The Victimisation Allegation
135The Applicant wrote a letter of complaint about the Principal during which she set out a number of allegations. These matters are addressed below.
136Ms Minogue formed the impression that Ms Trisic was not happy with her appointment because she was not the Principal's preferred appointee. She said she overheard Ms Trisic comment, on a number of occasions during the lunch break in the staffroom during 2011, that "We just don't want to be sent someone again". The Applicant stated that those comments made her feel like she was a "ring in" and "unwelcome". She said she ignored those comments but noted that if she laughed, she got dirty looks from the Principal and if she participated in general conversation, her comments were either rebuffed or ignored. No evidence was provided of any of the above allegations.
137The Applicant recalled that she rang in sick on a Monday at the end of Term 1 in 2010. It was obvious to her that Ms Diane Twentyman, one of the Assistant Principals, did not pass on the message to the Principal because Ms Trisic telephoned her at home. The Applicant stated that she did not answer the telephone because she was asleep. The Applicant said she later noted an email forwarded to her by the Principal prior to that telephone call asking her why she was not at school. She was concerned that the Applicant had parent interviews the following day and she needed to be in attendance for those as some parents had arranged babysitters and time off work to attend the interviews.
The Applicant stated that when she presented the following day for the parent interviews although she was still unwell, she noted that the parents had their children with them and had therefore not arranged for babysitters and, in addition, would not have taken time off work to attend because the interviews were conducted between 4.30 - 7 pm. In any event, she was aware that quite a number of parents did not go to work and, those that did, the fathers turned up later in the session.
138The Applicant said that the Principal called her into the office on 30 June 2010 and asked her if she had told a staff member that she had breast lumps. The Applicant explained that she had advised her supervisor, Sue Wroe, of an appointment to have tests which happened to coincide with an after school grade team meeting. She advised that she had declined an 11 am appointment offered by the doctor so that she would not take a day off work.
139The Applicant recalled that on a Wednesday in Term 2 2010, the Principal rang her in the classroom and asked angrily for some sticks she loaned her at the beginning of the year. The Applicant later advised her that she had lent them to her fellow kindergarten teacher, Mark Wallace. The Principal had thanked her for following it up but did not apologise for her initial accusation.
140The Applicant stated that she was called into the office by the Principal at the end of Term 2 in 2010 and advised that three families were leaving because of her but did not give her a reason. She pointed out that no families ended up leaving.
141The Applicant, (in a formal complaint lodged against the Principal on 7 November 2011), included an incident on 30 June 2010 when the Principal mentioned to her that she had, some days earlier, let the children sit on wet grass thereby not fulfilling her duty of care to the children. It was obvious to her that the Principal had noted that incident but did not mention it to the Applicant so that she could remedy the situation immediately. The Applicant advised her that the children were not sitting - they were squatting on astro turf and were playing a game called duck duck goose.
142On Friday, 23 July 2010, the Applicant gave out term invoices to children in her class. They were open invoices with a small school envelope stapled at the top. She had not realised that the children's names were written on top of those letters and so she had distributed them randomly to the students to put one each in their bags. She said the Principal called her into the office at lunchtime and advised her of a parent complaint. The Applicant was advised that she had made a huge error as she had breached privacy laws. She was told to mind her business when she questioned whether any of her students were experiencing hardship. She questioned why, if they were private, they had not been inserted in the envelopes and sealed? During cross-examination, she agreed that it had been appropriate to discuss the matter with her.
143The Applicant stated that she was on sick report on 20 - 25 August 2010. She had a blood test done, and had physiotherapy and acupuncture done on her neck on 24 August 2010. She said she received a text message on her mobile telephone from Janelle Guttenbeil, Assistant Principal (now retired) on Tuesday, 24 August 2010, asking if she could call her. The Applicant rang her instead. She said that Ms Guttenbeil warned her that the Principal was on a mission and not to attend any meetings with her without having the Union representative with her, "there is a process she is going through to put you under more pressure. You are stressed because you are under so much pressure, that's why you are sick". She said Ms Guttenbeil told her she was okay and that she was on her side.
Ms Guttenbeil, now retired, did not give evidence on behalf of the Applicant and no explanation was provided as to why she was not called to give evidence.
144During Term 3 2010, the Applicant said she found the front and side of her car, including the lights, had been smashed in when it was parked in a cul de sac behind the school. She found a note on the windscreen. The Applicant said she took the note to the Principal and asked her if she would include it in the newsletter which was circulated to parents in case someone might have seen something. Despite an assurance that she would do that, and despite several reminders, three weeks' later it still had not been included and when it was eventually included, all it said was "Contact the office if you saw a silver car being hit" and it would have been too late for anyone to remember the incident. The repairs had cost her $1800 and was a significant issue to her while it appeared, by the Principal's response, to have been considered inconsequential to the latter.
145In her complaint against the Principal, the Applicant stated that the Principal had "victimised" her. During cross-examination, she explained that it was because the Principal "constantly" called her into the office during her lunch breaks and she would end up not having any break at all. She conceded, however, that sometimes it was a couple of days a week and other weeks she was not called in at all. She argued that the Principal would raise a list of matters with her and, in her view, that was victimisation because some matters were warranted and others were not warranted. She considered that if she did not agree with the matters raised with her then, in her view, they were not warranted.
146The Applicant agreed that she had not included in her statement that she believed that the Principal disliked her more or less from day one. She confirmed during cross-examination that it was her theory and was not supported by fact although the Principal had told her that she would not have selected her for employment at her school.
147She agreed that she had not included in her statement that the Principal told her that she was documenting and dating everything. She agreed that, despite saying at the commencement of the cross-examination that she had included everything in her statement, it appeared that she had left out a lot of things that were relevant. Whilst she conceded that there was nothing wrong with what the Principal was alleged to have said, she pointed out that it had been said in a "threatening way".
148The Applicant said she received a formal letter dated 17 March 2011 in relation to driving on the school grounds after hours. She recalled that the Principal asked her at recess in early March 2011 whether she drove a big silver car. When she responded that she did, the Principal told her that she had been seen driving fast into the school. The Applicant denied driving fast saying that she drove a manual Toyota Corolla Ascent in the first gear on the school grounds, her car was not that big and other staff members also drove silver vehicles on the school grounds. She said that she explained to the Principal that she had stopped to talk to some students who had called out to her from the playground above. The Principal assured her that she was not the only one she had spoken to about the matter however, the Applicant believed she was the only one issued with the letter.
149The Applicant said she also felt "denigrated", "put down" when the Principal boasted to her that the children respect her just because the Year 4 students wished her a good morning when she walked into the Applicant's class. The Applicant said that she had taught her students to stop and greet any teacher that came into their classroom.
150The Applicant stated that she arranged the seating in her class in Term 2 2011 in two Vs in accordance with a specific seating plan designed to separate children with behavioural problems as suggested to her by a behaviour consultant. Upon her return from one day's sick leave, she discovered that the seating arrangement in her class had been changed by the Principal and a casual teacher. She became upset about it and changed it back.
151The Applicant lodged a formal complaint against the Principal on 7 November 2011 citing lack of support for her, the Principal's belittling attitude towards her and victimisation of her. She attended an interview on 28 February 2012 with Mr Dean White, the Director of Education for the Northern Beaches. He advised that he would be interviewing Ms Trisic and then attempting to arrange a mediation between them.
152In her reply to Mr White's letter of 13 March 2012, the Applicant pointed out, on 22 April 2012, that two Assistant Principals, Janelle Guttenbeil and Lizzie Smith, had provided favourable reports about her improvement and progress. Yet, she had not been provided with the former's report and the latter's report had been removed from her file. She also advised that Mrs R, a parent of one of her Year 4 students and one of her kindergarten students, advised her on 5 April 2012 at Collaroy Beach Ocean Pool that the Principal had encouraged parents to complain about her teaching. She stated in her reply that the parent had said to her, "I can't believe that they gave you that class with all those behavioural problem children, with yellow cards and lot of children with learning difficulties. She wasn't looking at her duty of care to the kids, giving you that class (Yr 4). That was a malicious thing she did to you. All the parents thought you were great with kindergarten".
Mrs R was not called by the Applicant to provide evidence on her behalf. During cross-examination, the Applicant agreed that there was primarily one student with the behavioural problem in Year 4.
153The Principal did not write a report about the Applicant's performance until December 2012, more than 12 months after she ceased her TIP program. The Applicant was provided with an opportunity to respond to that report. Mr White wrote to the Applicant on 11 February 2013 in which she was advised that he had reviewed all the documentation regarding her TIP including her response to the Principal's report. He advised that he wished to meet with her to clarify some of the information she had provided.
154The Applicant, accompanied by Mr Vlug as her support person, met with Mr White on 18 February 2013. She agreed that she was given a free run to say anything that she wanted to say to him and that she had taken advantage of that opportunity. As a result, Mr White prepared a submission, dated 17 March 2013, which was provided to Mr Schipp. In it, Mr White stated that he had formed the view that the Applicant had not met the level of performance required and recommended that her probation be annulled and her name placed on the "not to be employed" list.
155Mr Kevin John Schipp, Manager, Staff Efficiency and Conduct Team, provided a statement in which he stated that, after reviewing all available information, he wrote to the Applicant advising that he was considering recommending to the Director, Employee Performance and Conduct Directorate, to take action to annul her appointment.
156The Applicant confirmed receipt of that correspondence from Mr Schipp, dated 25 March 2013, in which she was provided with an opportunity to provide him with a submission showing cause as to why her appointment should not be annulled and her name added to the confidential list of persons not to be employed. Mr Schipp received a submission from Federation Law dated 24 April 2013, which also had attached to it a submission from the Applicant.
157Mr Schipp said he considered the submission and arranged for a briefing to be prepared for Ms Jane Thorpe, Director-EPAC. After considering all available information, it was clear to him that a significant amount of support had been provided to the Applicant throughout her period of probation. He recommended that the Applicant's appointment be annulled.
158However, in recognition of the previous casual teaching the Applicant had performed prior to her appointment to CPPS, and her submission that incompetency had never been suggested in that time, he further recommended that the Applicant be considered for limited casual approval for a period of six months. It would mean that if two reports of satisfactory performance are received from two Principals after two terms of casual teaching by the Applicant, then further unlimited casual teaching would be provided.
159Mr Schipp stated that he had considered the evidence filed by the Applicant in the proceedings and nothing in the material would cause him to change his view that it was appropriate to recommend that her appointment be annulled.
160Ms Jane Thorpe, Director-EPAC, also provided a statement in the proceedings in which she set out the role of EPAC which includes -
Oversighting performance improvement programs for school employees;
Taking disciplinary or remedial action where appropriate; and
Assisting Department leaders to effectively manage performance and conduct matters.
161Ms Thorpe stated that she satisfied herself, having reviewed all briefing material provided to her in relation to the Applicant, including all material relating to the TIP, and the submissions made by and on behalf of the Applicant, that:
(i)Ms Minogue had been identified as experiencing difficulties with her teaching performance while at CPPS;
(ii)Ms Minogue was provided with support on an informal basis throughout 2010 and part of 2011;
(iii)Following the provision of informal support, Ms Trisic, Principal, still had concerns about Ms Minogue's teaching performance;
(iv)Ms Minogue was placed on a TIP in accordance with the Department's Procedures for Managing Probationary Teachers 2010;
(v)The TIP was conducted in accordance with those procedures; and
(vi)Mr White, then School Education Director, reviewed the matter and determined that those procedures had been followed.
162Ms Thorpe stated that, having considered all the relevant material (including the TIP, the opinion of the Principal, the submission of the Applicant and that of her legal representative and the recommendation made by Mr Schipp), she formed the opinion that it was appropriate to annul the Applicant's appointment. She determined that the appropriate action to take was the course recommended by Mr Schipp, that is, to annul the Applicant's appointment and recommend that she be given limited casual approval for a period of two terms based on her previous successful casual teaching history with the Department.
163The Applicant confirmed that she received correspondence from Ms Thorpe, dated 8 May 2013, via Mr Dawson, annulling her appointment as a probation teacher but not including her in the "not to be employed" list.
164In conclusion, the Applicant pointed out that her informal program had been cut short; Ms Twentyman had instructed her not to talk to either parents or teachers (outside of school) about issues raised with her; the Principal accepted the parents and children's word over hers; the Principal and Assistant Principal had not provided her with any support; she was harassed by Ms Twentyman while she was off sick in an effort to force her to resign; her every move had been documented; she was provided with a warning for allegedly speeding; the Principal had not bothered to look at her program in 2011 up to the end of Term 3 because she did not have time despite having it in her possession for a week; she should have had the opportunity to consolidate on kindergarten for a second year rather than going up to Primary, especially as a Probationary teacher; and she was not given her first, second or third preference for a grade in 2012. For those reasons, she said she felt too frightened about "putting myself in the firing line again" by returning to that school as it had affected her health and self-confidence, particularly in teaching.
165During re-examination, the Applicant pointed out that she was denied the opportunity to discuss issues with parents and the students and work out solutions to whatever problems existed and that made her feel undermined.