Harvey v. Department of Education and Training of New South Wales [2009] NSWIRComm 1076

Industrial Relations Commission (NSW)|2009-12-23

CITATION: Harvey v. Department of Education and Training of New South Wales [2009] NSWIRComm 1076

APPLICANT Malcolm Harvey PARTIES: RESPONDENT Department of Education of New South Wales

CATCHWORDS: termination of employment - teaching service - claim of unfair dismissal - alleged poor performance of teacher - teachers improvement program to be put in place - failure to attend meetings to arrange a teacher improvement program for a teacher - teacher allegedly unable to arrange support for meeting - teacher improvement program regarded as a fundamental condition of employment - application for reinstatement rejected

LEGISLATION CITED: Industrial Relations Act 1996 Teaching Service Act 1980

Allison v. Bega Valley Council (1995) 63 IR 68 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 CASES CITED: Homebush Abattoir Case (1966) AR 371 Mohazab v. Dick Smith Electronics Pty Limited (995) 62 IR 200 Laws v. London Chronical (Indicator Newspapers) Limited (1959) 2 All ER 285 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111

HEARING DATES: 06/08/2009, 07/08/2009, 16/09/2009, 30/09/2009

APPLICANT Claire Howell LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Malcolm Harvey and the Department of Education and Training of New South Wales

Application under S.84 of the Industrial Relations Act, 1996

1 Mr Malcolm Harvey was employed as a teacher by the New South Wales Department of Education and Training. His services were terminated on Monday, 23 March, 2009 after 18 years of employment. He had formerly been engaged teaching computer studies and mathematics at the Arthur Phillip High School but at the time of his dismissal he was temporarily employed at the Department's Nirimba School Education Area Office. In a letter dated Tuesday, 10 March, 2009 from Mr Peter Riordan, the Deputy Director-General of Workforce Management and Systems of the Department, he was informed that:

"....I have decided, as defined under S.93B(1) of the Teaching Service Act, 1980 to direct you to resign within seven days. If you fail to submit your resignation within seven days from the receipt of this letter you will be taken to be dismissed..."

Mr Harvey did not respond to that letter and Mr Riordan wrote again to Mr Harvey on Monday, 23 March, 2009 informing him that he had been dismissed, viz:

"....As your resignation was not received by Friday, 20 March, 2009, I advise you that you are dismissed from the Department effective from Monday, 23 March, 2009..."

2 S.93B(1) of the 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;

3 Mr Harvey lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking his re-employment or, alternatively, monetary compensation in lieu thereof. The Part 6 application was initially allocated to Ritchie C whose attempted conciliation of the matter was unsuccessful. In accordance with Practice Direction No.17 the file was reallocated to me by Registry staff who set the matter down for hearing on Thursday, 6 August, 2009 and Friday, 7 August, 2009. Three additional days - Wednesday, 16 September, 2009, Wednesday, 30 September, 2009 and Tuesday, 10 November, 2009 - were also required for the hearing of the matter. The hearing on Tuesday, 10 November, 2009 was abandoned when it clashed with commitments of Mr Britt, who has represented the Department in the hearing. With the concurrence of Ms Howell, representing Mr Harvey in the hearing, final submissions were provided by the parties in writing.

4 Ms Howell called Mr Harvey to give evidence in the hearing. Mr Britt called Mr Riordan to give evidence. He also called four other witnesses in the hearing: Ms Lynne Goodwin, the principal at Arthur Phillip High School, Ms Kirstine Gonano and Mr Bradley Main, deputy principals, Mr Nicholas Train, the head teacher of computer studies and industrial arts (and since early 2008 the representative of the New South Wales Teachers' Federation at the school). Ms Gail Wykes, the School Education Director for the Department's Western Sydney Region provided a written statement but Ms Howell was prepared to admit it into evidence without the need to cross-examine her on it. Ms Lyn Takayama, a welfare officer of the Teachers' Federation, also gave evidence under summons from the Education Department.

5 Mr Harvey has claimed in a written statement that:

"....throughout 2007 and early 2008 I and other mathematics teachers, made a number of complaints to the head teacher of the mathematics department, particularly about the fact that the Year 10 curriculum was too difficult for the students. This was leading to disruptive behaviour. In 2008 I was allocated a lower ability Year Ten mathematics class. My experience was that my Year Ten students were extremely disruptive, in part because the curriculum was beyond their ability..."

But Ms Goodwin believes that the disruptive behaviour in Mr Harvey's class was "...a result of poor and inadequate lesson preparation and delivery..." and she records in an affidavit which formed the basis of her evidence in this hearing that:

"...other members of the school and myself had a number of concerns with Mr Harvey's conduct and/or performance. They directly related to classroom management and lesson planning and delivery. These were identified during the second semester of 2007 by staff and his supervising head teachers. They continued to be areas of concern in the first term of 2008..."

"...As deputy principal, I have dealt with a number of classroom incidents involving Mr Harvey and classes under his supervision. I have also been approached by a number of students verbally expressing their concerns about his teaching practice and his classroom management. They felt that they could not understand Mr Harvey's lessons and that he was unable to assist them when they asked for help. Other teachers also complained about the level of noise coming from Mr Harvey's classes and that students were regularly sent out of his classes. There was an over-representation of behaviour referrals from Mr Harvey's classes sent to the deputy principals..."

6 Ms Goodwin spoke in her evidence of informal support offered to Mr Harvey to address those concerns: an offer of informal support by two head teachers (which was refused by him), the opportunity for him to visit other classrooms and support with lesson planning and professional development in behaviour management. According to Ms Gonano, she also had many informal conversations with him regarding student behaviour and on Thursday, 3 April, 2008 and Wednesday, 28 May, 2008 she met with Mr Harvey to discuss issues raised with Mr Harvey's class.

7 At the conclusion of the meeting on Wednesday, 28 May, 2008 Ms Gonano handed over an envelope containing a confidential letter dated Wednesday, 28 May, 2008 to Mr Harvey. She had been given that envelope by the Employee Performance and Conduct Unit of the Department. The contents of that letter had not been raised in the meeting, however. Ms Gonano was not aware of their contents. The letter from EPAC, read as follows:

"...I am writing to advise you that allegations that you may have engaged in misconduct are being investigated in accordance with the Guidelines for the Management of Conduct and Performance by the EPAC... The allegations are that you may have engaged in inappropriate physical contact and inappropriate conversations with students which may constitute misconduct. I have requested Ms Sandra Cameron, principal investigator, to undertake an investigation into the allegations and prepare an investigation report on these matters. I have also asked that Ms Goodwin arrange for the Code of Conduct [2004] to be discussed with you, particularly with regard to your interaction with students...

You are not required to respond at this time but you will be given an opportunity to respond to the allegations. Ms Cameron will contact you separately to provide an opportunity for you to respond. Should you decline, a decision will be made in the absence of your response. If the investigation sustains allegations of misconduct, disciplinary or remedial action may be taken against you. Actions that may be taken are set out under S.93B(1) of the Teaching Service Act, 1980..."

8 Ms Cameron wrote to Mr Harvey on Friday, 20 June, 2008 outlining the allegations against him, viz:

that on Tuesday, 18 March, 2008, after he had sent a Year 7 male student out of the class he was in the corridor and had grabbed him by the shirt near his throat, pushing him backwards and made contact with his throat with his knuckles: and

that on Wednesday, 9 April, 2008 he had grabbed a Year 9 male student by the shirt close to his neck with two hands whilst he was standing under a shelter during a free period, pushing him backwards by about one metre.

"...S.93D(3)(a)(ii) of the Teaching Service Act requires you to be given an opportunity to respond to the allegations and you are now provided this opportunity. I would like to interview you to obtain your response. Should you agree to be interviewed you will be provided with the opportunity to respond to questions asked in relation to the allegations or make comments on these matters. You will be provided with at least 24 hours notice of the time for the interview.

You may wish to bring a support person to the interview. The role of the support person is as a witness or advisor. This person may not operate as a legal advocate and may not cross-examine me. The interview will be sound recorded with your permission and a copy of the record of interview statement or an electronic copy will be offered to you. Should you agree to be interviewed, please advise me if you have any special requirements, such as access requirements or a signing or language interpreter.

If you would prefer to provide your response in writing, you may do so within fourteen days of the date of this letter. A submission may also be made on your behalf by your union...Should you require an extension of time to respond, I will consider any reasonable request. Please note that if you, or your union on your behalf, do not respond within 14 days, or indicate that you do not wish to respond, it will be deemed that you deny the allegations..."

9 Mr Harvey contacted the Teachers' Federation concerning the allegations. He attended an interview with Ms Cameron, with a representative of the Teachers' Federation, on Friday, 1 August, 2008 and on Friday, 8 August, 2008 Ms Cameron wrote to Mr Harvey to inform him of further allegations (ie that he had made improper comments to female students, had inappropriate conversations with them concerning his personal and social life and spent an inordinate amount of time with particular students which was deemed inappropriate).

10 Mr Harvey had further meetings with Ms Gonano on Friday, 8 August, 2008 and Tuesday, 19 August, 2008. Mr Train attended the meeting of Tuesday, 19 August, 2008. Whilst he is the Teachers' Federation representative at the school, he did not attend the meeting to provide support to Mr Harvey but as Teachers' Federation representative. Mr Harvey was uncomfortable in attending the meeting. He had a colleague to attend the meeting with him as support but that colleague was not apparently his preferred person for the support. It was to be the last meeting that Mr Harvey did attend, however.

11 Further allegation were also to come to light and were conveyed to Mr Harvey in a letter from Mr Adam Campano, another EPAC investigator, on Monday, 20 October, 2008, viz:

that he made frequent inappropriate comments to both male and female students of a personal nature;

that he afforded special treatment to a particular female student, asking her questions concerning her weekend activities, having her sit beside him in class and whispering in her ear; and

grabbing the wrist of a male student, forcing his hand open and twisting his arm.

It is my understanding that after the termination of Mr Harvey's services all of the allegations against him have been dismissed. But by the time of Mr Campano's letter there appear to have been other problems involving Mr Harvey and his consistent failure to attend further meetings appears essentially to have been the ultimate reason for his dismissal. Mr Riordan indicated in his evidence that his decision to seek Mr Harvey's resignation and to subsequently dismiss him was based entirely on his failure to attend the meetings that had been arranged for him.

12 Ms Gonano had referred her concerns with Mr Harvey to Ms Goodwin who instructed Ms Gonano to arrange a further meeting with Mr Harvey to discuss difficulties he was experiencing with his teaching and to commence implementation of a formal teacher improvement program. Ms Goodwin claimed that other teachers in the school had also informally raised their concerns over Mr Harvey's teaching. Ms Goodwin wrote to Mr Harvey on Friday, 22 August, 2008 informing him that:

"....I have organised a meeting to discuss the difficulties you are experiencing with your teaching and to commence the implementation of a formal program of support in accordance with the Department's teacher improvement program procedures. Ms Gonano will be attending the meeting. She will be oversighting the implementation of the improvement program... You are entitled to bring a support person to this meeting... The meeting will be confidential..."

13 The TIP for teachers is contemplated by S.98H of the Teaching Service Act, viz:

"(1) If following completion of the review of an officer's performance, the Director-General is of the opinion that the officer is not performing his or her duties in a satisfactory manner, the Director-General may implement a performance improvement program for the officer.

(2) The officer must participate in any such performance improvement program in the manner required by the program.

(3) A performance improvement program is to be on such terms, and is to be implemented for such period, as the Director-General considers appropriate."

14 The TIP meeting with both Ms Goodwin and Ms Gonano was scheduled for Wednesday, 27 August, 2008. Mr Harvey failed to attend. He was, in fact, absent from the school on Tuesday, 26 August, 2008 and Wednesday, 27 August, 2008. A further meeting was rescheduled with Ms Goodwin and Ms Gonano for Monday, 1 September, 2008 and re-scheduled for Wednesday, 3 September, 2008, Monday, 8 September, 2008 and Wednesday, 10 September, 2008 and a further meeting on Monday, 15 September, 2008 with Ms Wykes. Mr Harvey attended none of those meetings.

15 With the exception of the first meeting scheduled for Tuesday, 27 August, 2008, there was no more than a day's notice of those meetings given to Mr Harvey. Ms Takayama claimed in her evidence that whilst that was customary for meetings of that nature for school teachers she regarded that time as unreasonable. Ms Howell indicated in her submissions that she regarded the time given for Mr Harvey to attend the various meetings was unfair to him. She also argued that for the TIP to commence concurrently with the disciplinary procedure that was at that time contemplated for Mr Harvey would place him under considerable stress which would not assist in the program, especially since some students, not directly involved in the allegations, apparently already knew about the allegations and they were being openly discussed in class. As Ms Goodwin conceded in her evidence, that fact would "...be likely to enhance any difficulties in classroom management..." for Mr Harvey. But whilst Ms Goodwin indicated in her evidence that it was her intention to place Mr Harvey on a formal TIP, the time for starting that TIP may have been delayed in the light of discussions.

16 Essentially, Mr Harvey's reason for his failure to attend the successive meetings with Ms Goodwin, Ms Gonano and Ms Wykes was his inability to obtain a support person to assist him in those meetings. Mr Harvey had been in touch with the Teachers' Federation by telephone and e-mail over the time of the aborted meetings but in his evidence he is fairly vague over those telephone calls and e-mails. A Teachers' Federation publication [TR10] outlines advice to teachers facing a formal improvement program, viz:

"....Teachers who are informed that they are to be placed on an improvement program are advised to take a support person...to every formal review meeting concerning the program. If the support person is not available, the teacher has the right to have the meeting rescheduled. Federation's strongest advise is that if a teacher's support person is not available, then no meeting should take place. If this is the case, the teacher should provide to the principal some alternative times suitable to the teacher and the support person ..."

17 My emphasis. If a teacher is unable to attend the meeting at the time set for it, the advice of the Teachers' Federation is that the teacher should suggest times for a replacement meeting. That would, in any event, be common courtesy, I would think. At no time has Mr Harvey actually taken the initiative in that respect. However, he remained uncomfortable to attend any meetings alone.

18 According to Mr Train, computer studies represented only a small part of Mr Harvey's workload and there were apparently no problems with Mr Harvey in that work. It was the mathematics strand that seemed to produce the difficulties for Mr Harvey. That would ordinarily have made him a suitable support person (and he has indicated his preparedness to support Mr Harvey). However, during much of the time that the various meetings had been scheduled with Mr Harvey, Mr Train had actually been away from work, marking Higher School Certificate examination papers (although apparently he was still in contact with the school and visited it on several occasions during his period of absence). Mr Train was absent in that capacity from Thursday, 28 August, 2008 to Monday, 15 September, 2008. Mr Harvey has used Mr Train's absence as one of his excuses for his consistent failure to attend the various meetings. But Mr Harvey was not prepared for him to act as his support person in the interviews. He had told him so. Consequently, Mr Train's absence from work was no proper excuse for Mr Harvey delaying his attendance at the meetings.

19 Instead, Mr Harvey appears to have been receiving his advice informally from a colleague (who had formerly been, but was no longer, a representative of the Teachers' Federation at the school). Mr Harvey claimed that colleague had told him that he was reluctant to attend the meetings because he had some difficulties himself with Ms Goodwin but, according to Mr Harvey, he had consistently recommended to him that he not attend the meeting without a representative of the Teachers' Federation to accompany him as his support person. In a statement that colleague issued dated Friday, 27 February, 2009, that colleague described himself as Mr Harvey's "...chosen support person..." but he indicated that:

"....in relation to the matter involving the lawful direction, I gave him advice to not attend all the meetings requested until he got legal support from the New South Wales Teachers' Federation. This advice was given in good faith as his support person during this time..."

Mr Harvey then approached two other teachers with similar views. According to Mr Harvey, they were similarly reluctant to attend the meeting. Those three colleagues at the school were not called as witnesses in the hearing.

20 Mr Harvey then spoke to the duty officer of the Teachers' Federation on the telephone who, according to Mr Harvey, also advised him not to attend the meetings without a support person. The duty officer informed him that he would be provided with a welfare officer to assist him with the meetings and he subsequently communicated with that welfare officer from time to time by telephone and e-mail. It was Ms Takayama who was appointed as his welfare officer. She informed Mr Harvey that, in the circumstances, he should attend the meeting and he also claimed that she informed him that she would not herself do so as support officer, which was what Mr Harvey had been seeking from her.

21 Ms Takayama and Mr Train indicated in their evidence that it was not customary for Teachers' Federation welfare officers to attend meetings as part of the TIP. But Mr Harvey was dissatisfied with the advise he was receiving from Ms Takayama in that respect and he sought that another welfare officer from the Teachers' Federation be supplied to him. That had not apparently taken place by the time of his dismissal. In fact, on Friday, 5 September, 2008 the Teachers' Federation wrote to Mr Harvey, informing him that Ms Takayama had:

"....many years of experience as welfare officer and indeed is one of the officers who holds specific responsibility within the Federation for advising and informing members about teacher improvement programs. She has informed me that in the telephone conversation to you she advised you to co-operate with the program, including attending meetings associated with its implementation, and to take the opportunity to request and utilise any training provided by way of a program which you will find meaningful and useful. The advise that (she) provided you is consistent with the advice that any welfare officer would provide, and therefore I do not approve a change of welfare officer..."

That letter was posted to Mr Harvey. He may not have received it until some time later. 22 Ms Howell indicated in her written submissions that:

"....It appears from the interactions between Mr Harvey and the Teachers Federation that a fundamental misunderstanding had arisen..."

Of course, a formal TIP can ultimately be a prelude to later disciplinary action for a teacher, including dismissal. Ms Takayama estimated that the outcome of approximately 50% of the cases where a teacher was placed on a TIP resulted in dismissals. But the primary aim of the program is, as the letter from the Teachers' Federation suggests, something designed to help a teacher and Mr Harvey would have been wise to attend the meetings and embark on a TIP. That was the advise he was receiving from the Teachers' Federation. 23 Ms Howell also indicated in her written submissions that: "....An employee undergoing a TIP process is generally entitled to a support person at meetings. This is also, understandably, the Teachers Federation policy. However, the Teachers Federation does not generally provide a full time officer to act as a support person for TIP meetings. This fact caused considerable confusion and difficulty in Mr Harvey's case..." However, in the light of the letter Mr Harvey received from the Teachers Federation, I do not believe that Mr Harvey should have been under any misunderstanding or confusion concerning its position with respect to the meetings.

24 If Mr Harvey was not achieving the type of support he was seeking within the Teachers' Federation or from any of his colleagues in the school, ie attendance with him at any meeting to discuss a TIP for him, it would obviously have been in his interests to look elsewhere for such support. He did not do so. Instead, he embarked on a fruitless pursuit of another welfare officer from the Teachers' Federation by way of a series of e-mails, despite the fact that he had already been informed in the letter from the Teachers' Federation on Friday, 5 September, 2008 that there would be no changes in the assistance he was already receiving from it and the retention of welfare officer already assigned to him. He was being advised in unambiguous terms by the Teachers' Federation that he should attend the meetings that had been arranged. He obviously did not like that advice.

25 In the meantime, there had been two separate incidents - on Wednesday, 20 August, 2008 and Monday, 25 August, 2008 - when Mr Harvey claimed that he was the victim of assaults by students in the classroom. He instructed his class to tidy up the classroom and had blocked the doorway of a classroom at the end of class to stop them from leaving until that was done. He asserted that he had been pushed by students out the door in what he described in the subsequent incident report as a "...rugby type move...". He had not been injured in the incident but, partly because of the incident and partly because he was ill, he was absent from work on Tuesday, 26 August, 2008 and Wednesday, 27 August, 2008.

26 In fact, on Tuesday, 2 September, 2008 Mr Harvey had written an e-mail to Ms Goodwin in the following terms:

"....I would like the meeting to be postponed until the following issues that are outside of my control have been resolved, viz:

When the Federation has assigned me with a new welfare officer and I am able to obtain advice from them regarding this issue.

Mr Train, the school's Federation representative is available for consultation and/or local support regarding this issue due to him attending HSC marking commitments for two weeks.

Copies of ALL documents that have been accumulated by the school regarding me, specifically TARS, lesson evaluations, reports, incident reports and anything else involving my professional performance so that these issues can be addressed with prior knowledge before any reasoned decision is taken at this meeting. To date I have requested these and they have not been forthcoming.

You attend and chair the meeting so I can raise issues in the meeting (to be) dealt with as the principal of the school is the only person with the authority to make decisions under Department of Education and Training policies - not deputy principals..."

27 And on Thursday, 4 September, 2008 Ms Goodwin replied with a letter, viz:

"...I am disappointed that we have, as yet, been unable to meet. I note the issues you raise in your e-mail of Tuesday, 2 September, 2008. However, the teacher improvement program procedures require principals to deal promptly and fairly with teaching staff who are experiencing difficulties with their performance. Pursuant to S.6 of the Code of Conduct [2004] and Clause 5 of the Teaching Service Regulation [2007]...I have the authority to issue reasonable and lawful directions, which together with official guidelines concerning the performance of your duty, you are required to adhere to and comply with. Accordingly, I hereby direct you to attend a meeting. The meeting will be held in my office on Monday, 8 September, 2008...to facilitate the commencement of the implementation of the teacher improvement program. Ms Gonano will be attending the meeting. She will be oversighting the implementation of the improvement program..."

But, as I indicated earlier in this decision, that meeting and two subsequent meetings were also aborted when Mr Harvey failed to attend.

28 Ms Goodwin and Ms Gonano appear to me to have shown remarkable patience with Mr Harvey. But by this time their patience had finally run out. As Ms Gonano indicated in her affidavit:

"....Mr Harvey's refusal to attend meetings has had a significant impact on myself and the school. It is part of my responsibility to assist teachers who are experiencing difficulty with their teaching. I had invested numerous hours supporting Mr Harvey both inside the classroom and providing him access to appropriate professional learning. It was frustrating and time-consuming planning to attend numerous meetings that did not occur and to assist in the development of a support program that we were able to implement. It was frustrating to be unable to address a situation where I felt that students were not being provided with the appropriate or effective learning experiences that they were entitled to..."

"...I believe that the directions I issued were reasonable. Mr Harvey's non-compliance with reasonable directions has been frustrating and time-consuming. I am accountable for the supervision of teachers' work and ensuring that teachers who fail to meet the required performance levels are provided appropriate support as this has a significant impact on the education and welfare of students and the morale of colleagues. The purpose of the intended meeting was to provide formal support for his improvement and his non-compliance made it impossible to implement the program..."

29 On Monday, 8 September, 2008 Ms Goodwin had delivered to Mr Harvey a further letter informing him of the scheduled meeting on Wednesday, 10 September, 2008 and indicating to him that:

"...should you not attend, the matter will be referred to the school education director for further action..."

And that occurred when Mr Harvey again failed to attend the meeting of Wednesday, 10 September, 2008. In fact, the matter had been brought to the attention of Ms Wykes on Tuesday, 9 September, 2008. Ms Wykes had become aware of difficulties with Mr Harvey early in 2008. She indicated in her affidavit that she had:

"...formed the view that the directions which has been issued by Ms Goodwin were reasonable, lawful and within the Department of Education teacher improvement program policy guidelines..."

She visited the school on Thursday, 11 September, 2008 and requested Mr Main to deliver a brief handwritten note that directed him:

"...Please come to the principal's office to see me immediately..."

30 According to Mr Harvey, he left the classroom briefly, taking the opportunity to discuss the letter with two of his colleagues, before he responded with a note for Mr Main to deliver to Ms Wykes. According to Mr Main, after he had delivered the letter, Mr Harvey took it into the classroom, read it and quickly scribbled a response before returning the letter to him to return to Ms Wykes. Mr Main did not know the contents of the letter or Mr Harvey's response.

"...On advice from the Federation, I am unable to attend due to not having a support person at the moment ...."

But that was incorrect since in the letter of Friday, 5 September, 2008 the Teachers' Federation had advised him to actually attend the meeting that had been arranged. 32 Ms Wykes wrote a letter instructing him to attend a meeting with her on Monday, 15 September, 2008 in her office, viz:

"...You should understand that if you fail to comply with this direction, I will be referring this matter to the staff efficiency and conduct team for consideration of disciplinary action. However, I expect that such action will not be necessary and you will comply and participate actively in the corporate interests of the school and the Department..."

It is extraordinary to me that with that clear direction, Mr Harvey would chose not to attend the meeting. Instead, on Sunday, 14 September, 2008 Mr Harvey forwarded an e-mail addressed to Ms Wykes and Ms Goodwin describing the direction to attend the meeting as unreasonable, viz:

"...Your direction to attend this meeting...is unreasonable and I am disappointed that we have, as yet, been unable to meet. I realise the issues I raised in my e-mail of Tuesday, 2 September, 2008 have not been readdressed ( sic ) and I wait for these to be met. I have made a Freedom of Information Act request to the Department and will await the documentation. I wish to attend the meeting but under Federation guidelines I am permitted a Federation welfare person with me. As this person has not been assigned and notified, I will be unavailable to attend this meeting..."

In fact, on Monday, 15 September, 2009 Mr Harvey was absent on sick leave with influenza. He did not attend the meeting arranged with Ms Wykes.

33 On Thursday, 17 September, 2008 Ms Wykes attended the school. She had written a letter informing Mr Harvey that, as she had foreshadowed in her letter of Thursday, 11 September, 2008, she was proposing to refer the matter to the Department's Staff Efficiency and Conduct Team for consideration of disciplinary action against him. She asked Mr Main to inform Mr Harvey to see her in Ms Goodwin's office. Mr Main was to relieve Mr Harvey and remain to supervise his class. Mr Main returned to inform her that Mr Harvey refused to leave his class. According to Mr Main, Mr Harvey had given him a message to convey to Ms Wykes to the following effect:

Mr Harvey denies that he had made that comment. He nevertheless claimed that he was very apprehensive about the meeting and did not wish to attend it without a support person.

34 Ms Wykes believed she had then had no choice. She attended the class and handed Mr Harvey the letter. She directed him to perform alternative duties and referred the matter to the Department's Staff Efficiency and Conduct Team for consideration. Until the matter was resolved, Mr Harvey was transferred to work at the Nirimba School Education Area Office of the Department.

35 On Thursday, 30 October, 2008 Mr Kevin Schipp, the Manager of the Department's Staff Efficiency and Conduct Team, wrote to Mr Harvey outlining allegations made against him - essentially his consistent failure to attend the meetings arranged with Ms Goodwin, Ms Gonano and Mr Wykes. The letter concluded:

"...You are invited to respond in writing and/or verbally. Any written response should be forwarded to the Employee Performance and Conduct Directorate within 14 calendar days from the date of this letter. A submission may also be made on your behalf by your union. If you would prefer to be interviewed, you may do so within 14 days of the date of this letter... Should you require an extension of time to respond, I will consider any reasonable request. Please note that if you or your union do not respond within 14 days, or indicate that you do not wish to respond, it will be deemed that you deny the allegation..."

36 Mr Harvey responded by e-mail on Friday, 21 November, 2008 outlining the reasons for his consistent failure to attend the meetings that had been arranged for him to attend. He indicated in that e-mail that he had at that time no representative from the Teachers' Federation attending to the matter.

37 On Friday, 2 February, 2009 Ms Jane Thorpe, the Director of Performance and Conduct wrote to Mr Harvey informing him that the investigation into the allegations against him was now complete. She wrote:

"..I find the allegations sustained. Essentially, you have refused to attend meetings to discuss your performance and have ignored formal directions to attend meetings. You must appreciate that, as a teacher, you are required to meet with your principal and to address any performance concerns. I am now considering taking disciplinary action... In relation to this matter, the most severe disciplinary action I am contemplating recommending is that you be directed to resign. You have 14 days from receipt of this letter to make a submission and to provide any additional information which you consider should be taken into account in relation to the recommended disciplinary action being considered before Mr Riordan, the delegated officer..."

Mr Harvey made contact with Mr Riodan and spoke to his assistant, seeking a meeting with Mr Riordan. Such a meeting was arranged but Mr Harvey sought that the meeting be postponed and it never took place. Ultimately, Mr Riordan corresponded to Mr Harvey on Tuesday, 10 March, 2009 (inviting him to resign) and on Monday, 23 March, 2009 (dismissing him). I am informed by Mr Britt that Mr Harvey has also been placed on the "not to be employed" list.

38 It would seem to me that Mr Riordan's "invitation" to Mr Harvey to resign in his letter of Tuesday, 10 March, 2009 would have constituted a constructive dismissal. It was initiated by the Department of Education and, in effect, gave Mr Harvey Hobson's Choice - resign or be dismissed [Allison v. Bega Valley Council (1995) 63 IR 68 and Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200]. But, in any event, Mr Harvey's lack of response to that letter was Mr Riordan's subsequent letter of Monday, 23 March, 2009 which clearly did dismiss him. 39 The issue then before me - the ultimate question, as Mr Britt described it in his written submissions - falls under two headings, viz:

(i) whether or not the dismissal was warranted in all the circumstances, ie whether or not, using the term 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, whether there had been a "...fair go all round..." or, more accurately, whether or not, using the actual language of S.84(1), his dismissal was "harsh", "unreasonable" or "unjust" [ Busways v. Johnson (1994) 55 IR 255 at p.261]; and

(ii) if so, to determine the appropriate remedy for him - reinstatement [S.89(1)], re-employment [S.89(2)] or monetary compensation in lieu thereof [S.89(5)], with preference always being given to reinstatement or re-employment over monetary compensation [ Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 at p.115].

A dismissal of an employee may be unfair because it was not justified on the basis that the allegation from which the dismissal flowed was not substantiated in the evidence or was too harsh a penalty in all the circumstances (substantive unfairness). Alternatively, a dismissal may also be unfair because the manner in which it was put into effect was unfair in some manner (procedural unfairness).

40 Mr Harvey was dismissed for "misconduct" as defined in S.93C(1) of the Teaching Services Act, viz:

"For the purposes of this Part misconduct includes, but is not limited to, any of the following:

(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 Protected Disclosures Act, 1994) against a person that is substantially in reprisal making a protected 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."

41 Mr Britt commented in her written submissions: "....The applicant has failed to abide by directions to meet with both the Principal and the School Education Director on numerous occasions. The applicant, by his conduct up until Wednesday, 10 September, 2008 was misconduct as defined in S.93C...and in breach of his obligation to obey directions which are lawful and reasonable. The applicant's conduct was repudiatory in nature. That is, by his deeds the applicant evinced an intention not to be bound by the contract through disregard of its essential terms. The degree or repudiatory nature of the applicant's conduct is demonstrated by his evidence...where he thought he did not have to conduct himself as he had been directed..." 42 The concept of "misconduct" in S.93C(1) seems to me to carry the matter much farther than the concept as it is generally understood in the industrial community as grounds for summary dismissal - especially in S.93C(1)(b) which extends the concept to any conduct justifying disciplinary action. Whilst there is no fixed rule of law to conclusively define the degree of misconduct which justifies summary dismissal, the fundamental issue appears to turn on whether or not the conduct complained of is such as to show the employee to have disregarded an essential condition in the contract of employment [Laws v. London Chronicle (Indicator Newspapers) Limited (1959) 2 All ER 285]. In the Homebush Abattoir Case (1966) AR 371 Cook J of the former Commission summarised the situation when he stated (at p.374) that:

"…in my view, the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service…"

In any event, Mr Britt argued in his written submissions that Mr Harvey's behaviour was misconduct at common law and, to that extent he did not rely entirely on S.93C. Mr Harvey was summarily dismissed - but after an extraordinarily long period of time and subject to a very extensive internal procedure, which Mr Harvey appears to have frustrated.

43 Ms Howell commented in her written submissions: "....Because the respondent relies upon alleged misconduct, it must demonstrate that such misconduct occurred and that the conduct was serious misconduct warranting dismissal, rather than less serious misconduct which might justify (for example) a fine or a reprimand or a caution... Even if this conduct constituted misconduct in all the circumstances...it was not serious misconduct warranting dismissal..."

But when, with sufficient notice, an employee is invited and later directed to attend meetings by his employer, his consistent failure to do so, does not mean that the issues in concern will simply evaporate. Clearly, advice that Mr Harvey was receiving from the Teachers' Federation was that he should attend the meetings that had been arranged. He was simply ignoring that advice and looking for any support he could obtain for his view that he did not need to attend any such meeting at all. That eccentric attitude was not in his best interests - as the Teachers' Federation had informed him in its letter of Friday, 5 September, 2009. It was not appropriate to override that clear advice he was receiving with the casual advice given to him originally by the duty officer and his colleagues, who may have their own axe to grind.

44 In my opinion, the obligation on the Department of Education in this case was simply to arrange the appropriate times for interviews for Mr Harvey with Ms Goodwin and later Ms Wykes. The obligation was at all times on Mr Harvey to attend them or arrange for suitable alternate dates (with or without his support at those meetings). This he consistently failed to do. It seems to me that his motive for that extraordinary conduct was to support his conviction that if he simply failed to turn up at the various meetings arranged for him, he would not have to address the issues that would otherwise have been raised in those meetings and that they would simply go away. They were not going to. And frankly it is not credible that with all of the separate meeting that had been arranged and changed to accommodate Mr Harvey, he was not able to arrange a suitable representative for any of them.

45 Any employment contract involves mutual obligations by both employers and employees. School teachers are no exception to that requirement. It is the obligation of the employee to conform with all reasonable directions given by the employer, or its delegate. In that respect, Mr Britt referred in his written submissions to Reg 5(1) of the 2007 Teaching Service Regulation, viz:

"A member of the teaching service must immediately comply with any lawful direction given by a person who has authority under the Act or this Regulation to give the direction."

Clearly, the procedure for the formal program of support as part of the TIP, which Ms Goodwin, and later Ms Wykes, intended to put in place is standard procedure for teachers when there are concerns relating to their teaching skills. As Mr Britt indicated in his written submissions, the requirement that Mr Harvey attend the TIP meetings which had been arranged was a lawful direction. It was also reasonable, in the circumstances. I am satisfied that the TIP is now a condition of the employment for teachers in this State, accepted as valuable by the Teachers' Federation on behalf of teachers, and teachers are obliged to comply with the TIP - and, as a consequence, to attend meetings with respect to it.

46 Ms Howell has indicated in her written submissions that Mr Harvey accepts that, upon his reinstatement, his work performance will be addressed and reviewed and that he will have to participate in the TIP arranged for him. But it appears to me that commitment by Mr Harvey comes too late. I therefore believe that the Department of Education has been more than fair to Mr Harvey. I see no grounds to intervene on his behalf in this hearing and I dismiss his Part 6 application.

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Judgment (120 paragraphs)

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