appellant. The decision under review was set aside. The Tribunal substituted a decision that Ms Yu's claimed injury was not the result of reasonable administrative action undertaken in a reasonable manner and...
Key principles
For the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Ms Yu's adjustment disorder was not excluded from the definition of 'injury' by s 5A(1), because...
The decision to initiate the Pathways to Improvement process was not shown to have an adequate evidentiary basis. The process was formal underperformance management with...
The Tribunal's merits-review task required it to make the correct or preferable decision on the evidence before it. In this review, deficiencies in contemporaneous records and...
Issues before the court
Did s 5A(1) exclude Ms Yu's adjustment disorder from the statutory definition of injury because it resulted from reasonable administrative action...
Were the relevant procedures for initiating and conducting Pathways to Improvement substantially complied with?
What was the significance of the evidentiary record and the parties' respective evidentiary positions?
Plain English Summary
The AAT found that Ms Yu's psychological injury was not excluded from workers compensation merely because it arose in connection with a workplace performance process. The process had to be reasonable both in substance and in the way it was carried out. The Tribunal found that the employer had not adequately documented the grounds for starting the process, followed the required steps, given Ms Yu fair notice and an opportunity to respond, or told her about review rights. It therefore set aside Comcare's decision to reject the claim on the reasonable-administrative-action exclusion and substituted a decision that Ms Yu was entitled to compensation for an injury with a deemed date of 4 March 2008.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,344 words · generated 02/10/2026
What happened
Jing Yu was a teacher at Belconnen High School in the ACT. She had worked in the Languages Other Than English faculty since 1996. As demand for Chinese-language classes declined, she was also assigned other teaching work, including Studies of Society and Environment (SOSE). The judgment records that she had raised concerns about her knowledge and training for SOSE, while the school’s management had concerns about aspects of her teaching and curriculum work [24]-[26].
What was the effect of the Tribunal's merits-review function?
Cited legislation
2 cited instruments linked from this judgment.
The compensation issue was narrower than the full history of Ms Yu’s employment. At the hearing, the parties did not dispute that her employment significantly contributed to her adjustment disorder, or that the deemed injury date was 4 March 2008. The disputed question was whether that disorder was an “injury” under the Safety, Rehabilitation and Compensation Act 1988 (Cth), given the exclusion for injury resulting from reasonable administrative action undertaken in a reasonable manner [2]-[3].
Comcare had initially accepted the claim. After the ACT Department of Education and Training sought reconsideration, Comcare set aside its initial acceptance. Ms Yu applied to the AAT for review. Comcare argued that the Pathways to Improvement process was reasonable administrative action, carried out reasonably [1], [3].
Pathways to Improvement was part of the ACT public-school Professional Pathways system. It was described in the applicable material as an early-intervention process intended to support improvement. The Tribunal considered, however, that its essential character was formal management of underperformance, preceding possible disciplinary action and carrying potentially serious consequences [12]-[13]. That characterisation shaped the Tribunal’s view of the procedures and safeguards that mattered.
The Tribunal found serious gaps in how the process was initiated and carried out. It found that the principal had decided in November 2007 to place Ms Yu on the process without adequate consultation, documentation or written notice. The Tribunal was not satisfied that Ms Yu had been properly informed of the decision and its reasons before the February 2008 meeting [30], [33]-[34], [48]-[52].
At the meeting on 20 February 2008, various performance concerns were raised, including unit outlines, lesson programming, assessment, student management and classroom environment. The Tribunal found that those concerns were not adequately supported by prior records showing they had been raised with Ms Yu and discussed through the applicable procedures [36]-[38]. A plan was later delivered to her with a letter on 3 March, without a demonstrated prior opportunity to comment on the plan [40]-[43]. Ms Yu became distressed and attended her doctor the next day [40]. The Tribunal accepted the agreed deemed injury date of 4 March 2008 [2].
Why the court decided this way
The decision-maker was an AAT Member, not a court. The Member expressly distinguished merits review from appellate review: the Tribunal had to make the correct or preferable decision on the materials before it, standing in the shoes of the original decision-maker [4]. It therefore assessed the events and evidence afresh.
The Tribunal treated s 5A(1) as requiring two distinct inquiries: whether the administrative action itself was reasonable, and whether it was undertaken in a reasonable manner [8]. It described relevant considerations drawn from the cases cited in the reasons: the action must be lawful; there must be nothing untoward; fairness is relevant; the employee’s emotional state and psychological health matter; and reasonableness is judged objectively in the context and knowledge of those involved at the time [8].
The central factual and evaluative point was that the process could not be treated as an informal or inconsequential workplace conversation. The Tribunal said that Pathways to Improvement was a formal process for managing underperformance, with potential consequences for the teacher. It considered that procedures served not only to guide performance management, but also to protect against unfairness and arbitrary exercise of power [13].
Those procedures were detailed. The principal was to consider written documentation and other evidence after discussion with the supervisor, ensure that feedback had been given and that the teacher had an opportunity to respond, provide written notice of the decision and identified areas for improvement, and ensure that relevant documentation was available to the teacher. The Guidelines also contemplated a meeting, an opportunity for a support person, a negotiated plan and documented reviews [14]-[16].
The Tribunal found that these safeguards had not been adequately followed. The prior Professional Pathways reviews did not record many of the concerns later relied on to justify the process [27], [36]-[38]. The evidence did not establish that the principal had assessed sufficient performance documentation or consulted the relevant supervisor before deciding to initiate the process [48]-[50]. The Tribunal also found that Ms Yu was not adequately notified in writing of the decision and its reasons, was not given a fair opportunity to respond to the issues raised, and was not told of her right to seek review [51]-[55].
The inadequate records mattered in two ways. First, the Tribunal could not establish that required steps had occurred. Second, it considered that poor records themselves could produce contemporaneous unfairness and make later review difficult [22]-[23]. The reasons do not say that every procedural defect automatically makes administrative action unreasonable. Rather, they assess the combined departures against the formal character, purpose and consequences of this particular process [5], [45]-[56].
The Tribunal reached two related conclusions. It was not satisfied that the evidence established a reasonable basis for initiating Pathways to Improvement in the first place [45]. Even if the decision to initiate could have been reasonable, the manner in which the process was carried out was not reasonable [46]-[56]. Either way, the statutory exclusion was not made out.
Before and after state of the law
The judgment did not purport to create a new statutory test. It applied the reasonable-administrative-action exclusion in s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), alongside the statutory provisions concerning disease, deemed injury date and compensation identified in the decision and catchwords [2], [6]-[8].
The Tribunal’s account of the existing approach was that “reasonable” action and a “reasonable manner” are separate requirements. It drew relevant considerations from authorities listed in the reasons, including lawfulness, fairness, absence of anything untoward, psychological health and objective assessment in context [8]. Those authorities were cited for those propositions; the supplied judgment does not set out their full reasoning.
The decision’s practical contribution lies in its application to a formal workplace performance process. The Tribunal rejected the idea that broad procedural sufficiency could excuse disregard of properly made procedures without examining the applicable agreement, guidelines and circumstances [4]-[5]. It also explained why procedural requirements mattered here: Pathways to Improvement was, in substance, a formal process connected to underperformance management and possible discipline [13].
After this decision, the specific result in Ms Yu’s review was that Comcare’s reconsideration decision was set aside and replaced with a decision that the injury was not excluded by s 5A(1) [57]. The judgment does not establish that every departure from a workplace policy will invalidate a decision or defeat the statutory exclusion. It emphasises that the degree and significance of compliance depend on the text, purpose and context of the procedures and the facts found [5].
The supplied judgment contains no later decisions applying, distinguishing or limiting this decision. It is therefore not possible, from this source alone, to describe how later courts or tribunals have treated it. Nor does the decision determine the separate policy question of whether Ms Yu could reasonably have been directed to teach SOSE; the Tribunal expressly left that question unresolved for lack of relevant policy documents and evidence [59]-[62].
Key passages with plain-English translation
At [4], the Member wrote: “The Tribunal reviews administrative decisions on the merits; it is not an appellate court.” In plain English, the AAT did not merely check whether Comcare had made a legal error. It reconsidered the case and made the decision it considered correct or preferable on the evidence before it.
At [5], the Tribunal accepted that the need for strict compliance or substantial conformity depends on the relevant provisions and context. It added that properly made procedures cannot simply be bypassed as a matter of convenience. In plain English, the Tribunal did not announce a universal rule that every procedural step must always be followed exactly. It required the decision-maker to take the applicable rules seriously and assessed the departures in context.
At [13], the Tribunal described Pathways to Improvement as a formal process for managing underperformance, even though it was framed as supportive. In plain English, the label “supportive” did not remove the need to recognise its real function and possible consequences. This was important to the Member’s conclusion that the relevant procedures and protections had to be followed carefully.
At [22], the Tribunal emphasised the importance of creating and retaining proper records about workplace administrative action. In plain English, documentation helps make a process fair when it happens and enables a tribunal to establish later what was decided, why it was decided, and what opportunity the employee had to respond.
At [45]-[46], the Tribunal found that initiation of the process was not established as reasonable and said the result would be unchanged even if that conclusion were wrong, because the manner of carrying out the action was also unreasonable. In plain English, the decision rested on two grounds: inadequate support for starting the process, and serious defects in how it was conducted.
At [57], the Tribunal set aside the review decision and substituted a decision that the injury did not result from reasonable administrative action undertaken in a reasonable manner. In plain English, Comcare could not rely on that exclusion to overturn the initial acceptance of Ms Yu’s claim on the evidence presented at the AAT hearing.
What fact patterns trigger this precedent
The decision is most directly relevant to the kind of fact pattern it actually considered: a psychological injury connected with a formal workplace performance process, where the employer relies on the reasonable-administrative-action exclusion in s 5A(1) [2]-[3], [45]-[57].
Features that were material on these facts included:
A process that was formal in substance and potentially connected to disciplinary consequences, notwithstanding supportive language used to describe it [13].
Performance concerns raised at a formal meeting that were not adequately recorded in earlier performance reviews or other contemporaneous documents [27], [36]-[38].
A decision to initiate the process without adequate evidence that the principal had assessed documentation and consulted the supervisor as required by the applicable procedures [48]-[50].
Lack of written notice of the decision and reasons, and uncertainty about whether the employee had been adequately informed before the process began [30], [33]-[34], [51].
No established opportunity for the employee to respond to the specific concerns, and a plan provided without a demonstrated earlier opportunity to comment [40]-[43], [53].
Failure to inform the employee about internal review rights [54]-[55].
Poor contemporaneous records and uncertainty in witness evidence, which left the Tribunal unable to find that the process was reasonably supported and conducted [22]-[23].
These features should not be mistaken for a checklist that automatically determines every later case. The Tribunal said that the question of strict compliance or substantial conformity depends on the terms, purposes and context of the provisions and the facts [5]. A different statutory scheme, workplace procedure, evidentiary record or kind of administrative action may produce a different analysis. The judgment also did not decide whether the separate SOSE teaching direction was reasonable in Ms Yu’s case [59]-[62].
How later courts have treated it
The supplied judgment identifies no later court or tribunal treatment of Yu. It therefore provides no source-grounded basis to say that the decision has subsequently been followed, distinguished, approved, questioned or confined.
The cases named in the reasons are authorities that the Tribunal itself cited in 2010. They include Keen, Wu Shan Liang, Georges, Gilbert, Inglis, Radulovic, von Stieglitz and Xirakis. The Member cited them in discussing reasonableness, fairness, lawfulness and contextual assessment [3], [8]. They are not later treatment of Yu, and the supplied text does not establish any later relationship between those authorities and Yu.
For professional research purposes, the distinction matters: the judgment itself records its reasoning and result, but it cannot establish how the decision has been received in subsequent decisions. Any account of later treatment would require sources beyond the judgment supplied here.
Still-open questions
The Tribunal expressly left unresolved whether it was reasonable to require Ms Yu to teach SOSE. It lacked relevant policy documents and sufficient evidence to decide the policy question about whether Level 1 teachers were expected to teach subjects outside their specialisation [59]-[62]. It observed that support, training and time may be relevant where a teacher is directed to teach a subject in which they have little knowledge, but it did not make a final finding on whether the direction in this case was reasonable [61]-[62].
The Tribunal also did not determine with certainty whether sound reasons for initiating Pathways to Improvement existed. Its conclusion was that the evidence before it was insufficient to establish those reasons and the required process [56]. That is different from a positive finding that no performance concerns existed. The Member accepted that Ms Yu had experienced difficulty with aspects of SOSE teaching and the Every Chance to Learn policy, but found that the record did not adequately support initiation of formal underperformance action [45].
The decision does not specify a universal threshold for when a procedural departure becomes sufficiently serious to make administrative action unreasonable under s 5A(1). It instead says that the answer depends on the relevant procedures, their purposes and context, and the facts [5]. Questions about the statutory meaning of “reasonable administrative action” in other settings, or how the balance between procedural compliance and practical sufficiency applies elsewhere, are not answered comprehensively in this judgment.
Finally, the judgment does not report later judicial consideration. Its continuing significance beyond its own facts cannot be established from the supplied text alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
The decision under review is set aside and in place thereof the Tribunal decides that Ms Yu's claimed injury is not the result of reasonable administrative action undertaken in a reasonable manner. Ms Yu is entitled to compensation in relation to the injury with a deemed injury date of 4 March 2008.
Jing Yu is a teacher. In the course of her employment she was required to participate in school-based administrative processes. She suffered an adjustment reaction and claimed compensation. Initially, Comcare determined to accept her claim. Some time later the ACT Department of Education and Training asked Comcare to reconsider the determination and to grant an extension of time in which to submit additional information. This was done. Subsequently, Comcare decided to set aside the determination to accept liability for Ms Yu's claimed injury. Ms Yu is not happy with that decision and applied for review.
At the outset of the hearing I was informed that there is no dispute that Ms Yu's employment significantly contributed to cause the adjustment disorder, the 'disease',[1] Ms Yu claimed as an injury, and that the date of the injury is deemed to be 4 March 2008.[2] On the evidence before me these conclusions are correct, and I will proceed on that basis. The only issue in dispute is whether the disease is an 'injury'[3] for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
In Comcare's submission the disease is not an 'injury' because it is the result of 'reasonable administrative action undertaken in a reasonable manner' in respect of Ms Yu's employment. Comcare asserts that administrative actions taken in relation to Ms Yu's participation in a 'Pathways to Improvement' process were reasonable administrative actions and these actions were undertaken in a reasonable manner. In Comcare's submission the concept of reasonableness requires consideration of the overall context in which the particular actions are taken and it does not require strict compliance with every aspect of the applicable procedures and policies relating to the particular action. Relying on a passage from Kirby J's judgement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[4] Comcare says that it would be wrong to adopt a narrow approach, combing through the actions taken with a fine tooth-comb in order to find a procedural slip or omission; such particularity is not necessary or appropriate. The proper test in Comcare's submission is one of sufficiency: even though the particular actions may not strictly conform to the detailed policy or procedural requirements, and could have been better done, they will still be reasonable if they are sufficient to provide procedural fairness and natural justice to the subject party.
[17]
1. The principal/manager makes the decision regarding implementation of the Pathways to Improvement process after discussion with the supervisor and assessment of the written documentation and any other evidence.
The principal/manager must be satisfied that the teacher has received feedback from the supervisor and has had the opportunity to give feedback in return.
The principal/manager must also ensure that all documentation is in order and that the teacher has been provided with a copy. The principal should retain copies of all documentation pertaining to Pathways to Improvement_._
2. The principal/manager will inform the teacher personally that the Pathways to Improvement process is to be implemented. This decision should also be given to the teacher in writing and should include identified areas for improvement...
At this stage the principal/manager will inform the Organisation Capacity section in writing of the initiation of the Pathways to Improvement process. Complete Pathways to Improvement [Attachment 1: Pathways to Improvement Initial Report]...
3. The teacher will be invited by the principal/manager to provide written comments on the advice, including any reasons that may have contributed to the recent standard of work performance of the employee.
4. The principal/manager will convene a meeting and invite the teacher to have a support person present. The supervisor should also attend this meeting. The meeting will include discussions as to the indicators of improvement.
5. At this meeting, or very soon afterwards, a Pathways to Improvement Plan (...) will be negotiated between the principal/manager, the supervisor and the teacher and will include strategies to assist the teacher improve their professional performance.
...
An action and review timetable should be agreed at this meeting...
This meeting, including the Plan, should be clearly documented with a copy given to the teacher. It is most important that the teacher understands that this is NOT the first step in an underperformance action. It is a supportive, early intervention program put in place in order to assist the teacher improve their work performance and must be conducted in a sensitive, objective and fair manner.
[18]
The principal has overall responsibility for ensuring that the process is conducted in a professional, objective and fair manner.[26] If a teacher chooses to have a professional mentor to support and encourage them as part of Professional Pathways, the mentor does not undertake the role or the responsibilities of the supervisor.[27]
It is against this framework of policies, procedures and guidelines that the evidence concerning actions taken in Ms Yu's case must be considered in order to address the 'degrees of reasonableness' proposition put by Comcare.
[19]
At this point it is appropriate to make some comments about the evidence of witnesses who gave oral evidence and the state of the documentary evidence.
I found Ms Yu to be a witness of truth who gave her evidence in a forthright manner, without guile or obfuscation. No serious attack was made against Ms Yu's credit or the reliability of her evidence.
Ms Vaughan, a Level 1 French language teacher at Belconnen High School, gave oral evidence but experienced difficulty recalling key aspects of detail concerning the commencement of Ms Yu's Pathways to Improvement process in February 2008. This is perhaps understandable given the passage of time. It appears, however, that Ms Vaughan did not have the same difficulty recalling Ms Yu's alleged underperformance and her reluctance to participate in the Pathways to Improvement process. I note, too, that Ms Vaughan omitted to mention anything about her supervision of Ms Yu in the latter part of 2007 when she was questioned about her relationship (and an alleged conflict) with Ms Yu. It must be said, in fairness to Ms Vaughan, that this point was not squarely put to her. Nevertheless, because of her difficulty recalling relevant events, I am concerned about the extent to which Ms Vaughan's evidence may be relied upon. I do not reject her evidence but I will proceed carefully to consider the weight it is to be given on controversial points.
Ms Maguire, Principal of Belconnen High School at the relevant time, gave oral evidence. As will appear, there are inconsistencies in Ms Maguire's evidence concerning the commencement of Ms Yu's Pathways to Improvement process and the appointment of Ms Vaughan as a mentor.[28] These inconsistencies may be the result of the effluxion of time and the vagaries of memory; Ms Maguire was responsible for 60 teaching staff and 45 administrative staff at Belconnen High School, and since 2008 she has moved onto other employment at a senior level. She was also absent from Belconnen High School for a period in 2008, when Ms Bruce acted in her position as Principal. Whatever the reason, I am concerned about the reliability of Ms Maguire's evidence, and I will proceed carefully to consider the weight it is to be given on controversial points.
Lastly on this point, Ms Bruce (Deputy Principal), Mr Anderson (Level 2 teacher and Ms Yu's direct supervisor) and Mr Baker (Level 1 library teacher), too, experienced difficulty recalling precise details, concerning the dates and content of meetings for example. Much of Ms Bruce's evidence related to knowledge she obtained from Ms Maguire and others, as it appears that she was not directly involved in key aspects of this case concerning the decisions and processes leading to the initiation of Ms Yu's process. Mr Anderson gave his evidence in an open and forthright manner, without apparent favour for or against Ms Yu, although it appears that he, too, was not involved in the initiation of Ms Yu's process. Mr Baker, too, gave his evidence in a straight-forward manner, but he was not involved directly in the initial implementation of Ms Yu's process.
[20]
"Keep up the good effort and strive to do better.
I will work with Ms Vaughan to develop the scope (range) and sequence of the Yr 7 & 8 Chinese course using ELAs. This will require much reading of the curriculum renew booklet relating to languages - Every Chance To Learn.
I will try to make some portfolios of work of students to trial evidence based learning. I will look at the ACTTAB results."
[21]
As can be seen, there is no record of Ms Yu's specific difficulties in relation to teaching SOSE recorded in the mid-cycle review. The same can be said of the Professional Pathways end-of-cycle 'Summative Review' on 22 November 2007.[31] As these documents form a significant part of the Professional Pathways performance processes applying to Ms Yu in 2007, it is surprising that no substantive issues concerning Ms Yu's specific difficulties teaching SOSE classes in 2007 are recorded. Additionally, as can be seen, the 'Summative Review' refers to issues concerning the Every Chance To Learn policy and the framework of ELAs in respect of Ms Yu's Chinese language classes and unit outlines. But no reference is made to performance issues or difficulties concerning Ms Yu's preparation of lesson plans, or her management of students in classes, or her participation in collegiate and faculty discussions, or in respect of complaints made about Ms Yu by students and parents, as alleged by Ms Maguire and Ms Bruce. I note in passing that no probative documentary evidence concerning any such complaints was adduced.
[22]
On Mr Anderson's evidence, he was absent on leave for a period in the latter part of 2007 and Ms Vaughan acted in his position as head of the LOTE and SOSE faculties. During this period Ms Vaughan was Ms Yu's direct supervisor. Mr Anderson stated that Ms Vaughan expressed "professional concerns" about Ms Yu's teaching practice and productivity on his return. In his view, concerns about Ms Yu's performance gestated under Ms Vaughan's supervision while he was absent, and it was this gestation that led to the formalisation of the subsequent Pathways to Improvement process. Whether that is correct or not remains unclear. The matter was not squarely put to Ms Vaughan and I make no such finding. Nevertheless, Mr Anderson's evidence is that the Pathways to Improvement initiative in respect of Ms Yu did not arise on his advice and he was not aware of it until February 2008, when Ms Maguire directed him to participate. I accept this evidence and so find.
It appears that on 29 November 2007, one week after completing her end-of-cycle Professional Pathways 'Summative Review' with Mr Anderson, Ms Yu commenced a period of long service leave that was approved by Ms Maguire. Ms Yu did not return to Belconnen High School until on or about 11 February 2008 - she was late returning because she suffered an injury while travelling in India.
Ms Maguire informed me in oral evidence that she decided that Ms Yu would be placed on a Pathways to Improvement process in November 2007. This evidence was not challenged and I accept it. Ms Maguire could not recall whether or not she had regard to any documents, including the Professional Pathways documents concerning Ms Yu in 2007, prior to making that decision. She did not discuss the matter with Ms Yu before the end of the 2007 school year, and she took no formal action at that time. It is clear from Mr Anderson's evidence that Ms Maguire did not discuss the matter with him at that time. In her statement in Exhibit R1, Ms Maguire states that she first raised the Pathways to Improvement process with Ms Yu "on her return from China in 2007". But there is no evidence to corroborate this. To my mind, Ms Maguire's decision was made in a manner that did not conform to the procedures set out in the Collective Agreement and the Guidelines. I so find. Furthermore, there is no evidence that Ms Maguire formally notified Ms Yu in writing of her decision and the reasons for it in November 2007 or in February 2008. Once again, this failure does not accord with the specified procedures and Ms Yu was denied procedural fairness as a result.
[23]
"I have asked Ms Yu continually if she was clear about the Pathways to Improvement process and why we needed to go down this path. Ms Yu was clear about the process but initially declined to participate in the process. She was counselled about what the consequences could be and took some time to think overnight. She returned the next day and told me she had determined to try but declined to offer the name of a peer for her [Pathways to Improvement] panel. Consequently I appointed a LOTE/SOSE teacher to the panel."[36]
[24]
In her statement dated 4 March 2010 Ms Maguire stated:
[25]
"2.41 When the Applicant's PIP [Pathways to Improvement process] began, I gave her numerous opportunities to choose a support person herself for the PIP panel. She never acted on this.
2.42 I eventually chose Ms Vaughan as the Applicant's support person because Ms Vaughan was also a Level 1 LOTE/SOSE teacher and could therefore best understand the Applicant's needs and provide support accordingly. Historically Ms Vaughan had always been supportive of the Applicant and genuinely interested in helping. They also shared the same staffroom. I felt she was an ideal choice for the panel."
[26]
These accounts suggest an extensive consultative process that resulted in Ms Maguire appointing Ms Vaughan to Ms Yu's Pathways to Improvement panel. But that is not supported by documentary evidence and it is not consistent with the facts arising from the whole of the evidence. I am reasonably satisfied that the meeting on 20 February 2008 was the first formal meeting concerning Ms Yu's Pathways to Improvement process. It is abundantly clear to me that Ms Maguire appointed Ms Vaughan to Ms Yu's panel prior to the meeting and that during the meeting she invited Ms Yu to respond, allowing her time to think about it overnight. Ms Maguire's notes of that meeting clearly refer to Mr Anderson and Ms Vaughan as Ms Yu's Pathways to Improvement panel members; Ms Vaughan is described as Ms Yu's "chosen mentor" - "at this stage [Ms Yu] has not wanted to chose [sic] a mentor so I have chosen Sonja Vaughan".[37] As I have said, I have some concerns about the reliability of Ms Maguire's evidence. To my mind, it is probable that Ms Maguire did not formally or 'continually' consult Ms Yu about Pathways to Improvement processes, including the appointment of a panel, or about the purpose of the meeting on 20 February 2008 in the period from 11 February to 19 February 2008. Nor is it established that Ms Maguire gave Ms Yu 'numerous opportunities' to choose a support person, or that she 'eventually chose Ms Vaughan'. Even if a conversation about these matters did take place with Ms Yu on or before 19 February 2008, and I am not persuaded that it did, on Ms Maguire's evidence, the conversation may have been casual in character, or in passing, and no record was made or kept. Once again, this is not consistent with the procedures specified in the Collective Agreement and the Guidelines: written notification is required. The lack of proper documentation and Ms Maguire's failure to adhere to the proper procedures resulted in unfairness to Ms Yu and subsequently difficulty establishing the facts on review.
[27]
There is no evidence that an agenda for the meeting on 20 February 2008 was prepared and circulated in advance and no minutes were taken of the meeting. Once again, the lack of proper documentation is a matter of concern. Ms Maguire's notes of the meeting appear at T28 folios 207 and 208. I accept the evidence that these notes were written soon after the meeting and that they reflect, in general terms, the content of the meeting even though elements of detail remain in dispute. It is of concern that Ms Yu, Ms Vaughan and Mr Anderson could not recall being provided with copies of Ms Maguire's notes and gave evidence that they had not seen the notes previously. This, too, does not conform to the established procedures and gives rise to an issue of unfairness to Ms Yu.
It appears that matters discussed during the 20 February 2008 meeting included:
[28]
"issues around [Ms Yu's] performance as a teacher, including feedback given by her supervisor Warren Anderson, and Sonja Vaughan. Discussion was initially around outcomes for [Ms Yu] on a professional level and her students [sic] learning outcomes in 2007. Areas outlined were:
There are a number of things to say about this. Firstly, the areas outlined by Ms Maguire do not explicitly appear in any prior records concerning Ms Yu's performance that I have seen. There is only scant contemporaneous evidence of Ms Yu being engaged in discussions about these issues with Mr Anderson, in relation to the ELA framework for example. There is no documentary evidence that Ms Vaughan (when she was acting as Ms Yu's supervisor during Mr Anderson's absence in 2007), Ms Bruce or Ms Maguire engaged in any discussion with Ms Yu about these issues prior to 20 February 2008. The lack of documentary evidence, once again, means that the procedures set down in the Collective Agreement and the Guidelines were not adhered to. This, again, resulted in Ms Yu being denied procedural fairness. There is evidence, particularly that of Mr Anderson concerning Ms Yu's Professional Pathways Plan in 2007 and the implementation of changes as a result of the Every Chance To Learn policy, that it was necessary for Ms Yu to more clearly address the ELA framework in her Chinese language units and classes in 2007. Furthermore, it is very clear that from 2006 there were issues concerning Ms Yu teaching SOSE classes, especially in relation to her knowledge of the SOSE curriculum and course content. Thus, the basis for raising the areas outlined above as a formulation for discussion and inclusion in the Pathways to Improvement process is far from clear. There is not sufficient evidence for me to determine to the reasonable satisfaction standard that Ms Yu was aware of and consulted about performance issues in the areas Ms Maguire identified prior to the meeting on 20 February 2008. Of course, it is possible that she was. One may expect in a busy school environment that Ms Yu may have been involved in discussions about issues of curriculum, pedagogy and policy with other teachers in her faculty and with her supervisor, as well as with the school Principal and Deputy Principal, from time to time. But that is beside the point. There is a requirement for an appropriate degree of formality and proper documentation when raising issues of under-performance in a professional context in employment.
[31]
Furthermore, it is far from clear whether there was a substantial basis to the under-performance areas outlined by Ms Maguire in her notes. Ms Maguire, Ms Bruce, Mr Anderson and Mr Baker were questioned about these issues. The evidence of Ms Maguire and Ms Bruce is that Ms Yu's classes were associated with disruptive student behaviour and that she failed to actively participate in faculty discussions, especially in relation to curriculum and pedagogy. The evidence of Mr Anderson and Mr Baker is that issues concerning student behaviour increased generally in Belconnen High School over a period of years, and disruptive student behaviour in relation to classes was widespread and it was not just associated with Ms Yu's classes. Mr Baker gave evidence that Ms Yu taught some of the most difficult class groups in the school in 2007. Mr Anderson explained that Ms Yu has a long record as an effective teacher, including in relation to student behaviour, and that she is a quiet and thoughtful person who struggled with teaching SOSE classes and, to a lesser extent, experienced difficulty addressing the requirements of the Every Chance To Learn policy. His evidence points to Ms Vaughan gestating concerns about Ms Yu's performance and productivity in 2007, but, as I have said, this was not squarely put to Ms Vaughan. Nevertheless, even if there were substantial reasons underlying Ms Maguire's concern about Ms Yu's performance in 2007, there is insufficient probative evidence to establish that these concerns were properly raised and addressed in accordance with established procedures. As it appears to me they were not.
Finally on this point, Ms Yu alleged that there was conflict between herself and Ms Vaughan. But this is not established on the present evidence. Ms Vaughan's participation in the 20 February 2008 meeting was as a panel member, and as a support person and mentor for Ms Yu, appointed by Ms Maguire. There are questions concerning Ms Vaughan's role as a panel member and whether her relationship with Ms Yu was consistent with her appointment as a support person and mentor. Ms Vaughan had previously supervised Ms Yu and, on the evidence of Mr Anderson, harboured concerns about her performance and her productivity (although this point has not properly been tested). In February 2008, however, Ms Vaughan was a Level 1 French teacher who was employed at the same level as Ms Yu; she did not have a supervisory role in relation to Ms Yu at the time. Nevertheless, it is tolerably clear that Ms Vaughan perceived her role in two parts: mentoring and supervisory, of which, on her evidence, the latter was the greater part. Ms Vaughan gave evidence about the tension between her role as a mentor and supervisory aspects of her role as a member of Ms Yu's panel. This is consistent with the documentary evidence, such as it is, which suggests a focus on compliance with requirements in relation to performance issues, concerning lesson plans for example. On Ms Bruce's evidence it would not be appropriate for one teacher to exercise supervisory functions in a process in relation to another teacher at the same level. Ms Maguire's evidence that the process involves all panel members observing classes conducted by the teacher and providing feedback on performance does not address the point concerning Ms Vaughan's evidence concerning the supervisory aspects of her role in respect of Ms Yu's process. Nevertheless, Ms Maguire appointed Ms Vaughan to Ms Yu's panel prior to 20 February 2008 and Ms Vaughan was party to the discussion concerning Ms Yu's performance in 2007 during that meeting. I note that Ms Bruce did not attend the meeting on 20 February 2008 even though she, too, was appointed to chair Ms Yu's panel.
[32]
On that background, was Ms Yu's claimed injury the result of reasonable administrative action undertaken in a reasonable manner? I am satisfied that it was not. I am reasonably satisfied that the factors that significantly contributed to Ms Yu's claimed injury, being the service on her of the Pathways to Improvement Plan on 3 March 2008 and preceding but related events, were not within the meaning of 'reasonable administrative action' and they were not undertaken in a reasonable manner.
On the present evidence it is not established that the Pathways to Improvement process was a reasonable administrative action to take in respect of Ms Yu in early 2008. The Pathways to Improvement process and related procedures that are described in the various documents to which I have referred are, to my mind, anterior steps to the disciplinary processes that are set out in section E of the Collective Agreement. However the Pathways to Improvement process is represented, as I have said, it is a formal process for managing under-performance that is anterior to possible disciplinary action and carries potentially serious consequences the particular teacher. The underperformance issues that are said to have warranted initiation of the process in respect of Ms Yu are not made out on the evidence before me. One can accept that there were concerns about Ms Yu's ability or capacity to address the requirements of the Every Chance to Learn policy and the ELA framework, and that she experienced difficulty teaching SOSE classes. But the documentation is not sufficient to support the initiation of formal underperformance action in the form of the Pathways to Improvement process. For this reason I am reasonably satisfied that the administrative action of initiating this process in early 2008 was not reasonable.
Even if that is not correct, it does not change the outcome; the manner in which the administrative action was taken was also not reasonable.
As I have said, it is not established to the reasonable satisfaction standard that Ms Yu was properly apprised of issues concerning her performance and she was not given adequate opportunity to respond to the details of these issues prior to Ms Maguire's decision in November 2007 to institute a Pathways to Improvement process. To that extent she was denied procedural fairness. Even if these matters were discussed with her by Ms Maguire, Ms Bruce or Mr Anderson, no documentation was produced setting out the evidence concerning Ms Yu's alleged underperformance.
[33]
"9. Ms Yu claims that since 2005 the school has reduced the number of Chinese language classes from five to two and that she has been given SOSE classes despite not having 'teaching abilities' in the area. The school reports that over the last two years the number of students electing to study Chinese has decreased significantly. This may be in part due to the school offering two other languages which compete with Chinese for students. The school is also experiencing a decrease in enrolments for 2009 and needed to reconsider the number of courses offered. The school board has determined that in 2009 Chinese will no longer be offered. This is a legitimate management action.
Recommendation
The school board approves changes to curriculum options available to students. The decision to discontinue Chinese language is a legitimate management action and therefore no further action should be taken."[40]
[34]
As can be seen, Ms Harman's response does not address the second aspect of Ms Yu's complaint, concerning the requirement on her to teach SOSE classes, and it does not squarely address her assertions about the reduction in Chinese language classes from 2005 on the basis of evidence.
[35]
In the absence of relevant policy documents and evidence, I am not able to address the policy issue, other than to observe that the whole notion of teaching is predicated on the transfer of knowledge. It is difficult to understand how a person with little or no knowledge of a subject could reasonably be expected to teach that subject to high school students. But that is a matter for others with relevant knowledge and expertise to consider. Nevertheless, in this case, it appears that, on the one hand, the objective of the Every Chance To Learn policy is to improve student outcomes and, on the other hand, a policy requiring a teacher to teach a subject in which they have little or no knowledge may have the opposite effect.
Insofar as arrangements for a teacher with little knowledge of a subject to teach that subject are concerned, it appears to me reasonable for the particular teacher to be given support and guidance, if not formal training, in relation to the particular subject. While knowledge of pedagogy may enable a teacher to conduct a class in a new subject, it appears to me that unless the teacher has some relevant knowledge of the subject and the relevant curriculum it may not be reasonable to direct them to teach that subject. I accept Ms Bruce's evidence in that regard. In Ms Yu's case it appears that Mr Anderson provided guidance and support in relation to aspects of the SOSE curriculum in 2007 and 2008. Nevertheless, on the present evidence, this support did not extend to any allowance of extra time for Ms Yu to acquire additional relevant knowledge - she was required to continue with her full teaching load, as well as the additional requirements flowing from implementation of the Every Chance To Learn policy. There are three things to say about this. Firstly, if it is reasonable to direct a teacher with little or no knowledge of a subject to teach that subject and the direction is properly and fairly made, but the teacher refuses, that is a matter for discipline or transfer. Secondly, if the teacher accedes to the direction it is reasonable for him or her to expect sufficient support, including training and the allowance of time that is reasonably required to acquire the relevant knowledge; that is a matter for the school to address. Thirdly, if the teacher has been provided with sufficient support, but does not achieve the required level of performance within a reasonable time, then it may be appropriate to commence underperformance action. The present evidence is not sufficient to make any finding in relation to these points or to determine whether Ms Maguire's decision requiring Ms Yu to teach SOSE classes was reasonable. What can be said is that it appears likely that in Ms Yu's case the difficulty arose in relation to the second point - she was not provided with sufficient support, including training and time, in respect of SOSE teaching requirements, and she experienced progressive stress, distress and, ultimately, an injury that, otherwise, may have been avoided.
[36]
The decision under review is set aside and in place thereof the Tribunal decides that Ms Yu's claimed injury is not the result of reasonable administrative action undertaken in a reasonable manner, and she is entitled to compensation in relation to the injury with a deemed injury date of 4 March 2008.
Ms Yu represented herself and there are no orders for costs at this stage. Parties have 14 days in which to file submissions in relation to costs. If no submissions are received, no order will be made.
[37]
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
[28] See T15 folio 119, T28 folios 207 and 208, Exhibit R1 and oral evidence, for example.
Parties
Applicant/Plaintiff:
Keen
Respondent/Defendant:
Workers Rehabilitation and Compensation Corporation
Legislation Cited (2)
Rehabilitation and Compensation Act 1988
Sector Management Act 1994
Cases Cited (2)
(1998) 71 SASR 42
(1996) 185 CLR 259
AI Analysis
Outcomeappellant
Disposition:
The decision under review was set aside. The Tribunal substituted a decision that Ms Yu's claimed injury was not the result of reasonable administrative action undertaken in a reasonable manner and that she was entitled to compensation in relation to the injury, deemed to have occurred on 4 March 2008. No costs order was made at that stage; the parties were given 14 days to make submissions on costs.
While in general terms this principle may be accepted, one must carefully examine the relevant legislation and other applicable instruments and policy provisions, and the particular circumstances. Properly formulated procedural requirements cannot simply be by-passed or ignored as a matter of convenience. In this case the provisions of the Public Sector Management Act 1994 (ACT) (the ACT Act) and the ACT Department of Education and Training Teaching Staff Union Collective Agreement 2007-2009 (the Collective Agreement) have legal force and the relevant provisions and procedures must be complied with. This is not a matter of legal or technical nicety. The principles set out by Kirby J (and by the majority[5]) in Wu Shan Liang, were directed to curial appellate review and the reasons given by a tribunal in relation to a primary decision. To my mind, it is not correct to say that these principles, and what is said about different modes of expression, particularity and errors of law, provide a firm basis for the proposition that it is not necessary to comply with administrative procedures relating to underperformance in a person's employment; that, to my mind, is an error of parallax. Furthermore, the Tribunal reviews administrative decisions on the merits; it is not an appellate court. The Tribunal is required to make the correct or preferable decision on the materials that are before, proceeding de novo to make a fresh decision, standing in the shoes of the person who made the decision under review. The present task is one of merits review, at the heart of which lie events in the past; the decision of this Tribunal will replace the earlier decision of Comcare.
Nevertheless, the argument of sufficiency has force. Whether strict compliance or substantial conformity with properly made procedures is required will depend on the terms, purposes and context of the particular provisions and the facts as found. As will appear, it is not necessary for me to go any further with this consideration, as I am satisfied that the particular actions that were undertaken in respect of Ms Yu are not sufficient to satisfy a test of substantial compliance.
Furthermore, the provisions of the Act must be considered, as it is under these provisions that Ms Yu's claim must be decided. When construing the definition of 'injury' in section 5A(1) of the Act one must look carefully at the legislative context and the overall purposes of the Act. As can be seen, even though the Act provides a compensation scheme for injured employees, and it is beneficial in nature, the exclusionary aspects of the definition of 'injury' concerning reasonable administrative action are privative. In the usual course, an injured employee is entitled to recover compensation for an injury (in the common meaning of that word) that is caused by a particular feature of employment. If, however, the injury is the result of reasonable administrative action undertaken in a reasonable manner it will not be an 'injury' for the purposes of the Act and the injured employee will not be entitled to recover compensation. To my mind, the exclusionary factor in section 5A(1) of the Act requires an assessment of reasonableness that is commensurate with its privative effect in the overall compensation scheme.
The issue of reasonableness arises in relation to the term 'reasonable administrative action', which includes 'anything reasonable done in connection with' actions that are listed in paragraphs (a), (b), (c) or (d) of section 5A(2) of the Act. These include 'a reasonable appraisal of the employee's performance', 'a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment' and 'a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment'.
As can be seen, the exclusion is subject to two tests of reasonableness - the reasonableness of the particular administrative action and the reasonableness of the manner in which the action was undertaken. The plain meaning of the word 'reasonable' as set out in the Oxford Online Dictionary conveys, generally, what is meant: proportionate; not irrational, absurd, or ridiculous; just, legitimate; due, fitting; within the limits of what it would be rational or sensible to expect; not extravagant or excessive; moderate. A number of relevant principles can be distilled from the settled cases. For the particular action to be reasonable it must be lawful.[6] There must be nothing untoward.[7] It must be attended by circumstances of fairness.[8] The emotional state and psychological health of the employee are relevant considerations.[9] Furthermore, the reasonableness of the particular action must be objectively assessed in the context of the circumstances and knowledge of those involved at the time.[10]
In order to understand Ms Yu's case, it is necessary to examine in some detail the 'Professional Pathways' performance processes and related administrative procedures applying to teachers in public schools in the Australian Capital Territory in 2007 and 2008. The Professional Pathways processes arise from the Collective Agreement, and previous agreements in similar terms. Section P of the Collective Agreement sets out the procedural aspects of the process.[11] The procedures are further explained in Professional Pathways Guidelines ("the Guidelines").[12] It should be noted that the Professional Pathways process has two component parts: the Professional Pathways Plan and Pathways to Improvement processes.[13] Provision is made for the resolution of disputes concerning Professional Pathways in two stages: first, by consultation with the school principal or manager and, second, by using the internal review procedures provided by Section G of the Collective Agreement.[14] Employee grievance resolution procedures appear at T24 folios 188 to 198 inclusive.
The Professional Pathways Plan is an annual agreement between the teacher, his or her supervisor (or an agreed replacement) and the school principal "for assessing and developing [the teacher's] professional performance and engaging in performance feedback".[15] The matters the Plan is to focus on are set out in the Guidelines. These include professional work performance, professional and work related goals, professional learning, pathways for development, personal growth and career development, whole of school role and responsibilities, and information technology and other training needs. Matters that the teacher and the supervisor will have regard to are also set out in the Guidelines. These include the priorities of the Department of Education and Training and other relevant Departmental initiatives; the needs of the school and the School Strategic Plan; the need to enhance student educational outcomes; curriculum, assessment and other relevant data; the school setting, including whole of school roles and responsibilities, management and team structures, the school community, and parents as partners; other factors which may affect the teacher's circumstances, such as part time work and leave arrangements; and the requirement for teachers to participate in professional development.[16]
A six-step process applies to the Professional Pathways Plan, including a mid-cycle and an end-of-cycle review between the teacher and the supervisor, with the end-of-cycle review taking place prior to the end of each school year. An evidence-based approach is required in these meetings, in which documentation prepared by the teacher is presented, considered, discussed and used as a basis for assessment and feedback. It is clear enough that the reviews are intended, in part at least, to ascertain the extent to which Professional Pathways Plan goals have been met; areas of strength and achievement; adjustments that need to be made; and areas of performance that need improving and identification of strategies.[17]
If a teacher requires "additional assistance to improve their professional work performance", the second component of the Professional Pathways process may be implemented: Pathways to Improvement.[18]Pathways to Improvement is described as "an early intervention program designed to assist teachers to improve their professional practice and work performance in a positive, constructive and non-threatening climate and manner". It is for "the purpose of addressing professional performance issues", although personal and disciplinary issues are to be dealt with "through other means".[19] Disciplinary procedures, for example, are set out in Section E of the Collective Agreement.[20]
I note in passing the evidence of Ms Maguire, Ms Bruce and Ms Harman that the Pathways to Improvement process is not an underperformance management process, but it is intended to support a teacher to improve his or her professional practice in identified areas. To my mind, however, the essential character of the Pathways to Improvement process is a mechanism for managing underperformance, albeit in a supportive manner. It is the first step in a performance management process that may ultimately lead to disciplinary action. It is formal, and it carries potentially serious consequences for the teacher concerned. It is not correct to characterise the Pathways to Improvement process as something that is not related to underperformance, when plainly it is, or that is informal, when plainly it is not. That approach, which is clear on the evidence to which I have referred, carries with it the risk that proper procedures may not be followed and unfairness may result. Consequently, Pathways to Improvement processes must be carefully and properly conducted in accordance with the applicable procedures to ensure procedural fairness and natural justice for the particular teacher. Furthermore, the procedures specified in the Collective Agreement and the Guidelines, and the right to internal review of related decisions, perform the important additional function of protecting against the arbitrary exercise of power without appropriate accountability.
Prior to commencing a Pathways to Improvement process the supervisor is to have "on-going professional discussions with the teacher in relation to his/her Professional Pathways Plan and any other professional work related matter" whether or not these were included in the original Plan. These discussions should be "documented, (with times and dates) together with any other evidence to support the initiation, or otherwise, of Pathways to Improvement" and "All parties should be provided with copies of all written information".[21] The Guidelines direct that the teacher "must be given opportunities to adequately prepare and respond to professional feedback provided by the supervisor, and any other issues that may arise".[22] Probably for this reason, the Guidelines state that "It is most important that data is kept as evidence that a teacher needs support. This information should be made available to the teacher prior to any action being taken and the teacher must be given time and opportunity to respond".[23] Detailed procedures concerning the commencement and conduct of a Pathways to Improvement process are set out in clauses 102, 103 and 104 of Section P of the Collective Agreement[24] and in the Guidelines,[25] as follows (in part):
The teacher's supervisor manages the Pathways to Improvement process in consultation with the principal/manager...
6. The teacher's Professional Pathways Plan is deferred whilst he/she is participating in Pathways to Improvement_..._
7. Regular meetings, as agreed, should occur between the supervisor and the teacher... These meetings will provide constructive feedback and establish the extent to which the identified issues in the Pathways to Improvement Plan are being addressed. The effectiveness of the strategies put in place should be assessed against the agreed performance measures and documented on a regular basis.
8. The teacher will be given the opportunity to provide written comments on these assessments.
9. The supervising teacher will consult with the principal/manager about the teacher's progress.
Pathways to Improvement
Pathways to Improvement
Pathways to Improvement
These difficulties are compounded by the very poor state of the documentation generated in relation to the circumstances surrounding the planning and implementation of Ms Yu's Pathways to Improvement process in 2008. Without proper records and documentation it is extremely difficult to determine in retrospect the particular actions that were taken and whether those actions were reasonable. The importance of creating, compiling and retaining proper records in relation to administrative actions concerning a person's employment, especially when issues of under-performance, inter-personal conflict or poor conduct are alleged, must be emphasised. Failure to do so may lead to contemporaneous unfairness and subsequent difficulty establishing the relevant facts, on review. Nevertheless, I will proceed to do the best with the evidence adduced.
I note in passing that, strictly, there is no onus of proof on either party in proceedings before the Tribunal. There is, however, a balance of persuasion and, to some extent, an evidentiary obligation on the party seeking to disturb the status quo. The Tribunal must make the correct or preferable decision on the evidence that is before it. In this case, Comcare initially accepted Ms Yu's claim for compensation. The reconsideration decision that overturned the original acceptance of liability arose from a request by Ms Yu's employer and is based solely on the exclusionary aspect of the 'injury' definition at section 5A(1). It follows that the balance of persuasion and any evidentiary burden is on Comcare. The poor state of the contemporaneous documentation and doubts concerning the reliability of key aspects of the oral evidence are matters for consideration that weigh in the balance.
It is necessary to set out and discuss the factual context. Ms Yu has been a professional teacher for at least 18 years. She was employed in the Languages Other Than English (LOTE) faculty of Belconnen High School on a full time basis from 1996. It appears that in or about 2005 the demand for Chinese language classes reduced and Ms Yu was required to teach other classes, such as relief classes for example, as well as Chinese language classes in order to maintain a full time teaching load.
In 2006 the senior management of Belconnen High School changed; Ms Maguire commenced duties as Principal and Ms Bruce commenced duties as Deputy Principal. It appears that Ms Maguire decided that Ms Yu should teach Studies of Society and Environment (SOSE) classes in addition to her Chinese language classes, as the school was experiencing a shortage of SOSE teachers and LOTE classes were becoming smaller. Ms Yu was not happy about this and complained that she did not have sufficient knowledge and training to teach SOSE. Nevertheless, on the evidence of Mr Anderson, Ms Bruce, Ms Maguire and Ms Yu, it appears that Ms Yu undertook these tasks, albeit with some difficulty. Mr Anderson's evidence is that he did what he could to assist and support Ms Yu, especially in relation to unit outlines and course content, but he was greatly concerned about her difficulties teaching SOSE classes and informed the Principal, Ms Maguire. Mr Anderson asserts that he made it clear to Ms Maguire that he wanted a SOSE teacher with relevant knowledge and expertise. Ms Yu says that she offered to teach Mathematics or Art classes, in which she had complementary teaching abilities, or to relocate to another school, but these offers were not accepted.
These issues were on foot during 2007, at which time the ACT Government's Every Chance To Learn education policy was being implemented. On the evidence before me it appears that this policy change was intended to improve student outcomes, and it required teachers to produce additional or different curriculum documentation, in the form of course or unit outlines, that address a framework of Essential Learning Outcomes (ELAs). On the evidence of Ms Maguire these changes impacted upon the lesson plans of teachers: lesson objectives, key learning areas and the aims of the course were necessary for assessment purposes.[29] Nevertheless, on the evidence of Ms Vaughan, Mr Anderson and Mr Baker, it was not necessary for experienced teachers to produce detailed lesson plans in the form that Ms Yu was required to produce during her Pathways to Improvement process so long as the ELA framework was properly addressed.
It is clear enough that issues relating to the implementation of the Every Chance To Learn policy were the subject of discussion between Ms Yu and Mr Anderson in her Professional Pathways mid-cycle review on 3 August 2007.[30] The resulting document sets out Ms Yu's 'Areas for Development':
When Ms Yu returned to work on or about 11 February 2008, her regular Chinese language classroom had been changed and her Chinese language teaching resources and materials had been packed away in a storeroom. Ms Yu was required to use a different classroom that was not well maintained and contained graffiti.[32] Furthermore, her Chinese language teaching load was reduced from three classes to two, one of which combined beginning and continuing Chinese language students, and her SOSE teaching load increased from two classes to three. Ms Yu says that she was given no notice of these changes. Mr Baker's evidence supports Ms Yu's account. There is no evidence to the contrary, so I accept Ms Yu's evidence on this point. I also accept that she found this change without notice upsetting and concerning.
On 19 February 2008 Ms Maguire informed the Organisation Capacity section of the Department of Education and Training that she had decided to place Ms Yu on a Pathways to Improvement process.[33] It is not clear whether she provided the Department with a copy of the Pathways to Improvement Plan that is said to have been made on that day.[34] This is a matter to which I will return.
Ms Maguire asserts that on or before 19 February 2008 she discussed the Pathways to Improvement process with Ms Yu, but could not recall when she had done so. Her oral evidence is that this conversation occurred at some time after Ms Yu returned to work on 11 February 2008; prior to that, from 29 November 2007, Ms Yu had been on leave and it had not been possible to discuss arrangements with her. It appears that Ms Harman accepted Ms Maguire's version of events when she undertook an examination of these matters and reported on 11 September 2008.[35] Ms Yu's evidence is that this did not occur and the first she heard about Pathways to Improvement was during a meeting with Ms Maguire, Mr Anderson and Ms Vaughan on 20 February 2008. She asserts that she was given no notice about the meeting, being informed of the requirement to attend on the day, and she was not informed about the purpose or content of the meeting before attending. Nor was she invited to nominate or be accompanied by a support person.
Which of these accounts is correct is difficult to establish with any certainty. Considering the evidence as a whole, it appears to me more probable than not that Ms Yu's account is to be preferred. As will appear, the evidence as a whole reveals a pattern of poor communication, poor documentation and poor adherence to proper procedures in relation to issues concerning Ms Yu's Pathways to Improvement process in 2007 and 2008. The evidence of Mr Anderson and Ms Vaughan is that early in Term 1 of 2008, prior to the meeting on 20 February 2008, they were directed by Ms Maguire to participate in Ms Yu's Pathways to Improvement process and panel. Neither Mr Anderson nor Ms Vaughan could remember precisely when this occurred. Ms Maguire has given different accounts on this point over time. On or about 27 August 2008 Ms Maguire stated that:
Pathways to Improvement
Pathways to Improvement
Pathways to Improvement
Pathways to Improvement
Pathways to Improvement
Following the meeting on 20 February 2008, Ms Yu was required to inform Ms Maguire whether or not she would participate in the Pathways to Improvement process. It appears that she did so on 22 February 2008. It is alleged that subsequently Ms Yu failed to attend Pathways to Improvement panel meetings to the extent that she did not fully participate in the generative aspects of the initial part of the Pathways to Improvement process, on 29 February 2008 for example. In Comcare's submission it was this that caused Ms Bruce to deliver to Ms Yu a letter in the form of a direction on 3 March 2008,[39] to which was attached a copy of the Pathways to Improvement Plan dated 19 February 2008. The circumstances in which this occurred are not disputed - Ms Bruce approached Ms Yu in her classroom and handed her an envelope containing the letter and the plan. There was no discussion about the contents at the time. I accept Ms Yu's evidence that she read the letter and the attached plan and became upset and concerned as a result. She ruminated about it over night and attended Dr La the following day, 4 March 2008 (the deemed date of Ms Yu's claimed injury). Dr La, it appears, certified her as unfit for work as she was experiencing anxiety.
As can be seen, Ms Bruce's letter does not contain information about any right of review or any reference to the dispute resolution procedures that are set out in the Collective Agreement and the Guidelines. The Pathways to Improvement Action Plan attached to the letter was served on Ms Yu without notice and without providing her with an opportunity to respond. I note that Ms Bruce served the letter on Ms Yu 12 days after the initial formal meeting about Ms Yu's Pathways to Improvement process on 20 February 2008. To my mind these actions do not accord with the procedures set out in the Collective Agreement and the Guidelines and they were not fair or just in the circumstances.
There are a number of things to say about this. The Plan that appears at T15 folios 107 to 109 purports to have been made on 19 February 2008. This date appears on a different iteration of the Plan at T15 folios 105 and 106. The document is not signed by any party. The timeframe specified is "from the beginning of term 1", which precedes the purported date of the Plan. The evidence of Mr Anderson is that the Plan was the product of collaborative discussions involving the members of Ms Yu's Pathways to Improvement panel after a meeting on 20 February 2008, although he was not present when the document was written. Ms Bruce stated that she and Ms Maguire drafted the Plan following a discussion with Mr Anderson, and the draft plan was given to Ms Yu for feedback. There is no documentary evidence to support this, however, and Ms Bruce could not recall precisely when this is said to have taken place. Ms Vaughan's notes of a panel meeting on 28 February 2008 reveal that the panel discussed action plans for Ms Yu's Pathways to Improvement process. The notes do not include the names of participants, but it is tolerably clear that Mr Anderson and possibly Ms Bruce were present; it appears that Ms Yu was not. Ms Yu's evidence is that she first saw the Plan on 3 March 2008, when it was handed to her with a letter by Ms Bruce. Thus, in sum on this point, it appears to me that the Plan was not in existence on 19 February 2008 and that it was written on or soon after 28 February 2008. Even if I am not correct on this point, and the Plan was in existence on 19 February 2008, it is tolerably clear that it was not the subject of any documented discussions involving Ms Yu and it was not provided to her at the meeting on 20 February 2008 or subsequently until 3 March 2008.
Ms Maguire, Ms Bruce and Comcare point to Ms Yu's reluctance to participate in the Pathways to Improvement process at the time in explanation of this. But that is not established. The evidence, such as it is, establishes that Ms Yu attended the 20 February 2008 meeting and she agreed to participate in the Pathways to Improvement process, albeit reluctantly, on 22 February 2008. There is no documentary evidence concerning the arrangement of subsequent meetings and the provision of notice to Ms Yu of any requirement for her to attend in advance. It is not established that Ms Yu was required and failed to attend a panel meeting on 28 February 2008. Nor is it established that she was required and failed to attend a meeting on 29 February 2008 - the evidence suggests that Ms Yu was approached by Ms Vaughan and Mr Anderson on 29 July 2008 and she refused to engage in a discussion about the Pathways to Improvement process at that time as she was busy with her teaching load. The ad hoc approach revealed by the present evidence that appears to have been adopted in relation to these meetings suggests a lack of proper regard to the relevant procedures. This is not a matter of procedural nicety; it is a matter of procedural fairness.
I am reasonably satisfied that Ms Maguire's decision concerning Ms Yu's Pathways to Improvement process was made without proper regard to proper process and adequate documentation concerning Ms Yu's performance. It appears that Ms Maguire did not consult Mr Anderson about Ms Yu's performance and the need for a Pathways to Improvement process prior to making her decision late in November 2007. It is not established that Ms Maguire had regard to documentation compiled by Mr Anderson, Ms Yu's supervisor, or anyone else for that matter, concerning the performance issues that are said to have warranted the initiation of the Pathways to Improvement process. It is not established that adequate documentation concerning Ms Yu's alleged under-performance in 2007 was compiled. The legal procedures require that Ms Maguire 'makes the decision regarding the implementation of the Pathways to Improvement process after discussion with the supervisor and assessment of the written documentation and any other evidence'. That did not occur in this case.
Ms Maguire is required to have been satisfied that Ms Yu received feedback from her supervisor and was given the opportunity to give feedback in return in relation to the issues of underperformance levelled against her. The only documentation of any such discussions are those arising from Ms Yu's Professional Pathways mid-cycle and end-of-cycle reviews in 2007. As I have said, those documents do not squarely address performance issues relating to teaching SOSE classes and other matters raised as performance issues by Ms Maguire in the meeting on 20 February 2008.
Ms Maguire is required to have ensured, at least to her own satisfaction, that all documentation concerning alleged underperformance issues concerning Ms Yu were in order and that Ms Yu had been provided with a copy. Ms Maguire is required to have retained copies of these documents and other documents pertaining to the Pathways to Improvement process herself. It appears that this, too, did not occur. The documentation in evidence is not sufficient for the purposes of determining whether or not it was reasonable to initiate a Pathways to Improvement process. And it appears that Ms Yu was not provided with copies of any documentation other than her Professional Pathways end-of-cycle review prior to 20 February 2008. In this regard, Ms Yu was denied procedural fairness.
The established procedures require that Ms Maguire should have informed Ms Yu personally and in writing of her decision to implement a Pathways to Improvement process and the identified areas for improvement prior to or concurrent with the provision of information about her decision to the Department. That should have occurred on or prior to 19 February 2008. The present evidence is not sufficient to establish that Ms Maguire informed Ms Yu of her decision to implement a Pathways to Improvement process on or before 19 February 2008, on which day she informed the Department; to my mind it is likely that she did not and, certainly, Ms Maguire did not inform Ms Yu in writing of any such decision at that time or previously. There is no evidence before me that Ms Maguire provided Ms Yu with her decision to initiate the Pathways to Improvement process in writing, or that she provided any written reasons for the decision, or that she formally notified Ms Yu of her right to seek review under the established procedures. As a result of these failings, Ms Yu was denied procedural fairness.
I am reasonably satisfied that Ms Yu was not forewarned about the meeting on 20 February 2008 and she was not provided with an opportunity to nominate or be accompanied by a support person. Furthermore, I am satisfied that Ms Maguire initiated the Pathways to Improvement process and appointed the Pathways to Improvement process panel prior to this meeting. These actions do not comply with the terms or the spirit of the Professional Pathways -Pathways to Improvement procedures. I am reasonably satisfied that Ms Yu was denied procedural fairness in respect of the meeting on 20 February 2008.
There is no evidence that Ms Yu was given the opportunity to provide any response in writing to the performance issues raised against her in the meeting on 20 February 2008. The only evidence of any such opportunity arises in relation to the Professional Pathways Plan review processes. As I have said, these processes did not explicitly address the particular issues identified as performance concerns in Ms Maguire's notes of the 20 February 2008 meeting. In this regard, Ms Yu was denied procedural fairness.
I am reasonably satisfied that Ms Yu did not fully participate in all scheduled meetings during the initial stages of the Pathways to Improvement process, and that she disputed aspects of the process. Ms Yu did not pursue her rights to review of Ms Maguire's decision at that time in February or early March 2008. It was open for Ms Yu to investigate and pursue her rights under the Professional Pathways policy and the Collective Agreement. Nevertheless, to my mind, there is an obligation on her employer, whether directly or through her supervising principal at the time, to inform her of those rights. This did not occur. Ms Bruce made no reference to any right of review in her letter of 3 March 2008.
The approach adopted by Ms Maguire and Ms Bruce, in prosecuting compliance action through the Department with the threat of disciplinary action in the event of non-compliance, simply underlines the formal nature of the process and the importance of informing Ms Yu of her right to seek review of Ms Maguire's decision. The appropriate course to follow in the case of a teacher failing to participate in a properly constituted Pathways to Improvement process is either by direction requiring compliance, as occurred in Ms Yu's case, where continued failure may lead to formal disciplinary action, or by utilisation of the dispute resolution procedures that are provided for in the Professional Pathways policy documents. There is no evidence that Ms Yu was informed at any time about her right to seek review of Ms Maguire's decision to institute a Pathways to Improvement process. That is a significant failing that goes directly to the issues of reasonableness that I must decide.
To my mind, the actions that led to the events on 3 March 2008 that significantly contributed to cause Ms Yu's claimed injury were not in accordance with the lawful procedures and policies that applied at the time, and they did not accord procedural fairness or natural justice to Ms Yu. From this distance I am not able to determine with any certainty whether there were good and sound reasons that warranted the initiation of the Pathways to Improvement process. The present evidence is not sufficient to make any such finding. For this reason I am compelled to conclude that the initiation of the Pathways to Improvement process in respect of Ms Yu is not established as a reasonable administrative action. Furthermore, for the reasons already stated, I am reasonably satisfied that the actions undertaken in relation to the initiation of the Pathways to Improvement process were not undertaken in a reasonable manner.
It follows that the decision under review must be set aside. I am reasonably satisfied that Ms Yu's claimed injury did not result from reasonable administrative action undertaken in a reasonable manner. Her claimed injury is not within the terms of the exclusionary elements of section 5A(1) of the Act and she is entitled to compensation therefore.
Finally, there is one additional matter to address concerning Ms Yu's assertion that it was not reasonable for Ms Maguire to require her to teach SOSE classes and that this was related to discontinuing the Chinese language course at Belconnen High School. I accept Ms Maguire's evidence that she formed the opinion that it was not viable for Belconnen High School to continue to offer three languages (French, Chinese and Indonesian) and that the Chinese language course should be discontinued. Precisely when that decision was made is not clear, although it appears likely it was made after the events in issue in 2008. In any event, as Ms Harman stated, this is a legitimate management decision for the school. In those circumstances one might expect the teachers affected by the decision to be redeployed or transferred. It is abundantly clear that at various times from 2006 Ms Maguire directed Ms Yu to teach SOSE classes and progressively reduced the number of Chinese language classes. Whether or not this was reasonable is moot. It is clear that Ms Yu possessed specialist knowledge and experience as a teacher of Chinese language and she did not possess any detailed knowledge or training in relation to SOSE curriculum content. There are two relevant issues to consider.
The first is an issue of policy concerning the terms of employment of Level 1 teachers as generalists or specialists and the powers of a principal to direct a teacher to teach any particular subject. The second is a matter of practicality concerning the particular arrangements for a teacher to teach a subject in which they have little knowledge, training or interest. Ms Maguire gave evidence that any Level 1 teacher is expected to be able to teach any subject on the basis that, as I understand her evidence, most teaching skills are generic and knowledge of subject matter can be learned on the job. Ms Bruce gave oral evidence that a Level 1 teacher is expected to be able to teach any subject with which they are "reasonably familiar", indicating an approach that requires, at least, some level of knowledge and familiarity with the particular subject. I am not able to resolve these differences without access to policy documents that are not in evidence. I note, however, that Ms Harman addressed Ms Yu's grievance concerning the requirement that she teach SOSE classes in the following manner: