Director General, NSW Department of Education and Training v Sud

LEGISLATION CITED: Industrial Relations Act 1996 (NSW)

Jitendra Mohan Sud v NSW Department of Education and Training [2010] NSWIRComm 1024 CASES CITED: NSW Attorney General's Department v Miller (2007) 160 IR 185 Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11

Mr A Britt of counsel LEGAL REPRESENTATIVES: NSW Department of Education and Training

CORAM: WALTON J, Vice-President STAFF J LYNCH AC

DIRECTOR GENERAL, NSW DEPARTMENT OF EDUCATION AND TRAINING AND JITENDRA MOHAN SUD

Application by Director General, NSW Department of Education and Training for leave to appeal and appeal against a decision of Commissioner Macdonald given on 16 July 2010 in Jitendra Mohan Sud v NSW Department of Education and Training [2010] NSWIRComm 1024

1 On 13 November 2009, Jitendra Mohan Sud was dismissed from his employment as a public school teacher with the NSW Teaching Service. 2 Mr Sud sought reinstatement to his former position, without any order for back payment of wages, pursuant to the provisions of Pt 6 of Ch 2 of the Industrial Relations Act 1996 ('the Act'). 3 Mr Sud's reinstatement application was heard by Macdonald C. Following a three day hearing, the Commissioner granted the application: Jitendra Mohan Sud v NSW Department of Education and Training [2010] NSWIRComm 1024. 4 The Director General, Department of Education and Training ('the Department') subsequently sought, pursuant to s 188 of the Act, leave to appeal and to appeal the reinstatement decision. This decision deals with that appeal. 5 In these proceedings, the appellant was represented by Mr A Britt of counsel. Mr P Newall of counsel appeared for the respondent. Background 6 Mr Sud had been employed by the Department since 11 March 2002 and held a position as a mathematics teacher at Randwick Boys' High School at the time of his dismissal. 7 On 23 June 2009, Mr Kevin Schipp, Manger, Staff Efficiency and Conduct Team, Employee Performance and Conduct Directorate, advised Mr Sud that he had been asked by the Director, Employee Performance and Conduct Directorate, to investigate and prepare a report into allegations that Mr Sud may have engaged in misconduct. The misconduct was alleged to be as follows: 1. On 11 May 2009 you refused four (4) requests to observe lessons conducted in the classes you would be teaching. This was to support your return to teaching duties at the school.

On 12 May 2009 you again did not participate in observing lessons in classes despite being required to do so.

On 13 May 1009 you once again attended school but did not participate in observing lessons as required/requested.

On 11 May 2009 you did not complete a revision paper for Year 10 and at the end of the day you left a note on the Head Teacher's desk stating 'I won't be teaching tomorrow as well'.

You failed to comply with a written lawful direction given by Mr Duncombe to attend a meeting scheduled for 13 May 2009 to discuss concerns regarding your performance as a teacher and including the implementation of a Teacher Improvement Program.

On 18 may 2009 you did not attend to the work left by Ms Sue Cran, School Education Director, Botany Bay.

Your action in relation to allegations 1-6 above have frustrated attempts by the Principal to address concerns regarding your efficiency which were originally identified on 14 October 2008.

You engaged in the conduct outlined in allegations 1-6 above after indicating to the Department through your solicitor by way of letter dated 24 February 2009 that you would participate in the improvement program. The Department did not rely upon allegation 6 in the appeal. 8 In a letter to Mr Sud dated 24 September 2009, Ms Jane Thorpe, Director, Employee Performance and Conduct, advised Mr Sud that an investigation into the allegations had been completed. It was noted that Mr Sud had not responded to the allegations despite being provided with an opportunity to do so. Mr Sud was provided with a copy of the report and attachments and advised by Ms Thorpe that she had found the allegations sustained and to constitute misconduct. Before determining the appropriate disciplinary action, Ms Thorpe invited Mr Sud to make a submission in respect of penalty. She also noted that on 1 June 2009, Mr Sud was found to have engaged in misconduct by failing to comply with lawful directions and was cautioned, reprimanded and fined. 9 Mr Sud replied to Ms Thorpe by letter dated 6 November 2009. Ms Thorpe considered Mr Sud's response and advised him by letter dated 13 November 2009, that he had engaged in misconduct and decided, pursuant to s 93B(1) of the Teaching Service Act 1980 ('the TS Act') to dismiss him from the NSW Teaching Service. Proceedings at first instance 10 It may be observed, at the outset, that this was a relatively simple case from both a legal and factual perspective. Most of the relevant facts concerning the failure of Mr Sud to attend classes as an observer, attend a meeting with the Principal, undertake other work as directed, and abide by other directions given by the appellant through its more senior employees, were admitted by the applicant. 11 Commissioner Macdonald dealt with the factual background at [7] to [30] of his decision: ... [7] The Applicant was employed as a school teacher from 2002 until the time of his dismissal. He was initially employed in the town of Walgett until 2004, when he was transferred to Randwick Boys High School (R.B.H.S.), Sydney. He taught mathematics and computing.

[8] In 2008, a new school principal (Mr Wayne Duncombe) was appointed to R.B.H.S..

[9] In April, 2008, Mr Duncombe raised concerns about the Applicant's teaching performance. Around the same time, the Applicant made formal complaints against three school teachers: Mr Duncombe, Ms Pat Gard and Mrs Robyn Crocker.

[10] Mr Duncombe established an informal support program in April-May, 2008 for the Applicant in order to address the concerns about his teaching performance. Mr Duncombe denied that the support program was a response to Mr Sud's complaints.

[11] Mr Sud objected to Ms Gard or Ms Crocker being in any way associated with the support program (given his complaints against them). Mr Sud took absence from school. Mr Duncombe received a letter on 6 June, 2008 from Mr Sud's solicitors.

[12] Mr Sud returned to school. Another concern was raised about Mr Sud refusing to mark mathematics papers in accordance with faculty policy. Mr Sud was given a written direction by Mr Duncombe on 29 August, 2008 to mark the papers but he did not.

[13] On 13 October, 2008, Mr Duncombe wrote to Mr Sud advising he would like to meet with him to discuss concerns regarding his teaching performance and to commence the implementation of a formal program of support. Mr Sud could not meet with Mr Duncombe as he did not have a support person available for the proposed meeting day. Mr Sud did not have that meeting and then advised Mr Duncombe he would not be marking year 10 exams in the manner required by the faculty.

[14] Mr Duncombe wrote to Mr Sud directing him to attend a meeting on 20 October, 2008. Mr Sud did not attend.

[15] Ms Louise Ferguson, school education director, wrote to Mr Sud directing him to attend a meeting with Mr Duncombe on 31 October, 2008. Mr Sud did not attend.

[16] Ms Ferguson wrote again to Mr Sud directing his attendance with Mr Duncombe on 11 November, 2008. Mr Sud did not attend.

[17] Mr Sud's non-compliance with the directions was referred to the Staff Efficiency and Conduct Team for consideration of disciplinary action. Mr Sud was directed to report for duties at the Bondi Office instead of teaching at R.B.H.S.

[18] In late February, 2009, Mr Sud indicated through his legal representatives that he wished to return to teaching duties and was prepared to participate in the support program proposed last year. Dr Lambert, regional director, wrote in late March, 2009 to Mr Sud's legal representatives, agreeing to that support program return.

[19] Ms Ferguson wrote on 3 April, 2009 to Mr Sud advising him to return to R.B.H.S. on Monday, 6 April in order to resume teaching duties.

[20] Mr Duncombe met with Mr Sud on 6 April and stated that he was aware that Mr Sud was willing to participate in an "improvement program". Mr Sud replied in the negative and said he was returning so as to perform normal duties. Mr Duncombe telephoned Louise Ferguson for clarification. Mr Sud produced Ms Ferguson's letter which said he was to "resume teaching duties". Mr Duncombe then provided Mr Sud with a copy of a plan for his reintroduction to the school, which included him observing the classes of Elizabeth Saxena, the casual teacher whose class he would eventually take. Mr Sud then said he felt unwell and would be taking a sick day.

[22] On 11 May, 2009, Mr Sud presented a letter to Mr Duncombe in which he indicated he would participate in an "Improvement Program" and then a "Formal Support Program" only after obtaining copies of complaints against him from students or parents. He also indicated he was medically fit to resume his teaching duties from Monday, 11 May, 2009. Mr Duncombe replied that Mr Sud would need to observe the classes he was going to take. Mr Sud refused. Mr Sud raised his complaint of 2008 and Mr Duncombe said the complaint had been finalised. Mr Sud was again asked to observe classes and he refused.

[23] Later that day of 11 May, Mr Duncombe gave a letter to Mr Sud directing him to attend a meeting with Mr Duncombe on 13 May. Mr Sud advised he would not be attending the scheduled meeting.

[24] On 12 May, Mr Sud attended the school and refused to participate in observing classes.

[25] On 13 May, Mr Sud attended the school and refused to participate in observing classes. He did not attend the scheduled meeting with Mr Duncombe for that day.

[26] Mr Sud was placed on alternate duties in the Bondi district office, commencing 18 May. There were issues raised by the respondent about his performance, or non-performance, whilst engaged at the Bondi office.

[27] Ms Jane Thorpe, director (employee performance and conduct directorate) was given the task of reviewing material pertaining to Mr Sud. This material included an investigation report dated 14 August, 2009. Ms Thorpe's role included making decisions in relation to disciplinary action against teachers.

[28] Ms Thorpe wrote to Mr Sud, by letter dated 24 September, advising that she had considered the investigation report and annexures. She was of the view that the allegations against Mr Sud were sustained and that they constituted misconduct. The allegations concerned, in part, his refusal to comply with directions. She advised Mr Sud she was considering taking disciplinary action. The severest penalty indicated was dismissal.

[29] Mr Sud was provided with a copy of the material. He replied with a submission dated 3 November, 2009.

[30] Ms Thorpe considered his response and the other material. She decided that Mr Sud should be dismissed. By letter of 13 November, 2009, Ms Thorpe advised Mr Sud he had engaged in misconduct and was dismissed. 12 After reviewing the submissions of the parties, the Commissioner set out his understanding of the applicant's case and proceeded to deal with the first of what, he understood, amounted to two claims which gave rise to unfairness in the manner in which the Department had treated Mr Sud at [34] to [36]: [34] The applicant's case, broadly, fell into two claims: (a) the respondent had reneged on an agreement to place the applicant on an informal support program; and (b) there were substantive and procedural flaws in the eight allegations of misconduct said by the respondent to have been found proven.

[35] The Commission will deal with the first part of the applicant's case: the respondent had reneged on an agreement between the parties that the applicant undertake an informal support program and instead had placed the applicant on a teacher improvement program. The significance of this issue turns on the operation of T.S. Act which provides that disciplinary action (up to and including dismissal) can be taken against a teacher who has been placed on a teacher improvement program. The T.S. Act does not provide for any disciplinary action against a teacher who has only undertaken an informal support program.

[36] The respondent's submission on this issue was that the applicant had been placed on a teacher improvement program by Mr Duncombe, the R.B.H.S. principal. This was evidenced by his letter of 13 October, 2008 to Mr Sud, which advised that Mr Sud was being placed on a "formal program of support in accordance with the Department's Teacher Improvement Program procedures". (Ex 5, p165). 13 After analysing the evidence and explaining the difference between an informal support program and a formal program of support in accordance with the Department's Teacher Improvement Program procedures, the Commissioner determined at [62] and [63] that Mr Sud had been placed on an informal support program: [62] The Commission has come to the conclusion that the informal support program was the operative support program during 2008 and 2009. The result of the Commission reaching such a conclusion was summed up by Mr Britt (for the respondent) during final submissions. He said that the practical effect of such a finding "is that there is in fact no dismissal of the applicant." (Tr 13/05/10 - p25, line 6 to 17). That would be so, he said, because the decision of Ms Thorpe would then be ultra vires and void ab initio.

[63] In finding that the informal support program was the operative program, it is not then necessary to consider the eight allegations relied upon by the respondent to summarily dismiss the applicant, given that the allegations arise out of the respondent's view that the applicant had been placed on a formal improvement program. 14 The Commissioner proceeded to make observations about some of the eight allegations relied upon by the respondent, observing at [69] that Ms Thorpe's finding that allegation 4 was sustained and constituted misconduct was not correct; discussed allegation 6 at [70] to [74]; discussed allegation 7 at [75], and observed "on the face of it, this allegation is a summary of the previous six allegation with a fresh finding of misconduct. The applicant, it appears, has been found guilty for a second time for the previous six allegations". 15 The Commissioner stated his conclusions at [76] to [79]: [76] For the reasoning set out above, the Commission has concluded that the support program being referred to in the letter of 24 February 2009, written by the applicant's solicitor, is the structured, detailed informal support program proposed in 2008. The Commission has also found that it would be unfair for the respondent to have taken the ultimate sanction of dismissal when the applicant was not put on notice via Dr Lambert's letter of 23 March 2009, that the support program being put in that letter was the formal support program that attracted disciplinary action (including the ultimate sanction).

[77] Given the above findings and having considered all of the evidence, the Commission concludes that the dismissal of the applicant was unfair. Specifically, the Commission finds that the dismissal of the applicant was unjust: Outboard World Trade Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 of 183. The dismissal was unjust because the applicant did not know that he had been placed on a formal support program, where his job was on the line.

[78] Having considered all of the evidence, the Commission will issue orders for reinstatement, without loss of continuity of employment.

[79] There will be no order made in favour of the applicant for lost remuneration, given the applicant's concession, made through his legal representative, that no such order would be sought. 16 Macondald C proceeded to make the following orders: (a) The applicant, Mr Jitendra Mohan Sud, is to be reinstated by the respondent, Director-General, New South Wales Department of Education and Training, to his former position as a school teacher of Randwick Boys High School, or such other school, as may be agreed between the parties. Failing agreement as to "such other school," then the order for reinstatement at Randwick Boys High School shall prevail.

(b) The applicant's period of employment shall be taken not to have been broken by his dismissal.

(c) These Orders shall take effect within twenty-one (21) days from the date of this Decision. Grounds of appeal 17 Although the notice of appeal set out 11 grounds, both the appellant and the respondent argued the appeal on the basis that the challenges to the Commissioner's decision could be dealt with on the following basis: (i) whether the Commissioner had made an error in relation to a factual matter, that being, whether Mr Sud, when he was returning to work in 2009, was returning to work on an "informal support program" or a "formal improvement program";

(ii) whether the Commissioner misconstrued the submissions of the appellant at [62] of his decision, which resulted in the Commissioner not considering grounds 1, 2, 3 and 5 of the reasons relied upon by the Department in terminating Mr Sud;

(iii) whether the Commissioner failed to consider the Department's submission that reinstatement was impracticable and provided no reasons for rejecting the Department's submission. Leave to appeal 18 We have decided to grant leave to appeal from the reinstatement decision. We have concluded that the decision was affected by error that requires correction in the proper administration of justice. Further, the matter involves important questions about the administration of the teacher improvement programmes in the context of unfair dismissal matters. Nature of appeal from reinstatement decision 19 In NSW Attorney General's Department v Miller (2007) 160 IR 185 at 200, the Full Bench summarised the principles applicable in an appeal from a reinstatement decision at [32] as follows: [32] The appeal from the Reinstatement Decision involves mixed issues of fact and law as to whether the dismissal of Mr Miller was harsh, unreasonable or unjust and the exercise of discretion by Grayson DP as to what, if any, relief should be granted: see Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at 326. In Commissioner of Police v Dobbie (2006) 157 IR 44 the Full Bench considered an appeal by the Commissioner of Police from a decision of Marks J reinstating a police officer. The Full Bench gave consideration to the nature of the appeal at [17]-[18]. Whilst that case involved a consideration of s 181D of the Police Act 1990, the principles stated by the Full Bench in Dobbie, especially at [18], apply equally here and we respectfully adopt them: [17] As to the nature of the appeal, we respectfully agree with the observations of the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 at [81]-[84]: [81] As was stated in King v The State Bank (unreported, Wright J, President, Walton J, Vice-President, & Kavanagh J, 23 December 2002 at 65): The nature of an appeal is to be determined as a matter of construction having regard to the provisions of the relevant statute providing for the appeal and the nature of the decision the subject of appeal. [82] It should be noted at the outset that the decision of Deputy President Sams to which this appeal relates was not one of a discretionary nature of the kind considered in House v The King . The question which his Honour determined was whether the dismissal was harsh, unreasonable or unjust in the circumstances. The determination of that question involved mixed issues of fact and law, rather than the exercise of discretion per se (see Burge v NSW BHP Steel at 4, citing Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 181-182 and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 59). As such, the appeal is an appeal in stricto sensu (see King v State Bank at [65]). As cited in King v State Bank at [70], the relevant principles to be applied on appeal are those set out in the joint decision of Hungerford J and Murphy C (with respect to which Peterson J agreed, at 240) in Re Solicitors State Award (1997) 72 IR 225 (citing Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149): It is not, of course, we would interpose, every case which would require an appellate court to substitute its views for those of the primary judge, and in that respect we agree with the comment by Hill J sitting on appeal in this Court in Hussmann Australia Pty Ltd v Walker ((1993) 48 IR 396 at 406) to the effect that there should be no interference with "conclusions on facts unless (the Full Court) is of the opinion that they were not reasonably open on the evidence".

[83] The relevant principles to be applied on appeal in such circumstances may conveniently be adopted from the decision of the Full Bench in Burge v NSW BHP Steel (at [7]): The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). [Emphasis added].

[84] These principles were also articulated in Wilson v Department of Education and Training [2000] NSWIRComm 120 (at [61]-[62]): The appellate court substitutes its own judgments only if the trial judge makes a finding of fact which is wrong or not reasonably available on the evidence: ( Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688). The appellate court should otherwise not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1998) 160 ALR 588] all show that courts such as this court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

This Commission and its predecessors have adopted the above view: ( Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Haynes v CI&D Manufacturing Pty Limited (1995) 60 IR 149 at 154). [18] Humphries and the cases cited therein, are authority for the following relevant propositions: (1) The appeal in these proceedings is an appeal stricto sensu and not by way of a hearing de novo .

(2) A decision as to whether a dismissal was harsh, unjust or unreasonable involves mixed issues of fact and law: see also Evans at [1] per Walton J.

(3) If it is found the dismissal was harsh, unjust or unreasonable then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed.

(4) An appellate court or tribunal is required to determine whether findings of fact and the inferences drawn from them by the primary judge, and findings as to the law, reveal any error authorising appellate interference.

(5) The appellate court or tribunal will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact that is clearly wrong or is not reasonably open on the evidence. Otherwise, the appellate court or tribunal should not intervene.

(6) An appellate body is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate body will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. (7) The principles governing appeals against a decision involving the exercise of a discretion by the primary judge require that the appellate body is not justified in interfering with the decision appealed from unless it reaches the clear conclusion that the judge acted upon a wrong conclusion, or allowed extraneous or irrelevant matters to guide or affect him or her, or mistook the facts, or did not take into account some material consideration, in which case the appellate body may exercise its own discretion in substitution for that of the primary judge if it has the materials for doing so. We respectfully agree with these observations. Whether Macdonald C erred: Informal Support Program 20 In concluding the informal support program was the operative support program during 2008 and 2009, it will be recalled that the eighth allegation relied upon by the Department to terminate Mr Sud, was that he "engaged in the conduct outlined in allegations 1 to 6 above, after indicating to the Department through your solicitor by way of letter dated 24 February 2009, that you would participate in an improvement program.". 21 The appellant submitted that there was no evidence from Mr Sud's solicitor as to what he meant when he wrote the correspondence, in particular, what the words "an improvement program" meant, or what instructions Mr Sud had given him in this respect. 22 The letter from Mr Sud's solicitors to the Department dated 24 February 2009 relevantly, read: As you are aware our client is currently on alternative duties at the Bondi Office of the Department. He now wishes to return to teaching duties at Randwick Boys High and is now prepared to participate in the support program that was proposed last year. (Italics added).

Please advise when such program may commence. 23 On 23 March 2009, the Department replied to the letter from Mr Sud's solicitors relevantly as follows:

In response to your request, I wish to advise that Mr Sud will be given an opportunity to participate in a support program at Randwick Boys' High School. He is to report to the Principal, Mr Wayne Duncombe on 6 April 2009 at 9.30am to discuss the timeline for the implementation of the program. (Italics added). 24 On 6 April 2009, Mr Duncombe, the Principal of Randwick Boys' High School ('the School') wrote to Mr Sud advising "I have organised a meeting to discuss the difficulties you are experiencing with your teaching and to commence the implementation of a formal program of support in accordance with the Department's Teacher Improvement Program procedures.". 25 This led Mr Sud to write to Mr Duncombe as follows: As common law demands, that administrative actions against a person must be based on reasonable complaints, I understand that I have a right to obtain copies of complaints or their contents from students or parents against my teaching, if any. I will participate in 'Improvement Plan' and then 'Formal Support Program' only after getting copies of complaints against me from students or parents. Now, I am medically fit to resume my teaching duties from Monday, 11/05/09. 26 Mr Britt submitted that in light of the above correspondence and notwithstanding the offer of the respondent's solicitors, it was quite clear, based on the evidence and conduct of Mr Sud, that he had no intention in participating in any program unless his conditions were met. 27 Mr Britt submitted that the Commissioner fell into error by way of the emphasis he placed on the offer found in the correspondence from the respondent's solicitors of 24 February 2009, because Mr Sud was "even resisting participating in a informal program.". It was submitted by counsel that in so concentrating on the nature of the program, the Commissioner made a material error of fact and failed to take into account, or give sufficient weight to, relevant matters such as the respondent's refusal to even participate in an informal program. This led Mr Britt to submit that although an informal program of support had been proposed in April/May 2008, matters concerning the respondent had moved on and the Commissioner had failed to take into account this fact. 28 During the proceedings before Macdonald C, evidence was called from Ms Louise Ferguson, the School Education Director, Port Jackson Network, that the support program and the Teacher Improvement Program were two separate programs. She said she expected Mr Sud was to be placed on a support program. Mr Duncan also gave evidence that "the program proposed last year (2008) was a support program.". His evidence was that the decision to move Mr Sud to a Teacher Improvement Program and not the support program proposed the previous year had been taken by persons other than himself and that Mr Sud was not provided with any program before returning to the School in May 2009. He was, therefore, unaware of this decision before he returned to the School. Mr Duncan's evidence was that upon Mr Sud's return to the School, it became apparent that it was not clear what was meant to be occurring and that he and Mr Sud had a different understanding of what was to occur. This led Mr Duncan to telephone the School Education Director to try to clarify the matter. 29 Ms Thorpe, the Department's Director of Employee Conduct, also gave evidence that the support program and the Teacher Improvement Program, were two fundamentally different programs, one having no disciplinary consequences, and the other having disciplinary consequences up to and including dismissal. Section 93H of the TS Act relevantly provides: 93H Performance improvement programs (1) If, following completion of the review of an officer's performance, the Director-General is of the opinion that the officer is not performing his or her duties in a satisfactory manner, the Director-General 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 Director-General considers appropriate. 30 It is clear that a performance improvement program can only be instituted after the Director General has carried out a review and formed an opinion that such a program is necessary. Participation in the program is mandatory. However, an informal support program is by agreement between a Principal and the teacher. 31 Section 93J of the TS Act relevantly provides: 93J Dealing with unsatisfactory performance - officers other than school principals ... (2) If the Director-General 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 Director-General 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 Director-General 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 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.

[75] Similarly, in NSW Public Service Professional Officers Association v Forestry Commission (NSW) (1990) 39 IR 46 at 51, Cahill VP said:

A final matter which deserves comment is that, while in some reinstatement cases it might be appropriate to consider the practicality of restoring the employment relationship in advance of, and separate from, the question of fairness of the dismissal, it is difficult to conceive of such an approach being properly taken unless all the evidence is in and the submissions completed. Furthermore, such a course would not, in any event, seem appropriate in a type of case, of which the present case is an example, where specific charges have been laid, an enquiry has been held by the employer, the charges have been found proven and the dismissal action has been taken. In a reinstatement case following such a sequence of events the primary matter for the tribunal's consideration is surely whether, on all the evidence, the charges on which the dismissal was based have been made out. 42 In this appeal, we have effectively found that the Commissioner did not fall into error in concluding that allegation 8 had not been made out. We consider, however, that the appellant was correct in his submission that the Commissioner erred in failing to determine the other grounds for his dismissal. It was not open to the Commissioner to dispose of those grounds without considering the issues raised by the appellant in that respect or, alternatively, providing reasons as to how the resolution of ground 8 or the informal support program issue may have essentially negated the other allegations. 43 Nonetheless, we do not consider that the appeal should be upheld on that basis, as the decision of the Commissioner under s 84(1) is sustainable on other grounds which we will now briefly state. The entirety of the charges laid against Mr Sud were, in our view, predicated upon a false premise, that being that Mr Sud had agreed to an improvement program. When considered in this light, the charges are effectively without a proper foundation. The decision of the Department was clearly underpinned by this premise and, in that respect, the decision itself also unsound. On that basis, there was a proper basis to find, as the Commissioner ultimately did, that the dismissal was unjust, notwithstanding the other allegations made against the respondent. The determination of those other allegations by the appellant was infected by the adoption of an entirely false premise as their foundation, which rendered them inoperative in the sense that the actions of Mr Sud were explicable or justified on another basis not recognised in the allegations. We reject, therefore, ground two of the appeal. Ground 3: Failed to consider whether reinstatement was impracticable 44 Mr Britt submitted that the Commissioner had failed to consider evidence called and submissions relied upon by the appellant that Mr Sud's reinstatement was impracticable. In concluding that the dismissal was unjust, the Commissioner stated at [78] "Having considered all of the evidence, the Commission will issue orders for reinstatement, without loss of continuity of employment.". 45 Mr Newall submitted that the Commissioner was entitled to briefly deal with the matter in the way he had, because he considered that the primary remedy of reinstatement was appropriate. 46 In our view, the Commissioner failed to exercise the statutory obligation imposed upon him by s 89 of the Act, or to give reasons in respect of why he determined that it was not impracticable to reinstate the applicant, particularly in circumstances where the appellant called evidence and made submissions. 47 Accordingly, we find the failure of Macdonald C to consider the requirements of s 89 of the Act was an error of law. The appeal should therefore be upheld on this basis. 48 Given that the Commissioner has erred in the exercise of his discretion, it follows that it was necessary for the Full Bench to determine whether to remit the matter or resolve it for ourselves. We propose to adopt the latter course. 49 The primary remedy provided for in s 84 applications is reinstatement. There was nothing in the material filed or the evidence given during the proceedings that would enable a finding to be made that reinstatement was impracticable. The only basis addressed by the Department for contending that reinstatement was impracticable was that Mr Sud allowed the improvement program to lapse. Given that we have found that the Department's support and/or improvement programmes effectively miscarried in such a way as to be unjust to Mr Sud, we see no reason why, with the prospect for the proper application of such processes, as may be applicable, that reinstatement is impracticable. Reinstatement should, therefore, be ordered effective from the date of Macdonald C's decision. The reinstatement should be to Mr Sud's former position, and we order accordingly. 50 Nothing in this decision in any way limits the Department from implementing a Teachers Improvement Program. If one is introduced, a decision to that effect (if necessary confirming any previous instruction) should be made as soon as possible after this decision. Mr Sud shall attend the program in accordance with any lawful terms imposed. Any failure to comply with the performance improvement program by Mr Sud may be dealt with in accordance with s 93J of the Teaching Service Act 1980.

2. The appeal is upheld to the extent identified in this decision;

3. The orders of Commissioner Macdonald of 16 July 2010 are quashed; 4. Jitendra Mohan Sud shall be reinstated to his former position at Randwick Boys' High School effective on and from 3 November 2010;

5. The appellant shall pay Jitendra Mohan Sud the remuneration Mr Sud would, but for being dismissed, have received from 6 August 2010 until the date of this decision; 6. The respondent's period of employment shall be taken not to have been broken by his dismissal, provided that Mr Sud shall not be entitled to the payment of any salary for the period since his dismissal up to 5 August 2010; 7. The stay granted by Walton J, Vice-President, is dissolved.

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