Johnson Nsiah v Department of Education and Training

Education Legislation Amendment (Staff) Act 2006 LEGISLATION CITED: Teaching Service Regulation 2001 Industrial Relations Act 1996 Teaching Services Act 1980

CASES CITED: Pastrycooks Employees, Biscuitmakers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 35 IR 70 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

HEARING DATES: 13/06/06, 14/06/06, 15/06/06, 16/06/06, 19/06/06, 22/06/06, 23/06/06, 5/10/06

Mr N Dawson of counsel instructed by Ms P Potter, solicitor, McMahon Associates LEGAL REPRESENTATIVES: Mr S Benson of counsel instructed by Mr P Quinn, Senior Industrial Officer, Department of Education and Training

• 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Johnson Nsiah and Department of Education and Training

Application by Johnson Nsiah re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Mr Johnson Nsiah, the applicant, was appointed as a teacher of Geography, Society and Culture at Greystanes High School on 19 December 2003. He commenced teaching there on 27 January 2004. 2 He was placed on a teacher improvement programme on 5 April 2004 which ran for almost 10 weeks and ended with him being charged with a breach of discipline within the meaning of s 83(e) of the Teaching Services Act 1980. He was dismissed from the service effective 15 December 2005. 3 The breach of discipline with which he was charged was particularised in the following terms: ... while you were employed as a teacher at Greystanes High School during the period 5 April 2004 and 30 June 2004, you failed to competently and effectively teach in that you: (a) did not demonstrate competence in the delivery of individual lessons in accordance with school and faculty policy. (b) did not demonstrate effective classroom management in accordance with the school's behavioural management system: 'Effective Use of Class Time'. (c) did not demonstrate effective communication with the whole class. (d) did not establish and maintain appropriate standards of student work. 4 The applicant alleges that his dismissal involved the three elements of unfairness (harshness, injustice and unreasonableness) contemplated by Chapter 2 Part 6 of the Industrial Relations Act 1996 in that he was not afforded a "fair go". 5 In particular, it is alleged that the improvement programme upon which he was placed some two months after commencing work at Greystanes High School was developed in haste without proper consultation or negotiation with the applicant; that the programme was delivered incorrectly according to the respondent's own procedures for managing teachers who are experiencing difficulties with their teaching performance; that there was little or no support given to the applicant during the so-called support phase of the programme; that the applicant was unfairly assessed outside his area of training, experience and appointment (viz Geography and Society and Culture); that the applicant was not given copies of the school's policies until weeks 2 and 3 of the programme; that there was inadequate consideration given to the fact that the applicant is from a non-English speaking background and the impact of that upon the way in which students treated him and related to him was overlooked. 6 Absent successful conciliation, the matter proceeded to hearing in the course of which evidence was taken from the following witnesses: · Mr Johnson NSIAH, the applicant · Ms Janeen SILCOCK, who taught with the applicant at Bourke High School · Mr Christopher CROWLEY, History Teacher and Teacher's Federation Representative/support person at Greystanes High School · Mr David SILCOCK, Principal, Bourke High School · Mr Roger DAVIS, Relieving Principal, Greystanes High School · Mr Stephen SERGIS, head teacher, Human Society and Its Environment, (HSIE), Greystanes High School · Ms Helen GAMBLE, Emeritus Professor University of Wollongong and "prescribed officer" under the Teaching Service Act1980 · Mr Peter O'BRIEN, head teacher English with responsibility for Support Teacher Learning Assistance (STLA) programme · Ms Penelope STARR, head teacher Fort Street High School and independent improvement programme reviewer · Mr Thomas GARVEY, teacher, Mathematics, Greystanes High School · Mr Neville GIRARDIN, teacher HSIE Department, Greystanes High School · Ms Elizabeth ASANOVIC, head teacher Teaching and Learning, Greystanes High School · Ms Michelle WOOD, Deputy Principal, Greystanes High School · Ms Denise BURKE, the applicant's supervising teacher at Bourke High School 2000 to 2003 7 By way of background, the applicant was employed by the respondent in February 2001 as a teacher at Bourke High School. He holds a Bachelor of Arts degree from the University of Ghana, a Master of Arts from Massey University, New Zealand and a Diploma of Education from Flinders University in South Australia. 8 Prior to working for the respondent, the applicant taught in Ghana, Bhutan and New Zealand. In the material before the prescribed officer Ms Gamble for the purpose of disciplinary investigation (and now before the Commission) are references from the following persons who attest to the applicant's good reputation, standing and professional competence:- · Deputy Headmaster JOHNSON, Westlake Boys High School, Auckland, New Zealand · Acting Principal Br. McDONALD, Hato Petera College, Auckland, New Zealand · Deputy Principal HAURAKI, Broadwood Area School, Hokianga, New Zealand · Principal MULES, Broadwood Area School, Hokianga, New Zealand · Acting Deputy Principal LETT, Mt Roskill Grammar School, New Zealand · Resident Representative JONES, United Nations Development Programme, Bhutan · District Education Officer LHUNDUP, Haa District, Bhutan · Assistant Headmaster KOTEYE, Accra High School, Bhutan 9 There are also in the material and in the body of the evidence, generally positive observations about the time spent by the applicant at Bourke High School from 2001 to 2003 inclusive. I say generally positive because there was discussion at one stage during his time at Bourke High School about the possibility of placing the applicant on an improvement programme due to the difficulties he was experiencing with classroom management. After discussion with the school principal and the supervising head teacher, however, strategies were formulated and implemented which brought about the necessary improvement and nothing further was done about the applicant's placement on a programme at Bourke. In his time at Bourke, the applicant completed his probation and was certified as having demonstrated efficiency in teaching practice, satisfactory performance and professional growth, an achievement which on its face, appears at odds with the conclusions reached in mid-2004 at Greystanes High School. 10 The applicant's appointment at Greystanes High School was formalised by letter of 19 December 2003 in these terms among others: You have been appointed to Greystanes High School as a Teacher - Geography, Society and Culture Please commence duty on 27 January 2004. 11 He visited his new school during the last two days of term 4, 2003 at which time he met Mr Sergis, head teacher of HSIE and was given a draft timetable which included a Year 11 Society and Culture class. The applicant complains that when he commenced duties on 27 January 2004, he was given a revised timetable which no longer included any senior classes but which did include 10 out of the 28 teaching periods in the role of Support Teacher Learning Assistance (STLA), a special education role in which he is said to have had no training. The applicant said he was given the choice of providing support in either English or Mathematics and chose the latter. Although there was a deal of forensic energy expended in testing the question whether the applicant was in some way improperly appointed to Greystanes High School or otherwise disadvantaged by being asked to fulfil the STLA role, I think the position can be fairly stated as being one which had little or no bearing on the overall assessment of the applicant's efficiency as a teacher. As Mr Benson submitted, correctly in my view, that whilst no doubt most teachers would prefer to be allocated subjects in their core teaching area, the needs of the school may require otherwise and it is open to those in charge of the particular school to assign such duties to members of the teaching staff as thought fit. (see for example Clause 7 - Scope of Duties of the Teaching Service Regulation 2001). Having regard to that, I do not see a proper basis for concluding as Mr Dawson argues, that the requirement for the applicant to teach outside his core subject areas amounts to a breach of the relevant award. 12 The applicant in any event, was no stranger to assisting students with learning difficulties if one looks at the references in relation to his work as a teacher in New Zealand. Mr Benson further submits and I think the evidence makes it clear that the concerns raised regarding the applicant's efficiency did not relate to his knowledge of subject matter that he taught but rather to his teaching skills. I do not consider, on balance, that there was any impropriety or breach of the award in the allocation of teaching duties to the applicant at Greystanes High School and nor did the duties allocated bear upon the process of assessing the applicant's teaching skills. 13 The applicant next complained that his placement on an improvement programme approximately eight weeks after he commenced teaching at Greystanes High School and in the circumstances he was given very little formal induction other than being given school booklets (Beginning Teachers Handbook 2004 and General Information for Teachers and Students 2004) placed an added burden on him in meeting programme expectations. 14 The evidence, however, makes it clear that whilst the school had a formal induction programme for beginning teachers and for teachers new to the school such as the applicant, participation in the programme was compulsory for beginning teachers and optional for more experienced teachers (such as the applicant) transferring from other schools. Nonetheless, the applicant was invited to participate in the induction programme if he wished and was free to pick and choose and attend those sessions which he felt might be of benefit to him after having had the programme explained to him. When one looks at the booklets and the fact that the applicant was invited to attend induction sessions of relevance to him, it would be wrong in my opinion to conclude as the applicant contended, the he was given little formal induction. Further to that, Mr Davis said and I accept, that after he was approached by Mr Sergis with concerns about the applicant, he conducted an individual session with the applicant focussing on classroom discipline and behaviour management in the process of which he provided supporting literature entitled 'Planning Points to Consider' to the applicant. 15 The applicant next complains that his placement on the teacher improvement was not preceded as it should have been, by any written warning about deficiencies in his work. The applicant does not dispute, however, that he was spoken to on various occasions throughout term 1, 2004 by his supervising head teacher Mr Sergis. Mr Sergis had visited the applicant's classroom or observed him during excursions on six occasions throughout term 1 and had formed the view that there were continuing difficulties. For that reason and in the absence of any discernible improvement after informal guidance, Mr Sergis took his concerns to the school principal. 16 I am inclined on balance, to think that such informal guidance in circumstances where a teacher is identified was experiencing difficulties is not conducive to the issuing of formal written warnings about possible termination of employment and I accept and agree with the respondent's submission in that regard. Conversely it is difficult to accept as the applicant contends, that he did not take Mr Sergis discussions with him as in any way a criticism of his teaching performance. 17 It is further the case, as the evidence reveals, that it is incumbent upon the school principal to implement procedures for managing teachers experiencing difficulties once such difficulties are identified. Those procedures set out in their written terms both the principles underpinning them and the possibility of dismissal in the event of an adverse assessment of the programme participant. 18 Notably, the basic principles underpinning the respondent's commitment to ensuring teacher efficiency are expressed as follows: · Students have a right to be taught by competent teachers · Teachers are responsible for performing their duties efficiently and competently · Principals are responsible for dealing promptly and fairly with teachers who are experiencing difficulties with their teaching performance. · Teachers have a right to support throughout these procedures. · The school is the most effective environment in which to foster teacher improvement. · The Department of Education and Training has a responsibility to provide appropriate support and take appropriate action, including dismissal, when it is evident that a teacher's performance has failed to improve following the implementation of an improvement programme. · Once a teacher has been placed on an improvement programme it is in the interest of all parties that the matter be resolved in accordance with the principles, responsibilities, procedures and timelines in this document. (emphasis added)

19 To the extent that the above principles and the procedures for managing teachers who are experiencing difficulties hold out to such teachers the clear possibility of dismissal, I do not think the respondent failed in its obligation to properly warn the applicant of the consequences of failure to improve. 20 The applicant next complains that contrary to the published procedures there was no negotiation with the applicant when it came to the formulation and documentation of the improvement programme. As the respondent is quick to point out, however, negotiation is an interactive process and there is no evidence that the applicant was precluded from engaging in negotiation let alone that he sought to make use of the dispute resolution mechanism within the procedures after unsuccessfully advancing a proposal or proposals for modification of the programme. I cannot see a proper basis for concluding that the applicant was denied his rights in this regard particularly when it is remembered that he was at all times accompanied by elected Teachers Federation representative Mr Crowley as his support person. 21 When taken to the matter in cross-examination, Mr Crowley said this:- Q. But there was, was there not, feedback by Mr Nsiah? A. There was a meeting originally to look at the programme that they proposed. We went through it at the time. I remember I would have made some suggestions. Mr Nsiah would have made some suggestions as well. And then I think it was to be brought back to another meeting, but I can't recall the date, and then it was agreed to how it would proceed from there. Q. And Mr Nsiah signed off? A. Yes. Q. And it was a negotiated improvement programme? A. Yes.

It is also the case that the applicant acknowledged in a Notification to the District Superintendent and Personnel Directorate form which he signed on 30 March 2004, that an improvement programme was being negotiated and implemented and whilst one might readily accept given that a decision had been made to place the applicant on an improvement programme, that the scope for negotiation may have been perceived as somewhat limited, it is nonetheless the case that the respondent was entitled to take the applicant's lack of demur if not acquiescence as an indication that he accepted that the obligation to negotiate had been discharged. I note further in respect of this point, the evidence of deputy principal Davis who said: On the following day, 1 April 2004, I recall that I met with Mr Sergis, Mr Nsiah and Mr Crowley to negotiate the contents of an improvement programme for Mr Nsiah. I recall that the meeting occurred over two periods and had to be adjourned to the following day because it was still not complete. On 2 April there was a further meeting between myself, Mr Sergis, Mr Nsiah and Mr Crowley where the negotiated programme was finalised. It was my understanding that there was acceptance of the contents of that negotiated programme by Mr Nsiah at the time. Shortly after that programme was settled I recall an initial time line was developed to give some structure to the implementation programme. 22 As to whether the improvement programme afforded the applicant his right to support is a question upon which minds may differ because plainly the support such as it was, proved arguably inadequate in the final analysis. The applicant would otherwise have met the stated objectives of the improvement programme. That it not say, however, that there was no support provided because as the eight page improvement programme sets out, there were specific support measures prescribed for each of the identified areas of teaching performance requiring improvement. Whether the support provided lacked professional support or support of a type other than that which was provided, as the applicant contends, involves a degree of speculation as to what if any different outcome there may have been. 23 The evidence simply does not enable a conclusion in that regard beyond a form of unverifiable assumption and certainly, if Mr Crowley had felt the applicant needed more or different support, there was ample opportunity for him to voice those concerns at the appropriate time namely, during the programme. 24 The applicant next complains that the improvement programme was deficient in that it was structured by Mr Sergis in three stages, namely, support, diagnosis and assessment rather than (as the procedures required) two stages namely support/diagnosis and assessment. Notwithstanding, as Mr Dawson correctly observes, there were elements of confusion among the various witnesses as to how the programme should have been structured, it was as the respondent submitted a programme settled with the applicant before it was implemented and it was a programme which contained each of the necessary components. It would be wrong to conclude as I am disposed that the programme was in some way compromised by delivering an allegedly truncated support component separately from the diagnosis component. To the contrary, the evidence suggests for example that support for the applicant continued beyond the designated initial phase of the programme and into the assessment phase thus providing the applicant with more rather than less support than was theoretically intended. 25 As to whether the applicant was disadvantaged by not having a mentor appointed to assist him from the time he commenced at Greystanes High School, there seems little in the evidence to support such a proposition given that the applicant could have but opted not to avail himself of that opportunity as part of the induction process for new and beginning teachers. (see [14]). In any event, a mentor was appointed to assist him as one of the elements of support in the improvement programme and the applicant agreed when asked that the mentor was helpful to him. I am not persuaded that the applicant was disadvantaged in this regard. 26 In the case of policy documents going to areas such as classroom management in which he was thought to be underperforming, it can be accepted theoretically that the applicant would have been best served by being provided with relevant documents at the earliest practicable time. As the respondent submits, however, and as earlier observed the applicant was provided with comprehensive school publications upon arrival at the school in January 2004 and those publications included by way of policy guidance, the school rules, a chapter on making a behaviour plan, the establishment of a constant classroom management style and the setting of classroom rules. He was also given as I have accepted, supporting literature entitled 'Planning Points to Consider' at the time relieving principal Mr Davis conducted an individual session with him focussing on classroom discipline and behaviour management. It is therefore wrong to suggest as the applicant impliedly does, that the provision of relevant supporting literature did not take place until term 2 of 2004 by which time he had commenced the improvement programme and even if that were the case, it does not follow in my opinion, that the literature he was given during the programme was of no intrinsic value to him. 27 The applicant submits that he was disadvantaged by the fact that the support strategy of affording him relief from face-to-face teaching was not implemented until week 5 of the improvement programme and there is evidence in the form of his written comments on the weekly review meeting reports indicating his concerns in this regard as the programme progressed. The respondent concedes that ideally the five release days eventually provided to the applicant for the purpose among others, of observing other teachers work, might have been provided earlier than they were. The respondent submits, however, that there is no sufficient evidence upon which a conclusion might rest that the timing of the provision of release days impacted adversely on the assessment of the applicant's teaching skills at the end of the programme. On balance, I am inclined to agree. 28 Now, much was made in the applicant's case of the fact that Mr Sergis the programme leader as well as the applicant's supervising head teacher, allegedly offered only constant negative feedback to the applicant and was constantly critical of his performance during weekly review meetings. This proposition is strenuously resisted by the respondent who points to the evidence which establishes among other things, that Mr Sergis provided support in seeking to assist the applicant in the following ways: (a) Mr Sergis prepared the first draft improvement programme to form the basis of negotiations to assist the applicant; (b) During the programme Mr Sergis chaired the weekly review meetings; (c) Mr Sergis personally conducted seven formal lesson observations during the support and diagnosis phase of the programme. (d) Mr Sergis prepared written lesson observation check lists in respect of each of the lessons he observed (giving his professional feedback on what he observed and constructive comments on how the applicant could improve his skills); (e) Mr Sergis also gave oral feedback on those lesson observations at the weekly review meetings as well as giving feedback on observations carried out by a small number of other teachers; (f) To assist with lesson delivery, Mr Sergis gave the applicant notes on differing types of questioning techniques to assist lesson delivery; (g) After conducting a lesson observation Mr Sergis used his personal time at night to type up those lesson observations and put them in a form that would be meaningful and useful to the applicant: Mr Sergis spent many hours in the staff room, to use Mr Asanovic's language "trying to provide assistance" to the applicant (h) Mr Crowley also testified that he observed the applicant seek advice from Mr Sergis with no suggestion that advice was not readily given. Mr Sergis also regularly liaised with Mr Crowley (as the applicant's support person) about the programme who led Mr Sergis to believe Mr Crowley was comfortable with the way the programme was being implemented. 29 The respondent argues that if the applicant had been concerned about the level of assistance being provided to him by Mr Sergis he had a responsibility to raise those concerns during the programme so that they could be addressed and that a perusal of the forms entitled "Teachers Comment on Formal Review Meeting" shows the applicant rarely made any comment. 30 Further and as to the adequacy of feedback during the course of the programme the applicant contends that he was disadvantaged by not being spoken to directly by a number of teachers who observed his lessons and conversely, the feedback he was given was negative and unhelpful. He did not make this complaint directly or through his support person at any time throughout the programme and as the respondent continues to emphasise, the programme is an interactive process which is designed to facilitate such discussion. It cannot therefore be criticised or impugned as a process because in this case, the applicant did not take the opportunity he was given to express any such concerns. In saying that I am mindful of the fact that the process is a stressful one for all concerned especially the applicant and allowances must be made in that regard for a certain reticence on his part. 31 For all of that, however, the applicant was assisted by a support person in Mr Crowley who is a seasoned Teachers Federation representative of many years standing and perhaps unlike the applicant who presented with a quiet demeanour in the witness box, I sensed no inability on Mr Crowley's part to make his point of view known and understood. 32 Further to that and again as the respondent correctly submits in my view, the proposition that the applicant was not given proper or adequate feedback because he was not spoken to directly by each lesson observer either during or straight after the lesson needs to be considered in the overall context of what actually occurred throughout the programme. 33 As Mr Sergis said in cross-examination, there were practical considerations which applied in that regard as follows: DAWSON: Q. Best practice for Mr Nsiah would be to hear from the person who wrote the notes, would that be right? A. In some cases it wasn't quite possible. In some cases the observer may have wanted to go home and tidy up the observation notes so they were more clear. In many cases when I did my observations, for example, I would need to go home that night to be able to type them up so that I could put them into a form that would be meaningful and useful to Mr Nsiah. 34 Further and as the evidence revealed, a written lesson observation report was prepared and submitted in respect of every lesson observed. Those reports were provided to the applicant and discussed at the weekly review meetings. Of the twelve lesson observations which took place in the non-assessment phase of the programme, seven were conducted by Mr Sergis and one by Mr O'Brien both of whom attended the weekly review meetings and gave direct oral feedback to the applicant. 35 Two lessons were observed by Mr Garvey whose evidence was that he discussed both lessons directly with the applicant as well as completing written observation reports. He said some of his comments were made as the lesson progressed and some were made at the end of or after the lesson. 36 The remaining two lessons in the non-assessment phase of the programme were observed by Ms Asanovic in one case and Mr Girardin in the other. Neither spoke directly to the applicant but both reported to Mr Sergis on the understanding that he would speak to the applicant. Ms Asanovic said she saw Mr Sergis spending many hours trying to provide assistance to the applicant including giving feedback on lessons he (Mr Sergis) had observed or which had been observed by others. Neither Ms Asanovic nor Mr Girardin were approached by the applicant to discuss their observations notwithstanding that they shared the same staff room at all material times. 37 In the assessment phase of the programme, deputy principal Mrs Wood observed two lessons conducted by the applicant. She attended a review meeting after the first observation and gave the applicant oral feedback in addition to her written report. The second observation which took place the day after that review meeting (and it may be assumed whilst Mrs Wood's comments were still fresh in the applicant's mind) was the subject of a handwritten observation report which was prepared by Mrs Wood in considerable length and detail. I do not think in the light of that evidence that it can be fairly said that there is any objective basis for the proposition that there was a lack of proper feedback. To the contrary and although the outcome was not as the applicant might have wished, it seems to me that all reasonable efforts were made in doubtlessly difficult circumstances, to keep the applicant progressively informed. 38 The applicant next complains if I understand the submission correctly, that those required to observe and comment upon his efficiency as a teacher were not properly instructed in and may have ventured to a greater or lesser extent, beyond the four identified areas of concern in their commentary. The examples relied upon by the applicant in support of that proposition are those of Ms Asanovic and Mr Garvey but the plain fact is that both were given and more importantly, used the "pro forma" observation check list prepared by Mr Sergis in his role as programme leader. To the extent that neither Mr Garvey nor Ms Asanovic may have considered themselves strictly limited to the identified areas of concern, it is nonetheless the case that the "check lists" provided to them by Mr Sergis precisely identified the areas of concern and in completing the "check lists" both Mr Garvey and Ms Asanovic clearly turned their minds to and commented upon the applicant's performance in that regard. I do not consider any comment beyond the identified areas of concern to be other than marginal, as Mr Benson described it, and it was not such as to undermine the process. As the following extract from Mr Garvey's evidence indicates and again as Mr Benson submitted, the oral feedback given to the applicant by Mr Garvey was on point in any event: Q. That is why you say in paragraph 9 that you had those discussions with Mr Nsiah? A. Yes. Q. A I think you say you attempted to impress upon him the need to improve his classroom management skills? A. Yes I think the classroom management skills were a great source of concern as was the amount of work he was putting in front of the students during those lessons. 39 As to the allegedly constant criticism and its demoralising effect on the applicant, it can be accepted I think that repeated criticism of his teaching performance could hardly be calculated to lift the applicant's spirits but neither can that be said to be a primary objective of the programme. Put another way, the respondent would be equally open to criticism if it observed but failed to identify deficiencies in that regard and this, as Mr Benson submits, is the practical dilemma which confronted the applicant and other programme participants in the wake of a perceived failure to improve. 40 Mr Sergis described it this way: To the extent that Mr Nsiah asserts that I was constantly critical of his performance during the weekly review meetings then I was doing no more than providing him with fair and objective feedback of not only what I observed but what was also being reported back from the observations of the other head teachers and teachers who were making observations of his teaching performance. Unfortunately, the failure of Mr Nsiah to deliver effective lessons meant that there were substantive failings in his teaching skills that needed to be brought to his attention so that he could address them. However, as is clear from a review of the documentation of the weekly review meetings and the lesson observations by the various staff members who carried out such observations little, if any, improvement occurred. It would have been misleading for me to have reported otherwise during the course of the improvement programme I was given no feedback from Mr Nsiah or from his support person that either regarded my behaviour as lacking professional support or assistance to him or being overly critical.

The following passage from the cross-examination of Mr Crowley is also instructive in terms of the balance and objectivity of the process: Q. Now, a number of different people were invited or requested to carry out classroom observations during the diagnostic and support phase? A. Yes Q. And they carried out those tasks and gave written feedback, to your knowledge, to the best of your knowledge, in a constructive way? A. Yes. Q. And an unbiased way? A. Yes. Q. Those reports were then discussed at the weekly meetings? A. Yes. Q. And there was the opportunity to discuss the issues that were identified? A. Yes, yes. 41 The applicant's further submission that he was "constantly being told what was wrong and nothing else" is vigorously resisted by the respondent and in my opinion, is against the evidence and the weight of it. As earlier observed, the evidence reveals that suggestions were made and literature provided to the applicant with the intention of assisting him to improve and it is hard to know what more could have objectively or reasonably been done in that regard. 42 As to whether the programme was inherently flawed by requiring the applicant to teach and be assessed on teaching lessons (Year 7 and Year 8 Maths) outside his key subject areas I note the applicant was assessed as satisfactory in one of the maths lessons and unsatisfactory in the other. It is further the case that he was assessed as unsatisfactory in each of the three lessons in his key subject area of geography. Against that, I note that the Year 8 class to whom the applicant delivered a history lesson on 21 June 2004 when assessed as unsatisfactory was a class which had been difficult for him to manage on two prior occasions throughout earlier phases of the programme and, it would seem, prior to the programme. 43 Whether deputy principal Mrs Wood should have been told of this so that she could somehow have taken it into account seems to me to be something of a moot point because no such advice was communicated to her and further, it is not clear from the evidence that her assessment would have been any different in terms of the final outcome if she had been so advised. She was after all, in a position of direct observation and able to make her own assessment of the class and the applicant's teaching performance on 21 June 2004.

44 It may well be and there is scope in the evidence for the assumption that it was expected of the applicant that he would do better with the class in any event. Certainly, this seems to have been the expectation of Mr Sergis who conducted the lesson observations of the Year 8 history class the two occasions earlier in the programme. I am not persuaded that the process thereby miscarried. Similarly, I find myself unable to accept the proposition for which Mr Dawson contends namely, that the programme should have been extended beyond its notional ten week duration in order to afford the applicant a further or better opportunity to improve. An extract of evidence given by relieving deputy principal Davis serves to explain and I accept the explanation why the discretion to extend the programme was not exercised: HIS HONOUR: Q. In your function of monitoring the programme, was there an option at any stage in the programme to extend it or modify it, or do something other than finalise it? A. At the end of the programme there is an option that that can occur. Q. And that would have been your call? A. That was my call. Because I took over as Relieving Principal at the end of Week 8 of Mr Nsiah's programme, so I was the Relieving Principal for the final two weeks of the programme. Q. And at that stage you were aware because you'd monitored the programme? A. That's correct. Q. That in the opinion of the assessors, there was little or no discernible improvement; is that right? A. That's correct. My decision was based on the fact that during the assessment period where Mr Nsiah was assessed formally by six lessons. The four lessons where Mr Nsiah taught on his own. As already stated they were team teaching, the four of those were actually taught on his own, and three of those was in geography, and one was history. All four of those was unsatisfactory. Q. May I take it that you gave consideration to whether the programme should be extended? A. I did. Look, I had the option at that time of extending the programme. Let me say Mr Nsiah is a genuine and a very nice man, and I had a lot of respect for his as a person, and it's a very very difficult decision to make as a principal when we have such a nice person who unfortunately just couldn't cut it as a teacher. And it was a very difficult decision I had to make. But I had to take into account the best interests of the welfare and the learning of the students at Greystanes High School, and when all four of those individual lessons that Mr Nsiah taught, and three of them in the chosen area of geography were all unsatisfactory, there was no room left for negotiation after that. Q. So does that answer imply at least you saw no benefit or potential benefit in extending the programme? A. When I read the reports from the meetings, when I read the lesson observation reports in the four key areas that were assessing Johnson, there was little or no improvement,. And when I - the teachers wrote very very lengthy minutes and observations of the lessons. Some of them were four pages long; very very detailed. And I spent a lot of time agonising over this, it wasn't an easy decision. As I said, especially when Mr Nsiah is such a nice man, to have to make that decision. But in my opinion as a principal at the time, there was no discernible improvement in those four key areas, and I didn't think that an extension of the programme was going to be in anybody's benefit. 45 As the foregoing analysis reveals, there is no basis in my opinion upon which to conclude that the applicant was denied a "fair go all round" in the administration of the improvement programme and it is to be noted that the programme outcome was, in accordance with procedure, then referred for independent review. The reviewers were selected and appointed from high schools other than Greystanes High School and as the material before the Commission reveals, they carried out a detailed and thorough examination of the improvement programme. It is fair to say, I think, that whilst numerous aspects of the programme were questioned and clarified by the reviewers and a number of concerns or imperfections thereby identified, the conclusion as to the applicant's inefficiency as a teacher was supported and affirmed. 46 The matter was then removed to the respondent's Staff Efficiency and Conduct Unit where disciplinary processes (including the appointment of Ms Gamble as prescribed officer) were implemented. Those processes, as observed at the outset, culminated in the applicant's dismissal on 15 December 2005. 47 Turning then to the essential questions to be decided here, the respondent accepts the onus of proving the disciplinary charge brought against the applicant (see Pastrycooks Employees, Biscuitmakers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 35 IR 70 at 83-4; Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464) and argues on the evidence presented that the Commission would be satisfied (as I am) as to the applicant's inefficiency as a teacher and hence as to the breach of discipline justifying dismissal. In that regard, the respondent points to the underlying principle or perhaps statement of public policy, set out in the procedures manual as follows: Teachers who fail to meet the required level of performance disadvantage the education and welfare of students and can impact on the work load and morale of colleagues. Action to improve efficiency is essential. This is a shared responsibility of the teacher, executive staff and the principal. If a teacher fails to respond adequately to a structured improvement programme the employment of that teacher may be terminated. 48 The respondent by way of supplementary submission also points to amendments to the Teaching Services Act 1980 which were enacted after evidence had been taken in these proceedings and which are said to bear upon the questions to be decided here. The amendments which came into effect by virtue of the Education Legislation Amendment (Staff) Act 2006 (No 24 of 2006) commenced by proclamation on 4 August 2006 and are relevantly expressed in the following terms: Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration: (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.

49 Mr Benson submits that the application the subject of these proceedings falls to be determined in accordance with the above provisions thus requiring the Commission to give paramountcy to the protection of children in deciding whether the dismissal of the applicant was harsh, unreasonable or unjust. It is submitted that the phrase "protection of children" extends to protecting or shielding students from incompetent or ineffective teachers. In the event that the scope of the operation of the above provisions was thought to be in any way ambiguous, the Commission would have regard by way of extrinsic material to the Second Reading Speech in which the following statement of the Hon. Carmel Tebbutt MLC, Minister for Education and Training, is to be found: As agencies responsible for the care and welfare of students the Department of Education and Training and TAFE have an obligation to protect the children and young people in their care from sexual, physical and emotional abuse and neglect and from other inappropriate conduct... For the first time express provision is made in these Acts for paramount consideration to be given to the importance of protecting children when dealing with staff disciplinary matters. Departmental decision-makers will need to give paramount consideration to the need to protect children when deciding how to deal with teachers and other staff who are subject to disciplinary action for misconduct or unsatisfactory performance . Courts reviewing disciplinary outcomes for TAFE teachers, school teachers and other people who work in schools, will also be required to give paramount consideration to the need to protect children when dealing with an appeal or other court action taken by an employee against any decision made by the department or TAFE in the disciplinary context. (emphasis added) 50 As to the amending legislation, Mr Dawson argues that it does no more or less than require the Commission to do what it has routinely done in the past when it comes to consider the reinstatement of dismissed teachers and to the extent that the legislation may require more it would only be that the Commission expressly acknowledge in the formulation of reasons for decision that there has been due regard to the paramount consideration of protecting children. It can be seen therefore, that the parties are ad idem as to the applicability of the amending legislation to the present proceedings if not its effect. 51 I am advised by counsel that the question has been raised in proceedings before the Full Bench which are as yet undecided and hence there is no authoritative guidance but be that as it may, I agree with Mr Dawson that the state of the evidence in this case, in particular the absence of evidence going to whether student results were or may be affected by being taught by Mr Nsiah, leaves the Commission in a difficult position when it comes to consider as a paramount consideration whether the protection of children was likely to be or would be compromised by allowing the applicant to continue to teach. I am under no illusion that this is a simple matter and it can be readily accepted, I think, as a general proposition, that incompetence and/or ineffectiveness on the part of the teacher has the potential to adversely affect the educational outcome of the student. 52 I have already concluded, imperfections though there may have been, that there was no overall lack of integrity or fairness giving rise to the findings of unsatisfactory teaching performance on the applicant's part at Greystanes High School. Acceptance of the respondent's proposition however, that such findings should be taken to apply to his teaching capabilities generally, or in schools other than Greystanes High School, would require evidence given on the applicant's behalf by those who knew him, supervised him and taught with him for three years at Bourke High School to be weighed in the balance. 53 Plainly the applicant passed muster at Bourke High School and on the evidence, he was a valued member of the teaching staff whose students enjoyed improved results under his tutelage. His time at Bourke High School, however, was not without difficulties and as earlier observed, consideration was given at one stage, to his placement on an improvement programme because of perceived shortcomings in classroom management and communication. 54 In the result, his teaching performance improved and it was not considered necessary to place him on a programme. I note that the applicant served his probation at Bourke and there obtained his teacher's certificate indicating among other things, competency as a teacher. I further note that there were differences between Bourke and Greystanes in terms of numbers of students per class with the former having fewer than the latter and it may be although the evidence does not permit a positive finding in this regard, that the applicant was better able to cope at Bourke because of this. According to the evidence of Bourke High School principal Silcock, the applicant was also provided with "significant teacher aide and Aboriginal Education Assist support' which, it may be inferred, was also of assistance to him in coping as he did. 55 Having weighed that evidence in the balance and given careful consideration to it, I am unable to conclude that the applicant's experience at Bourke High School is such as to limit or in some way qualify the outcome of the teacher improvement programme and in fairness to the applicant that experience and his reliance upon it to demonstrate an inconsistency with or a deficiency in the programme outcome, is not put as the high water mark in his case. It follows that the outcome of the programme and in turn the finding as to the applicant's competence as a teacher is relevantly unaffected by his earlier teaching experience. Conversely, it does not follow that the process by which the applicant was assessed as less than competent is flawed because he had not been so assessed at an earlier time in another place. 56 The finding as to the applicant's lack of competence as a teacher forms the basis of the breach of discipline with which he was charged under the Teaching Services Act and as earlier indicated, I am of the view that the respondent has discharged the onus it bears in that regard. In the circumstances and in particular, having regard to the paramount consideration of the protection of children, I am not persuaded that the applicant's dismissal was harsh, unreasonable or unjust. Accordingly, the application for relief is refused.

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