This is an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') brought by Mr Li Mao (I use the Anglicised order of the applicant's name) in relation to his dismissal from his employment with the Department of Education.
[2]
Facts
Mr Mao commenced employment with the respondent as a teacher at Lake Cargelligo Central School on 10 October 2011.
In June 2012 Mr Mao was struck by a student in a classroom and was then absent on workers' compensation leave.
On or about 6 September 2012, a report was filed by the Principal, Mrs Margaret Chamen, identifying areas of concern with Mr Mao's teaching.
From 24 March 2014 to 27 June 2014, Mr Mao returned to work at Cowra High School.
Mr Mao returned to work at Lake Cargelligo Central School on 5 February 2015.
After a series of parent and teacher complaints, MR Mao was placed on a Teacher Improvement Programme. ('TIP') Mr Mao was placed on the programme applicable to permanent, that is, non-probationary, teachers.
The TIP commenced on 11 August 2015 and was to conclude on 16 November 2015.
However, Mr Mao did not complete the TIP, having taken a combination of personal and sick leave after 5 October 2015.
Mao v Secretary, NSW Department of Education [2016] NSWIRComm 1046 | Case summary | Zoe
It should be noted that the Departmental policy relating to the TIP (at, relevantly, paragraph 4.1.1) together with the provisions of the Teaching Services Act 1990 allow for a teacher to be assessed on the basis of a TIP even where the TIP is not finally concluded within the 12 week period.
At the conclusion of the TIP program the Principal found that Mr Mao did not meet the required level of performance.
On 5 January 2016, Mr Mao was directed to commence alternative, non-teaching, duties and his case was referred to the respondent's Employee Conduct and Performance Directorate (" EPAC") in January 2016.
Mr Mao provided his response to the Principal's report on 13 January 2016.
A review of the improvement programme documents and process was conducted by a Ms Sheen, Deployed Principal, on 12 February 2016. It was found to have been properly conducted.
Mr Mao's case was referred to the Director of the Staff Efficiency and Conduct Unit, Mrs Kapsimali. The process of receiving Mr Mao's submissions and assessing them was carried out. No complaint is made about the administrative procedure followed and it appears entirely orthodox.
On 29 June 2016, Ms Thorpe of the respondent wrote to Mr Mao advising that his performance had been properly assessed as unsatisfactory. Mr Mao was offered the opportunity to resign, in which case his name would not be placed on the NTBE List and he would be offered casual teaching. However, were he not to resign he would be dismissed.
Mr Mao did not resign. On 22 July 2016 Mr Mao's employment was terminated by the respondent.
[3]
Matters for determination
Mr Mao represented himself in proceedings. He is, with respect to him, an intelligent and articulate man. His case had two essential components. The first was that he had been wrongly assessed, because he had been assessed against the TIP, which is applicable to teachers who have concluded their probationary period. Mr Mao submitted that he was at the time of the TIP and at the time of his termination a probationary teacher.
Secondly, he argued that in circumstances where he had no experience in primary school teaching, he ought to have been assessed as a probationary teacher in any event in the assessment of his teaching performance of the primary school-level classes he taught. He said that in that context he was not told, or not sufficiently told, how to go about teaching primary school-age students.
It is appropriate that I set out Mr Mao's case as he summarised it himself:
"I believe a wrong programme has been used in assessments. The teacher improvement programme was for permanent teachers. My permanency has never been officially confirmed. There was no official document confirming my permanency being granted. The only evidence we have is the principal report recommending my probation be extended.
I have no experience teaching year 5 and year 7 with students having special needs. I would only benefit from support catering for my individual needs. In this regard, I shall be considered as a probationary teacher when school assess my performance. Mr Bridgend decided to report me to EPAC. Then lesson observation began. By this time appropriate support was not in place. Mr Simmons observed my lessons. He didn't give me feedback before the lesson. He was not aware one child in my year 7 had been diagnosed with ADHD. I was not told what to teach and how to teach my year 7. However, the report from the lesson observation was used as evidence against me. Serving the purpose of reporting me to EPAC. With the consequence being dismissal, this is unfair.
I was asked to write a teaching programme and I was assessed by that. The teaching programme I was asked to write did not exist at the school. So that is why I say this assessment process was unfair." (Transcript 22 November 2016 p 1)
[4]
Consideration
I turn first to the argument that Mr Mao was a probationary teacher at the time of this placement on the TIP, and indeed at the time of his termination.
That was not the true position.
Section 48(1) of the Teaching Services Act provides that the period of probation for a teacher is for a period of 12 months unless the Secretary has on appointment determined a longer period. That is, unless there is an act of determination of a longer period by the Secretary at the time of a teacher's appointment, a teacher's probationary period concludes after 12 months.
There was absolutely no evidence that the Secretary on Mr Mao's appointment set a period of greater than 12 months' probation.
Section 48(2) provides that whilst a teacher is on probation the Secretary may extend the period of probation.
Again, that requires a positive act by the Secretary to exercise powers given him or her under the Teaching Services Act. There is no evidence that the Secretary during Mr Mao's period of probation extended the period of probation for a period of greater than 12 months.
Mr Mao's argument was that, absent any instrument confirming him as a permanent teacher, he necessarily remained on probation. On any reading of it, that is not what the Teaching Services Act provides. And while it is not necessary to consider outcomes to determine the question, given the plain words of the statute, the vice of reading the provision to require a definite instrument confirming the conclusion of probation is obvious,. By simple administrative oversight a teacher might be condemned to remain a probationer for an indefinite period of time. And further, as that would be a probationary period sanctioned by statute, a teacher in that circumstance would be deprived of the ability to bring an application under s.84 of the Act.
I observe that were Mr Mao on probation effected by the statutory means for which he argued, his s.84 application would be without jurisdiction.
However, the true position is that at the time Mr Mao was placed on the TIP (and at the time he was dismissed) he was no longer a probationary teacher.
The second limb of his argument was that as an entirely inexperienced teacher of primary school age children, he was disadvantaged and the TIP worked unfairly against him.
I cannot accept that submission. First, on the evidence I have formed the view that Mr Mao was given at least adequate support and advice in relation to teaching his primary-school age class. Second, the assessment of his performance was only in a small part based on his performance in relation to his Year 5 class. The assessment was in far greater part based on his performance in relation to his more senior classes, and indeed it was in those classes that his performance was assessed as being the more unsatisfactory.
I must add that having reviewed all the evidence of the observations of his classes and the assessment of his teaching plans, I am compelled to the view that there was a substantial shortfall in the adequacy of his performance as a classroom teacher in the context in which he offered to teach.
That does not mean that Mr Mao is in the right context not capable of conveying his considerable knowledge about mathematics. I return to this point below. However, on any assessment of the material it was properly open to the Principal and to those officers exercising delegation after the Principal's report was received to form the view that Mr Mao did not meet fundamental objectives of the TIP.
[5]
Fundamental statutory considerations
Section 5A of the Teaching Services Act 1980 provides:
(1) The protection of children is to be the paramount consideration:
(a) in taking any action with respect to an officer or temporary employee under this Act, and
(b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action.
(2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
As the Commission held in Buchanan v Department of Education:
"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 Services Act.… 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."
Here it is clear that Mr Mao was fairly assessed and found wanting against a properly-applied standard. A failure successfully to complete a TIP will generally provide a sound basis for the respondent to determine that a teacher will be directed to resign, or will be dismissed, although in each case the teacher's individual circumstance must be taken into account.
On the facts of this case it was neither harsh, nor unreasonable, nor unjust for the Respondent to dismiss Mr Mao.
That concludes the matter, and once it is determined that the dismissal was not unfair the Commission has no further power to make orders except those dismissing the application, which I will proceed to make.
I do however wish to make a recommendation. It is not enforceable in any way, but I ask the respondent to consider it.
Mr Mao is very well qualified in mathematics. In the right context with the right students I believe he has a good deal to offer the children of this State. For example, I note that one of his students secured a Distinction in the Australian Mathematics Competition, the first time I as I understand it that a student from Lake Cargelligo School had ever achieved such a result. I recommend that the Department give active consideration to granting Mr Mao casual teaching approval to the extent necessary to permit him to teach mathematics in school environments where his knowledge is likely to be welcomed.
[6]
Orders
Having made that recommendation, the Order that I must make in this matter is as follows:
1. The application is dismissed.
PETER NEWALL
Commissioner
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Decision last updated: 07 December 2016