This is an application pursuant to s 84 of the Industrial Relations Act 1996 ('the Act') brought by Mrs Susan Buchanan in relation to her dismissal from her employment by the then-Department of Education and Communities effected on 3 March 2015.
The fact that the dismissal occurred 18 months ago is another matter, together with those reasons I earlier set out before the luncheon break, together with my obligations under s 162(2)(a) of the Act and, under the Civil Procedure Act 2005, that I give the decision and reasons in short extempore form today rather than reserve to give a written decision with the likelihood that that decision would not emerge until the new year.
I readily accept that it is a necessary function of a court or tribunal to provide reasons for a decision. I propose to provide those reasons together with my decision now. The fact that I do not refer exhaustively to the submissions helpfully advanced by counsel does not mean that I have not read them, the reverse is the case. The fact that I do not refer to elements of evidence that were addressed in submissions does not mean that I have not read the evidence or listened to the evidence, the reverse is the case. I have had regard to the matters in s 88 of the Act although I will not go on to enumerate them all and I give my decision mindful, I believe, of the relevant case law surrounding the exercise of the Commission's jurisdiction under chapter 2 part 6 of the Act even if I do not cite it in terms.
The applicant, Mrs Susan Buchanan, was dismissed when she declined to resign her employment following a determination that her performance was unsatisfactory. That determination sprang directly, on my view of the evidence, from her placement on a Teacher Improvement Program or TIP as I will refer to it throughout this decision, conducted between 13 August 2014 and 14 November 2014. At the conclusion of the TIP the principal, Mrs Banks, found that Mrs Buchanan did not meet the required level of performance. I observe that of nine lesson assessments carried out during the TIP, eight were found to be unsatisfactory and one satisfactory.
I was asked to find that the placement of Mrs Buchanan on the TIP was itself contrary to the guidelines covering TIPs and that that rendered the dismissal with eventuated necessarily unfair, as it meant that the TIP was unlawful or at least contrary to policy. I disagree.
While it is the case that in a given case breach of an employer's own policies can render dismissal unfair, it is not necessarily so, and Antonakopoulos v State Bank of NSW (1999) 91 IR 385 and similar cases do not say otherwise. Indeed that leads me into this proposition. What the Commission has to address under s 84 of the Act, or under part 6 of chapter 2 of the Act, is whether a dismissal was harsh, unreasonable or unjust. Lawfulness of an action taken by a respondent, or observance of its policies, may well be a consideration but they do not detract from the actual consideration the Commission is required to carry out, that is, drawing on Bankstown City Council v Paris (1999) 93 IR 209 and the cases following it, whether a dismissal was unfair assessed by the tripartite test to which I have referred. That is the only basis on which s 84 applications can be determined, there is no other.
Having listened to the evidence and read over it again in transcript, the following matters are evident to me.
As a matter of objective fact, I am satisfied that the applicant did not perform satisfactorily in her TIP. The view that the applicant had not performed satisfactorily in the TIP was a view open to Mrs Banks, a person of significant experience, and that is the view she came to. She was entitled to come to that view, and whatever deficiencies the initiation and indeed the conduct of the TIP may be claimed to have had, and I will return to that matter, the applicant was wrong to say that she did not need to be on it. On my view of the evidence, she did.
I am satisfied on the evidence that there was a proper basis to have concern for her teaching effectiveness. Those matters essentially go to classroom conduct, lesson planning and her approach to her relationship with students. It is trite to observe but I observe it in any event, that much has changed in the last 20 years in relation to how a teacher may conduct themselves in relation to students. Whatever view one forms about that change, it is a fact of teaching life that it is so. On the evidence, that had not at the time of her dismissal been properly apprehended by the applicant. I draw that conclusion from a number of parts of the evidence about her particular interactions, including physical interactions, with some students.
I note particularly the applicant's repeated insistence throughout her evidence, including her oral evidence, that apart from a couple of matters, she did not need to improve her teaching. On all of the evidence I find that there were significant areas in which she did need to improve, both as to teaching and as to her understanding of how a teacher works in the modern world. She, on my reading of her evidence, had no intention of changing her teaching conduct, some elements of which were, on my view of the evidence both not efficient and effective and also inappropriate. She did not see a need to change them because she could not see anything wrong with the methods she adopted. In this she was, in my view, mistaken.
It is clear that Mrs Buchanan at all times held the view that she ought not be on a TIP. I am satisfied on the evidence that she worked out of that mindset at all times during the TIP. It appears to me that that affected her performance under the TIP and whilst it is true that the structure and content of a TIP is a matter for negotiation, if a school principal determines that a teacher under his or her direction is to be on a TIP, the teacher is entirely obliged in my view to make every effort to conform with that TIP and to perform to what is required.
An employed teacher does not have the ability to reject a principal's view of whether or not he or she needs improvement. If it is determined that a TIP is necessary, that can be canvassed by, for example, a teacher's representative union and there is an ability to negotiate the content of a programme, but if a view is formed that a TIP is to be done, then it is to be done.
The matter does not of course end there; the question as I have said earlier and I will repeat throughout this decision is whether, in all of the circumstances, the decision to dismiss Mrs Buchanan from her employment was unfair.
I agree with the submission advanced by the respondent, and I had formed the view in any event myself, that the evidence very largely falls away save that of Mrs Buchanan, Mrs Joske, Mrs Banks and I add, to a lesser degree perhaps Mrs Kitson. I have had regard to all of the admitted evidence but some has more weight than other parts.
Questions of credit were raised; let me deal with those as something turns on them. In my view, too, once questions of credit are raised about a witness it is proper that they be dealt with so that the question raised does not remain at large, but can be answered.
I found that Mrs Buchanan was at all times doing her very best to tell the truth. I do not make any finding adverse to her credit because that involves a finding of intent and I am satisfied she did her best throughout her evidence to be truthful. I am not satisfied that her recollection or interpretation of events was always accurate. I do not criticise her, memory is not perfect in anyone, but that is the view that I formed.
I regarded Mrs Joske as a witness of truth based on both the internal and external coherence of her evidence and on her demeanour. I am of course wary of forming views about the credit of witnesses from demeanour alone, being mindful of what was said by Kirby P as he then was in Chambers v Jobling (1986) 7 NSWLR 1. However, my observation of Mrs Joske in her demeanour in the evidence she gave under - very properly - searching cross-examination, forms part of my reasons for my view that her evidence was to be accepted as evidence of truth. I repeat that I do not criticise Mrs Buchanan, and say again that memory is not perfect in anyone, but where there was a conflict in the evidence between the two witnesses, I prefer the evidence of Mrs Joske. In the same way I accept the evidence of Mrs Banks.
I do not find that Mrs Banks or Mrs Joske had any overt prejudice against Mrs Buchanan and nor do I find, as it was suggested, that they had any unconscious prejudice that worked against Mrs Buchanan in the TIP or at all. I believe they both did their best honestly and that the outcome of the TIP was not attributable to any mala fides, conscious or unconscious, on their part. I find that Mrs Buchanan did not successfully meet the requirements of the TIP as I have said as a matter of objective fact.
The matter of course does not end there. What we have in my view is a teacher who did not satisfy a TIP. It is not mandatory to dismiss such a teacher although a dismissal on the basis of a perceived lack of competence may well arise from failure successfully to complete a TIP. Indeed such a failure might well, in the usual the case, be a sound basis for dismissal. Again I note here that the applicant was invited to resign rather than suffer the stigma of dismissal in the first instance but she declined, which of course was her right. And although it may well be usual, and indeed it may well generally be justified, to dismiss a teacher who has not been able to demonstrate competence through the mechanism of a TIP, the decision to dismiss a teacher for lack of competence does not necessarily and ineluctably follow from an unsuccessful TIP.
It must be considered that teachers are generally vocationally committed to teaching and invest, in many cases, their lives into it; Mrs Buchanan is no exception to that. Any such determination of the future of a teacher has to go further than a simple assessment of whether or not a TIP has been successfully completed. It has to have regard to all of the facts and the circumstances including the career history of the teacher and including the circumstances under which the TIP was in fact carried out.
Included of course in those matters if not at the head of those matters is s 5A of the Teaching Service Act 1980. There is an imperative on this Commission as well as on the department, the respondent, to ensure the protection of children under s 5A of the Teaching Service Act.
That has been held in a number of cases: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32, which was upheld on appeal, it is one, and Cassis v NSW Department of Education and Training [2006] NSWIRComm 164 is another. In Balsters, Sams DP held: "the term "protection of children" extends to the protection of children from teachers whose unsatisfactory performance arises from an inability to demonstrate effective classroom management or an inability to provide a safe and challenging learning environment. To put it bluntly, the Teaching Service Act requires the Department to ensure that children are protected from incompetent, ineffective, hopeless or indolent teachers"
Those are a flourish of words used by the learned Deputy President, and they ought not be seen to be definitive about the degree of protection to be afforded. The degree of protection to be afforded to children is against anything less than competent teaching. It is to be remembered that the department and the school system only exist for children, not for any other reason, and that is a fundamental matter. But there are a range of other matters that must also be considered in determining the future of a teacher and perhaps it might be said that is more so when one is considering a teacher who has given effectively a lifetime's service to the department.
It is the case, I say again, that the TIP was not satisfactorily performed. Prima facie that allows a conclusion that the teacher is not competent, but I have formed the view that there are a number of aspects of this particular TIP at the particular time at which it was conducted that stand against a hard and fast view that its unsuccessful completion, which was the case, inexorably leads to a view that Mrs Buchanan must be dismissed for incompetence on the basis of that TIP. Those matters go to personal matters affecting Mrs Buchanan, one being the death of her father. Death of a parent is not a light matter and whatever brave front one puts on it, I am prepared to take judicial notice of the fact, that such an event will distract the mind. The other matters are more complex. I do not put weight on matters which occurred years in the past, before the TIP, but things that occurred during and surrounding the TIP. I am satisfied that Mrs Buchanan was entitled to be distracted by those personal matters during the course of the TIP. The further matters to which I refer are, as I have said, slightly more complex.
I have said and I make an express finding of the fact that there was no ill will on the part of Mrs Joske or Mrs Banks. I find they genuinely tried to assist Mrs Buchanan to develop her competence. Managing Mrs Buchanan's TIP was not the principal's only task and in my view the concern raised by Mrs Buchanan in her evidence and agitated here in submissions by her counsel, that she received feedback often too late to really assist her in a program which moves very quickly from its first five weeks to its critical second five weeks, has some substance. I do not recite them all here but I accept that what is put by the applicant in annexure C to the submissions in reply accurately summarises the evidence. That is not the whole of the matter at all, but in my view it can be said that although there was a genuine willingness to assist and a good deal of work and time was put in to assist Mrs Buchanan, in view of the sorts of deficiencies on her part that were pointed to in the TIP, more timely feedback and assistance would have helped more.
Third there is this; it was evident to all, or it ought to have been, that Mrs Buchanan resisted the TIP. She said so at the time. It was evident to all that she had not been persuaded that she needed to improve her teaching; she said so. It was or should have been evident to all, and I refer to the evidence of some of the exchanges just in passing between the principal characters, that Mrs Buchanan was finding the TIP process and the fact of being on the process, extraordinarily difficult. That is to be added to the family matters which, in my view, had a real capacity to distract her.
Let me make it quite clear, principals are not obliged to go out of their way to accommodate the resistant or truculent or inflexible teacher in relation to a TIP or professional assistance at large; that is not the case. But I think it ought to have been seen here that Mrs Buchanan, a 35 year teacher, was overwhelmed by her circumstances, that is the word that was used by Mrs Kitson as I recall it. I think it is not an unfair or exaggerated assessment of the position in which Mrs Buchanan found herself. The objective result which emerged, unsatisfactory completion of the TIP, while it was factually correct, ought to have been seen in that regard. In my view, while Mrs Banks was perfectly entitled to have real concerns about Mrs Buchanan's teaching, and while the emphasis that has been placed on s 5A of the Teaching Service Act by the respondent in submissions is in no way misplaced, in this case, to move through the TIP as it was done at the time that it was done, through no one's particular fault, worked unfairly against Mrs Buchanan.
I emphasise, I do not find that Mrs Banks or Mrs Joske acted wrongly. They did what they were constrained to do and they tried their best to do it as well as they could. They both put significant effort into doing so. I do not fault them, but without any ill will, without any wrongdoing on their part, in the particular circumstances of this case, the outcome of the TIP was unfair. I must say that I am not certain that Mrs Buchanan would have passed another TIP conducted at another time when she was free from family concerns and when she had had some assistance perhaps in forming a less resistant attitude to the TIP and some more timely advice. But while I am not certain that the outcome would have been different, that was not tried, and I am not prepared to form a view that it could not have been different if those things had been different.
The decision to terminate her employment, noting that at first resignation was offered, was, it is clear from Ms Thorpe's evidence, based effectively and squarely on the TIP result. I say again, the department is not wrong to take that approach at large. The TIP is an agreed structure to measure teachers' competency. If a teacher does not pass the TIP the prima facie view is well available that there is a deficiency in competency, and the department is entitled to act thereon. It must also, as I say, have regard to any particular circumstances that might have affected that result and those circumstances do, in my view, exist here.
Because I found the result of the TIP unfair in its particular circumstances and because I am satisfied that the decision to terminate turned fundamentally on the TIP, I am led to the view the decision to terminate was unfair and I find the dismissal was unfair.
Again, the matter does not end there. The primary remedy, in respect of a dismissal found to be unfair, is reinstatement. I do not repeat all the authorities about that matter; they are well known, and I have had regard to them. The test in the Act is whether that primary remedy is practicable. I am not satisfied that it is practicable. Of course I am well aware that Mrs Buchanan is presently working for the department as a casual teacher including some long term placements but I accept the department's submissions without repeating them all about the difference between expectations placed on casual and permanent teachers. The decision in Amery does not affect the fact there are different expectations going particularly to areas where not only was Mrs Buchanan determined not to be competent or efficient but where she said she saw no need to improve her teaching and indeed regarded herself as better than her contemporaries at large.
Self-assessment is necessarily unreliable and I make no personal criticism of Mrs Buchanan but I accept that it is not practicable to reinstate her as a permanent teacher with the department. Again I say without repeating the department's submissions about the expectations placed on permanent teachers, I find them to be properly advanced. The fact that the dismissal may on its particular facts be seen to be unfair does not at all lead to the conclusion that there is no obstacle to reinstatement. The fact, I emphasise, that I have found that this particular TIP can properly be seen as having worked unfairly against Mrs Buchanan in the particular facts and circumstances of that particular time, does not mean that the department's concerns about her performance as a permanent teacher were unfounded. Indeed, on my view of the evidence, they were properly founded, they just do not crystallise in an ability to dismiss fairly on the basis of what the department had before it at the time.
Again, to repeat myself, the Commission is required to determine just one thing in an application of this kind which is, whether an individual dismissal in the circumstances that it was effected at the time, was unfair. A finding it was unfair does not mean that an applicant was justified in all their actions or conduct or that the premises which underpinned the dismissal all melt away, they do not.
I do not order re-employment for two reasons. First, the impracticability of reinstatement, the evidence which I accept, the real difficulties with the applicant's approach to her work as a permanent teacher, work against re-employment just as much. Secondly, there is no evidence before me that would allow me to identify any position that would suffice for re-employment. But the first limb of what I have just advanced, that is to say that the impracticability of reinstatement for the reasons that I find it impracticable, works just as much against re-employment as a permanent teacher, is sufficient to determine the question.
That brings me then to whether the remedy of compensation should be awarded. It is not mandatory that compensation should be awarded even if a dismissal is unfair. The word "may" in subsection 89(5) makes it clear that it is entirely discretionary.
In this case I do award compensation. I do so under subsection 89(6) and I have had regard to the matters there set out. I am well aware that Mrs Buchanan has had extensive periods of work since the dismissal, I take that into account, but the quantification of compensation is not an exercise in accountancy even noting subsections 89(5) and 89(6). It is a synthesis, and I say that well aware of the decision in Henderson v Rural Lands Protection Board (1997) 74 IR 14. That does not bind me to merely compensating an applicant in dollar terms for dollar loss. Losses can be quantified in a number of ways. I propose to award Mrs Buchanan 12 weeks' pay, "pay" being as it is contemplated in subsection 89(5) of the Act. The orders I therefore make are as follows.
The dismissal is found to be unfair. I award compensation of 12 weeks' pay within the meaning of subsection 89(5). The compensation is to be paid within 28 days.
I have said that I give this decision conscious of the fact that Mrs Buchanan has an ongoing relationship with the respondent as a teacher albeit on a casual basis. Nothing I have said in this decision is intended to or ought to have any effect on that relationship.
PETER NEWALL
Commissioner
[2]
Amendments
10 January 2017 - Paragraph [13] line 2 the word "unemployment" should read "employment"
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Decision last updated: 10 January 2017