Kent v Secretary, Department of Education

Industrial Relations Commission (NSW)|2018-10-19

Solicitor: Ms C Schipp, Department of Education (Respondent) File Number(s): 2017/00304518

DECISION

This decision relates to the unfair dismissal application Bradley Thomas Kent. The application was filed on 5 October 2017. Conciliation was unsuccessful and the substantive hearing of the application commenced before me on 20 March 2018. The hearing occupied six days concluding on 19 October 2018.
The applicant nominated 31 August 2017 as the date of his "threatened dismissal" and 18 September 2017 as his last day worked. Prior to his dismissal, the applicant was employed as a teacher at Condobolin High School ("the School") in the central west region of New South Wales.
On 30 August 2017, Mark Anderson, Relieving Director, Staff Efficiency and Conduct Team, Employee Performance and Conduct Directorate ("EPAC") within the Department of Education ("the Department") wrote to the applicant. Mr Anderson referred to previous correspondence dated 19 July 2017 from Veronica Kapsamali, Director, Staff Efficiency and Conduct Team, EPAC, in which Ms Kapsamali had advised the applicant that she had formed the opinion that his work performance was still unsatisfactory following completion of an improvement program and that she was considering imposing disciplinary action.
In the letter of 30 August 2017, Mr Anderson stated that he had carefully considered the applicant's submissions of 13 August 2017 and the interview with and documentation provided to Mr Anderson on 4 August 2017. The letter then continued: I am of the view you did not provide any additional or compelling information that would alter the original opinion formed by Ms Kapsamali. I have decided, as defined under Section 93 B (1) of the Teaching Service Act 1980 to direct you to resign from the Teaching Service. You have 14 days from receipt of this letter to submit your resignation, otherwise you will be dismissed. I wish to advise that I have recommended that your name be placed on the list of people who are not to be employed in any capacity in NSW government schools (the NTBE list), without reference to the Director, Recruitment and Employment.

Background

In May 1990, the applicant commenced casual employment as a teacher with the Department and worked at a number of different schools. In January 1999, the applicant commenced permanent employment as a teacher at Leeton Public School. In June 1999 the applicant resigned from Leeton Public School. In 2003, the applicant recommenced employment as a casual teacher and worked at several different schools.
In 2013, the applicant commenced permanent employment as a teacher at the School. According to the Department, from 2013 the Principal at the School identified concerns with the applicant about his performance and conduct.
In 2015, the applicant was on approved leave without pay and worked for six months as a casual teacher at Young High School. In June 2015, the applicant returned to the School as a classroom teacher. He was allocated classes in Primary Industries, Agriculture and Mathematics by the School Principal, Jeffrey Ward. Mr Ward had taken up his position as Principal in April 2015.
On 17 July 2015, EPAC provided the applicant with a letter outlining allegations of misconduct regarding the breach of a written direction from the Principal of Young High School, Keith Duran. These allegations involved an inappropriate gesture and an inappropriate comment made by the applicant to students during lessons.
The written direction from Mr Duran, dated 6 May 2015, noted that the applicant had self-reported and made admissions in relation to the gesture.

The birthing of the lambs - 7 August 2015

In association with the teaching of Agriculture to students as part of the school curriculum, the School maintained a farm and kept a number of sheep on the school property.
On 7 August 2015, the applicant was attending to a number of ewes which were in the latter stages of giving birth. A number of the ewes were experiencing difficulty and the applicant decided to assist the birth by pulling the lambs from these ewes. In a number of instances, this occurred in the presence of students. Throughout the proceedings, the applicant maintained that his actions on this day were in the best interests of the welfare of the animals.
This incident led to an investigation by the NSW Schools Animal Care and Ethics Committee. The Committee requested that the applicant not be involved in the further management or care of animals until further investigation.
On 13 August 2015, the applicant was provided with a letter from Matthew Heffernan, Acting Principal at the time, which stated: As a result of ongoing inquiries the Animals in Schools Directorate has issued the Principal with the following directive. You are not to have any responsibilities for the livestock at your school. You are not to make any management decisions or carry out any practical handling of the stock. This is to continue until the issue has been resolved in communication with Schools Animal Care and Ethics Committee. If you have any issues please contact the Principal Mr J Ward.
Later on 13 August 2015, the applicant reported a work related injury. The injury was "emotional stress" due to "receiving notification that he was no longer able to make decisions for the care of animals in the ag plot…"
In a report dated 19 October 2015, the Schools Animal Care and Ethics Committee stated that, based on the information provided, the Committee could not determine whether an adverse event had occurred.

Concerns and complaints - 2015

According to Mr Ward, between June and August 2015 there were a number of complaints of misconduct made about the applicant. The initial concerns that Mr Ward had about the applicant's teaching performance included:

Complaints from parents and students about the applicant's professional interaction with students, including inappropriate and offensive language and the delivery of content;
Complaints from staff about the applicant's professional conduct, failure to adhere to syllabus content in lesson delivery, failure to address key competencies and not meeting requirements in the delivery of vocational and educational training courses;
The applicant's lack of programming;
The applicant's poor management of student behaviour;
The applicant falling asleep on duty; and
The applicant not following instructions in teaching course content when relieving for a staff member.

According to Mr Ward, throughout July and August 2015, he spoke to the applicant, as the issues set out at [18] above arose, in an informal way and asked Beverly Small, Head Teacher Secondary Studies, to speak to him as well, depending on the seriousness of the complaint.
On 2 September 2015, Mr Ward wrote to the applicant and invited him to attend a meeting on 14 September, at which the Deputy Principal, Mr Heffernan, would also be present to "discuss a number of concerns that have been raised around your teaching performance and the support with which we can offer". The applicant attended the Principal's office on 3 September and spoke to Mr Ward. There are conflicting versions of what was said during this conversation.
The foreshadowed meeting ultimately took place on 16 September 2015. In attendance were the applicant, Mr Ward, Mr Heffernan, Sonja Honeysett, as the applicant's support person, and Shirley Fettell as minute taker. During that meeting, a number of complaints and concerns about the applicant's performance were raised with him. Mr Ward advised the applicant that he would be placed on an informal support program.
By letter dated 18 September 2015, Mr Ward asked the applicant to respond in writing to a number of concerns that had been raised with him during the meeting on 16 September and which were set out in the letter. In a further letter to the applicant of the same date, Mr Ward set out the components of the program of support which was to begin on the return to school for term four. Mr Ward also advised the applicant that, at that time, he only had responsibility and approval to teach "Primary Industries, Sport Lifestyle and Recreation, PASS (Physical Activity and Sport Studies), Primary, PD/H/PE (Personal Development, Health and Physical Education) and Infants (K-2)".
On 13 October 2015, Mr Ward wrote again to the applicant about the program of support and advised that a meeting to discuss that program was to take place on 15 October. Mr Ward had asked Ms Small to be in attendance at the meeting as she would be an active participant in the program of support. At the meeting on 15 October, details of the implementation of the program of support were discussed.
According to Mr Ward, the applicant's performance had not improved after four weeks of targeted support. On 10 November 2015, Mr Ward wrote to the applicant and invited him to a meeting on 19 November to discuss the program of support. At that meeting, Mr Ward formally advised the applicant that he had been identified as experiencing difficulties in meeting the required level of performance as a teacher. The applicant was advised that he was to be placed on a formal Teacher Improvement Program.
The applicant went off work sick from 23 November 2015 and did not return to work at the School until 26 July 2016.

Applicant's complaint against Mr Ward

On 15 April 2016, the applicant made a formal complaint to Maree Angus, Director, Public Schools NSW, Lachlan Network, against Mr Ward alleging a number of incidents of intimidation, bullying and harassment by Mr Ward towards the applicant. The applicant requested that he undertake the Teacher Improvement Program at another school.
Ms Angus investigated the applicant's complaints against Mr Ward and found them to be unsubstantiated. Ms Angus also declined the applicant's request to undertake the Teacher Improvement Program at another school. These outcomes were conveyed to the applicant by letter from Ms Angus dated 9 May 2016.
The applicant sought a review of the outcome of his complaint against Mr Ward. This review was conducted by Phil Hurst, former School Education Director, assisting Graham Kahabka, Executive Director, Public Schools NSW. By letter dated 17 June 2016, Mr Kahabka advised the applicant that he had upheld Ms Angus' determination with respect to the applicant's complaints against Mr Ward.

Teacher Improvement Program - 2016

The applicant returned to work at the School on 26 July 2016 and later met with Mr Ward and others for a Return to Work meeting where Mr Ward provided the applicant with a two week Return to Work Program, including six days of support, pursuant to which the applicant would initially work on a part-time basis, three days a week.
The applicant took further sick leave from 9 August and returned to full time duties on 29 August 2016. Mr Ward provided the applicant with a timetable that reflected his qualifications and approval to teach the following subjects:

Primary Industries;
Sport, Lifestyle and Recreation;
Personal Development, Health and Physical Education; and
Physical Activity and Sport Studies.

The applicant completed a further three weeks of teaching before he commenced the Teacher Improvement Program on 19 September 2016.
On 14 September 2016, Mr Ward met with the applicant to discuss the Teacher Improvement Program. Also present at that meeting were Mr Heffernan, Ms Small, Ms Honeysett, Melissa Rees, Head Teacher Access, and Tracey Stubberfield, who took the minutes. It was explained to the applicant that the Teacher Improvement Program was a maximum ten week program consisting of five weeks of support and guidance and, if Mr Ward determined that it was required, a five week support, guidance and assessment period.
The applicant was informed that Ms Small would be his first line of support as his immediate supervisor, Ms Rees would be supporting him with programming, lesson preparation, assessments and PDHPE and Mr Heffernan, as Deputy Principal, would be the supervisor of the program. The applicant was also informed that Mr Ward would be trying to engage teachers from other schools to provide support and observe lessons.
The Teacher Improvement Program indicated that the applicant would be assessed on four of the Australian Professional Standards for Teachers, being:

Standard 1: Know students and how they learn.
Standard 3: Plan for and implement effective teaching and learning.
Standard 4: Create and maintain supportive and safe learning environments.
Standard 5: Assess, provide feedback and report on student learning.

Not included in the above list was Standard 2: Know the content and how to teach it.
As previously stated, the Teacher Improvement Program commenced on 19 September 2016.
After the first five weeks of support and guidance of the program, Mr Ward formed the view that there had been some improvement in some areas of the applicant's teaching performance but not in all areas. It was decided to continue the Teacher Improvement Program for a further five weeks.
The Teacher Improvement Program concluded on 7 December 2016.
After the conclusion of the Teacher Improvement Program, Mr Ward prepared a report on 13 December 2016 in which he recommended that the applicant had not met the level of performance required of a proficient classroom teacher. In his report, Mr Ward noted that, during the Teacher Improvement Program, there were 22 lesson observations conducted, 12 of which were support and guidance and 10 were assessed. All 10 of the assessed lesson observations were deemed to be unsatisfactory. Mr Ward forwarded a copy of his report, together with the Teacher Improvement Program documentation to EPAC.
The applicant was provided with a copy of Mr Ward's report on 13 December 2016 and was advised that he had 14 days to provide a written response to it. Also present when Mr Ward provided the applicant with the report were Ms Angus and Duncan McDonald, country organiser of the NSW Teachers Federation. The applicant was also given a letter from Ms Kapsamali advising him that he was to undertake alternative duties at Condobolin Public School.
On 26 January 2017, the applicant prepared a written response to Mr Ward's report which he forwarded to Ms Kapsimali.
A review of the Teacher Improvement Program was conducted by Kerryanne Knox, Independent Reviewer for the Department, who supported Mr Ward's recommendation that the applicant did not meet the standard for the position he held.
After reviewing all of the available material, Ms Kapsimali formed the opinion that the applicant's work performance was unsatisfactory. On 19 July 2017, Ms Kapsimali wrote to the applicant advising him of her opinion and that she was considering imposing disciplinary action. Ms Kapsimali indicated that the most severe disciplinary action that she was considering was dismissal and whether or not the applicant's name should be placed on the list of persons not to be employed in NSW government schools ("NTBE List"). Ms Kapsimali then handed the file to Mr Anderson, who would be relieving in her position while she was on leave from 24 July to 29 September 2017. Mr Anderson was to review the material and make the final decision.
At the applicant's request, Mr Anderson met with him on 4 August 2017. During that interview, the applicant provided Mr Anderson with a written submission on penalty. On 16 August 2017, the applicant provided Mr Anderson with a further written submission on penalty.
After considering all of the material, Mr Anderson determined that he agreed with Ms Kapsimali's opinion that the applicant's performance had been properly assessed as unsatisfactory. Mr Anderson determined that it was appropriate to direct the applicant to resign and to place his name on the NTBE List.

Case for the applicant

The applicant, who represented himself in the proceedings, was the only witness to give evidence in support of his unfair dismissal application.
The applicant tendered into evidence three "statements" which had been prepared by him. These documents were a mixture of evidence and submissions which canvassed a range of issues which the applicant believed were relevant to his unfair dismissal application.
The first matter raised by the applicant in his first statement was the incident involving the birthing of the lambs which occurred on 7 August 2015. According to the applicant, his actions in assisting the ewes to give birth were entirely appropriate and provided no basis for him to receive the letter from Mr Heffernan on 13 August 2015 (see [15] above).
In the second statement tendered by the applicant, he proceeded to identify what he regarded as "numerous examples of due process not being followed in the handling of my case" which resulted in him being "denied natural justice on multiple occasions". He referred to these instances as "DP Failure & DoNJ".
In relation to the meeting with Mr Ward which occurred on 3 September 2015, the applicant claimed that Mr Ward said "Why don't you leave and get a casual number", to which the applicant replied "I would not be made a scapegoat for all the crap that is and has been going on at this school for years". At the subsequent meeting on 16 September 2015, the applicant denied the allegations which were put to him by Mr Ward. The applicant stated: At this stage I had never heard of a TIP or had any concerns that my teaching performance was being questioned. I had responses and explanations for all of the allegations. I had not done anything wrong and all of the allegations were false.
The applicant was critical of Mr Ward's response to his replies to the allegations. He stated: 7. It was at this stage that I started to think that whatever was occurring, the outcome was predetermined by JW or someone else. JW's actions, particularly him not wanting to look at my replies, resolve these allegations and the behaviour of the staff/culture that existed at the school made me think this way. JW's actions indicated to me that he did not seem any desire to find out the truth of the allegations against me or resolve issues so I could move forward. I believe if he did, he would have had a discussion with me and the person making the complaint. This to me would of seemed the fair thing to do. The issue would have been resolved. My replies to the allegations show that I did not behave in a way that was of concern or inappropriate.
The applicant also criticised the manner in which the program of support was conducted. He stated: 8. A program was established and I was given a new teaching timetable. My year 11 Maths class was taken from me and I was given 3 lessons of another teacher's year 8 PE classes. No explanation was given to me why this occurred. JW writes in a later reply that this "was giving me experience teaching PE" A total of 12 lessons of year 8 over 1 month. I was judged on teaching this 8 class. It is clear to me now that the DET had a Teacher Improvement Program set for me all along teaching PE. During this programme I was observed whilst teaching by JW and several other teachers, (including Lindy Moon who had made a fictitious complaint against me only weeks previously) had regular weekly meetings and encouraged to seek assistance by nominated members of staff for tutoring in computer use. I was not given the opportunity to visit other schools as was suggested by JW in the initial meeting. During this time a TIP had still not been mentioned or the purpose of this program explained. Due to a lack of cooperation and unwillingness to assist, I found it difficult to arrange assistance with some of the teachers nominated by JW, to support me. (DP Failure & DoNJ) I sought assistance from another teacher (Dale Gallagher) after hours to gain improvement in computer use. 9. During this period I was told that a teacher from Junee High (Paul Anderson) would be visiting. I was not told why he was coming, the purpose of his visit or most importantly that he would be assessing me and giving a report to JW. (DP Failure & DoNJ) I was told he was coming to Condobolin but not told when. Since I had not heard from him, I phoned Paul to confirm when he would be coming. We arranged a suitable date. He arrived at the school about 930 am. I showed him around the school farm. I had a lesson of Year 11 Primary Industries where 4 students attended. Paul observed this lesson. We had morning tea. That was the last time I saw him. He was at the school for less than 2 hours. Paul was only a young teacher who had only taught for about 3 years and all at Junee High. I was given no explanation by any staff member to why he was selected to come and observe me…. In a meeting at the conclusion of this 4 week program JW read out a report and comments by Paul Anderson. This report was very negative. 10. Whilst on this program the school's regional Teacher's Federation Representative Duncan McDonald phoned me to say that he had been speaking to JW. Duncan said that JW was impressed with my attitude to this program. 11. November 17. I attended my regular meeting which was the last week of this program. There was less staff than usual at this meeting. Lindy Moon was absent. JW began by reading comments from the teachers who had been observing me and who I had been working with in this program. They were all negative. It was at this meeting that the report from visiting teacher Paul Anderson was read out. I cannot remember what was said by JW but all of the comments that he was reading were very negative. These were by teachers that were allocated to support me and by teachers who had made complaints/allegations against me to JW that were never resolved. At the conclusion of this meeting JW told me "You will be going on a Teacher Improvement Program (TIP) judged by me and other staff at this school. If you fail this program you will be asked to hand in your keys immediately, have 30 minutes to pack up your belongings and leave the school. You will never be allowed to teach again" ………………….. This was the first time since I attended a meeting on September 16 (a period of 8 weeks) that JW spoke about a TIP and its consequences.
The applicant went off work sick from 23 November 2015. After the applicant returned to work at the School on 26 July 2016, he became aware that he would no longer be teaching Agriculture and that Katrina Thomas had been appointed as the new Agriculture teacher. The applicant complained that neither Mr Ward nor anyone from the Department discussed this matter with him. The applicant again went off work sick from 9 August to 29 August 2016.
In relation to the Teacher Improvement Program, the applicant, in the third statement tendered by him, stated: 21. About 2 weeks after returning JW met me as I came to school one morning. He gave me and envelope and told me that I would be beginning a Teacher Improvement Program. I could not believe that with all I had been through in the previous 12 months at work, (including being on Worker's Compensation 3 times for the way I had been treated by staff), the short time I had been back at work and the fact that I hadn't taught PE since 1999 that I was now being placed on a TIP, expected to improve in this environment and perform at my optimum. ………………………….. 26. I was not told that I could have a mentor for my TIP until after I had started it. Matt Heffernan phoned me one afternoon to inform me that I could have a mentor. As I had very little relationship with any other of the staff, I chose Dale Gallagher. He was not ideal as he had only been teaching since 2013 but had assisted me to improve my knowledge of computer use. He had a young baby, a fulltime teaching load and a second job. It was difficult to arrange times to work with Dale. 27. Mel Rees had been nominated by JW as one of the teachers to observe me and be involved with the TIP. I had no relationship with Mel. I had no respect for her. This was because of the way I had seen her behave, her reluctance to find time to assist me the previous year, comments about her behaviour from other staff and statements that I had read about her bullying type behaviour to staff prior to me starting. …………………………. I asked JW if he could remove Mel Rees from being involved in my TIP. My request was not granted. I was not asked why I requested this. I did not expand on why I did not want Mel to be involved... JW told me that Mel Rees was "one of the best teachers he had seen in his teaching career." 28. I was given a program to follow by JW. I began the TIP the last week before September holidays, recommenced it when I returned in October and completing it during the last term of the school year finishing during the last week of term. Some things in the program Included; Summiting lesson plans, programs and other information that was requested. Observation of my teaching by JW, Deputy Matt Heffernan, Head Teacher Bev Small, Mel Rees and two visiting teachers. Lessons being discussed that were observed with the observing teacher within a few days after observation. Attending regular weekly meetings with the above staff. Fulfilling my normal teaching duties. I did everything that was asked of me by JW. 29. The regular meetings occurred every Wednesday afternoon in JW's Office. The 4 staff responsible for judging my performance were in attendance. I was entitled to a support person to be present. My first support person was the schools federation rep Sonja Honeysett. After about 4 weeks she withdrew from this position. I had 3 different staff members fill this role in the next 6 weeks. (Jen Mansour, Ken Riach, Dale Gallagher) Jen came to one meeting. After the meeting she said she was surprised at the aggressive tone shown towards me. She elected not to attend any more meetings as my support person. I asked her later would she write a statement about her experience in this meeting. She said she would. I approached her later about this. She said that she had spoken to the teacher's federation about this. They advised her not to make a statement. Many staff that I worked with previously indicated that they would make a comment on the environment. I have contacted them in the last two months and their comments have not been forwarded. From their comments about staff behaviour when I was working with them, their decision not to comment surprises me. Ken attended a couple of times then got sick. Dale came to the remaining meetings. 30. From the first meeting there seemed to be a tone of aggression in the room. Despite trying to remain very calm and not become involved in heated discussion. In the second or third meeting it became very tense as allegations were again aired against me. On this occasion Sonia and I left the room for me to regain my composure. On a number of occasions JW raised points about lessons he had observed. There was nothing positive about these conversations. I was confused why he did this as the lesson had already been reviewed previously in a one on one discussion. I think it was done to make me feel inferior. The purpose of these meetings was to monitor my performance and to take further instructions for what laid ahead in the following week. In most of the meetings I was defending more allegations made by staff, parents and students. I asked JW did he want written responses to these allegations. He said no. I came out of most of the meetings feeling very despondent to the bullying and actions of the staff present. They were not assisting me to improve. This behaviour continued for the whole 10 weeks. I believe it was deliberate and done to try and get me to submit to the pressure and resign. At a one on one meeting with Matt Heffernan to discuss his comments on his lesson observation, he commented that he thought I would make a good Tafe teacher and had I thought about doing that. I said that I hadn't thought about that. I felt it strange that he would say that. …………………………… 31. The TIP is divided into two 5 week blocks. Whether the second block is required to be completed, is up to the principal. The significant difference is that observation lessons were marked and that I would see the pass or fail mark given by the observing teacher. Of the lessons observed in that period.I was failed on every lesson. 32. This was to be completed in the last 5 weeks of the school year. This is a very unsettled time of the year for students and a busy time for teachers. Exams are being held, students are going away on excursions, special activities or programs are offered, students are looking forward to Christmas and student's absenteeism increases. The result is classes and timetables are disrupted. Teacher's are marking assessments, exams and writing yearly reports. I was doing this as well as completing the TIP. During this period of time my brother in law passed away and a good friend was killed in a farming accident. JW was made aware of this. It was also about this time that JW called me into his office or sent me a letter stating that two female teachers had gone and complained to him about how I spoke to Fiona Doyle, another member of staff. This occurred in the sign on room before school. Again to me it was insinuated that I was guilty of this despite it only being the opinion of two teachers present. I told JW that I did not speak rudely to her and that I did not speak rudely to anyone. I said to JW that if Fiona thought I had spoken poorly to her then I apologise. This matter was further investigated, but no with (no discussion with Fiona and I) and there was more written correspondence from JW using DET guidelines about how I was expected to behave…. Jen Mansour, Rachael Waller and Fiona Doyle were the only staff present when this allegation occurred. 33. I had been teaching since 1990. I am very confident in my teaching ability. Some of the lessons that I was failed on went very well. I was initially surprised that I was getting failed. After continually being assessed in this way in the early lessons I became used to it, however it did not increase the chance of improvement. These assessments didn't assist me but I was keeping focussed, teaching well and doing what I was asked. The notes on my performance during the TIP are available. They are currently at the Teacher's Federation building in Sydney. 34. At the second last meeting JW told me that I would be informed of his decision in regard to my TIP in the following week. (The last week of school) Observation lessons were finished as normal lessons had ceased. At that time he couldn't give me a date because he had to confirm the availability of The Director Maree Angus, who would be required to attend. JW said he would let me know when this would be. I phoned district Teacher's Federation representative from Dubbo Duncan McDonald to see if he would be my support person. Duncan said he would. During the next 5 days JW did not tell me when this meeting would be occurring. I was in contact with Duncan. He did not give me a date. 35. Wednesday 14 December 2016. Around lunchtime Deputy Matt Heffernan came and got me from a lesson I was teaching and told me the meeting was on now in JW's office. I attended the meeting. Duncan and Maree were present. This was another example of poor communication with me and JW. Although I did not have to prepare for this meeting I was not told specifically when it was occurring. Why Duncan McDonald did not tell me I do not know. He must of known prior to attending as his base is 2 hours away in Dubbo. 36. Final Meeting. JW told me that I had failed the TIP. He told me that from tomorrow I would go to Condobolin Public School for work and contact Principal Deborah Ney. He asked for my keys, told me to go to my staff room to pack up my belongings and be off the school premises in 30 minutes. JW's comments were nearly the exact words that he told me in November 2015 when explaining the consequences if I failed a TIP. Matt Heffernan sat next to me whilst I packed up my belongings. Head teacher Bev Small was also in the staffroom. Neither said anything. Matt assisted me take my belongings to my car. I left the school and never returned.
The applicant then detailed how he had prepared an appeal to the Department against the decision of Mr Ward to fail him on the Teacher Improvement Program. By letter dated 19 July 2017, the applicant was advised by Ms Kapsimali that Mr Ward's report and decision had been reviewed and that the reviewer had determined that the documentation indicated that the procedures were followed and procedural fairness was provided. Ms Kapsimali stated that she was considering imposing disciplinary action, the most severe disciplinary action under consideration being dismissal.
On 4 August 2017, the applicant met with the decision maker, Mr Anderson, and provided him with a lengthy written submission on penalty. This was followed by a further written submission on penalty dated 13 August 2017.
By letter dated 30 August 2017, Mr Anderson directed the applicant to resign (see [3]-[4] above).
The applicant's third statement concluded as follows: I believe that if Jeff Ward and the Department of Education had shown me some dignity and respect (as written on posters on walls around the school), followed the advice of my doctor's comments, as well as having a desire to investigate and resolve allegations made against me that involved consultation with the people making the allegation and myself, these allegations would have been found to be of no concern. If there were aspects of my teaching that needed improving, I should have been consulted personally (not with letters) and structures implemented that would of led to my improvement, of which I would have been capable of achieving. Because this was not done and my experience and knowledge of the culture that existed at the school, this made me to feel that JW was judge and jury and that my future was predetermined. These actions had and have had a huge negative impact on my health. Something that seems to be completely ignored by the DET. Except for telling me regularly that I could use EAP (Employee Assistance Program) (Phone conversations or visits with counsellors, of which I had already had) This began in 13 August 2015 when I was suspended by Animal Welfare without consultation. A period of 2.5 years.

Case for the Department

In opposing the applicant's unfair dismissal application, the Department relied upon evidence from the following witnesses:

Mr Jeffrey Ward
Mr Matthew Heffernan
Ms Beverly Small
Ms Melissa Rees
Mr Darren Hamilton, Deputy Principal, Parkes High School
Ms Dimiti Trudgett, Deputy Principal, Trangie Central School
Ms Veronica Kapsimali
Mr Mark Anderson

As part of its case, and as a supplement to the evidence of its witnesses, the Department tendered into evidence and relied upon six volumes of documents totalling 2,871 pages.

Mr Ward

In an affidavit, which was tendered into evidence in the proceedings, Mr Ward gave the following evidence: Initial Teaching Concerns and Complaints 24. I identified concerns with the Applicant's teaching performance during Term 3 and 4 2015, shortly after his return from Young High School, where he was working as a casual teacher whilst on Leave Without Pay from the School 25. Initial concerns I had about the Applicant's teaching performance included: • I received complaints from parents and students about the Applicant's professional interaction with students including inappropriate and offensive language and the delivery of content; • I received complaints from staff about his professional conduct, failure to adhere to syllabus content in lesson delivery, failure to address key competencies not meeting requirements in the delivery of vocational and educational training courses; • His lack of programming; • His poor management of student behaviour; • Falling asleep on duty; • Not following instructions in teaching course content when relieving for a staff member; and • Investigation of an incident involving the birthing off lambs which was investigated by the Animal Welfare Directorate. 26. Throughout July and August 2015 I spoke to the Applicant as the above issues arose, in an informal way and asked his Head Teacher, Mrs Beverly Small to speak to him as well, depending on the seriousness of the complaint. 27. On 2 September 2015 I wrote to the Applicant inviting him to a meeting on 14 September 2015 to discuss concerns about his teaching performance including teaching a lesson that was not left by another staff member and written concerns from a parent and students about his teaching practice. I left this letter in the Applicant's pigeon hole at the School… 28. On 3 September 2015 the Applicant came to my office and asked to speak with me. 29. At first he wanted to discuss the letter dated 2 September 2015. I said "We need to follow what I put in the letter about meeting appropriately to discuss your concerns." He said "I do not want to be here [Condobolin], I want to move closer to home [Wagga Wagga]." It was clear that the Applicant was not happy living in Condobolin away from his family and friends. I put a range of options to the Applicant. I asked "How long have you been at the school? You don't have long to wait until you can apply for an incentive transfer to another school." I also said "You could start applying for jobs that are advertised. You could take leave without pay or you could always resign and get a casual number." The discussion was civil and I was simply offering advice about his options. The Applicant came back to the letter and wanted to pursue that matter again. I reiterated that "We need to discuss this in a formal meeting as set out in the letter." The Applicant was becoming agitated and said "I will not be made a scapegoat for all the crap that has been going on at this school for years." He then walked out of my office. Having only been in the School for a term myself I was not aware of what he described as "all the crap that had been going on at this school for years" and did not discuss the matter with the Applicant further. 30. This meeting was rescheduled to 16 September 2015 because the Applicant was on leave on 14 September 2015. 31. On 16 September 2015 I held a meeting with the Applicant to discuss my concerns with his teaching performance. This meeting was also attended by Deputy Principal, Mr Matthew Heffernan, Mrs Sonja Honeysett as the Applicant's support person and Mrs Shirley Fettell as minute taker. 32. The purpose of the meeting was to discuss my concerns about the Applicant's performance including swearing at a student, student and parent complaints, teaching a lesson about sexual reproduction not earth science as left by the teacher, delivery of Year 11 Agriculture and the management and organisation of Year 11 Primary Industries. 33. I gave the applicant the opportunity to respond and also informed him that he would begin a four week period of targeted support to address these ongoing concerns. ……………………….. 35. By letter dated 18 September 2015 I provided the Applicant with a copy of the minutes of the meeting of 16 September 2015 and confirmed that he had 42 days to respond to the concerns about his teaching performance raised at the meeting… 36. On 18 September 2015 I wrote a further letter to the Applicant confirming that from the beginning of term 4 he would start a program of support. I also confirmed that he only had approval to teach Primary Industries, Sport Lifestyle and Recreation, PASS, Primary, PDHPE and Infants (K-2)… 37. On 13 October 2015 I wrote to the Applicant inviting him to a meeting on 15 October 2015 to discuss a program of support. I set out in detail what would be discussed at the meeting… 38. On 15 October 2015 I met with the Applicant to further discuss the details of the informal support and allow the Applicant to ask questions. ……………………………. 41. The Applicant's performance had not improved following the four weeks of targeted support and I so decided that further support in the form of a TIP was required. Teacher Improvement Program 42. On 10 November 2015 I wrote to the Applicant inviting him to a meeting on 19 November 2015 to discuss his program of support… 43. At a meeting on 19 November 2015 I formally advised the Applicant that he had been identified as experiencing difficulties in meeting the required level of performance as a teacher. I told him that a further meeting would be scheduled to present information about this program of formal support. ……………………………… 45. This further meeting was delayed as the Applicant was on sick leave from 23 November 2015 until 26 July 2016. I understand that a work related injury was part of this leave. 46. I received a number of letters and emails during his period of sick leave from 19 November 2015 to April 2016 requesting that I further address his ongoing concerns. I agreed to address these concerns on the Applicant's return to work when he will be declared fit for duties. I advised him about the complaint mechanism for all departmental staff. ……………………………….. 48. I understand that on 5 April 2016 the Applicant made a formal complaint to the Director Public Schools, Maree Angus and followed this up with a telephone call on 15 April 2016 to make a complaint about my alleged bullying and aggressive behaviour towards him in Term 4, 2015. The Applicant requested that he complete the TIP at another school. 49. I understand that on 9 May 2016 Ms Angus wrote to the Applicant advising him of the outcome of his complaints. She found his complaints unsubstantiated and did not approve his request… 50. I understand that the Applicant sought a review of that determination. This was reviewed by Phil Hirst, representing the Executive Director, Mr Graham Kahabka. On 17 June 2016 the Applicant was informed by letter from that Ms Angus' determination was upheld… 51. On 26 July 2016 the Applicant returned to the School. 52. On 26 July 2016 the Applicant returned to School and I meet with him for a Return to Work meeting where I provided him with a two week Return to Work Program including six days of support… 53. The support included a meeting each day with Ms Small, Head Teacher to discuss lessons observed or taught, professional learning that had been missed during the Applicant's sick leave, curriculum support, writing a Personal Development Plan, discussing whole school strategic directions, syllabus requirements and completing mandatory training. 54. The Applicant was on further sick leave from 9 August 2016 and returned to full time duties on 29 August 2016 after providing me with a medical certificate indicating that he was fit for duty… 55. On 29 August 2016 I provided the Applicant with a timetable that reflected his qualifications and approval to teach the following subjects: • Primary Industries; • Sport, Lifestyle and Recreation; • Personal Development Health and Physical Education; and • Physical Activity and Sport Studies. 56. The Applicant completed a further three weeks of teaching before he commenced the TIP on 19 September 2016. 57. On 7 September 2016 I wrote to the Applicant inviting him to attend a meeting to discuss difficulties he was experiencing with his performance and to commence the implementation of the TIP. The letter indicated that the meeting would take place on 12 September 2016… 58. On the morning of 8 September 2016 the Applicant emailed me requesting that the meeting be held on another day so that his support person Sonja Honeysett could attend… 59. On the afternoon of 8 September 2016 by email and later via letter I confirmed that the meeting had been moved to 14 September 2016… Initial Meeting 60. On 14 September 2016 I met with the Applicant to discuss the implementation of the TIP. Also in attendance were Beverly Small (Head Teacher), Melissa Rees (Head Teacher Access), Matthew Heffernan (Deputy Principal), Sonja Honeysett (support person) and Tracey Stubberfield (Minute Taker). At the initial meeting I discussed his performance and explained the procedure of the TIP. 61. I confirmed that the TIP was to be conducted in accordance with the Teacher Improvement Program Procedures 2014 (Procedures)… 62. I informed the Applicant that Ms Small would be his first line of support as his immediate supervisor, Ms Rees would be supporting him with programming, lesson preparation, assessments and PDHPE and Mr Heffernan as Deputy Principal would be the supervisor of the program. I also informed him that I would be trying to engage teachers from other schools to provide support and observe lessons as well. 63. I explained to the Applicant that the TIP was a maximum ten week improvement program consisting of five weeks of support and guidance to address the issues of concern and, if I determined that it was required, a five week support, guidance and assessment period which is developed in consultation with the Applicant. ………………………………. Negotiation Meeting 68. The next scheduled meeting was the negotiation meeting. This took place on 16 September 2016. In attendance were myself, the Applicant, Mr Heffernan, Ms Small, Ms Rees, Ms Honeysett (as support person) and Shirley Fettle (as minute taker). 69. The Applicant was again provided with the draft TIP plan which indicated that he would be assessed on four standards. These are the Australian Professional Standards for Teachers (Standards), which all teacher at the Proficient level are measured and assessed against… 70. The Applicant's TIP involved the following standards: a. Standard 1: Know students and how they learn b. Standard 3: Plan for and implement effective teaching and learning c. Standard 4: Create and maintain supportive and safe learning environments d. Standard 5: Assess, provide feedback and report on student learning ……………………………… 73. Detailed lesson plans are required of teachers who have been identified as experiencing concerns with their performance and are placed on a TIP. 74. In a TIP a lesson plan is a document that is used to assist the teacher to plan for their lesson and to show that they are planning a lesson that will meet a Proficient standard. Also, it allows the observer to know what the teacher intends to do during the lesson and the outcome the teacher intends the students to achieve for that particular lesson. 75. At a minimum, lesson plans should include reference to the syllabus outcome(s), teaching activities and the timeframe for completion of each activity, strategies for student assessment and the resources needed in the lesson. Lesson plans should also include strategies for differentiation to meet the identified and varied needs of students, for example students who have English as a Second Language (ESL), students with learning difficulties or academically gifted students. 76. The plan sets out the intended purpose of the lesson and directs the teacher to ensure the students achieve the learning intentions. 77. The Applicant was only required to prepare lesson plans for the lessons that were observed during the TIP, not every lesson he taught during this period. TIP Commenced 78. The TIP Commenced on 19 September 2016. 79. In accordance with the Procedures as part of the TIP I held formal review meetings with the Applicant. We met to discuss the Applicant's progress, provide feedback, address any problem and determine future action.
Mr Ward then gave evidence about the applicant's performance during each of the ten weeks of the Teacher Improvement Program. His affidavit then continued as follows: Principal's Report 134. At the conclusion of the TIP I prepared a detailed report dated 13 December 2016 in which I recommended that the Applicant had not met the level of performance required for the position of Proficient classroom teacher and I set out my reasons for this recommendation in the Principal's TIP report. ……………………………… 136. On or about 13 December 2016 I sent a copy of my report and the TIP documentation to EPAC for review and determination in regard to further action. 137. On or about 13 December 2016 I informed the Director, Public Schools and advised that the matter is now referred to the Decision Maker. ………………………………. 139. There were 22 lesson observations conducted through the course of the program, 12 were support and guidance, 10 were assessed and 10 were deemed to be unsatisfactory… 140. I scheduled two further lessons but due to the Applicant's absence on one occasion and a whole school event on another these lessons did not occur. 141. The Applicant submitted 22 lesson plans but not all more than 24 hours in advance of the scheduled lesson. The lesson observers provided the Applicant with written feedback for the lesson plans that were submitted on time. At each review meeting the Applicant was also provided with the opportunity to ask questions and the lesson observers also provided verbal feedback on his observed lessons 142. As outlined above ten formal review meetings were held with the Applicant and a support person in attendance. The support person was provide with documentation in relation to their role. The Applicant had four different support people who attended the review meetings throughout the TIP. 143. At the beginning of every formal review meeting I or Mr Heffernan asked the Applicant about his personal wellbeing and whether he had been seeking support from the Employee Assistance Program or elsewhere. At no point did the Applicant provide me with a medical certificate or other evidence to suggest that he was not mentally or physically able to continue the TIP. 144. Ultimately, despite significant feedback during formal review meetings and individual support, guidance and assessments meetings the Applicant repeatedly failed to provide quality assessment and feedback strategies in his lesson plans, literacy and numeracy strategies were not planned or adhered to effectively or not at all. 145. Further the Applicant did not differentiate between students, sufficient time was not allocated to activities to allow for a structured lesson to occur, activities in the introduction, body and conclusion were not explained in detail or linked for an effective lesson to occur. 146. The Applicant provided little or no explanation of how to improve learning outcomes, teaching learning strategies needed to be more explicit, specific activities to extend gifted and talented students or support students with learning needs was not evident. 147. Throughout the TIP the Applicant neglected to follow feedback about incorrect outcomes and learn to and learn abouts. For Stage 5 PDHPD, Stage 4 outcomes were continuously referred to. Life Skills outcomes were being used instead of syllabus Learn to and Learn Abouts. Determination Meeting 148. The determination meeting took place on 13 December 2016. 149. On 13 December 2016 Mr Heffernan went to get the Applicant and asked him to attend my office at approximately 2:00pm. The school was in Activities Week and I knew the Applicant was free in the afternoon from approximately 12 noon. This was done to ensure the Applicant would not be actively supervising students and he would be free to attend the meeting. 150. I had asked Mr Duncan McDonald, NSW Teachers federation country organiser to make himself available for the meeting. He was travelling down from Dubbo and Ms Maree Angus Director Lachlan was travelling across from Orange. Therefore, a definitive meeting time could not be set as I had to work around their schedules and travel plans. 151. At the meeting on 13 December 2016 I informed the Applicant that I had determined that he had shown insufficient improvement in his teaching performance and that he was not meeting the required level of performance required. 152. I provided the Applicant with a copy of my report dated 13 December 2016 and advised him that he had 14 days to provide a written response to my report. 153. At the beginning of the meeting on 13 December 2016 I welcomed the Applicant to the meeting and Mr McDonald. I introduced Maree Angus and what her role was and Mr Heffernan. 154. I stated the following: Brad if you recall in our final review meeting on the 7th December I indicated that I would be reviewing all of the program documentation before making my Principal recommendation. Brad this is attachment 11 the Principal report and if you turn to the final page of this document under Principal recommendation it states 'it is recommended that The Applicant has not met the level of performance required for the position of classroom teacher'. I am also providing you with attachment 9 and 12. You do not have to sign these now. Brad I am also providing you with all the documentation, these six folders of all the support, emails, documents and attachments relating to the teacher improvement program, return to work program and informal support and concerns leading up to the TIP. I will also be providing this information to EPAC. Brad I am handing you this letter, which indicates a transfer of duties. 155. I also handed him a letter dated 12 December 2016 from Ms Kapsimali that advised him that he was to undertake alternative duties at Condobolin Public School… 156. I said to the Applicant "Brad could please hand over your keys and assist in removing all your personal effects from the school by 4pm." I set this as the time because this is when Mr McDonald had to leave by. I said "any items left behind will be boxed up and delivered to your address in Condobolin." 157. I then said "Could you please sign the documents I have given you and give them to Ms Nay Principal at Condobolin Public School by Friday 16th December." I thanked everyone for coming and the Applicant left my office with Mr McDonald. The meeting lasted approximately 30 minutes. 158. At approximately 5.00pm I was informed by Mr Heffernan that the Applicant had left the building. He had disposed of a lot of sensitive documents from the TIP in the bin and I asked that that be sealed and stored. The six folders were not retrieved by the Applicant and I helped carry them to Mr McDonald's car.
Mr Ward's affidavit then contained a detailed response to the three written statements relied upon by the applicant.
On the issue of practicability of reinstatement or re-employment, Mr Ward stated: Reinstatement 232. I would concern me immensely if the Applicant were to be reinstated to his role as a Teacher in the School or any other school because the Applicant does not have the capacity to meet the demands of a proficient teacher under the Australian Professional Standards for Teachers. 233. The Applicant lacks the professionalism required to work in a demanding school environment where student's needs are paramount. He fails to differentiate between the learning needs of all students or to account for the cultural needs. Teachers need to collaborate and seek professional advice and feedback, they need to continue to develop their skills and work to ensure they are meeting current procedures and guidelines set by NSW Education Standards Authority and the department. The Applicant did not do this.
Mr Ward was cross-examined at length by the applicant but did not resile from the evidence which he had given in chief.

Mr Heffernan

Mr Heffernan gave evidence with respect to his involvement in the applicant's Teacher Improvement Program, including his observations of lessons taught by the applicant throughout the ten weeks of the program. His affidavit then contained the following: Further Assistance Provided to Applicant as Part of the Teacher Improvement Program 85. As part of the TIP, I also spent time with the Applicant discussing aspects of the improvement program on a one on one basis. I met with the Applicant on 15 September, 23 September, 12 October, 19 October, 4 November, 7 November, 25 November, 29 November and 7 December 2016 as well as a number of informal discussions to discuss a number of different issues. 86. This involved discussions about how to address issues as well as working on specific tasks that had been requested of the Applicant in weekly review meetings. The Applicant rarely engaged in the discussions that were had or made any change to his practice. On a number of occasions the Applicant failed to complete tasks that were specifically asked of him. Most meetings involved discussing things that had already been discussed and the Applicant had made no improvement on. 87. As part of the TIP, I also provided the Applicant with support and guidance around programming, assessing and reporting. 88. I met with the Applicant on several occasions throughout the TIP to provide support around the development of yearly exams. For example, I provided the Applicant with an Assessment Monitoring Sheet for the High School Certificate Sport Lifestyle and Recreation (SLR) subject. I provided him with one on one support around the initial planning of the SLR Scope and Sequence, assessment schedule and assessment tasks. 89. As part of the TIP, I also provided the Applicant with support around behaviour management and the implementation of a behaviour management plan. 90. The Applicant had significant difficulties managing difficult student behaviour. I offered the Applicant a number of suggestions and strategies to assist the Applicant with implementation of the School's expectation of student behaviour. The Applicant did not apply these suggestions. The Applicant designed a behaviour management plan but it was not in collaboration with students, as suggested by me. The Applicant did not implement this plan. Rules and expectations were not displayed in the classroom or student workbooks and use of Positive Behaviour for Learning (PBL) language to support positive practices was not implemented. The Applicant also made a comment in lesson feedback that PBL language was not necessary. In a number of review meetings the Applicant admitted to not wanting to get into difficult situations with students. 91. In the lessons I observed I have ongoing concerns about the Applicant's inability to establish and maintain an orderly and workable routine which meant students spent long periods of time not engaged in their learning. 92. I also provided the Applicant with support and guidance with the expectation of the TIP, Programming and Assessment, Behaviour Management as well as support to be able to deal with members of staff that he felt he could not work with. 93. The Applicant was very negative about the student body at the School. He would often make reference to the fact that the reason lessons did not go well or the students were not engaged was because of the low academic ability or their poor behaviour. The Applicant was reluctant to acknowledge that he contributed to the classroom environment and could therefore change the attitudes and application of the students. The applicant was often reluctant to organise or attend meetings that were designed to assist him in completing the TIP.
Mr Heffernan also responded to the written statements of the applicant.

Ms Small

Ms Small gave evidence as to her involvement in the applicant's Teacher Improvement Program. Her affidavit contained the following: 45. As part of the TIP, I also provided the Applicant with support around behaviour management and the implementation of Positive Behaviour and Learning (PBL). 46. On 14 October 2018 (2016) the Applicant and I had a meeting. In particular, we discussed how to record students who have misbehaved on our welfare database. We spoke about a couple of students in particular. I asked the Applicant had he followed these students up and he had simply referred them to me but not dealt with the student through detention. I told him he needed to do follow up with students. Throughout the meeting, the Applicant continually put emphasis on the fact that these students were difficult and he should not have to deal with them. I also discussed with the Applicant Classroom Management Plans and incorporating PBL focuses on that plan. 47. The Applicant emailed me his Classroom Management Plan on the 19 October 2016. 48. We had another meeting on 1 December 2016 where I advised the Applicant he needed to make more welfare data entries if students were still misbehaving in his class. The classroom Management plan was either not implemented or effective. 49. I also provided the Applicant with support and guidance with professional learning. In order for the Applicant to understand the Teaching Standards I provided him with the Quality Teaching Framework that was aligned with the Teaching Standards. 50. The Applicant continually said that the way students behaved showed his teaching in a bad light. It was very difficult to talk to the Applicant about his teaching practice because he believed that how he was teaching was appropriate and he was only on a program because of the student behaviour and staff negativity. 51. I believe that in order for the Applicant to have succeeded on this program and for his teaching to improve he needed to acknowledge that there was a problem with his method of teaching. He also needed to embrace professional learning that others were trying to share with him. 52. I observed that he had a poor rapport with most students as he firmly believed that they should respect him because of his age and status, and did not feel that he had to earn their respect.

Ms Rees

Ms Rees gave evidence about her involvement in the applicant's Teacher Improvement Program and her observations of lessons taught by him. In particular, Ms Rees detailed the support she provided to the applicant on the development of his Teaching and Learning Programs and on other relevant aspects of teaching practice. Ms Rees' affidavit contained the following: 71. As part of the TIP I was responsible for providing support also on the development of the Applicant's Teaching and Learning Programs. 72. On the 13 October 2016 I provided the Applicant with an extensive feedback sheet outlining what should be amended in his draft programs. I had not received the practical PASS programs so could not reflect on those. I provided very specific information to the Applicant and was able to go through this in person during the meeting held in Period 1 on the 13 October 2016. The Applicant was encouraged to use the feedback and examples to ensure his final programs met all of the appropriate requirements. 73. On the 26 October 2016, I received the updated programs from the Applicant. Unfortunately these did not reflect the changes which were discussed during the support meetings. I was still without the practical programs for PASS and as such could not reflect on these documents. The major concerns I had on his programs was that they centred on incorrect syllabus information and outcomes, limited teaching and learning activities, the lack of differentiation, literacy and numeracy strategies and the timing of the programs - the content included was not reflective of the length of the programs. It was not until the 2 November 2016 that the Applicant forwarded me the practical programs at 5.45pm after further prompting by Mr Heffernan. 74. The Applicant seemed willing to engage, however in practice the feedback and support which was very specific was not implemented into the final programs. In one of the initial weekly meetings the Applicant could not explain the link between a lesson plan, a unit plan and a yearly program. The Applicant could not identify the correlation between a scope and sequence or and how the unit plans factored into this. A teacher would initially develop a Scope and Sequence which is a plan for the teaching progression for the year. From this the yearly teaching program is developed, this consists of a number of Unit Plans. Lessons plans are a breakdown of a units plan. In my discussion with the applicant I explained to him that if he wrote ten to twelve lesson plans and essentially stapled them together he would have a unit plan, and if he continued to do this for each unit he would have a Teaching Program. I used several examples including PDHPE and Agriculture as he insisted he had previously completed these items as an Agriculture teacher. Through my conversations with the applicant I do not believe he was aware of these program requirements in any capacity. 75. I also provided the Applicant with support and guidance with accessing of the Yearly Exams for the HSC and Preliminary cohorts, this occurred on the 12 October 2016. I took the Applicant through the accessing of exams on Microsoft One Drive and the ordering of exams on the shared spreadsheet. 76. I also provided the Applicant with support around teaching within the Lachlan Access Program. This included the delivery and receipt of lessons via video conferencing, the development of learning registers, support for the technologies used in these lessons, development of excursions across the Access Program and the reporting of students achievements. 77. I was also asked by Beverly Small, Head Teacher Secondary studies to work with the Applicant on the writing of Yearly Reports. I met with the Applicant on the 2 December 2016 around reports. I provided to him the course performance descriptors for PDHPE and PASS, I also provided a bank of A - E level report comments, I had also provided him with a reworked version of a student's report in the appropriate, standards based way of reporting. 78. I observed the Applicant to have a negative perception of the School and the students at the School. The Applicant was always quick to blame an unsatisfactory lesson on the behaviours of the students, however he would not willingly implement strategies to address student behaviours. The Applicant vary rarely returned any of my documentation in a signed capacity, he would not make meetings with me to discuss feedback and he had to be continually reminded to return my documents. It was due to this inability to meet with myself that my feedback was handed over and discussed in most of the weekly meetings.
Ms Rees' affidavit then set out her responses to aspects of the three statements relied upon by the applicant.
Ms Rees was not required by the applicant for cross-examination.

Mr Hamilton

Mr Hamilton came from his position as Deputy Principal at Parkes High School, at the request of Mr Ward, to observe a lesson and provide feedback and support to the applicant as part of the Teacher Improvement Program. Mr Hamilton gave the following evidence: 8. On the morning of 15 November 2016 I observed the Applicant in a Stage 5 (combined Year 9 and 10) SS1 (Self-select class 1) Personal Development, Health and Physical Education (PDHPE) lesson. Self-select is an initiative that supports positive learning in the classroom where students and parents make a written commitment to learning. I am qualified to teacher PDHPE… 9. This observation occurred in the support, guidance and assessment phase of the TIP. 10. The Applicant only provided me with a copy of his lesson plan the afternoon before the lesson. Therefore, I was only able to provide feedback on the lesson plan after the lesson… 11. During the lesson I wrote notes on the Applicant's lesson plan about the lesson I was observing. I showed this document to the Applicant after the lesson when I was providing him with oral feedback. I later scanned and emailed this document to Matt Heffernan from the School… 12. Following the lesson I observed, I prepared written feedback on the lesson plan and observed lesson. This feedback was based on what I observed during the Applicant's lesson. I assessed the lesson as unsatisfactory. I spoke with the Applicant after the lesson about my concerns for the lack of helmets and the students standing near the batter, getting closer towards the end of the game. There were other verbal comments mirrored on the observation sheet around confusion for the rules/scoring modification, some students sitting down/tracking of who batted verses fielded, limited links from previous lesson and then progression steps to new sport using similar practical skills. …………………………… 14. As indicated in my written feedback, my main concerns with the lesson were that the Applicant ran a poorly sequenced lesson from a previous lesson of the same game of softball. The Applicant did not clearly explain the rules of the game to the students and helmet safety was not followed as there were not enough helmets for four batters. The Applicant did not give the students an introduction to the game or complete a warm up first. Some students were allowed to sit under the tree for the whole class and not participate. The Applicant did not have a running check on who was fielding and batting, which led to students missing their tum and instead not being involved in the activity and sitting under the tree on the sports oval. The Applicant placed himself as pitcher for the whole lesson despite pitching being practiced by students in previous lessons. The Applicant's interaction with students was limited, although he did use positive reinforcement at times. The Applicant attempted to modify the lesson and the rules of the game which left many students confused. The Applicant did not stop the dangerous practice of students crowding near the batter each time.
Mr Hamilton also gave evidence about the support and guidance he provided to the applicant around information communications technology.
Mr Hamilton was not required by the applicant for cross-examination.

Ms Trudgett

Like Mr Hamilton, Ms Trudgett came from her position as Deputy Principal at Trangie Central School, at the request of Mr Ward, to provide feedback on the applicant's lesson plan including any suggested changes, observe a lesson and then provide feedback to the applicant after the lesson verbally and also by completing an observation report.
Ms Trudgett's affidavit contained the following: 9. On the morning of 31 October 2016 I observed the Applicant in a Stage 5 (Year 9 and 10) PASS (Physical Activity and Sports Studies) lesson. As a PDHPE teacher I am qualified to teach PASS and have previously taught this subject both at Dubbo College Senior Campus and Dubbo College Delroy Campus… 10. This observation occurred in the support and guidance phase of the TIP. 11. The Applicant provided me with a copy of his lesson plan prior to the lesson. I then made some notes (underlined) on the document. I cannot recall if I provided this document with my mark ups beforehand or on the day of the lesson observation. The lesson plan provided was not detailed enough and was difficult to follow. It was only after the lesson that the Applicant told me that he had accidently emailed me the wrong lesson plan. I cannot recall whether he later provided me with the correct lesson plan or not… 12. I prepared written feedback on the lesson plan which I provided to the Applicant after the lesson… 13. Following the lesson I observed, I prepared written feedback which was provided to the Applicant. This feedback was based on what I observed during the Applicant's lesson. 14. ... I provided the feedback to the Applicant by email after the lesson. After the lesson I have a conversation with the Applicant about my concerns during the lesson. These concerns are the concerns set out in my lesson plan feedback and lesson observation feedback. 15. As indicated in my written feedback, my main concerns were a failure by the Applicant to maintain a supportive and safe environment through setting clear rules with the students about participation, mobile telephone use, lateness and at times rough play between students. 16. I also provided the Applicant with support and guidance around the refinement and development of assessment tasks. I assisted the Applicant with preparing a Year 12 Sport Lifestyle and Recreation assessment task. The assessment task cover sheet did not reflect the Board of Studies (as it then was) requirements or match the submitted assessment schedule. We had to re-do the assessment task description because it was unclear and also the marking criteria as sections of it were missing. 17. From observing the Applicant during one lesson and working on an assessment task with him, my overall impression of the Applicant was that he needed to be more detailed in his teaching, program and assessment task preparation. Therefore as a result of this, I deemed the Applicant unsatisfactory.
Ms Trudgett was not required by the applicant for cross-examination.

Ms Kapsimali

Ms Kapsimali, in her capacity as Director, Staff Efficiency and Conduct Team, EPAC, gave the following evidence: 10. On 12 December 2016 I wrote to the Applicant informing him that his Principal had recommended that his efficiency be determined as not satisfying requirements for the position held and referred the matter to EPAC for review. I also informed him that, pending the outcome of the review process, he was to report to Condobolin Primary School for alternative duties from 14 December 2016. I also invited him to provide a reply to the Principal's Report… 11. On or about 5 May 2017 I received the file of the Applicant for review and consideration. I was provided with the following: a. Material generated during the Teacher Improvement Program (TIP) …; and b. Review of TIP prepared by Kerryanne Knox dated 3 April 2017 (Review Report). ……………………………… 14. After reviewing all the material referred to in the above paragraphs, I was satisfied that: a. In 2015 the Principal identified the Applicant as experiencing difficulties with his teaching performance while at Condobolin High School (School); b. Mr Jeffrey Ward, Principal and other staff at the School provided the Applicant with structured individualised support; c. Following the provision of structured individualised support the Principal still had concerns about the Applicant's teaching performance and determined that further support was needed through the implementation of a TIP; d. In 2016 the Applicant was placed on a TIP in accordance with the department's Teacher Improvement Program procedures dated July 2014 that were negotiated with the NSW Teachers Federation (Procedures) …; f. The TIP was conducted in accordance with the Procedures; g. The matter was referred for review and Kerryanne Knox, the reviewing officer was of the opinion that the Procedures were followed; and h. The Applicant had received a copy of the documentation from the formal TIP. 15. After considering all the material, I formed the opinion that the Applicant's work performance was still unsatisfactory. It was clear from the paper work before me, that the Applicant had been identified as experiencing difficulties with his teaching performance, and despite being provided with support to address these concerns, his Principal was of the view that he had not been able to meet the standard of performance required. 16. On 19 July 2017 I wrote to the Applicant advising him of my opinion and that I was considering imposing disciplinary action. I indicated that the most severe disciplinary action I was considering was dismissal and whether or not I should place the Applicant's name on the list of persons not to be employed in NSW Government schools (NTBE List)… 17. In that letter the Applicant was: a) Advised that before making a final decision on the appropriate action, I would also consider his previous misconduct and new allegations of misconduct. b) Provided with 14 days to provide a submission and to provide any additional information that the Applicant considered should be taken into account before the decision maker made a final decision; c) Provided with an opportunity to attend an interview with the decision maker (accompanied by a support person) before a final decision was made, if he so requested; d) Advised of where he could seek support and advice; e) Advised that I had been advised that he had already received a copy of the documentation from the formal Improvement Program; and f) Provided with a copy of: a. The Review Report dated 3 April 2017; and b. The relevant sections of the Teaching Service Act 1980. 18. I came to this determination in [16] (above) because of the following: a. I was of the opinion that the Applicant had been identified by his Principal as experiencing difficulties with his teaching performance. I was satisfied that the Principal attempted to support the Applicant to address these concerns. b. Having reviewed all the material, I was satisfied that the TIP was conducted in accordance with the Procedures and that the Applicant had been afforded procedural fairness throughout the TIP. c. At the end of the TIP, the Principal was of the view that he Applicant had not met the level of performance required for a classroom teacher. d. The report of the Reviewer confirmed the Principal had conducted a procedurally fair process and that the evidence collected was aligned to the assessed Standards and demonstrated the Applicant was not performing at the level expected of a proficient teacher. 19. On 21 July 2017, I handed the file over to Mark Anderson who was appointed to act in my role whilst I was on leave from 24 July 2017 to 29 September 2017. Mr Anderson would review the material and make a final decision.

Mr Anderson

Mr Anderson was relieving in the role of Director, Staff Efficiency and Conduct Team, EPAC, between 24 July and 29 September 2017 whilst Ms Kapsimali was on leave. In that capacity, Mr Anderson was the decision maker in relation to the termination of the applicant's employment.
Mr Anderson gave the following evidence: 5. In the period of time referred to in paragraph 3 (24 July - 29 September 2017), I was delegated with authority to exercise all of the Secretary's powers under Part 4A of the Teaching Service Act 1980 (Act), with regard to the management of performance. This includes the delegation to take dismissal action under the Act. 6. The objects of Part 4A of the Act are: a. To maintain appropriate standards of conduct and work related performance for officers in the Teaching Service; b. To protect and enhance the integrity and reputation of the Teaching Service; and c. To ensure that the public interest is protected. 7. Section 5A of the Act requires that the welfare of children is to be the paramount consideration when taking action in relation to an officer under the Act, and in dealing with any appeal against or in determining any claim arising from or in relation to that action. ……………………………… 12. As part of my role as Relieving Director, SECT, EPAC, on or about 24 July 2017 I received the file of the Applicant for review and consideration. I was provided with the following: a. Material generated during the Teacher Improvement Program (TIP) …; b. Review of TIP prepared by Kerryanne Knox dated 3 April 2017 (Review Report) …; c. Submissions to Decision Maker and annexures dated 28 April 2017 prepared by Genna Coffill, SECT, EPAC …; and d. Show cause letter from Veronica Kapsimali, Director, SECT, EPAC to the Applicant dated 19 July 2017 ... 13. After reviewing all the material referred to in the above paragraph, I was satisfied that: a. In 2015 the Principal identified the Applicant as experiencing difficulties with his teaching performance while at Condobolin High School (School); b. Mr Jeffrey Ward, Principal and other staff at the School provided the Applicant with informal support; c. Following the provision of informal support the Principal still had concerns about the Applicant's teaching performance and determined that further support was needed through the implementation of a TIP. d. In 2016 the Applicant was placed on a TIP in accordance with the department's Teacher Improvement Program procedures dated July 2014 that were negotiated with the NSW Teachers Federation (Procedures)… e. At the end of the TIP the Principal determined that the Applicant had not met the level of performance required for the position of classroom teacher. f. The TIP was conducted in accordance with those Procedures; g. The matter was referred for review and Kerryanne Knox, the reviewing officer was of the opinion that the Procedures were followed. h. The Applicant had received a copy of the documentation from the formal TIP. i. On or about 5 May 2017 the matter was referred to Veronica Kapsimali, Director, SECT, EPAC for consideration as decision maker. j. Ms Kapsimali reviewed the documents relating to the TIP and the independent review and formed the opinion that the Applicant's work performance was still unsatisfactory following completion of a TIP. k. On 19 July 2017 Ms Kapsimali wrote to the Applicant… inviting him to provide a response to her proposal that she impose disciplinary action, the severest penalty being dismissal from the Teaching Service and that she place his name on the department's list of persons not to be employed in NSW Government Schools in any capacity (NTBE List). l. In that letter the Applicant was also advised where he could seek support and advice, provided with an opportunity to attend an interview with the decision maker and a copy of the Review Report and relevant sections of the Act. 14. The Applicant requested an interview with me as decision maker. 15. On 4 August 2017 the Applicant attended an interview with me and at interview provided me with a written submission on penalty... I have read the transcript of interview and confirm that it appears to be an accurate reflection of the interview... 16. On 16 August 2017 the Applicant provided a further written submission dated 13 August 2017 on penalty for my consideration... 17. After carefully considering all relevant material including the information provided by the Applicant at interview, his written submissions, together with all material generated during the TIP and Part 4A and 5A of the Act, I determined that I agreed with Ms Kapsimali's opinion that the Applicant's performance had been properly assessed as unsatisfactory. By way of disciplinary action, I determined that it was appropriate to direct the Applicant to resign and to place his name of the NTBE List. 18. On 30 August 2017 I wrote to the Applicant informing him of my final decision. I directed him to resign from the Teaching Service within 14 days and informed him that a failure to resign within this timeframe would result in dismissal. I also informed him that I had recommended that his name be placed on the NTBE List… 19. I came to this determination because of the following: a. I was of the opinion that the Applicant had been identified by his Principal as experiencing difficulties with his teaching performance. I was satisfied that the Principal attempted to support the Applicant to address these concerns. b. Having reviewed all the material, I was satisfied that the TIP was conducted in accordance with the Procedures and that the Applicant had been afforded procedural fairness throughout the TIP. c. At the end of the TIP, the Principal was of the view that the Applicant had not met the level of performance required for a classroom teacher. d. The report of the Reviewer confirmed the Principal had conducted a procedurally fair process and that the evidence collected was aligned to the assessed Standards and demonstrated the Applicant was not performing at the level expected of a proficient teacher. e. In both the Applicant's written submission and that made directly to me in an interview on 4 August 2017, no compelling evidence was presented that led me to believe he was unfairly treated. 20. I also took into account Part 4A and 5A of the Act when considering what disciplinary action was appropriate after determining that the Applicant's performance was unsatisfactory. Students have the right to be taught by competent teachers. The Principal determined that the Applicant had not met the level of performance required and I supported that view. Therefore, I did not consider it appropriate that he continue teaching. 21. In the Applicant's submissions to the proposed penalty dated 13 August 2017 the Applicant requested that I take into account a number of "extenuating circumstances". I took these circumstances into account but was of the view that he did not provide any additional or compelling information that would alter the original opinion formed by Ms Kapsimali with which I agreed. 22. I am aware that the Applicant had a number of allegations of misconduct against him that had not yet been fully investigated by the department (set out in the letter from Ms Kapsimali to the Applicant dated 19 September 2017). I did not take these allegations into account when making my decision as my concern was the matter of performance. Further, in making his submission, the Applicant confined his response only to the TIP and did not address the conduct allegations raised in Ms Kapsimali's letter. 23. I understand that when the TIP commenced EPAC put the investigation of these allegations on hold. As the Applicant was ultimately dismissed following failure of the TIP EPAC determined that it was unnecessary for the department to finalise those investigations. 24. On 18 September 2017 the Applicant resigned from the Teaching Service effective that same day... 25. I have been provided with a copy of the Applicant's unfair dismissal application and the three statements filed by him on 29 January 2018. I have read this material and nothing in that material causes me to change my view that my decision to direct the Applicant to resign and place his name on the NTBE List, was appropriate. 26. In the Applicant's statement (Statement 2, page 2), the Applicant states "[information was given] at a meeting with Mark Anderson Head of Education and Performance and Conduct, to discuss why I should not be dismissed. It was ignored ... ". This is not correct. I gave full consideration to the information provided to me. However, such information did not cause me to form a view that the Applicant not be directed to resign. Reinstatement 27. It is impracticable for the Commission to make an order reinstating the Applicant to his former positon as a teacher at Condobolin High school because the Applicant is not currently accredited as a teacher as required by the Teacher Accreditation Act 2004 (TA Act). 28. Section 28(1) of the TA Act states that a person must not teach in a school unless they are accredited. Under section 28(2) of the TA Act, the Secretary cannot employ a person to teach in a NSW government school unless the person is accredited. 29. On 1 March 2018 the department received an email from the NSW Education Standards Authority confirming that the Applicant is not accredited… 30. For the reasons set out in paragraphs 26 to 28 re-employment is also impracticable.
Mr Anderson was cross-examined by the applicant with respect to paragraph 7 of his affidavit. The following exchange occurred: Q. Mark, do you have a copy of the affidavit? A. Yes I do. Q. Point 7 please, could you just read that to yourself? A. That's section 5A of the Act? Q. Correct? A. Yes. Q. You say here that you're suggesting that I'm considered a threat to the students' welfare? A. That the protection of children includes the protection of children from teachers who are unsatisfactory. At the conclusion of the improvement program you were found to be unsatisfactory. Q. Unsatisfactory in my teaching performance? A. That's correct. Q. Is there any reason that I am a threat to students such as to their physical or mental wellbeing? A. The context of 5A, the welfare of the students is the protection of students from teachers who are unsatisfactory and for me unsatisfactory means a teacher who is not proficient and as a result of the improvement program you were not proficient. Q. Does that mean I was not proficient in delivering content to the students? A. You were not proficient in the standards that you were assessed against and from memory I think they were standards 1, 3, 4 and 5. Q. Point 7 again, and that is how I'm a threat to the students? A. You use the word "threat", it is the protection of children from teachers whose performance is not proficient because of the impact it has on them on their learning of their life chances. Q. What evidence do you have of this? A. The evidence I have is the improvement program that you completed, the principal's report, the reviewer's report, all the documentation that I considered in relation to the Teacher Improvement Program.
The applicant filed a statement in reply in which he took issue with much of Mr Ward's evidence and parts of the evidence of some of the other witnesses for the Department.
Both parties filed lengthy written submissions and spoke to those submissions on the last day of the hearing, 19 October 2018. I deal with what I regard as the most relevant aspects of those submissions in the remainder of this decision.

Was the dismissal of the applicant harsh, unjust or unreasonable?

I accept that the reason for the termination of the applicant's employment was his failure to demonstrate, through the Teacher Improvement Program he underwent in 2017, that he met the level of performance required of a proficient classroom teacher.
This Commission has dealt, on a number of occasions, with unfair dismissal applications from teachers who have been deemed unsatisfactory following their participation in a Teacher Improvement Program.
In Buchanan v. Secretary, NSW Department of Education ([2016] NSWIRComm 1045) Commissioner Newall stated: 19. The matter of course does not end there. What we have in my view is a teacher who did not satisfy a TIP. It is not mandatory to dismiss such a teacher although a dismissal on the basis of a perceived lack of competence may well arise from failure successfully to complete a TIP. Indeed such a failure might well, in the usual the case, be a sound basis for dismissal. Again I note here that the applicant was invited to resign rather than suffer the stigma of dismissal in the first instance but she declined, which of course was her right. And although it may well be usual, and indeed it may well generally be justified, to dismiss a teacher who has not been able to demonstrate competence through the mechanism of a TIP, the decision to dismiss a teacher for lack of competence does not necessarily and ineluctably follow from an unsuccessful TIP. 20. It must be considered that teachers are generally vocationally committed to teaching and invest, in many cases, their lives into it; Mrs Buchanan is no exception to that. Any such determination of the future of a teacher has to go further than a simple assessment of whether or not a TIP has been successfully completed. It has to have regard to all of the facts and the circumstances including the career history of the teacher and including the circumstances under which the TIP was in fact carried out. 21. Included of course in those matters if not at the head of those matters is s 5A of the Teaching Service Act 1980. There is an imperative on this Commission as well as on the department, the respondent, to ensure the protection of children under s 5A of the Teaching Service Act. 22. That has been held in a number of cases: New South Wales Teachers' Federation (on behalf of Debra Balsters) and New South Wales Department of Education and Training [2008] NSWIRComm 32, which was upheld on appeal, it is one, and Cassis v NSW Department of Education and Training [2006] NSWIRComm 164 is another. In Balsters, Sams DP held: "the term "protection of children" extends to the protection of children from teachers whose unsatisfactory performance arises from an inability to demonstrate effective classroom management or an inability to provide a safe and challenging learning environment. To put it bluntly, the Teaching Service Act requires the Department to ensure that children are protected from incompetent, ineffective, hopeless or indolent teachers" ……………………………… 29. The decision to terminate her employment, noting that at first resignation was offered, was, it is clear from Ms Thorpe's evidence, based effectively and squarely on the TIP result. I say again, the department is not wrong to take that approach at large. The TIP is an agreed structure to measure teachers' competency. If a teacher does not pass the TIP the prima facie view is well available that there is a deficiency in competency, and the department is entitled to act thereon. It must also, as I say, have regard to any particular circumstances that might have affected that result and those circumstances do, in my view, exist here.
I approach the determination of this application on the same basis as that enunciated by Deputy President Sams in Balsters and Commissioner Newall in Buchanan. That approach gives primacy to the protection of children as is the statutory imperative pursuant to section 5A of the Teaching Services Act 1980. That imperative extends to the protection of children from having the quality of their school education compromised by being exposed to teachers who do not meet the level of performance required by the Department of a proficient classroom teacher.
Further, where the Department, in this case in the person of Mr Anderson, has determined that a teacher, who has undergone a Teacher Improvement Program in accordance with the relevant departmental guidelines, is not proficient, it is not the role of this Commission to disturb such a determination unless a compelling case has been made out for so doing. Members of this Commission are not classroom teachers. We are not present in the classroom when lessons are being observed. We do not participate in the numerous review meetings that occur throughout the duration of a Teacher Improvement Program. The Commission will be reluctant to intervene in a case such as this unless it can be demonstrated that the Teacher Improvement Program has been conducted in a manner that has been unfair to the teacher involved such as to invalidate the outcome and render the ultimate determination unsound.
For the reasons set out at paragraph 25 of his affidavit (see [62] above), I accept that, in the second half of 2015, Mr Ward had legitimate concerns about the applicant's teaching performance such as to warrant a program of support for the applicant being put in place. This commenced on 5 October 2015. According to Mr Ward, following the four weeks of targeted support, limited improvement was evident. Mr Ward determined that the applicant would be required to undertake a Teacher Improvement Program and the applicant was informed of this on 19 November 2015.
Because of the applicant's absence from the School due to illness from 23 November 2015, the Teacher Improvement Program was not commenced until after the applicant returned to work on 26 July 2016. The program ultimately commenced on 19 September 2016.
During the Teacher Improvement Program, there were 20 lesson observations conducted by Mr Ward, Mr Heffernan, Ms Small or Ms Rees. The two participants from outside the School, Mr Hamilton and Ms Trudgett, conducted one lesson observation each. Twelve of the lesson observations were "support and guidance", ten were assessed and each of those ten was assessed as unsatisfactory, as set out in the table below: Date Class Observer S&G/Assessment 20/09/2016 Stage 5 SS1 Melissa Rees Support & Guidance PDHPE 21/09/2016 Stage 5 NSS1 Matthew Heffernan Support & Guidance PDHPE 11/10/2016 Year 12 Beverly Small Support & Guidance Primary Industries 12/10/2016 Stage 5 SS1 Matthew Heffernan Support & Guidance PDHPE 14/10/2016 Stage 5 NSS2 Jeffery Ward Support & Guidance PDHPE 17/10/2016 Stage 5 PASS Melissa Rees Support & Guidance 18/10/2016 Year 12 Sport Lifestyle Recreation Matthew Heffernan Support & Guidance 21/10/2016 Stage 5 SS1 Melissa Rees Support & Guidance PDHPE 25/10/2016 Year 12 Beverly Small Support & Guidance Primary Industries 31/10/2016 Stage 5 PASS Dimiti Trudgett Support & Guidance 01/11/2016 Year 12 Sport Lifestyle Recreation Matthew Heffernan Support & Guidance 04/11/2016 Stage 5 SS1 Matthew Heffernan Support & Guidance PDHPE 08/11/2016 Year 12 Beverly Small Unsatisfactory Primary Industries 10/11/2016 Stage 5 PASS Melissa Rees Unsatisfactory 14/11/2016 Stage 5 NSS2 Jeffery Ward Unsatisfactory PDHPE 15/11/2016 Stage 5 SS1 Darren Hamilton Unsatisfactory PDHPE 23/11/2016 Stage 5 SS1 Matthew Heffernan Unsatisfactory PDHPE 25/11/2016 Year 12 Sport Lifestyle Recreation Matthew Heffernan Unsatisfactory 29/11/2016 Year 12 Jeffery Ward Unsatisfactory Primary Industries 02/12/2016 Stage 5 SS1 Melissa Rees Unsatisfactory PDHPE 05/12/2016 Stage 5 SS1 Melissa Rees Unsatisfactory PDHPE 06/12/2016 Year 12 Sport Lifestyle Recreation Matthew Heffernan Unsatisfactory

There were ten review meetings held throughout the course of the program. The applicant had a support person, albeit not the same individual, present with him at each of those meetings. A significant amount of documentation was generated by the participants in the program which identified deficiencies in the applicant's teaching performance and which sought to address those deficiencies and improve the applicant's performance against standards 1, 3, 4 and 5 of the Australian Teaching Standards.
The Principal's Report prepared by Mr Ward at the completion of the Teacher Improvement Program contained a thorough and detailed analysis of the applicant's teaching performance and noted some areas of improvement. However, the report concluded with the Principal's recommendation in the following terms: It is recommended that Mr Kent has not met the level of performance required for the position of a classroom teacher.
The applicant proffered a number of reasons why the manner of implementation and the conduct of the Teacher Improvement Program were unfair and why the outcome of the program should not be accepted by the Commission. He put a number of these reasons to Ms Kapsimali in the following exchange during cross-examination: Q. Do you agree the change in the subjects I was teaching was only done so that I would be assessed on subjects that I was approved to teach? A. You in fact were assessed on subjects that you had already taught and you were given the subjects that you were approved as well, when the change occurred, yes. But can I also mention that standard 2, which is about know your content, you were never assessed on your content, you were assessed on your teaching practises. Q. Were you aware that I did my Teaching Improvement Program on PE? A. Yes. Q. Were you aware that I'd not taught this subject continuously since 1999? A. Mr Kent, you were not assessed on your content. Q. Could you answer the question please? A. Yes I was aware. Q. Were you aware that I had been at the agriculture in the years prior to doing my Teaching Improvement Program after receiving an appointment from the DET? A. Yes. Q. Were you aware that another teacher had been appointed by Mr Ward as the agriculture teacher without any consultation with me only weeks before I started my Teaching Improvement Program? A. Yes. Q. Were you aware that a local teacher was teaching the PE classes for most of the year prior to them being allocated to me in August? A. Yes. Q. Were you aware that I'd only taught the classes I was assessed on for three weeks prior to commencing my Teacher Improvement Program? A. Yes. Q. Were you aware that I'd been on Workers Compensation caused by actions of staff relevant to this case on three occasions prior to commencing my Teacher Improvement Program? A. I was aware you were on Workers Compensation, yes. Q. On three occasions? A. You'd have to give me the time frames. Q. Three separate occasions from November 15 to December 15? A. Yes. Q. And from January to July 15 and late August to the end of August? A. Mm, yes. Q. Were you aware that this was my first experience with the quality teaching framework and it was only weeks before commencing my Teacher Improvement Program? A. Yes I was aware of that, I read it in your statement. Q. Were you aware that these guidelines of this framework were used during my Teacher Improvement Program? A. Yes, it's the standard that must be undertaken and looked at. Q. Was it compulsory for this framework to be used in schools? A. Quality teaching framework has been in schools for a very long time and yes they should be using a quality teaching framework. Q. Are they compulsory to be used in schools? A. They're not mandated but yes it is good practise to use quality teaching framework. …………………………….. Q. Considering the allegations of misconduct were never resolved, do you think banning me from teaching, effectively ending my career, is the penalty I deserve? A. Based on the fact that you were deemed and I deemed your inefficiency in meeting the professional teaching standards, yes I found that you did not sustain your practises, you did not improve despite the level of support. Q. And that penalty of never being able to teach again is the penalty that I deserve? A. I had the grave concerns about you being in front of a classroom with the number of students, given that four of the professional teaching standards you were not able to meet. Q. And the welfare of the students had no consideration? A. I'm sorry, I don't understand. Q. Well there's been lots of documents entered about the safety of the students and teacher threats, teachers being intimidated by me, did you take any of that into place, into consideration when handing down your decision? A. No I took into consideration based on the four professional teaching standards, that was professional teaching standard 1, 3, 4 and 5.
Nothing that has been put before the Commission by the applicant in his evidence, in his submissions or in the matters raised by him in cross-examination of the Department's witnesses, has persuaded me that there should be any disturbance of the recommendation of Mr Ward which has been supported by the reviewer Ms Knox, by the decision maker, Mr Anderson and by Ms Kapsimali.
I formed the impression that each of the Department's witnesses gave their evidence in a forthright but balanced and fair manner. This was especially so in the case of Mr Ward who was cross-examined at length over the course of three days, including one full day, by the applicant. Mr Anderson and Ms Kapsimali were also impressive witnesses.
On the other hand, the applicant's evidence, submissions and responses under cross-examination were often discursive, sometimes rambling and failed to come to grips with the essential element of this case, being his unsatisfactory performance as a classroom teacher which was so clearly identified during the Teacher Improvement Program. One example of the applicant's misguided approach to this matter was the inordinate amount of time spent by the applicant cross-examining Mr Ward about the "lambing incident" which occurred on 7 August 2015 and which had miniscule, if any, relevance to the termination of the applicant's employment.
I reject entirely the applicant's complaints that the Teacher Improvement Program which he underwent in 2017 was, in some way, conducted in a manner which was unfair to him or that he was denied procedural fairness. I find that each of the persons who was involved in the program, including Mr Ward, conducted themselves in a professional and unbiased manner in a genuine attempt to assist the applicant to improve his teaching performance. Unfortunately, and not through any fault of theirs, those attempts did not prove fruitful.
For the reason that the applicant has not met the level of performance required for the position of a classroom teacher, I find that his dismissal by the Department, which was effected by requiring him to resign, was neither unjust nor unreasonable. However, section 84 of the Industrial Relations Act 1996 also directs the attention of the Commission to the question as to whether or not a particular dismissal may, nevertheless, be harsh.
In Greig v Secretary, Department of Education ([2018] NSWIRComm 1077) Commissioner Seymour considered the issue of harshness in relation to the dismissal of a teacher with approximately 33 years' service, after his teaching performance was deemed to be unsatisfactory following a Teacher Improvement Program.
Commissioner Seymour dealt with the issue of harshness as follows: HARSHNESS 70 The remaining question is whether, in all the circumstances, the dismissal was harsh. The meaning of the expression "harsh" was considered by the Full Bench in Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 ('Fraser'): [24] The term "harsh" was considered by the Full Bench of this Commission in Department of Health v Perihan Kaplan (2010) NSWIRComm 65. It was observed at paragraphs 27-29 that: ...........There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union (1971) AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals........requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". … We would add to the discussion of the meaning of the expression 'harsh' [for the purposes of s 84 (1)], our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch, [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of fairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence." And later at [35]: Bearing in mind the foregoing discussion of principles, we will consider the severity of the penalty inflicted on the respondent for his misconduct having regard to relevant mitigating circumstances. In other words, it is necessary to consider whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the respondent. 71 Applying these principles, the assessment of harshness involves balancing or weighing the nature of Mr Greig's unsatisfactory performance giving rise to the dismissal against any mitigating circumstances: Fraser at [35]-[47]. 72 I agree with the position expressed by Commissioner Newall in Buchanan, that the prima facie position is that the Department is entitled to dismiss a teacher who fails a TIP as demonstrating a deficiency in competency: [19] What we have in my view is a teacher who did not satisfy a TIP. It is not mandatory to dismiss such a teacher although a dismissal on the basis of a perceived lack of competence may well arise from failure successfully to complete a TIP. Indeed such a failure might well, in the usual the case, be a sound basis for dismissal. Again I note here that the applicant was invited to resign rather than suffer the stigma of dismissal in the first instance but she declined, which of course was her right. And although it may well be usual, and indeed it may well generally be justified, to dismiss a teacher who has not been able to demonstrate competence through the mechanism of a TIP, the decision to dismiss a teacher for lack of competence does not necessarily and ineluctably follow from an unsuccessful TIP. …. [24] It is the case, I say again, that the TIP was not satisfactorily performed. Prima facie that allows a conclusion that the teacher is not competent, but I have formed the view that there are a number of aspects of this particular TIP at the particular time at which it was conducted that stand against a hard and fast view that its unsuccessful completion, which was the case, inexorably leads to a view that Mrs Buchanan must be dismissed for incompetence on the basis of that TIP. Those matters go to personal matters affecting Mrs Buchanan, one being the death of her father. … [29] The decision to terminate her employment, noting that at first resignation was offered, was, it is clear from Ms Thorpe's evidence, based effectively and squarely on the TIP result. I say again, the department is not wrong to take that approach at large. The TIP is an agreed structure to measure teachers' competency. If a teacher does not pass the TIP the prima facie view is well available that there is a deficiency in competency, and the department is entitled to act thereon. It must also, as I say, have regard to any particular circumstances that might have affected that result and those circumstances do, in my view, exist here. …………………………… 76 Mr Greig had approximately 33 years' service with the Department, the majority of his working life. This is a relevant and significant factor that I have weighed very carefully in considering the harshness of his dismissal. I accept that Mr Greig genuinely believes his dismissal to be harsh. However, regrettably, in my opinion this is the result of his perception of his performance and consequent failure to accept feedback and need to improve in certain areas, rather than dismissal being an objectively harsh outcome. 77 Mr Greig did not, and still does not, accept that his performance as a teacher was in any way unsatisfactory. He stated this unambiguously in his written submissions: "I am a proficient teacher. I firmly believe that." He maintained in these proceedings that the observations and opinions of all of the persons who observed his classes were wrong. The content and tone of Mr Greig's written comments on his colleague's written observations of his lessons demonstrates his dismissive attitude to constructive feedback about areas of improvement in his work performance. Mr Feros opined that it ought to have been a simple matter for Mr Greig to have met the requirements of the TIP given his experience. However, he considered Mr Greig was resistant to the TIP because he believed he was proficient in teaching and a TIP was therefore unjustified. 78 Ms Knox was the Independent Reviewer who examined all of the documentation relating to Mr Greig's performance management process, including a statement by the Principal Ms Wyatt and Mr Greig's response. Ms Knox has 40 years' experience with the Department, including as a classroom teacher, Assistant Principal, Principal and regional Director of Education. Ms Knox summarised her conclusions as follows: Mr Greig was passionate about his subject area Mr Greig's involvement in the production side of school performances was impressive Mr Greig was underperforming as a classroom teacher and did not meet the Standards 1, 3 and 5 as detailed in the Australian Professional Standards for Teachers Mr Greig made choices about his involvement in the TIP process that impacted on his ability to participate positively in the process. In fact there was a high level of arrogance about any feedback provided to Mr Greig and this resulted in him making critical statements about the management of the school. Mr Greig had difficulty accepting that his teaching practice was in question. The management of Mosman High School could not be blamed for Mr Greig's personal choices in relation to moving to Sydney away from his family. …. Mr Greig's former experience indicated that his teaching practice was not always deemed as poor and in fact, Mr Greig had received in his earlier years of teaching, accolades for his work. In my opinion, Mr Greig was facing difficulties in managing some of the teaching requirements that are relevant and necessary to student learning today, as well as meeting administrative requirements. 79 My review of the evidence in this matter leads me to draw similar conclusions to those of Ms Knox. The Department sought through its usual process to convey to Mr Greig the aspects of his teaching that, as his employer, it considered were not proficient. Unfortunately, Mr Greig did not agree with the fundamental premise of the process, namely, that his teaching was not proficient. Accordingly, he did not accept there was any justification for the TIP or need for him to improve. He focussed instead on the process followed by the Department. I have found that process to be reasonable and fair. 80 Mr Greig maintained this position during the Commission proceedings and failed to acknowledge that any concerns held by the Department about his performance were legitimate. Of particular concern was his apparent inability to appreciate the concerns expressed by the parents of students in his Year 11 English class and other classes who asked to be moved, or reflect on what role he may have played in that request. Mr Greig's statement in this Commission about the Year 11 students who requested to move out of his English class demonstrates his failure to accept the feedback given to him about his performance, effectively putting it down to the students' 'unrealistic expectations': Mr Greig: And I would also say that at Mosman the students who have moved from my class didn't do any better. … Commissioner: --there's no evidence of that. Mr Greig: But it didn't - you know, sometimes, particularly going into Year 11, students have unrealistic expectations of what they might achieve and Year 11 is often a year of reckoning for them, which can be quite sad actually but it does happen over time. But, my goal is to get every student I teach to achieve to the maximum of their potential. ………………………………. 82 The Respondent submitted that in addition to Mr Greig's performance being poor, the fact he did not recognise any fault or acknowledge the Department's concerns is a relevant factor in assessing the harshness of his dismissal. I agree. Mr Greig's failure to accept that his performance was deficient and the Department's concerns were legitimate meant he did not positively engage with the process to seek to improve it. The result was continuing adverse impacts on students if he remained in the classroom. There was similarly no indication on Mr Greig's evidence that if he returned to teaching, his performance would improve in the identified areas. 83 The issues with Mr Greig's performance that were identified by numerous colleagues and consistently raised with him through his TIP, related to his failure to satisfy Teaching Standards 1, 3 and 5 at Mosman High School. The fact that he may have had a reputation for having certain expertise outside Mosman High School and his opinions sought on that basis, does not abrogate the need for him to meet the minimum standards identified. I have found that he did not do so. 84 It is regrettable that Mr Greig did not appear to either understand or accept what I consider was reasonably expected of him (and indeed of all teachers) by Mosman High School and the Department. However that is not due to a failure by management of the school to clearly inform him of the standards, warn him that his performance needed to improve against those standards or give him a reasonable opportunity to do so through a fair process. 85 Ms Knox, the Independent Reviewer, recommended that Mr Greig not be dismissed, but rather offered casual employment as a Drama teacher: The recommendation choices pertaining to Mr Greig were to either terminate his employment or recommend casual employment. It was my opinion that Mr Greig, passionate about his subject area, could continue as a casual teacher. My understanding of a casual teacher role was that it limited the need for the administration tasks, as the evidence demonstrated that administration tasks were particular areas where Mr Greig lacked commitment and rigour. 86 I do not agree with Ms Knox's conclusion in this regard. I have found that Mr Greig's performance in respect of Teaching Standards 1, 3 and 5 are unsatisfactory. Despite the 10 week TIP, the feedback provided and the opportunities to access learning and support, Mr Greig was not able to achieve the required minimum level of proficiency. In my view, those minimum levels are required in any teaching role in a school, including casual teaching, regardless of the subject matter being taught. The statutory obligation imposed on the Department under s 5A of the Teaching Service Act to give paramount to consideration to the protection of children is not limited to teaching delivered by full-time or part-time teachers. Further, Mr Greig's demonstrated inability to acknowledge the need to improve his performance in the identified areas militates against him continuing to work in a casual capacity. ……………………………… 88 I accept that Mr Greig's career has been damaged by his dismissal. However this is no different to any teacher whose employment has been terminated for similar reasons of unsatisfactory performance after a TIP process has been applied. There are no special circumstances warranting mitigation of the penalty of dismissal. In weighing all relevant factors, in my view Mr Greig's dismissal was not harsh having regard, as I have throughout this matter, to the provisions of s 5A and Part 4A of the Teaching Service Act. He has not discharged the onus on him to establish his dismissal was harsh, unreasonable or unjust.
There are some of points of similarity between the factual matrices in the matter before Commissioner Seymour and in the present matter. In Greig, the applicant failed to accept that his performance was deficient and that the Department's concerns were legitimate. As a consequence, he did not positively engage with the process to seek to improve his performance. It is clear that the applicant in the present matter does not believe that his teaching performance was deficient, in circumstances where the overwhelming weight of evidence before the Commission clearly establishes that it was. I have also formed the opinion, based on the evidence before the Commission, including that of the applicant, that he did not positively engage in the Teacher Improvement Process. For example, his lesson plans were often provided too late to the lesson observer for there to be any real opportunity for the observer to provide feedback prior to the observation lesson.
However, there are a number of points of dissimilarity between the two cases. With approximately 33 years' service, the applicant in Greig had significantly longer service than the applicant in the present matter. I also note that Ms Knox, the Independent Reviewer in both cases, recommended that the applicant in Greig not be dismissed but be offered casual employment as a teacher. Ms Knox made no such recommendation with respect to the applicant in the present matter.
I intend to adopt a similar approach to the issue of harshness as that adopted by Commissioner Seymour in Greig. That approach is one that requires that paramount consideration be given to the protection of children (section 5A Teaching Service Act 1980). As previously stated, that imperative extends to the protection of children from having the quality of their school education compromised by being exposed to teachers who do not meet the level of performance required by the Department of a proficient classroom teacher.
I accept that the loss of his career as a teacher in the public school system will necessarily have a significant adverse impact on the applicant. I also note his contention that the state of his health in the period leading up to the Teacher Improvement Program adversely affected his capacity to fully participate in that process, although I also note that no probative medical evidence to support this contention has been placed before the Commission.
However, against these considerations is the determination by the Department that the applicant's performance as a teacher was unsatisfactory and remained so despite genuine efforts by a range of his teaching colleagues to assist the applicant to meet the level of performance required of a competent classroom teacher. I can see no basis for this Commission to interfere in the Department's determination.
It follows that, in my opinion, the dismissal of the applicant was not harsh.
There was some debate between the parties as to the practicability of reinstatement and/or re-employment but, in light of my finding that the dismissal of the applicant was neither harsh, unreasonable nor unjust, this issue does not require further consideration.

Order

The unfair dismissal application of Bradley Kent is dismissed. John Murphy Commissioner

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