Cantwell v Secretary, of the Department of Education

The evidence

1. The applicant was the only person who gave evidence on his behalf. He suggested that he would like to present evidence to the Commission from former teachers at THS. No statement was filed for any such person.
2. The applicant indicated he wanted to lead any such evidence "privately", only to the Commission. Such a course was rejected by the Commission.
3. The respondent lead evidence from seven witnesses, all qualified teachers. These witnesses included direct and indirect supervisors of the applicant at THS, teachers from other schools who either provided support to the applicant to improve his performance, or assessed him during the TIP, and from a PES officer who was the decision maker in dismissing the applicant.
4. Only two of the respondent's witnesses were cross examined by the applicant.

The applicant's evidence

1. The applicant filed an Outline of Submissions, which contained a mixture of evidence and submissions. The applicant also filed a Reply to the respondent's material. At the hearing of this matter, the applicant agreed with the Commission that the latter was largely a reiteration of the former. (Collectively "the Applicant's Submissions".)
2. The applicant did not add orally to his evidence in chief, being the matters of fact set out in the Applicant's Submissions. The most salient parts of his evidence, from his earlier Outline of Submissions [1] , were: "3. … The terms of dismissal of me are the harshest that the Department of Education may impose. There are questionable actions regarding professional support provided during the programs and the decision to dismiss me was procedurally flawed and contrary to the principles of natural justice. The decision prevents me from continuing a teaching career of 33 years with the Department of Education and in my view severely limits the future earning capacity for me and my family. … 5. The decision by the Department to dismiss me on the 23/11/ 2021 is considered by me to be a harsh, unjust and unreasonable decision as it was based, inter alia, upon a summation report some 14 pages in length, written by the Principal of Tamworth High School, Mr Leyshon which is beset with errors, many of which are fraudulent, fictitious and fabricated observations. I submit … a list of the sixty or so errors and omissions which I consider are embedded in that Report. I have highlighted in heavy type the 26 matters which are of the most concern to me. 6. On the Coversheet, the attestation namely ' In assessing the staff member's performance I have considered all the documentation and observation records generated throughout the improvement program' was signed by Mr Leyshon on 11/3/2021. This would include all Observation Reports, Meeting Minutes and their Attachments. Mr Leyshon in signing the Report has accepted responsibility for any false statements or matters of contention in his Report. … 10. The first 7 weeks of the TIP were supervised by Mr Wilson, then Principal of Tamworth High School who retired at the end of the 2020 school year and was replaced by Mr Leyshon in 2021. A GIPA application for all briefing notes left by Mr Wilson for Mr Leyshon, the incoming Principal only produced an unsigned, undated and partially completed Principal's Report prepared in December. 2020. Mr Leyshon has stated in a Response Document … 'Any reference to a report written by Mr Wilson and its comparison to the Final Principal's Report is irrelevant as the draft report written by Mr Wilson was superseded by the Final Report written by Mr Leyshon. The report was only accessed by [the applicant] via a GIPA and was never intended to form part of the final TIP documentation as it was a draft document.' … 12. The Table on Page 5 of Mr Wilson's Draft Report contain a fraudulent observation of teaching practice on 17/8/2020, a fictitious observation of teaching practice on 24/8/2020, neither of which were carried out by Mr Wilson or Mr Langston. The 17/8/2020 observation which was considered satisfactory was carried out by Ms Genca-Riolo whose name does not appear in the draft report. No observation was carried out on the 24/8/2020. A further observation carried out on 22/9/2020 by Mr Wilson and Mr Langston of the same class as Ms Genca-Riolo, conducted after the five week period of the program had concluded is also missing from the Table. A copy of the Table shown on Page 5 of Mr Wilson's draft report forms Annexure 5. In the Table it is also stated that I did not complete a Professional Learning Activity Annexure 6 is a copy of the completion documents for the course. … 27. It is important to examine the nature of the 60 odd errors, some are purely administrative such as incorrect meeting dates and the like. However knowing the Principal's Report could be used in a Tribunal Hearing the lack of professionalism in writing the Report is deplorable. … … 33. There are 26 irregularities in the Principal's Report which were used to strengthen the Department's case, however there is no entry which strengthens my case against the Department. The Report could therefore be classed as not observing Procedural Fairness and Impartial Decision making as required by Section 3.1. of the Department's Implementation document and could also be considered as biased. Bias is defined in the Cambridge Dictionary be as 'Inclination or prejudice for or against one person or group, especially in a way considered to be unfair.' 34. The Department's explanation that these are 'administrative errors', and I am not addressing performance concerns, and Mr Leyshon's statements that six are merely transcription errors is a poor attempt to distract from the gravitas of these various errors, particularly those relating to the welfare of children, seen by 'many people' who proofed the report." [Emphasis in original]
3. The applicant also gave evidence of what he asserted was a bias by Mr Wilson against older teachers, citing comments allegedly made by Mr Wilson at a school assembly to the effect that 'older staff become stagnant'.
4. He asserted, citing various reports of student misbehaviour, that THS has a study body which was so unruly as to often be unteachable.
5. His evidence was that he had asked for specific support in preparing for lessons, being example lesson plans, which were not provided.
6. He concluded his Outline of Submissions with a summary [2] , being: "75. Mr Wilson and Mr Langston carried out 11 of the 20 class observations during the TIP. Mr Wilson's Draft Report contains fraudulent, fictitious and omitted class observation and other errors, which he used to support his decision to progress to a TIP. Mr Leyshon and Mr Langston knowingly included fraudulent, fictitious and omitted information in Table 1 on Page 3 of the Principal's Report of 11/3/2021. I therefore ask the Commissioner to consider whether any credibility can be given to any observation or comment made by any of these parties during the TIP and whether there have been breaches of The Code of Ethics and Conduct for NSW Government Sector employees which are reportable. 76. Mr Leyshon in his Report included 26 errors which disadvantaged me, but which strengthened the Department's case for dismissal. No errors were made in the Report in my favour. In consideration of whether these errors were genuine or not, the Commissioner should note that Mr Leyshon in the very first Table in his Report knowingly and deliberately included falsified information to substantiate his submission to PES. In response documents Mr Leyshon is now apparently seeking to claim that the errors in his Report, in his words 5 or 6 in total, are merely transcription errors. I disagree with that description. 77. The matters discussed in regard to Working conditions, Student Behaviour, and Professional Support are matters of concern for both myself and students. These matters were largely omitted from The Principal's Report. 78. In view of matters raised in this Submission, I ask the Commissioner in his deliberations to consider whether the program was an Improvement Program or a vehicle by which matters were organised, and if need fabricated to achieve a pre-determined outcome. It should be noted that I am the 38th teacher who has departed Tamworth High School under questionable circumstances. 79. Support Programs and Teacher Improvement Programs are carried out in a manner where strict confidentiality is maintained, breaches of confidentiality are examined, and only persons directly connected with the Program within the school are advised that a teacher is on a program. The majority of staff and students at Tamworth High School would therefore be unaware of the reasons for my departure from that school on 11/03/2021, and of the various reports written in the programs. The Commission's report may therefore clarify the position and bring to the notice of other teachers that Improvement Programs may contain errors which are disadvantageous to a teacher being observed."

Cross examination of the applicant

1. The applicant was cross examined at length, and some significant concessions were made by him. Nevertheless, in large part the applicant's answers during cross examination were consistent with his evidence in chief and consistent with his position as to the unfairness of his dismissal. It was to the applicant's credit that his concessions were made, and he was a witness whose evidence was credible so far as substantive facts were concerned.
2. He did not resile from his essential position that the process which lead to him being placed on the TIP was flawed and procedurally unfair, and he did not resile from his position that he was being judged as to his teaching performance of students who were excessively disruptive.
3. There was a retreat from his position that those who assessed him under the TIP were biased against him, with an acceptance by him that such a characterisation of the assessors was not warranted.
4. There was also some retreat from his position that fictitious and fraudulent observations of his performance were included in the final TIP report. The applicant accepted that the errors identified were simply that, rather than being deliberate or malicious. He did not concede that the errors were minor or insubstantial in the context of a TIP report.
5. Less clear was his position as to whether he had failed the TIP process, and as to why. On their face, some of his answers in cross examination could be taken as a simple concession that he had failed to demonstrate a teaching performance at the required standard. A fairer view of his position was that he accepted that, under the structure of the TIP, he had failed to meet the required performance. He maintained that the process by which the TIP was conducted, the lack of support he received and the conditions generally under which he was required to teach made it impossible for him to have successfully completed the TIP. It was inevitable that he would fail, for reasons beyond his control.
6. It was put to the applicant, and was it clearly true given the applicant's responses, that he put far more effort and time into establishing that he should not have been on the TIP, that the school and the Ministry were biased against him, and there were errors in each and every document of the respondent along the way, than he put into demonstrating that he could teach to the required standard.

The respondent's evidence

1. The respondent lead evidence from seven witnesses, being: 1. Mark Anderson, who was the Relieving Director Employee Performance, within Professional and Ethical Standards in the Department of Education's head office; 2. Daniel Wilson, who had been the Principal at THS until he retired at the end of the 2020 school year; 3. Keith Leyshon, who was the Principal at THS from January 2021; 4. Sam Langston, who was the Deputy Principal at THS, and who prior to this had been the Head Teacher in Creative and Performing Arts ("CAPA") at THS since January 2017; 5. Kristina Poder, who was the Head Teacher in CAPA at THS and who had been the Acting Head Teacher in CAPA at THS at the time of the applicant's dismissal; 6. Simon Warden, who was the relieving Principal at Narrabri High School, a position he had held since February 2022. Prior to that he was the Deputy Principal at Walcha Central School; and 7. Natalie Hill, who was the relieving Deputy Principal at Oxley High School and was substantively the Head Teacher in CAPA at that school.

Mark Anderson

1. Mr Anderson made the decision to dismiss applicant, in reliance on a range of support, but above all else on the basis of the report of Mr Leyshon at the conclusion of the TIP.
2. He described the Australian Professional Standards for Teachers ("APSTs"), which were established in 2004. Until 2018, the APSTs only applied to teachers accredited after the establishment of the APSTs. From 2018, the APSTs also applied to teachers accredited prior to 2004.
3. Mr Anderson described how, pursuant to the APST framework, the applicant was required to maintain accreditation as a Proficient Teacher, the second level, after Graduate Teacher, and before Highly Accomplished Teacher and Lead Teacher.
4. Mr Anderson listed the seven APSTs [3] , being: "1. Know students and how they learn; 2. Know the content and how to teach it; 3. Plan for and implement teaching and learning; 4. Create and maintain supportive and safe learning environments; 5. Assess, provide feedback and report on student learning; 6. Engage in professional learning; and 7. Engage professionally with colleagues, parents/carers and the community."
5. Mr Anderson described in detail a Teacher Improvement Program, including that: 1. A TIP is the final step in a performance management process, so it must be preceded by informal support to address concerns; 2. TIPs consist of an initial 5 weeks of scheduled formal support, during which a teacher's performance is assessed and feedback is given each week; 3. After the initial 5 weeks, an assessment is made by the school principal as to whether sufficient and sustained progress has been made, and if not, the TIP is extended for a further 5 weeks; 4. Because the TIP is the last step in a longer process, strict timelines and strict adherence to those timelines is enforced. Once commenced an extension or pause in the TIP is only allowed in exceptional circumstances; and 5. If at the conclusion of the TIP the principal forms the view that the teacher has failed the TIP, the principal gives the teacher an opportunity to respond. The principal's TIP report and the response of the teacher are forwarded to PES for action.
6. PES conducts its own assessment of a TIP outcome, including a formal internal assessment by a person not connected with the TIP process.
7. Mr Anderson then assesses all the material and if, on an initial basis, he agrees with the TIP assessment, he: 1. Informs the teacher of that initial view and gives them an opportunity to respond. This will include telling the teacher if Mr Anderson is considering placing the teacher on the Not To Be Employed list (NTBE list); and 2. Considers any response from the teacher.
8. Mr Anderson gave a detailed history of his involvement in the applicant's TIP, including that: 1. He first became aware of the applicant when he was asked to, and did, approve a variation to the applicant's TIP in November 2020, which would pause the TIP before the end of the school year in 2020 and recommence it in 2021; 2. In early March Mr Leyshon prepared a final report of the TIP, concluding that the applicant had not met the required standards of teaching in the assessed APSTs. At the meeting where the applicant received a copy of the report on 11 March 2021, he was also given a direction to perform alternative duties away from THS. At that meeting the applicant was invited to provide a response to the TIP report; 3. On 19 March 2021 and on 24 March 2021, the applicant provided respectively a response and a supplementary response to the TIP report. On 10 May 2021 the applicant submitted a further response, although this was outside the 14-day timeframe for him to respond; 4. In May 2021, PES tasked the principal of a different school from THS with reviewing the TIP outcomes, including the TIP report, the applicant's first two responses, and Mr Leyshon's reply to those responses ("Independent Review"); and 5. In August 2021, the Independent Review concluded that the TIP report outcome should be upheld; that is the applicant's performance was not satisfactory.
9. In August 2021, Mr Anderson reviewed the applicant's TIP file, including all the documents referred to above and the Independent Review report, and concluded that: 1. The applicant's performance issues had been raised with him prior to the TIP process; 2. The applicant had received support to improve his performance prior to the TIP being implemented; 3. Despite that support, the Principal and Deputy Principal at THS remained concerned about the applicant's performance and determined a formal TIP was appropriate; 4. The TIP was implemented properly and fairly; 5. The applicant was given the Principal's TIP report to respond to; and 6. The applicant's performance was not up to the required standard and to give effect to the paramount consideration of the protection of children, disciplinary action should follow against the applicant.
10. On 19 August 2021, Mr Anderson sent the applicant a 'show cause' letter outlining his findings, advising that he was considering disciplinary action, including dismissing the applicant, and was also considering placing the applicant on the NTBE list. Mr Anderson gave the applicant an opportunity to respond, and to provide any additional material the applicant thought should be taken into account. The letter attached the Independent Review report.
11. On 31 August 2021 the applicant responded to Mr Anderson, providing both matters of mitigation, and criticising the process and the TIP report.
12. The applicant's response to the 'show cause' letter did not persuade Mr Anderson that the applicant should remain a teacher, and Mr Anderson wrote to the applicant on 12 November 2021 directing the applicant to resign, or face being dismissed if he did not resign.
13. The applicant wrote to Mr Anderson advising he would not resign. Mr Anderson dismissed the applicant on 22 November 2021 and placed him on the NTBE list.
14. Mr Anderson concluded by stating that, in light of his views of the applicant's performance as a teacher, he would be "greatly concerned [4] " if the applicant were re-instated.

Daniel Wilson

1. Mr Wilson was the Principal at THS until the end of the 2020 school year, when he retired.
2. He outlined his career over 37 years as a teacher, as a head teacher, as a deputy principal and finally as a principal.
3. Mr Wilson outlined his understanding of the management of teachers and the need for ongoing professional development in the teaching profession. His evidence was that he had extensive experience supporting teachers struggling to perform at the required standard. His dealings with the applicant were the only time a performance management process he was involved in had run the full course to the end of a TIP.
4. He outlined the TIP process in the same terms as Mr Anderson, and also referenced the importance of the APSTs.
5. He gave a short history of some of his decisions as THS Principal, which eventually lead in 2017 to the appointment of a Head Teacher in CAPA, which was the area in which the applicant taught.
6. The first Head Teacher in CAPA at THS was Mr Langston. Mr Wilson outlined that Mr Langston brought two teachers' performances to his attention as needing support; one of those was the applicant.
7. Mr Wilson described how he and Mr Langston considered the other teacher's performance issues should be focused on first, while attempting to assist the applicant via the general professional development process (PDP). It appears that initially the concerns with the applicant were mostly about the applicant's failure to mark student attendance rolls adequately.
8. Mr Wilson summarised the PDP process, setting out that: 1. The PDP was a general development process, not specifically a remedial one; 2. The primary responsibility for running the PDP with teachers rested with the head teachers in each area; and 3. There was support for teachers via PDP specialists, which he directly told the applicant was available.
9. From 2018 he was aware of performance concerns about the applicant, raised by Mr Langston and Ms Poder. At "some point in 2019" he reviewed a summary of concerns which included [5] : "(a) Incorrect rolls and not marking rolls; (b) Little valuable work being completed [in the applicant's] lessons; (c) Students leaving class; (d) Behaviour management issues; (e) Inadequate lesson planning and preparation; (f) [The applicant's] lack of attendance in faculty meetings; and (g) Not following relevant programs, assessment procedures and Standards."
10. After delays caused by COVID developments in early 2020, and after seeking advice from PES, in August 2020 he placed the applicant on a formal and structured PIP of 5 weeks.
11. Mr Wilson set out several observations he made during the 5-week PIP, largely to the effect of a lack of engagement, planning and interactive learning during the lessons he observed.
12. He concluded that a lack of progress during the PIP required moving to the even more formal TIP process. After seeking PES advise, he conducted a further lesson observation outside the 5-week PIP, which was not positive.
13. After seeking further advice from PES, he and Mr Langston met with the applicant on 20 October 2020 to advise the applicant of the outcome of the 5-week PIP, which was that a TIP would be implemented. Mr Wilson gave evidence that he specifically told the applicant that if the applicant's performance improved, the TIP would not need to run a full course of 10 weeks.
14. He gave very detailed evidence of his observations and assessments of each of the first 7 weeks of the TIP. Noting in particular that after assessing the applicant's progress to the end of week 5, he determined that insufficient progress had been made by the applicant. Accordingly, the TIP would continue into weeks 6 to 10.
15. Several paragraphs from towards the end of his statement capture his views of the applicant's performance [6] : "Summary of [the applicant's] Performance during the TIP 109. At week 7 of the TIP, I was not confident that [the applicant] would pass. Most of the observations were coming back as unsatisfactory, not just mine. The observations I saw showed poor lesson planning, failure to follow THS programs, disengaged students, failure to adhere to the syllabus or meet the APST, poor resource management, ineffective behaviour management and repetitive lessons that were, on occasion, repeated in full. 110. In my view, [the applicant] demonstrated a lack of commitment to the TIP during my period as supervisor and principal at THS. At no point did [the applicant] demonstrate to me that he was willing to engage with the process and take on any feedback that was given to him by any of the observers. In my opinion, [the applicant] was fighting his performance management process throughout 2020 and probably the beginning of 2021. It appeared to me that [the applicant] never fully accepted that it was his responsibility as a teacher to try and improve his performance to a level that is proficient under the Standards. I say this because at the review meetings he spent a significant amount of his time trying to argue technicalities rather than engaging with the feedback; he raised a lot of irrelevant issues and overall he seemed to be focussed on finding fault with the process or with individuals and his performance gave no signs that he was working harder or trying to improve. 111. Although I am disappointed that [the applicant] did not improve and was ultimately dismissed, I am not surprised given his lack of engagement throughout the process. Draft Principal's Report 112. When I was preparing for my retirement on or around the end of 2020, I asked Mr Langston to assist with the preparation of a draft report. The purpose of the report was to assist the incoming principal, Mr Keith Leyshon, when he started in 2021. Mr Langston was familiar with the entire process and would be present for the whole of [the applicant's] TIP. He seemed to be best placed to continue assisting Mr Leyshon when he would have to prepare a Principal's Report at the end of [the applicant's] TIP. 113. I reviewed the first version of the draft Principal's Report thoroughly and adjusted some parts. Consistent with my long held views on leadership development, I utilised this opportunity as a coaching process for Mr Langston who was an aspiring leader. As I was determined to hand over the school to the new Principal in a better shape than I had found it, the development of effective Deputy Principals was one of these ways I could achieve that goal. 114. Prior to my retirement, I did a lot of the administrative work for the TIP, looking through the reports, collecting the copies of the observations, managing the drafts for the meetings and organising the signing of relevant documents like the meeting minutes and observations. I felt comfortable and confident about the decisions that were made during my time as Principal at THS and while I was supervising [the applicant's] performance. … Lesson Plan Example 128. At paragraph 59 of his submission [the applicant] alleges that he was not provided with a sample lesson plan for seven weeks. I saw this as another obfuscation technique. 129. Writing lesson plans is a basic task carried out by teachers. It is surprising that an experienced teacher would say they needed a sample before they could prepare a lesson plan as it is something taught to beginning teachers. 130. In any case, [the applicant] was provided with templates for lesson plans which should have provided sufficient guidance in addition to feedback on lesson plans submitted by him. [the applicant] chose to use an alternative plan template for unknown reasons. My feedback often provided exemplars of better practice. However, I did not and would not write the whole lesson plan for him as [the applicant] needed to demonstrate that he could write the lesson plan himself. 131. A lot of my feedback when I was reviewing his lesson plans advised [the applicant] to stop writing unnecessary information and to develop a lesson plan that could be considered and taught easily by another teacher. Developing learning intentions and success criteria were areas that [the applicant] struggled with throughout the performance management process and at no point did [the applicant] demonstrate that he was properly considering my feedback about his plans." [Emphasis in original]

Keith Leyshon

1. Mr Leyshon was the Principal at THS from January 2021.
2. He has been a teacher since 1995, including 10 years as a head teacher and 10 years as a deputy principal. During those 20 years he has been involved in managing staff performance and responding to performance concerns.
3. In December 2020 he spent 3 days at THS to familiarise himself with issues at THS. One issue discussed with Mr Wilson was the applicant and his TIP. Mr Leyshon was aware that the TIP was due to re-commence two weeks into the 2021 school year.
4. When he commenced at THS Mr Leyshon had discussions with PES and agreed with PES that it would be preferable that the applicant's TIP should recommence two weeks later in the 2021 school year than originally planned.
5. During a meeting to discuss the re-commencement of the TIP, the applicant raised a number of concerns with Mr Leyshon, which Mr Leyshon summarised as [7] : "16. Towards the end of the meeting, [the applicant] summarised his concerns for me to consider in words to the following effect: [The applicant]: It is reasonable for me to question whether you have been informed of: - the poor HSC results of THS, in particular Ms Poder who has achieved one band six in twenty-years; - the misrepresentation of the school by using the phase "Tamworth's leading creative and performing arts school"; - discussions concerning equipment, pre-lesson meetings, choice of observers and observations; - the public response made by Daniel Wilson labelling older teachers as stagnant; - the fact that Mr Wilson ignored advice from PES regarding the number of observers and pre-lesson meetings; - the fact that all these discussions are minuted (often incorrectly); - the unprofessional nature of an email from Sam Langston and another from Daniel Wilson about me [the applicant] and/or the TIP."
6. Mr Leyshon was explicit that he took these issues seriously and considered each of them, including by speaking with other staff, even though in his view many of them were irrelevant to the TIP.
7. He gave evidence of his involvement in assessments under the TIP for weeks 8, 9 and 10 of the TIP. He also gave evidence about assistance given by Mr Langston in drafting the final TIP report, and how Mr Wilson's notes about the TIP had been of assistance. His evidence about the final report was [8] : "42. On 11 March 2021 I completed and signed my report and sent it to the Department. 43. In my report, I recommended that [the applicant] had not made sufficient improvement to meet the standard of performance required for the position of a classroom teacher. The reasons for this are set out in the report … . 44. Mr Wilson's documentation was helpful, and it was also valuable that Mr Langston was across the detail of the TIP. I took their views into account and considered them carefully, but ultimately came to my own conclusion that [the applicant] had not made sufficient improvement and had not been assessed as meeting the level of performance required. 45. Overall six reviewers (Mr Simon Warden, Mr Langston, Ms Poder, Mr Wilson, Ms Hill (an external visual arts teacher) and I) assessed [the applicant's] performance and provided feedback during the TIP. The feedback from the other observers across the period of the TIP showed similar trends and concerns with [the applicant's] performance and on many occasions found the lesson or lesson plan to be unsatisfactory. Based on the volume of unsatisfactory observations and feedback, I had serious concerns regarding his ability to teach. I trusted the opinions and observations of the teachers and external observers who participated in the TIP and prepared the feedback and associated documentation. 46. The observation numbers and associated documentation I considered from all observers included: (a) 13 unsatisfactory lessons from 20 lesson observations undertaken; (b) 16 unsatisfactory lesson plans out of the 24 plans assessed; (c) 5 unsatisfactory student work samples out of 5; and (d) 3 unsatisfactory day book and programs/registrations out of the 7 assessed."
8. Mr Leyshon gave evidence of his involvement in replying to the submissions the applicant made in response to the TIP report.
9. By implication he had no involvement in the decision to dismiss the applicant, saying that he "found out about [the applicant's] dismissal from [Mr Leyshon's manager] in around November 2021. [9] "
10. Commenting on the suggestion that the applicant be reinstated, he said the applicant "… lacks the capacity to teach at a satisfactory level of competence and failed to meet the level of his role at the proficient level in accordance with the Australian Professional Standards for Teachers. [10] " He gave specific examples of why he held this view.

Sam Langston

1. Mr Langston was the Deputy Principal at THS and has been since November 2019. Prior to this he had been the Head Teacher in CAPA in THS since his arrival at THS in January 2017.
2. He gave a history of supervising the applicant, directly as Head Teacher in CAPA and indirectly as Deputy Principal, summarised by his statement [11] : "11. I was involved in [the applicant's] performance development process when I was Head Teacher and remained involved when I was promoted to Deputy Principal. As part of the Process, [the applicant] was provided with: (a) support through the Performance and Development Plan (PDP) each year; (b) clarification of performance concerns March 2020; and (c) a period of formal structured individualised support (5 weeks); before being placed on a TIP (10 weeks). 12. I was involved at every step along the way. I also reported complaints about [the applicant] (from students and teachers) to Professional and Ethical Standards unit (PES) throughout 2018 and 2020. These conduct issues were generally dealt with separately to his performance concerns. 13. From 27 October 2020, I conducted seven observations of lesson plans, six observations of lessons and attended all ten TIP review meetings. 14. During all of my observations and review meetings, I didn't see a desire to improve or a recognition of poor performance from [the applicant]. He continuously made complaints about students or other teachers (including myself and the school as a whole. It appeared to me these were attempts to deflect from his failings as a proficient visual arts teacher. 15. I have never been involved in or have been made aware of another teacher who has been involved in a TIP to have it continue through the whole procedure. These are performance management processes that were uncommon to me as most teachers in my experience can comply with the requirements of the process and correct their teaching practice to an acceptable standard." [Emphasis in original]
3. Mr Langston gave a description of what he described as a "Summary" of concerns about the applicant's performance, and the support given to the applicant leading to the then principal, Mr Wilson, requiring the applicant to be placed on a formal PIP. The issues were set out in a formal letter to the applicant but were summarised by Mr Langston as including not providing lessons for Year 11 for two weeks during COVID on-line learning, inadequate lesson plans left for casual replacement teachers, lack of classroom control, ongoing issues with attendance roll recording, and inadequate communication with colleagues sharing teaching of classes.
4. He gave a description of the PIP, referring to the documented plan in the Respondent's Bundle. He then set out a lengthy and detailed description of the events during the 5 weeks of the PIP.
5. Mr Langston set out that he prepared a report which included a review of the reasons for the PIP, the support provided to the applicant during the PIP and his views on the progress made by the applicant during the PIP. This was so the principal, Mr Wilson, could determine if the applicant had made sufficient progress during the PIP. Mr Wilson determined there was not sufficient progress and it was appropriate to place the applicant on a TIP.
6. It was clear from his evidence that Mr Langton agreed with that decision.
7. Mr Langston set out the process for establishing the TIP in his statement [12] : "49. On 20 October 2020, I attended a performance and development review meeting with [the applicant] led by the Principal, Mr Wilson, which involved: (a) the Principal informing [the applicant] that he had made the decision to move to implement a TIP on the basis there had been 'insufficient degree of improvement' during the individualised support phase; (b) a recap of the initial concerns raised at the commencement of individualised support including compliance with Standards 3, 4, 5 and 7; (c) an outline of the performance and development support strategy that had been followed to date; (d) an overview of the findings of the support plan and that Mr Wilson had seen an insufficient degree of improvement after consulting with PES; and (e) scheduling the initial meeting for the TIP for 22 October 2021. … Step 1: Develop TIP Schedule 52. Carrying out a TIP is a huge investment of time from the teacher, the supervisor and the Principal as well as any external observers or teachers who provide support for the program. 53. I then spent significant time preparing a draft five week schedule for the TIP (TIP Schedule) to present to [the applicant] at the Initial Meeting. This draft was provided to Mr Wilson and Mr Warden for review. … 54. I only prepared the first phase (5 weeks) of the TIP Schedule because quite often teachers will improve and there is no need for the second phase of the TIP Schedule (being a further 5 weeks). I did not assume that [the applicant] would be on the TIP for the full 10 weeks 55. I made sure the TIP Schedule included a variety of professional support opportunities for [the applicant] and I used colours to co-ordinate and show weekly planning and review meetings, observations, release time, tasks and professional learning each week. 56. In developing the TIP Schedule I had to make sure that there was also sufficient time for [the applicant] to attend to his professional improvement as well as his usual teaching. The TIP Schedule included release time from face-to-face teaching to ensure [the applicant] had ample time to focus on his professional improvement. 57. The TIP Schedule was adjusted throughout the TIP to accommodate changing operational requirements of the school and requests from [the applicant]. Step 2: Initial Meeting 58. On 22 October 2020, I attended the Initial Meeting as TIP supervisor with [the applicant], Mr Wilson, Andrew Urquhart (Support Person) Adam Green (Minute Taker) and Mecurious Goldstein (NSW Teachers Federation). 59. The primary purpose of the meeting was for the Principal to present [the applicant] with the TIP Schedule and TIP Plan for his review. I also recall running through almost all of the matters on the Initial Meeting checklist … . Step 3: Meeting to finalise the TIP Schedule 60. On 26 October I attended a meeting with [the applicant], the Principal, Andrew Urquhart (Support Person) and Adam Green (Minute Taker). The purpose of the meeting was to finalise the TIP Schedule and, subject to any amendments, enable the TIP to commence. 61. I remember the Principal talking to a script in the meetings. The script was used as the base for the minutes of the meeting which were provided to [the applicant] afterwards. … [The applicant] was provided opportunity to make changes to the minutes before the final version was signed. This was the same for all review meetings throughout the TIP. 62. During the meeting, [the applicant] was asked to sign the Initial Meeting Checklist, which he refused on the basis that he did not regard the minutes from the previous meeting on 22 October as accurate (for reasons identified in the minutes …). 63. The Principal reminded him that he could contact the SW Teachers Federation or the Employee Assistance Program at any time throughout the TIP. 64. [the applicant] did request some changes to the TIP Schedule, in addition to the ones he had asked for prior to the meeting, such as being provided with calendar invitations to weekly meetings for him and his support person as well as the specific timing of certain lesson observations, as well as defining work samples to be student work samples. 65. I noted these down and after the meeting amended the TIP Schedule to incorporate the requests. I sent a finalised version around to [the applicant] with a few days of this meeting." [Emphasis in original]
8. Mr Langston set out at great length the events of the first 5 weeks of the TIP. He covered this period over some 13 pages and 55 paragraphs. His evidence was that Mr Wilson made the determination to proceed with the second 5 weeks of the TIP because Mr Wilson had determined that the applicant had not made sufficient progress.
9. It was clear from his evidence that Mr Langton agreed with that decision.
10. Mr Langston set out in great detail his views on the inadequacies of the applicant's teaching performance. He detailed failures by the applicant to prepare lessons including written plans, to conduct classes adequately, or to mark rolls. He observed that in his view, the applicant had not listened to or adopted any of the advice he had been given in feedback and had not taken up opportunities to observe other teachers at different schools.
11. Mr Langton set out his evidence of weeks 6 to 10 of the TIP over 7 pages and some 45 paragraphs. His evidence can be effectively summarised by three paragraphs from his statement [13] : "169. In total the observation markings were: (a) lesson: 13 of 20 unsatisfactory; (b) lesson plans: 16 of 24 unsatisfactory; (c) 5 unsatisfactory student work samples; and (d) day book and programs/registrations: 3 of 7 unsatisfactory. … 180. Overall, I was disappointed in [the applicant's] engagement with the TIP. [The applicant] consistently failed to implement obvious and simple learnings from the feedback he was given, including mine. [The applicant's] demonstrated lack of insight over the course of the TIP regarding his performance and inability to receive and implement feedback is evidence that he lacks the ability to improve and perform at the required level demanded by the Standards. I found it incredibly difficult to engage with him and help him, as he refused to accept that he needed help to improve his class management skills, teaching skills and ability to engage children. Many of the learnings would have been simple to implement, such as implementing rules around mobile phone and computer use (as per THS policy), basic classroom behaviour management strategies, marking the roll or consistently doing his daybook and registrations. 181. The overriding emphasis of the TIP was to support [the applicant] to become a successful teacher who was able to teach children. However at the end of the TIP the reality was in my opinion that [the applicant] was not able to improve himself to a proficient level and does not belong in a classroom as a qualified teacher teaching the next generations of our children. …"
12. In relation to the draft TIP report, which was left for Mr Leyshon by Mr Wilson, Mr Langston's evidence was that [14] : "203. Briefly, in response to the points [the applicant] has made: (a) any errors in identifying the teacher who carried out an observation does not change the fact the observation occurred or was marked in a particular way; (b) the errors in the performance and development table are simple mistakes (for example noting a year as 2020 rather than 2021. This table summarises the support provided to [the applicant] at the time, and is useful (even with minor errors) to see the volume of support provided and recorded at the time and the concerns that myself, Ms Poder and the Principal had that gave rise to progressing to a TIP after discussions with PES and several meetings with [the applicant]; (c) references to incorrect Standards were (as indicated by [the applicant]) corrected on 6 August 2020 prior to the commencement of the TIP; (d) [The applicant] alleges that there were 'fabricated' student complaints and class observations on pages 1, 9 and 10 of the report. The complaints and class observations were not fabricated - the dates were simply wrong as explained in the documents …; (e) there are errors in [the applicant's] own complaints including cases where he has confused lesson observations with lesson plan observations. For example he alleges that a lesson observation was conducted on a day he was at the THS swimming carnival. However the document [the applicant] is referring to is a lesson plan observation submitted to me on 17 February 2021; (f) at paragraph 17 of his submission [the applicant] indicates that Ms Genca-Riolo's name should have appeared. He is correct in that her name was inadvertently omitted but the assessment of 'improvement not evidence' was correct." [Emphasis in original]
13. Mr Langston addressed allegations of bias, and in considerable detail refuted comprehensively the suggestion of bias in a manner which was both thorough and persuasive.

Kristina Poder

1. Ms Poder is the Head Teacher in CAPA at THS and was the Acting Head Teacher in CAPA at THS at the time of the applicant's dismissal.
2. Ms Poder has approximately 20 years' experience as a teacher, all in the field of visual arts.
3. She gave evidence of concerns she had about the applicant's performance as a teacher in 2013, and the negative reaction she received from the applicant on raising these issues. She consulted her doctor about the impact of that reaction, and for the next several years interacted with the applicant as little as possible.
4. From 2020, when she became Acting Head Teacher in CAPA at THS, it became her responsibility to address issues of the applicant's performance, and she became active in performance management by the THS of the applicant's performance.
5. Ms Poder gave evidence of her concerns about the applicant's performance, including relating to lack of class control, failure to discipline and report misbehaving students, lack of planning for classes, failure to follow the curriculum, and lack of documented lesson planning.
6. She gave extensive evidence of multiple examples of each of the concerns she had about the applicant's performance outlined above. These included dates, specific examples of each of the issues and often included specific conversations between Ms Poder and the applicant.
7. She also gave evidence of her attempts to use the PDP process to help the applicant to improve his performance. In her view, the applicant did not engage or take seriously the concerns which were raised with him. His response was to deny issues, and to decline to engage.
8. Ms Poder gave extensive evidence that the same or substantially similar issues continued during the period the applicant was on a formal PIP. Again, these issues were set out in considerable detailed and were specific.
9. For the period of the TIP, Ms Poder provided even greater detail of the same or substantially similar issues continuing. It was clear that Ms Poder considered the applicant's performance did not reach the required standard.

Simon Warden

1. At the time of giving evidence, Mr Warden was the relieving Principal at Narrabri High School, a position he had held since February 2022. Prior to that time, and since 2013, he had been the Deputy Principal at Walcha Central School. He had been a teacher for over 20 years.
2. He gave evidence of being a Field Advisor for numerous school regions in Northern NSW. In this capacity he provided guidance to schools in performance management processes.
3. He gave evidence of supporting Mr Wilson and Mr Langston in determining whether it would be appropriate to place the applicant on a PIP and assisted them in preparing the plan. He did not assess the applicant during the PIP, but provided support to Mr Wilson and Mr Langston, and liaised between them and PES on occasions.
4. During the period the applicant was on a TIP, he acted as an external observer of the applicant's performance on a number of occasions. He gave detailed evidence of his observations, but they can be fairly summed up by his evidence under the heading of "Summary" [15] : "62. I found that through the minutes of review meetings and conversations with Mr Wilson and Mr Langston that [the applicant] was very reluctant from the beginning of the TIP to take on feedback, engage with the processes of the TIP and improve his performance. However, during my lesson observations and conversations with [the applicant], he was polite and appeared willing to listen to my feedback. 63. Sometimes this happens when someone external is providing feedback. Nonetheless, I did not feel that [the applicant] was taking on any of my suggestions and following the correct procedures at the school (such as, the mobile phone policy and roll marking) seemed to be a problem for him. 64. During the lessons and lesson plans observed, [the applicant] continuously failed to engage his students and present challenging work which prevented his students from developing their visual arts skills. Students would consistently be on their mobile phone and in one lesson where students were only tasked with colouring in an A4 sheet of paper, many did not finish the task. At the end of each lesson, many students did not produce anything to demonstrate that they were learning something due to their disengagement and general chatter. When THS started using Google Classroom and work was being done online, [the applicant's] performance issues and errors only became more apparent. [the applicant] did not seem to handle online learning very well because of his inconsistent approach to the planning, structuring and sequencing of learning programs (APST 3)."
5. Mr Warden was replaced as an external observer before the end of the TIP, as the applicant asked for observers with more specific visual arts experience and skills.

Natalie Hill

1. Ms Hill was substantively the Head Teacher in CAPA at Oxley High School and was the relieving Deputy Principal at that school at the time of giving evidence. She has been a "Visual Arts, Photography and Visual Design teacher for over 25 years. [16] "
2. She gave evidence of the applicant attending Oxley High School in November 2020 to observe some of her classes as a development opportunity for the applicant. Her evidence was of positive feedback from the applicant of his experience as an observer of her classes, although he did not follow up with her as he indicated to her that he would do.
3. She was not aware at that time he observed her classes that the applicant was on a TIP.
4. In late November she was approached by Mr Wilson to conduct observations of the applicant's classes, as part of the TIP. She was asked because the applicant had sought to have TIP observations conducted by visual arts teachers.
5. Her evidence of her observations was mixed. She marked some planning and some lesson delivery as satisfactory, and others as unsatisfactory. She believed the applicant made some progress by implementing suggestions and feedback she gave on earlier lessons, but it is clear she did not regard the applicant as meeting the required standard of teaching.

Cross examination of the respondent's witnesses

1. The applicant cross examined only two of the respondent's witnesses, being Mr Langston and Mr Leyshon. Neither conceded anything especially substantial or meaningful. Each did their best to answer the applicant's questions, in what was clearly an uncomfortable situation for both.
2. The applicant took Mr Langston through errors in the Principal's final TIP report, pointing to some substantial errors, such as lesson assessments incorrectly recorded as being assessed as unsatisfactory, when they were in fact assessed as satisfactory. Mr Langston's position was that the errors identified were not sufficient to change the substance of the TIP report. Mr Langston's lack of recollection of some details of the TIP report was somewhat unexpected given its central place in the dismissal, and his assistance in drafting the report. Nevertheless, the document speaks for itself, and ultimately it is not Mr Langston's document.
3. It was put to Mr Langston that the applicant had been required to work excessive hours to respond to the demands of the TIP. Mr Langston's response was that the hours of work suggested by the applicant were not reflected in the applicant's teaching performance during the TIP.
4. Issues around the use of a particular school motto were put to Mr Langston, but I do not accept that these provided any evidence of relevance to the issues before the Commission. They did not bear on the process leading to the TIP, the process of the TIP, the performance of the applicant or the suggested biases of those assessing the TIP.
5. Mr Langston did not agree that the applicant was starved of supplies. He did not agree that the applicant's teaching performance was unfairly assessed in respect of students with excessively bad behaviour. Mr Langston was clear that, in his opinion, other teachers faced with the same cohort and behaviours were able to meet the required standard of teaching.
6. Mr Leyshon was also asked a series of questions about the Principal's final report on the TIP, which was made in Mr Leyshon's name. Like Mr Langston, Mr Leyshon acknowledge there were a number of errors, but did not accept they changed the overall effect of the report as fair and as properly assessing the applicant as having failed to meet the required standards.
7. Mr Leyshon agreed with the applicant that he relied heavily on Mr Langston, and to some extent Ms Poder, in reaching his conclusions about the outcomes of the TIP.
8. The applicant put to Mr Leyshon an analogy of a struggling student having their workload reduced and suggested a teacher struggling to reach a satisfactory standard in a TIP should also have their workload reduced. Mr Leyshon did not agree the analogy was relevant, as the teacher is in a different position from such a student. His view was that a teacher needs to meet the standards to be a teacher, whereas a student's needs should be accommodated, regardless of their ability. He disagreed in any event that the applicant had an excessive load. His evidence was that the applicant was underload for teaching during the TIP.

Consideration of the evidence

1. The respondent's case was substantial and extensive. It covered the lead up to the applicant being placed on a TIP, the establishment of the TIP, the TIP proper, and a process after the TIP for the applicant to respond and for the respondent's internal processes to review and consider the TIP and the applicant's responses.
2. There is no sense in which it could be said that the respondent has failed to fully, fairly and properly follow a process to assess the performance of the applicant under the TIP; nor to put before the Commission evidence which shows each of those steps.
3. 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 cross examined and it was never seriously suggested to either of those two that their expressed opinions as to the applicant's performance were wrong.
4. The applicant did not expressly concede that his teaching performance was substandard, although he did effectively concede he had failed the assessment of his performance through the TIP.
5. The Commission is satisfied that the evidence shows that the applicant failed the TIP, and that this assessment was the correct professional assessment of the applicant's performance through the TIP.
6. It is also clear that the applicant was given support and feedback through the TIP, and indeed prior to the TIP. He was afforded an opportunity to respond to the TIP report and to the conclusion that he should be dismissed. He took up those opportunities.
7. The applicant's case as to the unfairness of his dismissal is, however, not fully addressed by those conclusions. His case relies on unfairness in being placed on the TIP, a lack of support provided to him during the TIP, bias against him by those conducting the TIP and errors in the final TIP report being so substantial that it could not fairly be relied upon.
8. Based on the evidence before the Commission, there is little to any but one of these complaints.
9. The evidence of the respondent's witnesses, which was barely challenged by the applicant at hearing, was overwhelming in showing that the respondent had good and substantial reasons to require the applicant to undertake a TIP. The applicant conceded the Principal, Deputy Principal and Head Teachers in CAPA at THS had all raised concerns about his performance prior to the TIP process, and indeed during informal and then formal processes to address those concerns.
10. The evidence does not support the applicant's case that he was not given support during the TIP. His claims concerning supplies, hours of work and lesson planning examples were convincingly contradicted by the respondent's witnesses. The applicant conceded the evidence of Ms Poder and Mr Langston that he was more focused on establishing errors in the TIP process than he was on demonstrating his ability to meet the performance standards.
11. The applicant conceded during cross examination that his perceptions of bias were not supported by objective evidence.
12. The evidence concerning errors in the final TIP report was however concerning. The respondent dealt with the errors in a way which does satisfy the Commission that the report can be relied on as a fair basis to substantiate the failure of the applicant to meet the required teaching standards. But it is not appropriate to waive away those errors in the way the respondent and its witnesses sought to do at the hearing of this matter.
13. Doubtless some grammatical errors and some spelling errors might be expected in any lengthy document. But inaccurate recording of dates of assessments, inaccurate recording of the outcome of assessments, and of the assessor should not be expected in a TIP report. It is after all a document that founds an assessment that a teacher is incapable of meeting the required standards of teaching.
14. It is regrettable that so many errors were to be found in the final version of a TIP report. This has had the understandable effect of distracting the applicant's attention when it should have been solely focused on his teaching performance.
15. The respondent is, in this case, able to overcome the errors in the TIP report as it has the supporting evidence to establish the dismissal was fair, and this was produced to the Commission.

Submissions

1. The applicant's submissions have largely been addressed above. Both in the Applicant's Submissions filed prior to hearing and his summation at the conclusion of evidence, his position was limited to those submissions, and did not directly address any specific sections of the Act or previous cases. This is understandable as the applicant was appearing on his own behalf. It was clear how he submitted his dismissal was unfair.
2. In his oral submissions for the respondent, Mr Britt of counsel largely took the Commission through the facts in the manner set out in the Respondent's Outline of Submissions filed before the hearing. The facts as they fell from the evidence before the Commission were substantially as the respondent had asserted they would be in their Outline.
3. The way Mr Britt submitted the evidence should be analysed was substantially in accordance with the summary of the facts as set out in [110-124] above, save as to the magnitude of errors in the final TIP report. Mr Britt pressed for finding that the errors were superficial. The Commission has already addressed this submission.
4. The respondent's oral submission took the Commission through relevant matters set out in section 88 of the Act. It was submitted that: 1. The applicant was given a reason for the dismissal; 2. The reason had a basis in fact, and that the applicant was given an opportunity to make out a defence or give an explanation; and 3. The applicant was warned at length about his unsatisfactory performance, and indeed given significant opportunity to improve that performance.
5. The respondent also took the Commission to section 5A of the Teaching Service Act 1980 (NSW), submitting, as is set out in the Respondent's Outline of Submissions, that: "6. Section 5A of the Teaching Service Act 1980 (NSW) (Teaching Act) requires that the protection of children is the paramount consideration in dealing with any unfair dismissal claim. 7. The protection of children extends to protecting them from anything less than competent teaching. The Department is required to ensure that children are protected from incompetent, ineffective, hopeless or indolent teachers. This includes teachers 'whose unsatisfactory performance arises from an inability to demonstrate effective classroom management or an inability to provide a safe and challenging learning environment'." [Emphasis in original]
6. In oral submissions, Mr Britt took the Commission to the decision of Commissioner Newell in Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045, citing parts of the Commissioner's reasons from paragraphs 21 and 23, and then from 12: "21. … 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. … 23. … 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." "12. 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."

Consideration of submissions

1. Given the Commission's findings as to the evidence, there is no doubt the applicant was told of the reason for his dismissal, and that the reason had a rational basis in fact.
2. It is also clear that the respondent reached its decision to dismiss the applicant through a process that was procedurally fair leading up to the TIP and in analysing the outcome of the TIP. That is, the respondent told the applicant it was concerned about his performance as a teacher, gave support and opportunity to the applicant to reach the required standard, and gave him a fair opportunity to respond to the conclusion that his performance warranted dismissal.
3. Accordingly, it is inevitable that the Commission finds that the dismissal of the applicant was not harsh, unreasonable or unjust, and is therefore not unfair. This is so even without consideration of section 5A of the Teaching Service Act. Should there have been any suggestion that dismissal was harsh, that would have been removed by section 5A.
4. Given this conclusion, issues of reinstatement, re-employment or compensation do not arise.

Order

1. Pursuant to section 87(1) of the Act, the application is dismissed. C Muir Commissioner

Endnotes

1. Ex A1
2. Ex A1
3. Ex R8 at [22]
4. Ex R8 at [84]
5. Ex R9 at [49]
6. Ex R9
7. Ex R15
8. Ex R15
9. Ex R 15 at [55]
10. Ex R15 at [56]
11. Ex R13
12. Ex R13
13. Ex R13
14. Ex R13
15. Ex R11
16. Ex R12 at [5] 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: 10 February 2023