Jitendra Mohan Sud v NSW Department of Education and Training

LEGISLATION CITED: Industrial Relations Act 1996 Teaching Services Act 1980

Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Parker v Capitol Painters (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 2) (1990) 35 IR 70 Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167

HEARING DATES: 06/05/10; 07/05/10 and 13/05/10

APPLICANT Mr Peter Newall Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr Anthony Britt Barrister

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Jitendra Mohan Sud and NSW Department of Education and Training

Application by Jitendra Mohan Sud re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Jitendra Mohan Sud ("the Applicant") for unfair dismissal against NSW Department of Education and Training ("the Respondent"), pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The unfair dismissal application was filed on 24 November, 2009 in the New South Wales Industrial Registry. The Employers Reply was filed on 14 December, 2009. 3 The matter was set down for conciliation on 15 December, 2009. Conciliation was unsuccessful and the matter was programmed for a Hearing. 4 The file was allocated to myself for a Hearing on 6, 7 and 13 May, 2010. 5 At the Hearing, the Applicant was represented by Mr Peter Newall, barrister who called the Applicant as a witness. 6 At the Hearing, the Respondent was represented by Mr Anthony Britt who called the following witnesses: Mr Wayne Duncombe - school principal, Randwick Boys High School Ms Yiota Stasi (Mrs Loizou) - head teacher, mathematics, Randwick Boys High School Ms Sue Cran - school education director, Botany Bay Network Ms Judy Stenner - administration support officer (schools), Bondi Office Ms Louise Ferguson - school education director, Port Jackson Network Ms Jane Thorpe - director, employee performance and conduct directorate Mr Kevin Schipp - manager, staff efficiency and conduct unit

BACKGROUND 7 The Applicant was employed as a school teacher from 2002 until the time of his dismissal. He was initially employed in the town of Walgett until 2004, when he was transferred to Randwick Boys High School (R.B.H.S.), Sydney. He taught mathematics and computing. 8 In 2008, a new school principal (Mr Wayne Duncombe) was appointed to R.B.H.S.. 9 In April, 2008, Mr Duncombe raised concerns about the Applicant's teaching performance. Around the same time, the Applicant made formal complaints against three school teachers: Mr Duncombe, Ms Pat Gard and Mrs Robyn Crocker. 10 Mr Duncombe established an informal support program in April-May, 2008 for the Applicant in order to address the concerns about his teaching performance. Mr Duncombe denied that the support program was a response to Mr Sud's complaints. 11 Mr Sud objected to Ms Gard or Ms Crocker being in any way associated with the support program (given his complaints against them). Mr Sud took absence from school. Mr Duncombe received a letter on 6 June, 2008 from Mr Sud's solicitors. 12 Mr Sud returned to school. Another concern was raised about Mr Sud refusing to mark mathematics papers in accordance with faculty policy. Mr Sud was given a written direction by Mr Duncombe on 29 August, 2008 to mark the papers but he did not. 13 On 13 October, 2008, Mr Duncombe wrote to Mr Sud advising he would like to meet with him to discuss concerns regarding his teaching performance and to commence the implementation of a formal program of support. Mr Sud could not meet with Mr Duncombe as he did not have a support person available for the proposed meeting day. Mr Sud did not have that meeting and then advised Mr Duncombe he would not be marking year 10 exams in the manner required by the faculty. 14 Mr Duncombe wrote to Mr Sud directing him to attend a meeting on 20 October, 2008. Mr Sud did not attend. 15 Ms Louise Ferguson, school education director, wrote to Mr Sud directing him to attend a meeting with Mr Duncombe on 31 October, 2008. Mr Sud did not attend. 16 Ms Ferguson wrote again to Mr Sud directing his attendance with Mr Duncombe on 11 November, 2008. Mr Sud did not attend. 17 Mr Sud's non-compliance with the directions was referred to the Staff Efficiency and Conduct Team for consideration of disciplinary action. Mr Sud was directed to report for duties at the Bondi Office instead of teaching at R.B.H.S. 18 In late February, 2009, Mr Sud indicated through his legal representatives that he wished to return to teaching duties and was prepared to participate in the support program proposed last year.

Dr Lambert, regional director, wrote in late March, 2009 to Mr Sud's legal representatives, agreeing to that support program return. 19 Ms Ferguson wrote on 3 April, 2009 to Mr Sud advising him to return to R.B.H.S. on Monday, 6 April in order to resume teaching duties. 20 Mr Duncombe met with Mr Sud on 6 April and stated that he was aware that Mr Sud was willing to participate in an "improvement program". Mr Sud replied in the negative and said he was returning so as to perform normal duties. Mr Duncombe telephoned Louise Ferguson for clarification. Mr Sud produced Ms Ferguson's letter which said he was to "resume teaching duties". Mr Duncombe then provided Mr Sud with a copy of a plan for his reintroduction to the school, which included him observing the classes of Elizabeth Saxena, the casual teacher whose class he would eventually take. Mr Sud then said he felt unwell and would be taking a sick day. 21 Mr Sud was off sick for some time. 22 On 11 May, 2009, Mr Sud presented a letter to Mr Duncombe in which he indicated he would participate in an "Improvement Program" and then a "Formal Support Program" only after obtaining copies of complaints against him from students or parents. He also indicated he was medically fit to resume his teaching duties from Monday, 11 May, 2009. Mr Duncombe replied that Mr Sud would need to observe the classes he was going to take. Mr Sud refused. Mr Sud raised his complaint of 2008 and Mr Duncombe said the complaint had been finalised. Mr Sud was again asked to observe classes and he refused. 23 Later that day of 11 May, Mr Duncombe gave a letter to Mr Sud directing him to attend a meeting with Mr Duncombe on 13 May. Mr Sud advised he would not be attending the scheduled meeting. 24 On 12 May, Mr Sud attended the school and refused to participate in observing classes. 25 On 13 May, Mr Sud attended the school and refused to participate in observing classes. He did not attend the scheduled meeting with Mr Duncombe for that day. 26 Mr Sud was placed on alternate duties in the Bondi district office, commencing 18 May. There were issues raised by the respondent about his performance, or non-performance, whilst engaged at the Bondi office. 27 Ms Jane Thorpe, director (employee performance and conduct directorate) was given the task of reviewing material pertaining to Mr Sud. This material included an investigation report dated 14 August, 2009. Ms Thorpe's role included making decisions in relation to disciplinary action against teachers. 28 Ms Thorpe wrote to Mr Sud, by letter dated 24 September, advising that she had considered the investigation report and annexures. She was of the view that the allegations against Mr Sud were sustained and that they constituted misconduct. The allegations concerned, in part, his refusal to comply with directions. She advised Mr Sud she was considering taking disciplinary action. The severest penalty indicated was dismissal. 29 Mr Sud was provided with a copy of the material. He replied with a submission dated 3 November, 2009. 30 Ms Thorpe considered his response and the other material. She decided that Mr Sud should be dismissed. By letter of 13 November, 2009, Ms Thorpe advised Mr Sud he had engaged in misconduct and was dismissed. FINAL SUBMISSIONS

For the Applicant 31 Mr Newall provided a typed extensive outline of submissions to the Commission. In summary, Mr Newall made the following points:

(a) the applicant was summarily dismissed on 13 November, 2009, for serious and wilful misconduct. (b) the basis of the summary dismissal was a finding by Ms Thorpe that the eight allegations made against the applicant had been proven. (c) the evidence showed that the procedure adopted by Ms Thorpe in her consideration of the eight allegations was procedurally flawed and substantively unfair. The allegations cannot be made out on the facts in large part. Where the facts can be made out, the applicant's conduct was not misconduct. (d) the onus of proof, for serious and wilful misconduct, shifts to the respondent: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84. (e) the standard of proof on the respondent is that of Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363. (f) in respect of some of the allegations, the respondent claims that the applicant failed to carry out directions given to him. Even if that is so, it is not the case that any refusal of a direction, even a lawful and reasonable direction, attracts or justifies a summary dismissal, or even dismissal. (g) the directions given to the applicant for allegations 1, 2 and 3 were wrongfully given to him. (h) for the respondent to justify summary dismissal, in respect of the applicant not following any lawful and reasonable direction, the respondent needs to show that the applicant's conduct was intended to repudiate the contract of employment. (i) the summary dismissal was harsh (too severe in all the circumstances); unreasonable (excessive); and unjust (unfair and undeserved): Parker v Capitol Painters (1996) 68 IR 100 at 104 (j) apart from the procedural and substantive matters going to the eight allegations, there is another issue, being a fundamental error by the respondent, as to unfair process. The applicant had agreed to participate in a support program (contra a teacher improvement program), arising out of issues raised about his teaching competence. However, contrary to the agreement between the parties about the applicant undertaking a support program, the respondent reneged on this agreement and placed the applicant on a teacher improvement program. The stark difference between the two programs is that there are no disciplinary consequences for the support program, which is the program the applicant agreed to undertake. (k) the applicant sought reinstatement or alternately, re-employment. No order was sought for the discretionary remedy of lost remuneration under section 89(3).

For the Respondent 32 Mr Britt provided a typed extensive outline of submissions to the Commission. He also responded orally to the Applicant's outline of submissions. In summary, he made the following points:

(a) concerns about the applicant's performance as a teacher were raised with him in 2008. The applicant failed to attend scheduled meetings on three occasions in 2008 to discuss these concerns.

(b) the applicant was directed to participate in a support program (allegations 1 to 3) but he refused.

(c) the applicant was then directed to attend a meeting with the school principal to commence a teacher improvement program (allegation 5). The Applicant was not prepared to participate in that program or would do so if it was on his own terms.

(d) the applicant had been dismissed for misconduct, as set out in eight allegations, which included the applicant's refusal to obey reasonable and lawful directions.

(e) the Teaching Services Act 1980 ("T.S. Act") has relevance in considering the applicant's conduct.

(f) section 5A of the T.S. Act sets out a requirement for "protection of children" from teachers whose performance is unsatisfactory.

(g) the applicant's conduct is misconduct as defined by section 93C of the T.S. Act.

(h) that misconduct was in breach of section 93H(2) of the T.S. Act and/or Regulation 5 of the Teaching Service Regulation 2007.

(i) in the alternate, the conduct was misconduct at common law.

(j) in the absence of Regulation 5, the applicant has an obligation to obey reasonable and lawful directions.

(k) the applicant's conduct evinced an intention not to be bound by his contract of employment.

(l) the respondent bore the onus to prove that the misconduct, as alleged, had occurred; but the applicant bore the onus to prove the dismissal was unfair (harsh, unjust or unreasonable).

(m) the applicant's reinstatement or re-deployment remedy was opposed.

CONSIDERATION 33 The applicant seeks an order for reinstatement or alternatively, re-employment and an order for continuity of employment. The applicant does not seek an order for lost remuneration. 34 The applicant's case, broadly, fell into two claims: (a) the respondent had reneged on an agreement to place the applicant on an informal support program; and (b) there were substantive and procedural flaws in the eight allegations of misconduct said by the respondent to have been found proven. 35 The Commission will deal with the first part of the applicant's case: the respondent had reneged on an agreement between the parties that the applicant undertake an informal support program and instead had placed the applicant on a teacher improvement program. The significance of this issue turns on the operation of T.S. Act which provides that disciplinary action (up to and including dismissal) can be taken against a teacher who has been placed on a teacher improvement program. The T.S. Act does not provide for any disciplinary action against a teacher who has only undertaken an informal support program. 36 The respondent's submission on this issue was that the applicant had been placed on a teacher improvement program by Mr Duncombe, the R.B.H.S. principal. This was evidenced by his letter of 13 October, 2008 to Mr Sud, which advised that Mr Sud was being placed on a "formal program of support in accordance with the Department's Teacher Improvement Program procedures". (Ex 5, p165) 37 The starting point for the applicant's case that the respondent had reneged on an agreement to place the applicant on an informal support program, is a certain letter from the applicant's legal representative to Dr Phil Lambert, Regional Director, Sydney, Department of Education and Training. (Ex 5, p045) 38 That letter says: "We act for Mr Sud and have previously corresponded with you on his behalf. As you are aware our client is currently on alternative duties at the Bondi Office of the Department. He now wishes to return to teaching duties at Randwick Boys High and is now prepared to participate in the support program that was proposed last year. Please advise when such program may commence."

What is to be noted about the above communication, is that the term "support program" is not qualified by either "formal" or "informal". Further, the support program being referred to is the one "that was proposed last year". This letter is dated 24 February, 2009, and so the support program being identified is one in 2008 and one that was proposed in 2008. 39 Dr Lambert responded by letter of 23 March, 2009: "I refer to your letter dated 24 February 2009 on behalf of your client, Mr Jitendra Sud, requesting that Mr Sud return to teaching duties at Randwick Boys' High School to participate in a support program. In response to your request, I wish to advise that Mr Sud will be given an opportunity to participate in a support program at Randwick Boys' High School. He is to report to the Principal, Mr Wayne Duncombe on 6 April 2009 at 9.30am to discuss the timeline for the implementation of the program. Please be advised that matters referred to the Employee Performance and Conduct Directorate for disciplinary action are still under investigation and Mr Sud will be advised of the outcome of the investigation as soon as possible." (Ex 5, p041)

It is to be noted that Dr Lambert is stating that the applicant can return to R.B.H.S. to participate in a support program. It is not stated whether this is a "formal" or "informal" support program. As well, the applicant is to report to Mr Duncombe, the school principal, on 6 April to discuss the implementation of the (support) program. Further, Dr Lambert has not taken issue with the legal representative's letter wherein it referred to the support program proposed last year (2008). 40 The Background part of this Decision shows that there were two support programs raised with the applicant during 2008: informal and formal. 41 The informal support program was raised firstly with the applicant arising out of concerns about his teaching performance. These concerns were raised in April, 2008. Mr Duncombe met with the applicant on 30 April and wrote to him on the same day, following the meeting. In that letter Mr Duncombe referred to the support program as an "informal period of support". (Ex 5, p247) At a follow up meeting of 2 May, the minutes show that Mr Duncombe: "Stressed again not a formal improvement program". (Ex 5, p239) And later in those minutes, Mr Duncombe states: "Informal and designed to support. May lead to formal improvement program". (p242) 42 Mr Duncombe's letter of 30 April (p247) states that the "period of informal support will last from Monday 5 until Friday, June 27, 2008". The agenda papers for the meeting of 30 April shows that the period of support is from 5 May to 27 June. (p249) This period of time for an informal support program is eight (8) weeks of duration. 43 The same agenda sets out the support to be provided to the applicant during this informal support program: " Specific Concerns: 1. Mr Sud's classroom performance has led to a number of students seeking to be removed from the class. 2. Some students have complained that they are being treated unfairly by Mr Sud. 3. Some parents have expressed concern regarding unfair treatment by Mr Sud. 4. A disproportionately high level of referrals to the Head Teacher may be an indicator that Mr Sud is experiencing difficulties with his management of student discipline. 5. Several teachers have expressed concern that Mr Sud is dismissing classes early, contributing to poor discipline. Support Strategies: 1. Principal, Deputy Principal (P Gard) and HT Mathematics to view classes of Mr Sud over Term 2 to observe and support him with strategies to ensure these standards are met. 2. Head Teacher Mathematics to monitor the nature and frequency of referrals from Mr Sud and to support him with strategies to manage classroom discipline effectively in the classroom. 2.2 Teachers plan, assess and report for effective learning. * Use a variety of assessment strategies to assess student learning. * Provide timely, effective and consistent oral and written feedback to students. Specific Concerns: 1. Mr Sud is not following Faculty policies in relation to the timely setting of assessment tasks and examinations. 2. Mr Sud is not following Faculty policies in relation to the timely marking of assessment tasks, nor Faculty policy in relation to the allocation of marking of assessment tasks. 3. Mr Sud is experiencing difficulty in completing Faculty requirements in relation to registration and the production of class lists. Support strategies: 1. Head Teacher to provide clear deadlines for Mr Sud in relation to requirements for assessment and to ensure that these are adhered to. 2. Head Teacher to reinforce Faculty task setting, marking and registration policies with Mr Sud and to ensure that clear deadlines are set and adhered to." 44 The three persons giving their support to this informal program are: Mr Duncombe (Principal), Ms Pat Gard (Deputy Principal) and Ms Robyn Crocker (Head Teacher, Mathematics). 45 The minutes of the 2 May meeting also record the applicant's concern about Ms Robyn Crocker observing his classes as part of the support program. He is happy to have any other head teacher or mathematics teacher to observe the classes. He is recorded as saying that Ms Crocker had shouted at him three time after last year's incident and she had told a student to come to her if the applicant said anything. (Ex 5, p241) Ms Crocker is one of the three teachers against whom the applicant had made complaints. The applicant advised that he will talk to his lawyer first before agreeing/deciding on lessons for observation. (p243) 46 From my reading of the agenda and the minutes of meetings, I conclude that Mr Duncombe, the school principal, has put together a thought out support program. It was to be structured around three teachers, who were to observe the applicant's classes and it was to take place over eight weeks. Mr Duncombe's letter of 30 April, 2008 to the applicant, shows that the observing of classes is not a passive role by the three teachers. There are four goals of concern identified in the letter and the strategies of support are set out, to deal with those goals. (p247) Clearly, this is a structured program of support, rather than an idea. It has a start date of Monday 5 May, which is only five days on from the letter of 30 April, that sets out the structured support program. 47 This informal support program did not take place because of the applicant's objection to Ms Robyn Crocker being associated with the support program, given his complaint against her. 48 The applicant took absence from school. Mr Duncombe received a letter on 6 June, 2008 from the applicant's solicitor. The letter stated that the applicant was prepared to accept Mr Duncombe's decision to impose a program of support. However, issue was taken with Mr Duncombe's decision to have Ms Crocker and Ms Gard provide the support to the applicant given his complaints against them. That decision was said to be untenable, unfair and created an apprehension of bias. Accordingly, confirmation was sought that those two teachers would not be in any way associated with the provision of support. (Ex 5, p218) 49 The applicant returned to work on 11 June, 2008. 50 From June to September, 2008, there were issues raised about the applicant's work performance. 51 On 13 October, 2008, Mr Duncombe wrote to the applicant requiring his attendance at a meeting. The purpose of the meeting was to "discuss the difficulties you are experiencing with your teaching and commence the implementation of a formal program of support in accordance with the Department's Teacher Improvement Program procedures…" (Ex 5, p163) 52 It is this letter of 13 October, 2008, that the respondent relies upon to say that the applicant had been placed on a teacher improvement program and which, under the T.S. Act, provides for disciplinary action, including dismissal, in the event of failing this formal program of support. 53 The various items of correspondence contained in Exhibit 5, show that the Teacher Improvement Program did not take place. More than that, the Teacher Improvement Program was not developed into a structured program of support - in contrast to the informal support program of May-June 2008. For example, Ms Louise Ferguson wrote the applicant by letter of 30 October, 2008, directing the applicant to attend a meeting with Mr Duncombe on 31 October in order "to develop a Teacher Improvement Program to support your teaching performance". (emphasis added) The letter went on to say that Ms Robyn Crocker would be attending the meeting "as she will be oversighting the implementation of the improvement program". (Ex 5, p151) The applicant stated he would refer this letter to his solicitor (p150) and he did not attend the meeting. (p149). He did not attend other meetings called by Duncombe and Ferguson in order "to develop" formal support program. Ms Louise Ferguson is the School Education Director - Botany Bay Region. 54 The applicant was written to by letter of 9 December, 2008. This letter from Dr Phil Lambert, Regional Director, Sydney referred to directions given by Mr Duncombe and Ms Ferguson to the applicant to attend meetings and his failure to obey those directions. The applicant's conduct was being referred to the Staff Efficiency and Conduct Team for consideration of disciplinary action. In the meantime, the applicant was directed not to report for duty at R.B.H.S. but to attend the Bondi Office for alternative work. (Ex 5, p125) 55 The applicant was still in the Bondi Office when his solicitor wrote the letter of 24 February, 2009, to Dr Phil Lambert and said that the applicant was "now prepared to participate in the support program that was proposed last year". As already stated, this letter did not specify "informal" or "formal" support program. Dr Lambert's response, as already stated, did not specify "informal" or "formal". 56 Having considered the evidence, the Commission concludes based on the reasoning set out below that the applicant's solicitor was referring to the "informal" support program. 57 Firstly, the informal support program was the one that the school principal had planned out with detail: goals, strategies, teachers observing the applicant's classes and taking place over an eight (8) week duration with a specified start and finish date. The applicant (along with his union representative) attended meetings with the school principal to discuss the planned out support program. 58 By contrast the applicant was advised by letter of the school principal's intention to implement a formal support program. There was no meeting(s) to discuss the intended support program - albeit because the applicant did not attend any scheduled meetings to discuss that program. But that non-attendance in itself also indicates that this formal support program could not have been the one being considered by the applicant's solicitor when the latter wrote that letter. The non-attendance meant there was no discussion surrounding the formal support program and therefore no knowledge for the applicant to impart to his solicitor. 59 Secondly, reference is made to the content of the formal support program. The solicitor's correspondence of 8 June 2008, (Ex5, p218). This letter has already been referred to in this Decision. This letter refers to the school principal's intention to implement a program of support for the applicant. The letter expresses concern at Ms Gard and Ms Crocker observing the applicant's classes given his complaints against them. The letter accordingly then raises the issue of apprehension of bias and says that Mr Duncombe's decision to implement the program is untenable and unfair. Notwithstanding those observations by the applicant's solicitor, he advises that his client is prepared to accept Mr Duncombe's decision to implement such an informal support program. 60 Given the solicitor's letter of such commentary about the informal support program, then this is evidence that this was the program (informal) being considered by the solicitor's letter of 24 February, 2010. 61 Thirdly, another reason for finding that the informal support program applies, is based on the concept of benefit of doubt in the context of disciplinary action (including the ultimate sanction against a teacher). Dr Lambert's letter of response of 23 March, 2009, did not specify that the support program would be formal or informal when responding to the applicant's solicitor. If Dr Lambert had specified a formal support program in that letter, then the applicant would have been on notice as to the possibility of disciplinary action, including the ultimate sanction. The Commission finds that it was unfair for the respondent to have taken the ultimate sanction of dismissal when the applicant had not been put on notice in that letter that a formal support program was to be imposed on the applicant with its attendant possibility of disciplinary action, including the ultimate sanction. 62 The Commission has come to the conclusion that the informal support program was the operative support program during 2008 and 2009. The result of the Commission reaching such a conclusion was summed up by Mr Britt (for the respondent) during final submissions. He said that the practical effect of such a finding "is that there is in fact no dismissal of the applicant." (Tr 13/05/10 - p25, line 6 to 17). That would be so, he said, because the decision of Ms Thorpe would then be ultra vires and void ab initio.

63 In finding that the informal support program was the operative program, it is not then necessary to consider the eight allegations relied upon by the respondent to summarily dismiss the applicant, given that the allegations arise out of the respondent's view that the applicant had been placed on a formal improvement program. 64 Having said that, the Commission will make observations about some of those allegations, given Mr Newall's submission that some of the allegations were procedurally flawed. The eight allegations are set out in different item of correspondence (Ex 5, p032 - 033). 65 Ms Jane Thorpe, Director, Employee Performance and Conduct, wrote to the applicant by letter dated 24 September 2009. Attached to that letter was her advice about the investigation outcome into the eight allegations. She said in that advice that she found the allegations sustained and that they constituted misconduct. 66 Ms Thorpe was cross-examined on her claim that the allegations had been sustained and constituted misconduct. 67 Allegation four against the applicant was that on 11 May 2009, he did not complete a revision paper for year 10, as requested by the head teacher, and at the end of the day he left a note on the head teacher's desk stating he would not be teaching the next day. Ms Thorpe said under cross-examination that this allegation constituted misconduct, but conceded that the leaving of a note did not constitute misconduct. 68 Under further cross-examination, Ms Thorpe agreed (having regard to the relevant material) that the head teacher had not told the applicant to complete the revision paper on 11 May. (Tr 07/05/10 - p85, line 31 to p91, line 15). 69 Accordingly, Ms Thorpe's finding that allegation four was sustained and constituted misconduct was not correct. 70 Allegation six was that the applicant did not on 18 May 2009, attend to the work left by Ms Sue Cran, School Education Director, Botany Bay. The basis for this allegation is a note made by Louise Ferguson, whose observation it was that the applicant had not attended to the work left by Sue Cran. 71 Under cross-examination, Ms Thorpe agreed that she had not caused anyone to make enquiries of Ms Cran as to whether Ms Cran had any criticism of the applicant for allegedly not attending to the work on 18 May or whether it was important or not if the work was not done on 18 May. (Tr 07/05/10 p102, line 42 to p103, line 48) 72 Ms Sue Cran gave evidence, which was that she had an expectation that the work she gave the applicant, via Ms Ferguson, would have been started on 18 May but not completed. She said the work was contained in two folders which were about one to one and a half centimetres thick. Ms Cran agreed that the work left for the applicant would require his reading it and trying to understand it, before the applicant put pen to paper (Tr 07/05/10 p56, line 19 to p60, line 30). 73 Ms Ferguson gave evidence. She conceded (contrary to her affidavit) that the applicant had not said to her, that he would not do the work allocated to him by Ms Cran, via Ms Ferguson, but had said, "No, I will talk to her tomorrow." (Tr 07/05/10 - p67, line 15 to p68, line 10) 74 All that Ms Thorpe had before her for this finding of misconduct, was a one line statement from Ms Ferguson that the work was not attended to by the applicant. But what does that mean? Ms Cran agreed that the work would require reading the order to understand - before putting pen to paper. Given that the allegation was said to be sustained and constituted a reason for summary dismissal, then why was Ms Cran not questioned by Ms Thorpe about this task allocation given by her (via Ferguson) to the applicant? Did Ms Cran ask the applicant about the work allocation as to what progress (attendance) he had made of this work allocation? Did she have a view that the alleged failure to attend to the work on 18 May, constituted misconduct? Ms Cran was not asked about allegation six by Ms Thorpe, just as the head teacher was not asked by Ms Thorpe about allegation four. 75 Allegation seven says "Action in relation to allegation 1 - 6 above have frustrated attempts by the Principal to address concerns regarding his efficiency which were originally identified on 14 October 2008". This allegation was found proven and constituted misconduct. However, on the face of it, this allegation is a summary of the previous six allegations with a fresh finding of misconduct. The applicant, it appears, has been found guilty for a second time for the previous six allegations. CONCLUSION 76 For the reasoning set out above, the Commission has concluded that the support program being referred to in the letter of 24 February 2009, written by the applicant's solicitor, is the structured, detailed informal support program proposed in 2008. The Commission has also found that it would be unfair for the respondent to have taken the ultimate sanction of dismissal when the applicant was not put on notice via Dr Lambert's letter of 23 March 2009, that the support program being put in that letter was the formal support program that attracted disciplinary action (including the ultimate sanction). 77 Given the above findings and having considered all of the evidence, the Commission concludes that the dismissal of the applicant was unfair. Specifically, the Commission finds that the dismissal of the applicant was unjust: Outboard World Trade Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 of 183. The dismissal was unjust because the applicant did not know that he had been placed on a formal support program, where his job was on the line. 78 Having considered all of the evidence, the Commission will issue orders for reinstatement, without loss of continuity of employment. 79 There will be no order made in favour of the applicant for lost remuneration, given the applicant's concession, made through his legal representative, that no such order would be sought. ORDERS The Commission hereby makes the following Orders:

(a) The applicant, Mr Jitendra Mohan Sud, is to be reinstated by the respondent, Director-General, New South Wales Department of Education and Training, to his former position as a school teacher of Randwick Boys High School, or such other school, as may be agreed between the parties. Failing agreement as to "such other school," then the order for reinstatement at Randwick Boys High School shall prevail.

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

(c) These Orders shall take effect within twenty-one (21) days from the date of this Decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.