(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 Director-General is of the opinion that the officer's performance is still unsatisfactory.
32 It is significant that s 98H of the TS Act makes both the completion of a review of an officer's performance by the Director General and the formation of an opinion by the Director General that the officer is not performing his duties in a satisfactory manner mandatory before a teacher improvement program can be implemented. The implementation of such a program carries with it potential disciplinary consequences pursuant to s 93J of the TS Act.
33 There was no evidence of the Director General, or his delegate, "completing a review" of Mr Sud's performance, or forming the view, having conducted such a review, that Mr Sud was not, before 6 April 2009, performing his duties in a satisfactory manner. This raises real doubts about whether the Director General, or his delegate, did have the authority, pursuant to the TS Act to "implement the Teacher Improvement Program" or, if there was such authority, whether it was ever activated. It is, however, unnecessary to further resolve those questions, as we consider that, based on the foregoing analysis, it was open to the Commissioner to find, at all relevant times, Mr Sud was entitled to the view that he would return to work on an informal support program. Further, we consider that the finding, so made, was a proper basis for sustaining his view that the dismissal of Mr Sud was unjust. That is not to say that a Teacher Improvement Program may not be implemented with respect to Mr Sud, but that it was not properly or appropriately put into effect in the present case, thus resulting in the unfairness found by the Commissioner.
34 The Commissioner concluded that the informal support program was the operative support program during 2008 and 2009. Accordingly, we find no error was made by the Commissioner in reaching this conclusion.
Second appeal ground: Misconstruing appellant's submission at [62] of decision and failure to consider other grounds of misconduct
35 The Commissioner, at [62] of his decision, after concluding that the informal support program was the operative program, stated that in light of such a finding, Mr Britt had conceded the practical effect was that there was no dismissal of the applicant, because the decision of Ms Thorpe would have been ultra vires and void ab initio. Mr Britt submitted that the Commissioner had failed to properly appreciate the submission made by the appellant during final submissions, and further, that the submission made had been taken out of context.
36 Counsel acknowledged that a concession had been made in reply to submissions put by counsel for Mr Sud that if Ms Thorpe's decision was found to have been ultra vires on the basis that she was exercising an employer's statutory disciplinary powers and had exercised such powers in a manner that contravened the rules of procedural fairness, such a decision would therefore be ultra vires and that there would have been no dismissal of the appellant.
37 Mr Britt submitted that this concession did not go to the issue of whether the program was a formal or informal improvement program, but was directed to a conclusion that if the Commission found the appellant had not complied with its statutory obligations prior to dismissal, then there was no valid dismissal.
38 The Commissioner found that Ms Thorpe's decision was not ultra vires, as he found that Mr Sud had been dismissed and that the Commission had jurisdiction to determine the matter. Clearly, the Commissioner has fallen into error in misconstruing the appellant's submission. This led to the Commissioner falling into further error in failing to consider the allegations of misconduct being grounds 1, 2, 3 and 5 of the reasons for termination of Mr Sud. The Commissioner concluded that in circumstances where he found Mr Sud had been placed on an informal improvement program, each of the allegations of misconduct arose out of being placed on a formal improvement program and that, therefore, disciplinary action could not be taken against Mr Sud.
39 Mr Britt submitted that grounds 1, 2, 3 and 5 of the reasons for termination could be severed and considered separately to ground 8, which relied upon a determination of whether the improvement program was formal or informal.
40 Mr Newall submitted that having made the finding that he did, the Commissioner was entitled not to consider the further allegations relied upon and pressed by the Department as sustaining the allegation of misconduct.
41 The question of whether it was incumbent upon the Commissioner to make explicit findings that Mr Sud was guilty of the particular acts of misconduct specified in the charges, was considered by the Full Bench in Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11. The Full Bench observed at [74] and [75]:
... What must be implied in the Union's submission is that the right to suspend arises only upon a finding that the employee is guilty of misconduct as charged , not merely upon a finding of fact that the employee is guilty of any act of misconduct. In that regard, we note that decision of Dey J in Public Service Association of New South Wales and Public Service Board Re Ristau (No 2) (1979) AR 357 (at 373):
However, the question in this case is not whether Mr Ristau was an unsatisfactory officer, but whether he had been guilty of the particular breach of discipline for which he has been dismissed. Upon the basis that Mr Ristau was an officer permanently employed in the Public Service and was not guilty of the misconduct with which he was charged, it seems to me that the proper course to be followed is to order his reinstatement. To uphold the dismissal when the basis of that action was not established, would be to endorse his having been treated unfairly.