Laweloa v Secretary of the Department of Education

Industrial Relations Commission (NSW)|2023-02-08|Before: Beazley JA, Gibbs CJ, Wilson J

DECISION

Arieta Laweloa was a teacher employed at the Barham High School ("School"). Her employment was terminated on 1 July 2022 on the basis of unsatisfactory performance.
On 2 August 2022 Ms Laweloa filed an Unfair Dismissal Application pursuant to s 84 of the Industrial Relations Act 1996 ("Application"). She alleges that her dismissal was harsh, unreasonable and unjust. She seeks an order that she be re-employed by the Secretary in a non-teaching role and an order that she be paid compensation.
Ms Laweloa was self-represented. As a consequence, I took guidance from the following observations of Beazley JA in Hamod v State of New South Wales and Anor [2011] NSWCA 375: "309. Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. ..."
That guidance led to me adopting a relatively informal approach to the proceedings. I was also more active than I might otherwise have been in assisting Ms Laweloa to present her case.

Factual context

The evidence as to the circumstances of Ms Laweloa's employment and the process culminating in her dismissal was led, in large part, by the respondent, the Secretary of the Department of Education ("Secretary") ("Department"). Ms Laweloa's written evidence was brief and did not traverse the detailed descriptions of events provided by the Secretary's witnesses. She only sought to cross-examine one of the Secretary's witnesses, Mr Brendan Yu, currently the Relieving Principal (but at the relevant times the Deputy Principal) of the School. That cross-examination was very confined in scope and did not disturb Mr Yu's narrative of the events resulting in the dismissal, or that of any of the other of the Secretary's witnesses.
It follows that there is no basis on which I would not accept the Secretary's evidence regarding the factual context of the matter. The relevant history, in summary form and drawn in part from the Secretary's written submissions, follows.

Employment

Ms Laweloa was appointed to the School as a Classroom Teacher on a permanent basis from 14 October 2019 (having commenced in Term 1 on a temporary basis). She was approved to teach Community and Family Studies, Exploring Early Childhood, Child Studies, Personal Development/Health/Physical Education ("PDHPE"), Sport, Lifestyle and Recreation, and Physical Activity and Sport ("PASS").

Performance concerns arise

In the first semester of 2021 a number of concerns arose regarding Ms Laweloa's performance at work. These were identified by her supervisor, Rhys Martin, the Head Teacher: Teaching and Learning at the School, the School's Principal, Glenn Buchanan, and Mr Yu.
In his statement, Mr Martin deposed: "22. In Terms 1 and 2 of 2021 ('Semester 1 of 2021'), I developed a number of concerns about Ms Laweloa's performance as a teacher. These concerns arose due to complaints I became aware of from students, parents, colleagues and my own observations of Ms Laweloa's teaching practice as her supervisor. 23. My concerns related to Ms Laweloa's: a. unsatisfactory supervision of students; b. behaviour management practices; c. inadequate lesson preparation and delivery of content, including lessons for casual relief teachers; d. limited evidence of formal scope and sequences, and teaching and learning programs; e. failure to follow NESA and Barham HS policies and guidelines for assessment; f. inadequate reporting of student progress; and g. attendance at work."
Mr Martin provided significant detail regarding these concerns and the circumstances that gave rise to them, as did Mr Buchanan and Mr Yu in their statements. It is not necessary that I delve into that detail.
In an effort to address the concerns, Mr Martin provided Ms Laweloa with informal support. This included holding several meetings with her, providing her with additional resources, a review of her Performance Development Plan ("PDP") and asking to review her teaching material (such as teaching programs, lesson plans and assessment tasks).
Ms Laweloa's performance did not improve to the satisfaction of Mr Buchanan, Mr Yu or Mr Martin. Consequently, from 21 April to 25 June 2021, targeted and individualised support was provided to her. This included two formal meetings between Ms Laweloa, Mr Martin and Mr Buchanan, in the presence of her support person; regular informal discussions with Mr Martin; feedback from Mr Martin and Mr Buchanan following lesson observations and viewing planning documents, assessment tasks and reports; further offers to review additional material prepared by Ms Laweloa; provision of further teaching resources to her; training in the adequate recording of marks; the opportunity to engage in professional learning; further review of her PDP; and three days of relief from face-to face time to prepare reports.
Unfortunately, Ms Laweloa's performance did not improve to the satisfaction of Mr Buchanan and Mr Martin. On 2 June 2021 Mr Buchanan informed her that he had decided to place her on a Teacher Improvement Program ("TIP").

The Teacher Improvement Program

The Secretary led a significant amount of evidence as to the process by which a TIP is conducted. This was set out in particular in the evidence of Mark Anderson, the Relieving Director, Employee Performance, Professional and Ethical Standards Directorate in the Department. Mr Anderson also outlined the standards that teachers are required to maintain, namely the Australian Professional Standards for Teachers ("Standards"). He stated that a TIP is the last step in the process of teacher improvement.
The TIP implemented in respect of Ms Laweloa was directed towards addressing four of the Standards, namely: Standard 2: Know the content and how to teach it; Standard 3: Plan for and implement effective teaching and learning: Standard 4: Create and maintain supportive and safe learning environments; and Standard 5: Assess, provide feedback and report on student learning. It was run in keeping with the Department's Teacher Improvement Program Procedures ("TIP Procedures").
The TIP commenced on 26 July 2021. The TIP was amended on several occasions to deal with issues that arose. In each case the change was discussed with Ms Laweloa and an amended schedule provided to her.
The TIP was suspended from 16 August 2021, due to COVID-19 lockdown orders.
The lockdown ended on 10 September 2021. Ms Laweloa was expected to return to face to-face teaching on 5 October 2021 and the TIP scheduled to recommence on 6 October 2021. However, Ms Laweloa did not return to the School until 18 October 2021, citing various reasons.
On 18 October 2021, Mr Buchanan informed Ms Laweloa of his opinion that continued support was required and that the TIP should continue for a further three weeks. The TIP recommenced on 18 October 2021 and continued for three school weeks until 4 November 2021. According to the TIP Procedures, the maximum timeframe for a TIP is 12 school weeks.
The Secretary introduced into evidence a large volume of documentation (some 815 pages) evidencing the TIP process undertaken in respect of Ms Laweloa ("TIP Bundle"). This was buttressed by considerable detail in the statements on which the Secretary relied. It is not necessary that I explore that material in detail.
Suffice it to say, in their statements Mr Buchanan, Mr Yu and Mr Martin outlined in great detail their involvement in the TIP, the support they each provided to Ms Laweloa and their assessment of her performance in particular respects. While instances of her performance were rated as satisfactory, the ultimate conclusion they each reached was that overall Ms Laweloa was not performing to the standard expected of her. For example, Mr Yu stated that he had observed Ms Laweloa in 5 lessons and had assessed her as satisfactory. However, he found all of the lesson plans and teaching programs she submitted to be unsatisfactory. On several occasions, Mr Yu was unable to conduct the required assessment as Ms Laweloa did not submit the necessary work samples.
The Secretary adduced evidence from other individuals who were involved in supporting and assessing Ms Laweloa during the TIP: Joshua Perizzolo, who was then the Relieving Head Teacher PDHPE at Deniliquin High School, and Ian Taylor, a Deployed Deputy Principal, Employee Performance Management and Improvement. These witnesses rated Ms Laweloa's lesson plans as unsatisfactory. Having observed her present two classes, Mr Taylor rated Ms Laweloa's performance as satisfactory in one and unsatisfactory in the other.
Outside of the matters being addressed in the TIP, Mr Buchanan, Mr Yu and Mr Martin continued to experience issues regarding Ms Laweloa's supervision of students, behaviour management, lesson planning, recording of marks and assessment practices.
On approximately 2 December 2021 Mr Buchanan prepared his final report ("Principal's Report"), in keeping with the TIP Procedures. The Principal's Report contained a recommendation "that Ms Laweloa has not made sufficient improvement to meet the standard of performance required for the position of classroom teacher".
Also on 2 December 2021, Mr Buchanan met with Ms Laweloa in the presence of Mr Yu and Nicole Ryan, Ms Laweloa's support person. He explained to Ms Laweloa the recommendation he had made and handed her a copy of the Principal's Report. Ms Laweloa appears to have signed the Principal's Report on 2 December 2021.
There was a break called during the meeting. When the meeting recommenced, Ms Laweloa handed Mr Buchanan a two-page handwritten document. That document included the following statements: "Even though The Teaching profession is a hard slog, I am still greatful for the opportunity to showcase my 'diligence' and 'integrity' throughout the whole process. … But what hurts me the most is the number of staff both 'temporary' and 'some' permanent are strategically bullyied and harassed in this small workplace. … I am open, honest and trustworthy and so it is with a heavy heart that I am deciding for my own health and well-being to leave school grounds effective immediately and have decided with Nic to organise and collect my belongings immediately. … And remember too, just because someone is different doesn't mean its wrong." (Reproduced verbatim)
Also during the meeting on 2 December 2021, Mr Buchanan handed to Ms Laweloa a letter from Veronica Kapsimali, Director, Employee Performance, directing her to attend alternate duties on 6 December 2021 at Griffith East Public School ("Griffith East").

Alternative duties in Griffith

Mr Anderson deposed that the direction that Ms Laweloa perform alternative duties at Griffith East was the consequence of Mr Buchanan's determination that her performance was unsatisfactory. He explained that as a result of that finding, Ms Laweloa could not perform teaching duties, or independently supervise or work directly with students. Although she was directed to perform alternative duties, Ms Laweloa continued to receive her salary as a teacher.
The decision to direct Ms Laweloa to work at Griffith East was made by Ms Kapsimali, following a recommendation to that effect from Helen McRae, the Director, Educational Leadership of the Deniliquin Network of the Department. Ms McRae had discussed the matter with Mr Buchanan and they had agreed that Ms Laweloa should undertake alternate duties at a location in Griffith. The reasons for this decision included allowing Ms Laweloa to be close to what was understood to be her support network in Griffith, avoiding undue scrutiny on Ms Laweloa in the small town of Barham, and minimising the travel time between her family in Griffith and her workplace.
Ms Laweloa's relocation to Griffith East did not go well. Andrew Pryor, the Relieving Director, Educational Leadership of the Griffith Network of the Department, deposed that Ms Laweloa was late in reporting for duty at Griffith East and, when she arrived, she had been disruptive.
Mr Pryor arranged for Ms Laweloa to be moved to the Griffith District Office of the Department. Ms Laweloa attended the office for one day only, on 14 December 2021. The following day, Ms Laweloa sent an email to Mr Pryor stating, amongst other things, that "the work conditions there did not cater to my personal needs".
Ms Laweloa did not return to the Griffith office. She claimed several periods of sick leave between December 2021 and February 2022.

The process resulting in the dismissal

On 8 December 2021 Ms Laweloa prepared a response to the Principal's Report. She did not directly address the recommendation in the Principal's Report or the summary of the TIP process it set out. Rather, Ms Laweloa focussed on how she considered that all stakeholders - principals, teachers, parents and students included - should engage and interact for their mutual benefit. Ms Laweloa placed significant emphasis on her cultural identity and heritage.
Mr Buchanan completed his reply to Ms Laweloa's response on 3 February 2022.
The TIP Bundle was forwarded for independent review to Denise Hazell, Deployed Principal, Employee Performance, Professional and Ethical Standards. Mr Anderson stated that an independent review is sought when a teacher provides a response to a principal's report. In a report dated 17 February 2022, Ms Hazell stated that on the basis of her review of the documentation, she considered that Ms Laweloa had been afforded procedural fairness and adequate support throughout the TIP process, and that the recommendation in the Principal's Report should be upheld.
At a later date in February 2022, the TIP Bundle and Ms Hazell's report were provided to Mr Anderson. In a letter to Ms Laweloa dated 18 February 2022, Mr Anderson stated that he was of the opinion that her work performance was unsatisfactory and that he was considering imposing disciplinary action, possibly dismissal. He also stated that he was considering placing her name on the "Not To Be Employed List" ("NTBE List"). The letter invited Ms Laweloa to make a submission and to provide any additional information that she considered should be taken into account before Mr Anderson made a final decision. Ms Laweloa was offered the opportunity to attend a meeting with Mr Anderson in lieu of providing a written response, if she preferred. Accompanying the letter was a copy of Ms Hazell's report, sections from the Teaching Service Act and the Tip Bundle.
It is unclear from the evidence whether Ms Laweloa directly responded to Mr Anderson's letter of 18 February 2022. On 31 May 2022 Mr Pryor received a letter from Ms Laweloa dated 4 May 2022. In that letter, Ms Laweloa stated: "As you are aware, I am writing to you in order to complete the process of the Teacher Improvement Plan, which was ordered by Glenn Buchannan, Principal of Barham High School. While the final decision has been pending an outcome of my role as a Classroom Teacher of Barham High, I believe that I was unfairly treated and vilified against the current NSW Teaching standards and further more decisions were made without my consent to firstly return to Griffith, secondly work within a primary school as a Teacher Aid. Although I believe I carried out my duties as a Classroom Teacher during the most difficult pandemic period, I choose to not return to Griffith East Primary School, or The Departments Head Office in Griffith. I believe that even though support was offered to me during the Teacher Improvement Plan period, I have the right to seek alternative support services of my choosing outside the Department's normal protocols. … … I understand that both you, Glenn as well as the powers above are following set procedures in place, but today of all days is a reminder to us all as to why the systems that are currently in place needs to be fluid, flexible and updated to reflect the current context of our school community across NSW, in order to improve the retention rate of the teaching crisis." (Reproduced verbatim)
Having considered Ms Laweloa's letter of 4 May 2022, Mr Anderson wrote to her on 17 June 2022. His letter included the following: "Pursuant to section 93J of the Teaching Service Act 1980, I have decided to take disciplinary action against you. That disciplinary action (as defined under section 93B(1) of the Teaching Service Act 1980) is to direct you to resign. If you do not submit your written resignation within five (5) days from the date of this letter, the outcome will be dismissal from the Teaching Service for failing to act on a disciplinary decision after being found unsatisfactory following an improvement program. I have also decided to place your name on the Department's confidential list of those not to be employed (the NTBE List)."
Ms Laweloa did not submit her resignation. Consequently, in a letter dated 30 June 2022 Mr Anderson informed Ms Laweloa that he had decided to dismiss her from her employment, effective from 1 July 2022.

The Industrial Relations Act

Section 84 of the Industrial Relations Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". Each of the word "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
While my consideration of this matter is informed by the above passage, I consider the following observation of Commissioner Newall in Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 to be informative: "6. The meaning of the words 'harsh, unreasonable or unjust' has been considered in a long line of cases. Glosses have been placed on the terms but in my view [it] is neither necessary nor warranted to go beyond the ordinary meaning of the words, as they are perfectly comprehensible words that sit coherently within the purpose and context of the statute as a whole: Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412. A dismissal may be harsh, or unreasonable, or unjust, or all three: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465."
To be entitled to any remedy under the Industrial Relations Act, the onus was on Ms Laweloa to prove that her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279; Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83.
Section 88 of the Industrial Relations Act sets out matters to which the Commission may have regard in determining an application under s 84. It is not necessary to reproduce that provision.

Teaching Service Act 1980

Ms Laweloa was employed in the Teaching Service, within the meaning of s 44 of the Teaching Service Act 1980. The provisions of that Act are relevant in the consideration of the Application.
Part 4A of the Teaching Service Act is titled "Management of conduct and performance". The objects of that Part are set out in s 93A: "to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service", "to protect and enhance the integrity and reputation of the Teaching Service" and "to ensure that the public interest is protected".
Section 93D(1)(b) of the Teaching Service Act empowers the Secretary to issue guidelines for the purposes of "the taking of disciplinary action with respect to officers under this Part, including disciplinary action in relation to unsatisfactory performance". The term "disciplinary action" is defined in s 93B(1) to include dismissal from the Teaching Service or "directing the officer to resign, or to be allowed to resign, from the Teaching Service within a specified time"
Sections 93H and 93J of the Teaching Service Act are in the following terms: 93H Performance improvement programs (1) If, following completion of the review of an officer's performance, the Secretary is of the opinion that the officer is not performing his or her duties in a satisfactory manner, the Secretary may implement a performance improvement program for the officer. (2) The officer must participate in any such performance improvement program in the manner required by the program. (3) A performance improvement program is to be on such terms, and is to be implemented for such period, as the Secretary considers appropriate. … 93J Dealing with unsatisfactory performance - officers other than school principals (1) This section applies to officers other than school principals. (2) If the Secretary is of the opinion that an officer's performance is still unsatisfactory following the completion of a performance improvement program for the officer or following the officer's failure to participate in, or to satisfactorily complete, such a program, the Secretary may do either or both of the following: (a) take remedial action with respect to the officer, (b) take disciplinary action with respect to the officer. (3) To avoid any doubt, remedial action with respect to an officer is not required to be taken before disciplinary action is taken under this section with respect to the officer. (4) However, the Secretary may take disciplinary action with respect to an officer under this section only if: (a) the officer has been placed on a performance improvement plan in accordance with the procedural guidelines and been given a reasonable opportunity to improve his or her performance, and (b) the Secretary is of the opinion that the officer's performance is still unsatisfactory.
Section 8 of the Teaching Service Act provides that the Secretary may delegate any of her functions under the Act, with limited exceptions. There was no controversy that Mr Buchanan, as Principal of the School, had the delegation to act as the Secretary for the purposes of s 93H and that Mr Anderson held the delegation to take disciplinary action pursuant to s 93J(2)(b).
Section 5A of the Teaching Service Act also has a bearing on the matter. It relevantly provides that the protection of children is to be the paramount consideration in taking any action with respect to an officer under this Act, despite anything in the Industrial Relations Act or any other Act or law.
The provisions of the Teaching Service Act were considered by Commissioner Newall in Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045. The Commissioner observed: "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". 23. Those are a flourish of words used by the learned Deputy President, and they ought not be seen to be definitive about the degree of protection to be afforded. The degree of protection to be afforded to children is against anything less than competent teaching. It is to be remembered that the department and the school system only exist for children, not for any other reason, and that is a fundamental matter. But there are a range of other matters that must also be considered in determining the future of a teacher and perhaps it might be said that is more so when one is considering a teacher who has given effectively a lifetime's service to the department." (Emphasis in original)

Consideration

In her statement filed on 28 October 2022, Ms Laweloa made a series of assertions, including: 1. prior to and during the TIP, the work that she produced aligned with standards 2, 3, 4 and 5 of the Standards (those which were the focus of the TIP). Not only did she demonstrate a satisfactory level of performance, her performance improved. She performed above the level of competency for an individual on a TIP, particularly given her family responsibilities; 2. it had been "acknowledged" that her lesson plans, units of work and PDHPE programs aligned with the Standards and relevant syllabi before, during and after the TIP process; 3. the TIP involved her being "observed, supervised and monitored by inexperienced experts from the Department who lacked the understanding of the [relevant PDHPE and PASS] Syllabi"; 4. the TIP process was unfair, unreasonable and unjust. Moreover it was biased; 5. the TIP was unfair "because there was insufficient evidence over a prolonged period of time" and Mr Buchanan "lacked sufficient evidence of professional misconduct or sustained poor performance during the Teacher Improvement Plan process"; and 6. employees in the Department had breached the Work Health and Safety Act 2011 and the Equal Employment Opportunity Act 1987.
Ms Laweloa also alleged unfairness arising from matters such as the Department declining a request that she be permitted to work part-time; the fact that requests for leave had been declined; and, from the circumstances in which she was directed to work at Griffith East and subsequently the Griffith office.
I am acutely conscious that Ms Laweloa is self-represented. Even making allowances for that fact, she did not in any significant or meaningful way engage with, much less challenge, the evidence led by the Secretary.
Ms Laweloa accepted that she had been served with the evidence on which the Secretary intended to rely, at or about the time it was filed with the Registry on 2 December 2022. Surprisingly, she stated that she had not read it at the time or at any time. She made no attempt to controvert it. To the extent that it might be said to constitute a "reply", her statement filed on 14 December 2022 was confined to the following: "My position as it stands [sic]. I, Arieta Laweloa the Applicant, was treated unfairly, unreasonably and unjustly by the Respondent(s)."
Under cross-examination Ms Laweloa maintained that there was no basis for her to have been placed on the TIP. When asked whether she considered herself a "good teacher", she responded with words to the effect that she was "good enough not to be on an improvement program". She stated that to the extent that the Secretary's witnesses contended otherwise, they were wrong. She held a similar view as to the recommendation contained in the Principal's Report that she had "not made sufficient improvement to meet the standard of performance required for the position of classroom teacher".
The statements in Ms Laweloa's written evidence summarised at [52] above do not rise higher than being assertions. For example, no explanation was offered as to why she alleged that the TIP process was biased. Similarly, the bases on which the Department was said to have breached its legislative obligations were not articulated.
As already stated, Ms Laweloa bears the onus of proving that her dismissal was harsh, unreasonable or unjust. While I have made allowances for the fact that she is self-represented, this cannot extend to unsupported assertions rising to the level of facts which the Secretary bears the onus of refuting.
With that said, there is no basis to find that the TIP process was conducted in a manner which was "unfair, unreasonable and unjust". I am satisfied on the evidence that the TIP process itself was conducted fairly and appropriately, with Ms Laweloa receiving the support that she might reasonably have expected to receive to assist her to improve her performance to the necessary level. The TIP itself was varied from time to time to meet changing circumstances, but always following consultation with Ms Laweloa.
The allegation that the TIP was biased is a serious one. It finds no support in the evidence.
There is similarly no support in the evidence for the allegations that the Department and its employees have acted in contravention of the Work Health and Safety Act or the Equal Employment Opportunity Act.
I do not accept Ms Laweloa's contention that those assessing her performance during the TIP lacked the necessary qualifications to do so. Each of Mr Buchanan, Mr Yu, Mr Martin, Mr Perizzolo and Mr Taylor, who had all rated aspects of Ms Laweloa's performance during the TIP, described their qualifications and experience in their statements. That evidence, unchallenged by Ms Laweloa, convincingly demonstrates that they were qualified to rate Ms Laweloa's performance against the Standards.
In so far as Ms Laweloa asserted that those assessing her performance lacked an understanding of the relevant PDHPE and PASS syllabi, there are two observations to make. First, Mr Perizzolo described his employment history, which included the teaching of PDHPE since 2014. He stated that he is approved to teach, amongst other subjects, Years 7 to 12 in PDHPE. Second, as Mr Yu stated in his oral evidence, the Standards against which Ms Laweloa was being assessed under the TIP were not specific to the teaching of PDHPE.
I am also not persuaded by Ms Laweloa's argument that the TIP was unfair because it resulted in "insufficient evidence" and did not cover "a prolonged period of time". The TIP ran for a total of nine school weeks. The TIP Procedures allow for a maximum period of 12 weeks, which is indicative of the period of time over which a teacher would be expected to demonstrate improvement. While the period of the TIP ran was less than the permitted maximum, I do not consider that this had any material bearing on its outcome.
Similarly, Ms Laweloa's assertion that Mr Buchanan "lacked sufficient evidence of…sustained poor performance" during the TIP is to ignore the weight of the evidence adduced by the Secretary. The evidence overwhelmingly leads to the conclusion that Ms Laweloa was not performing to the standard required for the position of classroom teacher. There is no basis to contend that the work performed by her during the TIP aligned with the Standards; that she demonstrated a satisfactory level of performance during the TIP; or that over the course of the TIP her performance improved. I can see no evidence of any "acknowledgement" by any employee in the Department to the contrary.
The evidence demonstrates that Ms Laweloa's performance in 2021 was unsatisfactory. Informal and formal efforts to assist her to improve to the requisite standard were unsuccessful. Mr Buchanan was justified in deciding to place her on the TIP. Ms Laweloa remained unable to meet the level of performance expected of her, despite being aware that a failure to demonstrate sufficient improvement while she was on the TIP might result in the termination of her employment.
Ms Laweloa was informed of the performance concerns held by the Department and was able to respond to those before and during the TIP. She was able to prepare a response to the Principal's Report. She also had the opportunity to make submissions as to whether Mr Anderson ought to take disciplinary action against her.
Under cross-examination, Ms Laweloa accepted that the Department, schools and parents expect teachers to be competent. She also agreed that an incompetent teacher can adversely affect the reputation of a school and increase the workload of other teachers.
During the hearing it emerged that Ms Laweloa applied for and obtained work as a casual teacher in the Australian Capital Territory in the first term of 2022. At that time, she remained an employee in the Department. Leaving aside other considerations that might arise from her failure to inform the Department of this employment or to seek approval to engage in secondary employment, this suggests - as the Secretary submitted - that in early 2022 Ms Laweloa "saw the writing on the wall".
Having regard to all of these matters, I find that Ms Laweloa's dismissal was neither unreasonable nor unjust. In reaching this determination I have had particular regard to s 5A of the Teaching Service Act, noting the observations of Commissioner Newall in Buchanan v Secretary, NSW Department of Education referred to at [51] above.
On the question of harshness, Ms Laweloa primarily contended that the dismissal has impacted on her professional reputation (to the extent that she claims it amounted to defamation) and her future career prospects. She highlighted in particular the impact of being placed on the NTBE List.
In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA observed: "156. I have already referred to the tripartite test posed by s 84 of the IR Act as to whether an employee's dismissal was 'harsh, unreasonable or unjust' as explained in Byrne. In addition to the matters there identified, in considering the possibility that dismissal might be 'harsh', (although not unjust or unreasonable), it is necessary not only to identify any misconduct on the employee's part said to have justified the termination, but also to 'weigh in the balance any "mitigating circumstances"…including length of prior employment, the employment record and favourable character considerations'." (Footnotes omitted)
In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 the Full Bench remarked: "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."
Ms Laweloa has not put forward sufficient evidence of "mitigating circumstances" that would support a finding that her dismissal was "disproportionate to the gravity" of her underperformance. I accept the following submissions advanced by the Secretary in her written submissions: "93. The Respondent accepts that the Applicant's career would be damaged by her termination, as it would be for any employee who has been terminated for unsatisfactory performance for reasons similar to those that apply to the Applicant. In the Applicant's circumstances it is her unsatisfactory performance that has damaged his [sic] career, not the decision by the Respondent to terminate. In all the circumstances, there is no reason to treat the Applicant differently from any other employee if the Commission finds the reasons for his [sic] dismissal to amount to a valid reason."
For the sake of completeness I observe that under cross-examination Ms Laweloa asserted (for the first time), that if a teacher failed a TIP, the Department should place them in an alternative, non-teacher position. Arising as it did in cross examination, the contention was not explored to any great extent. There may be circumstances in which an employer considers redeployment as an alternative to dismissal. It could not be said, however, that the Secretary has an obligation to secure alternative, non-teaching employment for a teacher who fails to meet the necessary standard of performance after undergoing a TIP.
I find that Ms Laweloa's dismissal was not harsh.
In light of my findings, the only appropriate order is that the Application be dismissed.

Costs

In her written submissions, the Secretary sought "that the issue of costs be reserved pending judgment in this matter". I will make directions allowing the Secretary to make an application for costs, if she is so inclined.

Order and directions

I order that the Application be dismissed.
I make the following directions: 1. If the Secretary wishes to make an application for costs, she is by 4.00pm on 23 February 2023 to file and serve: 1. an outline of submissions of no more than 5 pages setting out the basis on which costs are sought; 2. any evidence in support of the application for costs; and 3. Practice Note 32 will be taken to apply to any evidence on which the Secretary wishes to rely pursuant to direction (1)(b). 1. If no application is received pursuant to direction (1), the file will be closed. Damian Sloan Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2023

At a glance

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Judgment (14 paragraphs)

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Cases Cited (15)