The Applicant's assertions that the process that led to the revocation was flawed
The Applicant's contention was, in summary, that the TIP imposed an unduly onerous assessment regime. He raised a number of issues which he said, led to the conclusion that his teacher accreditation should be revoked, was flawed.
Firstly, and primarily, the Applicant asserted he was subjected to an excessive number of observations. In his preliminary submissions he wrote that there were 20 lesson observations, 24 lesson plans prepared, 5 student work samples and 7 day books assessed. He conceded in his evidence that the number of observations for a TIP is not mandated. He said he was unaware of what might be the "standard" number of observations when he, and his accompanying union representative, agreed to the draft TIP which included the planned number of observations. No queries were raised by him in the ongoing review discussions about the extent of the planned observations. He said in his evidence at first that he did not raise his concerns in the course of TIP that he thought the number of observations was excessive. He also said the union raised no concerns that it was excessive. Subsequently he said that he had raised concerns but was "told to get on with it". He said there was "no constructive conversation about workload". He did not specify with whom he raised his concerns, although thought there may have been an email to Ms Poder. He did not produce a copy of that email nor could I locate any material before me that documented his alleged complaint.
It was only later, after the decision under review, that he had located matters involving 4 other teachers, Messrs Kent, Buchanan, Nsiah, and Brown, who, like him, had brought unfair dismissal claims in the Industrial Relations Commission (IRC). He relied upon information in the reported decisions as to the number of "observations" undertaken before their accreditation was revoked, and that, by comparison, the number of observations of him was excessive. He conceded in cross examination that he was observed in face-to-face teaching, on average, a "bit over 2" lessons per week of the TIP.
Mr Gault was asked about the reasonableness of the number of observations. He said that 20 face-to-face observations across a 10 week period was not unreasonable, together with the "wrap around" activities associated with teaching a lesson. He said he was unaware of the cases to which the Applicant referred, but said the number of observations would vary according to the context, including, for example, whether the teacher was teaching high school or primary school. He considered that it was a normal part of TIP to observe lessons and the other core teacher activities. Further, most of the non face-to-face observations, such as lesson plans and work samples were activities that the Applicant was, or should have been, undertaking as part of his ordinary duties in any event.
The evidence of both Mr Daniell and Ms Kirby was to the effect that the higher the number of observations, the greater the opportunity for a teacher to demonstrate their ability to meet the Standards.
Secondly, the Applicant submitted, the number of observations meant that he would no sooner obtain feedback on his performance than he was almost immediately being observed again, before he had had time to digest and apply the feedback remarks from the prior assessment. He said he would have to read the feedback, prepare the next lesson, and without time to consult his peers or read up on strategies so as to implement change, he was into the next observed lesson. Sometimes, he said, he did not receive the feedback until the day of the next assessment.
He said that because of the large number of observations the students became aware that his performance was under review and they were asking if he was going to be "sacked". This he said, created "additional stress". He said he regarded the TIP as a "negative process" in which he was being assessed "all the time".
Thirdly, he said that he was also obliged to continue preparing for and teaching his other (ie unobserved) classes. He considered that participation in the TIP substantially increased his workload. He agreed though that during the course of the TIP he was given seven days of relief of various kinds to support his participation. He understood though that this was a set amount and was not adjusted to reflect the number of observations conducted. While others may have had fewer observations, they would still have been granted 7 days relief from face-to-face teaching. The same, he submitted, applied with respect to his reduced teaching load of 3 hours per week, which was the same relief, irrespective of the number of observations.
[2]
Conclusion as to reasonableness of the evaluation process
At the end of the first round his performance was still considered unsatisfactory in respect of a number of the Standards. He was afforded the opportunity to reflect upon his performance over the long holidays and to take on the board the feedback he had been given in the course of the first round. In my view it is fair to say that the Applicant actually benefitted from having two 5-week assessment periods, rather than one. Consistent with this conclusion is the fact that his performance in fact showed some improvement in the second round. Furthermore, he was able to use the long break to recuperate from what he perceived was the intense scrutiny that took place in the first round.
I accept that the scrutiny of the process may have been stressful for the Applicant, but, in addition to feedback, but it was well documented in the material before me that he was offered regular support.
[3]
Conclusions as to the Applicant's performance
The conclusions in the Principal's Report were the subject of an external review by Melissa Johnston, the Principal of a different school. Ms Johnston reviewed all of the material relating to the Applicant's performance (including from the PD and the TIP) as well as the Applicant's response to the Principal's Report. She prepared a very detailed analysis (Johnston Report), noting the Applicant's teaching history and the outcome of the PD and the TIP. The Johnston Report contained detailed consideration of the Applicant's responses to the Principal's Report, including as to process, perceived bias and workload concerns. She observed that there had been some deficiencies in the administration of the PD and noted some other minor deficiencies about the administration of the TIP. She noted the Applicant's concerns in relation to the process but found nothing which would have affected the outcome. She upheld the Principal's conclusion that the Applicant was not meeting the required level of performance and she considered that none of the matters the Applicant raised detracted from the conclusion that his performance was inadequate; the processes followed were appropriate and the Applicant was appropriately supported throughout. As a consequence of the Johnston Report, on 19 August 2021, a delegate of the Department had invited the Applicant to show cause as to why disciplinary action should not be taken against him for unsatisfactory performance in relation to Standards 1 to 4. On 12 November 2021, after considering a further submission by the Applicant, the delegate confirmed the decision that disciplinary action would be taken and that the appropriate disciplinary action was to direct the Applicant to resign, falling which he would be dismissed. The Applicant was ultimately dismissed on 22 November 2021 and his name was also placed on the Department's 'Not To be Employed' list.
The Applicant subsequently commenced proceedings in the IRC claiming to have been unfairly dismissed: Cantwell v Secretary, of the Department of Education [2023] NSWIRComm 1012. Based on the evidence before him, the Commissioner concluded that:
1. there was 'no sense in which it could be said that the (Department) has failed to fully, fairly and properly follow a process to assess the performance of the applicant under the TIP': at [111].
2. 'Those employees of the respondent who were charged with assessing and reporting on the TIP gave evidence and were unanimous that in their opinion the applicant did not meet the required standard of teaching. Those employees were all teachers of considerable experience. Only two of them were crass examined and it was never seriously suggested to either of those two that their expressed opinions as to the applicant's performance were wrong.': at [112].
3. while the Applicant 'did not expressly concede that his teaching performance was substandard, the Applicant effectively conceded that he had failed the assessment of his performance through the TIP': at [113];
4. the outcome of the TIP - that is, that the Applicant was not meeting the required performance standards - 'was the correct professional assessment of the Applicant's performance through the TIP': at [141];
5. the Applicant was given support and feedback throughout the TIP, and adequate opportunities to respond to its conclusions. which he took up: at [115]; and
6. the Applicant's complaints of procedural unfairness and had no merit, and while the Applicant had demonstrated errors in the Principal's Report which were 'regrettable', those did not ultimately detract from the assessment that the Applicant had failed to meet the relevant performance standards or demonstrate that his dismissal was unfair: at [116] - [124].
I have placed considerable reliance on the findings of the Commissioner, who had the benefit of hearing the evidence of seven witnesses, including the Applicant's direct and indirect supervisors, teachers from other schools who either provided support to the Applicant to improve his performance, or assessed him during the TIP, and from a Professional and Ethical Standards officer who was the decision-maker in dismissing the Applicant.
In Lavers v NSW Education Standards Authority [2023] NSWCATAD 170 (Lavers) at [40]-[42] the Tribunal considered accepted the Respondent's submissions in relation to the purpose served by the accreditation framework under the Accreditation Act, as follows:
The accreditation requirement under the [Accreditation Act] functions as a gateway to entry into the teaching profession. A person who is allowed entry to the teaching profession is held out to the public as 'a person worthy of their confidence'. Members of the public, including parents of children in the NSW education system, should be able to have confidence that an accredited teacher has the willingness and capacity to ensure the safety. welfare and wellbeing of the children they teach, to act with integrity, trustworthiness and high moral and ethical values, to comply with relevant standards of practice, and to be an appropriate role model for children and other teachers. Accordingly, in deciding whether a person should be accredited or re-accredited as a teacher, it is appropriate for NESA (and the Tribunal) to have regard to:
(1) the need maintain public confidence in the teaching profession, including by appropriate censure or denunciation of improper conduct and other behaviour that falls short of the high standards that the public is entitled to expect of an accredited teacher;
(2) protecting students, colleagues and members of the public from such behaviour by the person in question in the future (that is, specific deterrence and
(3) deterring others from engaging in similar behaviour (that is. general deterrence).
These considerations are consistent with the protective principle to be applied in administering the Accreditation Act…, and NESA'S principal objective of upholding the standards of the teaching profession… They are also consistent with the principles applied in the context of the admission and discipline of members of other professions.
In the present case the Applicant was found to have failed to comply with four of the seven Standards. The relevant Standards relate both to the Applicant's teaching skills and to his capacity to create and maintain a supportive and safe learning environment. I consider these requirements to be fundamental to a teacher's capacity to deliver a high-quality and effective education to students in an environment that protects their wellbeing, such that they, their parents and other members of the community are entitled to expect of any teacher. In Kent v Secretary, Department of Education [2019] NSWIRComm 1001 to which the Applicant referred, the Commissioner said that the protection of children extends to the protection of children from having the quality of their school education compromised by being exposed to teachers who do not meet the level of performance required by the Department of a proficient classroom teacher. For that reason, the Applicant's non-compliance with the Standards is inherently serious: see s 24B(1)(a) of the Accreditation Act.
The Applicant's non-compliance extended over a significant period of time - he having come to attention in 2018, when his performance as a teacher was apparently the subject of scrutiny for the first time: s 24B(1)(b). He undertook the PD, and then the TIP, both of which entailed detailed assessment and feedback. His performance was observed to be deficient throughout the TIP process, although there was some improvement in the 2nd TIP period. Throughout the process the Applicant was offered additional support. It is doubtful that further training would overcome the identified deficiencies, given that the Applicant had been teaching for in excess of 30 years. In any event, the Applicant's submissions do not suggest that he has taken any steps to directly address the shortcomings identified in his performance, although he appears to have achieved a Certificate IV in Training and Assessment at Tamworth Community College in April 2023, as well as a Diploma of Community Studies in April 2022. I observe, too that the Applicant appears to have undertaken a teaching role at Tamworth TAFE, teaching Certificate 1 level adult literacy in small classes to young adults who were "not suited" to the school system, and this was positively received in the community according to newspaper report provided by the Applicant. The funding for the course, he said, has now been withdrawn. The Applicant conceded that the TAFE environment differed from a school environment. It does not follow that this relatively recent experience serves to overcome the widespread and ongoing deficiencies in relation to the Standards identified in his performance at the School. I cannot be comfortably satisfied that his additional studies and his TAFE role would necessarily produce a result that would mean he is now proficient for the purposes of the Accreditation Act.
Further, while the Applicant was assessed as having performance issues in late 2020 and early 2021, and hence are relevantly recent: s 24B(1)(c). The Respondent made the revocation decision promptly after being notified that the Applicant's dismissal had been finalised.
In view of the extensive opportunities the Applicant had to demonstrate his proficiency, I cannot be satisfied that the Applicant is capable of meeting the Standards that the public is entitled to expect of teachers, including meeting the fundamental expectation that a teacher will be capable of delivering high-quality, effective teaching in an environment consistent with students' safety, welfare and wellbeing. I agree with the view expressed in Lavers that the Tribunal said it was not concerned with the rehabilitation or other concerns of the teacher: at [42].
For these reasons, the correct and preferable decision is that the Applicant's teacher accreditation be revoked under s 24(1)(g) of the Accreditation Act.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 23 September 2024
Parties
Applicant/Plaintiff:
Cantwell
Respondent/Defendant:
NSW Education Standards Authority
Cases Cited (5)
Tribunal's approach
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Respondent's delegate, and there is no presumption that the decision of the Respondent's delegate is correct: at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof in McDonald v Director General of Social Security (1984) 1FCR 353 the Tribunal unless the relevant legislation states specifically to the contrary: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]. The Tribunal may have regard to any policy applied by an administrator except to the extent it is contrary to a 'Government policy' or law or it produces an unjust outcome in the circumstances of the case: s 64(4) ADR Act,