Davis v Secretary, NSW Department of Education [2017] NSWIRComm 1003 | Case summary

Industrial Relations Commission (NSW)|2016-11-24|Before: Mr J

Solicitors: Mr M Heffernan, Fair Work Claims (Appellant) Mr J Bennett, NSW Department of Education (Respondent) File Number(s): 2015/367249

DECISION

The matter before the Commission is a public sector disciplinary appeal against the decision taken by Ms Jane Thorpe, Executive Director of the Employee Performance and Conduct Directorate ('EPAC'), NSW Department of Education, on 6 August 2015, to direct the appellant, Ms Renae Davis, to resign from her employment as a classroom teacher. The appeal is brought pursuant to Chapter 2, Part 7 of the Industrial Relations Act 1996 ('Act').
Prior to the decision, which is the subject of this appeal, the appellant was employed as a permanent part time primary school teacher at the Durrumbul Primary School ('Durrumbul PS') which is located just out of Mullumbimby in the north eastern corner of New South Wales. In her appeal, the appellant seeks an order reinstating her to the substantive position which she held at the time of the termination of her employment. The respondent, the Secretary, NSW Department of Education, opposes the making of such an order or the granting of any other form of relief.

Background

The appellant commenced full time employment as a primary school teacher with the Department of Education ('Department') in January 1993. She has been a teacher at Durrumbul PS since 2007. In 2012 the appellant transferred to permanent part time employment, three days a week.
Durrumbul PS is a small country school of approximately 30 students. Prior to the termination of the appellant's employment, the staffing at the school comprised a Principal, Mr Brev Belleville, one permanent part time teacher (3 days a week), the appellant, one temporary teacher (4 days a week) and one casual teacher.
Mr Belleville commenced as Principal of Durrumbul PS on 1 September 2014. Prior to that appointment, Mr Belleville had been acting as the relieving Principal at the school.
The appellant claimed that, since the end of 2013, she had an increasingly strained relationship with Mr Belleville. On 2 December 2014, after she had returned to work following the death of her mother, Mr Belleville placed the appellant on a Teacher Improvement Program ('TIP').
The TIP was conducted by Mr Belleville and Ms Carol McMahon, Teacher Quality Advisor for the area based at the Department's Goonellabah Office. The program involved regular and frequent formal review meetings with the appellant as well as frequent classroom observations of the appellant teaching. The observations were performed by Mr Belleville and Ms McMahon. At the formal review meetings the appellant was entitled to, and did, have a support person present.
The first part of the TIP involved 'Support and Guidance' observations which did not require assessment or ranking of the appellant. By late February 2015 the appellant, according to Mr Belleville, had not shown the expected level of improvement. It was decided that 'Support, Guidance and Assessment' observations should commence. The TIP concluded on 31 March 2015.
On 1 April 2015, at the conclusion of the 12 week period for the completion of the TIP, Mr Belleville completed his 'Principal's Report at the Completion of the Teacher Improvement Program' ('Principal's Report') in which he recorded that the appellant had not met the standard of performance required of a teacher. By letter dated 1 April 2015, the appellant was directed by Ms Thorpe to alternative non-teaching duties at the Department's Murwillumbah Education Office.
The appellant prepared a comprehensive 'Response to the Principal's Report' ('Response') which was dated 5 June 2015.
On 15 June 2015 a review of the TIP, which included the appellant's Response, was conducted by Ms Monique Brown, Deployed Primary Principal ('TIP Review Report'). Ms Brown concluded that the TIP procedures were followed and that procedural fairness was provided to the appellant.
On or around 25 June 2015 the matter was referred to Ms Thorpe by way of a document entitled 'REFERRAL OF CASE TO DECISION MAKER FOLLOWING A FINDING OF UNSATISFACTORY PERFORMANCE AT THE COMPLETION OF AN IMPROVEMENT PROGRAM'. That document was prepared by Ms Lauralie Hall, Employee Performance Officer, and Ms Liway Johnson, A/Manager, Staff Efficiency and Conduct Team ('SECT'), Employee Performance and Conduct Directorate. Ms Hall and Ms Johnson made no criticism of the TIP process or the review of it by Ms Brown. Their referral document stated in part: While Ms Davis claims that the Principal placed her on a program as a way to bully her, the documentation shows that the program was designed to support Ms Davis improve in her performance.
Ms Thorpe reviewed the TIP, including the Principal's Report and supporting documents, the appellant's Response and the TIP Review Report of Ms Brown.
On 29 June 2015 Ms Thorpe wrote to the appellant and advised that, in her opinion, the appellant's work performance was still unsatisfactory and that disciplinary action was being considered. The most severe disciplinary action then under consideration by Ms Thorpe was dismissal and the placing of the appellant's name on the confidential 'Not To Be Employed List' ('NTBE List') maintained by the Department.
By correspondence dated 22 July 2015 the appellant provided Ms Thorpe with a comprehensive submission on penalty. On 28 July 2015 Ms Thorpe conducted an interview by video link with the appellant.
Following the interview with the appellant, Ms Thorpe requested further information which was provided to her on 4 August 2015 in a document entitled 'BRIEF TO DECISION MAKER Request for review of information on File' written by Ms Hall and endorsed by Ms Veronica Kapsimali, Director, SECT.
After reviewing all of the material, including the appellant's written submissions, transcript of interview and the further information which had been provided to her, Ms Thorpe formed the view that it was appropriate that the appellant be directed to resign within 14 days of receiving the letter of notification, but that the appellant would be provided with limited casual approval and her name would not be placed on the NTBE List. The appellant was made aware of Ms Thorpe's decision by correspondence dated 8 August 2015.
No resignation was received by Ms Thorpe within the time specified. On 31 August 2015 Ms Thorpe wrote to the appellant and advised that, as she had not received the appellant's resignation, she had decided to dismiss the appellant from the teaching service with effect from that date. Given the dismissal, Ms Thorpe also rescinded the appellant's casual approval.
Ms Thorpe was subsequently made aware that the appellant had tendered a written resignation and, in light of that advice, wrote to the appellant on 4 September 2015 and advised her that her dismissal had been revoked and her resignation had been accepted. Further, the appellant was advised that Ms Thorpe had reinstated her original decision whereby the appellant may apply for casual teaching approval for an initial 12 months, conditional on her supplying reports from two Principals for whom she worked for a minimum of 5 consecutive days, attesting to her teaching skills.
It is from Ms Thorpe's direction to the appellant to resign that this appeal is brought. The order sought by the appellant is for reinstatement to her substantive position with back pay. In addition, in her Witness Statement filed on 6 October 2015, the appellant requested a transfer of either Mr Belleville or herself to a different school in the area. The respondent opposed the granting of any such relief.
As is the usual case in relation to public sector disciplinary appeals, the respondent presented its case first.
Prior to the taking of the respondent's evidence, Mr M Heffernan, who appeared for the appellant, made the following statement to the Commission: HEFFERNAN: Yes, Commissioner. As you may be aware, we came in quite late to the matter and I've confirmed with my colleague, the applicant is going to dispense with the appeal after five weeks into the teacher improvement Program, roughly from February 22 2015, she is not seeking the assistance of the Commission to determine those matters and we're saying that matters that are in issue will turn prior to 22 February 2015.
I took this statement to mean that the areas of dispute which remained between the parties were: 1. The events which occurred prior to the appellant being placed on the TIP with a focus on whether or not the appellant should have been placed on the TIP; and 2. The manner in which the TIP was conducted for the first five weeks.

The Teaching Service Act

The provisions of the Teaching Service Act 1980 ('TS Act') which are relevant to this appeal are set out below: 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 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. PART 4A - MANAGEMENT OF CONDUCT AND PERFORMANCE Division 1 - Preliminary 93A Objects of Part The objects of this Part are as follows: (a) to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, (b) to protect and enhance the integrity and reputation of the Teaching Service, (c) to ensure that the public interest is protected. Division 3 - Performance management for officers 93G Performance reviews for officers (1) An officer's performance must be reviewed, at least annually, by the Secretary. (2) The Secretary may review the performance of an officer on such other occasions as the Secretary considers appropriate. (3) The review of an officer's performance is to have regard to any performance criteria determined by the Secretary and such other matters as the Secretary considers relevant. 93H Performance improvement programs (1) If, following completion of the review of an officer's performance, the Secretary is of the opinion that the officer is not performing his or her duties in a satisfactory manner, the Secretary may implement a performance improvement program for the officer. (2) The officer must participate in any such performance improvement program in the manner required by the program. (3) A performance improvement program is to be on such terms, and is to be implemented for such period, as the Secretary considers appropriate. 93J Dealing with unsatisfactory performance-officers other than school principals (1) This section applies to officers other than school principals. (2) If the Secretary is of the opinion that an officer's performance is still unsatisfactory following the completion of a performance improvement program for the officer or following the officer's failure to participate in, or to satisfactorily complete, such a program, the Secretary may do either or both of the following: (a) take remedial action with respect to the officer, (b) take disciplinary action with respect to the officer. (3) To avoid any doubt, remedial action with respect to an officer is not required to be taken before disciplinary action is taken under this section with respect to the officer. (4) However, the Secretary may take disciplinary action with respect to an officer under this section only if: (a) the officer has been placed on a performance improvement plan in accordance with the procedural guidelines and been given a reasonable opportunity to improve his or her performance, and (b) the Secretary is of the opinion that the officer's performance is still unsatisfactory.

The Guidelines

Much of the debate in this appeal centred around the content and effect of the respondent's 'Guidelines for the Management of Conduct and Performance' ('Guidelines'), which were in place as at the time when the appellant was placed on the TIP. These are the "procedural guidelines" referred to in subsection 93J(4)(a) of the TS Act. A number of relevant extracts from the Part 8 of the Guidelines, 'Procedural Guidelines for Dealing with Unsatisfactory Performance', are set out below: 8.3 Consideration of organisational and non-work- related factors The workplace manager/supervisor must consider factors which may contribute to the unsatisfactory performance. Factors contributing to poor performance may include: • organisational factors (e.g. poorly managed restructuring; poor work and job design with subsequent lack of challenge in work; ineffective recruitment and selection resulting in a "mismatch" of people and jobs; inappropriate planning, resourcing and competing deadlines); • management practices (e.g. inappropriate or unacceptable management approach; inconsistent application of performance standards; biases, changes in opinion or lack of care or commitment on the manager's part); • training and development needs (e.g. inadequate induction and explanation of job role/responsibilities; insufficient skills, training, or experience to perform the duties and responsibilities of the position; unsupported introduction of new technology); • poor communication between management and employees (e.g. inadequate performance evaluation and feedback); • social factors s(e.g. disruptive personality clashes within the work environment); • inappropriate work environment (e.g. occupational health and safety standards not being met; direct or indirect discrimination or workplace harassment); and • personal issues (e.g. lack of motivation or commitment; health or other family problems; drug and alcohol misuse). Performance difficulties that are not work-related may require intervention or assistance by management, employee associations, an employee assistance provider, or external individuals or organisations. The cause of performance difficulties needs to be identified and appropriate strategies developed, including implementation of an improvement program, to assist the officer or permanent employee deal with identified poor work performance. Unsatisfactory performance should be dealt with by the workplace manager/supervisor as soon as performance difficulties are identified. The nature of the unsatisfactory performance should be clearly articulated, with reference to examples. This enables the officer or permanent employee and the manager or supervisor to be clear about the issues. 8.5 Procedural Fairness The Guidelines are subject to the rules of procedural fairness as required by sections 93D (2) and (3) of the Teaching Service Act, sections 22F (2) and (3) of the Technical and Further Education Commission Act and sections 30 (2) and (3) of the Education (School Administrative and Support Staff) Act. The officer or permanent employee must have: • the opportunity to respond to the opinion of the decision maker that his or her performance is still unsatisfactory after remedial action (including an improvement program) has been taken and he or she has been given a reasonable opportunity to improve; • a separate opportunity to make representations in relation to any disciplinary action being considered. An officer or permanent employee the subject of these Guidelines should be provided with a copy of these Guidelines. 8.7 Performance Principles Generally Dealing with unsatisfactory performance requires a staged process which is transparent, consistently applied and has regard to the particular circumstances of the case. Improvement of performance and job satisfaction is the primary goal. Whilst remedial action will usually provide the desired results, it may be necessary to proceed with disciplinary action if the identified standards are not met and performance is still unsatisfactory. The process should also have regard to any relevant written documentation that may be in place. Staff have a right to regular feedback about their performance. The key stages for addressing unsatisfactory performance are: • early intervention and informal counselling and support; • undertaking a performance improvement program; • undertaking disciplinary action or remedial action. The primary responsibility for performance management is the officer or permanent employee's manager/supervisor. Early and effective informal counselling in most cases should address an unsatisfactory performance problem. It is only if action under this stage, has failed to rectify the unsatisfactory performance that consideration needs be given to involving the subsequent stages. The officer of permanent employee should be given reasonable verbal or written notice of the time, place and purpose of the proposed informal counselling session. At the outset of the session, the manager will: • outline the purpose of the discussion; • clarify expectations. Early and effective informal counselling in most cases will address a work performance problem and inform the employee that their poor work performance is unacceptable. The manager/supervisor will also: • confirm the standards and explain how the officer or permanent employee's performance has differed from those standards by reference to the employees work examples or other relevant documentation; • outline what she/he considers to be the applicable standards and explain how the officer or permanent employee's performance has departed from that standard with reference to the officer's work examples or other relevant documentation; • provide an opportunity for the officer or permanent employee to respond to the manager's performance concerns; • advise the officer or permanent employee of her or his right to use the Department's dispute resolution procedure if there is a disagreement. The outcome of informal counselling should be agreed by the officer or permanent employee and their manager/supervisor. If the officer or permanent employee disagrees with the manager/supervisor's views on their work performance and/or proposals to improve work performance, they are to be informed of their right to use the Department's grievance and dispute resolution procedures. Any process for the management of performance would continue whilst the officer's grievance is considered and resolved. Where there is no written correspondence following informal counselling, a diary note shall be made. The manager will advise her/his supervisor when informal counselling is being taken. Early and effective informal counselling in most cases will address a work performance problem and inform the officer or permanent employee that their poor performance is unacceptable. While it is always open to a workplace manager/supervisor to informally address performance issues with an officer or permanent employee, the Department has established processes for formally addressing unsatisfactory performance, should informal processes of support and remedial action not be successful. These are: • Teacher Improvement Program • Principal Improvement Program • Procedures for Managing School Based Non Teaching Staff identified as Having Performance Difficulties • Procedures for Managing Probationary Teachers • Schedule 1, Performance Agreement, CEO's Award • Procedure for Managing Unsatisfactory Performance (Staff employed under the TAFE Commission Division of the Public Sector Employment and Management Act (PSEM) 2002) The procedures outlined in the above documents should be followed when considering the first two stages for addressing unsatisfactory performance. If at the end of a performance improvement program the officer or permanent employee's performance is assessed to be satisfactory, no further action is required other than the usual periodic reviews. These Guidelines have been developed to focus on the third stage of addressing unsatisfactory performance - the disciplinary or remedial process.

The respondent's evidentiary case Ms Jane Thorpe

Evidence was given by Ms Thorpe as to the process which led up to her decision to direct the appellant to resign.
Ms Thorpe was cross-examined at length about the Department's Guidelines which were applicable in 2014 when the appellant was placed on the TIP. In particular, it was put to Ms Thorpe that the Guidelines mandated that, before being place on a TIP, a teacher must be provided with "informal processes of support and remedial action". In the case of the appellant, this "lock in the canal" was not navigated prior to her being placed on the TIP.
Ms Thorpe rejected these propositions and maintained that the Guidelines had been followed in the case of the appellant. Ms Carol McMahon
Ms McMahon was, in 2014, employed as a Teacher Quality Advisor based at the Department's Goonellabah Office.
In September 2014 Ms McMahon was asked by Mr Belleville to assist him with advice about the prospect of a TIP for the appellant. Ms McMahon agreed to assist Mr Belleville with the TIP which was commenced in early December 2014.
As part of her role, Ms McMahon conducted ten classroom observations of the appellant teaching her class. Of those ten observations, six were support and guidance only and four were for the purposes of assessment. Ms McMahon found the appellant to have been unsatisfactory in all four assessment observations. In addition, Ms McMahon attended seven formal review meetings with Mr Belleville, the appellant and her support person.
Ms McMahon gave evidence as to the extensive amount of support that was provided to the appellant during the first five weeks of the TIP. She strenuously rejected the appellant's assertions that she was biased against the appellant. Ms McMahon stated that, on many occasions, the appellant was confrontational, rude and disrespectful to her and to Mr Belleville.
Ms McMahon was also cross-examined at length. It was put to her repeatedly that a TIP could not be implemented unless and until a teacher was determined to be unsatisfactory at a Teacher Assessment Review Schedule ('TARS') meeting. Support for this proposition was sought to be drawn from the respondent's 'Teacher Improvement Program July 2014' document ('TIP Procedures') and, in particular, the following extract: 1.5 Relationship to the School's existing Performance and Development Process Teacher improvement procedures must arise from a teacher's participation in an annual performance and development cycle, and be implemented as a consequence of underperformance against the standards of the position held.
Ms McMahon stated, in effect, that a TIP "can kick in at any time", not just following an annual TARS meeting.
Ms McMahon was asked about the advice that she had given to Mr Belleville about the steps that had been taken in relation to the appellant's performance as a teacher prior to the implementation of the TIP and why she thought that the implementation of the TIP was an appropriate next step. The following exchange then occurred: Q. Why? What steps did he take pre TIP? A. Okay so pre TIP there had been several notifications and several conversations and written feedback to the teacher around performance concerns, and that that had been ongoing and that they weren't being addressed, that documentation such as our teaching and learning programs, assessments and so forth weren't provided and certainly weren't adequate. He had raised that with the teacher, he had given the teacher quite some time and some guidance and some support and that the improvement hadn't been forthcoming, so we need to look at that processes that have been put into place, it should never be a surprise to a teacher that this is something that is going to happen, when it wasn't. Mr Brev Belleville
The Principal of the school, Mr Belleville, was also called as a witness for the respondent. Mr Belleville gave evidence about the concerns he had with the applicant's performance as a teacher going back to 2012 when he was the relieving Principal at Durrumbul PS. It was at that time that the appellant converted from full time to part time, three days a week. Mr Belleville's concerns about the appellant's teaching performance remained throughout 2013 and 2014. During that period Mr Belleville also received and dealt with a number of complaints about the appellant from other teachers at the school and from parents of students.
On 2 April 2014 the appellant attended a TARS meeting with Mr Belleville at which the appellant's teaching strengths and concerns about her performance were discussed. This meeting was followed up by a letter from Mr Belleville to the appellant in which he referred to their discussion about strengths of the appellant's teaching practice and areas in which there could be improvement.
Following this TARS meeting, communication between the appellant and Mr Belleville became increasingly strained. Mr Belleville made numerous requests of the appellant to provide him with documentation relevant to the appellant's teaching practice. The following email from Mr Belleville to the appellant, sent on 1 September 2014, is one example of such a request: Dear Renae, Thank you for taking some time to discuss some school matters with me on Tuesday the 26 of August. Discussion included: - how to support our diverse group of students to meet behaviour expectations - the importance of explicitly stating and insuring that students understand what the behaviour is that is unacceptable and briefly stating why, le calling out is not acceptable in the classroom as it disrupts learning and teaching time (the school motto, rules and NSW core school rules are a good reference point). - explicitly stating what behaviour is expected, Ie in the classroom we are expecting to put our hand up and wait so that everyone can learn and I can teach - the tendency of some students to be genuinely inquisitive as to why a behaviour is not acceptable (Loui would be an example), such explanations are best held in private or away from the class - how to meet the needs of our diverse learners - the inclusion of learning profiles in your program to inform and monitor behaviour and class management strategies - the use of learning profiles to identify and inform differentiation including remediation and extension - identifying and selecting targeted assessment tasks to assist in the development of ILPs - your progress with planning - the development of a program overview - the development of learning profiles (as above) - identifying students who may require an ILP in some area and gathering relevant assessment data (as above) We agreed that you would develop, for your program, and provide/forward to me (By Thursday of week 7): - a behaviour and class management plan - student learning profiles, including any areas requiring differientation - a program overview It was noted that at the commencement of the discussion you gave clear indications that you were uncomfortable and and acted in ways that could be perceived as defensive and agitated. It is also noted that as the discussion progressed you gave the impression that you became more relaxed and willing to engage in positive discussion. I encourage you to continue to engage in professional discussion in positive ways. Regards, Brev Belleville
This email was followed up with several others and several reminders asking that the appellant provide Mr Belleville with the requested documentation.
On 27 October 2014 the appellant, according to Mr Belleville, reached minimal levels in her TARS, just above the level of being put on a TIP.
On or around 18 November 2014, because the appellant's teaching performance was such a concern, Mr Belleville decided to place her on a TIP.
The initial meeting occurred on 2 December 2014. Present were Mr Belleville, Ms McMahon, the appellant, Mr Marty Wheatley, the Teachers' Federation Country Representative acting as support person for the appellant, and Ms Marilyn Phelps, Senior Administration Officer at Durrumbul PS. At that meeting four of the seven standards from the 'Australian Professional Standards for Teachers', which are set out at Part 1.4 of the TIP Procedures, were identified as areas in which the appellant was expected to improve. They were: • Know students and how they learn. • Know the content and how to teach it. • Assess, provide feedback and report on student learning. • Create and maintain supportive and safe learning environments.
As part of the TIP, Mr Belleville observed the appellant teach her class during eight of the 18 observations that were conducted. Of those eight observations, four were support and guidance only and four were for the purposes of assessment. Mr Belleville found the appellant to be unsatisfactory in all four assessment observations.
Mr Belleville also attended nine formal review meetings with the appellant and her support person.
On 1 April 2015 Mr Belleville completed his 'Principal's Report'. In that report Mr Belleville stated at the conclusion of the document: It is recommended that Ms Davis has not met the level of performance required for the position of a classroom teacher.
Mr Belleville was cross-examined as to whether or not he had given any consideration as to how a number of personal issues affecting the appellant, including the death of her mother in July 2014, might have affected her teaching performance between that time and the decision to place her on a TIP. He responded that he had and that the appellant had been eager to come back to work after her mother's death and had come back earlier than she had originally informed Mr Belleville.
Mr Belleville was pressed to accept that the process to be initiated when dealing with a teacher's unsatisfactory performance was separate and distinct from the TARS process. He firmly rejected that proposition.
Mr Belleville was cross-examined at length as to his compliance, or non-compliance, with the minute detail of the various provisions of the Guidelines. Throughout his cross-examination, Mr Belleville maintained that the informal processes of support for the appellant commenced with the TARS meeting on 2 April 2014. Between that time and when the decision was made to place the appellant on the TIP, there had been no signs of improvement in the appellant's teaching performance.
Under rigorous questioning by Mr Heffernan for the appellant, Mr Belleville maintained that he had correctly followed the TIP Procedures in relation to the appellant.

The appellant's evidentiary case

The appellant claimed that, since the end of 2013, she has had an increasingly strained relationship with the Mr Belleville, and has felt continually harassed and bullied by him.
According to the appellant, on 6 December 2014, shortly after she had returned from leave following the death of her terminally ill mother, Mr Belleville placed her on a TIP, despite her positive performance review in April of that year, and without the required informal improvement program. She claimed that she should not have been placed on a TIP at that time. The appellant also complained that the conduct of the TIP was not supportive or instructive and the nature of the program conducted by Mr Belleville was one of continual criticism and harassment without any effective support being given.
In addition, the appellant claimed that she and her support person, Mr Peter Bugler, were misled by the Teachers Federation and Mr Belleville as to the role of the support person. She also complained of the lack of support offered to her during the TIP.
The appellant was cross-examined at considerable length. She was questioned about her use of the Australian curriculum as opposed to the New South Wales curriculum. It was conceded on behalf of the appellant that the respondent had some performance issues with the appellant and was entitled to commence performance initiatives with her. The outcome which was being sought in this appeal was to "remit the decision back to introducing the performance improvement plan".
The appellant denied that she had been aggressive and argumentative in her dealings with Mr Belleville during 2014. She did concede that, if she were to return to Durrumbul PS, she would find it difficult to work with Mr Belleville. In re-examination the appellant stated that she did not trust Mr Belleville. However, the appellant later, during further examination in chief on the final day of the hearing, claimed that she could work under Mr Belleville.
Mr Peter Bugler, a retired classroom teacher, acted as the appellant's support person throughout the TIP. Mr Bugler gave evidence to the effect that the mood of the TIP review meetings was strained rather than conciliatory and openly hostile rather than supportive. He was generally critical of the TIP process.

Respondent's submissions

The respondent submitted that the paramount consideration in matters such as this is section 5A of the TS Act. The respondent also relies on section 93A of the TS Act which sets out the objects of Part 4A - Management of Conduct and Performance. These provisions are set out at paragraph 24 above. Shortly stated, the relevant considerations are: • The protection of children. • The maintenance of appropriate standards of conduct and work-related performance for officers in the Teaching Service. • The protection and enhancement of the integrity and reputation of the Teaching Service. • Protection of the public interest.
Following the conclusion of the appellant's TIP, the matter was referred to EPAC. A comprehensive review of the TIP was conducted which concluded that the TIP procedures were followed and that procedural fairness was provided to the appellant.
Following a further review of the TIP by Ms Thorpe, including consideration of the appellant's submissions on penalty and an interview by way of video link with the appellant, Ms Thorpe determined that the appellant should be directed to resign, but that her name not be placed on the NTBE List and that she be given limited casual teaching approval.
The respondent submitted that it did not need to comply with the Guidelines, in particular Part 8.7, when placing a teacher on a TIP pursuant to sections 93G and 93H of the TS Act. It was put that the provisions of Part 8.7 were not mandatory. In the alternative, it was submitted that there had been substantial compliance with the provisions of Part 8.7.
The only step that did not occur, according to the respondent, arose from the failure to inform the appellant that she could lodge a dispute. However, that requirement is contingent upon the appellant having notified the Principal as to her disagreement with his assessment, prior to her being placed on a TIP. There was no cogent evidence of the appellant notifying the Principal of such a disagreement.
The respondent submitted that the appellant carries the onus of persuading the Commission to allow her appeal. This involves the appellant demonstrating, as a matter of law, that the Guidelines required that certain steps be taken before the appellant could be placed on a TIP, and that one or more of those steps were not taken. This onus had not been satisfied.
The respondent also firmly rejected the proposition that the first five weeks of the TIP was affected by bias or apprehended bias against the appellant.
It was emphasised that, in determining this appeal, the Commission must give paramount consideration to the protection of children. Consideration of the evidence before the Commission, as well as the various concessions made on behalf of the appellant, leads to the conclusion that, if the Commission were to grant this appeal, it would result in a clearly unsatisfactory teacher being returned to the classroom and placed in front of children so that a determination could be made whether to place the appellant on a further TIP. The children would then be subjected to further teaching by the appellant for a 10 week period whilst the TIP is completed.
It was further submitted that it would not be possible to re-establish the working relationship at the school level.

Appellant's submissions

The case for the appellant focussed on two issues: a. whether the appellant was placed on a TIP in accordance with the Guidelines; and b. the manner in which the TIP was conducted in the first five weeks.
The following matters were conceded on behalf the appellant: i. The only issues that the appellant had with the first five weeks of the TIP related to good faith components in Parts 8.3 and 8.5 of the Guidelines. The challenge to the first five weeks was based on two matters: bias or apprehended bias and factors in Part 8.3 of the Guidelines. ii. If the appellant was reinstated she could be placed on an informal process. iii. The appellant accepts the respondent's submission on the limitations on the Commission's jurisdiction to reinstate to another school. iv. The appellant has an inflated position of her own teaching ability compared to the respondent's view. v. There were a range of matters that the appellant did not meet. vi. The appellant was in error in teaching from the wrong syllabus or curriculum in the first five weeks of the TIP.
Detailed submissions were put on behalf of the appellant to the effect that the initial placement of the appellant on the TIP was not done in conformity with the requirements of the Guidelines because the 'informal' process which was to occur prior to the implementation of the TIP had not occurred. The TARS process which began in April 2014 could not be relied upon as forming part of this 'informal' process because the 'informal' performance management steps that are required to be taken under the Guidelines, prior to the implementation of a TIP, are "separate and distinct from the TARS process".
The appellant's submissions on this issue concluded as follows: The Appellant submits that whilst the Appellant was placed on the TIP 'lawfully' within ss 93G and 93H of the Teaching Service Act 1980, this was not done in accordance with 8.3 and 8.7 of the Guidelines as required to allow disciplinary action to follow. Compliance with only ss 93G and 93H alone allows for only remedial action to flow from the TIP.
In relation to the first five weeks of the TIP, the appellant submitted as follows: The Appellant submits that the first five weeks of the TIP was not conducted in good faith or with an intention to assist the Appellant to improve her performance; instead, meetings between the Appellant, Mr Belleville and Ms McMahon were confrontational and unconstructive. In all the circumstances, the Commission should find that the first five weeks of the TIP were not done according to the procedural guidelines.
Ultimately, the appellant submitted that the Commission should allow the appeal and refer the matter back to the first stage of a performance improvement program under the Guidelines.

Determination of the appeal

It was submitted on behalf of the appellant that the Guidelines have legal force and must be followed by virtue of the reference to the necessity for a teacher to have been "placed on a performance improvement plan in accordance with the procedural guidelines" before disciplinary action may be taken with respect to that teacher (subsection 93J(4)(a) of the TS Act).
It was put that, if the appellant had been placed on the TIP otherwise than in accordance with the Guidelines, then there was no power to move to the next step of taking disciplinary action against her. In order to make good this submission Mr Heffernan closely analysed the wording of the Guidelines in an attempt to identify a word or a phrase in relation to which it could be established that the respondent had not complied.
For example, the Guidelines at Part 8.2, 'Performance Management', contain the following provision: The following strategies should be implemented and referred to in dealing with instances of unsatisfactory performance: • provide and adhere to induction and probation programs; • ensure there are clearly articulated work standards and performance requirements which are reasonable and attainable; • provide development plans to assist the officer or permanent employee to reach expected work standards; ……………………..
In relation to this provision, Mr Belleville was cross-examined as follows: Q. Then in 8.2, if the "ensure the clearly articulated work standards" happened on 26 April, when did the "provide development plans to assist the officer to reach the expected work standards happen"? A. Sorry, could you just‑‑ Q. This is the 8.2? A. Yeah. Q. You're saying on 26 August you had a meeting to ensure there were "clearly articulated work standards of performance, requirements which are reasonably attainable". Then after that the guidelines go on to say, "provide development plans to assist the officer or permanent employee reach the expected work standards". When did you do that? A. Through the TARS process. It stared in April. By the time we got to meet in August I then had to follow up and towards the end of the year there were several emails requesting the documentation. At one stage I went down to see the teacher, Ms Davis, in her classroom, and I informed her unless she provided this documentation that I would formally direct her to do so. Q. Do you teach English at all? A. I beg your pardon? Q. Do you teach English in your job? A. I'm a primary school teacher, yes. Q. What do you understand by the words read together ‑ first of all, "provide", is that a positive obligation on you or is it a positive on Ms Davis? A. There are obligations on both sides. I provided examples of the teaching standards that needed ‑ that she needed to improve. Q. That's a step above. What I'm asking is the next step. Let's just take as a given that what she did on the 26th ‑ and I'm not saying it but for the purpose of the argument, discharge that second bullet point. The third bullet point, I put it to you, says, "provides development plans to assist the officer". I say that's a positive obligation on you to prove to Renae. Do you accept that? A. I ‑ yes, and to do so I needed to negotiate with the teacher, who was resistant, about how we would go about that. Q. Where at 8.2, in that third bullet or anywhere, does it give a role for the employee? Haven't you got an unfettered right, indeed, a responsibility, to provide a development plan, isn't that what it says? A. To do so would be negotiated with the teacher. They have ‑ you would need their feedback, you would need their input, and they would have an obligation to participate in improvement and professional development. Q. Am I interpreting your evidence correctly, you didn't provide one because you couldn't negotiate with her because she was resistant? A. Basically.
The proposition put on behalf of the appellant appears to be that an underperforming teacher can avoid being placed on a TIP by frustrating the preliminary steps set out in Guidelines, such as those provisions set out at paragraph 73 above, by resisting any attempt by the Principal to provide the teacher with the development plans. The evidence of Mr Belleville was that this is effectively what happened with the appellant in this case. Then, the follow-on proposition is that, as the Guidelines have not been complied with, it would be unlawful to place the teacher on a TIP. Thus, a recalcitrant underperforming teacher could avoid being placed on a TIP by simply frustrating the preliminary steps that should be taken under the Guidelines in that teacher's own professional interests. If that is the contention put on behalf of the appellant, and I apprehend that it is, then I reject it.
Much of the debate centred on the question as to whether or not a teacher could be placed on a TIP unless and until that teacher had been deemed unsatisfactory during the TARS process. The appellant's position was that, because she had been passed by Mr Belleville as satisfactory in the TARS meetings with him on 2 April and 27 October 2014, there was no basis for her to be placed on a TIP. The respondent's position was that a teacher could not be found to be unsatisfactory during the TARS process unless that teacher had already been placed on a TIP.
It should be noted that, in his letter to the appellant following their TARS meeting on 2 April 2014, Mr Belleville identified a number of the appellant's strengths as a teacher which had been discussed at the meeting. However, he also identified a significant number of areas of the appellant's teaching practice which required improvement.
The submission of the appellant seems to be that, despite the clear identification of areas of unsatisfactory performance as part of the TARS process and the attempts by the Principal to address those issues, a teacher cannot be placed on a TIP unless and until the Principal repeats those same steps separately and distinct from the TARS process.
The appellant's insistence that the process for dealing with a teacher's unsatisfactory performance is separate and distinct from the TARS process, constitutes an attempt to inject into the Guidelines a level of artificiality and inflexibility which runs contrary to the letter and to the clear intendment of the Guidelines and is an affront to common sense. In any event, the proposition is clearly contrary to Part 1.5 of the TIP Procedures cited at paragraph 33 above.
The Guidelines are no more than they purport to be, that is a guide to assist the Department and its teachers in dealing with cases of unsatisfactory performance. The Guidelines require a cooperative approach from all parties to ensure a successful outcome. The approach contended for on behalf of the appellant, which pedantically nit-picks over every word and phrase in the document, runs entirely contrary to the underlying purpose of the Guidelines, which is to assist underperforming teachers to improve their teaching. The Guidelines are not a straitjacket on the Department. In order to be effective, the Guidelines need to be applied with a level of cooperation between the parties and a degree flexibility and common sense, not in the rigid, formulaic manner as has been proposed on behalf of the appellant in this matter.
The level of pedantry which was evident in the positions advanced on behalf of the appellant descended to cross-examination of the respondent's witnesses in relation to the phrase "informal processes of support and remedial action" which appears in Part 8.7 of the Guidelines. It was put that this phrase involved two separate and discreet steps, the first step being the implementation of "informal processes of support" and the second step being the implementation of "remedial action". The attempt to split this phrase into two separate and distinct processes typifies the artificiality of the appellant's approach to the question as to how the Guidelines should be applied in a practical and common sense fashion to a real situation involving an underperforming teacher.
The artificiality of the approach contended for on behalf of the appellant can be further demonstrated as follows: (1) The appellant relied upon the following extract from the Guidelines, Part 8.7, Performance Principles Generally: Early and effective informal counselling in most cases will address a work performance problem and inform the officer or permanent employee that their poor performance is unacceptable. While it is always open to a workplace manager/supervisor to informally address performance issues with an officer or permanent employee, the Department has established processes for formally addressing unsatisfactory performance, should informal processes of support and remedial action not be successful. These are: Teacher Improvement Program ……………………… (2) Mr Belleville was asked in cross-examination "at what date did you pull the trigger" in the sense of when did he decide to place the appellant on a TIP. His response was "In November [2014] I decided to move towards - I decided that we needed a formal process being a Teacher Improvement Program". (3) It was then put that the Guidelines required that the "informal processes of support and remedial action" must be put in place after the decision is made to "pull the trigger", effectively eliminating from consideration all of the informal processes of support and remedial action which had been put in place earlier in the year following the TARS meeting on 2 April 2014.
The following exchange then took place during the cross-examination of Mr Belleville: Q. I politely say that you tripped at a very important hurdle by bypassing that informal counselling session once you decided that underperformance was in place? A. I don't agree.
The proposition seems to be that, despite months of informal processes of support and remedial action having been unsuccessful in achieving any improvement in the appellant's teaching performance, once the decision was made to initiate a TIP, the whole raft of informal processes of support and remedial action needed to be recommenced from the beginning. Such a proposition finds no support in the letter or in the clear intendment of the Guidelines or in the TS Act.
I find that, in this case, there has been substantial compliance with the Guidelines. I find that the decision to place the appellant on a TIP was not unlawful. I find that this decision was a genuine attempt by the Principal of the school to provide the appellant with a more structured process within which her underperformance could be addressed.
I also find that the appellant's criticism the first five weeks of the TIP is similarly lacking in substance.
The claim that the TIP exercise was not conducted in good faith, or without an intention to assist the appellant to improve her performance, is not supported by any probative evidence. Similarly, the allegations of bias, or apprehended bias, against Mr Belleville and Ms McMahon are also without any evidentiary foundation. The claim that the review meetings were confrontational and unconstructive, a perception which was supported by the appellant's witness, Mr Bugler, is not borne out by the documentary records of those meetings.
Having reviewed the extensive amount of documentation generated during the first five weeks of the TIP, and having observed the demeanour of Mr Belleville and Ms McMahon under intense and robust cross-examination, I reject absolutely the claim that the TIP process was infected by bias against the appellant.
The whole TIP process which the appellant underwent was subjected to a number of thorough reviews within the Department. No final decision was made by Ms Thorpe until after she had received and considered written submissions from the appellant and conducted an interview by video link with her.
My approach to this appeal has been influenced by a consideration of the fundamental purpose for the existence of schools and for the employment of teachers, which is to teach children. That purpose cannot be achieved unless there are processes in place to identify, to assist and, if necessary, to remove underperforming teachers. In this respect I adopt the following observations of Newall C in Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 (at [21]-[23]): …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... 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.
Nothing has been placed before the Commission which would warrant the overturning of the decision made by Ms Thorpe to direct the appellant to resign.
The appeal is dismissed.
I so order. JOHN MURPHY Commissioner

Amendments 06 February 2017 - Corrections to Italics 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: 06 February 2017

Davis v Secretary, NSW Department of Education

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