Her Honour interpolated this to mean that:
[T]he five 'Recommendations' relating to her as recited in the final Review Report were in fact 'disciplinary matters' which should have been examined under the Department's Disciplinary Procedures. She asserts the complaints should have been formalised in accordance with the Department's disciplinary procedures and been given the 'allegations' (as she referred to them) in 'writing'.
35 In this respect, her Honour found:
[133] I do not accept, and it was denied in writing by the Department, that the investigation ever became the first step in a disciplinary proceeding. But even if it did, an authorised person, the Assistant Director General, considered the matters, the investigation, the applicant's denial and determined not to initiate a disciplinary investigation. So while I do not accept there was a s14 investigation, if the full Report is seen as the investigation under s14, the denials of the applicant were by inference, weighed up at Audit and by the Assistant Director General and no charge laid. It would be a curious result if, arising from this litigation, an unfairness is found and the matters were referred back for disciplinary action notwithstanding the determination of the Audit and the Assistant Director General that there were no disciplinary issues. The applicant inferred the matter could not go to a disciplinary hearing because of the time constraints (the passing of eight years) yet she seeks the court to rehear all issues and reconsider all recommendations and conclusions of the Management Review by a consideration of evidence placed before it which she asserts, somehow could not be placed before a disciplinary tribunal.
36 At [134] Kavanagh J stated that having found no unfairness in the conduct of the Review it was unnecessary to consider the orders sought for relief. Nevertheless, because the appellant pressed a number of claims for relief she asserted were reflective of the unfairness of the contract and had left her reputation damaged and herself in ill health, the trial judge decided to 'briefly address those issues'. It is not necessary on appeal to canvass what her Honour said about those issues.
37 In her conclusion, the trial judge stated:
[145] The circumstances surrounding the resignation of four Principals from Penrose Public School over a 10 year period entitled the Department to activate its School Development Policy and conduct a Management Review. When conduct of a potentially disciplinary nature was raised under that Review, the procedures of the Policy required an Assistant Director General's consideration as to whether the Review could achieve its aim if continued. I accept the Assistant Director General considered all issues and determined the Review proceed but, as a matter of natural justice and procedural fairness, the matters raised be put to those concerned. I accept the conclusions reached by the Review were open to it, fair and related to the Review's objective regarding the 'management' of Penrose Public School. Mrs Cretney's refusal to answer some issues raised during her second interview contributed to the Recommendation for a 'formal investigation'. This was a procedure open to the Review Team under the School Development Policy. I further accept the Review Report was distributed to those with a stake in its conclusions - parents and the community members. The Review was not completed until after the Audit determined no disciplinary action was warranted and the Assistant Director General determined not to action the recommendation to transfer Mrs Cretney. The decision not to transfer Mrs Cretney was made by taking into account her submissions as to the issues identified (through the Union) as well as the possible effect of the recommendations on her personal circumstances. However, the other four Recommendations from the Review Report were to be implemented. I find Mrs Cretney was accorded procedural fairness and there was a compliance with the rules of natural justice.
[146] The Department of Education and Training has obligations under statute and a duty to the public of NSW to ensure the efficient functioning of public schools within its administration. In the conduct of a justified inquiry into the management of Penrose Public School, I find there was no unfairness. I therefore reject Mrs Cretney's claim the Department's conduct of the Review led to an unfairness in her employment contract. I reject the claim that 'findings' made in the conduct of the Review were unfair. I reject the claim that any distress she suffered/suffers is reflective of any unfairness in her employment contract. I do not accept she suffered damage to her reputation because of the conduct of the Departmental investigation into the management of Penrose Public School. Even if there is a public interest test to be applied to this litigation I find the Department has given the applicable members of staff and Mrs Cretney procedural fairness: assurances about professional integrity were complied with; the procedures were fairly defined and followed.
38 The orders her Honour made were that:
1. I declare the contract of employment between the parties was not an unfair contract within the meaning of s 105 of the Act.
2. The application brought under s 106 of the Act is dismissed.
3. Leave to relist as to costs.
GROUNDS OF APPEAL
39 The grounds of appeal were as follows:
1. Her Honour erred in failing to find that the contract of employment between the appellant was unfair, harsh and unconscionable and contrary to the public interest because it permitted the respondent without recourse to its disciplinary procedures to make wrong and adverse findings against the appellant and to publish those findings widely throughout the Southern Highlands community of Penrose.
2. Her Honour erred in finding (par. 108) that at Stage 5 of the Management Review Ms Cretney was accorded procedural fairness regarding the 'newsletter incident'.
3. Her Honour erred in finding (par. 108) that there was no unfairness in the conduct of the Management Review that could be connected to the 'newsletter incident'.
4. Her Honour erred in failing to find that the respondent took into account as if proved, for the purpose of making findings and recommendations in the Management Review, matters which it had referred for further investigation and possible disciplinary action.
5. Her Honour erred in failing to find that the conduct of the respondent in taking into account as if proved, for the purpose of making findings and recommendations in the Management Review, matters which it had referred for further investigation and possible disciplinary action, rendered the contract unfair.
6. Her Honour erred in failing to find that the respondent failed to apply the School Development Policy in the course of the Management Review process in that it failed to protect the professional integrity of staff .
7. Her Honour erred in finding (par. 116) that Ms Cretney failed to provide full professional support to all Principals appointed to Penrose Public School.
8. Her Honour erred in finding (par. 117) that Ms Cretney's actions in respect of the Assistant Teacher were 'inappropriate'.
9. Her Honour erred in finding (par. 117) that Ms Cretney 'contributed to conduct which was at the heart of some difficulties faced by the various Principals at Penrose Public School'.
10. Her Honour erred in finding (par. 122) that the Review Team did not make findings or purported findings.
11. Her Honour erred in finding that the conclusion of the Review Team set out in paragraph 122 of her decision was ' a reasonable conclusion and open on the evidence before the Review Team and therefore fair'.
12. Her Honour erred in failing to find (par. 123) that the respondent, during the Review process, took no steps to check the veracity of its purported findings.
13. Her Honour erred in finding (par. 123) that 'Mr Chalmers and Mr Armstrong only reported on matters which were raised by at least two persons in the conduct of the investigation'.
14. Her Honour erred in finding (par. 131) that the conclusion drawn affecting Ms Cretney in the Management Review was not unfair because it related in its terms only to the effect of her conduct had on the management of the school.
15. Her Honour erred in failing to find that the contract was unfair in that it did not require the respondent to take any steps to correct or qualify findings and recommendations concerning Ms Cretney made in the management review and read out to the Public Meeting on 1 August 2000.
16. Her Honour erred in failing to apply the correct, or any indeed any, test in determining whether the contract of employment was relevantly unfair, harsh and unconscionable and contrary to the public interest.
17. Her Honour erred in failing to find that irrespective of the respondent's purported, claimed or asserted adherence to 'policy' the contract of employment operated so as to permit the respondent to make wrong findings, publish adverse findings and to deny the appellant procedural fairness which conduct was, irrespective of any policy, such as to render the contract of employment relevantly unfair, harsh and unconscionable and contrary to the public interest.
18. Her Honour erred in finding, in particular, that the contract of employment was fair even though it permitted:
a. the respondent to apply a procedure other than its disciplinary procedure in making adverse (and disciplinary) findings against the appellant;
b. the respondent to make adverse findings against the appellant without affording the appellant (contrary to Her Honour's findings) a fair opportunity to be heard in her own defence in respect of those matters;
c. the respondent to publish widely without any justification at all to the school community and further matters that were adverse to the appellant and which affected her good name and character.
19. Her Honour erred in finding that it was fair and open to the review team to determine whether there were disciplinary matters to be addressed in circumstances where it had not afforded the appellant procedural fairness and conducted no fair investigation into the allegations and in fact published its 'conclusions' widely.
20. Her Honour erred in failing to find that the damage done to the appellant's good name and character was by reason of the failure of the contract of employment to contain appropriate protective or security provisions so as to ensure that the respondent:
a. dealt with matters of discipline under it disciplinary policy;
b. dealt with matters of management review under its Management Review Process; and
c. maintained confidentiality of all process so as to protect the applicant's good name and character.
21. Her Honour erred in failing to find that the Management Review Policy was both in its terms and in its operation unfair, harsh and unconscionable and contrary to the public interest.
22. Her Honour erred in that she misunderstood and misapplied the principles of natural justice or procedural fairness.
23. Her Honour erred in refusing to grant the appellant the relief sought and in failing to make an order for the payment of money that was just in the circumstances.
24. Upon such other grounds and for such other reasons as this Honourable Court considers just.