Greig v Director-General, Department of Education and Communities

Industrial Relations Commission (NSW)|2013-09-20|Before: Prouds Jewellers P, Mr J, Commission J

DECISION 1This is an appeal brought pursuant to s.98 of the Industrial Relations Act 1996 ('the Act') by Mr Ian Greig against the decision of the Director-General, Department of Education and Communities, to reduce him in rank from Head Teacher to Teacher. Mr Greig also seeks to appeal against the decision of the Staffing Service Unit of the Department to transfer him from Monaro High School to another school. 2Mr Greig was reduced in rank following a finding that certain allegations of misconduct against him were proven. I return to the specific findings of misconduct below. 3Mr Greig was informed of the decision to reduce him in rank by a letter from the then-Acting Director, Mr Kevin Schipp, on 30 November 2012. In the same letter Mr Schipp stated 'I do not regard it as tenable that you remain at Monaro High School'. On a later date the Staffing Service Unit of the Department directed Mr Greig to work at Karabar School where he is presently employed, albeit not in practical terms as a classroom teacher. 4Mr Greig's appeal was filed in 2012. The matter came before the Commission for hearing, however, only in September 2013. The extent of that delay was a causative factor in certain programming and scheduling decisions the Commission made to which I return below. 5The appellant was, having earlier been represented by Federation Law, solicitors, self-represented. The Department was represented by counsel and solicitors. 6I afforded Mr Greig license in a number of procedural matters, and in the conduct of his case at large, consistent with his being an unrepresented applicant. I did so in a manner which in my view was in the interests of justice, but did not effect an unfairness on the Respondent.

Obligations on parties to confine their cases to relevant matters 18As the Commission has a statutory obligation to act expeditiously, parties conducting proceedings before the Commission should in recognition of that fact be prepared to confine their cases, both in evidence and in submission, to what is necessary. If the parties do not exercise that discipline themselves they can expect that it will be exercised for them by the Commission. 19At the same time, parties can reasonably expect decisions to be provided to them in short order after proceedings. That will on occasions mean extempore decisions; it may well mean decisions which are shorter in compass and do not trawl over every fragment of evidence and every point taken in submissions.1 20The responsibility to act expeditiously falls on the Commission, but it is also a reason why the parties ought exercise discipline not to load the Commission with irrelevant and non-probative materials by way of evidence. In this matter, on review of the Respondent's evidence, it became apparent that it contained a good deal of irrelevant material, unsourced hearsay and lay opinion evidence. 21It is not to the point that the laws of evidence do not strictly apply in the Commission. The material to which I refer was inadmissible under those laws, but even if it were admitted, it had absolutely no probative value. Once that evidence was filed, though, the time of the Commission was necessarily to be taken up either in reading and considering this evidence or in dealing with objections to it. Either way it was a waste of time. 22I have said that it behoves parties before this Commission, and particularly parties such as government departments which have, courtesy of the people of New South Wales, the benefit of being represented by competent solicitors and experienced counsel, to exercise discipline in the decisions taken about evidence brought in proceedings. If, on the other hand, a party chooses to advance irrelevant and non-probative material to the Commission, it ought not be surprised when its claims that more time is needed to hear its evidentiary case than the Commission has allowed fall on stony ground.

The Commission's powers in disciplinary appeals 23It is relevant to set out in summary form the Commission's powers in an appeal brought pursuant to s.98 of the Act. 24I note here that this appeal was lodged within the 28 days prescribed by subs.100B(2) of the Act. 25The Commission's statutory powers in relation to an appeal of this kind are set out at ss.100C and 100D of the Act, which fall within Division 3 of Part 7, Public Sector Promotion and Disciplinary Appeals, of Chapter 2 of the Act. 26I do not set out the legislation in the body of this decision. However, it is apparent from the words of subs.100C(2) that an appeal before the Commission is an appeal de novo. That is, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decisionmaker: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91; Franks v Roads and Traffic Authority [1996] NSWCA 192. 27The Commission may impose a punishment different to that imposed by the initial decisionmaker. In this case the range of punishments available to the decisionmaker are set out at s.93B of the Teaching Service Act. While arguably the Commission is not, given the terms of s.100C(2) of the Act, confined to those punishments it would be appropriate in my view that the Commission have regard to the punishments the parliament has seen fit to provide in the statutory instruments applicable to particular types of public sector employment. 28The Commission's view of an appeal of this nature is to be formed on the basis of, first, whether the misconduct said to be the basis for the punishment is made out; and second, if it is, whether the punishment imposed, here dismissal, is appropriate: Duhbihur loc cit, Rail Corporation of NSW v Elleray [2013] NSWIRComm 86 at [54]. 29The Commission must also satisfy itself that the decisionmaker has in the first instance acted lawfully. 30Counsel for the Department submitted that the disciplinary power exercised by the Director-General in this matter was 'protective, not punitive', analogously with the manner in which disciplinary powers exercised by the Commissioner for Police have been characterised: Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995). 31In general, the disciplinary powers exercised in relation to public employees who do not have fiduciary-like duties are, without more, punitive in nature, not protective of the general public: Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276, at [106]-[107]. 32However, the powers exercised by the Director-General in this case were necessarily exercised having regard to s.5A of the Teaching Service Act 1980, which, summarised, provides that any action taken in respect of an officer must have regard to the paramount consideration of the protection of children. 33That statutory obligation, which, it should be noted, is expressly provided at subs. 5A(2) of the Teaching Service Act to have effect despite anything in the Industrial Relations Act, introduces a protective element into the exercise of the powers by the original decisionmaker and necessarily introduces that protective element into the exercise of powers carried out by the Commission, given that the Commission is required to determine the matter de novo, as I set out above.

Onus of proof and level of satisfaction required 34This is a case in which misconduct is alleged. 35As I note above, once it is determined that the decisionmaker acted lawfully in the first place, the first fundamental test in an appeal of this nature is to determine whether the misconduct which was cited as the basis for the punishment actually occurred. 36At common law, misconduct is a serious matter, with potentially serious consequences. The obligation to make out that misconduct falls accordingly on the employer: Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4; National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35]. 37The level of proof required for such a finding of misconduct is of course on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336; 'in a convincing way' as it has been expressed by the Full Commission: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. 38It was put by the Respondent that this was not the appropriate level of satisfaction that needed to be reached in this case, as the 'misconduct' relied on was not misconduct at common law but misconduct within the meaning of the Teaching Service Act 1980, which provides a definition of 'misconduct' at s.93C. 39Under that Section misconduct is defined as including, but not limited to: (a) a contravention of any provision of this Act or the regulations, (b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action, (c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) ) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person. 40It is apparent from that definition that misconduct as defined in the Teaching Service Act may not necessarily be, but may be less than, serious misconduct in the common law sense. Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 and Four Sons Pty Ltd v Limsiripothong (2000) 98 IR 1 were then called in aid by the Respondent in support of the proposition that the Briginshaw level of satisfaction appropriate to a finding of misconduct at common law need not be reached in a case such as the present. 41However, as a finding of misconduct under the Teaching Service Act is a matter from which disciplinary penalties may flow including dismissal, it is still in my view appropriate that the requirement for a finding of misconduct to be made out 'in a convincing way' apply to findings of misconduct within the meaning of the Teaching Service Act. 42I observe that in Four Sons the Full Bench expressly held that the statement of principle in Briginshaw may be applied to allegations of a broader nature than just criminal conduct or fraud in employment, depending on the nature and seriousness of the allegation made. In the same way, it is evident that an allegation of misconduct within the meaning of the Teaching Service Act must be made out to a level conformable with s.140 of the Evidence Act 1995. In this case the allegations were wide-ranging allegations of misconduct with a range of penalties available up to and including dismissal. 43None of this consideration detracts from the fact that a party seeking to persuade the Commission to allow an appeal against a disciplinary decision necessarily carries the onus of so persuading: Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep) per Cole JA, with whom Clarke JA and Maher JA agreed, at p 3. 44Neither does it detract from the fact that an allegation of misconduct under the Teaching Service Act requires assessment of the conduct concerned against the provisions of that Act, not against the common law definition of misconduct. That is the approach I take to considering the allegations of misconduct in this matter.

Overview of this matter 45It is apparent that Mr Greig is a teacher of singular ability and has a real passion for the subjects that he teaches. There was uncontroverted evidence from a number of former students of Monaro High School who had been taught by Mr Greig that Mr Greig's approach to teaching had for them been life-changing, significantly and for the better. That is uncommon, and in many ways the highest commendation that a teacher may attract. 46That evidence was reinforced by evidence to the same effect from parents of students taught by Mr Greig. 47Supporting that evidence, there was a significant body of evidence of outstanding success in the conception, instigation and execution by Mr Greig of projects involving students and the school generally, ranging from the school magazine Kunama to a range of music and drama presentations of a quality which would do credit to any school, let alone a smaller school such as Monaro, and which did bring that credit to Monaro. 48Further, there was uncontested evidence that Mr Greig had mentored and assisted beginning teachers to their significant benefit. 49It was also sufficiently apparent from the evidence that Mr Greig's ability, and the manner in which he went about his work and the way in which he dealt with colleagues, attracted, as is not infrequently the case with talented individuals, the resentment of others. I have had regard to this latter point in evaluating the evidence before the Commission. 50The ability to teach the best students so that they reach their full potential, which ability Mr Greig, on the evidence, has amply demonstrated, is however not all that the Department requires of a Head Teacher. In the world of Departmental school education, the gifted and passionate teacher who accepts a Head Teacher role is not excused conformity with the administrative requirements of that role; these requirements include, on the evidence, obligations of leadership, administration, supervision and organisation of the relevant faculty. 51In the end it is in these matters that Mr Greig has exposed himself to censure from the Department.

The misconduct alleged in this matter 52The disciplinary proceedings taken by the Department against Mr Greig were conduct based, not performance based. There were initially what can properly be described as a raft of allegations against Mr Greig. A number were found not to be made out at all. A number were found to be made out, but not to be misconduct. A smaller number were found to be made out and to constitute misconduct. It is those that formed the basis for the decision to demote which is appealed here. 53The express findings of misconduct within the meaning of the Teaching Service Act upon with the decision to demote Mr Greig was based, and which, as I say above, the Department had an obligation to make out, were as follows. That between 2004 and 2011, whilst employed as Head Teacher English with responsibility for Drama, at Monaro High School, you engaged in conduct that could amount to misconduct in that you: (A) Between 2008 and 2011, failed to consistently and professionally carry out (sic) your responsibilities as Head Teacher English in leadership, administration, supervision and organisation of the English faculty, including but not limited to: i Failing to consistently develop and/or maintain teaching and learning programs; vi Requiring staff members to sign and date blank TARS forms which indicate the required supervision had taken place; vii Failing to demonstrate appropriate leadership, including but not limited to: b. On other occasions attending Monaro High School executive meetings with your mobile telephone and laptop and proceeding to use your laptop while the meeting was being conducted and not participate in the meetings; (B) Failed to ensure that marking for all Years 11 and 12 work was consistent, transparent and accountable, including but not limited to: (i) On a number of occasions giving students their marks verbally; (ii) On occasions failing to give any marks for work completed; (iii) On a number of occasions providing no written feedback to students; (iv) Failing to consistently use marking rubrics in accordance with Board of Studies (BoS) guidelines; (v) On occasions using a marking grid instead of using the recommended marking rubrics; (vi) On one occasion in 2008, failing to mark the trial HSC papers in a timely manner and input the marks prior to the marks being forwarded to the Board of Studies; (vii) instructing staff not to include marks or rankings on Years 7 to 10 student reports. (D) During 2008 to 2011, failed to be punctual in attending your Year 11 and 12 classes, as demonstrated by: (i) On numerous occasions, failing to arrive on time to teach your Advanced English and/or Extension English classes; (ii) On numerous occasions, failing to arrive on time to teach your Drama classes; (iv) On a number of occasions failing to teach your Advanced English and/or Extension English classes at all, including leaving the class sitting or standing unsupervised in the corridor for the entire class time (I) During 2009 and 2010, failed to treat a male student, namely Mark Salvestro, with respect, fairness and consistency, in that you: (i) On a number of occasions made disparaging comments to Mark about him coming from St Patrick's Catholic School, Cooma; (vi) On one occasion when Mark asked you for feedback about the mark he received for his speech assessment you laughed and said words to the effect of "Did you see your speech" and walked away giving him no other feedback; (J) Between 2004 and 2009, failed to treat a female student, namely Sarah Redmond, with respect, fairness and consistency, in that you: (xii) On one occasion becoming very angry and aggressive towards your Principal, Mr Peter King, in front of students, including Sarah Redmond, when you chased Mr King across a quadrangle and then while standing over him pointing your finger at him, screamed your objection to Mr King's-decision about the outcome of the petition, causing Sarah to become fearful of being physically harmed by you. 54The Commission, as I set out above, and as the Respondent properly submitted, is required to determine these matters de novo. That means that the Commission must act on the evidence before it. Material that was before the initial decisionmaker but which was not put in evidence before the Commission cannot be relied upon. In this case, the material before the decisionmaker was all admitted into evidence. 55That material included particularly records of interview with persons who did not give evidence before the Commission and were not brought or intended by the Respondent to give evidence. That material was formally in evidence, but in circumstances where it was necessarily untested, it must be and was given significantly less weight. In any case where it was in contradiction with evidence actually brought and tested, as from for example Mr Greig, I have preferred the evidence actually brought and would in any event do so unless the evidence actually brought was inherently unreliable.

Lawfulness of the decision under appeal 56The provisions of the Teaching Service Act 1980 dealing with disciplinary processes are to be found in Part 4A of that Act. The power to discipline lies with the Director-General, but pursuant to s.8 of that Act, he has the power to delegate that function. The disciplinary decision was taken by Mr Kevin Schipp. On the evidence (Ex 6 at [12]) the functions under part 4A were relevantly delegated to Mr Schipp. I am satisfied that the decision to discipline was effected lawfully.

The allegations and the proof of them 57All the allegations are allegations of what is said to be misconduct occurring while Mr Greig was at Monaro High School between 2004 and 2011. As a matter of fact they fall between 2008 and 2011.

Allegation A 58The first allegation is that Mr Greig between 2008 and 2011 failed to carry out his responsibilities as Head Teacher, English in 'leadership, administration, supervision and organisation of the English faculty. 59The first particular given of that allegation is that Mr Greig failed to develop consistently and/or maintain teaching and learning programmes. 60The evidence of the first particular brought before the Commission came in good part from Mr Peter King. Mr King was Principal at Monaro High School between April 2008 and April 2010. 61Mr King adopted, and was able to be cross-examined abut, the matters he had deposed to in an interview with the Departmental investigator on 9 December 2011. 62In that interview he gave an account of hearing from others that there were 'difficulties' and 'a lack of programmes in the English faculty. That evidence would not be enough to sustain a finding of fact that there were no or insufficient programmes in place. 63Mr King went on, however, to describe his own experience with the teaching and learning programmes in the English faculty. Mr King said that he ultimately got Mr Greig to write a faculty programme, which Mr Greig did with input from others. He said that he raised concerns about teaching and learning programmes with Mr Greig in September 2009, and that the informal support he proposed for Mr Greig in March 2010 was due in part to concerns about lack of teaching and learning programmes. 64Other members of the English teaching faculty whom the Department brought in evidence made flat assertions that there were no such programmes in the English faculty in Mr Greig's time. Ms Preston said (Affidavit, para 12) that in 2009, 2010 and 2011 Mr Greig did not provide any teaching or learning programmes. Ms Roberts (affidavit, paras 15-16) said that Mr Greig did not put in place any programmes in the English faculty in her time in that faculty, that is, 2008-2010. Ms Steel (affidavit, para 19) said that Mr Greig did not put in place any learning programmes for the English faculty while she was a member of it. Ms Crawford says (affidavit, paragraph 15) precisely the same. 65Ms Wall, who relevantly has acted as Head Teacher in the English faculty at Monaro since January 2012, having earlier been a teaching member of that faculty under Mr Greig, gave evidence that Mr Greig 'gave very little active assistance' in putting learning and teaching programmes in place. He did not, said Ms Wall, 'compose/create any well processed programs for the faculty': affidavit, para 53. 66She further gave evidence about the materials that Mr Greig did provide, but characterised them as falling well short of the learning and teaching programme that was needed and that has, since 2012, begun to be put in place: affidavit, paras 54-60. 67.Mr Greig submits that this allegation is 'wholly false', and that the introduction in 2008 of the new Area of Study for HSC English led to his decision to break the 12-week term programme down into blocks of four weeks in order to maintain student interest. In responding to the material advanced by the Department he repeats in a number of ways that there was a teaching and learning programme in place under his tutelage. 68On the evidence, including Ms Wall's evidence, Mr Greig did present a programme after input from his colleague Ms Carolan. Ms Carolan was called in evidence by Mr Greig; her evidence supports the view that there was no, or no adequate by the Department's standards, teaching and learning programme in the English faculty at Monaro before she became involved in assisting to develop one. 69Mr Greig also argues in detail against the statements made by each of the teachers who say there were before that time no programmes, but though I have gone through those arguments with care with reference to the evidence, and indeed accepted from Mr Greig a number of factual matters which appear for the first time in his submissions, I am simply not persuaded that each of those teachers is flatly wrong in making the assertion that they make. 70In the end, significant and detailed evidence about the need for a programme, the proper content of the programme, and the adequacy of Mr Greig's approach was given by Mr Kevin Schipp, the manager of the Staff Efficiency and Conduct Unit of the Department. Mr Schipp was (very properly) pressed hard in cross-examination on this matter by Mr Greig. 71Mr Schipp's relevant evidence is to be seen at tpt 18 September beginning at p 214. At page 222 and following Mr Schipp gave detailed evidence, in cross-examination, about the materials that Mr Greig did have in place and whether they properly represented a teaching and learning programme. 72Without reproducing all that evidence here, it is clear that in Mr Schipp's view as a senior departmental officer with previous senior teaching experience, there was no adequate teaching and learning programme in place in the English faculty at Monaro under Mr Greig's tutelage. Mr Schipp's evidence at tpt 243-44 sets out in detail what in his view a programme of the standard required would be. When pressed, he expresses the forthright view that the document that was in existence fell so far short of what was required that the proper approach would be to tear it up and start again. 73I found Mr Schipp's evidence persuasive. When it is taken together with the evidence of Ms Roberts, Ms Preston, Ms Steel, Ms Crawford, Ms Wall and indeed Mr King that there was no programme put in place by Mr Greig, even allowing for the fact that some of those latter persons might be said to have formed an adverse view of Mr Greig, and add to that the evidence of Ms Carolan, it establishes in my view that there was not a teaching and learning programme of the kind properly required in place in the English faculty before 2011. 74In my view the first particular of Allegation A is made out, and made out at a level of proof satisfying the principles in Briginshaw. I turn below to whether it can be characterised as misconduct within the meaning of the Teaching Service Act. 75The second relevant particular of Allegation A is at (vi), in that Mr Greig required staff to sign and date blank TARS forms which indicated that supervision had taken place (in circumstances where it had not). 76TARS is, I am prepared to accept, a significant and compulsory element of the supervisory process to be carried out by a head Teacher. It is a system of review that is essential to ongoing evaluation, and therefore improvement, of teachers' performance. 77Importantly, in the Department's view the endorsement of a TARS form certifies that a teacher has had their work supervised, reviewed, and assessed by the Head Teacher. 78There was evidence, including from Ms Steel, Ms Crawford and Ms Howell, that what is asserted in the allegation occurred. Ms Steel, for example, says that while Mr Greig was her Head Teacher he did not review any of her lesson plans, lesson material or student work, evaluation or reports, and that she was unaware of his observing or reviewing any of her educational programmes. 79Ms Steel, who was when she first came into the English faculty under Mr Greig a probationary teacher, further says that it was only in 2012 when another Head Teacher was in place that she became aware that TARS involved conferences between the teacher and Head Teacher and observations and review of her teaching materials and samples of students' work, evaluations and reports. 80Ms Crawford and Ms Howell each gave evidence that Mr Greig asked them to sign a blank TARS form and they did so. 81For his part, Mr Greig freely concedes that he did ask teachers to sign blank TARS forms but says that he did so at the request of his principal. He points to the communication at TAB 70L of DEC 1 in support of this assertion. He further says that this practice is far more common than the Department realises. He also says that after the instruction from Mr King in 2009 to carry out a formal TARS process with his staff, he did so, they being Ms Chau, Ms Love, Ms Preston and Ms Roberts, the latter two being casuals. 82On the evidence, as a matter of fact the allegation is made out, and is made out to the appropriate level of satisfaction. I return below to whether it can be characterised as misconduct. 83The next allegation, A(b) (vii), is that Mr Greig failed to demonstrate appropriate leadership. The only surviving particular is that he is alleged to have on occasions attended Monaro High School executive meetings and used his laptop rather than participating in the meeting. No dates, even years, are given in this particular. 84 The Respondent in submissions properly concedes that this is a less significant matter and, if made out, a 'minor' breach of the code of conduct. I observed that Mr Greig used his laptop as a reference and noting tool throughout the appeal proceedings. His evidence was that that was what he was using it for so far as he was using it in meetings. Mr King, on the other hand, gives evidence that Mr Greig was during those meetings working 'on other things, and you had to inform him that it was inappropriate for him to be doing that and that you should have his full attention on proceedings'. How often this had to be done was not said. 85Mr Tame, Ms MacNab and Ms Howell gave affidavit evidence generally supportive of Mr King's evidence. Ms MacNab gave express evidence (Affidavit, para 28) of being in attendance at such a meeting when the Principal said to Mr Greig 'Maybe you could get off your laptop and participate.' 86I am prepared to accept that Mr Greig used his laptop during meetings. I am prepared, on balance, to accept that on occasions he may have been using it for things other than the subject of executive meetings. I accept that as a general proposition a Head Teacher is required to participate in executive meetings. I am not, however, prepared on the evidence I have to characterise Mr Greig's conduct in this regard as misconduct within the meaning of the Teaching Service Act. In any event, on Mr King's evidence (Ex 1 Tab 11 p 400, adopted by Mr King in his affidavit) it appears that after he chided Mr Greig, the conduct in any event ceased.

Allegation B 87The next allegation, B, concerns another aspect of faculty management, marking. The overall allegation is that Mr Greig failed to ensure that marking for all Years 11 and 12 work was consistent, transparent and accountable. There are then a number of particulars, to which I return below. 88I here observe, though, that it is apparent at a glance that Particular (vii) of Allegation B could never be made out on its face. The particular patently refers to matters outside the scope of the allegation in which it appears. 89It is troubling that two senior decisionmakers in Ms Thorpe and Mr Schipp both found this particular to be sustained when it manifestly could not be. Of course, as the matter is heard by the Commission de novo, and the particular was very properly conceded by the Respondent's counsel to fall away, the problem is cured, but nevertheless the degree of attention given to the disciplinary process undertaken by Ms Thorpe and Mr Schipp is, if only to a limited degree, called into question by this oversight. 90As to the substance of allegation B, it must be accepted, as the Respondent submits, that a consistent, transparent and accountable marking process is essential to the function of a school and an essential responsibility of the Head Teacher of any faculty. Equally it must be accepted that a Head Teacher must be aware of the Department's policy requirements in this regard and must observe and apply them. It could not be otherwise. There are such policy requirements; they are clearly set out in the relevant publications of the Board of Studies, not least in the document styled 'HSC Assessment in a standard referenced framework - a guide to best practice'. 91At the outset, I observe that on the evidence concerns about Mr Greig's approach to marking were raised by two principals at Monaro High School, including Mr King, and continued until 2011. I also note that the question of Mr Greig's marking was referred to Mr David Lewis, the relevant School Development Officer, who endorsed, in a written report, Mr King's direction to Mr Greig to provide appropriate written feedback and marks in an appropriate timeframe to students. That does not prove any of the particulars in terms. It does however, provide contemporaneous support for the proposition that marking, and those particular aspects of marking, were concerns which had crystallised before the allegations were put to Mr Greig. 92The first particular of Allegation B is that Mr Greig on a number of occasions gave students marks verbally. 93Mr Greig concedes this, saying that he gave marks to students verbally to relieve anxiety of waiting for marks, and that it was done in conjunction with other forms of feedback. I am not able to see that this particular forms the basis for a finding of misconduct. 94The second particular, B(ii) was that on occasions failed to give any marks for work completed. 95Mr Greig denies this particular, and evidence advanced in support of it by the Respondent was scant. There was some unsourced hearsay material (' I don't know but that was the story that was floating around') advanced by the Respondent to which I have not had any regard. Former students came in Mr Greig's case and gave evidence that they always received marks from him, but that does not disprove the particular. Mr King did in one piece of correspondence set out a finding of fact that one piece of work from one student was handed back without a mark, and another 'had no marks or comments on it'. The original papers were not brought in evidence. On balance, this particular in my view is not made out. 96The third particular was that Mr Greig on a number of occasions provided no written feedback to students. 97That allegation was supported by evidence before the Commission from Mr Salvestro, together with materials including correspondence from Mr King. None of the original students' work was brought in evidence in support of this particular. 98I note that Mr Greig called Mr Salvestro's credit into question regarding other answers he gave in his oral evidence, which was tested in cross-examination. I found, however, no reason to disbelieve Mr Salvestro on this point. 99I observe that Mr King made a finding in the course of upholding a particular student's appeal against an HSC ranking on the basis that the student did not receive adequate feedback for assessment tasks from Mr Greig. 100On the whole of the evidence, including Mr King's letter of 29 July to Mr Greig (ex 1 p 458) in which he made an express finding that a particular piece of work was handed back to a student without a mark or a comment and fifteen weeks' late and that other student work was handed back without comment, I find that this particular is made out. I turn below to whether it constitutes misconduct. 101The fourth particular was that Mr Greig failed to consistently use marking rubrics in accordance with Board of Studies guidelines. 102The evidence was that Mr Lewis and Mr King both formed the view that Mr Greig's use of rubrics 'were at best of a minimal standard'. Mr King's correspondence with Mr Greig in March 2010 is a contemporaneous record of his concern about this matter. 103Relevantly, in correspondence to which I have referred above, Mr King wrote to Mr Greig in July 2009 setting out a factual finding that Mr Greig had failed to use marking rubrics in particular pieces of work. 104In my view the particular as a matter of fact is made out. Again, I return to its proper characterisation below. 105The fifth particular was that Mr Greig used a marking grid instead of using the recommended marking rubrics. 106This particular is clouded by the apparent confusion between the use of the words 'grid' and 'rubric'. The Department advanced some evidence (including from Mr Salvestro and Ms Howell) that they were at times called one and the same thing. Mr Greig himself said that. No concrete evidence of the difference between a grid and a rubric was advanced to the Commission. 107I note that the Department's submissions on this particular point to evidence (for example that of Ms Steel at paragraph 13 of her affidavit) of Mr Greig failing to use 'marking criteria', not 'rubrics'. 108In my view this particular is inaccurate and confusing in its phrasing and the evidence does not support it in the terms in which it is made. I do not find this particular made out. 109The sixth particular is that on one occasion in 2008, Mr Greig failed to mark the trial HSC papers in a timely manner and input the marks prior to the marks being forwarded to the Board of Studies. 110There is express, albeit cursory, evidence from Ms Howell to that effect: affidavit, para 30. 111This allegation is a serious matter and in my view such a serious matter would necessarily have been brought to the knowledge of other persons than Ms Howell; the school principal, for example. Evidence of that having occurred was not before the Commission. 112In those circumstances, I am not satisfied that the particular is made out to the standard required of such a serious allegation, and I do not find it proven. Allegation D 113I now turn to Allegation D. That allegation was that in the years 2008 to 2011, Mr Greig failed to be punctual in attending his year 11 and year 12 classes. The three relevant particulars were, first, that on occasion Mr Greig arrived late at his Advanced English and/or Extension English classes; that he on occasion arrived late at his Drama class, and that on occasions he failed to arrive at all at his Advanced and/or Extension English classes, leaving those classes entirely unsupervised for the whole class time. 114Evidence was brought from Mr Salvestro, who was in some of the relevant classes, to the effect that Mr Greig on occasions arrived at class late and on one occasion did not attend at all. (Affidavit paras 38-40) Ms Howell gave evidence of occasions when Mr Greig was late to class and occasions when he did not appear at all. She said that she had a particular knowledge of this because her classroom was, until she was moved to another, next door to Mr Greig's room. 115Mr Greig points out that Ms Howell did not have a direct line of sight into his classroom. I accept that but do not see that her evidence relies on any assertion that she had such a view. 116Ms Wall gave evidence on this issue. She said that Mr Greig was 'often late for his classes', and that that meant between 10 and 30 minutes late. She says that she knew this because she saw Mr Greig's classroom from the staff faculty room directly opposite. She said that students from Mr Greig's classes came to the staff room on occasion to be let into the classroom. She referred to 'at least 3 occasions' when students from Mr Greig's Advanced English class came to sit in her class due to his being absent. She gave examples of two occasions when she was obliged to take Mr Greig's Advanced English students into her classroom due to an unplanned absence on Mr Greig's part: Affidavit, paras 38-44. 117As to that evidence, Mr Greig says in his submissions that it must be false as it would not be possible for Ms Wall to see into his classroom from the faculty room, and that indeed in 2010 he and Ms Wall had classrooms at the opposite ends of the school. He does say that in 2011 he gave Ms Wall his classroom opposite the staffroom, but says that timetabling would have meant that she would have had no knowledge of his classes. 118Mr Greig also submits that so far as there was an occasion on which he did not appear at all to teach a class, that was because the room had been changed without his knowledge; he had not been informed and he apologised. 119In considering this particular I have had regard to the fact that Ms Howell was a person who was in serious conflict with Mr Greig. I have had regard to the matters concerning Ms Wall's evidence that Mr Greig raises in his submissions and have given that evidence little weight. However, I perceive no basis on which I should flatly disbelieve both Ms Howell and Mr Salvestro. 120I find the particular made out. I turn below to whether it should be characterised as misconduct.

Allegation I 121I turn to Allegation I. This was, as set out above in full, that Mr Greig failed to treat a student, Mark Salvestro, appropriately in that he, first, made disparaging comments to him about his having come from St Patrick's school and second, that he field to provide proper feedback for a task and did so discourteously. 122This can be dealt with quickly. On the Department's evidence, and particularly Mr Salvestro's own evidence before the Commission (transcript 17 September, p123-4) the first particular is not made out. On all the evidence including Mr Salvestro's oral evidence referred to above, the second particular is also not in its terms made out.

Allegation J 123I now turn to the allegation at J(xii). The allegation at J (xii) is not made out. 124Indeed, it ought not to have been found proven by the Department. 125In the context of the Department's investigation, Ms Redmond was interviewed, and did not say that she had actually seen the incident; indeed from what she said in that interview the more likely view is that she was told about it. At best her account is ambiguous. Nobody told the Departmental investigator in terms that Ms Redmond did see the incident. The psychologists' reports called in aid do not go so far as to link any effect on Ms Redmond with that particular incident. 126Most critically, Mr King, the other protagonist in the incident, was not asked at all about the matter by the Departmental investigator, although he was interviewed. There was simply no evidence from Mr King about the incident given to the Department in the course of its investigation. 127That being so, even without the vagueness and uncertainty of the other evidence, it was unsafe for the Department to make the finding that was made in respect of allegation J (xii). 128The allegation was certainly not made out before the Commission, when the Department had the opportunity ad the onus to do so. 129Nobody gave evidence that Ms Redmond witnessed any altercation between Mr Greig and Mr King. 130Ms Redmond was not brought by the Respondent to give evidence in the Commission. I do not draw any Jones v Dunkel2 inference from that but the fact remains that there was no evidence from her in support of the allegation. 131Mrs Millington's evidence did not support the allegation in that she knew nothing of whether Ms Redmond had seen the incident or not. In any event, I found Mrs Millington an unsatisfactory witness; I did not find credible a number of her answers in evidence; without setting them out in detail, the evidence she gave at tpt 18 September 2013 at pp 251-252 is sufficient to demonstrate why her evidence overall was unsatisfactory. 132And critically, the reason that the Department's finding was unsafe absent Mr King having been asked about the incident in question became apparent when Mr King gave evidence before the Commission, and disavowed some of the essential elements of the allegation; there was no 'screaming' he said, nor was he 'stood over': transcript 17 September, p.104. As well as these express factual differences, the account of the incident as it was actually given by Mr King had a quite different colour to that of the allegation. 133The finding that Allegation J(xii) was proven ought not have been made and is not made out before the Commission. Any action the Department has taken in respect of that finding ought, in my view, be annulled, retracted or otherwise corrected. 134I refer above to the evidence given by Mrs Millington. A second problem arising from the evidence given by Ms Millington is that she unequivocally asserted (tpt 18 September p 260-261) that she had executed her affidavit without having the bundle of documents that are the annexures to it in her presence; they being given to her, she said, by the Respondent's solicitors some time later. 135It is evident from the text of Mrs Millington's affidavit that it was drafted by someone else, following an interview, and provided to her. That is not uncommon. But if what she says about executing the affidavit without the annexed material being present, and that material being given to her only later, is correct, that is a serious matter. I am not, however, able to have enough confidence in Mrs Millington's evidence overall to take that matter any further.

Whether misconduct is made out 136I now turn to addressing whether the matters which I have found made out in fact constitute misconduct. Those are Allegations A particulars (i) and (ii), Allegation B particulars (iii) and (iv); and Allegation D particulars (i), (ii) and (iv).

Whether conduct or performance issues 137Mr Greig argues in his submission that in fact, (without conceding that any factual findings ought be made against him) these are in any event performance, not conduct issues. 138In so doing he asserts that, should the Department have had concerns about his behaviour, the proper order in which these concerns should have been addressed is firstly as a performance issue and only secondly as a conduct issue. In so saying he drew attention to the Department's Guidelines for the Management of Conduct and Performance. 139I do not find in those Guidelines any proscription on a matter concerning a teacher's conduct being dealt with immediately, without recourse to remedial or performance issues, should that course be found appropriate. 140In sum, my view is that the Department was entitled to regard the concerns it had with Mr Greig as conduct matters. It is not as if Mr Greig was allowed to continue unremarked by the Department and then faced with a claim of misconduct going back some time. 141Rather, he was on a number of occasions put on notice that there were concerns about has approach to his duties. He was given directions by Mr King, as his principal, which on the evidence he did not abide by. He was told that he would be given informal support, and although that support does not appear on the evidence to have amounted to much, he was not at all unaware that his Principal, and other responsible persons such as Mr Lewis, were concerned at a number of aspects of his conduct which have crystallised in that matters ventilated here. 142There is no determinative line between performance issues and conduct issues, although there will be many issues which are obviously one or the other. Inadequate performance which shows no sign of change when specific directions are given in regard to what tis required may well be, and often is, a conduct issue. 143In this matter I am satisfied that the Department was entitled to address the whole of the allegations it brought against Mr Greig as a conduct issue.

Assessment of whether the factual findings constitute misconduct 144I am satisfied on the evidence that a Head Teacher has, and Mr Greig had, the obligation to provide leadership, administration, supervision and organisation of his faculty, and that this included developing and maintaining teaching and learning programs. I have set out above that I find that there was no adequate teaching and learning programme in place in the English faculty at Monaro under Mr Greig's tutelage. 145I find that this is misconduct within the meaning of the Teaching Service Act. I am bound to accept that it is a fundamental obligation of a Head Teacher to provide such a programme. It is not discretionary, and in my view a failure to provide it cannot be excused by differences in philosophy or approach. 146As I have said, on the evidence Mr Greig's obligation as Head Teacher to provide leadership, administration, supervision and organisation of his faculty included developing and maintaining teaching and learning programs; it further included in my view carrying out a proper TARS process. 147I have found that Mr Greig did not carry out a proper TARS process and that in my view constitutes misconduct within the meaning of the Teaching Service Act. I make that finding of misconduct because I am satisfied on the evidence that a proper TARS process, involving supervision, feedback, Mr Greig says that what he did was common practice and condoned by the Department. I simply do not see evidence that that was so. I accept that TARS properly carried out involved conferences between the teacher involved and the Head Teacher, observations and review of teaching materials, and observation of students' work and its evaluation. 148I am satisfied that this is a mandatory and important part of the development of a teacher and a mandatory and important part of a head Teacher's duties. To fail to carry them out was wrongful and was misconduct within the meaning of s.93C of the Teaching Service Act. 149The next matter which I have found proven was the particular (iii) of Allegation B, viz, that Mr Greig on a number of occasions provided no written feedback to students, and relatedly particular (iv) of Allegation B, that Mr Greig consistently failed to use marking rubrics. 150I observe that both the Board of Studies document 'HSC Assessments and Submitted Works - Advice to Students' and the Board of Studies document 'HSC Assessment in a standard referenced framework - a guide to best practice' hold that students are to be provided with 'feedback that assists them to review their work' and 'feedback in respect of their strengths and weaknesses and areas for improvement.' I accept that these requirements are part of the overall system of marking vital to the conduct of the senior school years. A failure to provide this feedback adequately might at the outset be a performance issue. Where it persists, as in my view it did here after appropriate directions were given to Mr Greig, it is able to be characterised as misconduct within the meaning of s.93C and, given the importance of the requirement, I find that id did constitute misconduct in this case. 151As to the failure to use rubrics, for similar reasons to particular I(iii), and having regard to the overall importance of a proper marking system to a school an dits students to which I refer above, that also in my view constituted misconduct. 152I have found Allegation D in the three particulars brought before the Commission made out. That was, without repeating the particulars, that in the years 2008 to 2011, Mr Greig failed to be punctual in attending his year 11 and year 12 classes, and on some occasions failed to appear to teach them at all. 153I have found that as a matter of fact this happened. I am asked to find that it was misconduct on the basis that Mr Greig was required to teach the relevant classes and thus attend those classes and attend on time, and that once he had been given a direction to be punctual, as on the evidence he was, a failure to do so was a breach of the (then-applicable) Teaching Service Regulation 2007 at regulations 5. 154I accept that the Regulations were binding and that any breach of a regulation might lead to a finding of misconduct within the meaning of s.93C(a) and indeed s.93C(b). A finding of misconduct, of course, in the context of this particular allegation appropriately requires an assessment of the frequency of this having occurred and whether there were any mitigating factors, and in that regard each case must turn on its own particular facts. 155I am satisfied that Mr Greig was on occasion late to class and that (at least once) he failed to appear at all. While such behaviour by a teacher is in no wise to be condoned, I am not satisfied that this has been proven to have occurred consistently enough and without exculpatory factors to be prepared to characterise it as misconduct in this particular case.

Misconduct - summary 156What is established in my view is that Mr Greig misconducted himself in two significant areas; the failure to provide adequate teaching and learning programmes for his faculty and the failure to provide adequate supervision of and support to teachers within his faculty by means of the TARS scheme. I have also found that he misconducted himself in two express failings in respect of marking, a matter not to be regarded lightly. 157For want of any doubt, I make it clear that so far as I have found Mr Greig to have committed misconduct, that is a finding of misconduct within the meaning of the Teaching Service Act.

Appropriateness of punishment 158It is to be remembered that Mr Greig was not dismissed or asked to resign. 159His failings in my view have been in the essential area of the responsibilities as a Head Teacher. I accept the submission of the Respondent that it has very high expectations of a person in the role of Head Teacher particularly in relation to leadership and setting an example for other staff. 160Accordingly, while I accept that the decision to demote Mr Greig is a matter of the utmost gravity to him, indeed that it is, particularly when the transfer that is consequential on the demotion is considered, a life-changing decision for him, a matter to which I have given serious consideration, I am unable to find that the decision to demote Mr Greig was harsh, excessive or inappropriate. In coming to that view I have had regard, as I have throughout this matter, to the provisions of s.5A of the Teaching Service Act.

The direction to transfer to another school 161As I have set out above, Mr Greig seeks to appeal not only against his demotion but against his transfer. 162The position is, however, that the decision to transfer Mr Greig is not a disciplinary decision and therefore falls without the Commission's jurisdiction in this disciplinary appeal. 163Mr Schipp gave evidence that the transfer was not discipline related but arose out of the fact that, once Mr Greig had been demoted, there was no vacancy at Monaro High School for a teacher. 164I accept that evidence. In any event, it is apparent that the transfer falls outside the matters about which an appeal can be brought to the Commission. The disciplinary options available to the Director-General or his delegate are set out in s.97B of the Teaching Service Act. They are: (a) dismissal from the Teaching Service, (b) directing the officer to resign, or to be allowed to resign, from the Teaching Service within a specified time, (c) except in the case of a senior executive officer-reduction of the officer's salary or demotion to a lower position in the Teaching Service, (d) the imposition of a fine, (e) a caution or reprimand. 165It is apparent that a transfer to another school is not a disciplinary matter and hence falls outside the definition of an 'appealable decision' in s.97(1) of the Teaching Service Act. 166All that being so, the Commission is not able to make any order concerning the fact of Mr Greig's transfer. It is ultimately a matter for the Department where it chooses to use a classroom teacher of Mr Greig's calibre. 167Mr Greig draws the Commission's attention to the decisions in Sud v NSW Department of Education and Training [2010] NSWIRComm 1024, Norris v NSW Department of Education and Training [2007] NSWGREAT 5, and Reisinger v Director-general, NSW Department of Education and Training [2010] NSWGREAT 14. 168None of these affect the position set out above. Sud was a s.84 case, where there was no relevant jurisdictional limitation but rather an application for reinstatement to the teacher's previous position; in neither Norris nor Reisinger did the Tribunal concerned overturn a disciplinary decision to transfer an officer of the Department. 169Mr Greig says that he is presently travelling 1,300 kilometres a week to carry out his duties, noting that the Department is aware that his wife is the relieving Principal at Cooma North school, so that Mr Greig could hardly be expected to move to Karabah. This appears on its face to be a significant imposition on a teacher but, for the reasons I give above, it is a matter outside the Commission's jurisdiction in these proceedings.

Procedural fairness 170Mr Greig raises issues of procedural fairness in the Department's processes. 171Essentially, of course, the fact that the matter is heard de novo by the Commission acts to cure any procedural unfairness which may be alleged, including all those that Mr Greig does allege, and indeed the Respondent's investigation as a whole: Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 593; R v Marks; ex parte ABCE & BLF (1981) 147 CLR 471 at 485. 172Mr Greig submits that his very detailed responses to the decisionmaker's initial findings were not given any response of their own, and indeed were accounted for in one line by Mr Schipp's statement that he reviewed that response and nevertheless concurs with Ms Thorpe. He characterises this as unsatisfactory. 173Mr Schipp gave evidence. He was rigorously cross-examined and indeed was asked questions by the Commission. So far as it is argued that there was a failure of procedural fairness in the final decisionmaking process - a finding that I do not make, I emphasise - it was able to be cured, and was cured, by the Commission hearing this matter armed with powers to determine the matter entirely otherwise to the initial decisionmaker if it saw fit. 174I agree to an extent with Mr Greig's submission so far as it advances that the Department's investigator asked inappropriately leading questions of a number of interviewees and allowed at least the Redmond interview to be rendered largely valueless by allowing a parent to intervene to the extent that he did. However, that is not material that the Commission has relied upon in determining the matter. I have relied on the material brought and tested in the Commission. 175In sum, there has not been in this case a departure from the bases of procedural fairness so as to take this matter outside the principles enunciated in Matkevich No 3 loc cit. Mr Greig has had any unfairness cured by the hearing before this Commission, in which his whole case was conducted de novo. 176For that reason, while I have read and considered Mr Greig's submissions on this aspect of the matter, it is not necessary to address the question of procedural fairness further in this decision.

Conclusion and orders 177I have found that the Department has made out at the appropriate level of proof some matters which establish that Mr Greig has committed misconduct within the meaning of the Teaching Service Act. I have found that the punishment imposed on Mr Greig, considered against those matters I have found to be established, is not harsh or inappropriate. 178Accordingly, the order appropriate to be made in this matter is that the appeal is dismissed. 179I so order.

Commissioner 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: 20 November 2013

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