Hall v. Department of Technical and Further Education [2010] NSWIRComm 1049

Industrial Relations Act 1996 LEGISLATION CITED: Teaching Service Act 1980 Technical and Further Education Commission Act 1990

Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Boston Deep Sea Fishing and Ice Company v. Ansell (1888) 39 Ch D 339 Briginshaw v. Briginshaw (1938) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 CCH Australia Limited v. Bowen (1998) 79 IR 206 Chamberlain v. Queen (No.2) (1984) 153 CLR 521 Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 Del Casale v. Artedomus (Australia) Pty Limited (2007) 165 IR 148 CASES CITED: English and Australian Copper Company v. Johnson (1911) 13 CLR 490 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 North v. Television Corporation Limited (1976) 11 ALR 599 Oswald v. New South Wales Police Service (1999) 90 IR 42 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 R v. Anderson; ex parte Ipec-Air Pty Limited (1965) 113 CLR 1127 Sharma v. Legal Aid (Queensland) (2002) 115 IR 91 Shepherd v. Felt and Textiles of Australia Limited (1931) 45 CLR 359 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454

HEARING DATES: 17/05/2010, 18/05/2010, 02/06/2010, 16/08/2010, 09/09/2010

APPLICANT Neale Dawson Federation Law LEGAL REPRESENTATIVES:

RESPONDENT Peteris Ginters

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Pamela Hall and the Department of Technical and Further Education

Application by the New South Wales Teachers Federation under S.84 of the Industrial Relations Act, 1996

1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, the New South Wales Teachers Federation has lodged an application on behalf of its member, Ms Pamela Hall, who was employed as a head teacher at the Wollongong West Technical College of the Department of Technical and Further Education (the Illawarra Institute of the TAFE). Ms Hall's services were terminated for alleged misconduct after 25 years of part-time (from 1982 to 1986) and later full-time employment (from 1986 to the time of her dismissal). For the last ten years Ms Hall had been a head teacher and it is from that position she has been dismissed. In its Part 6 application the Teachers Federation has sought Ms Hall's reinstatement, re-employment or, alternatively, monetary compensation in lieu thereof.

2 The allegations against Ms Hall centre around her efforts on behalf of her sister (Ms Susan Hardy) who was also employed as a part-time teacher at the college, to provide her with certain technical college qualifications, viz:

• in 2002, after the roll books and mark sheets had been signed off by the teacher responsible for the workplace training and assessment course, placing Ms Hardy's name on the roll books and mark sheets for that course (when she had not completed the course);

• arranging for Ms Hardy to gain qualification - a certificate in workplace training and assessment - for which she was not eligible;

• in 2005 placing Ms Hardy's name again on the roll books and mark sheets for the classes in a course for a certificate in business studies which Ms Hardy did not actually undertake; and

• undertaking assessments for Ms Hardy for modules in the course for a certificate in business studies to enable her to gain that qualification.

3 Two other allegations - that in the first semester for 2005 Ms Hall established a class for the delivery of a particular module (implementing customer services strategies) knowing that Ms Hardy was the only student and authorising forms for the delivery of that module - have not been substantiated to the satisfaction of the TAFE and are not now been pressed by it in this hearing.

4 The roll books have some significance in establishing the qualifications of students. Their purpose is to maintain class and student records to provide progressive information, appraisals, reports and final class assessment for individual students. They represent a record of an individual student's progress. Every module in a course is to be associated with a particular official role book but it appears that is not always the case. However, for some courses, including the workplace training and assessment course and the business studies course at the centre of the allegations made against Ms Hall, whilst students must be placed on the relevant roles, existing qualifications may count as credits for particular modules.

5 Ms Hall was involved in both the 2002 and 2005 allegations in model mapping on behalf of Ms Hardy, ie comparing past qualifications with current technical college courses to determine whether they equate sufficiently to be taken as credits in the new courses. The issue in dispute centres in part on whether such activity by Ms Hall with respect to her sister constituted a real or perceived conflict of interest. Ms Hardy on Wednesday, 3 September, 2008 received a letter from the TAFE accusing her of academic fraud and she has ceased her teaching duties. She has been informed that her position will be reviewed in the light of the outcome of this Part 6 application.

6 S.93B(1) of the 1980 Teaching Service Act, sets out a comprehensive code for disciplining teachers, viz:

disciplinary action, in relation to an officer, means any one or more of the following:

(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;

7 In a letter from the TAFE dated Tuesday, 20 October, 2009 Ms Hall was directed to resign. She declined to do so and the Teacher's Federation lodged the Part 6 application on her behalf. Her dismissal followed with a letter from the TAFE dated Monday, 7 December, 2009, viz:

"....I refer to my letter dated Tuesday, 20 October, 2009 where I directed you to resign. I am aware that you did not do so but commenced proceedings in the Industrial Relations Commission.

I have now decided, as defined under S.22D(1) of the Technical and Further Education Commission Act, 1990 to dismiss you with effect from Wednesday, 9 December, 2009. A decision about whether or not to place your name on the list of persons not to be employed by the Department of Education and Training or New South Wales TAFE will be deferred pending the outcome of the proceedings in the Industrial Relations Commission..."

8 The Part 6 application which the Teachers' Federation lodged on behalf of Ms Hall was allocated to me as part of my regional commitments for the Illawarra region but, at the request of the Teachers' Federation the matter was the subject of a preliminary hearing before me on Friday, 4 December, 2009 and a mention on Tuesday, 22 December, 2009 in Sydney. Nevertheless, when conciliation failed to settle the matter, I set it down for a hearing in the Commission's premises at 90 Crown Street, Wollongong on Monday, 17 May, 2010, Tuesday, 18 May, 2010, Wednesday, 2 June, 2010 and Monday, 16 August, 2010. The hearing continued in Sydney for final submissions on Thursday, 9 September, 2010. In the hearing Mr Dawson represented Ms Hall and the Teachers Federation and Mr Ginters represented the TAFE. Annexed to this decision is a list of the witnesses called to give evidence in the hearing.

9 The assessment and workplace training course [8388] comprised eight separate modules, viz:

Module 8388A Plan and Promote a Training Program Module 8888B Plan a Series of Training Sessions Module 8838C Deliver Training Sessions Module 8388D Review Training Module 8389A Train Small Groups Module 8390A Plan Assessment Module 8390B Conduct Assessment Module 8390C Review Assessment

10 Students attending the course were either full-time or part-time technical teachers who sought additional qualifications to continue teaching. As I indicated earlier in this decision, many teachers who enrolled in the course were entitled to receive recognition for previous courses that they had undertaken and to be regarded as a "flexible student" to that extent. It was customary for such flexible students to submit a curriculum vitae or a portfolio, including an outline of the qualifications already obtained to demonstrate that they had met the outcomes for the course. This "recognition of prior learning" or "advanced standing", as it has been described in the hearing, ensures that the student may bypass certain modules which they would otherwise be required to meet as part of the course.

11 Ms Hardy had been a teacher for 15 years. She was seeking to upgrade her qualifications for a certificate in the assessment and workplace training course [Certificate IV] and she presented her portfolio material and the results from earlier courses she had obtained to Ms Hall. In particular, her pass in 2002 of a course - Vet Initial Teaching and Learning or VITAL [8392] - which, as I understand the position, roughly equated with the current workplace training and assessment course. The implications from a pass of VITAL is at the centre of the allegation against Ms Hall and Ms Hardy in 2002.

12 Mr Dawson called Ms Hardy and Ms Hall to give evidence in the hearing. It was Ms Hall's assessment that, having regard to Ms Hardy's pass in the VITAL course, she had completed all requirements for the Certificate IV in workplace training and assessment course. However, to ensure that there could be no conflict of interests, she claimed that she took Ms Hardy and the material to Mr John McDonald, who is the head teacher at the Shellharbour campus of the Illawarra Institute. Mr McDonald is the teacher for the workplace training and assessment course and Ms Sharon McLeod at that time also taught some modules in the course and assessed some material for it in one particular module [Module 8389A]. Ms Hall claims that she had discussions with Mr McDonald and Ms McLeod and it was on the basis of those discussions that she was prepared to reach the conclusion that Ms Hardy had sufficient prior qualifications to bypass all of the modules in the course.

13 That is the perception of neither Mr McDonald nor Ms McLeod, however. Mr Ginters called them as witnesses in the hearing. Neither of them recall ever assessing any of the work for Ms Hardy as part of the modules for the course. Indeed, Mr McDonald claimed that he was not even aware that Ms Hardy was actually enrolled in the assessment and workplace training course at all and he asserted that at no time did Ms Hardy provide him with any portfolio for the course.

14 In her evidence Ms Hall also claimed that she had obtained the impression from a conversation she had with Ms Hardy that Ms McLeod would be undertaking her assessment in Module 8389A and she further asserted that Ms McLeod had mentioned to her that she had completed the assessment in a classroom setting for Ms Hardy - a claim which Ms McLeod also disputes. In a written statement which Ms Hardy provided to form the basis of her evidence in this hearing, she recorded:

"...I recall having a further conversation with Mr McDonald about what I needed to do in relation to obtaining the Certificate IV in workplace training and assessment and I do not recall how I became aware but I do remember that it was somehow decided that Ms McLeod would assess me for module 8389A.

The assessment task for module 8389A was to prepare a lesson plan and then present a lesson against that lesson plan. Ms McLeod and I do recall that following that first arrangement something came up and Ms McLeod was unable to attend my lesson. We arranged a further lesson to be observed but again on that day I remember I was unable to attend.

Ultimately, I do recall having a brief conversation with Ms McLeod shortly thereafter and asking her if she was available to watch my lesson. I showed her the lesson plan I had prepared for the lesson I was about to commence about 10 minutes before that class. It was a computer class in one of the computer rooms and I have some recollection that I might have been teaching spreadsheets. Ms McLeod came in and observed my class for approximately 15 to 20 minutes and seemed happy with what had been achieved..."

Ms McLeod cannot recall what Ms Hardy has asserted in her written statement but does not deny that what Ms Hardy claimed did occur.

15 Nevertheless, it is with that background that Ms Hall chose to mark Ms Hall as having satisfied Modules 8388D, 8389A, 8390C, 8390A, 8390B, 8388A, allegedly after the roll had been marked off by Mr McDonald scribbling a line across the remained of the page. It was at that point that Ms Hall recorded Ms Hardy as having passed those modules in the mark sheets, notwithstanding the fact that she was not the teacher actually in charge of the course.

16 Ms Hall claimed that she was simply engaged in a model mapping exercise which was no more than providing a comparison between Ms Hardy's existing qualifications with VITAL and the requirements of the current workplace training and assessment course and also relying on the informal conversations she had with Mr McDonald and Ms McLeod. Ms Hall recorded in a written statement which formed the basis of her evidence that:

"...in the second semester 2002, Ms Hardy completed all requirements for the award of the Certificate IV in assessment and workplace training. She did this by presenting her results from the VITAL Course 8392 and by completing the remaining required assessment for the remaining module."

17 Mr McDonald conceded that Ms Hardy's existing teaching qualification would have been likely to have satisfied Modules 8390A, 8390B and 8390C but he disputed that module mapping exercise was the purely administrative step that Ms Hall has been suggesting in her evidence and that, in fact, Ms Hardy had still not met all the qualifications for the workplace training and assessment course. Whilst he conceded that module mapping for some courses was routine for qualified teachers, other courses were more complex. He argued in a written statement that:

"...a module map exercise involves a teacher making an assessment as to the degree of overlap between modules taught in different courses. If one is to undertake this exercise one needs a good understanding of the constituent elements of the modules being mapped. The purpose of a module mapping exercise is to allow an assessment to be made as to whether in a previous course of study a student has achieved competencies that can be recognised and for which they can be given credit for the purpose of latter studies..."

"....In 2002 at Wollongong West Campus 'module mapping' was usually done by a team of teachers. It was usually undertaken as a group and was a collaborative effort. One teacher would do some mapping and their assessment was usually reviewed by another teacher in order to give a second opinion on that assessment.

All teachers who would 'module map' had a training and assessment qualification as well as having qualifications in the discipline that they were mapping. The 'module mapping' exercises need to be done by someone with considerable experience in the discipline area as there can be a high degree of professional judgment involved.

In order to 'module map' the person undertaking the exercise would need to be an experienced teacher and have a good understanding of the module's syllabus, the content of the module, as well as the learning outcomes. It is necessary to have this broad understanding in order to make an assessment as to whether the modules are, overall, appropriate matches. The exercise of 'module mapping' is not only done by matching learning outcomes. Underneath those learning outcomes is the content of the course which gives the learning outcomes their meaning. This is why it is necessary to have an understanding of the content to 'module map'..."

18 And Mr Phillip Haughey, another head teacher, called as a witness in the hearing by Mr Ginters, took a similar view in a supplementary written statement he provided, viz:

"...A 'module mapping' exercise often involves comparing the learning outcomes from a completed module to the learning outcomes for the course for which a qualification is being sought. The content of courses and modules change over time to reflect changes in business, industry, technology and the law. So while the learning outcomes may be expressed in similar terms they are always informed by the course content. For this reason it is necessary to have a sufficient understanding of the content of both modules in order to 'module map' correctly.

As the course content of each module informs an understanding of the learning outcomes an adequate appraisal of the comparability between the two modules is made, having regard to the 'module mappers' overall understanding of both courses in terms of content, assessment, elements and learning outcomes. Professional judgment is an inherent part of the 'module mapping' process because the teacher undertaking the assessment must understand that content of the modules can change over time. Even though the learning outcomes may be expressed in a similar way, their meaning may have changed according module content and focus. For example, if a learning outcome was that...'the student must demonstrate an understanding of the legal framework which applies to the workplace...', this outcome could have a very different meaning in...a 1999 context than it would in 2005, even though the outcome is expressed the same.

Over the last 25 years as a TAFE teacher and head teacher I have spent much time updating courses and modules. As part of this process I have had to update syllabus documents on many occasions. In my experience seldom are the learning outcomes or the course content identical to the previous module. This is because the module has needed to be updated in order to reflect a change in business environment or field of study. Aside from the differences in course content, there will also be varying degrees to which the learning outcomes in each module match to one another. Where there is a discrepancy it is necessary for the teacher to exercise their judgment as to whether there is a sufficient comparability to grant recognition of prior learning..."

In his evidence Mr Haughey conceded that some of the modules were simply a match from previous modules but he continued to express the view that an experienced teacher would still have been required for a proper assessment to be made for most modules.

19 The certificate - Certificate IV - in business studies [9766] was offered to the college in 2005. It covered two semesters in one year and, according to Ms Hall, students could enrol in it at any time during that year. She did not need to attend class and she did not do so but she was required to seek assessment of all modules in the course. Ms Hardy did not elect to complete the course from the outset but in the second semester she provided her qualifications for assessment and sought to be added to the roll.

Module 8979X Writing Skills for Work Module 9591A Interpersonal Communications I Module 9743D Communicate Electronically Module 9765A Identifying Business Skills Module 9765B Maintain Workplace Safety Module 9765D Organise Personal Work Priorities Module 9765JA Maintain Financial Records Module 9765L Maintain a Service to Customers Module 9765M Support Innovation and Change Module 9765P Produce Business Documents Module 9766A Building Business Relationships Module 9766B Analyse and Present Research Information Module 9766C Implement Customer Service Strategies Module 9766D Develop Work Priorities Module 9766H Report on Financial Activity Module 9766K Monitor a Safe Workplace Module 9768E Create and Use Databases Module 9768F Create Electronic Presentations Module 977D Develop and Use Complex Spreadsheets Module 9775A Marketing Principles Module 9775B Target Marketing Module 9786B Contribute to Effective Workplace Relations

21 Ms Hall claimed that only six of those modules actually required an assessment to be made - Modules 9765L, 9766C, 9765M, 9766D, 9775A and 9775B - and the remaining modules were no more than an exercise in module mapping, which she regarded as a purely administrative step open to her with respect to Ms Hardy without any real conflict of interests. Ms Hardy also regarded two other modules - 9765A and 9765D - as requiring assessment, however. So there must be some dispute as to whether certain modules were resolved by no more than module mapping.

22 Because Ms Hardy was well known to the teachers at the college, Ms Hall claimed that she arranged for "blind assessments", ie assessments were carried out without the assessor being aware of the actual student involved. Ms Hall claimed that Ms Angela Tasevski, a teacher at the college, did a "blind assessment" of Modules 9766C, 9765L and 9766D with respect to Ms Hardy and Ms McLeod did a "blind assessment" of Module 9765M for Ms Hardy. Ms Hall believes therefore that it is hardly surprising that they would not recall the assessments they made and they do not.

23 It was, in fact, Ms Robyn Ford who was called to give evidence in the hearing by Mr Ginters, actually taught Module 9765M at that time. She also taught Module 9766K. Ms Hall did not approach her for any "blind assessment" for Ms Hardy, however. Ms Ford is certain that Ms Hardy did not attend her classes for Module 9765M and Module 9766K and she claimed that she would have remembered if she had been a student. Ms Ford is also certain that she did not receive or assess any work for Ms Hardy in those two modules.

24 Ms Tasevski, who was called as a witness in the hearing by Mr Ginters, indicated in a written statement which formed the basis of her evidence that:

"....I have no recollection of marking work for Ms Hardy during 2005. I do not recall if I had much, or any, contact with Ms Hardy in 2005 and I do not recall if I had met her during Semester 1 of 2005. I have no recollection of Ms Hardy ever personally giving me any assessments to mark. I would have remembered if Ms Hardy had given me work to mark as it would have been unusual for another teacher, who was not a head teacher, to give me assessments for marking.

In the past I have marked assessments provided to me by Ms Hall and I have assessed some work for Ms Hall which had no names on the assessment: this is referred to as 'blind marking'. I do not recall if I marked any 'blind assessments' in Semester 1 of 2005. If I marked an assessment for my student and it was not for my class I would have entered the results into my roll book. If an assessment was not for one of the modules I was teaching I would give it back to the head teacher responsible with the mark, or some other written documentation, for the responsible teacher to enter the mark into the relevant roll book..." And with respect to Module 9765A, Ms McLeod recorded in her written statement:

"...I have no recollection of assessing and grading assessments for Module 9765M... If I had assessed and graded assessments in Module 9765M it would have been my practice to enter the marks in the relevant records as I was the teacher responsible for them..."

25 Mr Bob Visser, another teacher at the college, was approached by Ms Hall to make an assessment of Ms Hardy for Modules 9775A and 9775B. Mr Visser was called to give evidence in the hearing by Mr Ginters. He recalled Ms Hall speaking to him about an assessment of Ms Hardy's work for Modules 9775A and 9775B, saying:

"I will attend to all the appropriate paper work and can you mark her work?"

26 Mr Visser did not teach those modules at the time in Course 9766, although he did so in another course. Ms Hall did not arrange a "blind assessment" for those modules with Mr Visser. Those modules in Course 9766 were taught by Mr Ken Brunker but, according to Ms Hall, because he was only recently involved in the course Ms Hall did not regard him as a particularly reliable assessor for flexible students at that time for Modules 9775A and 9775B. Mr Visser documented Ms Hardy's marks for both modules on a sheet of paper and gave that sheet back to Ms Hall.

27 Ms Hall then graded the results for Ms Hardy accordingly. She satisfied herself that Ms Hardy had completed all the required module assessments and she assessed her as a pass (ungraded), credit or a distinction and that she was entitled to be recorded in the roll books and mark sheets for the business studies course. She was awarded a certificate for the completion of the course. There is some minor discrepancies in Ms Hardy's grading marks which were drawn to her attention in the hearing by Mr Ginters but essentially it does not alter her ultimate pass or distinctions in the various modules.

28 My task in this hearing is to determine whether or not the dismissal of Ms Hall was justified or whether it was, in all the circumstances, unfair - whether she received a "fair go", to use the phrase approved by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers Union (1971) AR 95 at p.99, or whether or not her dismissal was "harsh", "unreasonable" or "unjust", using the actual language of S.84(1). The issues before me turn essentially on whether or not Ms Hall acted in good faith in providing Ms Hardy with the qualifications she sought or whether her conduct constituted such a serious breach of trust for TAFE as to warrant her dismissal. 29 Mr Dawson submitted that the investigation which led to Ms Hall's dismissal was particularly poorly handled. He argued that the allegations against Ms Hall raised complex issues and required proper detailed analysis and assessment. He suggested that the Department had acted on the basis that there was something sinister in Ms Hall's conduct when that was not the case. He conceded that Ms Hall's conduct may have been unwise but that was as far as the matter went and it was certainly no grounds for her dismissal.

30 Any contract of employment generally includes an implied term imposing a duty to act in good faith on the part of the employee [Del Casale v. Artedomus (Australia) Pty Limited (2007) 165 IR 148 at p.158]. The Full Bench (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia commented in Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at p.191 that:

"...trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause... The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 at pp.81 and 82 and North v. Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based ..."

My emphasis. 31 That alleged loss of trust must have a proper basis and not be capricious or arbitrary on the part of the employer. It must be reasonable and fair, in all the circumstances, or else any employer who unfairly dismisses any employee would, as a matter of course, automatically deny that employee his primary right of reinstatement in employment. The discretions available to be exercised in that respect by an employer should, using the words of Kitto J of the High Court in R v. Anderson; ex parte Ipec-Air Pty Limited (1965) 113 CLR 117 at p.189: "....be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself..."

32 The Full Bench of the Commission (Walton J - Vice President, Hungerford J and Bishop C) in Burge v. BHP Steel Pty Limited (2001) 105 IR 325 commented (at pp.345 and 346) that:

"…in considering the practicability of reinstatement, we are very much mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v. Grace Worldwide (Australia) Pty Limited (at pp.191 and 192) where their Honours observed that '…each case must be decided on its merits…' but that '…in most cases, the employment relationship is capable of withstanding some friction and doubts…'. As their Honours observed further, '…what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive…' and '…if the employer is of even average fair-mindedness, (the problems) are likely to be short-lived…'. Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218 and Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67 and 68. We affirm the approach as appropriate in the present case…"

33 In Blyth Chemicals Limited v. Bushnell the High Court (Starke, Dixon, Evatt and McTiernan JJ) considered an appeal by the manager of a business who had been dismissed from his position over an alleged conflict of interests. The manager had become associated with a venture with another business of which he subsequently became a director. Whilst that other business did not produced a product which competed with the business of which he was manager, it had the potential to do so. There is the following familiar and authoritative comments concerning a perceived conflict of interests in that case by Dixon and McTiernan (at pp.81 and 82):

"...Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground for dismissal [ Boston Deep Sea Fishing and Ice Company v. Ansell (1888) 39 Ch D 339 at pp.357-8 and 362-4; English and Australian Copper Company v. Johnson (1911) 13 CLR 490; Shepherd v. Felt and Textiles of Australia Limited (1931) 45 CLR 359]. But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found.

It is not enough that ground for uneasiness as to its future conduct arises. In the present case, many circumstances were given in evidence from which it might be inferred that in all that he did the respondent was actuated by one design, namely, to prepare a position to which he could retreat with a considerable part of his employer's business if it should become necessary or desirable to vacate the management of (a prospective rival). If any such finding had been made, the learned judge would clearly have been entitled, if not bound, to hold that the respondent had been guilty of misconduct. But, although there was evidence from which such an inference might have been drawn, the respondent's conduct was capable of an innocent construction...

In the view we take of the circumstances of the case, the motives and intentions of the respondent become all-important; for the significance and sufficiency as a justification of the other items of misconduct relied upon appear to us to depend upon the truth of his explanation or the bona fides of his acts. Further, the effect to be given to all the acts combined, which have been established against the respondent, must in the end be governed by an estimate of his honesty and motives. The chief embarrassment we have felt in the decision of the appeal arises from the lack of any explicit finding by the learned judge upon the subject..."

34 The TAFE has an established code of conduct [00.42.G1] to ensure ethical standards for teachers. At the relevant time - from Semester 1 in 2001 - that code of practice provided that:

"....in carrying out their duties staff should avoid real or apparent conflicts of interest..." And the purpose of the code of conduct is described as follows:

"...The purpose of this policy is to promote ethical conduct and ensure that appropriate action is taken by TAFE staff to avoid a real or perceived conflict of interest in the conduct of assessment for purposes of:

• determining the level of skills and knowledge required within a program of learning.

Each institute needs to take appropriate action to ensure the integrity of decisions that are made by its staff in each of the contexts listed above..."

The code of conduct also outlines the types of problems which may create a conflict of interests, viz:

"...Action needs to be taken to ensure there is no real or perceived conflict of interest in assessment processes. Situations where specific action may need to be taken include:

• assessing a family member or relative of a friend;

• assessing a colleague or business associate, particularly if the outcome of the assessment can be used to gain employment, promotion, pay increases or other benefit;

• assessing another TAFE NSW staff member, particularly if the assessor is involved in a supervisor/subordinate relationship;

• assessing any person in exchange for a service provided;

• assessing oneself (assessing oneself should not occur in any circumstances)...." That appears to me to be no more than a commonsense approach. I regard compliance with the code of conduct as fundamental to Ms Hall's employment.

35 To my mind there were sufficient irregularities in the processes Ms Hall put in place in both 2002 and 2005 with respect to the assessment of Ms Hardy for the two courses in question to raise serious concerns as a perceived conflict of interests on Ms Hall's part. It would appear to me that from the outset the processes were inappropriately casual and I would have expected that a considerably more formal approach would have been adopted in the assessments made of Ms Hardy's prior qualifications to match them with current courses.

36 Ms Hall argued that the module mapping was not a task actually requiring assessment and that it was properly open to her, or indeed anybody, to do it without requiring any evaluation or judgment, ie it was purely an administrative step and something she could do without causing any perceived conflict of interests. As I indicated earlier in this decision, Mr McDonald and Mr Haughey do not agree. In any event, I would think that any determination as to whether or not any particular past qualifications by a student actually required re-assessment for a more recent course or merely straightforward module mapping as Ms Hall has considered it, would be in itself something which would be more than just an administrative step. For instance, I note by way of illustration that Ms Hardy believed that two modules - 9765A and 9765D - in the 2005 course actually required assessment but Ms Hall simply treated them as resolved by module mapping alone. Mr Ginters also identified a number of errors Ms Hall made in her module mapping exercises for Ms Hardy, admittedly of a minor nature. 37 Furthermore, as Mr Ginters pointed out in his submissions, the Teachers Federation has in the past in work value claims for technical teachers highlighted the significance of assessment and evaluation of past courses, suggesting that such a role was significantly more than just an administrative step - see, for instance, the decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President, Boland J, Grayson DP and McLeay C) in Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2004) 133 IR 254 at pp.347 and 349].

38 Why did Ms Hall not act at arms length with Ms Hardy's assessments in both 2002 and 2005? She should have done so, in my opinion. Ms Hardy asserted in her evidence that whether she gave her material to Ms Hall or Mr McDonald for the 2002 assessment was "...entirely irrelevant..." but she admitted that with hindsight it would have been better had she given her material to some other person. I agree. Why did Ms Hall not hand the whole matter in 2002 over to Mr McDonald who had carriage of the relevant course at that time and should have been the person to make the relevant assessment - including any module mapping required? That would have been the proper course for her to adopt in the circumstances, in my opinion. 39 Mr Dawson argues in his submissions that, whilst there was a lot of smoke in the evidence, there was no fire, ie. Mr Ginters has failed to establish that Ms Hall was guilty of any wrongdoing to justify her dismissal - and the onus of proof fell on Mr Ginters in that respect [Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464] - and according to the standard demanded by Briginshaw v. Briginshaw (1938) 60 CLR 336. Mr Ginters conceded the circumstantial nature of much of the evidence before me in this hearing but did not believe that such evidence should be dismissed on that account. He referred in that respect to the decision of the Federal Court (Heerey, Mansfield and Hely JJ) in Sharma v. Legal Aid (Queensland) (2002) 115 IR 91 and, particularly the following comments (at p.99): "....In a case depending on circumstantial evidence, it is well established that the trier of fact must consider '...the weight which is to be given to the united force of all the circumstances put together...'. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v. Queen (No.2) (1984) 153 CLR 521 at p.535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts..."

And Mr Ginters believes that the facts before me do establish the substance of the allegations.

40 I am therefore satisfied that any reasonable observer would conclude that there was a perceived conflict of interests in both 2002 and 2005 when Ms Hall placed Ms Hardy's name on the roll and mark sheets and, consequently, a breach of the established code for the TAFE. No matter how honest Ms Hall and Ms Hardy were acting, their conduct was highly suspicious, in my opinion. Ms Hall's conduct clearly gives rise to a perception of a conflict of interests on her part.

41 That having been said, is a simple perception of a conflict of interest grounds for dismissal of the offending employee? I do not think so. It is certainly justification for some disciplinary action and counselling but, in my opinion, it would not necessarily be sufficient to form the proper basis of a dismissal of an employee with an otherwise satisfactory employment record. And it follows from the reasoning of Dixon and McTiernan JJ in Blyth Chemicals Limited v. Bushnell that I should not too ready imply improper motives against Ms Hall and Ms Hardy unless the evidence clearly leads me in that direction. Mere suspicion of the improper motives of Ms Hall is insufficient. There must be something more than that.

42 But in my opinion there is. For instance, in 2005 why did Ms Hall arrange for "blind assessments" for some modules [9765L, 9766C, 9765M and 9766D] and not with respect to other modules [9775A and 9775B]? Not only was there a perceived conflict of interests on Ms Hall's part but, in my opinion, on the balance of probabilities according to the standard set in Briginshaw v. Briginshaw, a real conflict of interests - a clear breach of the code of conduct under which Ms Hall was obliged to operate in her activities as head principal. The inescapable conclusion I draw is that Ms Hall took over the assessment of Ms Hardy's qualifications so that she could give her qualifications that she may not necessarily have otherwise received or at least to avoid the risk that Ms Hardy may be assessed as not having completed the necessary qualifications for the new courses.

43 For those reasons I see no grounds to intervene in support of Ms Hall in these proceeding and I decline to do so.

Brunker, Ken teacher Ford, Robyn teacher Hall, Pamela applicant Hardy, Susan part-time teacher (and sister of applicant) Haughey, Phillip head teacher McDonald, John head teacher McLeod, Sharon former teacher Reynolds, Cameron* legal officer Tasevski, Angela part-time teacher Visser, Bob teacher

• Evidence admitted without the witness being required for cross-examination

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