Not all relevant factors considered
49Under this heading the appellant made submissions that I have summarised below. In respect of each of them I have sought to indicate why they do not concern a decision on a question of law or if they do, why no error exists.
50The appellant submitted that in assessing the appellant's performance the Commissioner did not refer to s 93G of the Teaching Services Act that refers to performance and review. There was no error of law because s 93G is concerned with performance reviews of officers. The respondent chose to treat the appellant's conduct that was the subject of the allegations as allegations of misconduct and, as it was entitled to under s 93F, dealt with the allegations as a disciplinary matter. Section 93G is not relevant where allegations of misconduct are made. The Commissioner was alert to the fact the appellant had contended the allegations were performance issues and not conduct issues. The Commissioner determined that the respondent was entitled to regard the allegations as going to matters of conduct. I am unable to find any error relating to a decision on a question of law.
51It was next submitted the Commissioner failed to take into account the "Satisfactory Performance Reviews" of the appellant from 2008 to 2011 prior to making findings of misconduct. The Commissioner was required to consider whether certain allegations of misconduct were made out and, if so, whether the decision to demote Mr Greig was appropriate. Presumably, the appellant was contending that his performance reviews were critical facts the Commissioner was required to have regard to, but did not, in order to determine the appeal.
52The Commissioner was alive to the question of whether he was dealing with conduct or performance issues. He specifically addressed that question at [137]-[143]. In identifying why he considered the appellant's behaviour constituted conduct and not performance the Commissioner said the appellant:
[W]as 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.
[142] There 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.
53What the appellant seemed to be submitting was that, as his performance reviews were rated satisfactory, there could not have been any misconduct found on his part. It does not seem to me one necessarily cancels out the other. There was no attempt on the appellant's part to show on the appeal that there were such inconsistencies between his performance reviews and the allegations of misconduct that the veracity of the allegations had to be seriously questioned. Nor did he attempt to demonstrate on the appeal that the performance reviews of Mr Greig were undertaken in the knowledge of the allegations, which in any event did not arise for investigation until 2011-12.
54Further, a satisfactory assessment under a Performance Review could not nullify a properly based finding of misconduct following a disciplinary process, for example, that Mr Greig failed to carry out the TARS process contrary to instructions from the Department and his Principal, Mr King. It was also a breach of the then r 5 of the Teaching Service Regulation 2007. TARS involved provision of feedback on teachers' performance ensuring that the teacher's performance is appraised by annual review.
55The fact that the Commissioner did not refer in specific terms to the appellant's performance reviews is not in the same class of matters considered in Elleray. In Elleray the Board failed to decide facts centrally relevant to the exercise of its jurisdiction.
56Mr Greig next submitted no reference was made to the evidence of Mr Brison or Mr Bell. In ignoring their evidence it was contended the Commissioner was raising questions of their authority and ability to manage the school effectively. Natural justice, he said, required the Commissioner to address their role. I presume this submission was made out of Mr Greig's concern for Mr Bell and Mr Brison. If that is so it is not relevant to the appeal.
57In any event, I have examined the evidence of Mr Bell, who was Principal of Monaro from 2010 and of Mr Brison who was Deputy Principal of Monaro from 2001. He served with Mr Peter King, the Principal preceding Mr Bell from 2008 to 2010, and then with Mr Bell.
58Even if the Commissioner failed to have regard to the evidence of Mr Brison and Mr Bell that evidence would not have had the effect of changing the outcome. The evidence of these two men was considerably outweighed by evidence of those more directly involved in those matters that led to the allegations. For example, in relation to the allegation that Mr Greig failed to carry out his responsibilities as Head Teacher, English in 'leadership, administration, supervision and organisation of the English faculty" the detailed evidence of Ms Preston, Ms Roberts, Ms Crawford, Ms Wall and Ms Steel - all teachers in the faculty - as well as that of Mr King, was overwhelmingly against the appellant. Mr Bell, himself, conceded that the learning programs were not of a satisfactory standard.
59In relation to the TARS allegation, Mr Brison's evidence was simply that the majority of faculties at Monaro used an informal process. On the other hand, Ms Steel, Ms Howell, Ms Preston, Ms Roberts and Ms Wall gave evidence they were not subject to a TARS process by Mr Greig despite Mr King expressing his concern to Mr Greig that the process was not being followed in the English faculty.
60It was clearly open to Newall C to make the findings he did on the evidence before him. There was no relevant error.
61Mr Greig's third submission under this heading was that the term "program" was not defined in the decision. He said the Commissioner referred to the testimony of Mr Schipp, but not Ms Carolan regarding the maintenance and development of programs. Mr Greig contended that Ms Carolan's expertise in this area was far greater than that of Mr Schipp. He submitted no reason was given for not referring to Ms Carolan's evidence.
62I have read the evidence and submissions, which indicates to me there could have been no confusion about the term "program". Mr Greig appears to have known perfectly well that an allegation against him was that he failed to develop and maintain teaching and learning programs for teachers in the English faculty. Those allegations were based on complaints by teachers in the English faculty. Mr Greig addressed those allegations in his evidence. Furthermore, Mr Schipp in his oral evidence gave a very clear explanation of a teaching and learning program that the Commissioner referred to in his decision at [243]-[244] (see [72]). No error exists.
63That the Commissioner preferred evidence of Mr Schipp over that of Ms Carolan is not a decision on a question of law. In relation to Mr Schipp's evidence the Commissioner stated at [70]-[73] of his decision:
[70] In 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.
[71] Mr 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.
[72] Without 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.
[73] I 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.
64I have read the evidence of Mr Schipp and Ms Carolan. Whilst Ms Carolan may be an excellent Head Teacher with considerable expertise in teaching and learning programs, as the Commissioner observed Mr Schipp was a senior departmental officer with previous senior teaching experience. As the person responsible for determining, in the context of misconduct allegations, whether adequate teaching and learning programs were in place at Monaro he was in possession of strong evidence from teachers in the English faculty and a former Principal of Monaro that such programs were not in place. What is more, despite her sympathetic view of Mr Greig's efforts regarding the development and maintenance of programs it seems to me that Ms Carolan's evidence did not provide a satisfactory basis upon which the Commissioner could conclude that Mr Greig's development and maintenance of teaching and learning programs were adequate. At no point in her evidence or in her interview with departmental investigators did Ms Carolan state that Mr Greig had in place proper teaching and learning programs. No error exists.
65Next, Mr Greig submitted the question of double jeopardy was not addressed in the decision. That is, matters dealt with previously by the respondent and resolved were resurrected and used again to support findings of misconduct against the appellant. The appellant seems to be using the term "double jeopardy" in the sense that a person cannot be penalised again for the same offence. It is not clear to me whether the appellant's complaint was that the respondent, in separate investigations, dealt twice with the same allegations or that as the respondent found him guilty of certain counts of misconduct he was placed in double jeopardy by the Commissioner's consideration of the same allegations and again found guilty.
66As to the first circumstance, I agree with the respondent: it appears not to have been argued at first instance in final submissions by the appellant and should not now be considered on appeal. Further, the submission was so broad as to be meaningless.
67As to the second circumstance, the legal concept of double jeopardy has no application here. Even though it may be the case that the respondent found the appellant guilty of certain counts of misconduct and the Commission found the same thing, the respondent was not a court or tribunal. The Commissioner's findings were the outcome of an appeal by the appellant against the findings of his employer. The purpose of an appeal under s 98 of the IR Act is to enable the appellant to challenge an appealable decision made by the employer. The appellant was not "tried twice for the same offence." In any event, there was no decision on a question of law. No error exists.
68The appellant's next submission was that the Commission did not address the word "develop" regarding programs. He submitted this made it hard to see if the evidence had been tested against all parts of the allegations. I do not quite understand this submission but it does not involve a decision on a question of law. What is more, the evidence was incontrovertible: Mr Greig failed to properly develop teaching and learning programs at Monaro. No error exists.
69The Commissioner, Mr Greig submitted, did not refer to Higher School Certificate and School Certificate results that were submitted to the respondent's investigation in 2012. He said the results would have indicated there were adequate teaching and learning programs within the English and Drama faculty at Monaro.
70There was no elaboration of this submission or any attempt made to show the Court on appeal how the connection was to be made between the exam results and the proposition that the appellant did not fail to consistently develop and/or maintain teaching and learning programs. The bare fact that the exam results may have placed Monaro in a favourable light (if that was so) does not prove the proposition, especially in light of the strong evidence supporting the allegation.
71If the appellant was under an obligation (which he was) to develop and maintain teaching and learning programs to a certain standard required by the respondent for his faculty and failed to do so, good results from the Higher School Certificate and School Certificate do not change that fact. No error exists.
72The appellant submitted the Commission did not address the assessment that is required under s 93G of the Teaching Service Act of the appellant's performance. According to the appellant that performance had been rated as satisfactory for every year prior to 2009 and in years 2010-2012 (no assessment was made in 2009). By failing to take into account these assessments, it was submitted the Commissioner failed to give credit to what is the major annual form of review used by the respondent.
73I have already dealt with this submission to some extent. It does not seem to me to involve a decision on a question of law. Moreover, no evidence was brought to my attention that the specific allegations of misconduct against Mr Greig constituted matters that were the subject of his performance reviews in the relevant years. Unless it is clear from the evidence that the allegations against the appellant were matters that had regard to his performance reviews, it cannot be simply assumed that was the case.
74The fact that neither Mr Bell nor Mr Brison made allegations of misconduct and that Mr Bell signed off performance reviews as satisfactory, does not mean the allegations had no substance. The submission that their evidence should be treated as the "best evidence" of the appellant's conduct is tantamount to submitting the direct evidence of teachers and students going to the precise nature of the misconduct, was of no consequence.
75It was not the responsibility of either Mr Bell or Mr Brison to investigate the allegations made against Mr Greig or to determine whether they had been made out. That was the responsibility of Mr Schipp in accordance with the Department's policies and procedures and the Teaching Service Act. Mr Schipp was required to have the misconduct allegations fully investigated and to make a decision on the evidence before him whether the allegations had been made out.
76Furthermore, as the respondent submitted, the hearing before the Commissioner was a hearing 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 decision maker (see Caiman v Commissioner of Police (1999) 167 ALR 91 and von Senff v State Transit Authority [2013] NSWIRComm 1013 at [29]). The Commissioner, after hearing the evidence and submissions, found the appellant had engaged in misconduct.
77Finally, on this point, it is apparent the Commissioner had regard to the evidence that favoured Mr Greig. Newall C observed that:
Mr Greig is a teacher of singular ability and has a real passion for the subjects that he teaches.
[T]here 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.
[T]here was uncontested evidence that Mr Greig had mentored and assisted beginning teachers to their significant benefit.
78Nevertheless, as the Commissioner remarked at [50]-[51]:
[50] The 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.
[51] In the end it is in these matters that Mr Greig has exposed himself to censure from the Department.
79It was next submitted that the Commissioner referred to evidence contained in nine affidavits sworn or affirmed by witnesses for the respondent in circumstances where the witnesses were not subject to cross-examination. I presume that the appellant is contending that because he was unable to test the evidence of these witnesses he was not accorded procedural fairness and that the decision of the Commissioner to not allow cross-examination was a decision on a question of law in respect of which the Commissioner erred: see Byrne.
80As I read the record of proceedings before Newall C, the Commissioner was concerned at the length of time the parties were proposing to take: some 10 to 15 days in respect of an application related to the demotion and transfer of a public sector employee and filed in 2012. The Commissioner was not prepared to countenance such a proposal and limited the proceedings to four days, with two days allocated to each party to deal the evidence. That is, each party had two days in which to bring their evidence in chief and cross-examine. As Newall C stated at [13]:
The parties were advised that each had in effect two days in their own case and were told that they should turn their minds to whom they really needed to call to give evidence in their own case and whom they really needed to cross examine in their opponent's case, and to give advice of that each to the other.
81It is to be noted the respondent strongly opposed the truncation of proceedings. However, the appellant supported it.
82Having assumed the onus of proving the misconduct the respondent proceeded to call four of its witnesses: Mr King, Mr Schipp, Mr Salvestro (a pupil at Monaro in 2009 and 2010) and Ms Millington (a teacher at Monaro responsible for student welfare). Examination in chief was short, reliance being placed on the witness' affidavits. Knowing he was limited to two days, the appellant used all of that time to cross-examine the respondent's first four witnesses. The appellant was aware that there were seven other persons the respondent had indicated would be called if time permitted, namely, Ms Roberts (English and Drama teacher at Monaro), Ms Preston (English/Dance/Drama teacher at Monaro), Ms Steel (English teacher at Monaro), Ms McNab (Head Teacher of Creative Arts at Monaro), Mr Tame (Head Teacher of Science at Monaro), Ms Wall (English and History teacher at Monaro) and Ms Howell (English teacher at Monaro).
83At the conclusion of the evidence of Mr King, Mr Schipp, Mr Salvestro and Ms Millington at the end of the second day of proceedings, the respondent sought to tender into evidence the affidavits of Ms Roberts, Ms Preston, Ms Steel, Ms McNab, Mr Tame, Ms Wall and Ms Howell. The appellant took no objection - despite being advised they would be used in evidence - and the affidavits were admitted. Despite Mr Greig being a self-represented litigant, he would have understood the implications of allowing the affidavits into evidence. It is to be noted the appellant was in possession of each of the affidavits of the aforementioned teachers before the hearing commenced and had the opportunity, in reply affidavits that he filed, to respond to what they had deposed.
84There is no doubt that the Commissioner did have regard to the affidavit evidence of those teachers that were not subjected to cross-examination by the appellant. However, it seems to me that evidence was in the main sought to be admitted as supportive of the evidence of Mr King who, along with Mr Schipp, were the main witnesses for the respondent.
85In the circumstances, it is too late now for Mr Greig to take the point that he was not given the opportunity to cross-examine some of the respondent's witnesses. He was fully apprised by Newall C as to what was expected of him, he clearly understood those directions and when he found he had used all of his allocated time cross-examining four of the respondent's witnesses, he took no objection to a further seven affidavits for the respondent being admitted into evidence, despite knowing they would not be subject to cross-examination by him. There was no procedural unfairness. No error exists.
86It was next submitted the Commissioner cited evidence outside the timeframe of the allegations made against the appellant. This was a reference to [79] of the Commissioner's decision where it was stated:
[79] Ms 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.
87The appellant's submission is incorrect. Ms Steel was merely comparing her experience in 2010-11 with that in 2012 when she did undertake the TARS process.
88The appellant submitted his evidence regarding the TARS process was not addressed. He referred to (but did not identify) the evidence of Mr Brison and the appellant's own evidence in this respect. No reason was given for ignoring this evidence, it was submitted: Mr Brison gave evidence regarding the appellant's leadership, but his evidence does not appear to have been considered.
89Again, it appears (but was not stated) that the appellant was contending the Commissioner erred in relation to a decision on a question of law because he decided the TARS allegation had been made out without having regard to the appellant's evidence.
90The Commissioner did refer to the appellant's evidence. When one considers that evidence and the evidence supporting the allegation, the latter heavily outweighs the former. The appellant claimed he undertook an informal TARS process. However, it seems it was so informal that none of the teachers who gave evidence understood they were subjected to the process.
91The next submission was in respect of the allegation that "on a number of occasions" the appellant failed to provide written feedback to students. The appellant submitted this was contrary to the evidence. The appellant submitted only two students supported the allegation so it had not been proved there was a failure "on a number of occasions". This is not a decision on a question of law.
92The appellant next submitted that in respect of the allegation "Failing to consistently use marking rubrics in accordance with Board of Studies (BoS) guidelines" the evidence of former students was ignored without explanation. The Commissioner, it was contended, relied only on the evidence of one student in 2009 to make good the allegation. It was also submitted the Commissioner provided no reason for ignoring the evidence of students aside from Mr Salvestro. Seven students gave evidence in the appellant's favour. Evidence of Mr Brison in the appellant's favour was also ignored, it was submitted.
93That the Commissioner preferred the evidence of some witnesses to that of others, or did not find it necessary to explain why some evidence was not addressed in the decision, is not a decision on a question of law. As to the question of adequate reasons regarding the failure to use marking rubrics, the Commissioner found:
[102] The 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.
[103] Relevantly, 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.
[104] In my view the particular as a matter of fact is made out. Again, I return to its proper characterisation below.
94Clearly, the Commissioner gave reasons based on the evidence, particularly the evidence of Mr King. There was no error in relation to a decision on a question of law.
95It was next submitted the Commissioner failed to note that in the investigation into the appellant's conduct, the appellant's direct supervisors - Mr Brison and Mr Bell - were not interviewed by the investigator prior to making findings of misconduct. This does not amount to a decision on a question of law. I note, firstly, the investigator did not make findings of misconduct. More to the point, however, the hearing before Newall C was a hearing de novo. The Commissioner was required to determine the matter on the evidence before him, not evidence gathered or not gathered by the investigator.
96The appellant next submitted the original decision to demote and transfer the appellant was based on 16 counts of misconduct. The Commission reduced this to four. The appellant submitted it was a question of law as to just how the number of findings of misconduct could be reduced by 75% yet the punishment remained identical.
97The decision the Commissioner was required to make regarding penalty was whether the penalty imposed was appropriate in all the circumstances. That decision involved questions of mixed fact and law. The Commissioner found at [156], [159] and [160]:
[156] What 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.
...
[159] His 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.
[160] Accordingly, 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.
98It is not so much the quantity of the substantiated allegations, but rather their quality that was relevant in determining penalty. The Commissioner found the appellant failed in essential areas of his responsibilities as a Head Teacher. It does not seem to me there was any error, particularly having regard to the disciplinary options under s 93B of the Teaching Service Act, in the imposition of a penalty involving demotion to the position of teacher for a period of two years. The appellant, plainly, was not adequately fulfilling the obligations of a Head Teacher as required by the respondent. No error exists.
99The appellant next submitted that despite the respondent contending the transfer of the appellant was not discipline related and was because there was no position at Monaro for a classroom teacher, there was no evidence that the situation at Monaro had been investigated to see whether such a position was, in fact, available. This is not a decision on a question of law. The Commissioner accepted evidence that the transfer was not discipline related. It was open to the Commissioner to accept that evidence. He found that in those circumstances, correctly in my opinion, he had no power to make any order regarding the transfer.