Commissioner of Police v Raymond Sewell

Industrial Relations Commission (NSW)|2008-07-22|Before: Walton J, Haylen J, Sams DP

CITATION: New South Wales Department of Education and Training and New South Wales Teachers' Federation (on behalf of Debra Balsters) [2008] NSWIRComm 151

APPLICANT: New South Wales Department of Education and Training PARTIES: RESPONDENT: New South Wales Teachers' Federation

CORAM: Walton J Acting President; Haylen J; Tabbaa C

LEGISLATION CITED: Industrial Relations Act 1996 (NSW) Ch 2 Pt 6 Teaching Service Act 1980 s 93B(1)

Commissioner of Police v Raymond Sewell [2008] NSWIRComm 147 at [5] Nsiah v Department of Education and Training [2006] NSWIRComm 351 CASES CITED: NSW Department of Education and Training v Cassis [2007] NSWIRComm 158 at [88] Pitcher v Langford (1991) 23 NSWLR 142 at 149A Port of Melbourne Authority v Anshun Pty Ltd (1981) 140 CLR 589 at 610 WorkCover Authority v Lucon (2002) 112 IR at 349

APPELLANT: Mr S Benson of Counsel Assisted by Mr S Oom New South Wales Department of Education and Training LEGAL REPRESENTATIVES:

RESPONDENT: Mr N Dawson, Solicitor SOLICITORS Federation Law Pty Ltd

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WALTON J, Acting President HAYLEN J TABBAA C

Matter No IRC 310 of 2008 NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING AND NEW SOUTH WALES TEACHERS' FEDERATION (ON BEHALF OF DEBRA BALSTERS) Application by New South Wales Department of Education and Training for leave to appeal and appeal against a decision of Deputy President Sams given on 25.2.2008 in matter No IRC 925 of 2007

1 In May 2007, Ms Debra Balsters was dismissed from her position as a teacher by the Department of Education and Training ("the Department") acting pursuant to the provisions of s 93B(1) of Teaching Service Act 1980. Ms Balsters had been teaching for 16 years and since 1992 had usually taught Years 5 and 6 at Lake Munmorah Primary School. Although Ms Balsters had been annually reviewed since 2000 and had been found to be satisfactory in her performance as a teacher, in 2006 issues arose which resulted in the school Principal requiring Ms Balsters to enter into a 12 week Teacher Improvement Programme ("TIP") for the purpose of reviewing Ms Balsters' performance during that year. At the conclusion of that process, the Principal determined that Ms Balsters failed to demonstrate the standards required of a classroom teacher and in early September 2006, Ms Balsters was removed from the school and directed to perform non-teaching duties at a District office operated by the Department. In February 2007, Ms Balsters was informed that the Department was considering disciplinary action against her and while representations were made on her behalf by her Union, the New South Wales Teachers' Federation ("the Federation"), in May 2007 she was advised that her services were terminated. 2 The Federation duly filed an application under Pt 6, Ch 2 of the Industrial Relations Act 1996 challenging Ms Balsters' termination as being harsh, unreasonable or unjust and seeking her reinstatement as a teacher. That application was ultimately dealt with by Sams DP and in a lengthy Decision delivered on 25 February 2008 his Honour found that Ms Balsters' dismissal was harsh and unreasonable within the meaning of Pt 6 Ch 2 of the Act and ordered her reinstatement to the position of primary school teacher at Lake Munmorah Primary School or such other school as may be agreed between the parties. The Department was ordered to pay Ms Balsters an amount equivalent to that which she would otherwise receive had she not been dismissed in May 2007. That amount was to be less any remuneration earned by the applicant since her dismissal and until reinstatement. The applicant's period of employment was taken not to have been broken by her dismissal in May 2007. 3 The Department has sought leave to appeal and has proposed numerous grounds of appeal against the Decision of Sams DP. The parties were able to reach agreement on the terms of a stay order pending hearing of the appeal and a stay on that basis was granted by Staff J on 13 March 2008. In part this involved Ms Balsters being employed in non-teaching duties. 4 The proposed grounds of the appeal attack many aspects of his Honour's fact finding and conclusions on the evidence and in particular call into question his Honour's conclusion that the assessment of Ms Balsters' performance did not properly take into account the fact that during (and before) the review period, there were two students in her class who exhibited challenging and uncontrollable behaviour arising from their mix of various mental disorders. It was also asserted that, even if Ms Balsters did not have specific training to deal with students suffering from Tourette's Syndrome or in the handling of violent student behaviour, it was not explained how such a finding excused Ms Balsters from meeting fundamental teaching standards. 5 At the heart of the Department's application for leave to appeal and if granted, the substance of the grounds of appeal, was the statutory requirement imposed by the Teaching Service Act 1980 and the key principles relating to teaching efficiency namely, that students have a right to be taught by competent teachers and that teachers are responsible for performing their duties efficiently and competently. 6 In essence, it was contended by the appellant that, when considered in the light of these requirements, the failure of Ms Balsters to fully satisfy the minimum teaching standards set by the Department during the TIP must have resulted in the dismissal of her application at first instance. It was contended, therefore, that his Honour must have paid insufficient attention to the requirements of the Teaching Service Act or misunderstood or misapplied the outcomes of the TIP. 7 This was the gravamen of the case for the applicant for leave to appeal, although the appeal proper contained many related challenges to findings of fact made by his Honour in the context of the consideration of these issues. 8 The principles applicable to the determination of applications for leave to appeal under s 188 of the Industrial Relations Act are well settled. It is sufficient to adopt the recent succinct statement of the relevant principles in Commissioner of Police v Raymond Sewell [2008] NSWIRComm 147 at [5], as follows: [5] There have been a significant number of authoritative statements in this jurisdiction addressing the circumstances under which leave to appeal should, ordinarily, be granted. A clear statement of the principles on leave is provided in Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380. Those principles were adopted by the Full Bench in Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 (at [5]). We consider that that passage from Hosemans neatly summarises the state of the Commission's jurisprudence on the question of leave and, hence, we will set it out in full below: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381-382) and, subject to the requirements of s 188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Second, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Ltd (2005) 146 IR 113 at [5]. 9 If the application for leave to appeal hinged upon the appellant's various challenges to findings of fact or upon the notion that his Honour had effectively ignored the relevant principles (as was suggested in one aspect of the appellant's contentions) then we would have refused leave to appeal based upon the aforementioned leave principles. We would have done so because the appellant had merely recanvassed some issues of fact (which were otherwise reasonably open) and because the so called issues of principle had no substance because his Honour had, in fact, properly considered the relevant principles. 10 However, we do consider that leave to appeal should be granted to examine what we have described above as the 'gravamen' of the application for leave to appeal. We do so because of the general significance of the provisions of the Teaching Service Act and Teacher Improvement Programmes for the teaching service in New South Wales and, in particular, the discipline of teachers within it. Those matters fall squarely within the relevant leave principles. 11 Having decided to grant leave to appeal on that basis we would hasten to add, however, that the appeal also raised questions of a broader character (and ones squarely considered by his Honour) concerning the fair application of the TIP (including steps taken prior to its commencement) and disciplinary processes conducted in the wake of adverse outcomes from that process. The Commission was required to (and did) have regard to these matters in assessing whether the dismissal of Ms Balsters was harsh, unreasonable or unjust for the purposes of s 84(1) of the Industrial Relations Act. Those matters were, in our view, properly weighed in the balance by Sams DP after having due regard to the requirements of the Teaching Service Act and the outcomes of the TIP. In those circumstances, he was entitled, for reasons we will now give, to find that the dismissal of Ms Balsters was harsh and unreasonable and to exercise his discretion to reinstate her. For those same reasons the appeal will be dismissed. 12 In the course of his reasons for decision, Sams DP accepted the force of the submission made on behalf of the Department that it was imperative for the Commission in determining a matter of this nature to ensure the protection of children. His Honour specifically referred to that imperative arising from the 2006 amendments to the Teaching Service Act 1980 providing as follows: Section 5A. Protection of children to be paramount consideration. (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or a temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. 13 Sams DP accepted the proposition (not contested by Ms Balsters) that the term "protection of children" extended to the protection of children from teachers whose unsatisfactory performance arose from an inability to demonstrate effective classroom management or an inability to provide a safe and challenging learning environment. His Honour said: To put it bluntly, the Teaching Service Act requires the Department to ensure that children are protected from incompetent, ineffective, hopeless or indolent teachers.

In adopting this approach, his Honour accepted and endorsed what was stated by a Full Bench of the Commission in NSW Department of Education and Training v Cassis [2007] NSWIRComm 158 at [88], that: There can be no doubt that the welfare (and protection) of children is the paramount consideration in proceedings such as the present. This must be determined objectively with the assistance of the employment screening result. It is necessary to take all other factors into account. 14 His Honour further agreed with a statement made by Grayson DP in Nsiah v Department of Education and Training [2006] NSWIRComm 351 namely, that incompetence and/or ineffectiveness on the part of a teacher had the potential to adversely affect the educational outcome for students. His Honour distinguished the result in Nsiah on the basis that there was no evidence that the educational outcomes of the students in Class 5B at the school in 2006 were adversely affected and it was noted that, in fact, the undisputed evidence was that they were not. Although expressing this view, his Honour also accepted that there were other factors that had to be taken into account when determining the Application. In expressing himself in this way, his Honour clearly understood and applied the requirements of Ch 2, Pt 6 of the Act and also applied the principles laid down by the Full Bench in Cassis. 15 In substance, while accepting the principles referred to above, his Honour looked beyond the fact that children were behaving badly and appeared to be disconnected from the learning exercise during Ms Balsters' classes and found evidence that there were behavioural and medical reasons why, in at least two students, that behaviour may be evident and judged the effect of their behaviour on the class as a whole. In particular, it was noted that matters, if anything, became worse in relation to the behaviour of these students after Ms Balsters was removed. It was, in this respect, that his Honour found that the Department's process was flawed in that it did not look beyond the behaviour of the students but was content to judge Ms Balsters' teaching capacity by the fact that she could not control children in the class, especially two who were suffering Tourette's Syndrome. The evidence before his Honour was that children with Tourette's Syndrome became anxious and had "ticks" which could cause them to be noisy, to whistle, blink, hum, click or swear. When their anxiety resulted in uncontrollable behaviour, account had to be taken of the fact that this was a symptom of the Syndrome and it did not necessarily follow that the misbehaviour was a result of Ms Balsters' incompetence as a teacher in that she was not able to control those students by the use of well understood teaching practices. 16 His Honour drew support from the fact that over a long period of time (including six formal annual assessments) there had been no hint of incompetency in an otherwise unblemished 16 year teaching record. The evidence showed that Ms Balsters had the support of fellow teachers who were able to observe her over an extended period of time (rather than in the short period in which the formal observations were undertaken under the Improvement Programme). There was evidence of parent satisfaction with her teaching methods (including letters of support from parents of children who had behavioural difficulties) and further indications that there was some other reason or reasons for the misbehaviour of the class other than Ms Balsters' incompetence. The Department was unable to produce records of complaints that had been received from parents and students regarding Ms Balsters' competency as a teacher. Contrary to the submissions for the appellant, there was evidence that the behaviourally challenged children nevertheless were learning as demonstrated by the basic skills testing. In her evidence the Principal, Ms Miller, did not suggest that in relation to a particular student that his learning in the basic skills area did not improve while he was in the hands of Ms Balsters. Later, Ms Miller agreed that there was nothing to be found from the basic skills test results to suggest that in 2006 Ms Balsters' students had suffered learning difficulties. 17 The significance of the evidence of the Principal that there was nothing from the students' basic skills test results to suggest that in 2006 their learning suffered whilst in the hands of Ms Balsters is that the Department found that she was not competent in relation to two of seven standards namely, the requirement that the teacher communicates effectively with their students and that the teacher creates and maintains a safe and challenging learning environment through the use of classroom management skills. In giving consideration to "a range of other factors", his Honour was entitled to look beyond the fact of disruption and disconnection with lessons in the classroom and to consider those matters in a wider context that involved evidence of Ms Balsters' unblemished 16 year career as a teacher, the support of her fellow teachers who were in a position to observe her over a long period of time, the support of parents in relation to their children (including challenged children) and the fact that there was no evidence from the basic skills test results to suggest that their learning had suffered during the 2006 period while Ms Balsters was their teacher. These considerations were all available on the evidence and were relevant to the process in which his Honour was engaged. Despite the disruption in the class and the findings of review teachers that there were problems with Ms Balsters' teaching, it was open to his Honour on the basis of that evidence to find the decision to terminate her as a teacher was harsh and unreasonable. 18 It is of note that the procedure for managing teachers experiencing difficulties with their teaching performance included a responsibility for the Department "to provide appropriate support" and to take "appropriate action, including dismissal" when it was evident that a teacher's performance had failed to improve. In this context it was relevant, as his Honour found, that Ms Balsters had not been trained to deal with students suffering from Tourette's syndrome and had not been trained to deal with violent and disruptive students suffering from other disabilities. Although there was evidence of her long, unblemished teaching career and that the Principal found her to be a "dedicated teacher" and that she had tried hard during the improvement programme and did in fact demonstrate improvement during the review, there was no evidence of the Department giving consideration to any other "appropriate action" (as required under the procedure) than the dismissal of Ms Balsters, apart from giving consideration to extending the Programme by two weeks. It is unclear what was to be achieved by extending the Programme in this way but specifically, no consideration was given to changing the class mix, offering Ms Balsters duties at another school, offering training to equip her with the skills to manage all types of classes or to discuss with her what other options, including support, might be appropriate. 19 The focus of the Department's case before Sams DP was that, once there was a finding of a failure to control the class and evidence of the students being disconnected from their lessons, then those facts alone inevitably led to the conclusion that Ms Balsters was failing in two essential teaching requirements, was an incompetent teacher and that dismissal was appropriate. His Honour was entitled to take a broader view to test the fairness of the decision to terminate. In that exercise, the following matters were of relevance: (a) there were two students in Ms Balsters' class who suffered from Tourette's Syndrome. One of the student's behaviour in May 2006 was described as "unacceptable" and the other had a mixture of problems, including not only Tourette's Syndrome but excessive/compulsive disorder and a mixed conduct and emotion disorder. After Ms Balsters had left the school those students continued to be difficult and were suspended on a number of occasions; (b) it was "rare" to have two students in a class who suffered Tourette's Syndrome and it was his Honour's conclusion that the uncontrolled behaviour of the two students was such that it would have been the same, irrespective of who was the teacher; (c) it was only after Ms Balsters left the school that training was provided to teachers to deal with Tourette's Syndrome but nevertheless, one of the students continually remained disruptive; (d) there were poor relations between some of the students and a number of students were involved in the misbehaviour. Nevertheless, no one was actually injured in Ms Balsters' class and the Principal of the school accepted that she was a "committed teacher"; (e) the Principal stated in evidence that the implications of having a student in the class suffering from Tourette's Syndrome was not considered in the lead-up to placing Ms Balsters on the TIP, and it was not known that there was another student in the class who suffered from the same difficulties. The Principal had never taught a class containing two students suffering from Tourette's Syndrome but she had taught a class where there was one such student; (f) the Principal was not aware that 10 of the 18 students in the class had been referred to the school counsellor. She had not offered Ms Balsters any training in non-violent crisis management; (g) after Ms Balsters left the school, one of the students remained a very difficult student to manage and had been suspended in October 2006 and in March and April 2007; (h) the Principal, along with others who had participated in the TIP, had no formal training in the use of that procedure. However, during the TIP process, Ms Balsters demonstrated improvement and it was accepted that she always worked hard, including through the TIP process; (i) the Principal agreed that, during early 2006, there was considerable outside disruption for this class; (j) Ms Balsters was not consulted about the removal of the Year 6 students from her class, nor the ramifications of that move in circumstances where Ms Balsters considered that those students provided appropriate role models and leadership for the disruptive students; (k) one of the disruptive students had stated that he had got rid of every teacher who had taught him; (l) it was agreed that the class was not typical because it contained two students suffering from Tourette's Syndrome, although it was suggested that the class was no more challenging than others.

All of these matters show that there was a great mix of factors that, in fairness not only to the students but to Ms Balsters, had to be taken into account by his Honour in dealing with an application for reinstatement under Part 6, Chapter 2 of the Act. 20 Two other grounds for appeal demonstrate the difficulty facing the Department in this application for leave to appeal and to appeal the decision of Sams DP. It was asserted that his Honour gave little or no effect to the procedures concerning the minimum level of satisfactory performance of a teacher but that submission is without foundation. At the outset of his consideration of the evidence, his Honour embraced the principles set out in the Teaching Service Act 1980 and the guidance of the Full Bench in Cassis in giving primacy to the protection and welfare of the students. His Honour did not abandon that course simply because he took a different view to the Department, or took into account a number of relevant matters that apparently the Department did not feel constrained to consider. 21 Secondly, there was a complaint that his Honour did not conduct a strictly two-stage approach to the application firstly, by determining whether the alleged conduct had been established before proceeding to consider whether the decision to terminate was harsh, unreasonable or unjust. That submission can properly be described as hidebound and ignores the substance of the approach undertaken by his Honour. It is the substance of the matter that needs to be considered rather than the form of the decision (Port of Melbourne Authority v Anshun Pty Ltd (1981) 140 CLR 589 at 610; WorkCover Authority v Lucon (2002) 112 IR at 349). In substance, his Honour looked at the evidence of classroom disruption and the history of Ms Balsters' referrals of conduct and, accepting that the classroom conduct occurred, then looked to the evidence to see if it could be established that it was Ms Balsters' incompetence that was responsible for that behaviour. The particular circumstances of the case under consideration may tend to mask the process undertaken by his Honour but on a proper consideration of his Decision, there is no identifiable error in his approach in undertaking the exercise required by the Act. 22 A significant matter raised by the Department on the application for leave and on the appeal itself was the allegation that, during the classroom observations carried out throughout the Improvement Programme, there was no evidence of "challenging and uncontrollable behaviour" (especially by the two students suffering from Tourette's Syndrome) that was necessary to consider in assessing Ms Balsters' competence in relation to two identified essential standards required of classroom teachers. However, that submission was at odds with the evidence: · Ms Balsters, in fact, came to attention because of what was regarded as an inappropriately high number of disciplinary referrals to the school executive and having considered those referrals, the judgement was made that she was not adequately controlling the children in the classroom; · in early March 2006 in a meeting with the Principal and the Deputy Principal, Ms Balsters denied having trouble managing the class and similarly at a meeting in late May 2006 had denied having any difficulties or any issues with classroom management. These were issues raised by the school; · in August 2006, Ms Balsters had been sent to a one-day "behaviour management course"; · in August 2006, the Principal had told her that there were still concerns about her performance and it was emphasised that she was in charge of the class although Ms Balsters stated that she did not believe she had lost control, but was simply following school policy by referring misbehaviour according to the school's disciplinary policy; · Ms Caban, a teacher at the school for 13 years, in late September 2006 had written to the Department concerning the behavioural problems of six students in Ms Balsters' class, having previously taught some of these students and in particular the two who were now known to be suffering Tourette's Syndrome; · the Principal's final report was said to be concerned with Ms Balsters' ability to manage the class consisting of all types of children. The Principal had said in evidence that the Departmental policy was that teachers must manage all forms of behaviour, no matter how bad; · the Deputy-Principal's evidence was that Ms Balsters was a teacher who required more support than others and her dependency on outside support to manage class behavioural problems escalated in 2005 and came to a head in early 2006. She had been aware that, at the end of 2005, there were an inordinate number of referrals by Ms Balsters of students under the "buddy class" system, being the third stage of the disciplinary flow line where a student would be referred to another class for "time out" and to reflect on their behaviour; · the Deputy Principal said that she had regularly dropped into Ms Balsters' class to assist with discipline. It was her hope that the Teacher Improvement Programme would assist Ms Balsters and she was surprised when Ms Balsters expressed the view that she was not experiencing any difficulties, nor that there were any issues of classroom management; · Ms Van Egmond had observed classes conducted by Ms Balsters and believed that the behaviour of some of the students was unacceptable under Ms Balsters' management and that it was Ms Balsters' job to improve her teaching in order to support the students; · Ms Gibson the Assistant Principal, Behaviour, for the North Lake team (embracing some 18 public schools), said that her principal function was to supervise a team of specialist support teachers and that team supplied support and training for parents and staff in relation to students with behavioural or disability problems. That is precisely why Ms Gibson was asked to provide assistance to Ms Balsters at the beginning of Term 2 in 2006 to initially focus on strategies in relation to one particular student and to give guidance on broader strategies for managing other students. The whole focus of Ms Gibson's participation was to assist Ms Balsters in maintaining management of the class where behavioural problems were present; and · there were also entries in a number of the classroom assessments noting disruptive behaviour by certain students and how that behaviour affected the other pupils in the class. 23 In light of this extensive evidence, the Department is not able to sustain the submission that there was no evidence of significant disruptive behaviour or serious disruptive behaviour by the two students suffering from Tourette's Syndrome noted in the assessments, or that it was appropriate to entirely focus on pure teaching standards unrelated to the control of student behaviour. Further, as already noted, Ms Caban had identified six students in Ms Balsters' classes exhibiting behavioural problems and Ms Knight had described a period in which she had taken the 5B class as "the worst five days of her career" and that as a group the 5B children were difficult although individually appeared to be friendly and co-operative. The Principal was not aware that 10 of the 18 students in Ms Balsters' class had been referred to the counsellor. All of this evidence went to establish that this mix of children exhibited a variety of difficulties and that as a group, they were difficult to teach. That difficulty was exacerbated by the variety of disabilities affecting two particular students who were very disruptive in class. While Ms Balsters, Ms Knight and Ms Cabin saw these difficulties, the Principal and the Assistant Principal thought the number of disciplinary referrals from Ms Balsters was unduly high because they were of the view that a teacher was expected to manage a child's behaviour no matter how bad. 24 Another issue of some importance raised during the proceedings was whether or not it was alleged that the Teacher Improvement Programme, overall, was flawed, even though it was the result of a co-operative effort participated in by the Teachers Federation and the Department. The genesis of this issue was the finding by Sams DP that the confluence of unfortunate and unrelated circumstances had placed an unfavourable spotlight on Ms Balsters' class and focused the school executive on the need to establish the cause of the discontent. In his Honour's assessment, the focus on Ms Balsters alone was misdirected and ultimately unfair. Other evidence revealed that there was a much wider and more profound problem than simply one or two troublemakers. The support provided to Ms Balsters prior to the TIP was insufficient in the context of the students in the classroom: this approach ultimately produced a flawed outcome and an unfair result for the appellant. Ms Balsters' explanations sat comfortably with a teacher who, up to that point, had 16 years unblemished record. 25 These statements and findings by the Deputy President do not suggest that the Teacher Improvement Programme itself was flawed, but rather that the flaws occurred in the process leading to Ms Balsters' placement on the Programme and the process used at the school to apply the Programme. Key members participating in the Programme had not been trained in the use and application of the Programme. The same level of support given to the Principal in dealing with this class after Ms Balsters' removal was not present prior to her removal and her placement on the Programme. Even in those circumstances, Ms Balsters was never moved to suspend students although that severe approach was required after her removal. The process was flawed by not taking into account the fact that there were a number of students with difficulties and the unusual event of two students in the same class suffering from Tourette's Syndrome. It was also a flaw in the process that Ms Balsters was being measured against an unfairly rigid requirement that a teacher had to control the children no matter how bad their behaviour and regardless of the cause of that behaviour, eg a medical or other condition (although we do not suggest that such an approach is inherent in the TIP system). There were a number of measures available to control that behaviour including the referral process, the use of support staff and ultimately the sanction of suspension. The Principal had the benefit of additional support but still found it necessary to suspend students on more than one occasion after Ms Balsters had left the class. 26 The process was also unfair in that the procedure for managing teachers experiencing difficulty with their teaching performance included a responsibility for the Department "to provide appropriate support" and to take "appropriate action, including dismissal" when it was evident that a teacher's performance had failed to improve. In Ms Balsters' case, no consideration was given to any other course than dismissal once it was concluded that she had failed to improve sufficiently although some improvement had been noted. Insufficient consideration was given to the fact that she had 16 years of unblemished service, had consistently been found to be competent in annual reviews undertaken from 2000 and appeared to have the support of fellow teachers and parents, including parents whose children suffered from severe disabilities. Ms Balsters was regarded as a dedicated teacher who was able to prepare lessons, but these matters were not sufficiently taken into account when considering whether an action other than dismissal should be taken in relation to the difficulties thought to exist with her teaching performance. 27 Having reached the decision to dismiss the appeal, we would not wish to conclude this matter without making some further observations. In the course of argument we raised with the parties (in the event of the appeal succeeding to any extent) whether some conditions should be imposed in relation to the order for reinstatement at the same school, especially having regard to the period that Ms Balsters has been absent from the teaching experience and related duties. The Department made it clear that it had a continuing obligation to assess its teachers and that there was a real possibility that Ms Balsters would again be subjected to an evaluation under a Teacher Improvement Programme. In light of that response and the material before us dealing with the process before, during and after such a Programme, it is the recommendation of this Full Bench that, upon reinstatement, Ms Balsters be given the opportunity to re-establish her teaching skills and that she be given the assistance of a remedial teaching or similar programme with a focus on dealing with disruptive student behaviour, including violent behaviour and dealing with children suffering from a number of disorders in particular, as well as training in non-violent crisis management. In addition we note that, since her removal, other teachers at her school were given training in understanding and handling children with Tourette's Syndrome: Ms Balsters should be afforded the same opportunity. 28 In the course of reply, counsel for the Department raised the appropriateness of reinstating Ms Balsters to the same school if the Full Bench was of the view that there were flaws in the process or application of the Programme. It was submitted that it would be inappropriate to reinstate to a school where Ms Balsters had experienced difficulties although the Principal and Deputy Principal had moved from the school. It was suggested that there would be some "corporate knowledge of the history" of the matter and that may pose a difficulty. Counsel for the Department readily conceded that there was no ground of appeal challenging the reinstatement order to the same school or a mutually agreed school. It was also readily conceded that there was no evidence as to the difficulties that would arise if Ms Balsters was reinstated to the same school. These matters were said to be raised in the public interest and to ensure that Ms Balsters would be fairly treated if reinstatement was required. Having regard to the fact that most members of the school executive involved in the Programme have left the school and that Ms Balsters will have the benefit of the continued encouragement of the staff members who supported her continued engagement as a teacher, there is no basis for disturbing the terms of the reinstatement order made with some precision by Sams DP. Importantly, the order left it to the parties to agree to another school location if so advised and that course is open to the Department to pursue with Ms Balsters. 29 ORDERS The Commission makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The stay order made by Staff J on 13 March 2008 is dissolved.

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.

[2007] NSWIRComm 158

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