215 Secondly, to state the obvious, it was the applicant's own detailed evidence that was admitted in the proceedings as to her version of various incidents giving rise to her claims of unfairness. This evidence was not sought to be qualified in any way and it would seem that if the Commission is to accept the applicant's claims of being unfairly dismissed, then I cannot avoid making findings on whether these serious allegations were proven, or, in the alternative, simply concocted for some collateral purpose. It must be emphasised, that if evidence is admitted without objection or qualification, then it is admitted for all purposes, including most definitely, to determine the very basis for the claim of unfair dismissal. It is not open for Counsel to invite the Commission to simply ignore parts of the evidence, because it is inconvenient or unhelpful to his client's case. Mr Benson was undoubtedly correct when he said that once the applicant had put such material into evidence, the respondent was obliged to answer it. In my view, that is a perfectly sensible, and indeed, the only logical approach to ensuring the fair balance of the interests of justice. A failure to do so, might not only be seen as professionally negligent, but would leave untested, and on the public record, the very serious allegations made by the applicant.
216 Thirdly, in submitting that complaints only need to be made, for bias to be reasonably demonstrated, stands in marked contradistinction to the submission that Mr Proops and Mr Bowden must have been biased because complaints had been made against them. It seems to me that if it is unnecessary in deciding this case to make findings of fact concerning the allegations, then it is equally unnecessary to consider Mr Proops and Mr Bowden's involvement in the TIP. Of course, that is not what is put by Mr Dixon. However, in my view, one cannot have it both ways; that is, claim bias because of their involvement in the TIP, but totally ignore whether the serious allegations against them were real or fanciful. Notwithstanding both Mr Proops and Mr Bowden were cleared of any wrongdoing by Ms Best's investigation, the applicant continues to accuse them of the serious allegations. Indeed, Mr Dixon acknowledged that the applicant does not shy away from the allegations. The true effect of Mr Dixon's primary submission would be to permit what might be said to be scandalous and defamatory material on the public record, without this Commission, after hearing sworn testimony, adjudicating on very real and practical factual contests arising from this material. This must be a fortoria in respect to Ms King (and others) who first found out about some of the serious allegations against her when she was shown the applicant's evidence filed in these proceedings. Ms King strenuously contests the allegations. There has been no Departmental investigation into the complaints against her. It would seem only fair that these proceedings are the logical forum for such allegations to be tested.
217 The above comments, of course, are predicated on my findings as to the incidents and allegations made against a number of relevant witnesses in these proceedings. At this point, it is sufficient for me to observe that if the applicant's serious allegations are untrue, then it would be a monstrous and grave injustice not to definitively and publicly say so. I shall return to these matters shortly.
218 Fourthly, it would seem to me both difficult and unrealistic to construct a rational decision in this matter without firstly, identifying the allegations, examining the opposing factual disputes about them, making findings about whether the allegations are substantiated; and if not substantiated, determine whether the applicant had any reasonable basis to believe that the TIP process was still unfair. In the alternative, if the allegations are found to be proven, there would be little doubt that the applicant's claims of bias contaminated the TIP process, and thereby, rendered her dismissal as unfair.
219 Fifthly, the unintended consequences of Mr Dixon's submissions would mean that an employee could avoid an employer's right to monitor and question an employee's performance by simply making an allegation (even, as Mr Dixon said, based on paranoia or some other act of unreasonableness) against the employer. So long as the employee claimed he/she believed the complaint, any process involving a disciplinary procedure could be invalidated as biased and, therefore unfair. To my mind, this would be unjust and unacceptable. It cannot possibly stand as a sound and sensible industrial outcome.
220 Sixthly, and perhaps of most significance, is that the allegations against Mr Proops and Mr Bowden were found by the investigator on 29 September 2006, to be unsubstantiated. The applicant did not appeal Ms Best's findings. Notwithstanding this should have ended the matter, the applicant did not, and still does not, accept the investigator's findings. Even if Mr Dixon's submission is correct that Mr Proops and Mr Bowden could not have been objective or unbiased, the fact was that they had been cleared of the allegations two months prior to the commencement of the TIP. While they may have been less than delighted with having been the subject of an investigation, there is nothing to suggest, nor is there any objective evidence to support a contention, that they would not have brought anything other than an objective and professional mind to the TIP. Knowing full well that they had been completely vindicated by the Department, and given their many years of experience, I accept that they acted, at all times, in a measured, restrained and professional way.
221 Having said that, Mr Dixon's case was relatively straightforward, and confined to the Commission making findings as to the unfairness of the dismissal arising from three main errors alleged to have been made by the respondent, and which may not have necessarily been intended or deliberate. These included the involvement of Mr Proops, Mr Bowden and Ms King in the assessment of the applicant's TIP. It was said that the TIP process could never be fair because the applicant had made serious complaints against them. Further errors were made by Ms Best and Mr Urry in that their decision making was tainted, and ultimately flawed, because they failed to have regard for the serious complaints made against the applicant's assessors, in which bias could not be avoided.
222 In my judgement, Mr Dixon's narrow submissions in this case, made obviously for a forensic purpose, were entirely understandable, given the difficulties in the applicant's evidentiary case, which I shall come to shortly. But in my view, the issues of substance cannot be avoided or divorced from all of the relevant facts and circumstances, particularly given the evidentiary case advanced by the applicant. It follows that the logical starting point must be whether the serious allegations against Mr Proops and Mr Bowden have been proven.
The allegations against Mr Proops and Mr Bowden
223 On one view (perhaps too sympathetically), it might be said that the applicant has a very vivid imagination. An alternative view, is that the applicant demonstrated a chronic disposition to fabricating events to suit her own purposes. Unfortunately, I prefer this later description. Sadly, either way, her behaviour was devoid of reality and ultimately it impugned her credibility and had the potential to seriously hurt and damage the reputations of other good and decent people.
224 Throughout her evidence, I found the applicant to be a particularly argumentative and evasive witness. This was entirely consistent, I might say, with her conduct during feedback sessions with her supervisors. The applicant would not answer questions directly or vaguely answered as if she didn't know what was being asked. She embellished her answers to put the worst possible light on the respondent. For example, on one occasion she said a document was fabricated because it had the wrong date on it. Whenever she was asked about what support and help had been offered to her, she claimed she couldn't recall. Her written evidence, of course, was riddled with numerous unsupported allegations, claims of witnesses and supporters who were never produced, grossly insulting accusations, emotive language such as 'homophobia' 'misogynism' 'lying', 'corrupt conduct', 'cronyism', 'maladministration', 'publicly humiliated', 'breaches of legislation', and claims of physical violence. She even suggested that she was articulate, and that Mr Bowden was not, because he had a stutter. Not only was this personally cruel and hurtful, but it was patently wrong, as any cursory glance at her handwritten, incoherent diatribes would confirm. Despite the emotive and inflammatory nature of her written material, the applicant remained unnervingly calm and seemed unperturbed when giving her evidence.
225 By contrast, I found all of the respondent's witnesses to be open and co-operative when giving their evidence, notwithstanding the strain of having to have serious allegations put to them, including, in Ms King's case, an allegation of homophobia she had only heard about recently. Nevertheless, in my opinion, the crucial question to arise from the evidence is whether the allegations had any substance.
226 After reviewing all of the evidence, I am perfectly satisfied that the applicant's serious allegations against Mr Proops, Mr Bowden and Ms King cannot be sustained. I am further satisfied that Mr Proops and Mr Bowden's evidence of what occurred in the incidents of 7 and 9 March and 13 June 2006, are correct accounts of what occurred during the incidents. It follows, that the applicant's evidence in this regard is rejected. I don't believe there was an earlier incident on 3 March 2006. Rather, I consider the applicant claimed there had been two separate incidents in order to exaggerate her allegations against Mr Proops. In addition, I am convinced that the applicant knew the allegations to be untrue and had only raised them as a means of deflecting criticism of her teaching performance and to avoid constructive participation in the TIP. I am fortified in these conclusions by the following observations:
227 Firstly, despite the applicant claiming she had supporters and that there were witnesses to the serious allegations, including teachers, parents and students, there was not a single witness brought in these proceedings to corroborate the applicant's claims of homophobia, bullying, intimidation, harassment and physical violence. If, for example, Mr Proops and Mr Bowden had chased the applicant down the playground yelling at her, one might have reasonably expected that someone would have seen it. The applicant's own support person, Ms Culshaw, said she had looked out her window, at the time, but didn't even see Mr Proops or Mr Bowden; let alone see them chasing her. If there had been yelling and shouting by Mr Proops in the classroom during school hours, one might have reasonably expected that someone would have heard it. The highest the evidence went to supporting the applicant's version of events is where Ms Culshaw said that on 13 June 2006, the applicant had told her what Mr Bowden and Mr Proops had said and done in her classroom. She had been crying and was upset. This does not prove the applicant's version of events at all. It is only proof of what the applicant said had happened. I note that Ms Culshaw also said that the applicant had told her that only Mr Bowden had blocked her exit from the classroom. Later the applicant's version was that both Mr Bowden and Mr Proops had blocked her exit. In addition, Ms Culshaw said that Ms Kelly Murphy had not been present, despite the applicant claiming she had been.