Byrne v NSW Department of Education and Training

Industrial Relations Commission (NSW)|2009-06-17|Before: Hungerford J, Bauer Schmidt JJ, Wright P, Peterson J, Fisher P, Hill J, Boland J, Schmidt J

CITATION: Byrne v NSW Department of Education and Training [2009] NSWIRComm 1039

APPLICANT PARTIES: Paula Byrne RESPONDENT NSW Department of Education and Training

CATCHWORDS: Unfair dismissal - termination of employment - alleged inadequate work performance - extensive assessment procedures - procedural error - balance between procedure and substantive basis for dismissal - substantive basis not impacted by procedural error - onus on applicant to establish claim not met - claim dismissed.

LEGISLATION CITED: Industrial Relations Act 1996 Teaching Services Act 1980

Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784. Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Anor [2007] NSW SC 104. Horwood v NSW Department of Education [2007] NSWIRComm 1038. Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3), (1990) Industrial Commission of NSW, [Hungerford J], 35IR 70. Bigg v New South Wales Police Service, Full Commission of Industrial Relations Commission of NSW [Bauer Schmidt JJ & Murphy C], 80IR 434. Bankstown City Council v Paris (1999) Full Commission of Industrial Relations Commission of NSW [Wright P, Peterson J & Bishop C], 93IR 209. CASES CITED: Macleay Valley Health Service v Jeffree, (1994) Full Commission of Industrial Relations Commission of NSW [Fisher P Hill J & Sheils CC], 58IR 187. Lawrence v Catholic Education Office [2002] NSWIRComm 115. New South Wales Teachers' Federation (on behalf of Debra Balsters) v New South Wales Department of Education and Training [2008] NSWIRComm 32. Nsiah v Department of Education and Training [2006] NSWIRComm 351. Alexander v Commissioner of Police [2009] NSWIRComm 3, [Boland J, President]. Byrne & Frew v Australian Airlines Ltd (1995) 185CLR 410. Busways v Johnson, (1994), Full Commission of Industrial Relations Commission of NSW, [Fisher P Schmidt J Tabbaa CC], 55IR @ 255. Wells v Commissioner of Police (2000) 100IR 106.

HEARING DATES: 16,17,18,19 March and 17 June 2009

APPLICANT Self represented

LEGAL REPRESENTATIVES: RESPONDENT Mr A Britt, barrister with Ms M Buchanan, Principal Legal Officer Department of Education and Training

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Paula Byrne v NSW Department of Eduction and Training

Application by Paula Byrne re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 27 August 2008 by Paula Byrne, (the applicant). The application nominated the respondent employer as the NSW Department of Education and Training (the employer).

2 The claim was the subject of unsuccessful attempted conciliation conducted before Bishop C. Subsequently the matter was reallocated to the Commission as currently constituted and has involved a Hearing conducted over four days of taking evidence, 16, 17, 18 and 19 March 2009. A further day, 17 June 2009 involved further proceedings when the Parties made submissions. BACKGROUND

3 The applicant is a woman who was some forty nine years of age at the time of her alleged unfair dismissal on 8 August 2008. On 8 August 2008 the applicant was provided with a letter of dismissal dated 6 August 2008.

4 The applicant worked as a Teacher at the Kingswood High School and she had been engaged in that position since September of 2006. The applicant had an earlier period of employment as a Teacher at the Walgett High School between 2001 and 2003. 5 Shortly after the commencement of the applicant's employment at Kingswood High School a number of issues and complaints about aspects of the applicant's work performance and conduct were identified. These issues developed to the extent that on or about 20 November 2006, the applicant made a document entitled "Formal Dispute Notification". Essentially this "Formal Dispute Notification" Exhibit 2 - Attachment 6. challenged an attempt by the Principal of Kingswood High School to place the applicant on a Teacher Improvement Program (TIP). The applicant's challenge was successful and she was not placed on a TIP at that time. During the later part of 2006 a series of meetings were held in order to deal with issues relating to the applicant's work performance and conduct. Unfortunately these issues and other matters relating to the applicant's work performance and conduct resurfaced in June of 2007. 6 In June of 2007, the applicant's Head Teacher, Mr Turner, documented concerns about the applicant's work performance and conduct. These concerns primarily but not exclusively, related to inadequate classroom control issues. Despite the applicant raising a further "Formal Dispute Notification" in July of 2007, she was placed on a TIP which commenced on 23 August 2007. The TIP for the applicant involved, inter alia, class room observations that were conducted during a period between September and November 2007. 7 At the completion of the applicant's TIP, the Principal of the Kingswood High School, Mr Erickson, made a report that recommended that the applicant's efficiency be determined as not satisfying the requirements for the position held. Consequently by way of a letter dated 26 November 2007, the employer's Regional Director, Western Sydney, Mr Wasson, advised the applicant that she was directed to report to the Penrith Regional Office and to no longer perform class room teaching duties whilst a review of the applicant's TIP was undertaken. 8 In March of 2008, the review of the applicant's TIP and the report and recommendation provided by the Principal of the Kingswood High School was undertaken. In brief that review upheld the Principal's recommendations and by way of correspondence dated 16 April 2008, the applicant was advised that the Regional Director, Western Sydney was considering whether to take disciplinary action as a consequence of the findings made by the review process. 9 The applicant was provided with an opportunity to put submissions in respect to the Regional Director's contemplation of disciplinary action. Further, an invitation was extended for the applicant to meet personally with the Regional Director regarding the issues that encompassed the applicant's TIP, the subsequent report and recommendations of the Principal, and the review of the Principal's recommendation. 10 Solicitors from Federation Law acting on behalf of the applicant provided written submissions dated 7 July 2008. Regrettably the attempts that were made to have the applicant meet with the Regional Director were unsuccessful, and the Regional Director issued the letter of dismissal dated 6 August 2008. That letter advised the applicant that the Regional Director had decided that dismissal of the applicant was the appropriate disciplinary action. The dismissal was established on the basis of the applicant's alleged unsatisfactory work performance. 11 The applicant has challenged the decision of the employer's Regional Director by way of this unfair dismissal claim. The applicant initially sought reinstatement to her former position but has also pursued the prospect for re-employment to another teaching position or alternatively, monetary compensation. THE EVIDENCE

12 The documentary evidence provided in this matter has included the relevant materials that were developed during the applicant's TIP. In summary this material undeniably established that the applicant was recorded as having an unsatisfactory outcome from the classroom observations. The applicant's observation lessons were determined as unsatisfactory in fifteen of the seventeen lessons that were observed as part of the TIP. Consequently the essential basis upon which the applicant's unsatisfactory work performance was said to have been established was not an issue of evidentiary contest. 13 The evidentiary material adduced in support of the applicant's claim primarily involved challenge to the underlying basis upon which the applicant was placed on the TIP. Further, the applicant's evidentiary case challenged both the alleged impartiality of the TIP and the validity of the TIP process and its outcomes. 14 The applicant was the only witness called to give evidence in support of the claim. There were a total of thirteen witnesses called to provide evidence on behalf of the employer. Importantly these witnesses included the decision maker, the employer's Regional Director, Mr Lindsay Wasson. Mr Wasson provided very important evidence about the reason why the face to face meeting with the applicant did not occur, and why he made the decision to dismiss the applicant without having the meeting that he had attempted to arrange. 15 Many of the other witnesses were former colleagues of the applicant who gave evidence about issues which acted as catalysts for the applicant's TIP. Other witnesses were directly involved in the classroom observations during the TIP. Evidence was also provided by individuals that were involved in the review of the Principal's recommendations arising from the TIP. Although some of the evidence provided by these witnesses directly conflicted with the applicant's evidence, the issues of such evidentiary conflict were not central to the Determination of the claim. THE CASE FOR THE APPLICANT

16 The applicant appeared unrepresented. The applicant filed written submissions which were elaborated upon by way of oral submissions made during the proceedings held on 17 June 2009.

17 The applicant submitted that as a Teacher her rights and conditions of employment had not been adhered to in the way in which she had been placed on a TIP. The applicant said that she had been placed on the TIP without warning or discussion and this was contrary to regulations as expressed in the Teachers Handbook 2003. The applicant further submitted that she had properly protested about the incorrect manner in which she had been placed on the TIP and that her protests had not been properly recognised or responded to adequately. Consequently the applicant submitted that the outcome of the TIP should be disregarded as it was something that had been conducted without proper adherence to the relevant regulations and requirements that must be met for the TIP processes. 18 The applicant further submitted that as she had remained in dispute with the employer the TIP would be automatically invalidated. The applicant said that she had been subject to a pattern of bullying which included the directive that she be placed on the TIP. Therefore, according to the applicant, the TIP was invalid and its results could not represent a reason for dismissal. 19 The applicant submitted that she had not been "heard", nor had her responses been "fully considered". Therefore she submitted that there had been a deliberate ignoring of her rights as a Teacher. The applicant said that the Principal of the Kingswood High School who had conducted the TIP without proper adherence to the relevant regulations and documented procedures, demonstrated a clear bias against the applicant. The Principal, Mr Erickson, was according to the applicant, unsupportive of the applicant and he abused his powers and ignored Teachers' rights. The applicant submitted that Mr Erickson had treated her unfairly, and he had not provided appropriate support or consideration for the particular circumstances that the applicant was faced with. 20 The applicant submitted that her dismissal was unfair, unjust, unreasonable and harsh. The applicant submitted that her dismissal was unfair because at no stage during and including the TIP process was she ever given a proper hearing. The applicant submitted that this failure to provide proper hearing extended to the absence of a final opportunity to meet with Mr Wasson, the Regional Director, before he made the decision to dismiss the applicant. 21 The applicant also submitted that she did not seek to argue procedural failings on the part of the employer, but instead complained that she was not given her "rights" as set out in her conditions of employment. The applicant said that these conditions of employment were derived by reference to the case of Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784. Further the applicant referred to the case of Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Anor [2007] NSW SC 104. The applicant said that this Judgement was relied upon as the employer had destroyed the applicant's trust and confidence in her contract of employment as a permanent Teacher at Kingswood High School. THE CASE FOR THE EMPLOYER 22 Mr A Britt, barrister, appeared for the employer at the Hearing. Mr Britt provided oral amplification of the written submissions that had been filed on behalf of the employer. Mr Britt commenced his submissions by dealing with the question of credit. Mr Britt submitted that the Commission should reject the evidence provided by the applicant as there were examples that established serious concern in respect to the credit of the applicant as a witness. Mr Britt submitted that various inconsistencies were established during the Hearing which related to the applicant's evidence and gave rise to the challenge on the question of credit. 23 Mr Britt made further submissions which he said established evidence to adequately satisfy various issues that were raised by the relevant statutory provisions. In this regard Mr Britt submitted that the applicant had been given a clear reason for her dismissal and that reason had a firm basis in fact. Mr Britt further submitted that the applicant had been provided with a well established process that gave adequate warning and opportunity for the applicant to make out a defence in respect to the issues that were the subject of the TIP. 24 Mr Britt specifically submitted that the absence of a final meeting between the applicant and the decision maker Mr Wasson, should not be construed to represent a procedural error in the particular circumstances of this case. Mr Britt submitted that the absence of that final meeting needed to be considered in the context of the unsuccessful earlier attempts to have the applicant attend a meeting with Mr Wasson. The submissions of Mr Britt sought to distinguish the present circumstances from those that existed in the case of Horwood v NSW Department of Education [2007] NSWIRComm 1038. 25 Mr Britt reiterated the issue of the onus that the applicant bears in establishing that her dismissal was "unfair". In this regard Mr Britt referred to the decisions in Pastrycook Employees, Biscuit Maker Employees and Flour and Sugar Good Workers Union v Gartrell White [No. 3] (1990) 35IR 70 and Bigg v NSW Police Service (1998) 80IR 434. Mr Britt submitted that the applicant had not properly discharged the relevant onus to establish that the dismissal was harsh or unreasonable or unjust. 26 The submissions made by Mr Britt referred to various provisions of the Teaching Services Act 1980. According to the submissions made by Mr Britt, the Commission was required to consider both the relevant provisions of the Act and the Teaching Services Act 1980. Mr Britt made detailed submissions that dealt with the provisions of section 88 of the Act and referred to Authority established in the cases of Bankstown City Council v Paris (1999) 93IR 209, and Macleay Valley Health Service v Jeffree (1994) 58IR 187. 27 In respect to the applicant's contest as to the reason for her dismissal, the submissions made by Mr Britt mentioned the observations made by her Honour Justice Schmidt in the case of Lawrence v Catholic Education Office [2002] NSWIRComm 115. Mr Britt submitted that on balance and weight of evidence together with regard for the issue of credit, the Commission should find against the applicant in respect to this contest. 28 Further submissions made by Mr Britt addressed the question of whether dismissal was justified in the circumstances. In this regard the submissions of Mr Britt referred to the Teaching Services Act 1980 and the judgements in the cases of New South Wales Teachers' Federation (on behalf of Debra Balsters) v New South Wales Department of Education and Training [2008] NSWIRComm 32 and Nsiah v Department of Education and Training [2006] NSWIRComm 351. Mr Britt submitted that students have a right to be taught by competent Teachers and that Teachers have a professional responsibility to perform their duties efficiently and to standards of recognised codes of conduct and behaviour. The applicant demonstrated a failure in this regard according to the submissions of Mr Britt. 29 The submissions of Mr Britt also dealt with any consideration that dismissal may be construed to have been too severe a penalty. The Commission was referred to the case of Alexander v Commissioner of Police [2009] NSWIRComm 3 and it was submitted that there were no special circumstances that provided any mitigation against the penalty of dismissal. It was further submitted that the cases of Byrne & Frew v Australian Airlines Ltd (1995) 185CLR 410; Busways v Johnson (1994) 55IR 255, and Wells v Commissioner of Police (2000) 100IR 106 provided additional guidance on the question of the appropriateness of the penalty of dismissal. 30 In summary Mr Britt submitted that the applicant's dismissal was not harsh, unreasonable or unjust and the Commission should dismiss the application. Mr Britt sought to reserve the employer's position on the question of costs. CONSIDERATION 31 The issue of greatest concern in this matter involved the absence of a meeting between the applicant and the decision maker, Mr Wasson, before Mr Wasson decided to dismiss the applicant. Ordinarily the failure of a decision maker to conduct a face to face meeting with an employee before a dismissal decision is made would be the subject of strong criticism. In this matter the absence of such a face to face meeting can not escape some criticism. 32 The personal circumstances of the applicant at the time when arrangements had been made for a meeting to take place on 30 July 2008, would have provided justifiable basis for the applicant's cancellation of that meeting and a rescheduling. Unfortunately Mr Wasson had attempted to meet with the applicant on two previous occasions and the applicant had been unable to attend those proposed meetings. Given the particular reason for the applicant's inability to attend the meeting scheduled for 30 July, and the length of time that had already been involved with the applicant's TIP and its review, another week or two to arrange a rescheduled meeting would not have been onerous for the employer. 33 Although it would have been highly desirably that Mr Wasson met with the applicant before he finalised the decision to dismiss, he provided plausible and believable evidence about why he decided to dismiss after having unsuccessfully attempted to meet with the applicant on at least three occasions. It was understandable that Mr Wasson had become frustrated by the unsuccessful attempts that he had made to meet with the applicant. Ultimately the absence of that meeting in the circumstances where the reason for the applicant's inability to attend was justified by circumstances involving the death of her former partner, must represent a procedural deficiency. 34 If the procedural deficiency established by the absence of a face to face meeting between the decision maker and the employee prior to finalisation of dismissal was accompanied by other procedural and/or substantive errors then the unfair dismissal claim would have strong prospects for success. 35 However, upon careful examination of the evidence, all other aspects of the procedure that the employer adopted did not provide for any significant criticism. Although the applicant complained that she had not been "heard" and that her "conditions of employment" had not been observed, the evidence does not support such assertions. 36 For example, prior to the commencement of the applicant's TIP, the NSW Teachers' Federation acting on behalf of the applicant, had successfully negotiated alteration to at least one of the terms of detail of the TIP. Throughout the TIP, the applicant was provided with proper opportunity to respond to any of the criticisms as they emerged from the TIP process. Indeed, there was evidence of the applicant documenting her responses to the classroom observations. 37 Although the applicant was unhappy, indeed "in dispute", about being required to undergo the TIP, her discontent would probably be shared with many Teachers undertaking a TIP. The applicant's objection to the requirement to undertake the TIP could not invalidate the process or its outcomes. If such objection could render the TIP invalid then the employer could not assess the competency/efficiency of any Teacher unless that Teacher agreed to such assessment. It is of course desirable that any employee performance assessment be undertaken in a spirit of cooperation, with a mutually agreed process, and with positively beneficial rather than punitive outcomes anticipated. In reality these circumstances will not always be achieved. 38 In many respects the TIP process and its accompanying review, if conducted correctly, represents an extraordinarily generous and time consuming procedure that would provide for accurate and realistic assessment of the performance of any Teacher. Upon detailed review, there could be no valid criticism made of the TIP process as it was applied to the applicant in this instance. 39 Further, for completeness, the suggestion of there being some bias on the part of individuals who had significant roles in the applicant's TIP, must, upon analysis, be rejected. Although the Principal, Mr Erickson, seemed to hold different inherent views about approaches to education theory and practice, as compared to those that the applicant recognised and supported, such differences were acknowledged on a professional basis and did not create any injustice for the applicant. In simple terms although Mr Erickson might be described by the applicant and others as being more "old school" there was no evidence that he approached his role in the applicant's TIP in other than an objective and professional manner. 40 It is also relevant to acknowledge the evidence provided by two other individuals who had participated, to varying degrees, in the applicant's TIP. Mr Gregory Skeoch was one of the two Teachers who recorded a satisfactory outcome for an observation lesson during the applicant's TIP. Mr Skeoch also provided unsatisfactory outcome observations for two other lessons. The evidence provided by Mr Skeoch was notable for its clarity, reason and balance. 41 Both Mr Skeoch and Mr Turner, the applicant's Head Teacher who initiated the complaints that led to the TIP, gave evidence particularly during cross-examination by the applicant, which displayed highly commendable characteristics. These two men presented as rational and reasonable individuals who were genuinely committed to education as highly competent professionals. The evidence of particularly Messrs Skeoch and Turner provided compelling basis for the Commission to accept the accuracy and veracity of the documented outcomes of the TIP and the professional impartiality of those individuals that participated in the observations that were an inherent component of the TIP. 42 In addition, the review of the Principal's recommendations that followed the TIP, also dispelled any criticism of the employer's procedure which culminated in the decision by Mr Wasson to dismiss the applicant. The extensive TIP processes and its review confirmed the substantive basis for the applicant's dismissal. 43 Unfortunately the applicant was recorded as satisfactory in only two out of the seventeen lessons under observation. Although the applicant has advocated that modern educational assessment techniques should depart from traditional quantitative pass, fail, marking approaches, in an employment context the evidence of the results of the TIP established strong foundation for the employer's determination of unsatisfactory work performance. 44 It is important to stress that the confirmation of unsatisfactory work performance as a Teacher should not reflect poorly upon the applicant in more general terms. Clearly the applicant is a person of considerable intelligence and capacities. Unfortunately the applicant's approach to teaching at a Secondary High School level is not suitable for main stream teaching institutions. The applicant revealed a genuine desire and compassion for education. These admirable qualities should be redirected to education in different formats or forums that are not fettered by the economic and social constraints of Public Secondary School classrooms.

CONCLUSIONS 45 In summary, the evidence in this matter has provided compelling basis upon which to concur with the conclusions that the employer made about the applicant's unsuitability for employment as a Teacher. That determination as conveyed by the letter of dismissal of 6 August 2008, was properly established by way of the procedures involving the TIP, and the subsequent review of the TIP and the recommendations made by the Principal arising from the TIP. 46 The only element of lingering criticism involved the absence of a face to face meeting between the decision maker, Mr Wasson, and the applicant before the dismissal was implemented. That procedural deficiency needs to be balanced against the substantive basis for the decision to dismiss. In all other respects the procedure that the employer followed could not be validly criticised. 47 The ultimate determination of the claim has therefore involved the issue as to whether the one procedural deficiency could render the dismissal of the applicant to be harsh, unreasonable or unjust. That consideration has logically involved an examination of the prospects that would have existed for the applicant to have provided for any realistic outcome other than dismissal if the face to face meeting had occurred. 48 This particular consideration involved the notion that the substantive basis for dismissal could be displaced by the procedural error that clearly existed. This has been the single most difficult aspect of this case. Ultimately the evidence provided by Mr Wasson when he was asked about this aspect of the procedure during cross-examination by the applicant has been incisive: "Q. It's true you had a choice, Mr Wasson, you could have given me 14 days notice and an opportunity to resign, isn't that so? A. As part of my decision making, I have several options that are available to me in relation to dealing with a matter such as this and one of them is an invitation for you to resign. That was not a step that I was prepared to take in this case. Q. Why not, Mr Wasson? A. Because the evidence in front of me demonstrated that there was a comprehensive incapacity to deliver curriculum in the classroom appropriately, to manage students appropriately and to achieve learning outcomes that would be expected within the education system in New South Wales. Q. Where is that proven, Mr Wasson? A. It's amply identified within the documentation of the improvement program, the lesson observations, the review by the external evaluators and also in the principal's report." Transcript of proceedings (18/03/09) pages 11-12. 49 The above extract of transcript encapsulates the notion of balance between procedure and the underlying substantive basis for dismissal. Upon careful consideration the Commission must conclude that the procedural error in this instance was not of a nature or magnitude that would, or should, displace the substantive reason for the applicant's dismissal. Although the face to face meeting between the decision maker and employee should have occurred, the evidence compels a finding that the substantive basis for dismissal was such that the meeting could not have altered the result. In many respects the comprehensive nature of the substantive basis for dismissal as described by Mr Wasson, rendered the final face to face meeting as a desirable but unnecessary protocol. 50 Therefore the Commission determines that the applicant has not established that her dismissal was harsh, unreasonable or unjust. Consequently the Commission is not prepared to intervene in the employer's decision to dismiss the applicant and the claim is accordingly dismissed. oooOOOooo

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Judgment (20 paragraphs)

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Cases Cited (6)