lawful direction; iv carry out your duties in a professional, competent and conscientious manner, while seeking suitable opportunities to improve your knowledge and skills, including through participation in relevant professional development; v. act honestly and in good faith in providing advice or service that is honest, impartial and comprehensive, irrespective of your personal views on a matter; be courteous and responsive in dealing with your colleagues, students and members of the public; work collaboratively with your colleagues; be mindful of your duty to the safety of yourself and others; and be aware that if your conduct has the potential to damage the reputation of the Department, even if it is in a private capacity, this could lead to disciplinary action and in which she reminded you that failure to comply with the direction may lead to disciplinary action against you.

1. Ms Kay Frances Smith, Principal, Evans High School, filed an affidavit in which she stated that she commenced in that position in January 2011. She had wide leadership experience prior to that appointment including as an executive in primary and high schools and in non-school-based positions.
2. Ms Smith stated that, on the first occasion she had a reason to meet with Ms Gooch, she had received a prior request from Michael Dempsey, the acting head teacher of the department in which Ms Gooch was a music teacher, to be provided with a copy of all emails sent to the applicant so that he could help manage any situations related to her.
3. Ms Smith also stated that she was then contacted by Mr Dempsey who indicated in words to the effect: "When you meet with Stephanie it would be a good idea to always have someone with you as a witness" and that it had been his job to "keep Staff away from Karen" (meaning Karen Bryant, the previous Principal of Evans High School").
4. Ms Smith gave evidence that, on a number of occasions she had to, either formally or informally, remind the applicant about the appropriate way to deal with staff members.
5. By letter dated 14 December 2011, Ms Smith advised the applicant that she considered some of her conduct to have been inconsistent with her professional responsibilities as a member of the NSW Teaching Service.
6. In that letter, Ms Smith noted that the applicant had been given a number of written directions regarding: engaging in behaviour that was aggressive, intimidating and unacceptable to staff or students and did not support the Code of Conduct; and the requirement that she demonstrate the highest standards of professional behaviour, exercise professional judgement and act in a courteous and sensitive manner.
7. Ms Smith further noted that such written directions were dated: 15 June 2006, 17 August 2006, 8 November 2007, and 31 March 2010 from Ms Karen Bryant; 26 July from Mr Chris Johnson; 10 November 2010 from Mr Ken Edge; and on 3 September 2011 and 17 November 2011 from herself.
8. Mr Dempsey, at the time of Ms Smith's commencement as School Principal, had been Acting Head Teacher and therefore the applicant's supervisor. In his affidavit in these proceedings, he responded to issues related to him in Ms Smith's affidavit: … as the acting head teacher it was important for me to be aware of staffing issues. To that end, I thought it appropriate that I make Ms Smith aware that I wanted to be kept informed of staffing issues. [Ms Smith suggested in her affidavit] that I only wanted to be informed of matters relating to Ms Gooch and I do not think that is an accurate reflection of the conversation I had with Ms Smith or the reasons for it. I wanted to be kept informed of all issues relating to staff within my control.
9. Mr Dempsey recalled his advice to Ms Smith in different terms; If you have a meeting, I think it would be appropriate to have the Union present for her. Also you may wish to have witness/support person for you as well.

The second set of allegations

1. The second set of allegations related to incidents which occurred after her transfer to the Penrith Regional Office. Allegation 1 On Thursday, 15 November 2012, you signed the sign on sheet at Penrith Regional Office as attending from 9.00am to 4.00pm when you were not in attendance at the office during this period of time.
2. The applicant stated under cross-examination: BRITT Q. You made your own decision to leave. That is correct, yes. Q. You did so without permission. A. That is correct. Q. And you knew you shouldn't be leaving. A. Not - no, not entirely. Q. What, you didn't think you actually had to attend for work? A. No, I'm not saying that. I'm saying that, given the situation of the office at Penrith, that, as we were literally doing no work there, it was quite common practice for people to take time out in the middle of the day with the knowledge, often with the knowledge of the people that - sorry, with Paul Cole and the other people in charge there, and I made the time up at the end of the day, I stayed back, I only missed half an hour, and I stayed back and made that time up. Q. You didn't actually seek permission from the people you just named. A. No, that is correct. Q. You just thought you could leave. A. I guess I did. Q. You thought you could set your own hours of work. A. We were told within the office that we were allowed to attend any time between 8.30 and 5, as long as we made a full school day. Issue B whether the medical evidence relied upon by the Applicant was sufficient and reasonable grounds to have explained and excused her behaviour, the evidence of various people including the Applicant will be examined as will evidence from other sources.
3. Ms Smith stated that, in November 2012, she received a letter from Mr Tim McCallum, Relieving School Education Director, in which he asked her to respond to 14 complaints made against her by Stephanie Gooch. The complaints had been delegated to him by David Phillips, Regional Director. The issues raised in that complaint were managed with the procedures of the Department's Complaint Handling Policy Guidelines, available on the Department's internet site. The complaints included an allegation that:

Particular 4 She had been bullied by you, maintaining that she voiced concerns about the sport situation but these were not addressed, and she believes that she was unfairly targeted by comments made by you after a dispute with another staff member. She maintains that the text of this comment was "Instead of fixing the problems you raised with me, I am now going to be giving my energies to managing the effect of your behaviour on another member of staff". She also feels that she was unsupported and denied a fair hearing in relation to this issue, and that this constitutes a breach of the Code of Conduct by you.

Particular 11 Ms Gooch alleges that complaints and concerns have not been addressed in a timely manner by you and that this has resulted in an escalation of stress. She cites examples of conflict with Michael Hoareau, Amanda Minchella and other complaints she has lodged (nine relating to other staff and four relating to you). She also asserts that you have demonstrated bias in the resolution of complaints.

Particular 13 Ms Gooch alleges that, although aware of her medical diagnosis of extreme stress and anxiety, you did not take this into account in your dealings with her.

1. In December 2012, Mr McCallum advised Ms Smith by letter of the finalisation of the management of a complaint: After consideration of all of the fourteen particulars nominated by and clarified with Ms Gooch, taking into account all evidence presented and information regarding these particulars, I have made the determination to dismiss each of them.
2. Mr Timothy Paul McCallum, gave affidavit evidence that, in or around September 2912, whilst in the role of Relieving School Education Director, Western Sydney Region, he was asked to manage a complaint made by Ms Stephanie Gooch against Ms Kay Smith.
3. Mr McCallum gave the following evidence under cross-examination: HOWELL Q. Yes. So, for example, if one is conducting an investigation into a serious allegation, you take statements from people who are involved, you conduct detailed investigations or enquiries into email systems, things of that kind? A. We wouldn't call it investigation under our operation, because that, by definition of that policy, is a different meaning to negotiation. Q. Yes. And what I've characterised as the more formal thing, what you've characterised as the investigation, is that more detailed enquiry where one obtains formal statements or conducts formal interviews and things of that kind. A. I don't know if it's more detailed, but it's different. Q. All right. Nonetheless, it's the negotiation procedure which Ms Dunn determines to follow. … Ms Dunn writes to the applicant and requests she provide some additional detail. … You know the applicant had been removed from her school on around 25 May. A. Yeah, that was known by me but not part of what my role was. Q. Nonetheless, the applicant provides that additional detail, as I understand it, on or around 22 August, and … [with] additional detail … and then it has various annexures, is that right? A. Yes. Yep. Q. So there's the complaint itself extends from pages 6 to 41 and then there are a range of annexures which comes through until page 136 is, I think, the next piece of correspondence. This is the first correspondence from you. So you take over the complaint shortly after the applicant provides the greater level of detail. A. Yes. Q. You take over in September. A. Yep. Q. You distil, for want of a better way to describe it, the complaint into a series of paragraphs, and you give that to the applicant, ask her to review and confirm. A. Yes. Q. Again your letter, page 136 of 237, refers to using the negotiation procedure. A. Yes. Yep. Q. The applicant provides some feedback on the proposed form at page 140. A. Yep. Q. You clarify that in your next letter, which commences at page 141, is that right? A. Yes. Yep. Q. And then you ultimately issue the form of allegation in its final form to Ms Smith on or around 1 November, right? A. Yes. Q. Ms Smith, perhaps unsurprisingly, asks for some additional time. A. Yep. Q. Just to tie off on the enquiries that you made in relation to the applicant's medical status if I can call it that, again you didn't conduct a - to the extent you got information about that, it was what Ms Smith gave you and then the enquiries you made with Linda Watts that you described earlier? A. Yeah. Q. So you didn't conduct some more wide ranging investigation into reports that had been made to Ms Smith about the applicant's state of health? A. Sorry, I missed the first bit. Q. You didn't make any more wide ranging enquiry about reports that had been made to Ms Smith about statements about the applicant's health? A. No.
4. Ms Jennifer Lee Anderson, Registered Psychologist, Wellbeing Psychology, in a letter to Dr Shobha Balu dated 8 May 2012, acknowledged the referral to her of Ms Stephanie Gooch for assessment and diagnosis which she had undertaken on 3 May by clinical assessment and psychometric testing: Ms Gooch presented with symptoms of stress, anxiety and depression as a result of workplace issues. She indicated that she has been the victim of workplace bullying and harassment dating back to 2005. Ms Gooch stated that she continues to experience these behaviours presently within her workplace. Clinical assessment and testing has indicated that her levels of depression are deemed 'Severe' (BDHI) and 'Extremely Severe' (DASS). Her levels of anxiety were deemed 'Moderate' (DASS) whilst her levels of stress were deemed 'Extremely Severe' (DASS). Ms Gooch appears to be exhibiting symptoms of Post Traumatic Stress Disorder (PTSD) in relation to her workplace situation. Whilst it is noted that I have seen Ms Gooch on one occasion to date, her levels of depression and stress are of concern and require ongoing psychological assistance and monitoring. Treatment focused on reducing her symptom of depression, stress and PTSD symptomology is required. Whilst Ms Gooch has stated that she wants to remain working, ongoing support and therapeutic intervention is therefore required to assist and support her in her current work environment.
5. On 9 May 2012, the Applicant's solicitors sought the opinion of Ms Anderson on a number of questions - the most relevant being whether allegations of Ms Gooch's workplace conduct and behaviour could bear any relationship to her depressive illness. Ms Anderson responded as follows: It is my opinion that Miss Gooch's psychological symptomology including her feelings of anger, frustration and the resulting behaviours were a direct result of the workplace bullying and harassment she was experiencing. This is evident by the fact that Miss Gooch has reported receiving praise for her teaching and ability to manage challenging behaviours whilst she was working casually previously in the United Kingdom, She indicated receiving praise for her teaching abilities, her classroom management, enthusiasm and her teaching efforts by staff within those schools, By comparison Miss Gooch was not provided such feedback within her last school, indicating that the only feedback provided was negative, never focusing on what was done well.
6. Ms Anderson gave the following oral evidence: HOWELL Q. Now, firstly, the language of "workplace bullying and harassment", that characterisation, is that your characterisation or the characterisation as described to you? A. I believe that she was experiencing workplace bullying and harassment. Q. And what did you understand that to be? A. That in trying to deal with issues within the workplace she was feeling voiceless, she was feeling that she wasn't being heard, that she wasn't being given opportunities that would be something that she had or would be qualified for. There were consistent things happening for her that she felt were connected to that. With the workplace bullying and harassment, the feelings of voicelessness, powerlessness, the frustration and the anger at speaking up about what was happening but not getting any information back or any insight, any understanding when complaints were being made and information not coming back or investigations not being undertaken was adding to that sense of being helpless, hopeless, worthless and frustrated within the situation.
7. The following discourse was recorded under cross-examination: BRITT Q. Now, in both your statements, exhibit H1 and H2, you refer to the fact that you have read the expert witness code of conduct? A. Yes. Q. And that you agree to be bound by the conduct? A. Yes. Q. And then again to the best of your ability this report has been prepared in accordance with the code? A. Yes. Q. Can I show you a copy of schedule 7 of the Uniform Civil Procedure Rules? Where you refer in your reports to the expert witness code of conduct contained in schedule 7, that's a copy of the code that you are referring to? A. Yes. Q. And you understand that your overriding duty to this Commission is to act impartially? A. Yes. Q. And that you're not to be an advocate for a party? A. Yes. Q. You also understand that you are required in your report to include the facts and the assumptions of facts on which the opinions in the report are based? A. Yes. Q. And do you say that you did that? A. Yes, I believe I have. Q. Now, can you point to me what facts you assumed were correct in either of those reports? Not your opinion, madam, the facts upon which those opinions are based? A. The facts are supplied - provided to me through my treatment. Q. And when you say they're provided to you through your treatment, one source of those facts is what you're told by the applicant? A. Yes. Q. And you have assumed that what you were told was truthful? A. Yes. Q. You assumed that what you were told by the applicant was truthful? A. It is their experience of what was occurring, yes. Q. Well, that's an assumption what she told you, isn't it? A. It is what was happening for her at the time of treatment. Q. Well, you don't know what was happening for her at the time of treatment because you weren't at the school? A. No, my treatment is I'm looking at the symptomology that she was experiencing on a day-to-day basis which she has indicated was the result of the workplace bullying and harassment. Q. And you yourself have assumed there was workplace bullying and harassment occurring? A. The - yes. Q. You have no idea whether the applicant was experiencing workplace bullying and harassment at the school? A. As in actually attending the school, no, but Ms Gooch's experience is that she was experiencing workplace bullying and harassment. Q. I haven't asked you about Ms Gooch, I've asked about your knowledge. You have no idea, yourself, other than what was told to you by Ms Gooch? A. Yes. Q. First of all the wellbeing and psychology practice at Penrith has a number of psychologists working there? A. It has two. Q. And at other stages I think it might have a third, did it not? A. There was a previous psychologist there as well. Q. But you were the only psychologist that saw the applicant? A. Yes. Q. And when I say saw I meant the applicant consulted with you? A. Yes. Q. And she did so for a period of six months? A. Yes, approximately, initially. Q. In fact just a little bit less than six months? A. Yep. Q. You saw her at the beginning of May two thousand and-- A. 12. Q. And the last time you saw her was 30 October 2012? A. And then again on 12 June 2014. Q. Did you prepare a consultation note for your meeting with the applicant on 12 June 2014? A. Yes, I did. Q. Miss Anderson, can I just take you to the first of those letters that you produced, being a letter of 7 August 2013? A. Yes. Q. There's a letter that's on your letterhead, signed by you? A. Yes. Q. Now, in the third paragraph you refer that during consultations Miss Gooch reported reductions in her psychological symptomology and improved feelings of coping? A. Yes. Q. There wasn't much of a change, was there, between the first series of tests that you ran in May and those tests that you ran in July, was there? A. No. Q. And then the last time you saw her in October there continued to be issues in relation to depression and her psychological wellbeing in October 2012? A. In relation to depression. Q. Now, did the applicant tell you why she stopped seeing you after 30 October 2012? She was going to call once further information had come through for her. Q. But at the end of October 2012 she wasn't well, was she? A. She was still experiencing some symptomology. Q. And it wasn't your suggestion that she no longer needed treatment from you? A. No, Stephanie had indicated she would be back in contact. Q. And she didn't make contact until she required the letter that we found issued by you on 7 August 2013? A. 7 August, yes. Q. So that the first time that she had contact with you after October 2012 was to request a letter from you? A. Yes. Q. So she didn't return for treatment? A. No. Q. After 30 October 2012? A. No. Q. And you've recorded, I think at the next page of the bundle, a telephone conversation that you had with the applicant on that day? A. Yes, 7 August. Q. Now, these tests are - that is the DASS test and the BDI test? A. Yes. Q. Are self-reporting? A. Yes. Q. And you can't verify, can you, the answers that are provided? A. They are self-reporting as to symptomology the person is experiencing, yes. Q. You don't know whether they're answered truthfully or not? A. That's the BDI, it's a self-report measure, yes. Q. And as a self-report measure, it's only as good as responses are truthful? A. In conjunction with clinical assessment. Q. At the time of the first test, being in May 2012, you'd only had one session? A. Yes. Q. … And you told my learned friend, Mr Howell, when asked about your clinical assessment in respect to exhibit H4, exhibit H4 being a copy of the letter dated 8 May 2012, which should be immediately before the notes of 3 May 2012? A. Yes. Q. That you would base your clinical assessment on the information provided to you over a period of time? A. Yes. Q. And you'd agree with me at the time you wrote H4 the only period of time that you had actually had contact with the applicant was the single session? A. Yes. Q. For how long? A. Approximately an hour.
8. Ms Gooch stated in her affidavit that she was diagnosed with severe seropositive rheumatoid arthritis in 2003 and took daily medication to manage the condition which "can be debilitating and painful which makes even small movement, such as lifting a pen, difficult".
9. The applicant stated that she was diagnosed on 1 May 2012 with severe depression and anxiety and commenced an Eastern medicine - natural anti-depressant - prescribed by her doctor. She later began taking Sertaline, an anti-depressant. The applicant stated: I had not suffered from these conditions previously and believe it was brought on by work stress, namely a negative and difficult relationship with the Principal, Kay Smith, of Evans High School.
10. On 3 May 2012, the applicant submitted a Work Health and Safety notification due to ongoing bullying and stress. She submitted another Work Health and Safety notification relating to stress on 24 May 2012.
11. In her oral evidence, Ms Gooch stated: Q. In your experience, and I appreciate you're not a doctor. In your experience what if any, impact does stress have on your arthritis? A. For me stress aggravates my arthritis which means that I have flare ups so it hinders my ability to move. It causes me pain, yes, they're the big things which then in turn tend to have an adverse effect on my mood due to the amount of pain that I'm in. Q. Paragraph 10, you refer to these conditions being brought on by work stress. What do you mean when you say work stress? A. I found the environment that I was working in to be very stressful due to a number of factors but mostly to do with my relationship with the principal. I believe that on many occasions she spoke to me in a derogatory manner. She didn't take my concerns - I felt that she wasn't taking my concerns seriously and I felt there were many issues that were not being addressed or if they were being addressed this was not being communicated to me. I felt that there were some rather serious problems in the school regarding lack of a uniform discipline policy across the school and this was causing a great deal of stress to myself and other staff members. There were - yes, there were many, many factors, but mainly the relationship with the principal and the manner in which she would speak to me and address me and deal with any issues that I attempted to raise with her. Q. When you say the manner in which she would speak to you, what do you mean? A. She could be incredibly dismissive. I found her to be very rude on occasion to me. I felt that she was treating me as an annoyance, rather than as a valued staff member who had something to contribute. I felt that she openly humiliated me in front of the entire staff on more than one occasion and just generally I didn't feel that I had a voice within the school and an ability to work towards the improvements that I knew were necessary for the benefit of the students. Q. It relates to your 30 July statement so that's exhibit H7. Paragraph 16. Just read that to yourself and what I want to ask you about is the last sentence. [the last sentence states: Now that I have recovered from my illness, I would not have that same response.] How do you think you would currently respond? A. I believe that now I have developed tactics so that I am able to approach the matter, thinking about it before I walk into a room. So rather than immediately attempting to solve an issue I realise it's better to walk away, to take a night or two to think about both sides of the situation, to attempt to see the problems that the other person may be facing as well so that I have a better understanding of the whole issue. To write out the matter to clarify everything in my head so that I can then go and very, very calmly and very rationally, discuss the problem with the person if I still feel there is an issue after taking that time.
12. The Applicant stated under cross-examination: BRITT Q. What periods were you suffering from the stress, after September 2012? A. I suffered a mild bout of stress when I received the original allegations and I once again when the findings came in so basically on each of my dealings with the department. So there was when the allegations originally came in and when the findings came in for the allegation and then obviously when I received the dismissal letter, I did find that to be a stressful experience, especially as it occurred in the same week that my brother's house burnt down in the bushfires. Q. And in relation to the second two occasions, you didn't find the need to consult your psychologist? A. No, as I said, they were both mild bouts of stress and were nowhere near the level that I had previously been suffering. Q. You said you would not deal with matters calmly and rationally, do I take it from that you now accept that you didn't deal with matters prior to September 2012 in a calm and rational manner? A. I have always accepted that for the period of May that my behaviour was not calm or rational and that has been put forward in every document that I have ever written. Q. The period in April and May, that's April and May 2012, was the period of time when you were affected by your mental illness? A. I would definitely say for the period of May I had a medical diagnosis at that time and I do believe that for at least a good period of April I was probably suffering under the same diagnosis, I just had not been diagnosed.
13. The Applicant agreed with Counsel for the respondent that she had not been affected by mental illness in the years 2005 to 2010, but stated that she may possibly have been so affected for part of 2011: Q. 2012, yes, you got a medical certificate for your mental illness? A. Yes I went to see my GP, my family GP, of my own volition and received - I asked her for a referral to a psychologist. Q. And you got a medical certificate for one day? A. I'm not sure what you're talking about, I'm sorry. Q. You don't recall getting a medical certificate for a single day? A. No, I don't recall getting a medical certificate for a single day. There may, I don't recall. Q. You made a correction to your first affidavit to paragraph 9, exhibit H5. And you referred to being prescribed natural medication by your GP? A. Yes. Q. When did he prescribe - when did she prescribe the natural medication for anti-depression? A. I can't give you an exact date but it was prior to when I commenced taking the Sertaline. Q. Was it after 1 May 2012? A. It may have been on 1 May, it may have been at a later date, I honestly cannot tell you. I do not recall.
14. Mr Riordan, in his affidavit evidence stated that in his role of Deputy Director-General Corporate Services he was delegated with the authority to exercise all powers under Part 4A of the Teaching Service Act 1980, with regard to the management of conduct and performance.
15. Counsel for the Applicant drew Mr Riordan's attention to a document titled DET Delegation of Authority under the Teaching Service Act 1980 [the delegation from the Director-General to exercise all powers prescribed by Clause 10 of the Teaching Service Regulation 2007]. The document provides: 10 Medical examination (1) For the purpose of ascertaining the fitness of a member of the Teaching Service to perform his or her duties or to participate in any disciplinary proceedings relating to the member, the Director-General may direct the member to submit to a medical examination by a qualified medical practitioner selected by the Director-General. (2) The member of the Teaching Service must comply with the direction. (3) If the Director-General has issued any such direction to a member of the Teaching Service, the Director-General may also direct the member of the Teaching Service: (a) if on duty, to cease duty immediately, and (b) not to resume duty until the medical examination is complete and the medical practitioner concerned has furnished a certificate stating that the member is fit for work under the Teaching Services
16. Mr Riordan, under cross-examination, gave the following evidence: HOWELL Q. Now as I understand it from exhibit B38, that's the delegation document which was just tendered, a local school principal would not have the authority to engage this provision, that is to say clause 10, of the 2007 regulations to refer somebody off? A. I don't have the delegations in front of me but that's probably my understanding… Q. I'm happy to provide you a copy. A. Thank you. Q. Do you see the identified delegates there do not include a local school principal? A. Yes. Q. But nonetheless it does include regional officers such as the regional director? A. Correct. Q. And that would be someone with whom a local school principal would have fairly regular contact would it not? A. Yes. Not constant but regular. Q. Someone they could go to in the event that they needed assistance in dealing with something? A. More likely the first port of call under these would've been the school education director or a principal and the school education director then reported to the regional director. Q. I see. Now you had overall responsibility for employee performance, management conduct and also for work health safety is that right? A. I do. Q. And you had that at the time that you made the decision in relation to the applicant? A. Yes. Q. Now if a school principal has reasonable cause to believe that a teacher in their school is suffering from a mental illness and that mental illness is putting either the teacher or their staff, the staff otherwise at risk, you'd expect the principal to take some action to manage that circumstance? A. Yes. Q. There could be a range of different things which the principal could do, yes? A. That's correct. Q. So for example they could refer the individual to the Employee Assistance Programme? A. Yes. Q. They could request information from the person's treating doctor if they had one? A. The normal process you ask the person if that was acceptable to that person to seek information from the doctor, yes. Q. And if that information was not forthcoming, for whatever reason, and the principal still had a concern one of the things that you would expect a local principal to do would be to refer, at the very least, to refer the issue to someone further up the food chain, for want of a better way to describe it, in order that they could potentially secure a referral for an assessment of the kind contemplated by clause 10… A. Look that's possible. There's no requirement on an employee to give that permission so even if the secretary of the department, for example, the secretary can't compel a person to provide access to information. So, you know, I would expect if a principal is having difficulty managing a particular employee that they might seek assistance from their school education director, as it was in those days, and then from there to the regional director. Q. Can we just quickly go through some of those and source this to show the Commission where they are in the papers nonetheless, if nothing else. Can I ask you firstly please to go to page 39 of DEC1? Do you have that? A. I do. Q. Now this is the investigation report prepared by Barbara McVey? A. Correct. Q. Her recommendation, which I note was one of the matters you specifically refer to having considered, is on page 97 of 478, is that right? Make sure we're on the same page here. A. Yes. Q. And you'll note there are some three central recommendations, they relate to findings that a certain matter not be substantiated, that others are substantiated but do not amount to misconduct and others are substantiated and constitute misconduct, yes? A. Yes. Q. Now you didn't accept those recommendations of Ms McVey did you? A. Not all of them, no. Q. Not all of them, and I'll come to that. So the next thing you describe in your paragraph 9 as having considered is the findings made by Ms Thorpe and they start at page 36 of DEC1, is that right? A. Yes. Q. And I think in your letter of 3 October, and I don't need to take you to this for the moment, but in your letter of 3 October you refer to these findings, Ms Thorpe's findings, and you say you concur with those findings? A. Yes. Q. As I understand it you're accepting those findings as opposed to those of Ms McVey? A. That's correct. Q. All right. Now to the extent that they differ it's really as to whether or not the conduct which is identified as having been substantiated amounts to misconduct or not? A. Yes. Q. And again I will come back to that in a minute. Now other things that you were provided and as I understand it you considered, firstly is the document, starting at page 34 of DEC1, this is described as the additional information? A. Yes. Q. The next matter you had regard to was I think - of course there's Ms Thorpe's letter which is, I think it starts at page 31, but I don't think that takes it any further than the findings that Ms Thorpe made. So the next thing I'll take you to is the applicant's submission in response that starts at page 10 of DEC1? A. It does. Q. And then there's an additional document which is at page 8, starts at page 8 of DEC1, and this is a review of that submission done by a Phillip Samson, yes? A. Yes. Q. Do you accept - in making your assessment of the appropriate way to handle the findings of misconduct did you accept what Mr Samson has to say about what is and what is not relevant? A. Yes that's Mr Samson's view but I took that into account, yes. Q. I understand it's Mr Samson's view, I understand you say you took that into account. What I'm asking you is whether or not you considered those matters as relevant? So for example, to be fair to you there's a series of things, so I will go through them. A. Yes. Q. For starters the second paragraph, this is on page 8 of 478, Ms Gooch raises health issues, noted that she didn't take any absence, then says "Whereas the inappropriate conduct commenced in 2006 and continued through to May 2013"? A. Mm hmm. Q. And included nine formal letters of, reminders letters of direction. Was that the basis upon which? A. In my understanding it was May 2012 I think was the relevant date-- Q. So you understood it was 2012-- A. -- my understanding is, certainly from my recollection it's May 2012 and the investigation report is very clear about that. I would assume that's a typographical error by Mr Samson. Q. The reason I ask is he uses 2013 as the date on page 9 as well, hence I wanted to clarify what your understanding was. Nonetheless you understood that it was May 2012? A. Yes. Q. Moving down through this document on page 8, this is the third paragraph, "These staff members are not medical practitioners", no doubt that's right. They're repeating her own comment, or suggesting reasons then or justification for her inappropriate conduct. Firstly they're repeating her own comment. Did you adopt that as part of your reasoning? A. Yeah. Throughout the investigation report there's a series of quotes taken from the investigation interviews that occurred so they're not necessarily Ms Gooch's comments, they're the recollection of the various people she spoke to of her comments to them. Q. Can you show me anywhere in that investigation report where it says Ms Gooch has said to the people who you've identified as identifying her as suffering from mental illness, can you identify anywhere in the investigation report where she has said that to them and they are repeating her comments? A. That she's saying she's suffering mental illness? Sorry, could you repeat that question? Q. Well you've just said that you - I'm putting a proposition to you here based on something which Mr Samson has said in his report and I'm asking whether or not you've taken that into consideration and as I understood the answer that you've just given you had understood the investigation report materials to include statements made by persons who were in part repeating something that Ms Gooch had said to them? A. Yes-- Q. Can you take me to anywhere in the investigation report where Ms Gooch is identified as saying to any of the people who subsequently say they thought she was suffering from a mental illness, can you identify anywhere where she (at page 8) has said that to those people so it can be then said that they're repeating what she has said? A. So the comment, is that - so a comment like "I'm leaving the school" or, is that what you're trying to get to-- Q. No, no. The point is Ms Gooch - come back to the document page 8 -- Ms Gooch quoted comments to support her submission that she was unwell at this time, see that? A. Yes. Q. If we look at Ms Gooch's submission, page 11 of 478. You'll see there's extracts - you understand these are the extracts that are being referred to? A. I do. Some of them, yes. Q. Some of them. You say there are others? A. Well in the investigation report there are a series of comments I believe, I'd need to go back through that in some detail to pick those out, but my recollection is that some of the evidence that's presented there are some comments repeated by certain staff members in relation to what Ms Gooch is alleged to have said. Q. Well if you think this is wrong so be it but I want to put to you the proposition that other than saying something to Ms Smith herself there's no evidence that the applicant has said to Ms Milligan or Mr Williams "I think I'm unwell"? A. I don't recall anything of that nature, no. Q. And otherwise - so that was one aspect of what Mr Samson said. He then goes on to say, "or suggesting reasons and/or justification for her inappropriate conduct". That would be a relevant consideration for you, would it not, that is (at page 9) to say, if the applicant's colleagues perceived her behaviour to be indicative of someone who was unwell, as opposed to someone who's just being nasty, someone who was unwell, that would be a relevant consideration for you as a decision maker, wouldn't it? A. Yes, and certainly in making a decision of this nature my task is to go back through the primary evidence, so the record of interviews that occurred in relation to them, and the investigation report. Q. Mr Riordan, the answer was is it a relevant consideration. I'm not going to try and shut you down from elaborating upon your considerations. I will come to that in due course. A. Okay. Q. Thank you. Now, the next paragraph: "Ms Gooch raises a history of rheumatoid arthritis, ongoing pain and issues with medication. This does not explain her behaviour during this time." Did you adopt that as part of your reasoning? A. The issue of rheumatoid arthritis? Q. Well, more accurately, it doesn't explain her behaviour during this time? A. I found no evidence that the rheumatoid arthritis impacted her operation as a teacher other than the return-to-work plan that was put in place to accommodate that disability. Q. So you found no evidence that it impacted on her work as a teacher. A. Yeah. Her return-to-work plan was put in place to accommodate it, so that it was within the realms of her capacity, to me, is that issue in the workplace. So the school made accommodation by the fact there were certain things she was unable to perform. Q. Now, if someone is suffering from pain, constant pain, you would accept that that's something that could impact upon how they react to certain stressors. Would you accept that? A. I would accept that. Q. So whilst it might not explain her behaviour, to use the words on page 8, it would be a relevant consideration when assessing how to respond to inappropriate behaviour, or at least it may? A. Yeah, it certainly impacts upon the fitness to perform a full range of duties and could manifest itself in some way. I'm not a medical practitioner but I can understand that somebody in constant pain could be shorter of temper than somebody who's not suffering pain, for example.

The Applicant's Submission The applicant's submissions are summarised as follows:

1. The applicant has applied under s.84 of the Industrial Relations Act 1990 alleging her forced resignation from her position as a music teacher at Evans High School Blacktown, in the NSW Teaching Service, was harsh, unjust and unreasonable.
2. The dismissal came in the form of a direction to resign, a direction that the applicant complied with on 23 October 2013. Her resignation was at the initiative of her employer and was therefore a constructive dismissal: Alison v Bega Valley Council (1995) 63 IR 68 at 72.
3. Her dismissal was a form of 'disciplinary action' as defined in Part 4A of the Teaching Services Act 1980; and which can be imposed as the result of continued unsatisfactory performance (Division 3 of Part 4A, and in particular s.93J). It can also be imposed as the result of a conclusion that an officer has engaged in 'misconduct' (Division Part 4A and in particular s.93F).
4. The dismissal did not arise from the applicant's performance but from her behaviour. She did not deny much of the conduct alleged against her nor did she deny that much of her conduct was inappropriate.
5. Nevertheless, the applicant's dismissal was, in all the circumstances, harsh and unreasonable. The sanction of dismissal and being placed on the Never To Be Employed list was a grossly disproportionate response to the nature and seriousness of the conduct relied upon.
6. The applicant did not address in strict order the evidence related to the various allegations that comprised the basis for the disciplinary action against her. Whilst she did not deny much of the conduct alleged against her, she did deny some matters alleged against her.
7. An examination of the evidence revealed that of the twenty four (24) allegations that were considered by Mr Riordan to be misconduct, only allegation 5(viii) was in fact misconduct.
8. The applicant had, from the outset, admitted that her behaviour was inappropriate and expressed contrition and remorse for the conduct. The reports were in fact submitted, albeit two weeks after they were required. There was no evidence contradicting the applicant's claim that it was the first time she had submitted late reports. It was submitted that, while the Commission will find the conduct substantiated, it was not serious misconduct and did not provide any sound justification or support for the applicant's dismissal.
9. The applicant relied on the views expressed by the Court of Appeal in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [71], in relation to an allegation that the dismissal was harsh: [the Commission must] "identify the element of misconduct and assess its seriousness and weigh that against the consequences of the proposed dismissal".
10. The Commission is required to make specific findings about whether the misconduct occurred, and if so, whether it amounted to misconduct. In that connection: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [28].
11. In New South Wales Nurses' Association (on behalf of Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164; (2007) 164 IR 225, the Full Bench noted that where an allegation of misconduct is raised as a defence or justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden in an evidentiary sense to establish the allegation shifts, in this case, from the Union to the employer.
12. The Full Bench in Prior further noted at [13] that although the respondent in that case bore the onus to be discharged in accordance with the civil standard, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way.
13. The applicant contended that the following 7 Allegations were not proven: 1. Allegation 2(v): The applicant denied `receiving any emails from Mr Williams seeking information about her students save for one (a copy of which was supplied by the applicant) which related to practicum students to which she had replied. The evidence upon which the allegation was based was a passing observation by Mr Williams in his interview with EPAC. The applicant claimed that there was no evidence before the Commission (nor was there before Ms McVey) of the emails that Mr Williams stated he was able to produce, other than the one produced by the applicant, nor did it appear that Ms McVey sought to clarify the applicant's response with Mr. Williams. The allegation was not supported by the evidence. If Ms McVey had conducted a proper investigation and had requested Mr William's comment on the applicant's, there can be little doubt the allegation would never have been substantiated. The Commission wouldl find allegation 2(v) not sustained. 2. Allegation 2(vii)(b-(c): The applicant's evidence of Mr Williams having been directed to the documents, but the documents having been inadvertently removed and subsequently returned, was not contradicted and the Commission should find the allegation unsustained. 3. Allegation 2(xii): The allegation that the applicant had lied to her Head Teacher, Mr Williams, was unsustained. Under cross-examination by Mr Howell Mr Williams responded: Q. And the conversation that you'd had was - what she had said to you was "I've provided this support in the past and this is an example of it"? A. Yes. Q. What she didn't say to you was that she had had specific approval from the head teacher science to take the particular students that Ms Abawi had let go into her care for the particular period? She didn't say that she had that specific approval for those particular students from the head teacher did she? A. No she didn't. 4. Allegation 3(iii)(b)-(c): The allegation that various comments were made "to students". It was submitted there was no reliable evidence that those comments were made "to students". On the balance of probabilities, the Commission will find Allegation 3(iii) unsubstantiated. 5. Allegation 3(v): The applicant denied that she had done anything wrong in her discussion with Ms. Halliwell. Ms Halliwell had not given evidence in these proceedings. The evidence referring to Ms Halliwell was a file note attached to Ms Smith's statement dated 6 May 2012. The file note did not include anything about a discussion between the applicant and Ms Halliwell. It referred to Ms Smith having had a discussion with Ms Halliwell about a conversation Ms Halliwell had overheard between the applicant and Ms Milligan. There was no evidence in the file note that the applicant made "inappropriate comments" about the process to Ms Halliwell. Those conversations with Ms Dudley and Ms Halliwell were particulars of a headline allegation that the applicant had made "inappropriate and unprofessional comments regarding the merit selection process for the Head Teacher, CAPA". It was submitted that, in the absence of more, there was nothing inappropriate about a teacher having a conversation with a colleague in which they each express disappointment that a friend and workmate was unsuccessful in a promotion, nor in a teacher being responsive and age appropriate in answering questions from a senior student about the ramifications for that student upon the appointment of a new teacher. The Commission will find allegation 3(v) unsustained. 6. Allegation 5(iv): The applicant in her evidence had described unexceptional arrangements being reached with teachers which in no way supported the allegation. There was no evidence to the contrary, nor was there any evidence that it was inappropriate. The claim that the applicant would simply tell students they could come to her at any time as alleged in allegation 5(iv) was entirely unsupported by the evidence. The Commission will reject the allegation. 7. Allegation 5(vii)(e)-(f): It was submitted that the allegation was not proven. There was no dispute that the applicant did say the things referred to in the allegation, but they were said to Mr Dempsey, a friend as well as her head teacher. Saying those words to a long-time friend and colleague who was acting in a supporting capacity at a time when the applicant was highly distressed did not amount to misconduct.
14. The applicant submitted that allegation 2.1(a)-(b) and Further Allegation 1 were both deemed trivial: the first on the basis of the applicant's claim to have clearly explained to Mr Williams why she would not shake his hand and the second on the basis that, taken at its highest, it amounted to a trivial non-compliance with a requirement to complete a sign-on register.
15. Allegations 3(i) and 5(vi) were not in breach of the Code of Conduct. Further, according to the applicant, the behaviour complained off in the remaining allegations did not constitute misconduct.
16. One of the matters the applicant relied upon as in part explaining some of her behaviour in the 8 week period between 23 March and 25 May 2012, and in support of the submission that the dismissal was, in all the circumstances harsh and unreasonable, was the fact that she was suffering from a Major Depressive Episode at the time.
17. The management of Evans High School had, from almost the outset of her employment, taken steps to assist Ms Gooch to manage her severe form of rheumatoid arthritis. Stress aggravated her arthritis increasing her pain and hindering her ability to move "which then in turn tends to have an adverse effect on [her] mood due to the amount of pain [she] is in". The applicant stated that she did not, and never had, denied that she had something of a "volatile temperament" and when provoked can "initially over-react when presented with information that upset [her]".
18. The applicant submitted that documents in evidence, reflecting her state of health included her email to Ms Smith dated 25 November 2011, describing her as "shaking", "can't think .... can't eat", that "it is very rare that I stay angry about something", that she was "crying all day" and had been physically sick.
19. The applicant consulted Dr Balu, her general practitioner, on 1 May 2012 when she realised that she was not well. She suggested to Ms Smith and the regional Health and Safety Officer that she was suffering from severe depression and anxiety at a meeting held on 30 April 2012 to update her management plan associated with her rheumatoid arthritis.
20. In a letter dated 1 May 2012, Dr Balu referred the applicant to Ms Jennifer Andersen, psychologist. The applicant consulted Ms Andersen on 3 May 2012. Ms Andersen advised Dr Balu on 8 May 2012 that two separate tests assessed the applicant as suffering from varying degrees of depression and stress and was exhibiting symptoms of Post Traumatic Stress Disorder.
21. The applicant pointed out that employees can suffer entirely bona fide and significant mental illnesses as the consequence of entirely lawful and reasonable conduct of their employer - the reason for the enactment of s11A of the Workers Compensation Act 1987.
22. The applicant's mental illness was relevant because it provided an explanation for the "escalation", as Ms Smith described it, of the applicant's behaviour in the short period of time in which the conduct relied upon to remove the applicant occurred.

Dismissal Harsh, Unjust and Unreasonable

1. The Full Bench of the Industrial Relations Commission of NSW has continually stressed that the words harsh, unjust or unreasonable in s. 84(1) of the Act were "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Department of Health v Perihan Kaplan [2010] NSWIRCOMM 65 at [27]. Whilst the meaning of those words may overlap, the Commission is required to make a specific finding having regard to these statutory criteria: National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 44 at paras [64] and [65].
2. There is a long line of authority of this Commission and its predecessors that confirms that the Act "requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal". In Little v Commissioner of Police (No 2) (2002) 112 IR 212 the Full Bench held at [71]: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of their being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at 233 held: In some cases the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.
3. It was noted in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [71] that the Commission is required to; identify the element of misconduct and assess its seriousness and weigh that against the consequences of proposed dismissal. The Commission is also required to have regard to all the relevant circumstances and taking into account matters outlined in s.88 of the Act. In the case of an application based on harshness, the Commission is also required to assess the gravity and nature of the conduct with a view to assessing the proportionality of the step of removal.
4. The Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 rejected submissions that the Commission should accord the public interest greater weight than other factors when determining whether a removal under was harsh, unreasonable or unjust (at [67]-[68]). The Full Bench emphasised the necessity to give consideration to the consequences facing an employee and to the mitigating factors, including the immediate consequences of dismissal, such as the impact on superannuation, following his/her removal or dismissal from employment, in the context of a consideration of whether that dismissal was harsh: at [71], [83] - [69].
5. In Commissioner of Police v Evans [2006] NSWIRCOMM 170 at [7] Walton, J then Acting President stated: Nor do I agree with the appellant's submissions that Boland J failed to apply the tripartite test correctly by focusing too much on the adverse personal circumstances befalling the respondent as a result of his removal. Boland J summarised the respondent's submissions in support of the contention that his removal was too severe at [39]. If his Honour had relied solely upon the last two points (the fact that Mr Evans is married with two young children and the impact of removal on his economic and personal situation), the appellant's submissions would have some purchase. But this is not the case. In assessing whether the removal was harsh, Boland J correctly considered the proportionality of the penalty to the misconduct. His Honour's finding that the misconduct was aberrant (at [44] and [51]) and his Honour's opinion that it would never be repeated (at [51]), were fundamental to this assessment.
6. The applicant submitted: The central question for the Commission is whether the dismissal was harsh, unjust or unreasonable. Not simply whether the conduct amounted to "misconduct" for the purpose of the Teaching Services Act. It is submitted that the bulk of the conduct described in the 8 week period between late March and late May 2012 reflects minor workplace conflicts of a relatively low level. The exchanges on 24 May 2012 appear to reflect a heightened level of emotion and anger, but objectively assessed it goes no further. In substance, much of the conduct alleged in this case are breaches of the Code of Conduct requiring teachers to treat one another with courtesy and professionalism. Courtesy, professionalism and working collaboratively does not require that individuals will always agree. A requirement to behave in that way does not turn every argument about how to approach a matter in a workplace, including an occasion heated argument, into a breach of the Code of Conduct.
7. The applicant, on the need to consider the proportionality of the step of dismissal in a case such as this, drew the attention of the Commission to the observation made by Haylen J at first instance which was endorsed by the Full Bench in Commissioner of Police v Sewell [2008] NSWIRCOMM 147 at [20]: [Codes of Conduct and statements of values] should not be treated as a monolith but should be treated as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review.
8. Attention was drawn to the fact that her past history played a role in the decision by Mr Riordan to dismiss Ms Gooch as her conduct in the relevant period was treated as a continued pattern of behaviour. The applicant submitted that the proper approach to an employee's prior disciplinary history when assessing whether a dismissal is harsh, unjust or unreasonable was conveniently summarised by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [46] and [47] 46 Earlier incidents of misconduct by an employee in the course of his or her employment with an employer may be relevant to the question of whether the employee has demonstrated such a disregard for the contract of employment, or one of its essential conditions, that the employment relationship is no longer tenable or that the Parties to it are no longer compatible given their respective rights and obligations under the contract. That is, by his or her conduct the employee has demonstrated an intention that he or she no longer intends or wishes to be bound by the contract. 47 Whether an employer is entitled to rely upon earlier misconduct may involve such questions as the nature of the conduct and whether, for example, it was trivial or serious; whether it demonstrated a persistent course of conduct that evinced an intention not to be any longer bound by the employment contract; whether it was too far removed in time to be relevant; or whether the employee's otherwise good employment record outweighed the earlier misconduct making it irrelevant or only marginally relevant.
9. The applicant submitted that the vast bulk of the conduct was of a low level of seriousness. There was no evidence of any adverse effect of the behaviour. Insofar as Mr Riordan took into account the applicant's employment history, it did not appear he gave any material weight to the favourable aspects of the applicant's history, including the references from Messrs Dempsey and Thomson. Mr Riordan did not take account of the effect of the dismissal on the applicant, contrary to the respondent's own policy. Mr Riordan's conclusion that "poor health cannot be held solely responsible for breaching lawful directions", and his approach as otherwise described was, it was submitted, inconsistent with the approach mandated by the Guidelines for the Management of Conduct and Performance. He identified a pattern of behaviour, and appeared to have embraced the view that her employment history indicated she would not change. Contrary to that view, taking remedial steps had, in the past, been successful in having the applicant correct her behaviour.
10. It was also submitted that the evidence demonstrated that the impact on the applicant was grossly disproportionate to the nature and seriousness of the conduct relied upon to justify her dismissal: The termination of my employment has had a devastating effect on me both financially, emotionally and for my vocational career .... My life goal has always been to be a music teacher. It was submitted that it simply cannot be that conduct of the kind described, manifesting itself at a time when the applicant was suffering from a significant mental illness that clearly impacted upon her capacity to function and deal with the demands of work, justified bringing an end to the career of a young and otherwise dedicated and capable teacher. It was also submitted that the dismissal was harsh in that it was not only a disproportionate response to the conduct relied upon when viewed in all the circumstances but was also disproportionate with regards to its impact on the applicant.
11. The applicant sought reinstatement Orders pursuant to s.89(1) with back pay and continuity of employment, or alternately, re-employment Orders pursuant to s. 89 (2) with back pay and continuity of employment pursuant to s 89 (3) and (4).
12. In the further alternative, if reinstatement and re-employment were considered impracticable, the applicant sought an order for monetary compensation.
13. The applicant referred to the decision in NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [49] and to Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 which required the Commission to have regard to all the relevant circumstances of the case when considering whether reinstatement was practicable and to evaluate the practicability of a reinstatement order in a common sense way.
14. The Commission was reminded of the need for it to carefully scrutinise any claim by an employer that reinstatement was inappropriate due to breakdown in the relationship. Cahill VP, in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 [at 50], held: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims [that an employment relationship cannot be re-established] made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination
15. The applicant submitted that the onus of establishing that reinstatement was not practicable rested with the respondent: JBS Australia Pty Ltd v Challenger [2015] FWCFB520 at [19].
16. The applicant observed that the respondent had a very large and diverse workforce. The present case was not a case where "any ripple on the surface of employment relationship will destroy its viability". The applicant relied on the decision of the Full Bench in Hargreaves at [50]: Trust and confidence is a necessary ingredient in any employment relationship: Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 at 190. In Perkins (which was followed by the Full Bench in Budlong) it was also stated: What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
17. The applicant referred to the fact that she did not deny that much of her conduct was inappropriate; that she had not failed to accept responsibility for her conduct; nor failed to apologise for her conduct. She further referred to the fact that she undertook counselling to help her manage her mental illness, and, in consequence of that counselling: I believe my depressive illness adversely affected some of my past behaviour especially prior to being removed from Evans High School. Through my treatment and recovery, I have developed coping mechanisms and strategies to enable me to more effectively communicate. I have also improved my ability to see both sides of an issue [if] it arises.
18. The applicant stated that there was nothing in her discipline history that could be relied upon as rendering reinstatement impracticable. Many of the matters dated back many years. It was only after the applicant's conduct on 23 March 2012 that the Principal, Ms Smith, requested that disciplinary action be taken.

The Respondent's Submission The Respondent's submissions are summarised as follows:

1. The respondent expressed concern at the fact that, despite her admissions that her behaviour had been inappropriate, the applicant continued to assert that her dismissal was "grossly" disproportionate to the nature and seriousness of her conduct. During cross-examination, the applicant made admissions which, on their face, suggested a degree of insight or recognition that her conduct was inappropriate and she also demonstrated some contrition. However, from the list of the allegations that led to her termination, the applicant declared in submissions that the behaviour in those allegations, with one exception, was consistent with the respondent's Code of Conduct or was either trivial, not misconduct, or unsubstantiated. That submission by the applicant, in view of the seriousness of the allegations, nullified the hope, created by her admissions, that she can modify her conduct.
2. Despite the hearing of this matter and the alleged recovery of the applicant from any form of mental illness, she admitted to only one act of misconduct [allegation 5(viii)] but went on to excuse that behaviour as not serious. She did not address allegations 2(xiii), 5(iii) or 6 despite the fact that they were admitted.
3. The applicant's submission has constantly stressed that her conduct cannot be misconduct since it was not "deliberate or wilful or of such a nature as to strike at an essential element of the contract of service' based on case law relied on. It was submitted that the applicant was in error in that regard. It was made clear in Re Dismissal of Union Delegate at Homebush Abattoir [1966] AR (NSW) 371 that it was the test to support summary dismissal. However, the Applicant was not summarily dismissed but directed to resign on the basis of misconduct. By inviting the Commission to seek to apply the serious misconduct standard, the applicant was also inviting the Commission to fall into the same error that Deputy President Harrison fell into in Pearcey and Others and the Department of Attorney General and Justice - Corrective Services [2012] NSWIRComm 132 which was rejected by the Full Bench in Department of Attorney General and Justice - Corrective Services and Richard Woelfl [2013] NSWIRComm 73 at [83]: The PSA contended that, in truth, his Honour concentrated upon whether the officer had engaged in misconduct in [245] of his decision because it was this expression he employed in the first sentence of that paragraph (in which he referred to Officer Woelfl's failures). However, this submission cannot be accepted. The Deputy President expressly found that the conduct of Officer Woelfl should not warrant dismissal because, even though it was considered 'misconduct', it did not satisfy the higher test of 'serious and wilful misconduct'. The conclusion at [245] of the decision at first instance was central to Deputy President Harrison's adjudication with respect to the application made on behalf of Officer Woelfl. It was attended by appealable error in two respects. First, whilst it was relevant for his Honour to consider whether Officer Woelfl had engaged in misconduct, for the purposes of considering the application brought under s 89(7), the erection of a test, in this respect, as to whether the conduct constituted serious and wilful misconduct was erroneous (for reasons earlier discussed). Secondly, the distinction drawn by the Deputy President between 'misconduct' and 'serious and wilful misconduct' was the fulcrum upon which his Honour made orders restoring Officer Woelfl's employment to a demoted position, a decision which was beyond power.
4. The respondent pointed out that for the conduct to constitute misconduct, it need not be "deliberate or wilful or of such nature as to strike at an essential element of the contract of service".
5. It was pointed out that no single allegation led to the termination of the applicant's employment. The applicant's submission concentrated on the trees but failed to appreciate the forest. Each incident built on the other and it was the weight of incidents built on top of the applicant's poor history that forced the respondent to act "just as snowfalls drive the movement of a glacier to the sea".
6. The applicant was directed to resign for misconduct which occurred in the period from 3 October 2013 until her resignation which was submitted on 23 October 2013. The respondent conceded that it bore the onus of establishing the misconduct detailed in the allegations: NSW Nurses Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service (2007) 164 IR 225; Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [16].
7. Given the allegations and given the following reasons, the Commission should be comfortably satisfied that the respondent has met the onus to establish the misconduct upon which it relied.
8. The Respondent submitted that the Commission should find the evidence in these proceedings was as set out in the summary of evidence attached to the respondent's written submissions.
9. It was noted that the applicant, in her written submissions, sought to characterise her misconduct as simply no more than a breach of the Code of Conduct. The breach of the directions given to the applicant [Allegation 6] were above and beyond a simple breach of the Code of Conduct especially in light of the statutory regime and in particular the terms of 95C of the Teaching Service Act and Regulation 5 of the Teaching Service Regulation 2007. The directions were more than mere "warnings" - they were directions for the purposes of Regulation 5 of the Teaching Service Regulation 2007. Further, the Applicant's history of continued failure to comply with directions materially affected the objective assessment of the seriousness of the Applicant's conduct when considering whether the dismissal was "unfair". That is, despite a history of directions the Applicant continued to breach the Code of Conduct and the directions. Clearly, the Applicant's conduct was considerably worse than an employee who did not have the history of breaches of such directions and earlier breaches of the Code of Conduct.
10. It was further submitted that the test was not serious misconduct but misconduct.
11. The respondent stressed that, contrary to the applicant's submission, it did also rely on a.93C (a) and (b) of the Teaching Services Act to establish misconduct.
12. The respondent noted that the applicant had conceded that, in relation to allegation 2 (viii)(a) and (c), it was likely that when she entered her faculty room, "where Mr Williams and other staff were present, and angrily screamed at them" that she said the words attributed to her in the allegation and that she tore up the letter of direction. The allegation was admitted to a large degree by the Applicant who also conceded that her behaviour was unacceptable. The evidence of Mr Williams supported the allegation. Given the admission, it would be inappropriate therefore for the Commission to accede to the submission of the applicant to draw a Jones v Dunkel inference in relation to that allegation.
13. It was submitted that the applicant misunderstood the allegation as referring only to verbal or physical aggression. The respondent submitted that the evidence quite clearly demonstrated that particulars (a) and (c) were established.
14. The respondent noted that the applicant admitted and regretted the conduct complained of in allegation 5 (viii). The respondent agreed that the conduct complained of would not, by itself, justify dismissal, however, when considered in conjunction with all of the other proven allegations, it could form the basis for dismissal.
15. The respondent noted that, In regard to her conduct in Allegation 2(vi), the Applicant relied upon her apparent distress to discount the importance of her behaviour and conduct. She also asserted that at that time she was suffering a Major Depressive Episode. Nevertheless, the evidence demonstrated that the applicant's treating doctor, Dr Balu, only thought she was ill on 3 May 2012 and her psychologist, Ms Anderson, albeit later in time, did not believe that the applicant was unfit for work at that point in time and could continue to work.
16. The respondent noted that Dr Balu was not called to give evidence and the only medical certificate from him in the relevant period was for a single day's absence. The respondent submitted that it would be open to the Commission to conclude that Dr Balu gave the Applicant one day's absence on 3 May 2012 to allow the Applicant to consult Ms Anderson on that day rather than attend school or, alternatively, because the Applicant was suffering a brief anomaly.
17. The respondent also noted that Ms Anderson, on 3 May 2012, had not recommended, following the consultation, that the applicant take a period of leave. By inference, it meant that Ms Anderson believed that the applicant could continue to work. Further, despite Ms Anderson's concern about ongoing support and therapeutic intervention for the applicant, she did not instigate any strategies in that regard and there was no evidence that Dr Balu instigated any himself.
18. The respondent suggested that the Commission should be reluctant to place too much weight on the evidence of Ms Anderson for the following reasons: firstly, she conceded that her reports were subjective; secondly, in preparing her reports she assumed that what she was being told was truthful; and thirdly, the applicant had not been truthful with Ms Anderson as she had told her that she had not been involved in an incident until 2012, that she was never angry until 2012, that her anger and resulting language was not directed at other staff other than senior staff members, that her language was not present with her teaching of students or directed at other staff other than the Principal and Deputy Principal; and, that her symptomology did not become apparent until 2012.
19. The respondent submitted that the applicant was seeking to avoid all responsibility for her actions. Such deflection ignored her history of misconduct and the evidence of her Doctor and psychologist that the applicant was fit for work in the relevant period but for 3 May 2012. It also demonstrated a lack of insight and reflection at the further problematic conduct on her part should the Commission order her reinstatement or re-employment.
20. The respondent raised the issue of the applicant's credit. The case did not really turn on the issue of credit given the nature of the applicant's submissions. Nevertheless, the issue of credit remained important in respect whether the decision to dismiss was harsh, and in the event it was what if any remedy should be awarded to the applicant.
21. It was submitted that there were five factors to be considered in relation to the issue of credit: firstly, the inherent plausibility or otherwise of the Applicant's evidence; secondly, her honesty and reliability discerned from the manner she gave evidence; thirdly, whether her evidence contained fabrications, misrepresentations or contradictions; fourthly, whether there was an overall consistency in her version of events tested against prior representations; and fifthly, whether there were any contradictions in her evidence.
22. It was further submitted that the Commission ought to make adverse findings as to the Applicant's credit after assessing the above factors. It was pointed out that the respondent's witnesses gave their evidence openly as they had no reason to lie nor was it suggested that they did.
23. The respondent described the manner in which the allegations against the applicant and her dismissal were appropriately handled within the requirements of the Teaching Services Act 1980, the Teaching Service Regulation 2007 and the Respondent's Code of Conduct.
24. In particular, the Respondent focused on ss. 5A (Protection of Children); 8 (Delegations of functions by Director-General); 93B ('Disciplinary action' defined); 93C ('Misconduct' defined); and 93F (Powers of the Director-General) of the Teaching Services Act 1980; Regulation 5 of the Teaching Service Regulation 2007 (includes requirement to comply with lawful directions); and, s.4.1 of the Respondent's Code of Conduct (Requirements of departmental employees).
25. With respect to s.5A of the Teaching Service Act, the respondent drew the attention of the Commission to the observations made by Sams DP in New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32 at [172] and [173]: 172 There is no doubt that the imperative on the Commission when determining this matter is to ensure the protection of children. This imperative arises from the 2006 amendments to the Teaching Service Act 1980 which relevantly provide as follows: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 173 When introducing the above amendments to the Teaching Service Act, (No 24 of 2006), the Minister for Education and Training, the Hon. C Tebbutt, MLC said: As agencies responsible for the care and welfare of students the Department of Education and Training and TAFE have an obligation to protect the children and young people in their care from sexual, physical and emotional abuse and neglect and from other inappropriate conduct... For the first time express provision is made in these Acts for paramount consideration to be given to the importance of protecting children when dealing with staff disciplinary matters. Departmental decision-makers will need to give paramount consideration to the need to protect children when deciding how to deal with teachers and other staff who are subject to disciplinary action for misconduct or unsatisfactory performance. Courts reviewing disciplinary outcomes for TAFE teachers, school teachers and other people who work in schools will also be required to give paramount consideration to the need to protect children when dealing with an appeal or other court action taken by an employee against any decision made by the department or TAFE in the disciplinary context.
26. The respondent submitted that, given the initial and subsequent admissions of the applicant, the dismissal cannot be unreasonable or unjust because the employee was guilty of the misconduct: Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at (23] and [25]).
27. What remained for consideration was the issue as to whether the dismissal was harsh. The Full Bench observed [at 47]: These factors, in particular his length of service, commitment to his position and age, are factors which illicit some hesitance in finding that the dismissal of the respondent was not harsh. However, when these factors are balanced against the seriousness of his misconduct and the absence of any remorse or contrition for that conduct, we are compelled to conclude that [it has not been] established that the dismissal was harsh.
28. It was submitted that it was apparent that the applicant had repeatedly disobeyed instructions and breached policies applying to her employment.

LEGAL FRAMEWORK

1. There are three sources underpinning the Legal Framework of this matter in addition to the respondent's Code of Conduct: The Teaching Services Act 1980 The Teaching Service Regulation 2007 The Industrial Relations Act 1996
2. The sections of the Teaching Services Act that are relevant to this case are: 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b)in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 8 Delegation of functions (1) The Director-General may delegate to an authorised person any of the functions of the Director-General under this Act other than: (a) this power of delegation, or (b) the functions conferred or imposed under section 100. (2) A delegate may sub-delegate to an authorised person any function delegated by the Director-General if the delegate is authorised to do so by the Director-General. 93B Definitions (1) In this Part: disciplinary action, in relation to an officer, means any one or more of the following: (a) dismissal from the Teaching Service, (b) directing the officer to resign, or to be allowed to resign, from the Teaching Service within a specified time, (c) except in the case of a senior executive officer - reduction of the officer's salary or demotion to a lower position in the Teaching Service, (d) the imposition of a fine, (e) a caution or reprimand. 93C Meaning of "misconduct" (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a protected disclosure within the meaning of that Act, (d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person. (2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened: (a) while the officer concerned was not on duty, or (b) before the officer was appointed to his or her position. (3) In this section, internal disclosure means a disclosure made in good faith by a person regarding the alleged misconduct of another person. 93F Dealing with an allegation of misconduct (1) If an allegation is made to the Director-General that an officer may have engaged in any misconduct, the Director-General may do either or both of the following: (a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, (b) take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Director-General may, if the Director-General is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. (3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Director- General is considering taking. (4) Even though the Director-General decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Director-General may, at any stage of the process: (a) decide to take remedial action with respect to the officer concerned as well as dealing with the allegation as a disciplinary matter, or (b) decide to take remedial action with respect to the officer instead of dealing with the allegation as a disciplinary matter, or (c) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter. (5) A decision under this section by the Director-General to take remedial action with respect to an officer does not, if it appears to the Director-General that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Director-General from dealing with the alleged misconduct as a disciplinary matter under this section.
3. Regulation 5 of the Teaching Service Regulations states: 5 Compliance with directions (1) A member of the Teaching Service must immediately comply with any lawful direction given by a person who has authority under the Act or this Regulation to give the direction. (2) A request for the review of a direction may be made by or on behalf of one or more members of the Teaching Service by means of a notice in writing given to the person who gave the direction. (3) The person to whom such a notice is given must immediately send it to the Director-General or to an officer authorised by the Director-General in writing for the purposes of this clause. (4) The making of a request for the review of a direction does not relieve a member of the Teaching Service of his or her obligation to comply with the direction as far as is reasonably practicable.
4. The Industrial Relations Act 1996 relevantly provides: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. (2) An application may be made on behalf of the employee by an industrial organisation of employees. (3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually. (4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given-its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
5. Section 4.1 of the Code of Conduct states: 4.1 As a departmental employee, you are expected to: i. perform your duties to the best of your ability and be accountable for your performance. ii. follow reasonable instructions given by a supervisor iii. comply with a lawful direction. iv. carry out your duties in a professional, competent and conscientious manner, while seeking suitable opportunities to improve your knowledge and skills, including through participation in relevant professional development. v. act honestly and in good faith in providing advice or service that is honest, impartial and comprehensive, irrespective of your personal views on a matter. vi.be courteous and responsive in dealing with your colleagues, students and members of the public. vii. work collaboratively with your colleagues. viii.be mindful of your duty to the safety of yourself and others and be aware that if your conduct has the potential to damage the reputation of the Department, even if it is in a private capacity, this could lead to disciplinary action.

CONSIDERATION

1. The applicant stated in her Personal Statement: My personality is the type that I cannot walk past a problem without trying to solve it. … I have attempted to involve myself in nearly all aspects of the school where practical and to do this to the upmost of my ability. ... On occasion, I have found myself in conflict with someone. This has always been born out of my attempts to provide the students with the best possible learning opportunities.
2. The evidence in these proceedings has provided a number of examples of her attempts to involve herself in nearly all aspects of the school and how the conflict she has created has been in breach of the Code of Conduct. While her dedication to the students is commendable, her focus on the students has led to behaviour which displays neither respect for the boundaries of her own employment nor for the rights of the principal or fellow teachers in regard to their own boundaries.
3. The applicant cannot claim, in her defence, that she was unaware of the Respondent's policies. In fact, the problem is that she apparently interpreted them as a means by which she could pursue various claims against management regarding her perceived problems within the school.
4. It is noted that from pages 97 to 112 of Annexure SG4 of Exhibit H5, the applicant has dissected the Code of Conduct; Responding to Suggestions, Complaints and Allegations; Guidelines for the Management of Conduct and Performance; Complaint Handling Policy Guidelines; Occupational Stress-Hazard identification and Risk Management; and Occupational Stress Overview.
5. Whilst I have read all the affidavits, transcripts and submissions related to the relevant allegations, I do not intend to revisit them now as I have adequately addressed them in the body of this decision. There are however, two of those allegations that I wish to refer to specifically.
6. Firstly, allegation 2 (xii): On one occasion [the Applicant] lied to Mr Williams when [she] informed him that [she] had the permission of the Science Head Teacher to take Year 7 Science students out of their Science classes and let them stay with [her], if and when they felt angry in class or had any issue with the classroom teacher.
7. Whilst I accept the evidence of Mr Williams that the applicant had in fact made such statement to him, I find that the fact that she had not contacted the relevant Head Teacher was a breach of her obligations under ss vi and viii of the Code of Conduct, namely "be courteous and responsive in dealing with your colleagues, students and members of the public" and ""work collaboratively with your colleagues".
8. In Further Allegation 1 it was alleged that on Thursday, 15 November 2012, the applicant "signed the sign on sheet at Penrith Regional Office as attending from 9.00 am to 4.00 pm when [she] was not in attendance at the office during this period of time". I reject her response that "there is simply no evidence about what was required of the Applicant in the completion of timesheets". Allegation 5 (ii) [which was considered by Mr Riordan to constitute misconduct] alleged that "on a number of occasions [the Applicant] did not follow school protocol in that [she] failed to sign in and out of the school including but not limited to an occasion on 7 May 2012". The Applicant responded to that allegation: Although I cannot recollect, I believe that it is likely that I did not sign in on 17/5/12. I appreciate that school policy requires all staff to sign in. There is no issue with this. I regard the Applicant's conduct in Further Allegation 1 as quite serious. I do not accept the view expressed in the applicant's submission that "Taken at its highest, it amounts to a trivial non-compliance with a requirement to complete sign on register". The evidence clearly demonstrated that she did complete the sign on register but with false information.
9. The applicant has sought to excuse her behaviour and conduct on the basis of her stress and state of depression. That argument lacked credence on a number of grounds. Firstly, her general practitioner had claimed that she was fit for work with the exception of 3 May 2012 which the day her consultation with Ms Anderson, her psychologist, was scheduled. Secondly, Ms Anderson conceded her reports were subjective and that they were based on what she had been told by the applicant. There was evidence to suggest that the applicant had been less than truthful to Ms Anderson in a number of her answers. Thirdly, her psychologist believed the applicant could continue to work and, despite her intervention, she did not initiate any strategies following the consultation.
10. I have preferred the evidence of the respondent's witnesses to the evidence given by and on behalf of the applicant. I find that the matters identified by Mr Riordan constitute misconduct, particularly in light of the fact that the applicant "does not deny much of the conduct alleged against her - nor deny that that much of her conduct was inappropriate".
11. Having found that misconduct occurred, I further find that the dismissal cannot be unjust: Industrial Relations Secretary v Fraser (No 2) [2015] NSW IRComm 10 at (23] and [25]). There was no acceptable evidence that would give the Commission hope that the behaviour would change in the future.
12. With misconduct made out there is still a duty upon the Commission to consider the Applicant's length of service and previous work history when addressing the statutory test of harshness and unreasonableness. During the nine-year employment history of the applicant, her service history had been plagued by disputes with parents, colleagues, her Head Teachers and Principals.
13. There appears to be no future for her in the public school system as Mr Riordan had advised her in his letter of 3 October 2013 that he intended arranging for her name to be placed on the Not to be Employed List (NTBE), a confidential database to which principals and managers can refer if a person seeks employment with the department.
14. Whilst the Applicant is a young woman in her late thirties who has found it difficult to secure a suitable position, there are other avenues of schooling available to her. Further, her conduct that was deemed to be misconduct followed a long history of ignored warnings and repeated misbehaviour.
15. It is reasonable that Mr Riordan, after having made the decision to dismiss the applicant, would take steps to ensure that the respondent was protected from any further employment relationship with a person with the behavioural history of the applicant.
16. The Commission, as currently constituted, therefore does not find the actions of Mr Riordan in arranging to have the applicant's name placed on the NTBE list to be either harsh or unreasonable.
17. In conclusion, the Commission finds: (1) The applicant's conduct breached s.93C of the Teaching Services Act 1980; Regulation 5 of the Teaching Service Regulation 2007; and s.4.1of the Code of Conduct of the New South Wales Department of Education and Communities. (2) The applicant was made aware of the allegations against her and was given every opportunity to defend herself against the allegations. (3) There were no issues of procedural unfairness; (4) The imposition of being placed on the Not to be Employed List was neither harsh nor unreasonable. (5) The section 93F order made by Peter Riordan, Deputy Director-General, Corporate Services, was not 'beyond power' and was neither 'harsh, unreasonable nor unjust' within the meaning of the Act.

ORDERS

1. The application by Ms Stephanie Gooch pursuant to s 84 of the Industrial Relations Act 1996 is hereby dismissed. I Tabbaa AM COMMISSIONER

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2017